Case: 19-2287   Document: 55     Page: 1   Filed: 01/04/2021




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

    COMCAST CABLE COMMUNICATIONS, LLC,
                 Appellant

                            v.

        PROMPTU SYSTEMS CORPORATION,
                   Appellee

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                  2019-2287, 2019-2288
                 ______________________

     Appeals from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in Nos. IPR2018-
 00344, IPR2018-00345.
                  ______________________

                Decided: January 4, 2021
                 ______________________

    MARK ANDREW PERRY, Gibson, Dunn & Crutcher LLP,
 Washington, DC, for appellant. Also represented by
 JESSICA A. HUDAK, Irvine, CA; JAMES L. DAY, JR., Farella
 Braun Martel LLP, San Francisco, CA.
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 2       COMCAST CABLE COMMUNICATIONS     v. PROMPTU SYSTEMS
                                                CORPORATION




     JACOB ADAM SCHROEDER, Finnegan, Henderson,
 Farabow, Garrett & Dunner, LLP, Palo Alto, CA, for appel-
 lee. Also represented by JOSHUA GOLDBERG, Washington,
 DC.

     DANIEL KAZHDAN, Office of the Solicitor, United States
 Patent and Trademark Office, Alexandria, VA, for interve-
 nor. Also represented by THOMAS W. KRAUSE, FRANCES
 LYNCH, FARHEENA YASMEEN RASHEED.
                 ______________________

     Before LOURIE, SCHALL, and MOORE, Circuit Judges.
 MOORE, Circuit Judge.
     Comcast Cable Communications, LLC, appeals two in-
 ter partes review final-written decisions, in which the Pa-
 tent Trial and Appeal Board held that Comcast failed to
 prove claims 1, 2, 4–6, 12–15, 17–19, 25–28, 30–32, 38–42,
 53–55, 61, 62, 64–66 (the challenged claims) of U.S. Patent
 No. 7,047,196 would have been obvious. For the following
 reasons, we affirm-in-part, vacate-in-part, and remand.
                        BACKGROUND
     The ’196 patent relates to a “method and system of
 speech recognition presented by a back channel from mul-
 tiple user sites within a network.” ’196 patent at Abstract.
 Representative claims 1 and 14 recite:
     1. A method of using a back channel containing a
     multiplicity of identified speech channels from a
     multiplicity of user sites presented to a speech pro-
     cessing system at a wireline node in a network sup-
     porting at least one of cable television delivery and
     video delivery, comprising the steps of:
         receiving said back channel to create a
         received back channel;
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 COMCAST CABLE COMMUNICATIONS    v. PROMPTU SYSTEMS        3
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        partitioning said received back channel
        into a multiplicity of received identified
        speech channels;
        processing said multiplicity of said received
        identified speech channels to create a mul-
        tiplicity of identified speech content; and
        responding to said identified speech con-
        tent to create an identified speech content
        response that is unique, for each of said
        multiplicity of identified speech contents.
        ...
    14. A program system controlling at least part of a
    speech recognition system coupled to a wire-
    line node in a network, said program system com-
    prising the program steps of:
        processing a multiplicity of received identi-
        fied speech channels to create a multiplic-
        ity of identified speech content; and
        responding to said identified speech con-
        tent to create an identified speech content
        response that is unique to each of said mul-
        tiplicity of identified speech contents;
        wherein said speech recognition system is
        provided said multiplicity of received iden-
        tified speech channels based upon a re-
        ceived back channel at said wireline node
        from a multiplicity of user sites coupled to
        said network;
        wherein each of said program steps reside
        in memory accessibly coupled to at least
        one computer included in said speech
        recognition system; wherein said at least
        one computer communicatively couples
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 4      COMCAST CABLE COMMUNICATIONS     v. PROMPTU SYSTEMS
                                                CORPORATION


        through said wireline node to said multi-
        plicity of user sites; and
        wherein said network supports at least one
        of the collection comprising: cable televi-
        sion delivery to said multiplicity of user
        sites; and video delivery to said multiplicity
        of user sites.
 ’196 patent at 50:62–51:10, 52:65–53:21 (emphases added).
      Comcast petitioned for two IPRs of the ’196 patent, ar-
 guing the challenged claims would have been obvious in
 light of two primary references—U.S. Patent No. 6,513,063
 (Julia) or U.S. Patent No. 7,013,283 (Murdock)—individu-
 ally or combined with additional references. Review was
 instituted, and the Board issued final-written decisions in
 both IPRs. In IPR2018-00345, the Board determined that
 the “speech recognition system” and “wireline node” in
 claim 14’s preamble are different elements. Because Com-
 cast mapped the “speech recognition system” and the “wire-
 line node” to a single element, the Board held Comcast
 failed to show claims 14, 15, 17–19, 25, 26, 53–55, 61, 62,
 and 64–66 were unpatentable. The Board also declined to
 consider Comcast’s new mapping of the “speech recognition
 system” in reply. In IPR2018-00344, the Board determined
 the “back channel” and “received back channel” in claim 1
 are distinct elements, rather than a relabeling of one ele-
 ment. Because Comcast failed to allege any reference
 teaches the “received back channel,” the Board held that
 Comcast failed to show claims 1, 2, 4–6, 12, 13, 27, 28, 30–
 32, and 38–42 were unpatentable. Comcast appeals. We
 have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
                        DISCUSSION
     “We review the Board’s constructions based on intrin-
 sic evidence de novo and its factual findings based on ex-
 trinsic evidence for substantial evidence.” HTC Corp. v.
 Cellular Commc’ns Equip., LLC, 877 F.3d 1361, 1367 (Fed.
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 Cir. 2017). Because Comcast filed its petitions before No-
 vember 13, 2018, we construe claims in the unexpired ’196
 patent according to their “broadest reasonable interpreta-
 tion in light of the specification.” 37 C.F.R. § 42.100(b)
 (2017). “Decisions related to compliance with the Board’s
 procedures,” like considering new arguments raised in re-
 ply, “are reviewed for an abuse of discretion.” Intelligent
 Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,
 1367 (Fed. Cir. 2016).
                               I
     For IPR2018-00345, Comcast argues the Board erred
 by determining that claim 14’s “speech recognition system”
 and “wireline node” are different elements. It also argues
 the Board erred by not considering its new mapping in re-
 ply. We do not agree. 1
      We see no reversible error in the Board’s construction
 requiring that the “speech recognition system” and “wire-
 line node” be distinct elements. Claim 14 recites “a speech
 recognition system coupled to a wireline node.” By listing
 the elements separately and by using the word “coupled,”
 claim 14 strongly indicates the “speech recognition system”
 is distinct from the “wireline node.” See Becton, Dickinson
 & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254
 (Fed. Cir. 2010) (“Where a claim lists elements separately,
 the clear implication of the claim language is that those el-
 ements are distinct components of the patented invention.”
 (cleaned up)). While the ’196 patent’s written description
 contains an embodiment where a speech recognition sys-
 tem is “in” a wireline node, it also describes an embodiment
 with a speech recognition system “near” a wireline node.
 See ’196 patent at 5:11–15. Thus, the written description
 does not show a “clear intent” to depart from the claim’s



     1 We need not reach Comcast’s arguments regarding
 Murdock’s status as prior art.
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 6      COMCAST CABLE COMMUNICATIONS     v. PROMPTU SYSTEMS
                                                CORPORATION


 plain language. See Hill-Rom Servs., Inc. v. Stryker Corp.,
 755 F.3d 1367, 1373 (Fed. Cir. 2014). The broadest reason-
 able interpretation of “coupled to” requires that the “speech
 recognition system” and “wireline node” are distinct com-
 ponents.
     Nor do we see any abuse of discretion in declining to
 consider Comcast’s new mapping raised for the first time
 in reply. “It is of the utmost importance that petitioners in
 the IPR proceedings adhere to the requirement that the in-
 itial petition identify with particularity the evidence that
 supports the grounds for the challenge to each claim.” In-
 telligent Bio-Sys., 821 F.3d at 1369 (internal quotation
 omitted). The Board correctly identified Comcast’s map-
 ping for the “speech recognition system” raised in reply as
 absent from Comcast’s petition. Compare J.A. 19604521 &
 19604524–25 with J.A.19604823–25. And Comcast has not
 come forward with a sufficient justification to excuse that
 failure. Thus, the Board acted within its broad discretion
 in declining to consider Comcast’s new reply arguments.
 See Intelligent Bio-Sys., 821 F.3d at 1369–70.
    We have considered Comcast’s remaining arguments
 regarding the IPR2018-00345 final-written decision and
 find them unpersuasive. Therefore, we affirm that deci-
 sion, which held that Comcast failed to show claims 14, 15,
 17–19, 25, 26, 53–55, 61, 62, and 64–66 were unpatentable.
                              II
     For IPR2018-00344, Comcast challenges the Board’s
 claim construction. It contends the Board erred in constru-
 ing “received back channel” in claim 1. To Comcast, the
 “received back channel” is merely a relabeled “back chan-
 nel.” Under the broadest reasonable interpretation stand-
 ard, we agree.
     Comcast’s posed construction is broader than the
 Board’s adopted construction and is consistent with the
 specification. The Board required Comcast to prove an
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 COMCAST CABLE COMMUNICATIONS     v. PROMPTU SYSTEMS        7
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 additional element, “to create a received back channel.”
 But, as Comcast argues, the broadest reasonable interpre-
 tation of “receiving said back channel to create a received
 back channel” is not so limited. One may read the “received
 back channel” as merely the “back channel” after being re-
 ceived. Under such a reading, the phrase “to create a re-
 ceived back channel” describes the result of “receiving” the
 “back channel.” Nothing in the claim’s plain language fore-
 closes such a reading. Nor does the written description
 narrow the claim’s plain language; in fact, the specification
 treats the “back channel” and “received back channel” as
 interchangeable. Compare ’196 patent at 40:1–2 (discuss-
 ing partitioning the “back channel”) with id. at 51:3–4
 (claiming portioning the “received back channel”). Alt-
 hough atypical and inartful, it is not unreasonable for the
 patentee to apply two different time frames to the same
 claim element, a “back channel” before receipt and a “re-
 ceived back channel” after receipt. And this construction
 does not result in surplusage because every claimed term,
 including “to create” and “received,” has meaning. See Bi-
 con, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir.
 2006) (“[C]laims are interpreted with an eye toward giving
 effect to all terms in the claim.”). Ultimately, the broadest
 reasonable interpretation of “received back channel” is a
 “back channel that has been received.”
     Because the IPR2018-00344 final-written decision is
 predicated on the Board’s erroneous construction, we va-
 cate and remand for the Board to consider the parties’ ar-
 guments under the correct construction.
                        CONCLUSION
     Based on the foregoing, we affirm-in-part, vacate-in-
 part, and remand.
   AFFIRMED-IN-PART, VACATED-IN-PART, AND
                 REMANDED
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 8      COMCAST CABLE COMMUNICATIONS   v. PROMPTU SYSTEMS
                                             CORPORATION


                         COSTS
     No costs.