Kyocera Wireless and Qualcomm and Motorola and Samsung Electronics and LG Electronics MobileComm and Sanyo Fisher and T-Mobile and AT&T Mobility (Cingular Wireless) and Sprint Nextel and Palm and Pantech and UT Starcom and Shenzhen Huawei Communication Technologies and RIM and Foxconn and Casio Hitachi Mobile Communications v. International Trade Commission and Broadcom (CAFC 2007-1493, -1494, -1495, -1496, -1497, -1498, -1499, -1514, -1573, 2008-1004, -1009, -1010, -1012, -1013, -1015, -1018, -1019)

Judge Rader wrote the opinion, joined by Bryson and Linn.

The upshot of a consolidated appeal -

The United States International Trade Commission ("ITC" or "Commission") determined that Qualcomm Incorporated ("Qualcomm") infringed Broadcom Corporation's ("Broadcom's") United States Patent 6,714,983 ("'983 Patent") with its imports. As a remedy, the ITC issued a limited exclusion order ("LEO") against the importation of all downstream products containing the accused technology. Aside from Qualcomm, the appellants in this action are Qualcomm's customers. Some customers are wireless device manufacturers whose products are subject to the LEO. Others are wireless network operators whose networks depend on products subject to the LEO. Despite the broad downstream scope of the LEO, Broadcom named only Qualcomm as a respondent in its ITC complaint. Because the ITC correctly construed the critical disputed claim term in Broadcom's patent, and because the ITC correctly rejected Qualcomm's invalidity arguments under 35 U.S.C. §§ 102 and 103, this court affirms the ITC's finding that the '983 Patent is not invalid. This court also affirms the ITC's determination of no direct infringement by Qualcomm. However, because the ITC misapplied the standard for induced infringement, this court vacates and remands on infringement. Finally, because the ITC has no statutory authority to issue an LEO against downstream products of non-respondents, this court vacates and remands the limited exclusion order.

Claim Construction

The disputed claim term in this case--"different"--appears in the following claim phrase: "[A] second wireless communication different from the first." This phrase does not, in and of itself, suggest any limitation on the degree of difference between the two wireless communications. The phrase merely requires that the communications be "different," without suggesting any manner or degree of difference.

The CAFC, not willing to take a plain language claim term as plain language, toiled to narrow "different," in defiance of extensive case law, and misconstruction of the case it cited to support its conclusion.

Herein beats the heart of the broken patent system in this country: an inconsistent and capricious judiciary, unaware and unable to take a holistic approach to simplifying claim construction - plain terms taking plain meaning - and thus making patent litigation something more than a crapshoot.

However, this court does not interpret claim terms in a vacuum, devoid of the context of the claim as a whole. See Hockerson-Halberstadt, Inc. v. Converse Inc., 183 F.3d 1369, 1374 (Fed. Cir. 1999) ("proper claim construction . . . demands interpretation of the entire claim in context, not a single element in isolation."); ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) ("While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered . . . ."). Claim 1 requires "communication circuitry" "being adapted" to use the two different wireless communications. Communications circuitry capable of using a "first wireless communication" need not be "adapted" to use a "second wireless communication different from the first" unless the difference between the first and second communications is somehow significant. In this context, the disputed claim term suggests that the two claimed wireless communications are not merely "different" in any way, but in such a way that requires adaptations in "communication circuitry" to facilitate both wireless uses.

With this introduction, this court consults the specification to determine the nature of the potential differences in wireless communications. See V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1311 (Fed. Cir. 2005) ("In most cases, the best source for discerning this proper context is the patent specification wherein the patent applicant describes the invention.")... Thus, the specification consistently teaches that the relevant difference between the two claimed wireless communications is their method of communication.

Qualcomm wanted a broad, straightforward reading of "different." Oh, but it would ask too much of the CAFC to require that plain words take their plain English meaning. Technical rummaging must ensue regardless of merit. Claims couldn't simply mean what they say. The stylings of a claims drafter couldn't simply be taken at face value, the scope determined by the claim language itself. And so claim construction becomes unpredictable, because a claim isn't a claim until the fat specification sings before the CAFC.

Validity

'983 isn't valid. But Qualcomm made a procedural mistake, in arguing anticipation (§ 102) but not obviousness (§ 103) before the ITC administrative judge. Too late now, we won't consider it, the CAFC ruled, even as it remanded.

To start with, the ITC didn't want to recognize the GSM standard as a "printed publication," or as a single document by incorporation.

Qualcomm further appeals the ITC's finding that a collection of technical specifications known as the Global System for Mobile Communications ("GSM") standard does not anticipate the asserted '983 claims. The GSM standard is a comprehensive set of specifications for a second generation ("2G") mobile network. The European Telecommunications Standards Institute ("ETSI"), an independent standards organization comprised of telecommunications manufacturers and carriers, devised this standard. The standards are technical specifications that describe one aspect of the technology for inter-operable GSM-compliant equipment.

The ITC determined Qualcomm did not show that the GSM standard was a "printed publication" under 35 U.S.C. § 102. Specifically, Qualcomm did not show that the GSM standard was publicly available. In addition, the ITC found the GSM standard did not constitute a single prior art reference for purposes of anticipation under 35 U.S.C. § 102. Initial Determination, 2006 ITC LEXIS 803, at *267.

Nothing to the court is purely factual. It's always "a legal conclusion based on underlying factual determinations," the facts themselves always subject to CAFC review, deference like a flimsy negligee on a stripper.

"Whether an asserted anticipatory document qualifies as a 'printed publication' under § 102 is a legal conclusion based on underlying factual determinations." Cooper Cameron Corp. v. Kvaerner Oilfield Prods., Inc., 291 F.3d 1317, 1321 (Fed. Cir. 2002). This court reviews the legal conclusion without deference while according substantial evidence deference to the factual components of the determination. See Bourdeau Bros., Inc. v. ITC, 444 F.3d 1317, 1320 (Fed. Cir. 2006).

The court has an expansive definition of "public accessibility."

The "printed publication" requirement appears in 35 U.S.C. § 102: "A person shall be entitled to a patent unless . . . (b) the invention was patented or described in a printed publication in this or a foreign country . . . more than one year prior to the date of the application for patent in the United States." "Because there are many ways in which a reference may be disseminated to the interested public, 'public accessibility' has been called the touchstone in determining whether a reference constitutes a 'printed publication' bar under 35 U.S.C. § 102(b)." In re Hall, 781 F.2d 897, 898-899 (Fed. Cir. 1986). A reference is publicly accessible "upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence, can locate it . . . ." SRI Int'l, Inc. v. Internet Sec. Sys. Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008) (quoting Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006)). This court assesses public accessibility on a case-by-case basis. In re Cronyn, 890 F.2d 1158, 1161 (Fed. Cir. 1989).

The ITC, ill-versed in case law, didn't consider the GSM standard publicly accessible.

The ITC concluded the GSM standard was not publicly available because it was analogous to the publication in Northern Telecom, Inc. v. Datapoint Corp., 908 F.2d 931 (Fed. Cir. 1990). In Northern Telecom, the documents described a complex military system. The company maintaining the documents housed them in a proprietary library with access restricted to persons authorized by the company. Id. at 936. Under these circumstances, the document was not sufficiently available to the public. Id. at 936-37.

In this case, however, the record shows that the GSM reference was not secluded under a similar veil of secrecy. The record shows that GSM specifications, though drafted within smaller technical subcommittees, were widely distributed before the critical date of the '983 Patent. Versions of the standard were "publicly available and released as consistent sets."

The singular but sprawling GSM standard, which invalidates '983, does not qualify, according to the CAFC's interpretation of what constitutes a reference.

This court next turns to Qualcomm's contention that the ITC incorrectly found that Qualcomm's proffered collection of eleven separate GSM specifications does not anticipate the asserted '983 Patent claims because the specifications do not together constitute a single reference for § 102 purposes. Qualcomm argues the different GSM specifications are like chapters of a book and function as a single, coherent reference that is simply too voluminous to bind into one volume.

This court requires that in order to anticipate a claim, "a single prior art reference must expressly or inherently disclose each claim limitation." Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1334 (Fed. Cir. 2008). The record evidence suggests that the GSM standard is not a single reference. The different specifications that comprise the GSM standard were authored by different subsets of authors at different times.

Somewhat inconsistent to its expansive view of what is publicly accessible, the court takes a quite narrow stance on incorporation. All legal niceties, bearing at best tangential correspondence to how one of skill in the art might consider linked references. In this case, that the GSM specification considers itself a single standard by voluminous cross-reference is to the court a "vague referencing practice." This rigorous incorporation doctrine does not square with anticipation inherency.

Qualcomm asserts that each GSM specification incorporates the others by reference. Even if true, this fact does not qualify the GSM standard as a single reference. This court has been clear that in order for one document to incorporate another document by reference, the incorporating document must identify the incorporated document with detailed particularity, clearly indicating the specific material for incorporation. See Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000). At most, each relevant GSM specification identifies itself as a part of the greater GSM standard; specifications at times cross-reference other specifications. This vague referencing practice is hardly sufficient to meet this court's legal requirements for incorporation. In sum, the GSM standard is simply not a coherent whole document that can be assigned a single prior art date of creation.

The court standard, that "in order for one document to incorporate another document by reference, the incorporating document must identify the incorporated document with detailed particularity, clearly indicating the specific material for incorporation," simply is not true. Patents incorporate material wholesale all the time. There is considerable artifice here in upholding an invalid patent.

Because the GSM standard is not a single reference for an anticipation examination, this court need not reach Qualcomm's arguments that the GSM standard discloses all the requirements of Broadcom's asserted claims.

Infringement

Broadcom failed to prove Qualcomm directly infringing. The ITC found inducing infringement without any direct infringement. Oops.

Under 35 U.S.C. § 271(b), "[w]hoever actively induces infringement of a patent shall be liable as an infringer." To prevail on inducement, "the patentee must show, first that there has been direct infringement, and second that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another's infringement." Minn. Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1304-05 (Fed. Cir. 2002) (citation omitted). In DSU Med. Corp. v. JMS Co., this court clarified en banc that the specific intent necessary to induce infringement "requires more than just intent to cause the acts that produce direct infringement. Beyond that threshold knowledge, the inducer must have an affirmative intent to cause direct infringement." 471 F.3d 1293, 1306 (Fed. Cir. 2006) (en banc review of intent requirement).

Intent to induce infringement "may, of course, be demonstrated by circumstantial evidence." While cross-referencing documentation is "vague" for considering it invalidating prior art, encouraging infringement is proven by a hint. No doubt the CAFC considers consistency the hobgoblin of small minds.

Proof of intent to cause infringing acts is a necessary but not sufficient condition for induced infringement. Inducement additionally requires "evidence of culpable conduct, directed to encouraging another's infringement," i.e., specific intent to encourage infringement. DSU, 471 F.3d at 1306. This specific intent may, of course, be demonstrated by circumstantial evidence such as that presented by Broadcom. Id. But the ITC's conclusion that "Qualcomm intends to induce infringement because it provides its customers with the system determination code" evinces, at most, a finding that Qualcomm generally intended to cause acts that produced infringement. Thus, the current record falls short of the necessary intent showing for inducement--that Qualcomm possessed a specific intent to cause infringement of Broadcom's patent.

Next round, Qualcomm goes down, intimates the CAFC.

Because the Commission based its finding on an approach overruled by DSU, this court vacates and remands the ITC's determination of induced infringement. On remand, the ITC will have the opportunity to examine whether Qualcomm's conduct satisfies the specific intent requirement set forth in DSU.

Yet another instance of the courts changing "approaches" to statutory interpretation willy-nilly. The activist jurisprudence rampant in patent law in recent years may not be unprecedented, but it certainly is not justified.

Due Process

The ITC, "a creature of statute," acts as a rabid dog off its leash. Due process, like civility and free enterprise, are thin veils to the reality of government in the U.S.A. Thank goodness that rule of law, however twisted it may be, still holds sway.

The ITC is a creature of statute, and must find authority for its actions in its enabling statute. See Vastfame Camera, Ltd. v. ITC, 386 F.3d 1108, 1112 (Fed. Cir. 2004).

On appeal, Qualcomm and the third-party appellants argue, inter alia, that the Commission exceeded its statutory authority by issuing an LEO that excludes imports of downstream manufacturers who were not named as respondents in Broadcom's initial complaint. According to these appellants, LEOs may only exclude the products of named parties. Broadcom and the Commission maintain that the ITC has authority to order an LEO which excludes all of a respondent's articles that are determined to violate, regardless of the identity of the importer.

According to the plain language of the statute, Congress created two distinct forms of exclusion orders: one limited and one general. The default exclusion remedy "shall be limited to persons determined by the Commission to be violating this section." Id. § 1337(d)(2). By contrast, a "general exclusion" order ("GEO") is only appropriate if two exceptional circumstances apply. Specifically, under subsection d(2)(A), the Commission may issue a GEO if it is "necessary to prevent circumvention of an exclusion order limited to products of named persons" or, under subsection d(2)(B), if "there is a pattern of violation of this section and it is difficult to identify the source of infringing products." Id. §§ 1337(d)(2)(A) and (B). By implication, an LEO is both "an order limited to products of named persons," and one where the complainant has not demonstrated "a pattern of violation of this section and [difficulty in identifying] the source of infringing products." Thus, on its face, the statutory context limits LEOs to named respondents that the Commission finds in violation of Section 337. The ITC cannot expand its authority from "persons determined by the Commission to be violating" to "articles manufactured by persons determined by the Commission to be violating." See Burlington N. R.R. Co. v. Okla. Tax Comm'n, 481 U.S. 454, 463 (U.S. 1987) ("[T]he addition of words to a statutory provision which is complete as it stands . . . would require amendment rather than construction of the statute, and it must be rejected here"). If a complainant wishes to obtain an exclusion order operative against articles of non-respondents, it must seek a GEO by satisfying the heightened burdens of §§ 1337(d)(2)(A) and (B).

The Commission and Broadcom argue that Congress could not possibly have intended to limit the effect of LEOs to named respondents, because unnamed, difficult-to-identify importers of infringing articles might escape enforcement through this loophole... In other words, the trade act has made it clear that a party must meet these heightened requirements before the ITC has authority to issue a general exclusion order against products of non-respondents. See 19 U.S.C. § 1337(d)(2).

The appeals court takes liberty to rub it in the faces of Broadcom and the ITC for their careless collusion to virulently exceed the law.

Broadcom has a particular difficulty making its argument about the drastic potential consequences of following the statutory requirement of a general exclusion to reach imports beyond those of a respondent. The record in this case shows that the Commission explicitly found that Broadcom knew the identity of the handset manufacturers whose products contain the accused chips. Initial Determination, 2006 ITC LEXIS 803, at *414. Broadcom thus could have named such manufacturers as respondents to the Section 337 investigation. Further, the Commission found that Broadcom knew when it filed its complaint that almost all of the accused chips entering the United States were incorporated into handsets by third parties, rather than being imported separately by Qualcomm. Id. Broadcom appears to have made the strategic decision to not name downstream wireless device manufacturers and to not request the ITC to enter a GEO. Thus, Broadcom chose to forego the full advantage of an LEO's statutory scope by not naming known downstream respondents. Broadcom also chose to forego the burden of proving the extra statutory requirements for a GEO. Based on those choices, Broadcom does not stand in the best position to attempt to blur the clear line drawn by the statute between LEOs and GEOs.

Affirmed-in-part, vacated-and-remanded-in-part.