United States Court of Appeals 

for the Federal Circuit ______________________

WI-LAN USA, INC., WI-LAN, INC.,

Plaintiffs-Appellants

v.

APPLE INC.,

Defendant-Appellee

______________________

2015-1256

______________________

Appeal from the United States District Court for the 

Southern District of California in No. 3:13-cv-00798-DMSBLM, Judge Dana M. Sabraw.

______________________

Decided: August 1, 2016

______________________

ROBERT A. COTE, McKool Smith, P.C., New York, NY, 

argued for plaintiffs-appellants. Also represented by 

KEVIN SCHUBERT; DIRK D. THOMAS, Washington, DC.

MARK C. SCARSI, Milbank, Tweed, Hadley & McCloy, 

LLP, Los Angeles, CA, argued for defendant-appellee. 

Also represented by ASHLEE N. LIN, MIGUEL JESUS RUIZ,

MICHAEL K. SHEEN; CHRISTOPHER JAMES GASPAR, New 

York, NY.

______________________

Before LOURIE, BRYSON, and CHEN, Circuit Judges.
2 WI-LAN USA, INC. v. APPLE INC.

CHEN, Circuit Judge.

This appeal arises from an infringement action WiLAN, Inc. and Wi-LAN USA, Inc. (Wi-LAN) filed against 

Apple, Inc. (Apple). Wi-LAN claims that Apple’s iPhone

operating on a 4G network infringes its U.S. Patent Nos. 

8,311,040 (the ’040 patent) and 8,315,640 (the ’640 patent). Based on several claim constructions the district 

court reached, it granted Apple summary judgment of 

noninfringement on all asserted claims. It then denied

Wi-LAN’s motion for reconsideration of that grant of 

summary judgment. Wi-LAN takes issue with two of the 

district court’s claim constructions, and it requests that 

we reverse the district court’s grant of summary judgment

on all asserted claims of the ’040 patent and two claims of 

the ’640 patent.

Both patents in suit result from advances a networking company, Ensemble, proposed to make to the WiMAX 

wireless network standard. In a typical wireless network, 

a base station connects directly to the user devices that it 

serves. The ’040 and ’640 patents introduce a modification to this typical network to add intermediary nodes1

between the base station and the user devices. ’040 

patent at Fig. 1, 4:11–16, 23–24; ’640 patent at Fig. 1, 

6:30–32, 47–48. Communications from the base station to 

a user device pass from the base station through an 

intermediary node to the user device; communications 

from a user device to the base station take the reverse 

path, from the user device through the intermediary node 

to the base station. ’040 patent at 4:40–41; ’640 patent at

 

1 The specifications and claims of the patents in 

suit refer to this intermediary node with various terms. 

Neither party contends before us that these various terms 

carry any difference in meaning. For simplicity, we 

therefore refer to this network component consistently as 

an “intermediary node.”
WI-LAN USA, INC. v. APPLE INC. 3

Fig. 1, 19:28–29. This network architecture allowed for 

efficiency gains, primarily because the base station could 

offload some of its more resource-intensive tasks to the 

intermediary nodes. ’040 patent at 3:40–55; ’640 patent 

at 4:38–48. Wi-LAN purchased Ensemble’s patent portfolio. The two patents in suit, which Wi-LAN filed as 

continuation applications from applications Ensemble had 

originally filed, address two specific advances that Ensemble achieved in this network architecture with intermediary nodes.

The ’040 patent addresses an efficiency gain that a 

network with intermediary nodes can provide: before an 

intermediary node passes data packets it receives from its 

users to the base station, it can reformat these packets for 

easier transmission on the network. Claim 1 is representative for our purposes. It focuses on the intermediary 

node—here claimed as a “node for a communications 

system”—and describes the process by which it converts 

non-uniform “service data units” that it receives from its 

user devices into uniform “protocol data units” for retransmission to the base station:

1. A node for a communications system that packs 

and fragments variable-length service data units 

(SDU) for mapping into variable length protocol 

data units (PDU), each SDU being associated with 

a specified connection, the node comprising:

a communications processor configured to 

pack and fragment SDUs associated with 

a specified connection into a PDU, including

allocate bandwidth for the specified connection, based on the priority of the connection,
4 WI-LAN USA, INC. v. APPLE INC.

establish a length for the PDU based on 

the bandwidth allocated to the specified 

connection in a current frame,

pack a first SDU into a payload area of the 

PDU,

determine whether a second SDU is larger 

than a remaining payload area of the 

PDU,

if the second SDU is not larger than the 

remaining payload area of the PDU, map 

the second SDU to the remaining payload 

area of the PDU, and

if the second SDU is larger than the remaining payload area of the PDU, fragment the second SDU into at least two 

fragments and map the first fragment to 

the remaining payload area of the PDU, 

and

include packing sub-headers in the PDU 

to allow determination of the length of the 

SDUs and the lengths of the fragments 

that are mapped to the PDU.

’040 patent at 19:29–53 (emphasis added).

The ’640 patent describes a process by which a network with an intermediary node can allocate uplink 

bandwidth—its data-carrying capacity in the direction 

from user devices to the base station—among its various 

user devices. Claim 1 is exemplary for our purposes. It 

describes a process where the intermediary node—

claimed as a “wireless subscriber radio unit” here—

registers itself with the base station, requests and receives uplink bandwidth from the base station in which to 

transmit a second bandwidth request, makes this second 
WI-LAN USA, INC. v. APPLE INC. 5

bandwidth request and receives bandwidth, and then 

allocates this bandwidth to its “UL connections”:

1. A method for requesting bandwidth on demand 

in a wireless communication system, wherein the 

wireless communication system includes a wireless subscriber radio unit, the method comprising:

registering the wireless communication 

radio unit with a base station in the wireless communication system and establishing communication between the wireless 

subscriber radio unit and the base station;

transmitting from the wireless subscriber 

radio unit which is registered with the 

base station, an explicit message to the 

base station requesting to be provided an 

allocation of uplink (UL) bandwidth in 

which to transmit a bandwidth request;

receiving at the wireless subscriber radio 

unit the allocation of UL bandwidth in 

which to transmit a bandwidth request;

transmitting the bandwidth request within the allocation of UL bandwidth, the 

bandwidth request specifying a requested 

UL bandwidth allocation; and

receiving an UL bandwidth grant for the 

wireless subscriber radio unit in response 

to the bandwidth request;

wherein the wireless subscriber radio unit 

maintains a plurality of queues, each 

queue for data pertaining to one or more 

UL connections with similar QoS [quality 

of service] and wherein the wireless subscriber radio unit allocates the UL band-
6 WI-LAN USA, INC. v. APPLE INC.

width grant to the one or more UL connections based on QoS priority.

’640 patent at 23:7–33 (emphasis added).

Wi-LAN alleges that Apple’s iPhones infringe both asserted patents when running on a 4G LTE network. The 

parties agree that the accused phones connect to network 

base stations (here, cellular towers) directly, not through 

any piece of network equipment playing the role of the 

intermediary node. Wi-LAN takes the infringement 

position that, instead, its claimed intermediary node

maps onto the baseband processor in Apple’s phone, 

which handles communications with the 4G network.

Under this infringement theory, the claimed user device 

maps onto the phone’s application processor, which runs

applications on the phone. The issues before us center on 

the question whether this different network architecture 

nonetheless makes use of the inventions claimed in the 

patents.

Wi-LAN appeals one of the district court’s claim constructions per asserted patent: its construction of the term 

“specified connection” in the ’040 patent and the term “UL 

connections” in the ’640 patent. Apple counters with an 

argument that Wi-LAN waived its appeal on “UL connections” by raising the construction it now seeks for the first 

time in a motion for reconsideration of the district court’s 

summary-judgment order. We reject Apple’s waiver 

argument, finding that the district court did not abuse its 

discretion in considering Wi-LAN’s new construction at 

that late stage of the case. We affirm both of the district 

court’s claim constructions. Because Wi-LAN agrees on 

appeal that the accused devices do not infringe under the 

district court’s constructions, we affirm the district court’s 

grant of summary judgment of noninfringement on all 

asserted claims.
WI-LAN USA, INC. v. APPLE INC. 7

PROCEDURAL BACKGROUND

Wi-LAN sued Apple for infringement, asserting the 

’040 and ’640 patents against Apple’s iPhones running on 

a 4G network. The case progressed through claim construction, where the district court construed several terms 

including the two at issue before us: “specified connection” 

in the ’040 patent and “UL connections” in the ’640 patent. For “specified connection,” the court adopted Apple’s 

proposed construction, defining the term as “the communications link between a[n intermediary] node and a 

specific end user.” J.A. 24. The parties’ claimconstruction briefing on this term did not present the 

court with the question now before us: whether “specified 

connection” excludes embodiments where the intermediary node can maintain only one “specified connection.” 

The district court therefore made no determination on 

this issue. For “UL connections,” Apple took a claimconstruction position consistent with the one it takes now, 

seeking to construe the term to mean “an uplink connection between the [intermediary node] and its users.” J.A. 

27. Wi-LAN sought a broader construction: “uplink 

services.” Id. The court agreed with Apple and adopted 

its construction, only modifying the term Apple proposed 

to refer to the intermediary node.2 Id.

 

2 Apple proposed the construction “an uplink connection between the CPE and its users,” using the term 

“CPE,” or consumer premises equipment, that the specification uses to describe an immobile intermediary node 

that is “positioned at [a] fixed customer site[].” J.A. 27; 

’640 patent at 2:7–8. The district court declined to further 

limit its construction with the term “CPE.” Instead, it 

adopted the construction “an uplink connection between 

the wireless subscriber radio unit and its users,” using the 

broader term “wireless subscriber radio unit” from the 

claims. J.A. 27.
8 WI-LAN USA, INC. v. APPLE INC.

After fact and expert discovery, Apple moved for 

summary judgment of noninfringement on both patents. 

Apple argued that the claims require multiple connections 

between an intermediary node and user devices. It 

showed that an iPhone contains only one connection 

between a baseband processor and an application processor. Therefore, in Apple’s view, Wi-LAN’s infringement 

theory that an iPhone’s baseband processor is an intermediary node and the phone’s application processor is a

user device could not succeed. Apple’s motion focused on 

the claim terms “specified connection” in the ’040 patent 

and “UL connection” in the ’640 patent (along with the 

term “connection” in claim 6 of the ’640 patent, which WiLAN does not appeal), which Wi-LAN had identified in its 

infringement contentions as corresponding to the connection between an iPhone’s baseband processor and application processor. For the ’040 patent, Apple sought a 

further construction of “specified connection” to exclude 

embodiments where an intermediary node can maintain 

only one specified connection. Under this construction, 

Wi-LAN’s infringement theory would fail because the 

iPhone’s intermediary node (the baseband processor) 

would connect to only one user device (the application 

processor). For the ’640 patent, Apple argued that the 

claims’ requirement of a “plurality” of queues, each corresponding to “one or more UL connections,” could not 

encompass a device with only one “UL connection.” 

Again, this argument would cause Wi-LAN’s infringement 

theory to fail because it points only to a single “UL connection.” In its summary-judgment order, the district 

court agreed to consider Apple’s proposal to further construe “specified connection,” construed the term as Apple 

proposed, found its constructions of “specified connection” 

and “UL connections” to preclude any disputed issues of 

material fact on any asserted claim, and entered summary judgment of noninfringement.
WI-LAN USA, INC. v. APPLE INC. 9

Wi-LAN moved for the district court to reconsider its 

grant of summary judgment as to all asserted claims of 

the ’040 patent and independent claim 1 and dependent 

claim 2 of the ’640 patent. In this motion for reconsideration, it presented a new infringement theory and sought a 

corresponding new construction of the terms “specified 

connection” and “UL connections.”3 It changed the location of the ’040 patent’s claimed “specified connections” 

and the ’640 patent’s claimed “UL connections”: rather 

than mapping them to the connection within the iPhone 

between its baseband processor and application processor, 

it now mapped them to the connection outside of the 

iPhone between the baseband processor and the base 

station of the cellular network. It also sought a corresponding new construction where the terms refer to the 

connection between the intermediary node and the base 

station (between the iPhone’s baseband processor and the 

cellular tower). The court mentioned several reasons why 

Wi-LAN’s new proposed construction came too late, but it 

ultimately considered—and rejected—this construction on 

its merits. J.A. 3–5. It therefore declined to reverse its 

grant of summary judgment. J.A. 4–5.

Wi-LAN now appeals on both patents. For the ’040 

patent, it drops the argument it made in its motion for 

reconsideration, instead appealing directly from the 

district court’s grant of summary judgment. It claims the 

district court erroneously granted summary judgment 

because it misconstrued “specified connection” to exclude 

embodiments where the intermediary node can maintain 

only one “specified connection.” It applies this argument

 

3 Wi-LAN’s motion for reconsideration also reprised 

the argument from its summary-judgment briefing that 

the term “specified connection” does not exclude embodiments where the intermediary node is capable of maintaining only one specified connection. 
10 WI-LAN USA, INC. v. APPLE INC.

to each claim it asserted: independent claims 1, 14, and 16 

and dependent claims 2, 4, 5, and 15. For the ’640 patent, 

it appeals only claims 1 and 2, the two claims on which it 

moved for reconsideration below. For these claims, it

makes the argument it made in its motion for reconsideration: that we should construe the term “UL connections” 

to refer not to the intermediary node’s connections with 

its user devices, but instead to its connection with the 

base station.

ANALYSIS

We have jurisdiction over this appeal under 28 U.S.C. 

§ 1295(a)(1).

I. Standard of Review

There are two substantive issues before us (along with 

a claim of waiver). The parties set out each substantive 

issue as involving a claim construction that occurred 

outside of the claim-construction phase of the case, one on 

summary judgment and one on reconsideration of summary judgment. We agree. 

Because the only substantive issues before us are ones 

of claim construction, our review falls entirely under the 

Teva standard. Convolve, Inc. v. Compaq Computer 

Corp., 812 F.3d 1313, 1317 (Fed. Cir. 2016) (citing Teva 

Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 836–38

(2015)). We apply our traditional claim-construction 

framework to this review even though the district court 

reached these constructions on summary judgment and 

reconsideration of summary judgment rather than in the 

phase of the case specifically dedicated to claim construction. See Conoco, Inc. v. Energy & Envtl. Int’l, L.C., 460 

F.3d 1349, 1362 (Fed. Cir. 2006) (citing Phillips v. AWH 

Corp., 415 F.3d 1303, 1312, 1314–19 (Fed. Cir. 2005) (en 

banc)). Under the Teva standard, “the ultimate issue of 

the proper construction of a claim should be treated as a 

question of law.” 135 S. Ct. at 839. We review any “sub-
WI-LAN USA, INC. v. APPLE INC. 11

sidiary factual findings [on extrinsic evidence] under the 

‘clearly erroneous’ standard.” Id. “[W]hen the district 

court reviews only evidence intrinsic to the patent (the 

patent claims and specifications, along with the patent’s 

prosecution history), the judge’s determination will 

amount solely to a determination of law, and the Court of 

Appeals will review that construction de novo.” Id. at 

841. Here, the district court properly based its analysis 

entirely on the intrinsic record, and our review is de novo. 

See Eidos Display, LLC v. AU Optronics Corp., 779 F.3d 

1360, 1364–65 (Fed. Cir. 2015).

II. ’040 Patent: “Specified Connection”

The ’040 patent discloses an intermediary-node architecture in which an intermediary node repackages data 

its user devices send it for more efficient retransmission 

to the base station. User devices can transmit data to a

network in digital packets in various different formats, 

which the ’040 patent labels “service data units” or 

“SDUs.” Id. at 3:34–52. For example, a user on a phone 

call might transmit voice data, and one sending an email 

might transmit internet-protocol data. Id. In a network 

where the base station connects directly to user devices, it 

receives these non-uniform packets directly. The variations in packet format and length create inefficiencies 

that limit the amount of data the prior-art base station 

could receive. Id. at 3:40–46. The ’040 patent’s intermediary node overcomes this problem by repackaging the 

various non-uniform service data units into a single, 

uniform format that the patent labels a “protocol data 

unit” or “PDU” and sends them along to the base station. 

Id. at 2:40–49, 3:46–52. The base station thus receives all 

incoming data in an efficient, uniform format. The intermediary node engages in the reverse process when relaying data from the base station to its user devices, 

receiving data in a uniform format and converting it into 

the appropriate formats its user devices require. Id. at 

3:46–48.
12 WI-LAN USA, INC. v. APPLE INC.

The parties agree that the claims use the term “specified connection” to refer to a connection between the 

intermediary node and the user device. They dispute

whether the term “specified connection” excludes embodiments where an intermediary device can maintain only 

one specified connection. Because an iPhone has only one 

connection between its application processor and baseband processor, Wi-LAN contends that the claims can 

read on an embodiment where the intermediary node can 

maintain only one “specified connection.” Apple, in contrast, argues that the district court correctly construed 

the term “specified connection” to exclude such an embodiment.

We begin our analysis with the words of the claim itself as an ordinary artisan would have understood them

at the time of the invention. Phillips, 415 F.3d at 1314. 

Although the term “specified connection” in the claims is 

singular, the claims’ usage of the term (e.g., “each SDU 

being associated with a specified connection”) indicates 

that each service data unit—in a claim that contemplates 

multiple service data units—is associated with exactly 

one “specified connection,” not that the intermediary node 

maintains only one “specified connection.” This fact thus

offers no clues as to whether the invention excludes 

embodiments incapable of maintaining multiple specified 

connections.

Next, we turn to the intrinsic record to determine 

whether the context in which the disputed term sits 

shines light on its meaning. Id. at 1315. Neither party 

argues that the specification explicitly defines the term 

“specified connection.” See id. at 1317. In fact, it never 

mentions this term. The specification’s consistent descriptions of multiple specified connections, however,

suggest that the patent’s claims do not encompass an 

embodiment contrary to these descriptions. For example, 

it states that “each [intermediary] node . . . serv[es] 

multiple connections for users.” ’040 patent at 4:40–41. 
WI-LAN USA, INC. v. APPLE INC. 13

Figure 3 of the patent shows an intermediary node’s 

“connection interface” maintaining multiple “user connection[s]”:

The specification similarly discusses “a plurality of user 

connections.” Id. at 6:20; see also, e.g., id. at 4:61–62 (“the 

users on [an intermediary node’s] connections”), 6:45

(“user connections”). And it never describes a system with 

only one specified connection. 

Consistent use of a term in a particular way in the 

specification can inform the proper construction of that 

term. See, e.g., Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 

1308, 1318 (Fed. Cir. 2014); SkinMedica, Inc. v. Histogen 

Inc., 727 F.3d 1187, 1196 (Fed. Cir. 2013). Here, we find 

the specification’s consistent references to multiple “specified connections” to weigh in favor of a construction 

excluding embodiments where the intermediary node is 

capable of maintaining only one “specified connection.”

We also find the claims’ discussion of allocating 

bandwidth based on a specified connection’s priority to 

support the district court’s conclusion. Each independent 

claim at issue contains a limitation related to allocating 

bandwidth based on a specified connection’s priority. ’040 
14 WI-LAN USA, INC. v. APPLE INC.

patent at claim 1 (“[the intermediary node] allocate[s]

bandwidth for the specified connection, based on the 

priority of the connection”), claim 14 (“bandwidth currently allocated to the specified connection in a current frame 

based on the priority associated with the specified connection”), claim 16 (“the bandwidth amount allocated to the 

specified connection in a current frame, the bandwidth 

amount being established . . . based on one or more communication parameters . . . including the priority of the 

specified connection”). To “allocate” something is to

distribute it among multiple recipients. Thus when the 

claims describe allocating bandwidth to a specified connection, they imply that the intermediary node distributes

this bandwidth among multiple specified connections. 

The claims further describe this allocation as based on a 

specified connection’s “priority.” Priority is a relative 

concept: a specified connection only has a “priority” in 

comparison to other specified connections’ priorities. The 

specification reinforces this conception of “priority” as 

necessarily relative. It describes specified connections’ 

priorities as “high priority,” “mid[ ]priority,” and “lower 

priority.” Id. at 13:38–46. “High” and “mid” are relative 

words that can be defined only by reference to other 

priorities. “Lower” is even more explicitly comparative: as 

a matter of basic grammar something cannot be “lower” 

without being lower than something else. The claims’ and 

specification’s discussion of “allocating” bandwidth to a 

specified connection based on its “priority” therefore 

supports the conclusion that the district court correctly 

construed the term “specified connection” to exclude 

embodiments where an intermediary device can maintain 

only one specified connection.

Wi-LAN attempts to undercut the district court’s conclusion by pointing to instances where the intrinsic record

describes an intermediary node maintaining a single 

connection. But Wi-LAN reads these disclosures incorrectly. First, it notes that in a dependent claim and the 
WI-LAN USA, INC. v. APPLE INC. 15

prosecution history, the patentee refers to the specified 

connections with the singular terms “a specified connection” and “the specified connection.” See id. at claim 7;

J.A. 1917. These uses, however, do not refer to any 

scheme where a node maintains a single “specified connection.” Instead, they use the singular to point to one 

particular specified connection out of multiple ones. Id. 

Second, Wi-LAN notes that the patent includes a figure 

labeling a portion of a protocol data unit’s header as a 

“connection identifier.” See ’040 patent at Fig. 8, 11:31–

32. It claims that this term—using the singular “connection” rather than the plural “connections”—implies that 

the intermediary node maintains only one specified 

connection. This argument misapprehends the grammatical role that the word “connection” plays in the term 

“connection identifier.” “Connection” in this context is a 

noun adjunct modifying “identifier.” Noun adjuncts are 

typically singular, whether they refer to single or multiple 

objects. For example, a bush with a single rose would be 

a “rosebush,” but so would a bush with multiple roses; a 

bus taking children to a school would be a “school bus,” 

but so would a bus taking children to multiple schools. 

Wi-LAN’s argument that an identifier differentiating 

between multiple connections must be called a “connections identifier” would make sense only in a grammatical 

system where a child would wait by the “rosesbush” for 

the “schools bus” to pick her up. Figure 3 of the ’040 

patent demonstrates that the patentee shared our grammatical understanding, labeling an interface for multiple 

connections a “connection interface” rather than a “connections interface.”

Wi-LAN further argues that, because a preferred embodiment of the claimed invention contains only one 

specified connection, a construction excluding this embodiment cannot be proper. Wi-LAN points to the provisional 

application to which the ’040 patent claims priority, which

refers to a node combining multiple short packets from a 
16 WI-LAN USA, INC. v. APPLE INC.

single connection into a larger packet with only one 

header in order to save space. J.A. 2120. However, WiLAN cites nothing in the specification of the ’040 patent

disclosing this embodiment. This embodiment therefore 

cannot be a preferred embodiment of this patent. In any 

event, Wi-LAN is also incorrect that the provisional 

application discloses an embodiment with one specified 

connection. Instead, the disclosure Wi-LAN cites states 

simply that sometimes the node may receive a stream of 

data on one of its specified connections and create bundled protocol data units consisting only of data from that 

stream. J.A. 2120–21.

Because we credit the specification’s consistent descriptions of intermediary nodes maintaining multiple 

connections to user devices and the claims’ and specification’s descriptions of “allocat[ing]” bandwidth to a specified connection based on its “priority,” and because we do 

not find Wi-LAN’s arguments against the district court’s 

construction persuasive, we agree with the district court 

that “specified connection” excludes embodiments where 

an intermediary node can maintain only one specified 

connection. Wi-LAN bases its appeal of the district 

court’s grant of summary judgment solely on this claimconstruction issue. Because we affirm the district court’s 

construction, we also affirm its grant of summary judgment of noninfringement.

III. ’640 Patent: “UL Connections”

A. Waiver

We begin with Apple’s claim of waiver. Below, WiLAN argued during the claim-construction phase that the 

term “UL Connections” should take the construction

“uplink services.” The intermediary nodes, it explained, 

would offer these “uplink services,” which could take the 

form of internet traffic, voice-call data, or text messages. 

Apple argued that the term should take the construction 

“uplink connections between [an intermediary node] and 
WI-LAN USA, INC. v. APPLE INC. 17

its users.” The court largely agreed with Apple’s construction, modifying it only to substitute a more generic 

term for the intermediary node. J.A. 27. Only after 

losing on summary judgment did Wi-LAN first take the 

position—inconsistent with both its earlier position and 

the district court’s construction—that “UL connection” 

refers to the connection between the intermediary node 

and the base station. Apple argues on appeal that waiver 

bars Wi-LAN’s attempt to change its position, urging us to 

reject what it views as Wi-LAN’s attempt to take one 

position on claim construction below and, after that 

position failed on summary judgment, get another bite at 

the proverbial—and in this case literal—Apple by changing its construction.

When Wi-LAN moved for reconsideration of the 

court’s summary-judgment order, the district court recognized this motion as based on a claim construction at odds 

with Wi-LAN’s position during the claim-construction 

phase. It considered whether this change in construction 

came too late and noted several factors suggesting as 

much: Wi-LAN had declined to take advantage of earlier 

opportunities to challenge the court’s construction, pointed to no newly discovered evidence to support its change 

of position, and appeared motivated only by its loss on 

summary judgment. J.A. 4. But, rather than finding this

new construction barred, the district court proceeded to 

analyze its merits. Id.

We review procedural issues specific to patent law 

under our law and those not specific to patent law under 

the regional circuit’s law. Woodrow Woods & Marine 

Exhaust Sys., Inc. v. DeAngelo Marine Exhaust, Inc., 692 

F.3d 1272, 1278 (Fed. Cir. 2012) (citing O2 Micro Int’l, 

Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1364 (Fed. 

Cir. 2006) (in turn citing Sulzer Textil A.G. v. Picanol 

N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004))). Apple’s 

waiver argument arose from Wi-LAN’s motion for reconsideration—a general procedural motion that would 
18 WI-LAN USA, INC. v. APPLE INC.

ordinarily raise no issue specific to patent law. This 

particular motion for reconsideration, however, raised a 

patent-specific procedural issue: whether Wi-LAN could 

amend its claim-construction position at this late stage of 

the case. See Nuance Commc’ns v. Abbyy USA Software 

House, 813 F.3d 1368, 1373 (Fed. Cir. 2016). We therefore consider this issue under our law. We review a 

district court’s exercise of its case-management authority 

for abuse of discretion, including legal and constitutional 

error. Id. at 1372.

We generally support a district court’s casemanagement authority to set a schedule for claim construction that requires parties to take positions on various dates and holds the parties to these positions. For 

example, we found no abuse of discretion in a district 

court’s denial of a party’s motion to amend its infringement contentions based on its finding that the party had 

not been diligent in advancing this new theory. O2 Micro, 

467 F.3d at 1367. When a party took a position in claim 

construction, won on that position, and then attempted to 

change that position shortly before trial, we upheld the 

district court’s determination that, because no good cause 

supported this change in position, the party must maintain its initial position. Nuance Commc’ns, 813 F.3d at 

1373. When a party stipulated to a particular construction and then sought a jury instruction inconsistent with 

that stipulation, we affirmed the district court’s determination that it could not do so. Akamai Techs., Inc. v. 

Limelight Networks, Inc., 805 F.3d 1368, 1376 (Fed. Cir. 

2015). And when, as here, a party raised for the first time 

a new infringement argument on a motion for reconsideration of a summary-judgment order, we found no abuse of 

discretion in the district court’s denial of that motion. 

Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 

1369 (Fed. Cir. 2014).

We likewise support a district court’s discretion to 

permit parties to change their positions over the course of 
WI-LAN USA, INC. v. APPLE INC. 19

litigation. We have long held that a district court may 

“engage in rolling claim construction, in which the court 

revisits and alters its interpretation of the claim terms as 

its understanding of the technology evolves.” Conoco, 460 

F.3d at 1359 (internal quotation marks and citation 

omitted). We have also, for example, upheld a court’s 

decision, based on a finding of good cause, to allow a 

defendant to amend its invalidity contentions after a 

change in the relevant law. Mortg. Grader, Inc. v. First 

Choice Loan Servs., 811 F.3d 1314, 1320–23 (Fed. Cir. 

2016). 

Here, the district court used its case-management discretion to decline to find Wi-LAN’s new construction 

barred and instead to make a merits determination. We 

find that it did not abuse its discretion in deciding to 

resolve Wi-LAN’s motion for reconsideration on its merits. 

We therefore find no waiver.

B. The Claim Construction’s Merits

The ’640 patent describes a way to more efficiently allocate uplink bandwidth in a network with an intermediary node. Uplink bandwidth, in this context, refers to the 

bandwidth available to the network to transmit data from 

user devices to the base station. ’640 patent at 1:49–52. 

A network where multiple user devices share the same 

frequency bands must have an organized system to determine which user device may transmit data to the base 

station in a given frequency band at a given time. Id. at 

1:41–45, 5:61–6:2. Otherwise, two devices could attempt 

to transmit data on the same frequency band at the same 

time, causing the base station to lose the data from one or 

both user devices. Id. A network must allocate its connected devices opportunities to send data in a way that 

avoids this type of overlap. Id. at 5:66–6:2. In doing so, it

can consider the various user devices’ quality-of-service

(QoS) needs. Id. at 4:51–54. For example, a user on a 

telephone call might have a high-priority quality-of-
20 WI-LAN USA, INC. v. APPLE INC.

service need that would require consistent access to the 

network to avoid a delay in transmission that could cause 

the call to skip or lag. Id. at 7:9–12. A user attempting to 

send a file by email, in contrast, would not share this 

high-priority need for immediate or consistent access to 

the network and could instead wait for an opportunity to 

send all of her data in a short burst. Id. at 6:13–16. 

In a wireless network where each user device connects 

directly to the base station, each user device requests

bandwidth from the base station, indicating the amount of 

data it has to upload and its quality-of-service needs. The 

base station processes these requests and fairly distributes bandwidth among user devices. The ’640 patent 

describes an invention that uses intermediary nodes to 

make this process more efficient. Rather than sending 

requests for bandwidth directly to the base station, users 

in the claimed network first send these requests to the 

network’s intermediary nodes. Id. at 2:16–19. The intermediary nodes then bundle the users’ requests and 

transmit a single request for bandwidth to the base 

station. Id. The base station considers the bundled 

requests from each of its intermediary nodes, determines 

how to fairly allocate bandwidth among the intermediary 

nodes, and allocates a grant of bandwidth to each node. 

Id. at 6:17–18, 19:9–25. Each node considers the needs of 

each user device it serves, determines how to fairly allocate the bandwidth it has been granted among its users, 

and allocates a grant of bandwidth to each user. Id. at 

4:34–36. 

This system confers three primary benefits over the 

prior art. First, it decreases the amount of bandwidth the 

base station must devote to receiving requests for bandwidth. In a network with no intermediary nodes, the base 

station would need to field separate requests from each 

individual user device, but in this network architecture

with intermediary nodes, it receives a smaller number of 

bundled requests from its intermediary nodes. Id. at 
WI-LAN USA, INC. v. APPLE INC. 21

2:47–54, 5:56–61. This smaller number of requests takes 

up less bandwidth, allowing the base station to conserve 

this scarce resource. Id. at 4:43–46. Second, and relatedly, the base station uses less processing power in handling

this smaller number of requests. Id. at 4:41–43. Third, it 

allows an intermediary node to change its allocation of 

bandwidth on the fly when it receives higher-priority data

while it is waiting for a bandwidth allocation, allowing 

“for more flexibility at the [intermediary node] and more 

intelligent allocation of the limited bandwidth.” J.A. 

1406.

The dispute before us centers on the term “UL connections.” The parties agree that “UL” in this term means 

“uplink.” “Uplink” refers to a direction of data flow from 

user devices through intermediary nodes to the base 

station; “downlink,” by contrast, refers to the direction of 

data flow from the base station through intermediary 

nodes to user devices. ’640 patent at 1:49–52. The term 

“UL connections” thus refers to some set of connections in 

the uplink direction. 

The term appears twice in the claims at issue. Independent claim 1 states that the intermediary node queues 

“data pertaining to one or more UL connections with 

similar QoS” and “allocates the UL bandwidth grant to

the one or more UL connections based on QoS priority.”

This claim thus sets out a scheme where the intermediary 

node creates various queues based on quality-of-service 

priority, each queue “pertaining to one or more UL connections.” Then, once it receives a grant of uplink bandwidth from the base station, it allocates that grant, based 

on quality-of-service priority, to its “UL connections.”

The district court construed “UL connections” to refer 

to the connections between the intermediary node and its 

user devices. J.A. 27 (construing “UL connection” as “an 

uplink connection between the [intermediary node] and 

its users”). It maintained this construction on Wi-LAN’s 
22 WI-LAN USA, INC. v. APPLE INC.

motion that it reconsider its summary-judgment order. 

J.A. 5. Under this construction, claim 1 describes the 

intermediary node receiving data from its user devices on 

“UL connections,” placing that data into queues based on 

its quality-of-service priority, receiving a grant of uplink 

bandwidth from the base station, and then allocating that 

bandwidth to its various user devices based on the data’s

priority level.

Wi-LAN urges a construction where “UL connections” 

refers to the connection between an intermediary node 

and the base station. Under this construction, claim 1 

describes an intermediary node receiving data from its 

user devices, and placing that data into queues “pertaining to” its connection to the base station “with similar 

QoS.” The intermediary node would then receive a grant 

of uplink bandwidth from the base station and allocate 

this grant to its connection with the base station “based 

on QoS priority.” We find this claim language confusing 

in the context of Wi-LAN’s construction, but Wi-LAN’s 

position appears to be that a node has multiple parallel 

“connections” to the base station, each associated with a 

particular quality of service. 

The parties thus present a choice: the term “UL connections” refers either to the connection between a user 

device and its intermediary node or to the connection 

between an intermediary node and its base station. We 

agree that this term can refer to only one of these two 

connections. The question we must resolve is therefore 

which of these two connections makes the most sense in 

light of the evidence before us.

Because neither party argues that the plain meaning 

of “UL connections” helps our analysis, we begin by looking to the specification to determine whether the patentee 

explicitly defined the term. Phillips, 415 F.3d at 1317. 

Wi-LAN argues that the specification defines “UL connections” when it states: “Transmissions from the base 
WI-LAN USA, INC. v. APPLE INC. 23

station to the subscriber unit are commonly referred to as 

‘downlink’ transmissions. Transmissions from the subscriber unit to the base station are commonly referred to 

as ‘uplink’ transmissions.” ’640 patent at 1:49–52. This 

definition establishes that “uplink” and “downlink” describe the direction data flows through the network, but it 

does nothing to define where in the network the “UL 

connections” are located. In fact, the specification never 

uses the term “UL connections.” We conclude that the 

patentee did not explicitly define the term “UL connections” in the specification.

We turn next to viewing the patent as a whole as well 

as the prosecution history to glean clues as to claim term’s

meaning. Phillips, 415 F.3d at 1315. This context requires us to construe this term to refer to the intermediary node’s connections with user devices, not the base 

station, for three reasons: this is the only construction 

that squares with (1) the scheme the patent sets out 

where the base station allocates bandwidth to its intermediary-node connections and the intermediary nodes

allocate bandwidth to their user connections, (2) the 

network architecture the specification describes, and (3) 

representations Wi-LAN made in prosecution. 

1. Allocating Bandwidth

The specification describes the bandwidth-allocation 

process as consisting of a number of steps. First, a user 

device determines how much data it has to transmit to 

the network and with what quality-of-service needs. ’640 

patent at 2:16–19, 19:13–16. It next communicates these 

requirements to its intermediary node. Id. The intermediary node aggregates the various requests for uplink 

bandwidth it has received from its user devices, and it 

communicates this aggregated request to the base station. 

Id. The base station then aggregates all requests from 

the intermediary nodes it serves and allocates the bandwidth available to it among these intermediary nodes. Id.
24 WI-LAN USA, INC. v. APPLE INC.

at 6:17–18. The base station attempts to grant each 

intermediary node all of the uplink bandwidth it requested, but if too little bandwidth is available, it will take into 

account the quality-of-service needs associated with the 

bandwidth requests and use fairness algorithms to distribute the available bandwidth among its intermediary 

nodes. Id. at 18:64–19:2, 19:18–21. Once it has allocated 

the available uplink bandwidth between its various 

intermediary nodes, it informs each intermediary node of 

its allocation. Id. at 19:23–27. Each intermediary node 

then allocates this bandwidth among its user devices. Id.

at 4:34–36. If the intermediary node receives enough 

uplink bandwidth to accommodate all of the requests from 

its user devices, it will distribute to each user device all of 

the bandwidth it seeks. If it does not receive enough 

bandwidth to accommodate its users’ needs, it performs a 

bandwidth-allocation process to its user devices similar to 

the base station’s allocation process to its intermediary 

nodes, considering the quality-of-service needs associated 

with its users’ bandwidth requests and using fairness 

algorithms to distribute the limited bandwidth the base 

station allocated it. Id. at 19:36–39. Specifically, it first 

distributes bandwidth to its user services with the highest 

quality-of-service needs. Id. at 22:11–14. “For each 

remaining QoS, . . . the [intermediary node] determines if 

there is bandwidth sufficient to satisfy the entire need of 

the QoS queue.” Id. at 22:15–17. “If so, the [intermediary 

node] allocates the required bandwidth.” Id. at 22:17–18. 

“Otherwise, if there is not bandwidth sufficient to satisfy 

the queue, the [intermediary node uses a] queue-specific 

fairness algorithm” to determine how to fairly distribute 

the limited available bandwidth within the queue. Id. at 

22:18–20. For example, under “[t]he round robin fairness 

algorithm,” “[c]onnections that did not receive bandwidth 

are given priority the next time the insufficient bandwidth condition exists.” Id. at 20:60–67. By the time the 

intermediary node receives the base station’s bandwidth 

allocation, the intermediary node may have received new, 
WI-LAN USA, INC. v. APPLE INC. 25

higher-priority data from its user devices; if this is the 

case, it is free to allocate some of the uplink bandwidth it 

received for lower-priority data to transmit this new 

higher-priority data instead. Id. at 19:29–31.

We derive two significant facts from this description 

of allocation. First, the specification unambiguously 

describes an allocation scheme where the base station has 

sole responsibility for allocating bandwidth between itself 

and the intermediary nodes, and an intermediary node 

has sole responsibility for allocating bandwidth between 

itself and its users. Id. at 4:34–36, 6:17–18, 18:40–42, 

18:64–19:2, 19:18–21, 19:36–39, 22:11–20. Because the 

claims describe “UL connections” as connections to which 

the intermediary node—not the base station—allocates 

bandwidth, this first fact suggests that these connections 

are the ones between the intermediary node and its users. 

Second, the specification describes a process—where the 

intermediary node sometimes allocates no bandwidth to a 

“UL connection”—that makes sense only under Apple’s 

construction. The specification makes clear that bandwidth between the base station and its intermediary 

nodes is a scarce resource that should not be wasted. 

When the intermediary node has more data in its queues 

than it can transmit in its limited available uplink bandwidth to the base station, it reacts to this scarcity by 

allocating some of its connections a block of bandwidth 

until it reaches a maximum allocation and then allocating 

no bandwidth to its remaining connections. It then makes 

up for allocating no bandwidth to these connections by 

placing them first in line—within their quality-of-service 

category—the next time it allocates bandwidth. The 

claim language makes clear that an intermediary node 

allocates bandwidth only to its “UL connections,” so this 

description of allocating no bandwidth must mean that, 

whatever a “UL connection” is, it is something to which

the intermediary node may allocate no bandwidth when 

attempting to make best use of limited uplink bandwidth 
26 WI-LAN USA, INC. v. APPLE INC.

to the base station. Apple’s construction of “UL connection” is consistent with this disclosed allocation scheme 

because, when the intermediary node has more data in its 

queues than it can upload to the base station, it will be 

unable to upload data from all user devices and thus will

have to choose particular “UL connections” to particular

user devices that will not have their data uploaded. It 

will compensate for failing to upload these particular 

devices’ data by prioritizing their “UL connections” above 

all other connections of their quality of service the next 

time it allocates bandwidth. By contrast, Wi-LAN’s 

construction, where “UL connections” refers to a connection between an intermediary node and its base station, is 

incompatible with the specification. Under that construction, when an intermediary node has more data in its 

queues than it can upload to the base station, it responds 

by allocating no data to a “UL connection” to the base 

station and then prioritizing this “UL connection” to the 

base station the next time it allocates bandwidth. But it 

does not make sense for the intermediary node to decline

to transmit data to the base station on a “UL connection”

when its goal is to maximize a limited grant of bandwidth 

from the base station. Nor does it make sense to prioritize that “UL connection” above others of its quality of 

service the next time the intermediary node allocates 

bandwidth. This second fact, too, thus supports the 

district court’s construction.

2. The Network’s Architecture

The claims’ clear statement that an intermediary 

node maintains multiple “UL connections,” coupled with 

the specification’s description of a network architecture 

where an intermediary node maintains a connection to a 

base station and multiple connections to its user devices, 

suggests that “UL connections” refers to the connections

between the intermediary node and its users. 
WI-LAN USA, INC. v. APPLE INC. 27

Whatever definition of “UL connections” we take, the 

claim language makes clear that there must be multiple 

“UL connections.” The claims explain that an intermediary node “maintains a plurality of queues, each queue for 

data pertaining to one or more UL connections.” That is, 

the claimed intermediary device must be capable of 

supporting multiple queues, each potentially corresponding to multiple “UL connections.” Claim 5, which is not 

before us but depends from claim 1, also describes the 

“UL connections” claimed in claim 1 as consisting of more 

than one connection, referring to them as “the plurality of 

UL connections.”

The court construed the claim term the ’640 patent 

uses to refer to an intermediary node—“wireless subscriber radio unit”—to define an intermediary node as a “module that receives UL bandwidth from a base station, and 

allocates the bandwidth across its user connections.” J.A. 

27. Neither party appeals this construction, which makes 

clear that each intermediary node connects to one base 

station and multiple users; we must therefore take that 

fact as true. The intrinsic record is consistent with this 

undisputed fact. See ’640 patent at Fig. 1, 2:6–8. For 

instance, it states that, for communications between the 

base station and its intermediary nodes, “[t]he base 

station is the only transmitter operating in the downlink 

direction.” Id. at 6:30–32, 42–43. And it uses the similarly singular language “the base station” and “the uplink” to 

describe a single base station receiving transmissions on a 

single uplink connection. Id. at 13:16–18 (“The [intermediary node] will begin transmitting data to the base 

station over the uplink . . . .”). These statements from the 

specification, along with the undisputed construction of 

“wireless subscriber radio unit,” suggest that the intermediary node maintains a connection with one base 

station and multiple connections with multiple users.
28 WI-LAN USA, INC. v. APPLE INC.

3. The Prosecution History

Wi-LAN admits that it cannot show that Apple infringes claim 6 of the ’640 patent, and it does not appeal 

the district court’s grant of summary judgment of noninfringement on that claim. But when attempting to overcome a prior-art rejection during prosecution, it tied 

important language now in claim 1 to parallel language in 

the application claim that would become claim 6. That 

statement tying these two claims together is inconsistent 

with the position it now takes. A patentee cannot make 

representations about claim language during prosecution

to avoid prior art and then escape these representations

when trying to show infringement. See Convolve, 812 

F.3d at 1324–25. We find these statements to be particularly telling evidence against the construction Wi-LAN 

now seeks.

Claim 6 contains similar wording to claim 1, using the 

term “connections” instead of “UL connections.” Compare

’640 patent, claim 1 (“wherein the wireless subscriber 

radio unit allocates the UL bandwidth grant to the one or 

more UL connections based on QoS priority”), with claim 

6 (“wherein the wireless subscriber radio unit allocates 

the UL bandwidth grant to the one or more of the plurality of connections based on QoS connection priority”). 

Claim 6, however, makes explicit that its “connections” 

are between an intermediary node and its users. It 

describes the uplink queue that the intermediary node 

maintains: “the UL queue comprises traffic with similar 

quality of service (QoS) received on a plurality of connections.” That is, this queue consists of uplink data that the 

intermediary node “received on a plurality of connections.” Uplink data, by definition, can only flow in one 

direction: from user devices through the intermediary 

node to the base station. Therefore uplink data that the 

intermediary node “received on a . . . connection[]” must 

have come from a user device, and a “connection”—for the 
WI-LAN USA, INC. v. APPLE INC. 29

purposes of claim 6—must be between an intermediary 

node and a user device.

We may appropriately consider similar claim terminology in claim 6 in determining how best to understand 

claim 1 because Wi-LAN made a representation during 

prosecution equating the relevant language in the two 

claims. The examiner had rejected its claims over references including one disclosing mobile units that he read 

onto the claimed intermediary node. J.A. 1357. Wi-LAN

distinguished this reference, arguing that it “use[d] the 

term ‘connection’ to apply to logical connections between 

the base station and mobile units.” Id. In Wi-LAN’s view, 

that reference therefore did not “address issues related to 

the connections of a[n intermediary node],” which are not 

with the base station but instead are with user devices. It 

tied this argument to the language in claim 6 that requires its claimed “connection” to be between an intermediary node and its user devices. Id. (“[The prior-art 

reference] does not teach or suggest a subscriber station 

having a UL queue that is filled from a plurality of connections . . . .”). Wi-LAN then stated that “[t]his same 

argument also applies to claim 2.” Id. Application claim 

2 as then current read: “A method as claimed in claim 1, 

wherein the wireless subscriber radio unit maintains a 

plurality of queues, each queue for grouping data pertaining to connections with similar QoS.” Response to Office 

Action, U.S. Patent App. No. 12/645,937, at 2 (Mar. 31, 

2011). During prosecution, Wi-LAN imported this limitation from application claim 2 into issued claim 1, only 

modifying it to substitute “UL connections” for “connections.” See claim 1 (“wherein the wireless subscriber 

radio unit maintains a plurality of queues, each queue for 

data pertaining to one or more UL connections with 

similar QoS”). The representation the patentee made 

about application claim 2 continues to apply after WiLAN imported its language into issued claim 1. See Watts 

v. XL Sys., 232 F.3d 877, 883–84 (Fed. Cir. 2000) (holding 
30 WI-LAN USA, INC. v. APPLE INC.

that a patentee’s representation about claim language 

limits that language even if it is later deleted and added 

elsewhere). Wi-LAN is therefore bound here by its representation to the examiner that the language of application 

claim 2 limits the claimed “connections” to those between 

an intermediary node and its user devices.

Wi-LAN makes a claim-differentiation counterargument that we should not consider claim 6 in construing 

claim 1 because the patentee’s determination to use 

different terms—“UL connections” in claim 1 and “connections” in claim 6—implies an intent to establish different 

meanings for these terms. The doctrine of claim differentiation provides a presumption that differently worded 

claims cover different claim scope. This doctrine finds 

root in the legal canon of construction against superfluity. 

A construction that would cause two differently worded 

claims to cover exactly the same claim scope would render 

one of the claims superfluous, so we apply a presumption 

against such constructions. 

“Claim differentiation is a guide, not a rigid rule.” 

Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 

1350, 1359 (Fed. Cir. 2012) (quoting Laitram Corp. v. 

Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991)). “It is 

not unusual that separate claims may define the invention using different terminology, especially where (as 

here) independent claims are involved.” Mycogen Plant

Sci., Inc. v. Monsanto Co., 243 F.3d 1316, 1329 (Fed. Cir. 

2001) (quoting Hormone Research Found., Inc. v. Genentech, Inc., 904 F.2d 1558, 1567 n.15 (Fed. Cir. 1990)). 

Claim differentiation cannot “overcome . . . a contrary 

construction dictated by the written description or prosecution history.” Marine Polymer, 672 F.3d at 1359 (citations omitted). Nor can claim differentiation apply 

untethered from the reasonable meaning of the difference 

in claim language on which it rests. See, e.g., CurtissWright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 

1379 (Fed. Cir. 2006) (rejecting a district court’s construc-
WI-LAN USA, INC. v. APPLE INC. 31

tion under claim differentiation that “render[ed the] 

limitation nearly meaningless”); Nystrom v. Trex Co., 424 

F.3d 1136, 1143 (Fed. Cir. 2005) (rejecting a claimdifferentiation argument that the term “board” must 

encompass more than just “wood cut from a log,” because

“[a]n examination of the term ‘board’ in the context of the 

written description and prosecution history . . . leads to 

the conclusion that the term ‘board’ must be limited to 

wood cut from a log”); see also Moskal v. United States, 

498 U.S. 103, 120–21 (1990) (Scalia, J., dissenting) (noting that the canon of construction against superfluity is 

“no justification for extruding an unnatural meaning out 

of” a term in a statute); Public Citizen, Inc. v. HHS, 332 

F.3d 654, 665 (D.C. Cir. 2003) (determining that Congress’s use of different words in sections of a statute did 

not imply different scope because there was no relevant 

difference between those words’ meanings). Although we 

might see some significance in the patentee’s decision to 

modify “connections” with “UL” in claim 1 but not in claim 

6, that significance must be grounded in reasonable 

meanings of the term “UL.” The specification makes clear

that “UL” refers to traffic traveling in the uplink, rather 

than downlink, direction. ’640 patent at 1:49–52. Because “UL” can reasonably relate only to the direction 

traffic flows through a link, not the location of the link in 

a network, we find Wi-LAN’s claim-differentiation argument unpersuasive, and certainly not strong enough to 

overcome the patentee’s statements we identify above 

equating language in claims 1 and 6.

Wi-LAN also uses the prosecution history to urge its 

own interpretation of “UL connections.” It cites a portion 

of the prosecution history to claim that the examiner read 

the claimed “UL connections” onto a connection in a priorart reference between a base station and a user device. 

See J.A. 1271, 1384, 1536, 1616–17. As an initial matter, 

Wi-LAN’s reliance on the examiner’s interpretation of this 

term is weakened by statements the examiner made 
32 WI-LAN USA, INC. v. APPLE INC.

during prosecution candidly admitting confusion with the 

patentee’s wording of its claims. Earlier in prosecution,

he noted that he found the wording of the claim “confusing” with respect to whether the intermediary node relays 

data from other devices. J.A. 1240. And after making the 

statements Wi-LAN cites to us, the examiner stated that 

he “initially had difficulty understanding the applicant’s 

inventive concept since the claims were highly confusing 

with regard to the basic operation of the system.” J.A. 

5173. We accordingly give little weight to the statements 

Wi-LAN cites. We also note that Wi-LAN refers us to an 

interpretation of the term “UL connections” that the 

examiner made when the term appeared in a different

context in a different version of the claims. Our construction of the term here depends significantly on the context 

in which it appears in the current claims; the examiner’s 

contrary construction in a different context is of limited 

materiality. 

Faced with a choice between two possible understandings of “UL connections,” we reject Wi-LAN’s proposed 

construction, which conflicts with (1) the bandwidthallocation scheme the patent sets out, (2) the patent’s 

description of a network architecture where the intermediary node maintaining one connection with the base 

station and multiple connections with its user devices, 

and (3) statements Wi-LAN made in prosecution. Instead, we agree with the district court’s construction of 

“UL connections” as corresponding to the connections 

between the intermediary node and its user devices. WiLAN does not claim any other source of error with regard 

to the ’640 patent beyond this construction. We therefore 

also affirm the district court’s grant of summary judgment 

of noninfringement.

CONCLUSION

We affirm the district court’s construction of “specified 

connection” to exclude embodiments where an intermedi-
WI-LAN USA, INC. v. APPLE INC. 33

ary device can maintain only one specified connection. 

We reject Apple’s argument that Wi-LAN waived the new 

construction of “UL connections” that it raised for the first 

time on its motion for reconsideration of summary judgment. We affirm the district court’s construction of “UL 

connections.” Because we affirm both constructions 

against Wi-LAN’s challenges, we also affirm the district 

court’s grant of summary judgment of noninfringement.

AFFIRMED

COSTS

No costs.