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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 105 (09 February 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/105.html Cite as: [2023] EWCA Civ 105 |
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2023] EWCA Civ 105 | ||
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES, INTELLECTUAL PROPERTY LIST (ChD), PATENTS COURT
Mr Justice Mellor
Strand, London, WC2A 2LL |
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2023 |
B e f o r e :
LADY JUSTICE ASPLIN
and
LORD JUSTICE ARNOLD
____________________
| (1) INTERDIGITAL TECHNOLOGY CORPORATION (2) INTERDIGITAL PATEN HOLDINGS, INC (3) INTERDIGITAL, INC (4) INTERDIGITAL HOLDINGS, INC |
Claimants/Appellants |
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| - and - |
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| (1) LENOVO GROUP LIMITED (2) LENOVO (UNITED STATES) INC (3) LENOVO TECHNOLOGY (UNITED KIGNDOM LIMITED (4) MOTOROLA MOBILITY LLC (5) MOTOROLA MOBILITY UK LIMITED |
Defendants/Respondents |
____________________
James Abrahams KC and Kyra Nezami (instructed by Kirkland & Ellis International LLP) for the Respondents
Hearing dates : 31 January – 1 February
2023
____________________
Crown Copyright ©
This judgment was handed down by the Court remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 9 February
2023.
Lord Justice Arnold:
Introduction
"This case concerns the way in which in HSUPA it was proposed that data were assembled for transmission on the physical layer (PHY). Only data blocks of certain pre-determined sizes (called E-TFCs) are allowed to be transmitted. Furthermore, the amounts of data which could be sent on the Enhanced Uplink were controlled. The 'useful' data to be sent did not necessarily match an allowed E-TFC, so the system was one in which padding bits were added to ensure the E-TFC was filled. The Patent is concerned with minimising the amount of padding which is sent by adjusting or quantising the amount of data multiplexed into an E-TFC to more closely match the E-TFC size. There are different ways of doing this, none of which provide a perfect solution. The differences arise from (a) what limits are chosen, (b) how they are used and (c) the point in the sequence that various limits are applied."
The skilled person
Technical background
The Patent
"… padding required to match the selected E-TFC may exceed the multiplexing block size of MAC-d flow data including associated MAC-e header information. In this case, the effective data rate is unnecessarily reduced from what is allowed by the selected E-TFC and the physical resources required for its transmission."
"… Both comprise three steps:
(a) First, the UE receives a 'scheduled data grant from a Node B and/or non-scheduled grants from an RNC'.
(b) Second, 'an E-TFC transport block size is selected based on the amount of data allowed to be multiplexed according to the scheduled and non-scheduled grants'.
(c) [Third, h]aving selected an E-TFC based on the grants, Figure 4 requires the amount of data allowed to be transmitted by the grants to be quantized so that the amount of data multiplexed more closely matches the selected E-TFC. In view of one of the construction points which I discuss later, it is to be noted that the quantizing step is described in [0026] 'so that the sum of the scheduled and non-scheduled data (including MAC header and control information) is multiplexed into each EU MAC-e PDU more closely matches the selected E-TFC transport block size'.
…
(e) In either case, the outcome is that the UE has identified an E-TFC based on the amount of data allowed by the grants, and modified the amount of data that can be multiplexed into it (i.e. it has adjusted, or 'quantized', the multiplexing limit set by the grants)."
"The Patent introduces the idea … of selecting an E-TFC based on the grants (rather than selecting an E-TFC based on the data multiplexed into a MAC-e PDU in accordance with the grants), and creating a MAC-e PDU in accordance with that selected E-TFC."
"Figure 6 is a flow diagram of a process 600 for generating a MAC-e PDU in accordance with another embodiment. A largest E-TFC is selected from a set of supported E-TFCs that is smaller than the size of MAC-d flow data and MAC-e control signaling allowed by current grants 602. As a result, the selected E-TFC permits a decreased amount of data to be multiplexed onto the MAC-e PDU relative to the amount allowed by the grants, to more closely match the largest E-TFC size that is smaller than the amount required by scheduled and non-scheduled grants. The MAC-d flow data (scheduled and/or non-scheduled) is multiplexed into a MAC-e PDU in accordance with an absolute priority until no more MAC-d flow data blocks can be added within the limit of the selected E-TFC 604. The MAC-e PDU is padded to match the selected E-TFC size 606."
"Figure 7 illustrates the decreased MAC-e PDU 700B size that more closely matches a selected E-TFC size in accordance with the embodiment of Figure 6. A MAC-e PDU header 702 and MAC-d flow data blocks 704a-704c are supported by the current scheduled and non-scheduled grants. Referring to Figures 6 and 7, the largest E-TFC that is smaller than the size of MAC-d flow data allowed by current grants is selected from the set of supported E-TFCs (step 602). MAC-d flow data blocks, (in this example, the two MAC-d flow data blocks, 704a, 704b), are multiplexed into the MAC-e PDU 700B in accordance with an absolute priority until no more MAC-d flow data blocks can be added within the limit of the selected E-TFC size (step 604). MAC-d flow data block 704c is not multiplexed since it will exceed the limit of the selected E-TFC. Preferably, only the amount of multiplexed scheduled data is adjusted to more closely match the selected E-TFC size. Padding 706 is then applied to the MAC-e PDU 700B to match the selected E-TFC size (step 606). …"
The claims
"[1A] A WTRU comprising:
[1B] means for receiving at least one serving grant and at least one non-scheduled grant,
[1C] wherein the at least one serving grant is a grant for scheduled data transmission
[1D] and the at least one non-scheduled grant is a grant for non-scheduled data transmission,
characterized by:
[1E] means for determining supported E-TFCs, within a E-TFC set, based on a remaining transmit power for enhanced uplink transmission; and
[1F] means for limiting MAC-d flow data multiplexed into a MAC-e PDU, to a largest E-TFC size that is smaller than a size of MAC-d flow data allowed by the received serving and non-scheduled grants and available for transmission."
"The WTRU of claim 1 further comprising: means for selecting a smallest possible E-TFC that is required to support the amount of data allowed to be multiplexed by the at least one of the serving and non-scheduled grants."
"[5A] A method for multiplexing data implemented by a WTRU, the method comprising:
[5B] receiving at least one serving grant and at least one non-scheduled grant,
[5C] wherein the at least one serving grant is a grant for scheduled data transmission
[5D] and the at least one non-scheduled grant is a grant for non-scheduled data transmission,
characterized by:
[5E] determining supported E-TFCs, within a E-TFC set, based on a remaining transmit power for enhanced uplink transmission; and
[5F] limiting MAC-d flow data multiplexed into a MAC-e PDU, to the largest E-TFC size that is smaller than a size of MAC-d flow data allowed by the received serving and non-scheduled grants and available for transmission."
"The method of claim 5 further comprising: selecting a smallest possible E-TFC that is required to support the amount of data allowed to be multiplexed by the at least one of the serving and non-scheduled grants."
Principles of claim interpretation
The judge's interpretation of the claims
"'means for'
181. Lenovo argue that the means in integer 1F form part of a scheme such that the means must operate all the time. For its part, IDC makes the conventional argument that provided the apparatus has the requisite means, it infringes even if the means are employed only some of the time.
182. This argument arises because in the Standard as implemented, the integer 1F means are employed when scheduled data is to be transmitted but not for the transmission of non-scheduled data alone. Since there will be occasions where only non-scheduled data are sent, Lenovo argue that there is no infringement.
183. Lenovo's argument is wrong. It is not necessary in this apparatus claim that the means in integer 1F must operate all the time. The accused products have means as specified in claim 1, including in integer 1F. Even if I assume this argument works in claim 1, Lenovo would infringe and would be responsible for multiple infringements of claim 5, the method equivalent to claim 1.
184. My finding has consequences however because this integer 1F is expressed in very broad terms: it is satisfied by any means which bring about the stated result."
Filiatrault
"One of the reasons why the disclosure of Filiatrault was open to the arguments deployed in this case was because the document represents a snapshot at a particular point in time of the development of the enhanced uplink functionality. It is plainly a document which was a work in progress. Sometimes it indicates this expressly by saying a particular topic was FFS - for further study. Other parts were not marked FFS but were clearly still in development. There are also parts which were introduced at an earlier stage and one has to question whether they needed to be changed to reflect later developments. Furthermore, the document was a work in progress towards a finalised Stage 2 specification, the details of which would be worked on in a Stage 3 document. These points have three important consequences. First, Filiatrault has passages which clearly derive from earlier drafts of the specification when certain features had not been incorporated. Second, it is unsafe to treat Filiatrault as fully worked out or even necessarily internally consistent. Third, parts of Filiatrault are open to interpretation as to precisely how the concepts described would actually be implemented."
The difference between Filiatrault and the claimed invention identified by Mr Townend
"305. The invention claimed in the Patent is therefore different from the disclosure in Filiatrault because:
(a) Filiatrault uses the grants as a multiplexing limit in a MAC-e PDU and then selects the smallest E-TFC which is larger than the multiplexed data, and adds any necessary padding. This allows the selected E-TFC to be larger than the sum of the grants, and/or the padding to be larger than a MAC-d PDU which could otherwise be sent.
(b) The claimed invention in the Patent uses the grants as a limit on the largest E-TFC which can be used and then uses the size of that largest E-TFC as a multiplexing limit. This guarantees that the selected E-TFC (i.e.: the multiplexed data, the headers, and any padding that comprise the MAC-e PDU) will not be larger than the sum of the grants, nor will the size of padding be greater than the size of a MAC-d PDU which could otherwise be sent.
306. It is therefore my understanding that Filiatrault discloses a fundamentally different scheme for MAC-e PDU creation and E-TFC selection compared to the invention claimed in claims 1 and 5 of the Patent."
"(a) First, on each side E-TFC restriction is assumed to have taken place already and is not illustrated.
(b) Second, the right-hand side of X3 highlights the additional and earlier selection step, Step 2, which the Patent's scheme requires. Note this is not E-TFC restriction but a selection from the E-TFCs permitted following E-TFC restriction."
"The analysis so far shows that, in order to decide which approach is correct, one can address these questions:
…
(c) Third, does Filiatrault disclose the additional selection step i.e. step 2 on the right-hand side of X3?"
Lenovo's four cases based on Filiatrault
"In its closing arguments, Lenovo contended that claim 1 was invalid over Filiatrault on four different bases, which I will consider in turn:
(a) First, that Filiatrault clearly and unambiguously taught that the grants (both types) are a limit on uplink resources and therefore Filiatrault anticipates.
…
(d) Fourth, that if I find in favour of IDC on the 'means for' construction issue, that Filiatrault anticipates claim 1 even on Mr Townend's reading. This is the case based on DXX/14."
The judge's rejection of Lenovo's first case on Filiatrault
"Finally, in case the answers are not already clear, I return to consider the questions I mentioned above [i.e. in paragraph 199]:
…
(c) Third, does Filiatrault disclose the additional selection step i.e. step 2 on the right-hand side of X3? Not only does Filiatrault not disclose this additional selection step, but the argument that it did depended on the skilled person sharing Dr Irvine's mindset, a point I have firmly rejected."
DXX/14 and the judge's reasoning based upon it
"316. Shortly before this illustration was put to Mr Townend, he clarified that his paragraph 305(a) was a bit of a shorthand, in that 'the grants are used, sort of one by one to collectively create that multiplexing limit, as opposed to sort of being used together in the way we were discussing earlier…' He also made it clear that his paragraph 305 was considering the scenario where the UE is not power-limited, but grant-limited. So his text from paragraph 305(a), quoted in DXX/14, contemplates that the E-TFC restriction step has already taken place. In the illustration therefore, all the illustrated E-TFCs are supported.
317. The cross-examination on DXX/14 went as follows:
'Q. So in this case, the grants, and again subject to the clarification you made, amount to slightly fewer bits than they did in JI-03. So at Stage 2, adding a fourth MAC PDU would cause the multiplexed data to exceed the grants. You can see that just by eyeballing the page; yes?
A. Yes, and so I think this is what you were referring to when you were saying 'subject to the same thing'. So effectively that adding an additional MAC-d PDU would cause one of the grants to be exceeded. It does not much matter which, I suspect.
Q. So in this case, Filiatrault, as you understand it, would produce a MAC PDU as shown here at Stage 4; yes?
A. Yes.
Q. So in this scenario, the UE would limit the amount of MAC-d flow data and associated MAC-e header, to be within the largest E-TFC size that is smaller than the sum of the grants?
A. In this particular case, by virtue of where the MAC-d PDU sizes and the particular grants that were being assumed, yes.
Q. Okay. Thank you. That was just checking that we had understood your evidence correctly, and we obviously have.
A. Yes.'
318. The force of this point is that Mr Townend accepted that, with certain particular MAC-d PDU sizes and particular grants as illustrated in DXX/14, Filiatrault had means which produced the result required by integer 1F of the Patent.
319. IDC's only response to this evidence was to brush it aside, saying in their written closing:
'All this shows is that a phone that does not have the patented means and therefore never applies the patented limit on multiplexing, depending on circumstances in which it is operating (particularly the E-TFC sizes, the multiplexing block size and where the grants fall) may by use of completely different means, applying different multiplexing limits, end up selecting an E-TFC for use that might have been arrived at by a phone using the patented means.'
320. It is true (as I have found above) that Filiatrault does not disclose or teach the solution of the 'next smaller' scheme as described in the Patent. However, as I pointed out above, the means required by integer 1F are means which produce a particular result, and the scenario presented in DXX/14 achieves that result."
"323. Accordingly, I find that, on the basis of this DXX/14 argument, claim 1 of the Patent is anticipated by Filiatrault.
324. It also follows that if I had construed 'means for' as contended for by Lenovo, the Patent would be valid but neither infringed by Lenovo nor essential to the Standard."
Two points which are not in issue
Paragraphs 1 and 3 of the respondents' notice
The appeal
Construction
"Claim 1 therefore involves three steps:
8.38.1 Identify 'a size of MAC-d flow data allowed by the serving and non-scheduled grants and available for transmission', then
8.38.2 Choose the largest E-TFC size that is smaller than this size, then
8.38.3 Limit the MAC-d flow data to fit into this E-TFC size."
"Q. … What I was particularly focusing on is that what has been introduced is a new multiplexing limit, and in identifying the multiplexing limit, determining it, what we use is an E-TFC which has been derived from a volume, which is the sum of the grants, and going to the next smallest E-TFC?
A. Yes.
Q. That is what is in the claim?
A. I would agree with that, yes."
"limiting MAC-d flow data multiplexed into a MAC-e PDU to a largest E-TFC size that is smaller than a size of MAC-d flow data allowed by the received serving and non-scheduled grants …".
Essentiality and infringement
Novelty
"I think one must be realistic about these things when construed in a patent specification and must avoid, if one can, falling into the trap of being astute after the event by ex post facto synthesis to build up an anticipation out of a prior document or prior user in order to make it fit the claim."
EWCA
Civ 1062, [2010] RPC 8 at [13] (Jacob LJ). Although Filiatrault is not in terms acknowledged in the Patent, it was common ground between the experts that the earlier part of the specification was based upon it (or an earlier draft of v6.2.0 which was not materially different). Moreover, it is clear that the skilled reader would appreciate that. Accordingly, I think this principle is applicable here.
Conclusion
Lady Justice Asplin:
Lord Justice Lewison: