Case: 23-1896 Document: 46 Page: 1 Filed: 08/29/2024

NOTE: This disposition is nonprecedential.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 ______________________ GEORGE CHRISTOPHER BECK, Foley & Lardner LLP, Washington, DC, argued for appellant. Also represented by BRADLEY ROUSH; JOHN CUSTER, KEVIN M. LITTMAN, LUCAS I. SILVA, Boston, MA; ELEY THOMPSON, Chicago, IL.

ROBERT COURTNEY, Fish & Richardson P.C., Minneap- olis, MN, argued for appellee. Also represented by MICHAEL TIMOTHY HAWKINS; THOMAS H. REGER, II, Dallas, TX. ______________________ Case: 23-1896 Document: 46 Page: 2 Filed: 08/29/2024

2 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

Before LOURIE, REYNA, and CHEN, Circuit Judges.

CHEN, Circuit Judge.

Quectel Wireless Solutions Co. Ltd. (Quectel) peti- tioned 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 challenged claim to be un- patentable 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 re- mand for further proceedings.

BACKGROUND The ’216 patent relates to techniques for radio commu- nication systems to regulate the power of communications transmitted between base stations and mobile stations.

Uplink communications are those transmitted from a mo- bile station to a base station, and downlink communica- tions 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 speech or packet data, and (2) control information, which sets and monitors various parameters of the trans- mission channel to enable the base and mobile stations to exchange user traffic. Id. col. 1 ll. 17–23.

The control information enables power control between the 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] re- ceives signals from different [mobile stations] at approxi- mately the same power level, while minimi[z]ing the transmission power required by each [mobile station].” Id. col. 1 ll. 25–29. Furthermore, power control of signals transmitted from the base station to a mobile station is Case: 23-1896 Document: 46 Page: 3 Filed: 08/29/2024

KONINKLIJKE PHILIPS N.V. v. 3 QUECTEL WIRELESS SOLUTIONS CO. LTD.

needed “so that the [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 communica- tion systems typically use closed-loop 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 control arise if there is an interruption in data transmission. “[A]fter the trans- mission is interrupted, the power control loops may take some time to converge satisfactorily. Until such conver- gence is achieved data transmissions are likely to be re- ceived 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 ad- dress these 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 communica- tion system having a communication channel be- tween the secondary station and a primary station, the channel including an uplink and a downlink control channel for transmission of control infor- mation, including power control commands, and a data channel for the transmission of data, the sec- ondary 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: 4 Filed: 08/29/2024

4 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

means for setting an initial transmission power af- ter an interruption in transmission 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 weighted average of the transmission power over a predeter- mined period before the interruption in transmis- sion. Id. at claim 9.

Quectel’s IPR Petition 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 insti- tuted review and issued a Final Written Decision finding claim 9 unpatentable over Agin and Chen. Philips appeals.

We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION “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). “Ob- viousness is a question of law based on underlying factual findings, including the scope and content of prior art refer- ences and the existence of a reason to combine those refer- ences.” Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018). “A finding is supported by sub- stantial evidence if a reasonable mind might accept the ev- idence to support the finding.” Id. I Philips first argues that the Board erred by failing to explicitly 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- Case: 23-1896 Document: 46 Page: 5 Filed: 08/29/2024

KONINKLIJKE PHILIPS N.V. v. 5 QUECTEL WIRELESS SOLUTIONS CO. LTD.

time adjustment applied to initial transmission power fol- lowing an interruption.” Appellant’s Br. 48.

Philips did not proffer this definition in either its Pa- tent 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 Surreply to first articulate its pre- ferred understanding of “offset,” but merely asserted it without any explanation. Moreover, this Surreply argu- ment 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: “Pa- tent Owner [Philips] does not appear to be seeking an ex- plicit 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 con- text of claim construction.” Decision, 2022 WL 4280566, at *4. We see no reason to disagree with the Board’s under- standing 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 ini- tial transmission power after an interruption in transmis- sion to that before the interruption adjusted by an offset.” ’216 patent at claim 9 (emphases added). Philips chal- lenges 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 size”  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: 6 Filed: 08/29/2024

6 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

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 con- cluded 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, 2023). As the Board noted, the ’216 pa- tent 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 Agin teaches the claimed “offset.”

Second, Philips contends that the Board erred in con- cluding 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 inter- ruption” and, moreover, “the specific teachings of Agin . . . demonstrate that Agin’s step size adjustment could not be applied to the initial transmission.” Appel- lant’s Br. 51.

Quectel’s Petition relied on Agin’s description of its Fig- ure 2, reproduced below, to teach the claimed “means for setting an initial transmission power after an interruption Case: 23-1896 Document: 46 Page: 7 Filed: 08/29/2024

KONINKLIJKE PHILIPS N.V. v. 7 QUECTEL WIRELESS SOLUTIONS CO. LTD.

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 deter- mining 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. 31–38. Then, “1 or 2 is combined with the ‘up’ or ‘down’ power control command to obtain a result- ing 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: 8 Filed: 08/29/2024

8 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

decrease its transmittal power level by the power control step size. Agin col. 1 ll. 43–47.

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 trans- mission 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 possi- bly adjust its initial transmission following 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 interrup- tion], 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 Surreply. J.A. 325–26; J.A. 378– 79.

The Board did not account for this argument in its Fi- nal 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 “per- suaded that one of ordinary skill in the art would have in- terpreted Agin as setting an initial transmission power after an interruption in transmission to that before the in- terruption adjusted by a step size.” Id. But the Board failed to address Philips’s argument as to how Agin’s sys- tem would adjust the initial transmission following an in- terruption without having received any power control commands during the interruption.

Case: 23-1896 Document: 46 Page: 9 Filed: 08/29/2024

KONINKLIJKE PHILIPS N.V. v. 9 QUECTEL WIRELESS SOLUTIONS CO. LTD.

Because the Board’s analysis on this point was too con- clusory and did not address an argument timely raised be- low, 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 motivated to modify Agin in view of Chen. Quectel’s Petition and the Board’s deci- sion relied on the combination of Agin and Chen to teach the claimed “means for determining the offset from a dif- ference 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 motiva- tion-to-combine findings, though we find each unpersua- sive.

Philips contends that “nothing in Agin suggests apply- ing an average (much less a weighted average) to deter- mine the magnitude of the modified step size adjustment 2.” Appellant’s Br. 62. The Board disagreed, relying on Agin’s discussion of “statistics” to make a contrary finding.

Agin teaches that “[p]arameters T’ and δ2 may . . . be deter- mined 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 sig- nal power before the interruption, the largest δ2 and T’, and vice-versa.” Agin col. 6 ll. 10–14 (emphasis added). The Board reasonably found that this disclosure in Agin “is suf- ficient to suggest the use of different types of statistics, in- cluding 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 δ2, which Case: 23-1896 Document: 46 Page: 10 Filed: 08/29/2024

10 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

“have nothing to do with an offset that is applied to the in- itial transmission.” Appellant’s Br. 62. This appears to be a reiteration of Philips’s argument that δ2 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 prede- termined period before the interruption in transmission” at a single base station. Id. at 63. The Board considered and rejected this argument, reasonably concluding that alt- hough “Chen is utilizing a weighted average for one pur- pose, [the Board was] not persuaded that one of ordinary skill in the art could not review the disclosure of Chen and see its application to other aspects of computing an adjust- ment to power levels [such as in Agin].” Decision, 2022 WL 4280566, at *10; see also id. at *11 (referring to Quectel’s argument that Philips’s “arguments are akin to bodily in- corporation and the disclosure elements of Agin and Chen need not be physically combinable to render claim 9 obvi- ous”). We also find reasonable the Board’s determination that “Chen discusses other options, i.e., ‘a number of possi- ble methods,’ that can utilize a single base station in mak- ing 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 mat- ter 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.” Ap- pellant’s Br. 64. We disagree. The Board considered “mul- tiple rationales for the combination of Agin and Chen, including the benefits of Chen’s techniques, the predicta- bility 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: 11 Filed: 08/29/2024

KONINKLIJKE PHILIPS N.V. v. 11 QUECTEL WIRELESS SOLUTIONS CO. LTD.

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, re- spectively, and “determine[d] Dr. Ding’s testimony to be more persuasive.” Id. Substantial evidence supports the Board’s determination that a skilled artisan would have been motivated to combine Agin and Chen.

IV Finally, Philips argues that the Board erred in conclud- ing 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 predetermined period be- fore the interruption in transmission.” Philips presents two arguments on this point.

First, Philips contends that the Agin-Chen combina- tion 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 δ2,” Philips contends that Agin would need “to con- tinually 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 for- feited it. See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020) (“We have regularly stated and applied the important principle that a position not pre- sented in the tribunal under review will not be considered on appeal in the absence of exceptional circumstances.”).

Second, Philips contends that the prior art does 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 “Chen’s weighted average is computed based on values of current powers at multiple base stations.” Ap- pellant’s Br. 66–67. According to Philips, the Board’s Case: 23-1896 Document: 46 Page: 12 Filed: 08/29/2024

12 KONINKLIJKE PHILIPS N.V. v. QUECTEL WIRELESS SOLUTIONS CO. LTD.

“Final Written Decision did not address the fact that Chen’s techniques do not involve a weighted average 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 Deci- sion, 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 a power control decision, such that ordinarily skilled arti- sans would have applied [Chen’s] weighted average in Agin as Petitioner has asserted.” Decision, 2022 WL 4280566, at *10 (quoting Chen col. 10 ll. 47–56). Substantial evi- dence supports the Board’s finding.

CONCLUSION We have considered Philips’s remaining arguments and find them unpersuasive. For the foregoing reasons, we vacate the Board’s finding that the prior art teaches the claimed “means for setting an initial transmission power after an interruption in transmission to that before the in- terruption adjusted by an offset” and remand for further proceedings consistent with this opinion. We affirm the Board’s other determinations.

AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED COSTS No costs.