09 May 2017
Virginia
Reporter: Barney Dixon
Intellectual Ventures loses patents in Ericsson appeal
The US Court of Appeals for the Federal Circuit has backed the invalidation of two Intellectual Ventures patents.

The Federal Circuit upheld Ericsson’s successful inter-partes review proceedings on 8 May, following the Patent Trial and Appeal Board’s (PTAB) decision to find them obvious.

The patents protected a method for selection of appropriate bandwidth in a multi-bandwidth communication system.

The PTAB ruled on 25 August 2015 that the patents fell foul of a patent covering a system using orthogonal frequency division multiplexing.

On appeal, Intellectual Ventures argued that the PTAB had “misconstrued two claim terms” to mean something no party argued for or expected.

The PTAB acted contrary to Federal Circuit decisions in Magnum Oil and SAS, which held that “the [PTAB] must base its decision on arguments that were advanced by a party, and to which the opposing party was given a chance to respond”.

The PTAB ignored its proposed construction and adopting one in its final written decision that no party previously advanced.

The Federal Circuit found “no due process violation” and “the board’s claim construction was correct”.

“The record demonstrates that Intellectual Ventures had notice and an opportunity to be heard … After the board issued its final written decision, Intellectual Ventures was entitled to seek a rehearing. It did not.”

“In Magnum Oil, the board supplied completely new arguments that the petitioner never raised. Not so here, where the Board questioned counsel extensively over the construction of ‘an indication of an operating bandwidth’ after receiving briefs that contested both whether and how the PTAB needed to construe the term.”

“The PTAB is not constrained by the parties’ proposed constructions and is free to adopt its own construction, as it did here.”

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