N OTE : This disposition is nonprecedential. 

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

______________________ WI

- LAN USA, INC., WI

- LAN, INC., Plaintiffs

- Appellants

v. ERICSSON, INC., TELE FONAKTIEBOLAGET LM ERICSSON, Defendants

- Cross

- Appellants

______________________ 2015

- 1766,

- 1794

______________________ Appeal s from the United States District Court for the Southern District of Florida in No. 1:12

- cv - 23569

- DMM, Judge Donald M. Middlebrooks.

______________________ Decided: January 17 , 2017

______________________ M ATTHEW D. P OWERS , Tensegrity Law Group, LLP, Redwood City, CA, argued for plaintiffs

- appellants. Also represented by A ZRA H ADZIMEHMEDOVIC , A ARON M. N ATHAN , P AUL E HRLICH , L ITAL L EICHTAG -F UKS , Y I C HEN

. P AUL D. C LEMENT , Kirkland & Ellis LLP , Washington, DC, argued for defendants

- cross - appellants. Also repr esented by G EORGE W. H ICKS , J R ., E DMUND G ERARD L A C OUR , J R

. , C HRISTOPHER G EORGE M ICHEL ; J OSHUA C.WI

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K RUMHOLZ , J ACOB K EVIN B ARON , Holland & Knight, LLP, Boston, MA.

______________________

Before M OORE , O’M ALLEY , and W ALLACH , Circuit Judges.

Opinion for the court filed by Circuit Judge W ALLACH

. Concurring in part and dissenting in part opinion filed by Ci rcuit Judge O’M ALLEY

. W ALLACH , Circuit Judge. The instant dispute returns to us a second time fo llowing additional district court proceedings. Initially, Wi

LAN USA, Inc. and Wi

- LAN, Inc. (together, “Wi

- LAN”) sued Ericsson, Inc. and Telefonaktiebolaget LM Ericsson (together, “Ericsson”) in the U .S. District Court for the Southern District of Florida (“District Court”) alleging infringement of various claims of U.S. Patent Nos. 8,027,298 (“the ’298 patent”) , 8,249,014 (“the ’014 p atent”) , and 8,229,437 (“th e ’437 patent”) (collectively, “the Patents

- in

- Suit”) . Ericsson argued that Wi

- LAN was precluded from asserting infringement and moved for summary judgment based on the Most Favored Licensee Provision (“MFL Provision”) in the Patent and Conflict Resolutio n Agree ment (“PCRA”) between Wi

- LAN and Ericsson

. The District Court determined on summary judgment that the MFL Provision was triggered, that Ericsson was entitled to a license, and that the claims of infringement were moot. On appeal, we determined tha t the “MFL Provision only applies to W i- LAN’s patents owned or controlled as of the effective date of the PCRA, which the [ Patents

- in

- Suit ] . . . were not.” Wi

- LAN USA, Inc. v. Ericsson, Inc. , 574 F. App’x 931, 940 (Fed. Cir. 2014). Thus, because “Ericss on’s rights under the MFL Provision were not triggered , ” we reversed the District Court’s judgment and remanded the case for further proceedings. Id.WI

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On remand, the District Court construed claim terms in the Patents

- in

- Suit

. See Wi

- LAN USA, Inc. v. Tel efonaktiebolaget TM Ericsson , No. 12

- cv - 23569

- DMM , 2015 WL 6673742 , at * 3– 13 (S.D. Fla. Jan. 13, 2015). Ericsson then moved for summary judg ment of non

- infringement of various claims (“the Asserted Claims”) 1 of the ’298 patent and the ’014 patent (toge ther, “the Bandwidth Patents ”) and for summary judgment of invalidity of claims 8 and 18 of the ’437 patent. Ericsson also argued the MFL Provision applied despite this court’s previous decision. The District Court granted Ericsson’s Motion in part and
e ntered summary judgment that (1) claims 8 and 18 of the ’437 patent w ere invalid as anticipated and (2) Ericsson’s accused products did not directly infringe the Bandwidth Patents

. J.A. 12

– 32. The District Court found the MFL Provision did not apply to the Patents

- in

- Suit

. J.A. 11

– 12, 32

. Wi

- LAN appeals the District Court’s decision granting summary judgment of invalidity and no n- infringement. Ericsson cross

- appeals the District Court’s decision that the MFL Provision d oes not apply to the Patents

- in

- Suit

. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (2012). We vacate

- in

- part, affirm

- in

- part, and remand for further proceedings consistent with this opinion. B ACKGROUND Before addressing the merits of the parties’ arg uments, we provide a br ief summary of the Patents

- in

- Suit. We divide our discussion of the Patents

- in

- Suit into two parts based on their subject matter.

1 The Asserted Claims include claims 1

– 2 and 4 of the ’298 patent and claims 1, 4, and 6 of the ’014 patent.WI

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I. The Bandwidth Patents The Bandwidth Patents are entitled “Methods and Systems for Transmission of Multiple Modulated Signa ls Over Wireless Networks” and disclose “[a] method and apparatus for requesting and allocating bandwidth in a broadband wireless communication system,” whereby “a combination of bandwidth allocation techniques” are used to efficiently allocate physical re sources. ’298 patent, Abstract. 2 “The broadband wireless communication system faci litates two

- way communication between a plurality of base stations and a plurality of fixed subscriber stations or Customer Premises Equipment [(‘CPE’)].” Id. col. 1 ll. 62

– 65. The broadband wireless communication system “includes a plurality of cells

. . . . Each cell

. . . provides wireless connectivity between the cell’s base st ation . . . and a plurality of

. . . [CPEs] positioned at fixed customer sites

. . . throug hout the coverage area of the cell

. . . .” Id. col. 2 ll. 2 –8 . Th e system is an on

- demand system where CPEs “request bandwidth allocations from their respective base stations

. . . based upon the type and

2 Because the ’014 patent is a continuation of the ’298 patent, the Bandwidth Patents share a common specification. A continuation patent application is “an application filed subsequently to another application , while the prior application is pending, disclosing al l or a substantial part of the subject

- matter of the prior applic ation and containing claims to subject

- matter common to both applications , both applications being filed by the same inventor or his legal representative.” In re Febrey , 135 F.2d 751, 757 (C CPA 1943) (internal quotation marks and citation omitted). For ease of reference, discussion of the Bandwidth Patents will refer to the ’298 patent’s specification.WI

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quality of services requested by the customers s erved by the CPEs.” Id. col. 2 ll. 1 6–19 . “Base stations do not have a priori information regarding the bandwidth or quality of services that a selected CPE will require at any given time.” Id. col. 2 ll. 39

– 42 ( italics added) . Thus, “[t]he type and qu ality of services available to the customers are variable and selectable.” Id. col. 2 ll. 20

– 21. The Ban dwidth Patents “reduce[] the amount of bandwidth that must be set aside for these bandwidth allocation r equests.” Id. col. 9 ll. 3 8– 40. II. The ’43 7 Patent E ntitled “Pre

- Allocated Random Access Identifiers , ” the ’437 patent generally discloses “[s]ytems and methods of pre

- allocating identifiers to wireless devices for use in requesting resources over a random access channel

. . . . ” ’437 patent, Abs tract. The ’437 patent provides a method for “[a] mobile subscriber station[, e.g., cellular telephone, to] transition from a coverage area supported by a first base station to a coverage area supported by a second base station.” Id. col. 20 ll. 1

– 3. Th e “communication link from the subscriber station is handed over from the first or serving base station to the second base station

. . . . ” Id. col. 20 ll. 4

– 6. “The use of pre

- allocated codes ,” i.e., random access identifiers, as taught by the ’437 patent , “ avoids the collision probability[, e.g., dropped calls,] associated with random subscriber selected access codes

. . . . ” Id. col. 2 l l. 64

– 66 . “The base station

. . . pre - allocates one or more codes to registered subscriber stations” in its coverage area, and these base stations “track[] the code allocation such that each of the allocatable codes are allocated to at most one subscriber station at a time.” Id. col. 6 ll. 20

– 21, 22

– 24. The pre

- allocated codes are then released by the subscriber station “when it de

- registers with the base station” and leave s the coverage area. Id. col. 6 l. 26.WI

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D ISCUSSION Wi

- LAN argues that (1) genuine issues of material fact preclude d invalidity summary judgment for the ’437 patent based on anticipation ; (2) the District Court erred in construing “bandwidth” in the Bandwidth Patents ; and (3) genuine issues of material fact preclude d non infringement summary j udgment for the Bandwidth Patents

. Appellants’ Br. 22

– 60

. Ericsson argues on cross

appeal that the District Court erred in finding as a matter of law that the PCRA’s MFL Provision was triggered in this case. Cross

- Appellant s’ Br. 59

– 69

. We address these arguments in turn. I. Standard of Review We review the grant of summary judgment under the law of the regional circuit in which the district court sits. Classen Immunotherapies, Inc. v. Elan Pharm., Inc. , 786 F.3d 892, 896 (Fed. Cir. 2015). T he Ele venth Circuit reviews a district court’s grant of summary judgment de
novo. Ellis v. England , 432 F.3d 1321, 1325 (11th Cir. 2005). S ummary judgment is proper only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986). A genuine dispute of material fact exi s ts when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party

. ” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). In assessing whether summary judgment is appropriate, we “must view all evidence and make all reasonable inferences in favor of the party opposing summary jud gment.” Haves v. City of Miami , 52 F.3d 918, 921 (11th Cir. 1995) (citation omitted).WI

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II. Wi -L AN ’s Appeal Wi -L AN ’s arguments concern three separate aspects of the District Court’s decision under review. We address them in turn. A. Anticipation of the ’437 Patent Wi

- LAN argues that the District Court erred in gran ting summary judgment of invalidity for the ’437 patent based on anticipation because there remained a genuine dispute over material facts that the District Court i mproperly decided. See Appellants’ Br. 2 4– 44. We find the District Court erred in granting summary judgment and, thus, vacate and remand for proceedings consistent with this opinion. 1 . Legal Framework Although “the anticipation inquiry first demands a proper claim construction,” Trintec Indu s., Inc. v. Top

U.S.A. Corp. , 295 F.3d 1292, 1294 (Fed. Cir. 2002), Wi

LAN does not challenge the District Court’s claim co nstruction as to the ’437 patent , see Appellants’ Br. 22

– 44

. Thus, we begin with the prior art. A reference is anticip atory under 3 5 U.S.C. § 102(b) (2006) 3 if “the prior art reference

. . . disclose[s] each and every feature of the claimed invention, either explicitly or inherently.” Eli Lilly & Co. v. Zenith Goldline Pharm., Inc. , 471 F.3d 1369, 1375 (Fed. Cir. 2006) (citation omit ted).

3 In passing the Leahy

- Smith America Invents Act (“AIA”), Congress amended § 102. See P ub. L. No. 112

- 29, § 3(b), 125 Stat. 284, 285

– 87 (2011). However, because the application that led to the ’437 patent was filed before March 16, 2013, the pre

- AIA § 102(b) applies. See id. § 3(n)(1), 125 Stat. at 293.WI

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2

. The Prior Art Prior art Michel Mouly & Marie

- Bernadette Pautet, The GSM System for Mobile Communications (Cell & Sys Correspondence 1992) (“Mouly”) (J.A. 789

– 828, 2377

– 414) discloses the global system for mobile communications (“GSM”) standard for cellular communications. Mouly discloses a “handover,” which is the process of synchroni zing the timing of communicatio ns between mobile users and cell towers when “transferring a transaction in pr ogress (a call in particular) from one cell to another to avoid the adverse effects of user movements

. . . . ” J.A. 795. Relevant here, Mouly discloses how the timing a dvance is applied to communications between the mobile device and cellular towers. The timing advance addresses the overall time necessary for data bursts to travel from the mobile device to the cellular tower, which includes a time offset that is not dependent on the user ’ s location as well as a time offset that does depend on the user ’ s loc ation. See J.A. 810. The timing advance issue incorporates both synchronous and asynchronous handovers. See J.A. 811, 2396. For synchronous handovers , “the mobile station is able to compute the new timing advance (to be applied with [the new cell tower ]), because the old and the new cells are synchronized.” J.A. 2396. For asynchronous handovers , “the timing advance must be initiali[z]ed both at the mobile station and at [ the new cell tower ] during the handover proce dure.” J.A. 2396. This is accomplished by the mobile station sending access bursts 4 to the new

4 A burst is a “unit of transmission [that] is a series of about a hundred modulated bits” and is of “a finite duration

. . . occupy[ing] a finite part of the radio spe c-WI

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cell tower “with a null timing advance.” J.A. 2394 ; see J.A. 2409

. Once the new cell tower receives this access burst, it “can derive the value of the timing advance, which it sends to the mobile station in a signaling me ssage.” J.A. 2394. Once the mobile station “receives this message, [it] is able to start correctly transmitting normal bursts.” J.A. 2394. B oth types of handovers involve several processes of transmitting an 8

- bit message from the new cell tower, the old cell tower , and the mobile station. S ee J.A. 2398

– 99, 2403, 2409. For synchronous handovers , “the mobile station first sends a few access bursts (the [8

- bit] RIL3

- RR HANDOVER ACCESS message), then starts normal transmission by applying the computed timing advance.” J.A. 2409. For asynchronous handovers , “the mobile station continues to send access bursts [( i.e., the RIL3

- RR HANDOV ER ACCESS message )] until it has received an [8

- bit message with physical resource info rmation ] . . . from [the new cell tower ], conveying the actual timing advance to apply. Only then does it start normal transmission.” J.A. 2409. 3

. A Genuine Dispute as to Material Fact s Bars Invalidity Summary Judgment on the ’437 Patent Before the District Court, t he parties disagr eed about the existence of a genuine dispute as to whether Mouly discloses that synchronous and asynchronous handover access messages are sent via a dedicated channel or a random access channel (“RACH”). J.A. 20

– 21, 23. A c-

trum.” J.A. 2384 (footnote omitted). The access burst is a short burst that “is only used in the uplink direction during initial phases when the propagation delay between the mobile station and the base station is not yet known.” J.A. 2386.WI

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cording to the District Court, although Mouly “supports the statement that the RIL3

- RR HANDOVER ACCESS message i s the only case where short access bursts are used on a dedicated channel in a synchronous hand over,
. . . [it] does not support that this is also true with asynchronous handovers.” J.A. 24 (internal quotation marks and emphases omit ted) (citing J.A. 2394 , 2396)

. The District Court further stated that , “[a]lthough when read in isolation , this [passage in Mouly] could be read to include asynchronous handovers, such a reading is inconsistent with the rest of Mouly (totaling 695 pages) and inconsistent with both [p] arties’ expert testimony.” J.A. 24

– 25 (footnote and citations omitted). Thus, the District Court concluded “the HANDOVER ACCESS
messa ge [in Mouly] is sent on a RACH ” for an asynchr onous handover. J.A. 2 5

. Ultimately, the District Court found t he claims invalid as anticipated because Wi

- LAN failed to identify factual disputes regarding the limit ations in claims 8 and 18 of the ’437 patent and Mouly discloses these limitations. J.A. 32.

a . The District Court’s Errors The District Court made two err or s in its analysis , both involving the use of improper evidence at the su mmary judgment stage

. First , t he District Court weighed the evidence presented by Ericsson’s expert, Mark La nning, and Wi

- LAN’s expert, Paul Min, against the discl osures of M ouly and drew inferences from these facts. See J.A. 24

– 27 (citing Mr. Lanning’s declaration and discus sing Dr. Min’s deposition and Mouly’s text and figures); see also J.A. 24 n.17 (“[T]his passage [in Mouly] appears to support Ericsson’s position

. . . . ”). However, when ruling on a motion for summary judgment, “[c]redibility dete rminations, the weighing of the evidence, and the drawingWI

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of legitimate inferences from the facts are jury functions, not those of a judge

. . . .” 5 Anderson, 477 U.S. at 255.

5 The dissent disagrees, saying the District Court relied on Dr. Min’s “admission” that “‘the mobile station is forbidden to transmit the data which is on a dedicated channel until

. . . the synchronization is initiated.’” Dissent at 3 (quoting J.A. 1415). However, this alleged admission is preceded by “I mean, that’s what he [(refe rring to a statement previously quoted by counsel)] s aid.” J.A. 1415; see J.A. 1414, 2331. When read in toto, Dr. Min’s testimony is not an admission, but rather is par aphrasing what counsel quoted from Mouly. The dissent also states this “admission” includes Dr. Min’s affirmance of Ericsson’s clarificatio n “that, to the extent the statement refers to an access burst being sent on a dedicated channel in an asynchronous scenario, ‘the synchronization takes place prior to the access burst being sent[]’

. . . .” Dissent at 4 (quoting J.A. 1418). However, the testimony culminating in this “admission” was responding to questions about Mouly and the “8

- bit handover reference.” J.A. 1416 (quoting J.A. 2409). Dr. Min stated the “‘8

- bit handover reference’ clearly is rela ted to a handover scenario, but the next

. . . sentence said, ‘[t]his message is the only case where short access bursts are used on a dedicated channel.’” J.A. 1416 (quoting J.A. 2409). Dr. Min further said “[s]o this has more to do with

. . . communicating over [a] dedicated channel as opposed to [a] Random Access Channel.” J.A. 1416. Following objections from Wi

- LAN’s counsel, Ericsson further asked whether Dr. Min could “tell one way or the other” if Mouly was “referring to

. . . a synchronous han dover?” J.A. 1417. In response, Dr. Min st ated that “[i]t can be either way” and then proceeded to discuss both asynchronous and synchronous handovers before makingWI

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Next , the District Court cites to unsupported stat ements made by Ericsson’s counsel to reach its conclusion that the record does not demonstrate that the RIL3

- RR HANDOVER ACCESS message uses short access bursts on a dedicated channel for asynchronous handovers. See J.A. 21, 24 n.17 (“As counsel for Ericsson explained du ring the May 13, 2015 hearing, [the new cell tower ] cannot set up a dedicated channel until synchronization has occurred because it is not until then that [the new cell tower ] knows how fa r away the phone is, how it is moving, and other physical information required to set up a ded icated channel.”). These statements are attorney arg ument, not record evidence , and relying on these bare assertions was improper. 6 See, e.g., Laitram Corp. v.

this alleged admission. J.A. 1417. The District Court improperly made inferences from portions of Dr. Min’s testimony. The testimo ny leading up to this supposed admission of “[y]es, that’s right,” J.A. 1418, demonstrates this statement is far from an unequivocal admission. 6 The dissent disagrees, saying the District Court “included a quotation of an argument by Ericsson’s cou nsel in the portion of the court’s opinion where the court was laying out the arguments made by each party before making its findings in relation to which party’s arg uments were well taken.” Dissent at 2. Context, however, demonstrates the District Court is rel ying on attorney argument in making its findings. Preceding the phrase at issue, the District Court said “the passage Wi

- LAN quotes [from Mouly] supports Ericsson’s position that asynchronous communications must take place on the RACH until the mobile st ation receives . . . the actual timing advance to apply

. . . .” J.A. 24 n.17 (internal quotation marks and citation omitted). It further stated that “a timing adjustment is required forWI

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Cambridge Wire Cloth Co. , 919 F.2d 1579, 1583 (Fed. Cir. 1990) (criticizing the parties’ “reliance on attorney arg ument and counsel’s unsworn fact statements as ‘ev idence’”) , super s eded by statute on other grounds as stated in Rotec Indus., Inc. v. Mitsubi shi Corp. , 215 F.3d 1246, 125 9 (Fed. Cir. 2000) ; see also Gemtron Corp. v. Saint

Gobain Corp. , 572 F.3d 1371, 1380 (Fed. Cir. 2009) (“Saint

- Gobain’s unsworn attorney argument to the contrary

— made for the first time at oral argument on appeal

— is not evidenc e and cannot rebut the video and other admitted evidence concerning Saint

- Gobain’s man ufacturing process.”). b . Material Facts Are in Dispute Apart from the se errors , we also find that there remains a genuine dispute as to what Mouly discloses

. Mouly is ambiguous in its explanation of whether access bursts in asynchronous and synchronous handovers occur on a RACH. When defining “access burst,” Mouly states “it is the only kind of burst used on the RACH.” J.A. 2386. Additionally, an access burs t “is only used

. . . during initial phases when the

. . . [timing] delay

. . . is not yet known. This is the case with the first access of a mobile station on the RACH, or sometimes with the access of a mobile station to a new cell upon handover.” J.A. 2386. However, Mouly later discusses both synchronous and asynchronous handovers, where “[i]n both cases, the RIL3

- RR HANDOVER ACCESS message
. . . . is the only case where short access bursts are used on a dedicated channel .” J.A. 2409 (emphasis ad ded).

synchronization, which in turn, is required for commun ication on a dedicated channel.” J.A. 24 n.17. The District Court was no longer restating the parties’ arguments; it was making findings.WI

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Additionally, both Wi

- LAN’s and Ericsson’s expert s have provided evidence that, when viewed in favor of Wi

LAN, demonstrates summary judgement is improper. In discussing Mouly in his report to the District Court, Mr. Lanning relie d upon the GSM s tandard that states the handover message is transmitted over a dedicated cha nnel. See J.A. 405 (“This [handover access] message is sent in random mode on the main [dedicated channel] during a handover procedure.” (quoting GSM standard 3GPP TS 44.018 § 9.1.14)); s ee also J.A. 2424 ( providing in the GSM standard that a non - synchronized cell case operates by

“ sending continuously on the main [ dedicated channel ] a HANDOVER ACCESS message. This message is sent in random mode and thus does not follow the basic format .” (emphasis added)). Dr. Min ’s expert report provides additional support , interpreting Mouly to disclose a dedicated channel that is used during handover. See J.A. 3183

– 84 (stating that “Mouly does not disclose receiving the random access identifier over a [RACH]

. . . . To the contrary, Mouly explicitly discloses that access bursts containing the handover reference are used on a dedicated channel.” (emphases and footnote omitted)). Mouly’s statement s are at least highly ambiguous as to whether synchro nous or asynchronous handover me ssages occur on a RACH or a dedicated channel

. Additio nally, the parties’ experts demonstrate that there is a dispute as to which interpretation is correct. Such amb iguity is best left for determination by a factfinder. Because the District Court erred in finding that there was no genuine dispute as to any material fact , g ranting summary judgment of invalidity was improper and we need not address the remaining limitations of claims 8 and 18 of the ’437 patent. We therefore vacate the Di strict Court’s grant of summary judgment and remand for further proceedings consistent with this opinion

.WI

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B

. Non- Infringement of the Bandwidth Patents

1

. Standard of Review and Legal Framework A person infringes a patent if, without permi ssion of the patentee, that person “makes, uses, offers to sell, or sells any patented invention[] within the United States . . . during the term of the patent therefor

. . . . ” 35 U.S.C. § 271(a) (2012). Whether an accused product infringes a patent involves a two

- step inquiry. See Glaxo, Inc. v. Novopharm, Ltd. , 110 F.3d 1562, 1565 (Fed. Cir. 1997). “First, the court must construe the asserted claim.

. . . Second, the cou rt must determine whether the accused product

. . . contains each limitation of the properly construed claim[], either literally or by a su bstantial equivalent.” Freedman Seating Co. v. Am. Sea ting Co. , 420 F.3d 1350, 1356

– 57 (Fed. Cir. 2005) (citations
o mitted). T he first step is a question of law reviewed de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc. , 135 S. Ct. 831, 841 (2015)

. Claim terms “ are generally given their ord inary and customary meaning” as they would be unde rstood by a person having ordi nary skill in the art at the “time of the invention.” Phillips v. AWH Corp. , 415 F.3d 1303, 1312 , 13 13 (Fed. Cir. 2005) (en banc) (internal quotation marks and citation omitted). “To ascertain the scope and meaning of the asserted claims, we look to the words of the claims themselves, the specification, the prosecution history, and, if necessary, any relevant e xtrinsic evidence.” Chi. Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC , 677 F.3d 1361, 1366 (Fed. Cir. 2012) ( citation omitted ). “[T]he specif ication is the single best guide to the meaning of a disputed term, and

. . . acts as a dictio nary when it expressly defines terms used in the claims or when it defines terms by implication.” Phillips , 415 F.3d at 1321 (internal quotation marks and citati ons omitted). The second step is a question of fact. Absolute Software, Inc. v. Stealth Signal, Inc ., 659 F.3d 1121, 1129

– 30WI

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(Fed. Cir. 2011). Thus, a court properly may enter i nfringement summary judgment “ when no genuine issue of material fact exists , in particular, when no reasonable jury could find that every limitation recited in the prope rly construed claim either is or is not found in the accused device.” Bai v. L&L Wings, Inc. , 160 F.3d 1350, 1353 (Fed. Cir. 1998) (citation omitted)

. Wi -L AN raises arguments under each step of the i nfringement inquiry. Appellant s ’ Br. 45

– 60 . We address each step in turn.

2 . The District Court Did Not Err in Construing “Ban dwidth” T he District Court “accept[ed] Ericsson’s proposed construction based on [anot her district court judge]’s prior holding ” and construed “bandwidth” to mean “data transmission resources in a particular time period.” Wi

LAN , 2015 WL 6673742, at *4. Wi

- LAN argues that the District Court improperly narrowed the construction by adding a time requirement that is not required in the disclosed embodiment of the Bandwidth Patents. Appe llants’ Br. 46

– 47. Wi

- LAN contends that “bandwidth” is used broadly in the Bandwidth Patents to describe “a quantity of data to be transmitted or

. . . the u nits of time and frequency within the radio spectrum that are used to send that data.” Id. at 46. W e first look to the claim language to ascertain the scope and meaning of “bandwidth.” Independent claims 1, 4, and 6 of the ’014 patent disclose a system and a method that “detect[s] a bandwidth

. . . request in the [uplink] traffic [or data] received from a subscriber unit” and “identif[ies] in the [bandwidth] request a requested amount of [uplink] bandwidth.” ’014 patent col. 23 ll. 13– 1 4, 15

– 16 (claim 1 ) ; see id. col. 23 ll. 45

– 46, 47

– 48 (claim 4) (s imilar ), col. 24 ll. 24

– 25, 25

– 27 (claim 6) ( similar )

. Independent claim 1 of the ’298 patent states the same , ’298 patent col. 23 ll. 17

– 19, and d ependent claim s 2 and 4WI

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of the ’298 patent describes “bandwidth” in a similar fashion , id. col. 23 ll. 30

– 35, 39

– 41

. None of th ese claim s contain a n explicit restriction to “a particular time ,” as Wi

- LAN argu es. Thus, we next turn to the specification of the Bandwidth Patents. Four separate portions of the specification inform the meaning of “bandwidth” in the Bandwidth Patents’ claims. All four portions discuss bandwidth with the addition of a time compo nent. First, the specification discloses that bandwidth allocation can be structured as “us[ing] either time division duplexing [(‘TDD’)] or fr equency division duplexing [(‘FDD’)] methods to facilitate the exchange of information between the base station and the subscriber units. ” Id. col. 1 ll. 54

– 57. In discussing Figure 1 and the use of a TDD sch eme , the specification states that the “base sta tion . . . transmits without having to coordinate with other base stations, except for the overall time

- division duplexing that divides time into upstream (uplink) and downstream (down

- link) transmi ssion periods.” Id. col. 6 ll. 4 4–49 (emphasis added). The specification also incorporates a prior patent that d iscus ses why TDD systems are more advantageous

. See id. col. 7 l l. 52

– 57 (discussing U.S. Patent No. 6,016,311 (“ Gi lbert ”)) ; see also Gilbert col. 2 ll . 7

– 9, 16 –17 ( discussing the disadvantages of FDD systems as being “more complex and therefore more costly than those used by TDD sy stems , ” as well as having “limited flexibility and limited available frequency spectrum” ), col. 6 ll. 45 , 47– 48 (di scussing a “typical TDD system” that has “equal use of time slot allocations for the uplink and downlink tran smissions”). After demonstrating the advantages of a TDD system over a FDD system, the specification only discus ses the claimed invention within a TDD sche me
. See generally ’298 patent

. Next, the specification discusses the use of a TDD scheme for allocating bandwidth. Figure 2 shows that “the TDD frame is subdivided into a plurality of physicalWI

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slots [(‘ PS ’)] ” where “the frame is one millisecond in dura tion and includes 800 [PS] .” Id. col. 7 ll. 37

– 38, 39

– 40. “Alternatively, the present invention can be used with frames having longer or shorter duration and with more or fewer PS [] . The available bandwidth is allocated by a base station in units of a c ertain pre

- defined number of PS [] .” Id. col. 7 ll. 40

– 43. A third example of where the specification discusses the use of a TDD scheme for allocating bandwidth occurs in its discussion of downlink and uplink sub

- frame maps. See id. col. 8 l. 6

– col. 9 l. 27. In Figure 4, “[a]ll of the bandwidth allocated to a selected CPE within a given TDD frame (or alternatively an adaptive TDD frame, as the case may be) is grou ped into a contiguous CPE sche duled data block

. . . . ” Id. col. 9 ll. 21 –2 5. “The [PS] all ocated for the [CPE transition gaps]

. . . are included in the bandwidth allocation to a selected CPE

. . . in the base station uplink sub

- frame map.” Id. col. 9 ll. 25

– 27. A final example of where the specification discloses the use of a TDD scheme occurs during its discussion of the transmission of queued data and the quality of service for this queued data. See id. col. 19 l. 50

– col. 21 l. 4. Fairness a lgorithms are used to help ensure data quality when there “is insufficient bandwidth to transm it all the queued data during the current TDD Frame.” I d. col. 19 ll. 50 –51 . “For each TDD frame, the [ a lgorithm running in the] base station allocates the down

- link portion of the TDD frame and it performs an estimate of the uplink traffic to allocate u plink bandwidth to the CPEs.” Id. col. 21 ll. 2–4. Taken together, we find that the specification demo nstrates that the bandwidth requirements will vary over time, dependin g on the needs of the consumer. We ther efore affirm the District Court’s claim construction of “b andwidth” to mean “data transmission resources in aWI

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particular time period .” We next move to the second step of the infringement determination. 3 . The District Court Erred in Granting Non

Infringement Summary Judgment Wi

- LAN argues the D istrict Court erred in entering summary judgment that Ericsson did not infringe the Bandwidth Patents because there were genuine disputes of material fact. See Appellants’ Br. 5 0– 60. We agree.

a . Ericsson’s Accused Products Wi

- LAN accused Ericsson’s rad io base station pro ducts, which practice the fourth generation telecommunic ations standard of Long Term Evolution (“LTE”), of infringing the Bandwidth Patents . The radio base st ations allow subscribers to access a carrier’s LTE network by “receiv [ing] uplink data from connected subscriber units and forward [ing] that data to providers’ networks and to the Internet.

. . . The subscriber units require bandwidth to send the uplink data to the [radio base stations].” J.A. 9 (citation s omitted). Two feat ures of Ericsson’s accused products are rel evant to this appeal

— the “buffer status report [] [ (‘BSR’)] and the Scheduler” : A [BSR] is a report periodically sent from the su bscriber unit to the [radio base station] that reports the amount of data presently available to be sent on the uplink

. . . . The subscriber unit sends a BSR when it has no data left to send, or when it has a lot of data available to send.

. . . The Scheduler allocates bandwidth by sending an i ndividual

. . . message to each subscrib er unit.

. . . Th at message contains all the information a su bscriber unit needs to transmit its data, and also contains retransmission commands that the su bscriber unit must follow.WI

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J.A. 9 (citations and footnote omitted). b . The District Court’s Erro rs The District Court’s opinion contains two errors that preclude the entry of summary judgment. T he District Court determined that Wi

- LAN failed to identify a gen uine issue of material fact as to direct infringement and concluded that Ericsson’s accused products do not infringe the Bandwidth Patents. J.A. 17. In reaching this concl usion, the District Court stated that Ericsson’s [radio base station ] . . . decides how much, if any, bandwidth to allocate to a subscriber unit, based in part on a report the subscriber unit sends it (the “ BSR ” ).

. . . The BSR contains only two pieces of information: (1) an identification number for a logical channel group, and (2) an i nteger that approximates the bytes of data avail able for uplink transmission.

. . . In other words, the BSR merely reports an approximation of how much data is available for transmission on the u plink. J.A. 14 ( footnote and citation s omitted). Th e District Court further stated that “[a]ll of the [A] sserted [C] laims [of the Bandwidth Pate nts] require that Ericsson’s [radio base stations] identify in the bandwidth request a r equested amount of bandwidth[.]” J.A. 15 (emphasis added) ( internal quotation marks and citation s omitted). In light of this evidence, t he District Court held that Er icsson could not infringe the Wi

- LAN patents because the Ericsson products do not request bandwidth as claimed in the Bandwidth Patents; rather the accused product calculates an amount of bandwidth to allocate. See J.A. 15 ( “T he [radio base stations]

. . . use the bytes of data reported in the BSR, along with other information to calculate an amount of bandwidth to allocate. In other words, there is no ‘requested amount of bandwidth’ in the BSR for a [] [ radio base station] to ‘identify

. ’” (citationsWI

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o mitted) ) . Additionally, the District Court noted that “LTE subscriber units send BSRs to [radio base stations] even when they have no need for bandwidth.” J.A. 17 (citation omitted). The District Court found that this further support ed its conclusion that no bandwidth is requested by the Ericsson products

. The District Court erred in entering summary jud gment because it ignored conflicting evidence in the record and placed greater weight on Ericsson’s evidence. A s to the conclusion that a BSR is not a request for bandwidth , Wi

- LAN had argued to the District Court that “[t]he base station treats each BSR as a request and identifies in it a requested amount of bandwidth because of its purpose, contents, and context.” J.A. 2246 (Wi

- LAN’s Opposition to Er icsson’s Motion for Summary Judgment). In this Opposition, Wi

- LAN further stated that “Dr. Min e xplains [] ‘all understand that the BSR is sent for the purpose of requesting bandwidth from the base station to transmit the uplink data and to clear its buffe rs
. . . and [thus]

. . . the base station will respond by gran t ing ban dwidth in response to the BSR.” J.A. 2246 (citation omi tted); see J.A. 2245 (Dr. Min stating “[t]he entire purpose of the BSR is to inform the base station, which would otherwise have no way of knowing the amount of ban dwidth [the user equipment] requires at a particular [transition time interval].”). Rather than acknowledge the dispute about this fact, the District Court determined this evidence did not support Wi

- LAN’s arguments. J.A. 15. T he District Court rejected Wi

- LAN’s evidence b ecause “it merely indicates that the number of bytes of data reported in a BSR is a factor [ that radio base st ations] use in calculating the number of [physical resource blocks] to allocate to subscriber units.” J.A. 15. Taken together, w e find that the District Court weighed conflicting evidence and improperly credited Ericsson’s evidence when reaching its conclusion that the
a ccused p roducts do not request bandwidth

. See Ande r-WI

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son, 477 U.S. at 255. We vacate the grant of summary judgment and remand for further proceedings consistent with this opinion

. I II

. Eric s son’s Cross

- Appeal In its cross

- appeal, Ericsson challenges only one a spect of the District Court ’s decision

— i.e., wh ether the District Court erred by finding that the MFL Provision did not apply to the Patents

- in

- Suit. We agree with the District Court that the MFL Provision does not apply

. A. Legal Framework The PCRA is “governed in all respects in accordance with the laws of the state of New York.” J.A. 1766

. Under New York law, “[t]he fundamental, neutral precept of contract interpretation is that agreements are co nstrued in accord with the parties’ intent .” Greenfield v. Philles Records, Inc. , 780 N.E.2d 166, 170 ( N.Y. 2002) (citation omitted)

. “[T]he construction of a plain and unambiguous contract is for the court to pass on, and

. . . circumstances extrinsic to the agreement will not be considered whe n the intention of the parties can be gathered from the instrument itself. ” W est , Weir & Ba rtel, Inc. v. Mary Carter Paint Co. , 255 N.E.2d 709, 711

– 12 (N.Y. 1969) (citation omitted)

. “In interpreting a co ntract [,] t he court should examine the entire agre ement and consider the relation of the parties and the circu mstances under which it was executed.” William C. Atw ater & Co. v. Pan

. R.R. Co. , 159 N.E. 418, 419 ( N.Y. 1927). Additionally, “ [p] articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby.” Id. “Where the document makes clear the parties’ over

- all intention, courts examining isolated provisions should then choose that construction which will carry out the plain purpose and object of the agreement.” Kass v. Kass , 696 N.E.2d 174 , 181 ( N.Y. 1998) (internal quotation marks, brackets, and citationWI

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omitted). B. The Dist rict Court Did Not Err in Finding the MFL Provision Does Not Apply to the Patents

- In

- Suit The District Court concluded that the PCRA’s MFL Provision did not apply to the Patents

- in

- Suit . J.A. 32. In reaching this determination, the District Court applie d this court’s previous holding regarding the PCRA between Ericsson and Wi

- LAN. The District Court stated that the

“‘ MFL Provision only applies to W i- LAN’s patents owned or controlled as of the effective date of the PCRA, which the [ Patents

- in

- Suit ] were not. ’ ” J.A. 12 (alteration omi tted) (quoting Wi

- LAN, 574 F. App’x at 940 ) . “Ericsson does not contend that the [ Patents

- in

- Suit ] were owned or controlled by Wi -L AN as of the effective date of the PCRA.” J.A. 12. Rather, the District Court found that “i t is undisputed that Wi -L AN acquired [the Patents

- in

- Suit ] after the execution of the PCRA ” and, thus, the MFL Provision does not apply to the Patents

- in

- Suit. J.A. 12. On cross

- appeal, Ericsson argues that the PCRA was triggered by Wi

- LAN’s assertion of U.S. Patent No. 6,549,759 (“the ’759 patent”) 7 against unrelated third parties’ products (i.e., products under the Universal Mobile Telecommunications System (“UMTS”) or High Speed Packet Access (“HSPA”) standards, collectively

“ UMTS/HSPA products ”). 8 O nce the PCRA was triggered,

7 Wi

- LAN owned or controlled the ’759 patent b efore the November 1, 2007 effective date of the PCRA. See J.A. 1756 (effective da te of the PCRA); J.A. 1789 (assignment history of the ’759 patent). 8 The UMTS “standard broadly defines third gene ration cellular network specifications and protocols

— more commonly known as ‘3G.’ The UMTS standard consists ofWI

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Ericsson contends that it has the right to “a license on the same terms as” unrelated third party BelAir Networks Inc. ’s license with Wi

- LAN (“ the BelAir License”). Cross

Appellants’ Br. 61 (capitalization modified). Ericsson contends the scope of the future license under the MFL Provision “is not tied to the patent that triggers the MFL Provision [] [( i.e., the ’ 75 9 patent ,)] for while only patents allegedly infringed by [ the unrelated third parties ’] UMTS/HSPA [p]roducts can trigger Ericsson’s right to a license, that license necessarily and explicitly extends beyond [the unrelated third parties’] UMTS/HSPA [p]roducts .” Id. at 62 (citation omitted). Because t he terms of the BelAir License “extend . . . to the [Patents -inSuit] , the [c]ourt should hold that Ericsson is entitled to judgment on its counterclaims.” Id. at 63. We agree with the District Court ’s conclusion that E ricsson is not entitled to a most favored licensee status as to the Patents

- in

- Suit, but for dif ferent reasons than those articulated by the District Court

. W e find that Ericsson is entitled to a most favored licensee status only for the patent or patents th at trigger the MFL provision

— i.e., the ’759 patent. The MFL Provision is provided in Article VII of the PCRA. In relevant part, Article VII , § 1 states: In the event that Wi

- LAN owns or controls the l icensing of patents not already addressed under this Agreement and which are infringed or alleged to be infringed by UMTS/HSPA PRODUCTS, W [i]

- LAN hereby agrees that [,]

. . . at [Ericsson’s]

a number of narrower standards, including

. . . []HSPA[].” Wi

- LAN , 574 F. App’x at 933. “HSPA is a wireless stan dard that specifically relates to the transfer of data b etween the network and a mobile device.” Id.WI

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request, W [i]

- LAN will grant

. . . a non - exclusive license to make, have made, use, sell, offer for sale, lease or otherwise dispose of, and import [ E ricsson ’s] PRODUCTS including UMTS/HSPA PRODUCTS and Wi

- LAN ag rees to grant such a license at most

- favored licensee status as co mpared to any future licensee of W [i]- LAN. J.A. 1760

. Under New York law, courts “should

. . . choose that construction which will carry out the plain purpose and object of the agreement.” Kass , 696 N.E.2d at 181 (inte rnal quotation marks, brackets, and citation omitted)

. “[A] court should not adopt an interpretation which will ope rate to leave a provision of a contract without force and effect.” Corhill Corp. v. S. D. Plants, Inc. , 176 N. E.2d 37, 38 (1961) (internal quotation marks , citations , and alter ation omitted). Thus, in interpreting the relevant passage of the MFL Provision, we must consider the entire co ntract and choose the interpretation “which best accords with the sense of the remainder of the contract.” Ren tways, Inc. v. O ’ Neill Milk & Cream Co ., 126 N.E.2d 271, 273 ( N.Y. 1955) (citations omitted)

. We previously concluded that the first clause of t he relevant section is triggered when patents that Wi

- LAN owned or controlled as of the PCRA’s effective date are asserted against Ericsson’s alleged infringing products

. See Wi

- LAN , 574 F. App’x at 940. Ericsson’s interpret ation of the second clause of the relevant section

— i.e., that it is entitled to a license on the same terms as the BelAir License

— divorces the second clause from the previously interpreted first clause

. The section discusses the rights extended to Ericsson in terms of patents, not products. By its terms, the section addr esses the “licensing of p atents not already addressed under this Agreement,” “which are infringed or alleged to be infringed by UMTS/HSPA PRODUCTS.” J.A. 1760. Within the sameWI

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sentence, the section further states that , “during the TERM of this Agreement , ” Wi

- LAN will grant a “non

exclusive license” that covers the alleged infringing “PRODUCTS including UMTS/HSPA PRODUCTS.” J.A. 1760. R eading the sentence in its entirety, the scope of the license would cover the patent or patents asserted by Wi

- LAN again st Ericsson for infringement, which is limited to pre - PCRA patents , such as the ’759 patent

. And r eading the scope of the section to apply to any post

PCRA patent would result in an unreasonable interpret ation of the MFL Provision as a whole. Granting a license to Ericsson on the same terms as the BelAir L icense would grant Ericsson significantly broader rights than those contractually agreed to in the PCRA. We previously held that the MFL Provision is triggered by the assertion of only pre

- PCRA patents

. See Wi

- LAN , 574 F. App’x at 939

– 40. Today we determine that once the MFL Provision is triggered, the scope of that license is limited to the patent that triggered the MFL Provision. T he Patents

- in

- Suit are excluded by this analysis

. We conclude that the District Court did not err in finding the MFL Provision does not apply to the P atents

- in

- Suit. C ONCLUSION We have considered the parties’ remaining arguments and f i nd them unpersuasive. Accordingly, the final jud gment of the U .S. District Court for th e Southern District of Florida is VACATED

- IN

- PART, AFFIRMED

- IN

- PART, AND REMANDED C OSTS Each party shall bear its own costs.N OTE : This disposition is nonprecedential. 

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

______________________ WI

- LAN USA, INC., WI

- LAN, INC., Plaintiffs

- Appellants

v. ERICSSON, INC., TELE FONAKTIEBOLAGET LM ERICSSON, Defendants

- Cross

- Appellants

______________________ 2015

- 1766,

- 1794

______________________ Appeals from the United States District Court for the Southern District of Florida in No. 1:12

- cv - 23569

- DMM, Judge Donald M. Middlebrooks.

______________________ O’M ALLEY , Circuit Judge , concurring in part, dissenting in part. Respectfully, I must disagree with two of the concl usions the majority reaches: (1) that the district court erred in granting summary judgment of invalidity with respect to the asserted claims of the ’437 patent; and (2) that the MFL provision in the PCRA, once triggered, is limited to the patent or patents that triggered the provision. I agree with all other aspects of the majority’s thoughtful anal ysis, including the ultimate conclusion that the MFL provision of the PCRA does not bar suit with respect to the products at issue in this proceeding.WI

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I. On my first point of disagreement, I believe that, when considered in its entirety, Mouly unambiguously teaches that its handover reference is sent over a RACH during asynchronous handover and, thus, anticipates that aspect of the asserted claims of the ’437 patent. The majority points to two errors it says the district court made

— relying on arguments of Eric s son’s counsel and weighing the expert testimony from both parties against the teachings of Mouly to draw inferences therefrom. Maj. Op. at 10 –14. While I do not dispute that a trial court would err if it predicate d summary judgment on such findings, I do not believe the district court relied on such findings here. The district court included a quotation of an argument by Eric s son’s counsel in the portion of the court’s opinion where the court was laying out the argu ments made by each party before making its findings in relation to which party’s arguments were well taken. In this portion of the opinion , the district court also laid out all of Wi

- LAN’s arguments to the contrary. The district court did not directly re ly on these statements when making its final determination as to what the Mouly reference dis closes, which comes well after the court’s references to stat ements made by counsel

. The majority claims that the context provided by foo tnote 17 shows that the di strict court relied on the arg ument of counsel to make findings. Maj. Op. at 12

– 13 n.6

. But t he district court’s analysis as to the meaning of Mouly’s statement that the handover access message “is the only case where short access bursts are used on a de dicated channel” does not rely on statements by cou nsel. Instead, the district court finds Wi

- LAN’s argument “inconsistent with the rest of Mouly (totaling 695 pages) and inconsistent with both Parties’ expert testimony.” J.A. 24

– 25. The district court then identifies the admi s-WI

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sions of Dr. Min, Wi

- LAN’s expert, as support for its holding. J.A. 25 n.18. Complaints about the district court’s reference to e xpert testimony are also misplaced. The district court cited an admission by Wi

- LAN’s own expert as a key piece of expert testimony. There is nothing improper about pred icating summary judgment on binding admissions. Specifically, counsel asked Dr. Min about the teac hings of Mouly. The portion of Mouly counsel referred to states: At initial assignment, or at handover between two cells which are not synchronised, no information can be used by either side to predict the timing advance. Signalling messages are different, but the timing advance initialisation process is very similar in both cases. The mobile station is fo rbidden to transmit normal bursts until it knows the new timing advance to apply. J.A. 2394. Counsel then asked Dr. Min whether that language indicated to Dr. Min that “the communication between the mobile station and the target base s tation will not be on a dedicated channel until there has been a synchronization of the timing?” J.A. 1415. Dr. Min admitted that Mouly included this teaching, stating “I mean, that’s what he [Mouly] said, the mobile station is forbidden to transmit the data which is on a dedicated channel until

. . . the synchronization is initiated.” J.A. 1415. Counsel then turned Dr. Min’s attention to the stat ement from Mouly on which Wi

- LAN based its argument against anticipation, and on which the majority relies. In addressing the RIL3

- RR HANDOVER ACCESS message, Mouly states, “[t]his message is the only case where short access bursts are used on a dedicated channel.” J.A. 826.WI

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Counsel asked Dr. Min whether this statement applied to only synchronous handover, and Dr. Min replied: It can be either way. You just have to

— if it’s an asynchronous handover, then you have to obtain the synchronization and then you can use it a fterward. So if it’s for the synchronous handover then it’s easier, clearly, you know, you haven’t lost your synchronization. But if it’s asynchronous, then you obtain the synchronization first and then you can use it on a dedicated channel. J.A. 1417

– 18. Counsel then clarified with Dr. Min that, to the extent the statement refers to an access bu rst being sent on a dedicated channel in an asynchronous scenario, “the synchronization takes place prior to the access burst being sent,” and Dr. Min stated, “[y]es, that’s right.” J.A. 1418. Wi

- LAN’s attempts to dismiss these statements as ambiguous testimony about obtaining synchronization on the dedicated channel in asynchronous handover misu nderstand its place in the analysis. Dr. Min admits that a mobile device cannot transmit data on a dedicated cha nnel until after synchronization has been complete d. The mobile device therefore must transmit on the RACH prior to synchronization. Although Dr. Min does not specifically state that the handover reference is transmitted prior to synchroniz ation, his testimony can only support that result given the teach ings of Mouly. Figure 6.37 of Mouly shows that the RIL3

- RR HANDOVER ACCESS message is sent prior to the mobile device receiving the RIL3

- RR PHYSICAL INFORMATION message that has the timing advance from the new base station, and therefore prior to synchr on ization. J.A. 826. Dr. Min admitted Mouly teaches that a mobile device “is forbidden to transmit data which is on a dedicated channel until

. . . the synchronization is initiated.” J.A. 1415; see also J.A. 1417

– 18. If the mobileWI

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device cannot transmit over a dedicated channel prior to synchronization, as admitted by Dr. Min, J.A. 1415, 1417

– 18, then the teaching of Mouly that “[t]his message is the only case where short access bursts are used on a dedica ted channel,” J.A. 826, must apply only to synchro nized hando vers. In asynchronous scenarios, the RIL3

- RR HANDOVER ACCESS message sent prior to synchroniz ation , as shown in Figure 6.37, cannot be sent over a dedicated channel

— because synchronization has not been established yet

— and therefore must be sent over the RACH. In the absence of material errors by the district court, the majority ultimately predicates its conclusion that Mouly’s teaching is ambiguous on one oddly phrased sentence in the entire reference, which encompasses hundreds of pages and in cludes at least seventeen pages dedicated specifically to handover execution

. As e xplained above, however, Mouly’s teachings and Dr. Min’s admissions show that this sentence cannot apply to asynchronous handovers. Because no reasonable juror could read Mouly other than the way the district court did, or conclude that the one grammatically confusing phrase to which Wi

- LAN and the majority point is enough to offset the otherwise clear teachings of Mouly, I do not find that Wi

- LAN’s dispute predicated on that phrasing raises a genuine dispute of material fact to preclude summary judgment. II. With respect to the MFL provision of the PCRA, I agree with the majority that our prior opinion, Wi

- LAN USA, Inc. v. Ericsson, Inc. , 574 F. App’x 931 (Fed. Cir. 2014) , o nly decided whether the assertion of after

acquired patents triggers the MFL provision. Importan tly, in that set of companion opinions, we affirmed a Texas judgment that rested only on a determination of what could trigger the MFL provision and reversed a FloridaWI

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judgment, finding it erred in its assessment of that same predicate issue. We expressly refused to determine the scope of the MFL provision once triggered. Now that the MFL provision has been triggered, we must decide that reserved question . Lik e the majority, I do not believe our earlier decision compels the conclusion the district court reached here. Unlike the majority, however, I believe the MFL provision defines the products as to which most favored licensee status would apply, not the pate nts. I conclude that the reasoning of our earlier decision as well as basic rules of grammar both limits and extends (depending on one’s perspective) the MFL prov ision to products which incorporate the type of technology at issue in the triggering patents

— all UMTS technology. Because the products at issue in this action do not inco rporate UMTS technology, I agree with the majority that the MFL provision does not bar Wi

- LAN’s action; I just do so for slightly different reasons. III. Finally, I agree that t he district court properly inte rpreted the term Bandwidth and that, based on that construction, the trial court erred in entering summary judgment of non

- infringement of the ’298 and ’ 014 p atents. IV. For these reasons, I concur

- in

- part and dissent

- in

part

.