       NOTE: This disposition is nonprecedential.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., TELEFONAKTIEBOLAGET 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.
                ______________________

              Decided: January 17, 2017
               ______________________

    MATTHEW D. POWERS, Tensegrity Law Group, LLP,
Redwood City, CA, argued for plaintiffs-appellants. Also
represented by AZRA HADZIMEHMEDOVIC, AARON M.
NATHAN, PAUL EHRLICH, LITAL LEICHTAG-FUKS, YI CHEN.

    PAUL D. CLEMENT, Kirkland & Ellis LLP, Washington,
DC, argued for defendants-cross-appellants. Also repre-
sented by GEORGE W. HICKS, JR., EDMUND GERARD
LACOUR, JR., CHRISTOPHER GEORGE MICHEL; JOSHUA C.
2                           WI-LAN USA, INC. v. ERICSSON, INC.




KRUMHOLZ, JACOB KEVIN BARON, Holland & Knight, LLP,
Boston, MA.
              ______________________

Before MOORE, O’MALLEY, and WALLACH, Circuit Judges.
    Opinion for the court filed by Circuit Judge WALLACH.
Concurring in part and dissenting in part opinion filed by
               Circuit Judge O’MALLEY.
WALLACH, Circuit Judge.
    The instant dispute returns to us a second time fol-
lowing 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 pa-
tent”), and 8,229,437 (“the ’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
Resolution Agreement (“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 that
the “MFL Provision only applies to Wi-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 “Ericsson’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-LAN USA, INC.   v. ERICSSON, INC.                     3



    On remand, the District Court construed claim terms
in the Patents-in-Suit. See Wi-LAN USA, Inc. v. Tele-
fonaktiebolaget TM Ericsson, No. 12-cv-23569-DMM, 2015
WL 6673742, at *3–13 (S.D. Fla. Jan. 13, 2015). Ericsson
then moved for summary judgment of non-infringement of
various claims (“the Asserted Claims”) 1 of the ’298 patent
and the ’014 patent (together, “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
entered summary judgment that (1) claims 8 and 18 of the
’437 patent were 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 non-infringement.
Ericsson cross-appeals the District Court’s decision that
the MFL Provision does 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.
                          BACKGROUND
    Before addressing the merits of the parties’ argu-
ments, we provide a brief 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.
4                            WI-LAN USA, INC. v. ERICSSON, INC.




                 I. The Bandwidth Patents
    The Bandwidth Patents are entitled “Methods and
Systems for Transmission of Multiple Modulated Signals
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 resources. ’298 patent,
Abstract. 2
     “The broadband wireless communication system facil-
itates 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 sta-
tion . . . and a plurality of . . . [CPEs] positioned at fixed
customer sites . . . throughout the coverage area of the
cell . . . .” Id. col. 2 ll. 2–8. The 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 all or a
substantial part of the subject-matter of the prior applica-
tion 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 (CCPA 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-LAN USA, INC.   v. ERICSSON, INC.                        5



quality of services requested by the customers served by
the CPEs.” Id. col. 2 ll. 16–19. “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 quality of services available to the customers are
variable and selectable.” Id. col. 2 ll. 20–21. The Band-
width Patents “reduce[] the amount of bandwidth that
must be set aside for these bandwidth allocation re-
quests.” Id. col. 9 ll. 38–40.
                       II. The ’437 Patent
     Entitled “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, Abstract. 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. The “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
ll. 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 leaves the coverage area. Id. col. 6 l. 26.
6                           WI-LAN USA, INC. v. ERICSSON, INC.




                        DISCUSSION
     Wi-LAN argues that (1) genuine issues of material
fact precluded 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 precluded non-
infringement summary judgment 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-Appellants’ 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). The Eleventh Circuit
reviews a district court’s grant of summary judgment de
novo. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir.
2005). Summary 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 exists 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 judg-
ment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th
Cir. 1995) (citation omitted).
WI-LAN USA, INC.   v. ERICSSON, INC.                      7



                      II. Wi-LAN’s Appeal
    Wi-LAN’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 grant-
ing summary judgment of invalidity for the ’437 patent
based on anticipation because there remained a genuine
dispute over material facts that the District Court im-
properly decided. See Appellants’ Br. 24–44. 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 Indus., 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 con-
struction as to the ’437 patent, see Appellants’ Br. 22–44.
Thus, we begin with the prior art. A reference is anticipa-
tory under 35 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 omitted).




    3    In passing the Leahy-Smith America Invents Act
(“AIA”), Congress amended § 102. See Pub. 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.
8                          WI-LAN USA, INC. v. ERICSSON, INC.




                     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 synchroniz-
ing the timing of communications between mobile users
and cell towers when “transferring a transaction in pro-
gress (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 ad-
vance 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 loca-
tion. 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 procedure.” 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 spec-
WI-LAN USA, INC.   v. ERICSSON, INC.                       9



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 mes-
sage.” J.A. 2394. Once the mobile station “receives this
message, [it] is able to start correctly transmitting normal
bursts.” J.A. 2394.
    Both 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. See 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
HANDOVER ACCESS message)] until it has received an
[8-bit   message      with   physical     resource     infor-
mation] . . . 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 Facts Bars Invalidity
        Summary Judgment on the ’437 Patent
    Before the District Court, the parties disagreed 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. Ac-



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.
10                         WI-LAN USA, INC. v. ERICSSON, INC.




cording to the District Court, although Mouly “supports
the statement that the RIL3-RR HANDOVER ACCESS
message is the only case where short access bursts are
used on a dedicated channel in a synchronous hando-
ver, . . . [it] does not support that this is also true with
asynchronous handovers.” J.A. 24 (internal quotation
marks and emphases omitted) (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
message [in Mouly] is sent on a RACH” for an asynchro-
nous handover. J.A. 25. Ultimately, the District Court
found the claims invalid as anticipated because Wi-LAN
failed to identify factual disputes regarding the limita-
tions 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 errors in its analysis,
both involving the use of improper evidence at the sum-
mary judgment stage. First, the District Court weighed
the evidence presented by Ericsson’s expert, Mark Lan-
ning, and Wi-LAN’s expert, Paul Min, against the disclo-
sures of Mouly and drew inferences from these facts. See
J.A. 24–27 (citing Mr. Lanning’s declaration and discuss-
ing 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 deter-
minations, the weighing of the evidence, and the drawing
WI-LAN USA, INC.   v. ERICSSON, INC.                     11



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 [(refer-
ring to a statement previously quoted by counsel)] said.”
J.A. 1415; see J.A. 1414, 2331. When read in toto, Dr.
Min’s testimony is not an admission, but rather is para-
phrasing what counsel quoted from Mouly.
     The dissent also states this “admission” includes Dr.
Min’s affirmance of Ericsson’s clarification “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 relat-
ed 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 hand-
over?” J.A. 1417. In response, Dr. Min stated that “[i]t
can be either way” and then proceeded to discuss both
asynchronous and synchronous handovers before making
12                           WI-LAN USA, INC. v. ERICSSON, INC.




    Next, the District Court cites to unsupported state-
ments 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 dur-
ing 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 far away the phone is, how it is moving,
and other physical information required to set up a dedi-
cated channel.”). These statements are attorney argu-
ment, 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 testimony 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 coun-
sel 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 argu-
ments were well taken.” Dissent at 2. Context, however,
demonstrates the District Court is relying 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 station
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 for
WI-LAN USA, INC.   v. ERICSSON, INC.                       13



Cambridge Wire Cloth Co., 919 F.2d 1579, 1583 (Fed. Cir.
1990) (criticizing the parties’ “reliance on attorney argu-
ment and counsel’s unsworn fact statements as ‘evi-
dence’”), superseded by statute on other grounds as stated
in Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d 1246,
1259 (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 evidence and cannot rebut the video and
other admitted evidence concerning Saint-Gobain’s manu-
facturing process.”).
             b. Material Facts Are in Dispute
     Apart from these errors, we also find that there re-
mains 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 burst “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 add-
ed).


synchronization, which in turn, is required for communi-
cation on a dedicated channel.” J.A. 24 n.17. The District
Court was no longer restating the parties’ arguments; it
was making findings.
14                         WI-LAN USA, INC. v. ERICSSON, INC.




    Additionally, both Wi-LAN’s and Ericsson’s experts
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 relied upon the GSM standard that states the
handover message is transmitted over a dedicated chan-
nel. 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)); see 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 statements are at least highly ambiguous as
to whether synchronous or asynchronous handover mes-
sages occur on a RACH or a dedicated channel. Addition-
ally, the parties’ experts demonstrate that there is a
dispute as to which interpretation is correct. Such ambi-
guity is best left for determination by a factfinder. Be-
cause the District Court erred in finding that there was
no genuine dispute as to any material fact, granting
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 Dis-
trict Court’s grant of summary judgment and remand for
further proceedings consistent with this opinion.
WI-LAN USA, INC.   v. ERICSSON, INC.                        15



      B. Non-Infringement of the Bandwidth Patents
       1. Standard of Review and Legal Framework
    A person infringes a patent if, without permission 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 court must determine whether the
accused product . . . contains each limitation of the
properly construed claim[], either literally or by a sub-
stantial equivalent.” Freedman Seating Co. v. Am. Seat-
ing Co., 420 F.3d 1350, 1356–57 (Fed. Cir. 2005) (citations
omitted).
    The 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 ordi-
nary and customary meaning” as they would be under-
stood by a person having ordinary skill in the art at the
“time of the invention.” Phillips v. AWH Corp., 415 F.3d
1303, 1312, 1313 (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 ex-
trinsic evidence.” Chi. Bd. Options Exch., Inc. v. Int’l Sec.
Exch., LLC, 677 F.3d 1361, 1366 (Fed. Cir. 2012) (citation
omitted). “[T]he specification is the single best guide to
the meaning of a disputed term, and . . . acts as a diction-
ary 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 citations omitted).
   The second step is a question of fact. Absolute Soft-
ware, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129–30
16                          WI-LAN USA, INC. v. ERICSSON, INC.




(Fed. Cir. 2011). Thus, a court properly may enter in-
fringement summary judgment “when no genuine issue of
material fact exists, in particular, when no reasonable
jury could find that every limitation recited in the proper-
ly 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-LAN raises arguments under each step of the in-
fringement inquiry. Appellants’ Br. 45–60. We address
each step in turn.
 2. The District Court Did Not Err in Construing “Band-
                         width”
    The District Court “accept[ed] Ericsson’s proposed
construction based on [another 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. Appel-
lants’ 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 units of time
and frequency within the radio spectrum that are used to
send that data.” Id. at 46.
    We 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–
14, 15–16 (claim 1); see id. col. 23 ll. 45–46, 47–48 (claim
4) (similar), 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 dependent claims 2 and 4
WI-LAN USA, INC.   v. ERICSSON, INC.                        17



of the ’298 patent describes “bandwidth” in a similar
fashion, id. col. 23 ll. 30–35, 39–41. None of these claims
contain an explicit restriction to “a particular time,” as
Wi-LAN argues. 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 component. First, the specification
discloses that bandwidth allocation can be structured as
“us[ing] either time division duplexing [(‘TDD’)] or fre-
quency 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 scheme, the specification
states that the “base station . . . 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) transmis-
sion periods.” Id. col. 6 ll. 44–49 (emphasis added). The
specification also incorporates a prior patent that discuss-
es why TDD systems are more advantageous. See id. col.
7 ll. 52–57 (discussing U.S. Patent No. 6,016,311 (“Gil-
bert”)); 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 sys-
tems,” as well as having “limited flexibility and limited
available frequency spectrum”), col. 6 ll. 45, 47–48 (dis-
cussing a “typical TDD system” that has “equal use of
time slot allocations for the uplink and downlink trans-
missions”). After demonstrating the advantages of a TDD
system over a FDD system, the specification only discuss-
es the claimed invention within a TDD scheme. 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 physical
18                          WI-LAN USA, INC. v. ERICSSON, INC.




slots [(‘PS’)]” where “the frame is one millisecond in
duration 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 certain 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 grouped into a contiguous CPE sched-
uled data block . . . .” Id. col. 9 ll. 21–25. “The [PS] allo-
cated 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 algorithms are used to help ensure data quality
when there “is insufficient bandwidth to transmit all the
queued data during the current TDD Frame.” Id. col. 19
ll. 50–51. “For each TDD frame, the [algorithm 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 uplink bandwidth to the CPEs.” Id. col.
21 ll. 2–4.
    Taken together, we find that the specification demon-
strates that the bandwidth requirements will vary over
time, depending on the needs of the consumer. We there-
fore affirm the District Court’s claim construction of
“bandwidth” to mean “data transmission resources in a
WI-LAN USA, INC.   v. ERICSSON, INC.                        19



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 District 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. 50–60. We agree.
              a. Ericsson’s Accused Products
    Wi-LAN accused Ericsson’s radio base station prod-
ucts, which practice the fourth generation telecommunica-
tions standard of Long Term Evolution (“LTE”), of
infringing the Bandwidth Patents. The radio base sta-
tions 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 (citations omitted).
   Two features of Ericsson’s accused products are rele-
vant to this appeal—the “buffer status report[] [(‘BSR’)]
and the Scheduler”:
    A [BSR] is a report periodically sent from the sub-
    scriber 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 in-
    dividual . . . message to each subscriber unit. . . .
    That message contains all the information a sub-
    scriber unit needs to transmit its data, and also
    contains retransmission commands that the sub-
    scriber unit must follow.
20                          WI-LAN USA, INC. v. ERICSSON, INC.




J.A. 9 (citations and footnote omitted).
               b. The District Court’s Errors
    The District Court’s opinion contains two errors that
preclude the entry of summary judgment. The District
Court determined that Wi-LAN failed to identify a genu-
ine 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 conclu-
sion, 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 in-
     teger that approximates the bytes of data availa-
     ble for uplink transmission. . . . In other words,
     the BSR merely reports an approximation of how
     much data is available for transmission on the up-
     link.
J.A. 14 (footnote and citations omitted). The District
Court further stated that “[a]ll of the [A]sserted [C]laims
[of the Bandwidth Patents] require that Ericsson’s [radio
base stations] identify in the bandwidth request a re-
quested amount of bandwidth[.]” J.A. 15 (emphasis
added) (internal quotation marks and citations omitted).
In light of this evidence, the District Court held that
Ericsson 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 (“The [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.’” (citations
WI-LAN USA, INC.   v. ERICSSON, INC.                     21



omitted)). 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 supported its conclusion that no bandwidth is
requested by the Ericsson products.
    The District Court erred in entering summary judg-
ment because it ignored conflicting evidence in the record
and placed greater weight on Ericsson’s evidence. As 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
Ericsson’s Motion for Summary Judgment).             In this
Opposition, Wi-LAN further stated that “Dr. Min ex-
plains[] ‘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 buffers . . . and
[thus] . . . the base station will respond by granting band-
width in response to the BSR.” J.A. 2246 (citation omit-
ted); 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 band-
width [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. The District Court rejected Wi-LAN’s evidence be-
cause “it merely indicates that the number of bytes of
data reported in a BSR is a factor [that radio base sta-
tions] use in calculating the number of [physical resource
blocks] to allocate to subscriber units.” J.A. 15.
    Taken together, we find that the District Court
weighed conflicting evidence and improperly credited
Ericsson’s evidence when reaching its conclusion that the
accused products do not request bandwidth. See Ander-
22                         WI-LAN USA, INC. v. ERICSSON, INC.




son, 477 U.S. at 255. We vacate the grant of summary
judgment and remand for further proceedings consistent
with this opinion.
               III. Ericsson’s Cross-Appeal
    In its cross-appeal, Ericsson challenges only one as-
pect of the District Court’s decision—i.e., whether 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 con-
strued 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 when the intention of the parties can be
gathered from the instrument itself.” West, Weir & Bar-
tel, Inc. v. Mary Carter Paint Co., 255 N.E.2d 709, 711–12
(N.Y. 1969) (citation omitted). “In interpreting a con-
tract[,] the court should examine the entire agreement
and consider the relation of the parties and the circum-
stances under which it was executed.” William C. Atwa-
ter & 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 citation
WI-LAN USA, INC.   v. ERICSSON, INC.                    23



omitted).
  B. The District 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 applied
this court’s previous holding regarding the PCRA between
Ericsson and Wi-LAN. The District Court stated that the
“‘MFL Provision only applies to Wi-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 omit-
ted) (quoting Wi-LAN, 574 F. App’x at 940). “Ericsson
does not contend that the [Patents-in-Suit] were owned or
controlled by Wi-LAN as of the effective date of the
PCRA.” J.A. 12. Rather, the District Court found that “it
is undisputed that Wi-LAN 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 Once the PCRA was triggered,



    7   Wi-LAN owned or controlled the ’759 patent be-
fore the November 1, 2007 effective date of the PCRA.
See J.A. 1756 (effective date of the PCRA); J.A. 1789
(assignment history of the ’759 patent).
    8   The UMTS “standard broadly defines third gener-
ation cellular network specifications and protocols—more
commonly known as ‘3G.’ The UMTS standard consists of
24                          WI-LAN USA, INC. v. ERICSSON, INC.




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 ’759 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 the
terms of the BelAir License “extend . . . to the [Patents-in-
Suit], 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 Er-
icsson is not entitled to a most favored licensee status as
to the Patents-in-Suit, but for different reasons than those
articulated by the District Court. We find that Ericsson is
entitled to a most favored licensee status only for the
patent or patents that 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 li-
     censing 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 stand-
ard that specifically relates to the transfer of data be-
tween the network and a mobile device.” Id.
WI-LAN USA, INC.   v. ERICSSON, INC.                       25



    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 [Er-
    icsson’s] PRODUCTS including UMTS/HSPA
    PRODUCTS and Wi-LAN agrees to grant such a
    license at most-favored licensee status as com-
    pared 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 (inter-
nal quotation marks, brackets, and citation omitted). “[A]
court should not adopt an interpretation which will oper-
ate 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 altera-
tion omitted). Thus, in interpreting the relevant passage
of the MFL Provision, we must consider the entire con-
tract and choose the interpretation “which best accords
with the sense of the remainder of the contract.” Rent-
ways, 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 the
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 interpreta-
tion 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 addresses the “licensing of pa-
tents not already addressed under this Agreement,”
“which are infringed or alleged to be infringed by
UMTS/HSPA PRODUCTS.” J.A. 1760. Within the same
26                          WI-LAN USA, INC. v. ERICSSON, INC.




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. Reading the sentence in its entirety, the scope of
the license would cover the patent or patents asserted by
Wi-LAN against Ericsson for infringement, which is
limited to pre-PCRA patents, such as the ’759 patent.
And reading the scope of the section to apply to any post-
PCRA patent would result in an unreasonable interpreta-
tion of the MFL Provision as a whole.
    Granting a license to Ericsson on the same terms as
the BelAir License 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. The 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 Pa-
tents-in-Suit.
                        CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the final judg-
ment of the U.S. District Court for the Southern District
of Florida is
  VACATED-IN-PART, AFFIRMED-IN-PART, AND
               REMANDED
                           COSTS
     Each party shall bear its own costs.
        NOTE: 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., TELEFONAKTIEBOLAGET 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’MALLEY, Circuit Judge, concurring in part, dissenting
in part.
    Respectfully, I must disagree with two of the conclu-
sions 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 analy-
sis, 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.
2                          WI-LAN USA, INC.   v. ERICSSON, INC.



                             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 Ericsson’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 predicated 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 Ericsson’s counsel 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 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 rely on these statements when making its final
determination as to what the Mouly reference discloses,
which comes well after the court’s references to state-
ments made by counsel.
    The majority claims that the context provided by foot-
note 17 shows that the district court relied on the argu-
ment of counsel to make findings. Maj. Op. at 12–13 n.6.
But the 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
dedicated channel” does not rely on statements by coun-
sel. 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 admis-
WI-LAN USA, INC.   v. ERICSSON, INC.                     3



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 ex-
pert 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 predi-
cating summary judgment on binding admissions.
    Specifically, counsel asked Dr. Min about the teach-
ings 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 for-
    bidden 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 station
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 state-
ment 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.
4                           WI-LAN USA, INC.   v. ERICSSON, INC.



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 af-
    terward. 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 burst 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 misun-
derstand its place in the analysis. Dr. Min admits that a
mobile device cannot transmit data on a dedicated chan-
nel until after synchronization has been completed. 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 synchroniza-
tion, his testimony can only support that result given the
teachings 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 synchro-
nization. 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 mobile
WI-LAN USA, INC.   v. ERICSSON, INC.                      5



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 dedicat-
ed channel,” J.A. 826, must apply only to synchronized
handovers. In asynchronous scenarios, the RIL3-RR
HANDOVER ACCESS message sent prior to synchroniza-
tion, 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 includes at least seventeen pages
dedicated specifically to handover execution. As ex-
plained 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), only decided whether the assertion of after-
acquired patents triggers the MFL provision. Important-
ly, 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 Florida
6                          WI-LAN USA, INC.   v. ERICSSON, INC.



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. Like 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 patents. 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 provi-
sion 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 incor-
porate 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 the district court properly inter-
preted 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 pa-
tents.
                            IV.
    For these reasons, I concur-in-part and dissent-in-
part.
