N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ KONINKLIJKE PHILIPS N.V., Appellant

v.

QUECTEL WIRELESS SOLUTIONS CO. LTD., Appellee

______________________

2023

- 1896

______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2021

- 00563.

______________________
Decided: August 29, 2024

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G EORGE C HRISTOPHER B ECK , Foley & Lardner LLP, Washington, DC, argued for appellant. Also represented by B RADLEY R OUSH ; J OHN C USTER , K EVIN M. L ITTMAN , L UCAS I. S ILVA , Boston, MA; E LEY T HOMPSON , Chicago, IL.

R OBERT C OURTNEY , Fish & Richardson P.C., Minneapolis, MN, argued for appellee. Also represented by M ICHAEL T IMOTHY H AWKINS ; T HOMAS H. R EGER , II , Dallas, TX.

______________________ Case: 23-1896 Document: 46 Page: 1 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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Before L OURIE , R EYNA , and C HEN , Circuit Judges

. C HEN , Circuit Judge

. Quectel Wireless Solutions Co. Ltd. (Quectel ) petitioned the Patent Trial and Appeal Board (Board) for inter partes review (IPR) of claim 9 of U.S. Patent No. 8,195,216 (’ 216 patent), owned by Koninklijke Philips N.V. ( Philips ). The Board determined the challeng ed claim to be unpatentable under 35 U.S.C. § 103

. Quectel Wireless Sols. Co. v. Koninklijke Philips N.V. , No. IPR2021

- 00563, 2022 WL 4280566, at *1 (P.T.A.B. Sept. 13, 2022) (Decision ). Philips appeals. We affirm in part

, vacate in part, and remand for further proceedings

. B ACKGROUND The ’216 patent relates to techniques for radio communication systems to regulate the power of communications transmitted between base stations and mobile stations. Uplink communications are those transmitted fro m a mobile station to a base station, and downlink communications are those transmitted from a base station to a mobile station. ’216 patent col. 3 ll. 22

– 25. The mobile and base stations exchange two types of information : (1) user traffic, such as spee ch or packet data

, and (2) control information, which set s and monitor s various parameters of the transmission channel to enable the base and mobile station s to exchange user traffic. Id. col. 1 ll. 17

– 23.

The control information enables power control between th e base and mobile stations. As the ’216 patent explains, power control of signals transmitted from a mobile station to the base station is needed “ so that the [base station] receives signals from different [mobile stations ] at approximately the same power level, while minimi[z]ing the transmission power required by each [mobile station]. ” Id. col. 1 ll. 25

– 29. Furthermore, p ower control of signals transmitted from the base station to a mobile station is Case: 23-1896 Document: 46 Page: 2 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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needed “ so that th e [mobile station] receives signals from the [base station] with a low error rate while minim[z ] ing transmission power, to reduce interference with other cells and radio systems.” Id. col. 1 ll. 29

– 33. Radio communication systems typically use closed -loo p power control, in which the mobile station determines the required changes in the power of transmissions from the base station and signals those changes to the base station, and vice versa. Id. col. 1 ll. 33 –37

. Problems with closed

- loop power contro l arise if thereis an interruption in data transmission. “[A]fter the transmission is interrupted, the power control loops may takesome time to converge satisfactorily. Until such convergence is achieved data transmissions are likely to be received in a corrupted state if their power level is too low, or to generate extra interference if their power level is too high.” Id. col. 1 ll. 47

– 52. The ’216 patent purports to address th ese problems by providing means “for setting the initial transmission power after a pause in transmission to that before the pause adjusted by an offset.” Id. col. 1 ll. 65

– 67.

Claim 9 of the ’216 patent recites:A secondary station for use in a radio communication system having a communication channel between the secondary station and a primary station, the channel including an uplink and a downlinkcontrol channel for transmission of control information, including power control commands, and a data channel for the transmission of d ata, the secondary station comprising: power control means for adjusting the power of the uplink control and data channels in response to the downlink power control commands; Case: 23-1896 Document: 46 Page: 3 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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means for setting an initial transmission power after an interruption in transm ission to that before the interruption adjusted by an offset; and means for determining the offset from a difference between a last transmission power and a weightedaverage of the transmission power over a predetermined period before the interruption in transmission.

Id. at claim 9. Quectel ’s IPR P etition challenged claim 9 of the ’216 patent as obvious over U.S. Patent No. 6,337,988 (Agin) in view of U.S. Patent No. 6,512,925 (Chen). The Board instituted review and issued a F inal W ritten D ecision findin g claim 9 unpatentable over Agin and Chen . Philips appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

D ISCUSSION “In an appeal from an IPR decision, we review the Board’s legal conclusions de novo and its factual findings for substantial evidence.” Wasica Fin. GmbH v. Cont ’ l Auto. Sys., Inc. , 853 F.3d 1272, 1278 (Fed. Cir. 2017). “ Obviousness is a question of law b ased on underlying factualfindings, including the scope and content of prior art references and the existence of a reason to combine those references. ” Polaris Indus

. , Inc. v. Arctic Cat, Inc. , 882 F.3d 1056, 1064 (Fed. Cir. 2018) . “ A finding is support ed by substantial evidence if a reasonable mind might accept the evidence to support the finding. ” Id.

I
Philips first argues that the Board erred by failing to explicit l y construe the term “offset” in claim 9’s recitation of “means for setting an initial transmission power after an interruption in transmission to that before the interruption adjusted by an offset.” According to Philips, the Board should have explicitly construed “offset” to mean “a one

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time adjustment applied to initial transmission powe r following an interruption.” Appellant’s Br. 48. Philips did not proffer this definition in either its Patent Owner’s Preliminary Response or its Patent Owner’s Response. Nor did Quectel proffer or request any formal definition of “offset” in its Petition or Petitioner’s Reply. Philips waited until its Sur r eply to first articulate its preferred understanding of “offset,” but merely asserted it without any explanation. Moreover, this Surreply argument was presented in the context of distinguishing the claimed “offset” from prior

- art reference Agin’s “step size ,” rather than in any request for the Board to construe the
term. J.A. 381

– 86. The Board accordingly concluded: “Patent Owner [Philips] does not ap pear to be seeking an explicit construction of the claim term ‘offset,’ although we acknowledge ample arguments from Patent Owner, with
counter

- arguments from Petitioner [Quectel] . As such, we consider both parties[’] arguments

. . . outside of the contex t of claim construction.” Decision

, 2022 WL 4280566 , at *4

. We see no reason to disagree with the Board’s understanding of the parties’ arguments, and the Board thus did not err by not providing a construction of “offset.”

II
Next, Philips contends that the Board erred in finding that Agin discloses the claimed “means for setting an initial transmission power after an interruption in transmission to that before the interruption adjusted by an offset .” ’216 patent at claim 9 (emphases added). Philips challenges the Board’s obviousness analysis for this limitation on two grounds, which we address in turn.
First, Philips argues that the Board erred in concluding that Agin teaches the claimed “offset.” Agin discloses a “power control step siz e”  that may be set to a value of  1

or  2

. See Agin col. 7 ll. 17

– 24. The Board found that Agin’s step size teaches the claimed “offset.” Philips contends that this was error because Agin does not “ identically disclose Case: 23-1896 Document: 46 Page: 5 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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the function recited in the claim” given that the Board, at one point, indicated that an offset is distinct from a step size adjustment. Appellant’s Br. 49. But the Board concluded that “an offset applying a single step size alteration is not distinguishable from the application of a step size.” Decision

, 2022 WL 4280566 , at * 8 (emphasis added) ; see also Quectel Wireless Sols. Co. Ltd. v. Koninklijke Philips N.V.

, No. IPR2021

- 00563, 2023 WL 2602868 , at * 2 (P.T.A.B. Mar. 7 , 202 3)

. As the Board noted, the ’216 patent itself teaches that the offset may be “quanti[z]ed to an available power control step size before it is applied.” ’216 patent col. 2 ll. 45

– 46. The Board also relied on Quectel’s expert testimony to arrive at its conclusion

. Decision

, 2022 WL 4280566 , at * 8

. Substantial evidence supports the Board’s finding that Agi n teaches the claimed “offset.”
Second, Philips contends that the Board erred in concluding that Agin teaches applying an offset to an “initial transmission power,” as claimed. Philips argues that “Agin is silent as to the initial transmission power after an interruption” and, moreover, “the specific teachings of Agin

. . . demonstrate that Agin’s step size adjustmentcould not be applied to the initial transmission.” Appellant’s Br. 51. Quectel’s Petition relied on Agin’s description of its Figure 2, reproduced below, to teach the claimed “means for setting an initial transmission power after an interruption Case: 23-1896 Document: 46 Page: 6 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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in transmission to that before the interruption adjusted by an offset.”

Agin FIG. 2. As recounted by Quectel and depicted in Agin’s Figure 2 , “Agin describes setting the power control step size to  =  1 ” ( step 17 ) or “  =  2 ” ( step 18 ). J.A. 128 (citing Agin col. 5 ll. 44

– 53)

. In parallel, Agin ’s base station determines whether to employ an “ ‘ up ’ power control command” (step 13) or a “ ‘ down ’ power control command” (step 12) by determining whether the measured signal

- to

- inference ratio (SIR) of the received signal from the mobile station is greater or less than a target SIR (step 11) . Agin col. 1 ll. 40

– 47; id. col. 5 ll. 3 1– 38

. Then, “  1 or  2 is combined withthe ‘up’ or ‘down’ power control command to obtain a resulting power control command” (step 19). J.A. 128 (citing Agin col. 5 ll. 54

– 57). Agin’s base station then sends the resultant, combined power control command to the mobile station, instructing the mobile station to either increase or Case: 23-1896 Document: 46 Page: 7 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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decrease its transmit tal power level by the power control step size. Agin col. 1 ll. 4 3–47

. Notably, Agin recognizes that “downlink transmissions from a [base station] to a [mobile station] may momentarily be interrupted .” Id. col. 1 ll. 62

– 63. “During these transmission interruptions

. . . the [base station] does not send any more power control commands to the [mobile station], and the uplink signals from this [mobile station] are no longer power controlled. ” Id. col. 2 ll. 4

– 8. Philips argues that , based on this disclosure

, “Agin ’s system cannot possibly adjust its initial transmission follo wing an interruption by a step size

. . . since it does not receive [a] power control command during the interruption.” Appellant’s Br. 55

– 56. Put another way, “Agin could not possibly apply a step size adjustment to the initial transmission [after an in terruption] , because Agin’s closed loop power control algorithm requires receipt of a power command for the mobile station to know whether to increase or decrease its power.” Id. at 51

– 52. Philips raised this argument in both its Patent Owner Response and its Sur r eply . J.A. 325

– 26; J.A. 378

– 79.

The Board did not account for this argument in its Final Written Decision. Instead, it found that “[b]oth parties agree that Agin’s power control command instructs the [mobile station] regarding the step size for increasing or decreasing power after the interruption.” Decision

, 2022 WL 4280566 , at * 8 . The Board concluded it was “persuaded that one of ordinary skill in the art would have interpreted Agin as setting an initial transmiss ion powerafter an interruption in transmission to that before the interruption adjusted by a step size.” Id. But the Board failed to address Philips’s argument as to how Agin’s system would adjust the initial transmission following an interruption witho ut having received any power control commands during the interruption. Case: 23-1896 Document: 46 Page: 8 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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Because the Board’s analysis on this point was too conclusory and did not address an argument timely raised below, we vacate the Board’s finding. See, e.g.

, Provisur Techs.

, Inc. v. Weber, Inc. , 50 F.4th 117, 123

– 24 (Fed. Cir. 2022)

. We remand for the Board to re

- evaluate whether Agin teaches this limitation, taking into account Philips’s argument discussed above.

III
Philips argues next that the Board erred in finding that a skilled artisan would have been motiva ted to modify Agin in view of Chen. Quectel ’s P etition and the Board’s decision relied on the combination of Agin and Chen to teachthe claimed “means for determining the offset from a difference between a last transmission power and a weighted average of the transmission power over a predetermined period before the interruption in transmission.” Philips raises three arguments challenging the Board’s motivation- to

- combine findings, though we find each unpersuasive.Philips contends that “nothing in Agin suggests applying an average (much less a weighted average) to determine the magnitude of the modified step size adjustment  2

. ” Appellant’s Br. 62. The Board disagreed, relying on Agin’s discussion of “statistics” to ma ke a contrary finding. Agin teaches that “[p] arameters T ’ and δ 2 may

. . . be determined based on statistics on power control results for a transmission period before said transmission interruption; for example the largest the [ sic ] variations of a received signal power before the interruption, the largest δ 2 and T ’ , and vice

- versa. ” Agin col. 6 ll. 10

– 14 (emph as i s added)

. The Board reasonably found that this disclosure in Agin “ is sufficient to suggest the use of different types of statistics, including those disclosed by Chen ,” i.e., a weighted average. Decision

, 2022 WL 4280566 , at * 10

. Philips additionally argues that Agin’s use of statistics to determine certain “parameters” is limited to determining T’ and δ 2 , which Case: 23-1896 Document: 46 Page: 9 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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“have nothing to do with an offset that is applied to the initial transmission.” Appellant’s Br. 62. This appears to be a reite ration of Philips’s argument that δ 2 is a step size but not an offset, which we rejected above

. Philips also contends that the Board erred because Chen teaches a weighted average of power levels across multiple base stations, rather than claim 9’s required“weighted average of the transmission power over a predetermined period before the interruption in tra ns mission” at

a single base station. Id. at 63. The Board considered and rejected this argument

, reasonably concluding that although “Chen is utilizing a weighted average for one purpose, [the Board was] not persuaded that one of ordinary skill in the art could not review the disclosure of Chen andsee its application to other aspects of computing an adjustment to power levels [such as in Agin]

. ” Decision

, 2022 WL 4280566 , at * 10 ; see also id. at *11 ( referring to Quectel’sargument that Philips’s “arguments are akin to bodily incorporation and the disclosure elements of Agin and Chenneed not be physically combinable to render claim 9 obvious”)

. We also find reasonable the Board’s determination that “Chen discusses other options, i.e., ‘a number of possible methods,’ that can utilize a single base station in making a power control decision, such that ordinarily skilled artisans would have applied the weighted average in Agin as Petitioner has asserted.” Id. at * 11. Additionally, Philips argues the Board erred as a matter of law by concluding that the “teachings of Chen could be incorporated into Agin ” and “fail[ing] to explain why an ordinary artisan would modify Agin in view of Chen.” Appellant’s Br. 64

. We disagree

. The Board considered “multip le rationales for the combination of Agin and Chen,including the benefits of Chen’s techniques, the predictability of such a combination, improvements in performance and transmission quality, reducing uncertainty, [and] smoothing power levels ,” Decision

, 2022 WL 4280566 , at

* 11 , to conclude that “ one of ordinary skill in the art would Case: 23-1896 Document: 46 Page: 10 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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have been motivated to make the combination,” id. at *12

. The Board also “[w]eigh[ed] the testimonies of Drs. Ding and Jackson,” Quectel’s and Philips’s expert witnesses, respectively, and “determine[d] Dr. Ding’s testimony to be more persuasive.” Id. Substantial evidence support s the Board’s determination that a skilled artisan would have been motivated to combine Agin and Chen.

IV

Finall y, Philips argues that the Board erred in concluding that the combination of Agin and Chen discloses the claimed “means for determining the offset from a difference between a last transmission power and a weighted average of the transmission power over a p redetermined period before the interruption in transmission.” Philips presents two arguments on this point.
First, Philips contends that the Agin

- Chen combination would create an “absurd result.” Appellant’s Br. 66. Specifically, “if a weighted average of prior transmission power were somehow used to determine Agin’s modified step size δ 2 , ” Philips contends that Agin would need “ to continually calculate the magnitude of the adjustment for every transmission, frustrating the very purpose of Agin’s closed loop algorithm.” Appellant’s Br. 65

– 66. Philips did not present this argument to the Board and therefore forfeited it. See In re Google Tech. Holdings LLC , 980 F.3d 858, 863 (Fed. Cir. 2020) (“ We have regularly stated andapplied the important principle that a position not presented in the tribunal under review will not be considered on appeal in the absence of exceptional circum stances.”). Second, Philips contends that the prior art do es not teach the claimed “ weighted average of the transmission

power over a predetermined period before the interruption in transmission

, ” because Agin does not disclose a weighted
average , and “Che n’s weighted average is computed based on values of current powers at multiple base stations .” Appellant’s Br. 66

– 67. According to Philips, the Board’s Case: 23-1896 Document: 46 Page: 11 Filed: 08/29/2024KONINKLIJKE PHILIPS N

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“Final Written Decision did not address the fact that Chen’s techniques do not involve a weighted aver age of a mobile station’s prior power levels during a predetermined time period before an interruption.” Id. at 67. But the Board considered and rejected this argument. See Decision

, 2022 WL 4280566 , at * 10

. The Board found that “Chen discusses other options, i.e., ‘a number of possible methods,’ that can utilize a single base station in making apower control decision, such that ordinarily skilled artisans would have applied [Chen’s] weighted average in Agin as Petitioner has asserted. ” Decision

, 2022 WL 4280566

, at *1 0 (quoting Chen col. 10 ll. 47

– 56). Substantial evidence supports the Board’s finding.

C ONCLUSION

We have considered Philips ’s remaining arguments and find them un persuasive. For the foregoing reasons, we
vacate the Boa rd’s finding that the prior art teaches the claimed “means for setting an initial transmission powerafter an interruption in transmission to that before the interruption adjusted by an offset ” and remand for further proceedings consistent with this opinio n . We affirm the Board’s other determinations.

AFFIRMED

- IN

- PART, VACATED

- IN

- PART, AND REMANDED

C OSTS

No costs. Case: 23-1896 Document: 46 Page: 12 Filed: 08/29/2024