  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  WI-FI ONE, LLC,
                     Appellant

                          v.

           BROADCOM CORPORATION,
                     Appellee
              ______________________

                      2015-1944
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2013-
00601.
                 ______________________

             Decided: September 16, 2016
               ______________________

    DOUGLAS AARON CAWLEY, McKool Smith, PC, Dallas,
TX, argued for appellant. Also represented by DONALD
PUCKETT, Nelson Bumgardner PC, Fort Worth, TX; PETER
J. AYERS, Lee & Hayes, PLLC, Austin, TX.

    DOMINIC E. MASSA, Wilmer Cutler Pickering Hale and
Dorr LLP, Boston, MA, argued for appellee. Also repre-
sented by KEVIN A. GOLDMAN, ZACHARY P. PICCOLOMINI,
KATIE SAXTON.
                ______________________

      Before DYK, BRYSON, and REYNA, Circuit Judges.
2                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



    Opinion for the court filed by Circuit Judge BRYSON.
     Concurring opinion filed by Circuit Judge REYNA.
BRYSON, Circuit Judge.
    This is an appeal from a decision of the Patent Trial
and Appeal Board in an inter partes review. The Board
held various claims of a patent owned by Wi-Fi One, LLC
(“Wi-Fi”), to be anticipated. We affirm.
                              I
                             A
    The patent at issue in this case, U.S. Patent No.
6,772,215 (“the ’215 patent”), is directed to a method for
improving the efficiency by which messages are sent from
a receiver to a sender in a telecommunications system to
advise the sender that errors have occurred in a particu-
lar message.
    In the technology described in the patent, data is
transmitted in discrete packets known as Protocol Data
Units (“PDUs”). The useful data or “payload” in those
packets is carried in what are called user data PDUs (“D-
PDUs”). Each D-PDU contains a sequence number that
uniquely identifies that packet. The sequence number
allows the receiving computer to determine when it either
has received packets out of order or has failed to receive
particular packets at all, so that the receiver can correctly
combine the packets in the proper order or direct the
sender to retransmit particular packets as necessary.
     The receiver uses a different type of packet, a status
PDU (“S-PDU”), to notify the sender of the D-PDUs it
failed to receive. The ’215 patent is concerned with organ-
izing the information contained in S-PDUs efficiently so
as to minimize the size of the S-PDUs, thus conserving
bandwidth.
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   3



    The patent discloses a number of methods for encod-
ing the sequence numbers of missing packets in S-PDUs.
Some of those methods use lists that indicate which
packets are missing by displaying the ranges of the se-
quence numbers of the missing packets. Other methods
are based on bitmaps that use binary numbers to report
on the status of a fixed number of packets relative to a
starting point.
     Depending on how many packets fail to be properly
delivered and the particular sequence numbers of the
errant packets, different methods can be more or less
efficient for encoding particular numbers and ranges of
errors. In order to leverage the benefits of the different
encoding methods, the patent discloses an S-PDU that
can combine multiple message types in an arbitrary
order, with “no rule on the number of messages or the
type of messages that can be included in the S-PDU.”
’215 patent, col. 7, ll. 55-57. Using that technology, S-
PDUs can be constructed with a combination of the encod-
ing types best suited for the particular errors being en-
coded, so that the S-PDU can be more compact than an S-
PDU that uses a single encoding type.
                              B
    In 2013, Broadcom petitioned for inter partes review
of the ’215 patent, challenging numerous claims. Prior to
the institution decision, Wi-Fi argued that Broadcom was
barred from seeking review of the patent. Wi-Fi argued
that Broadcom was in privity with certain entities that
were involved in parallel district court litigation involving
the ’215 patent, and that because those entities would be
time-barred from seeking inter partes review of the ’215
patent, Broadcom was time-barred as well. See 35 U.S.C.
§ 315(b).
    Wi-Fi filed a motion seeking discovery designed to
support its argument, but after briefing the Board denied
the motion. It found that Wi-Fi “has not provided evi-
4                  WI-FI ONE, LLC   v. BROADCOM CORPORATION



dence to show that there is more than a mere possibility
that the sought-after discovery even exists” or “that the
sought-after discovery has more than a mere possibility of
producing useful evidence on the crucial privity factor”––
control of the district court litigation by Broadcom in a
way that would foreclose it from seeking inter partes
review.
    After the Board denied Wi-Fi’s petition for rehearing,
Wi-Fi petitioned this court for a writ of mandamus. This
court denied the petition. In re Telefonaktiebolaget LM
Ericsson, 564 F. App’x 585 (Fed. Cir. 2014).
    The Board instituted inter partes review of the ’215
patent, finding that there was a reasonable likelihood
that the challenged claims were anticipated by U.S.
Patent No. 6,581,176 to Seo. The Board declined to
institute review based on another reference because it
found that reference would be redundant in light of Seo.
    Seo teaches improvements to what are known as neg-
ative acknowledgement (“NAK”) frames. NAK frames are
sent by the receiving unit to inform the transmitting unit
that frames sent by the transmitting unit were misdeliv-
ered. The Seo method uses a single packet to provide
information about multiple misdelivered frames, so that
“only one NAK control frame for all missed user data
frames is transmitted to a transmitting station to require
a retransmission of the missed user data when a timer for
an NAK is actually expired.” Seo, col. 5, ll. 32-35.
    Seo describes the structure of the disclosed NAK
frames. The frames include a field called “NAK_TYPE”
that indicates how the NAK frame represents missing
frames. If the NAK_TYPE is set to “00,” then the missing
frames are encoded as a list, and the frame requests
retransmission of all user data frames between the first
missing frame and the last, represented by the “FIRST”
and “LAST” values. If the NAK_TYPE is set to “01,” then
the NAK frame transmits information about the missing
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   5



transmitted frames using a bitmap. In that case, the
NAK frame contains the field “NAK_MAP_SEQ” to identi-
fy the starting point of the bitmap and the field
“NAK_MAP” to transmit the bitmap.
     Before the Board, Wi-Fi argued that the NAK_TYPE
field disclosed in Seo is not a “type identifier field” and
that Seo therefore does not satisfy the type identifier field
limitation of the ’215 patent. Wi-Fi further argued that,
even if Seo discloses that feature, the NAK_TYPE field is
not found within a “message field,” as required by the
claims at issue. The Board rejected those arguments,
found that Seo disclosed all the limitations of the chal-
lenged claims of the ’215 patent, and therefore held those
claims to be unpatentable. The Board also rejected
Wi-Fi’s argument that claim 15 of the ’215 patent re-
quired some sort of “length field,” which Seo did not
disclose. Finally, the Board held that Wi-Fi had not
shown that Broadcom was in privity with the district
court defendants, and therefore Broadcom was not barred
from filing a petition for inter partes review.
                              II
     On appeal, Wi-Fi continues to press its argument that
Broadcom was barred from petitioning for inter partes
review because it was in privity with a time-barred dis-
trict court litigant.
    The Board may not institute inter partes review “if
the petition requesting the proceeding is filed more than 1
year after the date on which the petitioner, real party in
interest, or privy of the petitioner is served with a com-
plaint alleging infringement of the patent.” 35 U.S.C.
§ 315(b). To determine whether a petitioner is in privity
with a time-barred district court litigant, the Board
conducts a flexible analysis that “seeks to determine
whether the relationship between the purported ‘privy’
and the relevant other party is sufficiently close such that
both should be bound by the trial outcome and related
6                  WI-FI ONE, LLC   v. BROADCOM CORPORATION



estoppels.” Office Patent Trial Practice Guide, 77 Fed.
Reg. 48,756, 48,759 (Aug. 14, 2012).
     This court has previously addressed whether a patent
owner can argue on appeal that the Board improperly
allowed a privy of a time-barred district court litigant to
pursue an inter partes review. The statute governing the
Board’s institution of inter partes review provides that
“[t]he determination by the Director whether to institute
an inter partes review under this section shall be final
and nonappealable.” 35 U.S.C. § 314(d). In Achates
Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652, 658
(Fed. Cir. 2015), we held that section 314(d) “prohibits
this court from reviewing the Board’s determination to
initiate IPR proceedings based on its assessment of the
time-bar of § 315(b), even if such assessment is reconsid-
ered during the merits phase of proceedings and restated
as part of the Board’s final written decision.”
    Wi-Fi does not dispute that Achates renders its chal-
lenge to the Board’s timeliness ruling nonappealable if
Achates is still good law. What Wi-Fi argues is that the
Supreme Court’s recent decision in Cuozzo Speed Tech-
nologies, LLC v. Lee, 136 S. Ct. 2131 (2016), implicitly
overruled Achates. 1 In Cuozzo the patent owner chal-
lenged the Board’s institution decision, arguing that the
Board should not have instituted inter partes review,
because the petition failed to “identif[y], in writing and


    1   Wi-Fi also argues that even in the absence of a
Supreme Court overruling, we have a license to reconsider
Achates because the decision was flawed. We decline
Wi-Fi’s invitation. “We are bound by prior Federal Circuit
precedent ‘unless relieved of that obligation by an en banc
order of the court or a decision of the Supreme Court.’”
MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d
1284, 1291 (Fed. Cir. 2015) (quoting Deckers Corp. v.
United States, 752 F.3d 949, 959 (Fed. Cir. 2014)).
WI-FI ONE, LLC   v. BROADCOM CORPORATION                     7



with particularity, each claim challenged, the grounds on
which the challenge to each claim is based, and the evi-
dence that supports the grounds for the challenge to each
claim.” 35 U.S.C. § 312(a)(3). Based on the language of
section 314(d), the Supreme Court held that the Board’s
decision on that issue was unreviewable. Cuozzo, 136
S. Ct. at 2139. In the course of its opinion, the Court
clarified the scope of the preclusion of review:
    [I]n light of § 314(d)’s own text and the presump-
    tion favoring review, we emphasize that our in-
    terpretation applies where the grounds for
    attacking the decision to institute inter partes re-
    view consist of questions that are closely tied to
    the application and interpretation of statutes re-
    lated to the Patent Office’s decision to initiate in-
    ter partes review. This means that we need not,
    and do not, decide the precise effect of § 314(d) on
    appeals that implicate constitutional questions,
    that depend on other less closely related statutes,
    or that present other questions of interpretation
    that reach, in terms of scope and impact, well be-
    yond “this section.” Thus, contrary to the dis-
    sent’s suggestion, we do not categorically preclude
    review of a final decision where a petition fails to
    give “sufficient notice” such that there is a due
    process problem with the entire proceeding, nor
    does our interpretation enable the agency to act
    outside its statutory limits by, for example, can-
    celing a patent claim for “indefiniteness under
    § 112” in inter partes review. Such “shenanigans”
    may be properly reviewable in the context of § 319
    and under the Administrative Procedure Act,
    which enables reviewing courts to “set aside agen-
    cy action” that is “contrary to constitutional
    right,” “in excess of statutory jurisdiction,” or “ar-
    bitrary [and] capricious.”
Id. at 2141-42 (citations omitted).
8                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



    We see nothing in the Cuozzo decision that suggests
Achates has been implicitly overruled. The Supreme
Court stated that the prohibition against reviewability
applies to “questions that are closely tied to the applica-
tion and interpretation of statutes related to the Patent
Office’s decision to initiate inter partes review.” Section
315 is just such a statute. The time-bar set forth in
section 315 addresses who may seek inter partes review,
while section 312 governs what form a petition must take.
Both statutes govern the decision to initiate inter partes
review.
     Wi-Fi’s arguments to the contrary are unavailing.
Wi-Fi argues that Cuozzo “tied the limitation of judicial
review to the Patent Office’s ability to make its substan-
tive patentability determination as embodied in § 314(a).”
To the extent that Wi-Fi means to suggest that the Court
limited the statutory bar against judicial review to the
Board’s substantive determination at the time of institu-
tion, i.e., whether a particular reference raises a reasona-
ble likelihood of anticipating or rendering a challenged
claim obvious, we disagree. The Supreme Court extended
the preclusion of judicial review to statutes related to the
decision to institute; it did not limit the rule of preclusion
to substantive patentability determinations made at the
institution stage, as the facts of Cuozzo itself make clear.
Subsection 312(a)(3), which the Court addressed in Cuoz-
zo, is not related to substantive patentability, but instead
is addressed to the conditions for seeking review—in that
case, the level of specificity required in the petition.
    Wi-Fi also argues that the reviewability ban is limited
to issues arising under section 314, because of the statu-
tory text providing that a determination by the Director
whether to institute inter partes review “under this
section” is not reviewable. 35 U.S.C. § 314(d). This court
explicitly rejected that argument in Achates. See 803 F.3d
at 658 (“Finally, Achates also contends that § 314(d) does
not limit this court’s review of the timeliness of Apple’s
WI-FI ONE, LLC   v. BROADCOM CORPORATION                    9



petition under § 315, because § 314(d) says ‘[t]he determi-
nation by the Director whether to institute an inter partes
review under this section shall be final and nonappealable’
(emphasis added). Achates’ reading is too crabbed and is
contradicted by this court’s precedent. The words ‘under
this section’ in § 314 modify the word ‘institute’ and
proscribe review of the institution determination for
whatever reason.”). Nothing in Cuozzo casts doubt on
that interpretation of the statute, especially in light of the
fact that the Supreme Court held that the particularity
requirement, which is contained in section 312, is non-
appealable.
    Wi-Fi next argues that time-bar issues should be re-
viewable because Board practice allows parties to argue
those issues at trial. That argument, too, was rejected in
Achates. 803 F.3d at 658 (“That the Board considered the
time-bar in its final determination does not mean the
issue suddenly becomes available for review or that the
issue goes to the Board’s ultimate authority to invali-
date—the Board is always entitled to reconsider its own
decisions.”). Wi-Fi has not pointed to anything in Cuozzo
that casts doubt on that reasoning.
    Finally, Wi-Fi argues that the Board’s denial of its re-
quest for discovery on the time-bar issue is an example of
the “shenanigans” that the Supreme Court in Cuozzo
suggested would be reviewable. We disagree. The Board
simply declined to grant discovery because Wi-Fi had not
made a sufficient showing to support its request. To hold
that such a ruling falls within the narrow exception to the
Supreme Court’s unreviewability holding would render
routine procedural orders reviewable, contrary to the
entire thrust of the Cuozzo decision.
                             III
    Wi-Fi also challenges the Board’s substantive deter-
mination that Seo anticipates the ’215 patent. Wi-Fi
brings three separate challenges: that Seo does not dis-
10                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



close a type identifier field, that Seo does not disclose a
type identifier field within a message field, and that the
Board misconstrued the term type identifier field.
                              A
    Claim 1 of the ’215 patent, which is representative,
provides as follows:
     A method for minimizing feedback responses in an
     ARQ protocol, comprising the steps of:
     sending a plurality of first data units over a com-
     munication link;
     receiving said plurality of first data units; and
     responsive to the receiving step, constructing a
     message field for a second data unit, said message
     field including a type identifier field and at least
     one of a sequence number field, a length field, and
     a content field.
    Wi-Fi argues that Seo does not disclose a type identi-
fier field because it discloses only a single type of mes-
sage, and that the single type of message contains fields
for encoding errors as both lists and bitmaps. Wi-Fi relies
on Figure 4 of Seo, shown below:
WI-FI ONE, LLC   v. BROADCOM CORPORATION                  11




Based on Figure 4, Wi-Fi argues that the data structure
in Seo contains fields for the list type of coding, which are
entitled FIRST, LAST, FCS, and PADDING, and fields for
the bitmap type of coding, which are entitled
NAK_Map_Count, NAK_Map_SEQ, and NAK_Map.
    Wi-Fi argues that in Seo all fields are always present,
either as useful values or as “padded zeros,” i.e., place-
holders, regardless of the value of the NAK_TYPE field.
Therefore, Wi-Fi argues, the NAK_TYPE field does not
12                  WI-FI ONE, LLC   v. BROADCOM CORPORATION



function as a type identifier field that identifies the type
of coding used in Seo’s data structure.
     The Board rejected that argument, relying on the dis-
closure in Seo that certain fields “exist” depending on the
value of the NAK_TYPE field. See Seo, col. 5, ll. 54-57
(“When a value of the field NAK_TYPE is ‘00’, the receiv-
ing station requests a retransmission of missed user data
frames numbered a field FIRST through a field LAST.”);
col. 6, ll. 18-22 (“If a value of the field NAK_TYPE is ‘01’,
the field NAK_MAP_COUNT exists.”). Based on those
portions of the Seo specification, the Board concluded that
Seo discloses a control frame “that includes certain fields
only when NAK_TYPE is ‘00’ and includes other fields
only when NAK_TYPE is ‘01.’” Accordingly, the Board
rejected Wi-Fi’s argument that NAK_TYPE is not a type
identifier field.
    The Board also credited the testimony of Broadcom’s
expert that it would not make sense to include unneces-
sary fields in a message. It was entirely reasonable for
the Board to read the term “exist” in Seo in that way.
Substantial evidence therefore supports the Board’s
conclusion that Seo discloses the type identifier field
feature recited in the ’215 patent.
                             B
    Wi-Fi also argues that even if Seo discloses a type
identifier field, Seo does not anticipate the ’215 patent,
because the NAK_TYPE field in Seo is part of the S-PDU
header rather than the message field, as required by the
claims.
    The Board rejected that argument, finding that the
’215 patent does not require the type identifier field to be
in any particular part of the message, and that, in any
event, Seo’s NAK_TYPE field was included in the mes-
sage field. We agree with the Board. Nothing in the ’215
patent specifies whether the type identifier field must be
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   13



located in the header or any other specific part of the
message.
    Wi-Fi also argues that a prior amendment to claim 1
shows that the claim is drawn to the distinction between
the message body and the header. During the prosecution
of the ’215 patent, Wi-Fi offered the following amend-
ment:
    said message field including a type identifier field
    and at least one of a type identifier field, a se-
    quence number field, a length field, and a content
    field.
That amendment moved the type identifier field from
being one of four optional fields to being a required field,
accompanied by at least one of the three remaining op-
tional fields.
    On appeal, Wi-Fi argues that the amendment “distin-
guish[es], among other things, fields that were included in
the header of the PDU such as the ‘PDU_format’ field
shown in the admitted prior art.” That argument is
meritless. The type identifier field was identified as part
of the message field before and after the amendment, so
the amendment had no effect on where in the packet the
type identifier field had to be located. The amendment
simply made that term a required feature, rather than
one of the options listed in the “at least one” clause.
     That understanding is confirmed by the applicants’
remarks accompanying the amendment. The applicants
distinguished a prior art reference by stating that amend-
ed claim 1 “provides the type identifier field and at least
one of a sequence number field, a length field, and a
content field.” Because there is no support in the patent
or the prosecution history for Wi-Fi’s distinction between
the presence of the type identifier field in the message
field and in the header, the Board was correct to reject
Wi-Fi’s argument.
14                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



                              C
    Wi-Fi next argues that the Board erred in construing
the phrase “responsive to the receiving step, constructing
a message field for a second data unit, said message field
including a type identifier field” to mean “a field of a
message that identifies the type of that message.” Wi-Fi
argues that the Board’s construction failed to specify that
a type identifier field must distinguish the type of mes-
sage from a number of different message types.
    We agree with the Board that Wi-Fi’s interpretation
does no more than restate what is already clear from the
Board’s construction—that a type identifier field must
distinguish between different message types. Wi-Fi’s real
quarrel is not with the Board’s claim construction, but
with the Board’s conclusion that Seo discloses different
message types. As we have noted, the Board’s conclusion
that Seo discloses different message types is supported by
substantial evidence.
                              IV
    Finally, Wi-Fi challenges the Board’s analysis of claim
15. That claim reads:
     A method for minimizing feedback responses in an
     ARQ protocol, comprising the steps of:
     sending a plurality of first data units over a com-
     munication link;
     receiving said plurality of first data units; and
     responsive to the receiving step, constructing a
     message field for a second data unit, said message
     field including a type identifier field and at least
     one of, a length field, a plurality of erroneous se-
     quence number-fields, and a plurality of erroneous
     sequence number length fields, each of said plu-
     rality of erroneous sequence number fields associ-
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   15



    ated with a respective one of said plurality of er-
    roneous sequence number length fields.
     Wi-Fi argues that claim 15, properly construed, re-
quires that the message field contain either a “length
field” or an “erroneous sequence number length field.”
Because Seo does not disclose length fields of either type,
Wi-Fi argues that it does not anticipate claim 15.
     Wi-Fi’s argument is based on the structure of the “at
least one of” clause. That clause requires that at least one
of the following be present: “a length field,” “a plurality of
erroneous sequence number fields,” or “a plurality of
erroneous sequence number length fields.” The second
entry on the list, “a plurality of erroneous sequence-
number fields,” is not by itself a type of length field.
However, the final clause of that limitation provides “each
of said plurality of erroneous sequence number fields
associated with a respective one of said plurality of erro-
neous sequence number length fields.” That clause, Wi-Fi
argues, requires that each erroneous sequence number
field must be associated with an erroneous sequence
number length field. For that reason, Wi-Fi contends that
some sort of length field is required to meet claim 15.
     Broadcom argues that the “each of said” clause re-
quires that each of the erroneous sequence number length
fields must be associated with an erroneous sequence
number field, not the other way around. Therefore, in
Broadcom’s view, an erroneous sequence number field can
stand alone, without an accompanying erroneous se-
quence number length field; for that reason, according to
Broadcom, claim 15 does not require the presence of a
length field in all cases.
     Wi-Fi’s is the better reading of the text of the claim.
The structure of the “at least one of” limitation is best
understood by stripping it to its essence: substituting A
for the length field, B for the plurality of erroneous se-
quence number fields, and C for the erroneous sequence
16                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



number length fields. So viewed, the claim by its terms
would require one of A, B, or C, except that each of B
must be associated with one of C. That reading is at odds
with Broadcom’s, which would require each of C to be
associated with one of B.
    While the text of the limitation, standing alone, favors
Wi-Fi’s interpretation, we conclude that Wi-Fi’s interpre-
tation does not make sense in light of the specification,
and thus that Broadcom’s interpretation must be accepted
as correct.
    The specification of the ’215 patent explains the prop-
erties and purpose of the length field. The length field is
used in open-ended data structures to provide information
about the data structure, such as the number of lists or
bitmaps that are present in a packet, or the length of the
bitmaps that are used to represent errors. See ’215 pa-
tent, col. 2, ll. 56-62; col. 6, ll. 25-34; col. 7, ll. 52-65.
Because the length of a particular message can be fixed
by the rules of the protocol, a length field is not a required
feature of the invention. See id., col. 7, ll., 57-60 (“For this
exemplary embodiment, each such message includes a
type identifier, and the length is either fixed or indicated
by a length field for each specific message.”).
     The specification also describes the purpose of the er-
roneous sequence number fields and the erroneous se-
quence number length fields. The specification explains
that one method for representing errors “is to include a
field after each list element which determines the length
of the error, instead of indicating the length of the error
with an ‘ending’ [sequence number].” ’215 patent, col. 7,
ll. 31-33. Using that method, strings of consecutive errors
are represented with an erroneous sequence number that
marks the beginning of the error, followed by an errone-
ous sequence number length field that marks how long
the error persists. That method is generally more effi-
cient than representing an error sequence by its starting
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   17



and ending point because “[i]n most systems, the size of
the length field would then be substantially smaller than
the size of the [sequence number] field.” Id., col. 7, ll. 33-
35.
   Figure 9 of the ’215 patent shows how that method
would represent the failed transmission of a series of
packets numbered 51-77:




The erroneous sequence number field, SN1, shows that
the error sequence begins at sequence number 51. The
erroneous sequence number length field, L1, shows that
the error extends for 27 packets, covering packets 51
through 77.
    Based on those descriptions of embodiments of the in-
vention, it is clear that an erroneous sequence number
length field is useful only when it is paired with an erro-
neous sequence number field, while an erroneous se-
quence number field can be useful without an
accompanying erroneous sequence number length field.
Thus, an erroneous sequence number field can stand
alone, but an erroneous sequence number length field
cannot.
   The ’215 specification makes clear that an erroneous
sequence number field can be used absent an erroneous
sequence number length field. As examples, Figure 10
18                 WI-FI ONE, LLC   v. BROADCOM CORPORATION



shows four erroneous sequence numbers that are used to
indicate errors, and Figure 12 shows a bitmap that con-
tains an erroneous sequence number field to indicate
where the bitmap begins. Both contain erroneous se-
quence number fields, but not erroneous sequence number
length fields, thus supporting the Board’s construction of
claim 15.
     By contrast, an erroneous sequence number length
field can indicate an error only by reference to a starting
point, which would be represented by an erroneous se-
quence number field. The ’215 patent discloses no exam-
ples of an erroneous sequence number length field
without an accompanying erroneous sequence number
field, for the simple reason that an erroneous sequence
number length field standing alone would not convey
sufficient information to determine what packets must be
retransmitted.
    Based on the full teaching of the specification, we con-
clude that Wi-Fi’s proposed construction of claim 15 is
unreasonable. It would allow an erroneous sequence
number length field to be present without an erroneous
sequence number field, which the specification indicates
would not work, while requiring all erroneous sequence
number fields to be associated with erroneous sequence
number length fields, which the patent teaches is not
necessary. The Board’s construction, on the other hand,
comports with what the patent teaches about the number
and length fields. Even though the language of claim 15,
standing alone, provides some support for Wi-Fi’s inter-
pretation, we hold that in the end the claim must be read
as the Board construed it in order to be faithful to the
invention disclosed in the specification.
   Accordingly, because claim 15, as properly construed,
does not require a length field, we hold that the Board
was correct to conclude that Seo anticipates that claim.
                       AFFIRMED
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                   WI-FI ONE, LLC,
                      Appellant

                            v.

            BROADCOM CORPORATION,
                      Appellee
               ______________________

                       2015-1944
                 ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2013-
00601.
                 ______________________

REYNA, Circuit Judge, concurring.
    I agree with the majority that Wi-Fi One has neither
shown Broadcom to be in privity with the Texas Defend-
ants nor a real party in interest in the Texas litigation.
    I write separately to convey my sense that this Court
has jurisdiction to address the time bar question despite
the statutory requirement that the Board’s institution
decisions “shall be final and nonappealable.” 35 U.S.C.
§ 314(d). I believe that the legal distinction that exists
between an “institution” decision and a final decision
compels that the decision in this case is a final decision,
not an institution decision. A final decision concerning
the time bar set forth by 35 U.S.C. § 315(b) should be
subject to review.
2                   WI-FI ONE, LLC   v. BROADCOM CORPORATION



                        DISCUSSION
    Our opinion in Achates Reference Publishing v. Apple,
Inc., 803 F.3d 652 (Fed. Cir. 2015), holds that a time bar
decision is not reviewable—a holding that I believe should
be reconsidered by the en banc court. The § 315(b) time
bar falls squarely within the exceptions acknowledged by
this court in Achates. “[E]ven when the statutory lan-
guage bars judicial review, courts have recognized that an
implicit and narrow exception to the bar on judicial re-
view exists for claims that the agency exceeded the scope
of its delegated authority or violated a clear statutory
mandate.” Achates, 803 F.3d at 658 (quoting Hanauer v.
Reich, 82 F.3d 1304, 1307 (4th Cir. 1996)).
    Achates renders § 315(b) toothless. For example, if
the Board simply chose to ignore a time bar issue alto-
gether, there would be no avenue for appellate review. I
do not believe that is what Congress intended. Rather, I
believe § 314(d) was intended to ensure that institution
decisions were truly preliminary, not to capture all statu-
tory limitations on the inter partes review (“IPR”) process.
    Here, the statutory language explicitly allows review
of the Board’s final decision, 1 and in this case we are faced
with an argument that the Board exceeded the scope of its
statutory authority both in instituting the IPR and in
issuing its final decision.
    It is clear that not every decision on whether there ex-
ists legal basis to commence an IPR is an unreviewable
determination by the Director to institute as contemplat-
ed under § 314(d). For example, the Supreme Court has
noted that § 314(d) may not bar consideration of a consti-
tutional question, but that it “does bar judicial review of


    1    A party to an IPR “may appeal the Board’s deci-
sion” to this court. 35 U.S.C. § 141(c).
WI-FI ONE, LLC   v. BROADCOM CORPORATION                   3



the kind of mine-run claim” of whether the grounds stated
by the PTO in its institution decision matched the
grounds in the original petition for IPR. Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2136 (2016). The
Court noted that Congress did not intend for a final IPR
decision to “be unwound under some minor statutory
technicality related to its preliminary decision to institute
inter partes review.” Id. at 2140.
     The time-bar question is not a “mine-run” claim, and
it is not a mere technicality related only to a preliminary
decision concerning the sufficiency of the grounds that are
pleaded in the petition. See Cuozzo, 136 S. Ct. at 2136.
Indeed, the time bar question is immaterial to the Board’s
initial determination of whether there is a reasonable
likelihood the petitioner would prevail on the merits.
Rather, the time bar deprives the Board of jurisdiction to
consider whether to institute a review after one year has
expired from the date a petitioner, real party in interest,
or privy of the petitioner is served with a complaint
alleging infringement of the patent. 35 U.S.C. § 315(b).
Compliance with the time bar is part of the statutory
basis on which the final decision rests, despite the fact
that the question is first evaluated at the outset of the
proceeding and noticed as part of the institution decision.
    Cuozzo explicitly notes that its holding does not “ena-
ble the agency to act outside its statutory limits” and that
such “shenanigans” are properly reviewable. 136 S. Ct. at
2141–42. That admonition compels us to review allega-
tions that the Board has ignored, or erred in the applica-
tion of, the statutory time bar.
