  United States Court of Appeals
      for the Federal Circuit
             __________________________

  INTERDIGITAL COMMUNICATIONS, LLC, AND
 INTERDIGITAL TECHNOLOGY CORPORATION,
                Appellants,

                          v.
     INTERNATIONAL TRADE COMMISSION,
                 Appellee,

                         and
     NOKIA INC. AND NOKIA CORPORATION,
                  Intervenors.
             __________________________

                     2010-1093
             __________________________

   Appeal from the United States International Trade
Commission in Investigation No. 337-TA-613.
             ___________________________

               Decided: August 1, 2012
             ___________________________

    DONALD R. DUNNER, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
appellants. With him on the brief were ALLEN M. SOKAL,
DON O. BURLEY, SMITH R. BRITTINGHAM IV, and HOUTAN
KHALILI ESFAHANI; and CHRISTOPHER P. ISAAC, of Reston,
Virginia. Of counsel was KARA F. STOLL. Of counsel on
INTERDIGITAL COMMUNICATIONS   v. ITC                      2


the brief were SETH P. WAXMAN, WILLIAM G. MCELWAIN,
Wilmer Cutler Pickering Hale and Dorr LLP, of Washing-
ton, DC; and MARK C. FLEMING and LAUREN B. FLETCHER,
of Boston, Massachusetts.

    MEGAN M. VALENTINE, Attorney, Office of General
Counsel, United States International Trade Commission,
of Washington, DC, argued for appellee. With her on the
brief were JAMES M. LYONS, General Counsel, and
ANDREA C. CASSON, Assistant General Counsel.

    PATRICK J. FLINN, Alston & Bird LLP, of Atlanta,
Georgia, argued for intervenors. With him on the brief
were JOHN HAYNES; and ROSS R. BARTON, of Charlotte,
North Carolina. Of counsel were PAUL F. BRINKMAN, of
Washington, DC; and MADISON C. JELLINS, of Palo Alto,
California.
              __________________________

  Before NEWMAN, MAYER, and BRYSON, Circuit Judges.
   Opinion for the court filed by Circuit Judge BRYSON.
   Dissenting opinion filed by Circuit Judge NEWMAN.

BRYSON, Circuit Judge.

    InterDigital Communications, LLC, and InterDigital
Technology Corporation (collectively, “InterDigital”)
appeal from an order of the International Trade Commis-
sion finding that InterDigital’s patents, U.S. Patent Nos.
7,190,966 (“the ’966 patent”) and 7,286,847 (“the ’847
patent”), were not infringed by Nokia Inc. and Nokia
Corporation (collectively, “Nokia”). We hold that the
Commission erred in construing certain critical claim
terms in both patents. We therefore reverse the Commis-
sion’s order finding no infringement and remand this case
to the Commission for further proceedings.
3                      INTERDIGITAL COMMUNICATIONS    v. ITC


                             I

    The patents in suit, which are directed to wireless cel-
lular telephone technology, are both entitled “Method and
Apparatus for Performing an Access Procedure.” They
share a common specification. The patents focus on
apparatus and methods for controlling transmission
power during the “handshake” portion of a wireless cellu-
lar communication, which is the portion of the communi-
cation in which a cellphone establishes contact with a
cellular base station in order to initiate a cellphone call.
The claimed invention operates within a system that uses
Code Division Multiple Access (“CDMA”) to allow multiple
cellphones (referred to as “subscriber units”) within a
certain geographical area to use the same portion of the
radio frequency spectrum simultaneously. Unlike its
predecessor systems, CDMA does not separate communi-
cations from different subscriber units by assigning them
different time slots or different frequencies on the radio
frequency spectrum. Instead, it assigns a unique code to
each communication link, which is known as a CDMA
channel. That code is then used to encode and decode the
data-carrying signal that transmits the telephonic mes-
sages between the cellphone and the base station. The
encoding process allows data signals from multiple
sources to be transmitted at the same time and over the
same frequency, while enabling the base station to use
the special codes to separate the data signals from each
source for further processing.

    The CDMA system is able to use a single portion of
the frequency spectrum for multiple simultaneous com-
munications by employing a process known as “spread-
ing.” As described in the common specification, each
subscriber unit’s baseband data signal (the signal that
carries the telephonic communications) “is multiplied by a
INTERDIGITAL COMMUNICATIONS   v. ITC                      4


code sequence, called the ‘spreading code,’ which has a
much higher rate than the data.” ’966 patent, col. 2, ll. 3-
5. In other words, the spreading code modifies the data
signal so that the modified signal is transmitted at a
faster rate and contains more information. That process
results in “a much wider transmission spectrum than the
spectrum of the baseband data signal,” id., col. 2, ll. 7-9,
which enables the system to carry multiple communica-
tions over the same frequency at the same time and
allows the base station to more easily extract the con-
stituent baseband data signals.

    One problem associated with such a system is that
signals within the same geographical area can interfere
with one another, causing data loss. To combat that
problem and to reduce unnecessary power consumption,
the ’966 and ’847 patents use a “power ramp-up” strategy,
which limits the power level of initiation messages sent
during the handshake period. The power ramp-up begins
when the subscriber unit transmits a unique code signal
at a power level known to be below the power level needed
for detection by the base station. The subscriber unit
then transmits the code signal at successively higher
power levels; once the power level reaches the point at
which the base station is able to detect the signal, the
base station sends an acknowledgement signal to the
subscriber unit. When the subscriber unit receives the
acknowledgment signal, it fixes the current power level as
the designated power level for future communications.
The connection is then completed, the subscriber unit and
the base station are synchronized, and the data constitut-
ing the telephonic message is ready to be transmitted.

    The ’847 patent is a continuation of the ’966 patent.
Claim 1 of the ‘966 patent, which is representative in
5                      INTERDIGITAL COMMUNICATIONS   v. ITC


pertinent part of all the claims asserted in this action,
recites:

    1.  A wireless code division multiple access
    (CDMA) subscriber unit comprising:

        a transmitter configured such that, when the
    subscriber unit is first accessing a CDMA network
    and wants to establish communications with a
    base station associated with the network over a
    communication channel to be indicated by the
    base station, the transmitter successively trans-
    mits signals until the subscriber unit receives
    from the base station an indication that a trans-
    mitted one of the signals has been detected by the
    base station, wherein each transmission of one of
    the signals by the transmitter is at an increased
    power level with respect to a prior transmission of
    one of the signals;

        the transmitter further configured such that
    the transmitter transmits to the base station a
    message indicating to the base station that the
    subscriber unit wants to establish the communi-
    cations with the base station over the communica-
    tion channel to be indicated by the base station,
    the message being transmitted only subsequent to
    the subscriber unit receiving the indication,

        wherein each of the successively transmitted
    signals and the message are generated using a
    same code; and

        wherein each of the successively transmitted
    signals is shorter than the message.
INTERDIGITAL COMMUNICATIONS     v. ITC                        6


     The common specification describes an embodiment of
the invention in which the base station transmits a “pilot
code” to all of the subscriber units within the transmitting
range of the base station. The “pilot code” is described as
a “spreading code which carries no data bits.” ’966 pat-
ent, col. 5, line 10. The subscriber unit then synchronizes
its “transmit spreading code” to the base station pilot
code. Id., col. 5, ll. 22-32. Once the subscriber unit and
the base station are synchronized, the subscriber unit can
initiate a communication by transmitting an “access
code,” which is “a known spreading code transmitted from
a subscriber unit . . . to the base station . . . during initia-
tion of communications and power ramp-up.” Id., col. 6,
ll. 21-23. Upon receipt of the access code, the base station
searches through the possible phases of the access code in
order to acquire the correct phase so as to enable the
initiation of data communication. Id., col. 6, ll. 23-38.

    When initiating a communication in that embodi-
ment, the subscriber unit “continuously increases the
transmission power while retransmitting the access
code . . . until it receives an acknowledgement from the
base station.” ’966 patent, col. 6, ll. 57-62. After the
minimum power for reception is reached and the base
station acquires the access code, the base station trans-
mits an access code detection acknowledgment signal to
the subscriber unit. Upon receipt of that signal, the
subscriber unit stops the power increase, and two-way
communication is established. Id., col. 6, line 62 to col. 7,
line 5.

    Because the access code is long and the base station
must acquire the correct phase of the access code before it
can proceed with the initiation process, the specification
explains that the previously described embodiment can
lead to “power overshoot,” i.e., usage of a power level that
7                       INTERDIGITAL COMMUNICATIONS    v. ITC


is substantially higher than that needed for reliable
communication. Power overshoot can result in interfer-
ence with the communications from other subscriber units
in the same geographical area. ’966 patent, col. 7, ll. 11-
34. To address that problem, the specification describes a
preferred embodiment of the invention that uses “short
codes” and a “two-stage communication link establish-
ment procedure to achieve fast power ramp-up without
large power overshoots.” Id., col. 7, ll. 41-44.

    In that embodiment, when the subscriber seeks to es-
tablish a communication link, the subscriber unit starts
transmitting a short code at a power level known to be
below the power level required for detection by the base
station. The subscriber unit then “continuously increases
the transmission power level while retransmitting the
short code” until it receives an acknowledgement from the
base station that the short code has been detected. ’966
patent, col. 7, line 65, to col. 8, line 4. Because the short
code can be transmitted much more frequently during a
particular period of time, the short code is quickly de-
tected and the transmission power overshoot is mini-
mized. Id., col. 8, ll. 5-14.

    When the base station detects the short code from the
subscriber unit, it transmits a short-code-detection-
indication signal to the subscriber unit, at which point the
subscriber unit stops transmitting the short code and
starts transmitting a periodic access code. The starting
point of the short code is synchronized with the starting
point of the access code, so that acquiring the short code
facilitates the base station’s task of acquiring the proper
phase of the access code. The subscriber unit continues to
increase the transmission power while transmitting the
access code, but at a reduced rate. When the base station
detects the correct phase of the access code, it sends an
INTERDIGITAL COMMUNICATIONS      v. ITC                         8


acknowledgement to the subscriber unit, whereupon the
ramp-up process is concluded and the subscriber unit
proceeds to send call-setup messages to the base station.
’966 patent, col. 8, line 32, to col. 9, line 13; col. 10, ll. 23-
53. The specification explains that the “short codes” in
that embodiment “are generated from a regular length
spreading code.” Id., col. 9, ll. 20-21.

                                II

    InterDigital filed a complaint with the Commission in
2007 asserting that Nokia had violated section 337 of the
Tariff Act of 1930, 19 U.S.C. § 1337, by importing Wide-
band CDMA handsets that infringed the ’966 and ’847
patents. The case was assigned to an administrative law
judge who conducted an evidentiary hearing and ulti-
mately ruled in Nokia’s favor, finding that InterDigital
had failed to prove infringement.

     The administrative law judge began by construing the
disputed claim terms. He first defined the term “code” to
mean “a sequence of chips,” i.e., a sequence of transmitted
digital bits. He then ruled that the term “code” as used in
the patents in suit is limited to “a spreading code or a
portion of a spreading code.” In the claim construction
portion of his order, the administrative law judge con-
strued the term “spreading code” to mean “a sequence of
chips.” In the infringement portion of his order, however,
the administrative law judge elaborated on that defini-
tion.    In discussing Nokia’s wireless communication
initiation system, the administrative law judge found that
the codes used in that system are not spreading codes
because they are not “used or intended to be used to
increase the bandwidth of another signal” and because
those codes do not spread data or perform channelization
and are not generated from a spreading code. Instead,
9                      INTERDIGITAL COMMUNICATIONS   v. ITC


the administrative law judge found that Nokia’s products
transmit signals from the subscriber units using a
“scrambling code,” which is not used or intended to be
used to increase the bandwidth of another signal and thus
does not satisfy the administrative law judge’s definition
of “spreading code.” The administrative law judge also
found that Nokia’s preamble signatures are not transmit-
ted in the form of spreading codes, because they do not
spread data nor do they perform any other form of chan-
nelization, i.e., they do not divide the transmission me-
dium for allocation to multiple parties. For that reason,
and because the claim term “code” in all the asserted
claims was interpreted to be restricted to spreading codes,
the administrative law judge found that Nokia’s system
did not infringe the asserted claims.

    The administrative law judge construed the term “in-
creased power level” to mean that “the power level of a
transmission is higher than that of a previous transmis-
sion.” In light of the purpose of the invention, he added
the requirement that “the power level of a code signal
increases during transmission.” By that construction, the
administrative law judge interpreted the claims to require
that the power level of the signal be increased continu-
ously throughout the ramp-up period in which transmis-
sions are being sent from the subscriber unit, both during
the intervals between transmissions and during the
course of the individual transmissions themselves. The
administrative law judge found that Nokia’s products do
not continuously increase the power level of the code
signal during the ramp-up process. In Nokia’s products,
the power increases are intermittent, and the power is not
increased during the transmission of each individual
signal. For that reason as well, the administrative law
judge found that Nokia’s products did not infringe Inter-
Digital’s patents. Based on those findings, the adminis-
INTERDIGITAL COMMUNICATIONS      v. ITC                  10


trative law judge entered a final initial determination
finding no violation of section 337.

     On petitions for review, the Commission took no posi-
tion with respect to the administrative law judge’s deter-
minations of patent validity and his resolution of certain
claim construction issues unrelated to this appeal. It
affirmed the administrative law judge’s determination of
no violation of section 337, however. InterDigital then
appealed to this court.

                            III

                             A

    Claim terms are generally given their ordinary mean-
ing as understood by persons skilled in the art in question
at the time of the invention. See Phillips v. AWH Corp.,
415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). The
plain meaning of claim language ordinarily controls
unless the patentee acts as his own lexicographer and
provides a special definition for a particular claim term or
the patentee disavows the ordinary scope of a claim term
either in the specification or during prosecution. Id. at
1316.

    Neither of those exceptions applies in this case. Nei-
ther the specification nor the prosecution history contains
a restrictive definition of “code,” and the patentee did not
at any point disavow the broader interpretation of that
term. Nor is there any other persuasive justification for
construing the claim term “code” to include only a spread-
ing code. The normal rule giving claim terms their ordi-
nary meaning therefore governs here. The record reflects
that the plain meaning of “code” to one of skill in the
cellphone communications art is a sequence of bits (if the
11                      INTERDIGITAL COMMUNICATIONS    v. ITC


ones and zeros are transmitted at the “data rate”) or chips
(if the ones and zeros are transmitted at the faster “chip
rate”). Thus, by its plain language the term “code” is
broad enough to cover both a spreading code and a non-
spreading code.

    Besides the nonrestrictive nature of the ordinary
meaning of the claim term “code,” the doctrine of claim
differentiation provides a powerful argument against
construing the term “code” restrictively, to mean “spread-
ing code.” Independent claim 1 of the ’966 patent uses the
term “code,” and dependent claim 5 recites, in full, “The
subscriber unit of claim 1 wherein the same code is a
spreading code.” The clear implication of narrowing the
term “code” in dependent claim 5 by limiting the claim
scope to cases in which the claimed code “is a spreading
code” is that the term “code” in the independent claim is
not limited to a spreading code.

    The doctrine of claim differentiation is at its strongest
in this type of case, “where the limitation that is sought to
be ‘read into’ an independent claim already appears in a
dependent claim.” Liebel-Flarsheim Co. v. Medrad, Inc.,
358 F.3d 898, 910 (Fed. Cir. 2004); see Wenger Mfg., Inc.
v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1233 (Fed. Cir.
2001) (“Claim differentiation . . . is clearly applicable
when there is a dispute over whether a limitation found
in a dependent claim should be read into an independent
claim, and that limitation is the only meaningful differ-
ence between the two claims.”). Although the doctrine of
claim differentiation creates only a presumption, which
can be overcome by strong contrary evidence such as
definitional language in the patent or a clear disavowal of
claim scope, neither type of contrary evidence is present
here. To the contrary, the presumption is “especially
strong” in this case, because “the limitation in dispute is
INTERDIGITAL COMMUNICATIONS     v. ITC                      12


the only meaningful difference between an independent
and dependent claim, and one party is urging that the
limitation in the dependent claim should be read into the
independent claim.” Sunrace Roots Enter. Co. v. SRAM
Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003). The adminis-
trative law judge’s construction of the term “code” in
claim 1 as meaning “spreading code” renders claim 5
superfluous, a result that counsels strongly against that
construction. See Comark Commc’ns, Inc. v. Harris Corp.,
156 F.3d 1182, 1187 (Fed. Cir. 1998).

     The logic of the situation is as powerful as it is simple:
if the term “code” means “spreading code,” then claim 1
recites a device in which the signals are “generated using
a same [spreading] code,” and claim 5 covers exactly the
same subject matter. If the claim drafter had intended to
limit claim 1 to spreading codes, as the administrative
judge concluded, it would have been much simpler for the
drafter to explicitly recite the “spreading code” limitation
in claim 1 and omit dependent claim 5 altogether. 1

    Nokia (but not the Commission) argues that claim dif-
ferentiation has no application in this case because the
reference to “code” in claim 1 of the ’966 patent includes
not only spreading codes but also portions of a spreading
code, while the reference to “spreading code” in claim 5 of
the ’966 patent requires the code to be a complete spread-
    1
        A related point is that the term “code” is a general
term that is used with several different modifiers in the
patents (“pilot code,” “access code,” and “spreading code”).
Such general descriptive terms are ordinarily given their
full meaning; “modifiers will not be added to broad terms
standing alone.” Johnson Worldwide Assocs., Inc. v.
Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999); see Phil-
lips, 415 F.3d at 1314 (reference in claim to steel baffles
“strongly implies that the term ‘baffles’ does not inher-
ently mean objects made of steel”).
13                      INTERDIGITAL COMMUNICATIONS    v. ITC


ing code. Thus, Nokia contends, the two claims cover
different subject matter even if the term “code” is con-
strued to mean “spreading code.” That argument fails
because the specification treats a segment of a spreading
code as a spreading code regardless of its length. For
example, although the specification describes the short
codes as being “generated from a regular length spreading
code,” ’966 patent, col. 9, ll. 20-21, it describes the short
codes as themselves being spreading codes, id., col. 7, ll.
44-46 (“The spreading code transmitted by the subscriber
unit . . . is much shorter than the rest of the spreading
codes (hence the term short code) . . . .”). Thus, claim 5
does not exclude non-spreading codes and short segments
of spreading codes; it excludes all non-spreading codes,
and in so doing, indicates that the term “code” in claim 1
of the ’966 patent includes non-spreading codes.

    The administrative law judge (like the Commission in
its brief) recognized that the presumption created by the
doctrine of claim differentiation applies in this case.
Nonetheless, he concluded that the presumption was
overcome because “the asserted claims each relate to a
CDMA system, and . . . the specification discloses that
CDMA systems use spreading codes.” In addition, the
administrative law judge relied on the fact that the com-
mon specification did not identify any codes that “are not
spreading codes or portions of spreading codes.”

     Neither of those reasons overcomes the strong pre-
sumption created by claim differentiation in this case.
The fact that spreading codes are used in CDMA systems
does not mean that every code used in a CDMA system
must be a spreading code. That is particularly true of the
initiation codes, which the specification makes clear are
not used to spread data signals. Indeed, Nokia’s system is
a CDMA system that the administrative law judge found
INTERDIGITAL COMMUNICATIONS       v. ITC                        14


does not rely exclusively on spreading codes in the initia-
tion process, so there is no inherent feature of CDMA
systems that requires that all codes used in such a system
must be spreading codes.

    The administrative law judge relied heavily on the
fact that the preferred embodiments described in the
common specification refer to the access code and short
code as spreading codes or as being generated from
spreading codes and that the common specification does
not identify any non-spreading codes that are used in
embodiments of InterDigital’s patents. Moreover, the
administrative law judge noted that InterDigital’s expert
witness characterized the short code as a type of “spread-
ing code.” Based in part on that testimony, the adminis-
trative law judge concluded that the common specification
of the patents in suit contains no reference to any code
that is not a “spreading code” and that the term “code” in
the claims should therefore be interpreted to mean
“spreading code.”

     The problem with that analysis is that the specifica-
tion and the expert witnesses did not use the same defini-
tion of “spreading code” as the administrative law judge.
Although the administrative law judge defined a “spread-
ing code” as a code that is “used or intended to be used to
increase the bandwidth of another signal,” the common
specification indicates that the patentees did not adopt
such a construction of the term. As noted, the specifica-
tion describes various codes, such as pilot codes and short
codes, as “spreading codes” even though they carry no
data and are not intended to do so. See ’966 patent, col. 5,
ll. 9-10; col. 7, ll. 44-49. If a code carries no data, i.e., if it
is not modulated with a data signal, there is no signal
whose bandwidth is increased or is intended to be in-
creased. Experts for both InterDigital and Nokia con-
15                     INTERDIGITAL COMMUNICATIONS    v. ITC


firmed that some of the codes described in the specifica-
tion, such as the short codes and the access codes, are
examples of spreading codes even though they do not
spread, or modulate, data. As one of the inventors ex-
plained, he regarded all of the codes used in broadband
CDMA systems as spreading codes even though some of
them are “reference codes” that “do not spread anything.”
Thus, contrary to the definition of spreading codes
adopted by the administrative law judge, the patents (and
the expert witnesses) used the term “spreading code” to
mean a code that is transmitted at the chip rate (the
faster rate at which encoded telephonic communication
data bits are transmitted as a sequence of chips) rather
than at the data rate (the slower rate at which telephonic
communication data bits are transmitted), regardless of
whether the code is used or intended to be used to spread
data.

    The administrative law judge’s construction of the
term “spreading code” as applying only to a code that is
used or intended to be used to increase the bandwidth of
another signal creates a problem with the patents in suit.
Because the short codes and access codes described in the
common specification do not spread data, adoption of the
administrative law judge’s definition of spreading codes,
together with his construction of the term “code” as lim-
ited to spreading codes, would mean that neither of the
preferred embodiments described in the common specifi-
cation would fall within the scope of the claims. As this
court has frequently observed, that is a result that “is
rarely, if ever, correct.” Pfizer, Inc. v. Teva Pharm., USA,
Inc., 429 F.3d 1364, 1374 (Fed. Cir. 2005); Vitronics Corp.
v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).

   The disconnect between the specification and the ad-
ministrative law judge’s definition of spreading codes led
INTERDIGITAL COMMUNICATIONS   v. ITC                    16


the administrative law judge to conclude both (1) that the
patents were limited to spreading codes, based on the
repeated references to spreading codes in the specifica-
tion, and (2) that Nokia’s system did not use spreading
codes, based on the fact that Nokia’s preamble codes do
not spread data and are not generated from a spreading
code. Thus, it appears that the administrative law judge
was in effect using different definitions of the term
“spreading code” for purposes of claim construction and
infringement. In order for the question of infringement to
be appropriately determined, it is critical that the terms
“code” and “spreading code” are assigned the same mean-
ing both in the patents and in the analysis of the accused
system. Because that was not done in this case, that
issue will need to be revisited on remand.

     To be sure, the patents contain no express definition
of “spreading code,” and it appears from the evidence
before the administrative judge that the term “spreading
code” is used somewhat loosely by those working in the
field of cellular communications. For example, although
scrambling codes of the sort used in Nokia’s accused
devices do not spread data, the evidence showed that such
codes, which are transmitted at the chip rate, are fre-
quently referred to as spreading codes. It may well be
that it was because of the lack of a precise definition for
the term “spreading code” among those working in the
field that the patentees consistently chose to use the term
“code,” rather than “spreading code” in the claims (except
for dependent claim 5 of the ’966 patent). That considera-
tion adds further force to InterDigital’s argument that the
claim term “code” should have been given its ordinary
meaning and that the asserted claims should not have
been limited to devices that use “spreading codes,” par-
ticularly if that term is defined restrictively to apply to
17                     INTERDIGITAL COMMUNICATIONS    v. ITC


codes that are used or intended to be used to increase the
bandwidth of another signal.

     Moreover, contrary to Nokia’s suggestion, there is no
sharp distinction between a spreading code, as that term
is used in the patents, and a scrambling code. In fact,
Nokia’s scrambling code operates in a manner that is
substantially similar to a spreading code. The adminis-
trative law judge found that spreading codes are intended
to spread data because they have a higher chip rate than
the data signals they modulate. As shown in Nokia’s
technical specifications, Nokia’s scrambling code operates
at the faster chip rate and would create a rate differential
if it were applied to the original, pre-spread data signal.
The only reason that rate differential is not seen in
Nokia’s system is because the scrambling code is applied
to a signal that has already been modulated to the chip
rate via a spreading code.

                             B

    The second claim construction issue raised by Inter-
Digital has to do with the claim limitation that requires
that “each transmission of one of the signals by the
transmitter is at any increased power level with respect
to a prior transmission of one of the signals.” ’966 patent,
claim 1. The administrative law judge construed the term
“increased power level” to require that the power level
used to transmit the ramp-up signals be increased con-
tinuously, including during individual signal transmis-
sions, rather than solely during the interim periods
between individual transmissions. By construing the
term in that manner, the administrative law judge lim-
ited the patents to embodiments featuring continuous
increases in power throughout the ramp-up period. Doing
so had the effect of excluding systems, such as Nokia’s
INTERDIGITAL COMMUNICATIONS    v. ITC                      18


system, that employ discrete power increases during the
ramp-up process, in which the power is increased between
transmissions but not during the course of each transmis-
sion.

     Claim 1 of the ’966 patent recites that “each transmis-
sion of one of the signals by the transmitter is at an
increased power level with respect to a prior transmission
of one of the signals.” Claim 5 of the ’847 patent contains
similar language. The administrative law judge initially
noted that the plain language of that claim is broad
enough to cover both continuous and discrete increases in
signal power levels. In his ultimate claim construction
ruling, however, the administrative law judge limited the
phrase “increased power level with respect to a prior
transmission of one of the signals” to continuous increases
in power because he regarded that feature as “an integral
part of the invention.” The administrative law judge
based that conclusion on language in the specification
referring to “continuously increasing the transmit power
level while retransmitting the short code,” ’966 patent,
col. 7, line 66, to col. 8, line 1, and on the purpose of the
invention to reduce power overshoot.

    Those factors are not sufficient to overcome the plain
language of the claims, which clearly covers both continu-
ous and stepped power increases. First, the reference to
“continuously increasing the transmit power level while
retransmitting the short code” occurs in the context of a
preferred embodiment and does not purport to describe
the limits of the invention as a whole. In addition, the
use of the term “continuously” does not mandate the
interpretation that the power increases must continue
even during transmissions; the patents also use the term
“continually” to describe the increases in the power level,
’966 patent, col. 7, ll. 16-18, and that term refers to events
19                     INTERDIGITAL COMMUNICATIONS   v. ITC


that recur intermittently, rather than events that occur
without interruption. The specification therefore does not
clearly restrict the scope of the invention to a system in
which the power increases continue in the course of each
transmission.

    Second, while reducing power overshoot is an impor-
tant objective of the patents in suit, the invention
achieves that objective principally through the use of
short codes, which decrease the amount of time required
to transmit each signal, thus reducing the potential for
power overshoot. The common specification discloses
embodiments in which power increases occur during
signal transmission, but there is nothing in the specifica-
tion indicating that the patentee intended to limit the
claimed invention to embodiments in which the power
increase occurs during the course of individual signal
transmissions.

    Finally, Nokia and the Commission point to the in-
ventors’ “conception documents” showing sketches of a
“stair-step” system of transmission. They argue that
those sketches show that “the inventors were clearly
aware of both the continuous power level increase dis-
closed in the . . . patents and the step-wise power level
increase that the claims allegedly cover.” By choosing not
to disclose the latter method in the patents, they argue,
InterDigital must be deemed to have excluded stepped
power increases from the scope of its invention. That
argument, however, depends on the conclusion that the
claims do not, by their plain language, include both in-
termittent and continuous increases in power. Because
we conclude that the claim language is broad enough to
include both embodiments, the inventors’ failure to in-
clude a reference to the alternative embodiment in the
specification does not justify excluding that embodiment
INTERDIGITAL COMMUNICATIONS   v. ITC                     20


from the coverage of the claims. Consequently, we hold
that the administrative law judge should have construed
“increased power level” to include both intermittent and
continuous increases in power.

                            IV

    Nokia proposes two alternative grounds to support
the Commission’s decision. First, Nokia argues that that
there can be no infringement in this case because the
scrambling codes in the Nokia system are not transmit-
ted. Neither the administrative law judge nor the Com-
mission addressed that argument. The agency’s decision
was not predicated on that rationale, and under well-
settled principles of administrative law, we are not free to
accept Nokia’s invitation to uphold the agency’s decision
on a ground not ruled on by the agency. See SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943); Vizio, Inc. v. Int’l
Trade Comm’n, 605 F.3d 1330, 1343 n.11 (Fed. Cir. 2010);
Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d
867, 878 n.1 (Fed. Cir. 2008). That issue, if Nokia wishes
to raise it again before the Commission, may be raised on
remand.

    The second ground on which Nokia seeks affirmance
is one that was addressed by the administrative law judge
but not reviewed by the Commission. Nokia argued to the
administrative law judge, and argues to us, that Inter-
Digital’s patent licensing activities did not satisfy the
“domestic industry” requirement of section 337, 19 U.S.C.
§ 1337(a)(2) and (3). The administrative law judge held
that InterDigital’s activities satisfied the domestic indus-
try requirement, and we agree.

    Paragraph (2) of subsection (a) of section 337 provides
that the portion of paragraph (1) of that subsection that
21                       INTERDIGITAL COMMUNICATIONS    v. ITC


bars the importation of articles that infringe a U.S. patent
or are made by a process covered by the claims of a U.S.
patent applies “only if an industry in the United States,
relating to the articles protected by the patent . . . exists
or is in the process of being established.” 19 U.S.C.
§ 1337(a)(2). Paragraph (3) of subsection (a) provides that
for purposes of paragraph (2),

     an industry in the United States shall be consid-
     ered to exist if there is in the United States, with
     respect to the articles protected by the patent . . .
     concerned—
          (A) significant investment in plant or equip-
     ment;
          (B) significant employment of labor or capital;
     or
          (C) substantial investment in its exploitation,
     including engineering, research and development,
     or licensing.

Id. § 1337(a)(3).

    Nokia argues that in order to satisfy section 337(a)(2),
InterDigital had to establish that there is a United States
industry “relating to the articles protected by the patent,”
and that proof of licensing activities alone is not sufficient
to satisfy that requirement. The problem with that
argument, as the administrative law judge noted, is that
section 337(a)(3) makes clear that the required United
States industry can be based on patent licensing alone; it
does not require that the articles that are the objects of
the licensing activities (i.e., the “articles protected by the
patent”) be made in this country. That is, the domestic
industry requirement is satisfied if there is a domestic
industry based on “substantial investment in [the pat-
INTERDIGITAL COMMUNICATIONS   v. ITC                     22


ent’s] exploitation” where the exploitation is achieved by
various means, including “licensing.”

     That interpretation of the statute is strongly sup-
ported by the legislative history that gave rise to the
“licensing” language in section 337(a)(3). Congress added
subparagraph (C) to section 337(a)(3) in 1988 to overrule
earlier Commission decisions that had found that licens-
ing alone did not constitute a domestic industry. Omni-
bus Trade and Competitiveness Act of 1988, Pub. L. No.
100-418, § 1342(a), 102 Stat. 1212-13. The Senate report
on the bill that amended section 337 specifically recog-
nized that the “third factor,” i.e., subparagraph (C), “does
not require actual production of the article in the United
States if it can be demonstrated that substantial invest-
ment and activities of the type enumerated are taking
place in the United States.” S. Rep. No. 100-71, at 129
(1987); see H.R. Rep. No. 100–40, at 157 (1987); see also
John Mezzalingua Assocs., Inc. v. Int’l Trade Comm’n, 660
F.3d 1322, 1327-28 (Fed. Cir. 2011).

    In the years since the enactment of that amendment,
the Commission has consistently ruled that a domestic
industry can be found based on licensing activities alone.
See, e.g., Certain Integrated Circuits, Chipsets, and Prod-
ucts Containing Same Including Televisions, Media
Players, and Cameras, Inv. No. 337-TA-709, Order No. 33
(Jan. 5, 2011); Certain Semiconductor Chips with Mini-
mized Chip Package Size and Products Containing Same,
Inv. No. 337-TA-605, Order, at 118 (Dec. 1, 2008); Certain
Semiconductor Chips with Minimized Chip Package Size
and Products Containing Same (III), Inv. No. 337-TA-630,
Order No. 31 (Sept. 16, 2008); Certain 3G Wideband Code
Division Multiple Access (WDCMA) Handsets and Com-
ponents Thereof, Inv. No. 337-TA-601, Order No. 20 (June
24, 2008); Certain Digital Processors and Digital Process-
23                     INTERDIGITAL COMMUNICATIONS    v. ITC


ing Systems, Components Thereof, and Products Contain-
ing Same, Inv. No. 337-TA-559, Order No. 24, at 84 (June
21, 2007). In those cases, the Commission has held that
subparagraph (C) requires a showing of substantial
licensing activities related to the asserted patent in order
to support a finding as to the existence of a domestic
industry based on licensing; it has not, however, required
that the licensed product be manufactured in this coun-
try. If there were any ambiguity as to whether the stat-
ute could be applied to a domestic industry consisting
purely of licensing activities, the Commission’s consistent
interpretation of the statute to reach such an industry
would be entitled to deference under the principles of
Chevron U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984); see Nucor Corp. v. United
States, 414 F.3d 1331, 1336 (Fed. Cir. 2005); Cathedral
Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352,
1361-62 (Fed. Cir. 2005).

    Nokia has not challenged the administrative law
judge’s findings as to that nexus. Nor has Nokia ques-
tioned whether the scope of InterDigital’s licensing activi-
ties was sufficient to constitute a domestic licensing
industry, a point on which the administrative judge made
extensive affirmative findings. Accordingly, we reject
Nokia’s “domestic industry” argument.

                             V

    Because the Commission erred in construing the
claim terms “code” and “increased power level” and in
finding, based on those claim constructions, that Nokia’s
products do not infringe InterDigital’s patents, we reverse
the administrative law judge’s determination of non-
infringement and remand for further proceedings.
INTERDIGITAL COMMUNICATIONS   v. ITC   24


           REVERSED AND REMANDED
  United States Court of Appeals
      for the Federal Circuit
                __________________________

  INTERDIGITAL COMMUNICATIONS, LLC AND
 INTERDIGITAL TECHNOLOGY CORPORATION,
                Appellants,

                              v.
      INTERNATIONAL TRADE COMMISSION,
                  Appellee,

                             and
      NOKIA INC. AND NOKIA CORPORATION,
                   Intervenors.
                __________________________

                        2010-1093
                __________________________

   Appeal from the United States International Trade
Commission in Investigation No. 337-TA-613.
             __________________________

NEWMAN, Circuit Judge, dissenting.

    The dispositive issue is the scope of the term “code” as
used in claim 1; that is, does “code” include a scrambling
code, or is it limited to the definition and usage of “code” in
the specification. The meaning created for “code” by the
panel majority is unsupported by and outside of the specifi-
cation, where the majority’s definition is neither described
nor enabled. It is different from the meaning and usage that
INTERDIGITAL COMMUNICATIONS    v. ITC                      2


a person experienced in the field of the invention would
understand on reading the specification.

    Technical terms in patents have the meaning that the
patentee gave them. The Commission correctly construed
“code” as a spreading code, for that is how the patentee
described it. The patent states that the code is a spreading
code, and that a spreading code generator is used to produce
the code. No other form of code, although well known in
this art, is mentioned or suggested for use in the ramp-up
that is the subject of the patented invention. Nonetheless
the panel majority holds that “code” in claim 1 includes a
scrambling code, and on this ground reverses the Commis-
sion’s ruling of non-infringement.

    The Commission, in construing “code” as a spreading
code, observed that a scrambling code is nowhere mentioned
in the specification, although the scrambling code was well
known in this field of technology. The panel majority in-
vokes the “doctrine of claim differentiation,” and holds that
since “code” is specified as a “spreading” code in claim 5,
then it necessarily includes all other codes in claim 1.
However, the doctrine of claim differentiation does not
permit enlarging a claim term beyond its presentation in
the specification. A technical term in a patent claim is
construed in accordance with its description and enable-
ment in the patent; it cannot be construed more broadly in a
claim, than its description in the specification.

    The spreading code is the only code that is described for
ramp-up. Omitting the qualifier “spreading” from claim 1
does not enlarge the description and enablement of the
patented invention. From this erroneous claim construc-
tion, and the ensuing reversal of the Commission’s finding
of non-infringement, I respectfully dissent.
3                       INTERDIGITAL COMMUNICATIONS     v. ITC


                        DISCUSSION

     The Commission held that the ramp-up “code” is a
spreading code, because it is described as a spreading code,
produced by a spreading code generator, and no other form
of code is suggested. The patent specification explicitly and
insistently repeats that a spreading code is used for the
short code ramp-up. Nokia points to the technological
differences between the codes, in that its scrambling code
does not change the frequency curve, as does a spreading
code. Nokia explains that:

    Spreading is the means by which multiple users can
    use the same frequency band at the same time.
    Scrambling does not enable multiple users to share
    a frequency; its purpose is to provide separation for
    signals that might otherwise look the same.
    Spreading applies chips to data at a rate differen-
    tial. Scrambling, in contrast, applies a code at the
    same rate as the information being scrambled.

Nokia Br. 54. Instead, the panel majority reconstructs and
redefines “code” in a manner that distorts the term from its
presentation in the InterDigital patents. The majority
adopts the language used by the Commission, as urged by
InterDigital, defining “code” as “a sequence of chips that is
transmitted,” but gives no weight at all to the Commission
findings that:

    All of the codes recited in the common specification
    are described as being generated from a spreading
    code generator. Although these codes may not be
    used to spread data during the claimed access pro-
    cedure, they are still the types of codes that are in-
    tended to spread data because they have a higher
    chip rate than a data signal.
INTERDIGITAL COMMUNICATIONS     v. ITC                        4


Comm. Br. 37. No error has been assigned to these findings,
although only spreading codes are supported by the specifi-
cation. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-13
(Fed. Cir. 2005) (en banc) (the claim’s meaning is deter-
mined by the specification). In the specification only a
“spreading code” is described for use in the CDMA system of
this invention:

    In a CDMA system, the same portion of the fre-
    quency spectrum is used for communication by all
    subscriber units. Each subscriber unit’s baseband
    data signal is multiplied by a code sequence, called
    the “spreading code,” which has a much higher
    rate than the data. The ratio of the spreading
    code rate to the data symbol rate is called the
    “spreading factor” or the “processing gain.” This
    coding results in a much wider transmission spec-
    trum than the spectrum of the baseband data sig-
    nal, hence the technique is called “spread
    spectrum.” Subscriber units and their communi-
    cations can be discriminated by assigning a unique
    spreading code to each communication link which
    is called a CDMA channel.

’966 Patent col.2 ll.1-12 (all boldface added). The patents
state in the Summary of the Invention that “The short code
is a sequence for detection by the base station which has a
much shorter period than a conventional spreading code.”
 Id. col.3 ll.23-25. The patents state that “[t]he pilot code 40
is a spreading code which carries no data bits.” Id. col.5
ll.9-10. The patents state, describing Figure 10:

    The transmitter section 74 comprises a spreading
    code generator 86 which generates and outputs
    spreading codes to a data transmitter 88 and a
    short code and access code transmitter 90. The
5                       INTERDIGITAL COMMUNICATIONS     v. ITC


    short code and access code transmitter 90 transmits
    these codes at different stages of the power ramp-up
    procedure as hereinbefore described.

Id. col.10 ll.10-15. The patents stress that the short codes
and access codes are produced by a spreading code gen-
erator, Id. col.6 ll.53-54.

    The ’847 Patent states that the “regular length spread-
ing code” is used to spread the “subscriber unit’s baseband
data signal.” ’847 Patent col.2 II.1-10. The InterDigital
patents describe use of the transmitted spreading code, or
a short spreading code form, until the proper power level
is reached and the data are transmitted; id., col.8 l.15 –
col.9 l.6, and then are used to increase the bandwidth of the
data signal after the power ramp-up process is complete.

    In addition, InterDigital’s expert Mr. Vojcic, Nokia’s ex-
pert Mr. Lanning, and inventor Dr. Fatih Ozluturk, all
testified that the short codes described in the ’966 and ’845
specifications are spreading codes. Dr. Ozluturk also stated
that “some of these codes, such as the short codes and the
access code that I mentioned previously, are the examples of
codes that do not spread anything. And they are there for
timing reference and as indicators.” Testimony of Dr.
Ozluturk, Trial Tr. 126:16-127:25, May 26, 2009.

    InterDigital’s expert, Dr. Vojcic, also acknowledged that
the spreading codes do not necessarily spread bandwidth:

    Q. Yes. Dr. Vojcic, you indicated spreading codes do
    not necessarily increase the bandwidth of an infor-
    mation signal.
    Are there codes in the ’004 patent which are spread-
    ing codes but do not increase the bandwidth of in-
    formation signals?
INTERDIGITAL COMMUNICATIONS    v. ITC                        6


   A. Yes, there are. Like pilot code, short code, and
   access code.

Trial Tr. 383:19-384:4, May 26, 2009. Dr. Vojcic further
testified:

   Q. Now, you would agree with me that in the con-
   text of the ’004 patent, a short code is just part of a
   spreading code?

   A. Yes, I do agree with that.

Trial Tr. 609:4-7, May 26, 2009. Inventor Dr. Ozluturk
testified similarly:

   Q. You have introduced this term short code in your
   description of the solution to the interference prob-
   lem for the access procedure technology. What is a
   short code in that context?

   A. Well, in this context, the short code is a spread-
   ing code, just like all the other codes we use in
   broadband CDMA. As a spreading code, it is a se-
   quence of chips, chip values.

Trial Tr. 126:16-23, May 26, 2009.

    No witness, no expert, no inventor, testified that the
code described for ramp-up in the InterDigital patents as a
scrambling code. The ALJ reviewed the evidence, and in
light of InterDigital’s argument that the PRACH scrambling
code is a spreading code, including the “UMTS; Spreading
and modulation (FDD) (3GPP TS 25.213 version 5.6.0
Release 5),” which describes spreading as follows:

   Spreading is applied to the physical channels. It
   consists of two operations. The first is the channeli-
7                       INTERDIGITAL COMMUNICATIONS     v. ITC


    zation operation, which transforms every data sym-
    bol into a number of chips, thus increasing the
    bandwidth of the signal. The number of chips per
    data symbol is called the Spreading Factor (SF).
    The second operation is the scrambling operation,
    where a scrambling code is applied to the spread
    signal.

The Commission observed that this document refers to a
channelization code as a “spreading code,” while a scram-
bling code is referred to as a separate code. In the Matter of
Certain 3G Mobile Handsets and Components Thereof, 2010
ITC LEXIS 666 at *134 (ITC October 14, 2009) (“Final
Determination”). The Commission also mentioned Inter-
Digital’s admission that the PRACH preamble is not used or
intended for use to increase the bandwidth of another
signal, and is not the type of code that is a spreading code.
Id. at *148.

     The panel majority, ignoring these findings, simply
finds “that the term “spreading code” is used somewhat
loosely by those working in the field of cellular communica-
tions.” Maj. Op. 16. Such loose usage is not apparent in the
record. The record shows that the witnesses knew what
they were saying, in this high-stakes litigation, and that the
inventors knew what they wrote in their patents. The rules
of claim construction do not permit unsupported departure
from the technical terms used by the inventors in describing
their invention. There was no evidence at all that “spread-
ing code” is understood by persons in the field as “scram-
bling code.” The record shows that persons in the field of
this invention fully understood the meaning of these com-
mon terms, and did not use them “loosely.” The court’s
theory that there is “no sharp distinction” between a spread-
ing code and a scrambling code does not convert the techno-
logically distinct scrambling code into a spreading code, or
INTERDIGITAL COMMUNICATIONS    v. ITC                       8


redefine “spreading” to include “scrambling,” contrary to the
well-understood meaning of those terms.

     “The ordinary and customary meaning of a claim term is
the meaning that the term would have to a person of ordi-
nary skill in the art in question at the time of the inven-
tion.” Phillips, 415 F.3d at 1313. InterDigital’s patents
consistently describe this code for this use as a “spreading
code.” See ‘966 Patent col.5 ll.9-10 (“The pilot code 40 is a
spreading code which carries no data bits.”); id., col.6
ll.20-23 (“The access code 42 is a known spreading code
transmitted from a subscriber unit 16 to the base station 14
during initiation of communications and power ramp-up.”).

    The Commission held that, “the asserted claims each re-
late to a CDMA system, [and] the specification discloses
that CDMA systems use spreading codes.” Final Determi-
nation at *69. The Commission placed dispositive weight on
this emphasis in the InterDigital patents on the use of
spreading codes in the ramp-up. The Commission found,
and it is not disputed, that the Nokia scrambling code does
not provide a data rate differential or increase in band-
width. The Commission found that the PRACH preambles
of the NOKIA handsets are not spreading codes or gener-
ated from spreading codes, that they do not perform chan-
nelization, and cannot be used to increase bandwidth. Id. at
*88-89. These findings are supported by more than sub-
stantial evidence.

    The Commission did not err in determining that the In-
terDigital claims do not include Nokia’s scrambling code,
whether or not a scrambling code signal can increase the
signal bandwidth. The InterDigital patents describe only
spreading codes, and do not suggest any alternative to the
short spreading code in the ramp-up phase. The panel
majority’s reliance on the “doctrine of claim differentiation”
9                       INTERDIGITAL COMMUNICATIONS     v. ITC


is misplaced, for this “doctrine” can not enlarge the meaning
of claim terms beyond their presentation and support in the
patent document. As stated in Tandon Corporation v.
International Trade Commission, 831 F.2d 1017, 1024 (Fed.
Cir. 1987), “Whether or not claims differ from each other,
one can not interpret a claim to be broader than what is
contained in the specification and claims as filed.” See also,
e.g., Retractable Techs., Inc. v. Becton, Dickinson & Co., 653
F.3d 1296, 1305 (Fed. Cir. 2011) (finding claim differentia-
tion to be rebutted where “the specifications do not disclose
a body that consists of multiple pieces or indicate that the
body is anything other than a one-piece body”); quoting
Seachange Int'l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1369
(Fed. Cir. 2005); Toro Co. v. White Consol. Indus., Inc., 199
F.3d 1295, 1302 (Fed. Cir. 1999) (the doctrine of claim
differentiation does not serve to broaden claims beyond
their meaning in light of the specification”); Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1480 (Fed.
Cir. 1998) (“the doctrine of claim differentiation cannot
broaden claims beyond their correct scope, determined in
light of the specification and the prosecution history and
any relevant extrinsic evidence”); O.I. Corp. v. Tekmar Co.,
115 F.3d 1576, 1582 (Fed. Cir. 1997) (“Although the doctrine
of claim differentiation may at times be controlling, con-
struction of claims is not based solely upon the language of
other claims; the doctrine cannot alter a definition that is
otherwise clear from the claim language, description, and
prosecution history.”).

     Only spreading codes and short spreading codes are
shown in the InterDigital patents. The common specifica-
tion defines a “spreading code” as a code having “a much
higher rate than the [subscriber unit's baseband] data” and
which spreads data at a specific symbol rate called the
“spreading factor” or “processing gain.” ‘966 Patent, col.2
ll.3-7. The patents describe the drawings accordingly, as
INTERDIGITAL COMMUNICATIONS     v. ITC                      10


showing that “the transmit spreading code generator 64
outputs a spreading code to the data transmitter 66 and the
pilot code transmitter,” id., col.9 ll.50-53; and that “[t]he
transmitter section 74 comprises a spreading code generator
86 which generates and outputs spreading codes to a data
transmitter 88 and a short code and access code transmitter
90.” Id., col.10 ll.10-13. Each of the codes identified in the
common specification exhibits a higher data rate than the
subscriber unit's baseband data, has a specific “spreading
factor” or “processing gain,” and is generated by a spreading
code generator. This description supports the Commission’s
construction of “code" as a spreading code that initiates
contact during the power ramp-up phase, and then spreads
to transmit data after contact has been achieved. There is
no support whatsoever, anywhere in the patents, for the
panel majority’s construction of “code” as including a scram-
bling code for these purposes.

     The limitation in all the claims that a “same code” is
used for ramp-up and for the message conforms to the
Commission’s construction that the ramp-up code is limited
to its description in the specification as a spreading code for
use in the CDMA system that is the basis of the InterDigital
patents. The Commission correctly found that “the pre-
sumption created by claim differentiation is rebutted,” Final
Determination at *69, and correctly ruled that the codes
referenced in the specification and the claims are all spread-
ing codes. Id.

    The panel majority’s enlargement beyond the invention
described in the patents, in disregard of the protocols of
claim construction, simply adds uncertainty to the patent
grant. See Phillips, 415 F.3d at 1315 (“the words of the
claims must be based on the description” in the specifica-
tion). In today’s technology-based commerce, rational
economics requires that the patent provide a reliable basis
11                      INTERDIGITAL COMMUNICATIONS    v. ITC


for investment. The patentee is in control of the specifica-
tion that describes the invention. The panel majority’s
theory that “the inventors’ failure to include a reference to
the alternative embodiment in the specification does not
justify excluding that embodiment from the coverage of the
claims,” Maj. Op. at 19-20, is a departure from routine rules
of the meaning of legal documents, and in negation of the
notice purpose of the patent claim. From this unsound
approach to claim construction, and its incorrect conclusion
on the facts of this case, I respectfully dissent.
