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Bradium Technologies LLC v. Iancu

Approaches “Reasonably Suggested” But Not Disclosed May Be Considered on Obviousness

Bradium Technologies LLC v. Iancu, __ F.3d __, 2019 WL 2079174 (Fed. Cir. May 13, 2019) (Moore, REYNA, Chen) (PTAB) (2 of 5 stars)

Fed Cir affirms IPR decisions canceling claims of two Bradium patents as obvious. Bradium’s patents relate to retrieving large images over a network with limited bandwidth, on devices having limited processing capability. Applying the broadest reasonable interpretation standard in place before November 2018, the PTAB did not err in construing “limited bandwidth communications channel.” The opinion rejects Bradium’s argument that the term could not cover channels whose bandwidth was only temporarily limited (e.g., due to congestion). A statement in the written description distinguishing “low-bandwidth channels” from “high-bandwidth channels” was insufficient to redefine “limited bandwidth communications channel.” Citing Thorner, 669 F.3d 1362 (Fed. Cir. 2012), the opinion reasons that such lexicography requires a clear, unambiguous statement, and describes how the written description here did not meet that standard. The opinion also notes that the Board’s construction is consistent with inventor testimony, noting that under Howmedica Osteonics, 540 F.3d 1337 (Fed. Cir. 2008), and Voice Technologies, 164 F.3d 605 (Fed. Cir. 1999), such testimony may be considered as bearing on “the invention and what was intended to be conveyed by the specification and covered by the claims.” Op. at 19 (quoting Voice Technologies). The opinion also rejects Bradium’s argument that the Board’s construction failed on claim differentiation grounds.

Substantial evidence supported the Board’s obviousness determination. The opinion’s discussion is generally fact-specific, and rejects Bradium’s arguments concerning the contents of the references and alleged teaching away. Bradium waived an argument attacking the FWDs as failing to address a specific set of requirements in a dependent claim by failing to present such argument to the Board. The opinion describes how Bradium’s citation to the trial transcript as allegedly preserving this argument was insufficient.

Substantial evidence also supported the Board’s determination that a separate limitation in two other dependent claims was obvious. The limitation concerned assigning a “prioritization value” to certain data requests, and it was undisputed that such values were not expressly recited in the references. The opinion describes how the evidence supported the Board’s inherency determination. “Bradium fails to explain how prioritization implemented on a computer can be accomplished without associating some value with a request to track its priority.” Op. at 28. Citing In re Baird, 16 F.3d 380 (Fed. Cir. 1994), and In re Aslanian, 590 F.2d 911 (CCPA 1979), the opinion reasons that the Board could properly rely not only on what the references expressly taught, but what they “fairly suggest.” Id. (quoting Baird). The opinion also rejects Bradium’s argument that the “prioritization value” required further definition; this was an improper attempt by Bradium to import limitations from the description.

Substantial evidence also supported the Board’s determination that the proposed combination disclosed a separate “queuing” limitation. Discussion on this term is fact-specific.

KEYWORDS: INTER PARTES REVIEW; CLAIM CONSTRUCTION; OBVIOUSNESS (YES); INHERENCY