       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

   INTERDIGITAL COMMUNICATIONS, INC.,
 INTERDIGITAL TECHNOLOGY CORPORATION,
           IPR LICENSING, INC.,
                 Appellants

                           v.

   UNITED STATES INTERNATIONAL TRADE
              COMMISSION,
                  Appellee

      NOKIA, INC., MICROSOFT MOBILE OY,
                    Intervenors

       ZTE CORPORATION, ZTE (USA) INC.,
                   Intervenors
             ______________________

                      2014-1176
                ______________________

   Appeals from the United States International Trade
Commission in Investigation No. 337-TA-800.
                ______________________

              Decided: February 18, 2015
               ______________________

    RICHARD P. BRESS, Latham & Watkins LLP, Washing-
ton, DC, argued for appellants. Also represented by
2                                       INTERDIGITAL   v. ITC



MAXIMILIAN A. GRANT, BERT C. REISER, GABRIEL BELL,
RON E. SHULMAN; MICHAEL BRETT LEVIN, DAVID S.
STEUER, Wilson, Sonsini, Goodrich & Rosati, PC, Palo
Alto, CA.

    PANYIN HUGHES, Office of the General Counsel, Inter-
national Trade Commission, Washington, DC argued for
appellee. Also represented by WAYNE W. HERRINGTON.

    PATRICK J. FLINN, Alston & Bird LLP, Atlanta, Geor-
gia, argued for intervenors Nokia Inc., Microsoft Mobile
Oy.    Also represented by JOHN D. HAYNES, SCOTT
BENJAMIN PLEUNE, ROSS RITTER BARTON.

    JAY H. REIZISS, Brinks Gilson & Lione, Washington,
DC, for intervenor ZTE Corporation, ZTE (USA) Inc. Also
represented by CYNTHIA A. HOMAN, CHARLES M.
MCMAHON, DAVID LINDNER, LAURA A. LYDIGSEN.
                 ______________________

    Before PROST, Chief Judge, MAYER and LOURIE, Circuit
                          Judges.
PROST, Chief Judge.
    InterDigital Communications, Inc., InterDigital Tech-
nology Corporation, and IPR Licensing, Inc. (collectively,
“InterDigital”) appeal from the final determination of the
United States International Trade Commission (“Com-
mission”) finding no violation of Section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1337. See Certain
Wireless Devices with 3G Capabilities and Components
thereof, Inv. No. 337-TA-800 (Dec. 19, 2013) (“Commission
Decision”). For the reasons set forth below, we affirm.
                       BACKGROUND
    The patents at issue are directed to cellphone technol-
ogy, and in particular, code division multiple access
(“CDMA”) networks. For purposes of this appeal, the
INTERDIGITAL   v. ITC                                   3



following simplified overview of the technology is suffi-
cient. 1
    A CDMA network allows multiple cellphones, referred
to in the patents as subscriber units, to use the same
radio frequencies for multiple simultaneous communica-
tions. A CDMA system is able to do this by modulating
the data with unique codes. One problem with CDMA
systems is that signals within the same geographical area
can interfere with one another, and that problem is exac-
erbated as transmission power levels are increased.
                        A. Patents at Issue
    This appeal involves U.S. Patent Nos. 7,706,830 (“’830
patent”), 8,009,636 (“’636 patent”), 7,502,406 (“’406 pa-
tent”), 7,706,332 (“’332 patent”), and 7,616,970 (“’970
patent”). Throughout this case, the patents have been
grouped as follows: (1) the Power Ramp-Up Patents (the
‘830 and ’636 patents), (2) the Power Control Patents
(the ’406 and ’332 patents), and (3) the Dual Mode Patent
(the ’970 patent). We address each patent group below.
                 1. The Power Ramp-Up Patents
     The Power Ramp-Up Patents address the way a sub-
scriber unit establishes a connection with a base station
in order to initiate a communication such as a voice call.
In particular, these patents describe a subscriber unit
that, in order to avoid unnecessary power usage and
minimize interference with other connections, gradually
ramps up the power level of its transmissions before
initiating a call. See ’830 patent col. 6 ll. 55–67. The
subscriber unit starts transmitting at a low power level



   1    We provided a more detailed description of this
technology in InterDigital Commc’ns, LLC v. Int’l Trade
Comm’n, 690 F.3d 1318, 1320–21 (Fed. Cir. 2012), an
appeal involving related patents and technology.
4                                         INTERDIGITAL   v. ITC



and then repeatedly sends transmissions—called “short
codes”—at increasing power levels until the base station
detects the transmissions and sends back an acknowl-
edgement to the subscriber unit. Id. The transmissions
are called “short codes” because they are shorter than a
regular length code. Id. col. 7 ll. 40–41. Once the
acknowledgement is received, a substantive communica-
tion such as a voice call can be initiated. Id. col. 6 ll. 63–
67.
    InterDigital asserts independent claim 1 and depend-
ent claims 2, 3, and 5 of the ’830 patent and independent
claim 1 and dependent claims 2, 4, and 6–8 of the ’636
patent. Claim 1 of the ’830 patent, which is representa-
tive for purposes of this appeal, provides in relevant part:
       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 communi-
          cations with a base station associated with
          the network over a communication channel
          to be indicated by the base station, the
          transmitter successively sends transmis-
          sions prior to the subscriber unit receiving
          from the base station an indication that at
          least one of the successively sent transmis-
          sions has been detected by the base station;
        wherein each of the successively sent trans-
          missions is produced using a sequence of
          chips, wherein the sequence of chips is not
          used to increase bandwidth;
        ....
        wherein each of the successively sent trans-
          missions is shorter than the message;
INTERDIGITAL   v. ITC                                     5



        ....
Id. col. 10 l. 54–col. 11 l. 16 (emphases added).
                2. The Power Control Patents
    The Power Control Patents relate to how the sub-
scriber unit and the base station adjust their transmis-
sion power level after a connection is established.
See ’406 patent col. 5 ll. 46–66. In particular, the patents
describe sending messages back and forth indicating
whether the power level should be increased or decreased.
Id. These messages are known as “adaptive,” id. col. 2 ll.
29–30, or “automatic power control” information (“APC
information”), id. col. 5 ll. 48–50.
    For the ’406 patent, InterDigital asserts dependent
claims 6, 13, 20, and 26 (which depend, respectively, from
independent claims 1, 7, 15, and 21) and independent
claim 29. For the ’332 patent, InterDigital asserts claims
2–4, 7–11, 14, 22–24 and 27. Claims 1 and 7 of the ’406
patent, which InterDigital asserts are representative for
present purposes, provide:
       1. A method for controlling transmission pow-
    er levels of a code division multiple access
    (CDMA) subscriber unit, the method comprising:
        receiving by the subscriber unit a power con-
           trol bit on a downlink control channel, the
           power control bit indicating either an in-
           crease or decrease in transmission power
           level;
        transmitting a plurality of channels by the
           subscriber unit, the plurality of channels
           including a traffic channel and a reverse
           control channel;
        in response to the received power control bit,
           adjusting a transmission power level of
           both the traffic channel and the reverse
6                                         INTERDIGITAL     v. ITC



          control channel, wherein the transmission
          power level of the traffic channel and the
          reverse control channel are different; and
        transmitting the traffic channel and the re-
           verse control channel at their respective ad-
           justed transmit power levels.
’406 patent col. 14 l. 57–col. 15 l. 9 (emphases added).
       7. A method for controlling transmission pow-
    er levels of a code division multiple access
    (CDMA) subscriber unit, the method comprising:
        receiving by the subscriber unit a series of
           power control bits on a downlink channel,
           each power control bit indicating either an
           increase or decrease in transmission power
           level;
        transmitting a plurality of channels by the
           subscriber unit, the plurality of channels
           including a traffic channel and a reverse
           control channel;
        adjusting a transmission power level of both
          the traffic channel and the reverse control
          channel in response to the same bits in the
          received series of power control bits, where-
          in the transmission power level of the traf-
          fic channel and the reverse control channel
          are different; and
        transmitting the traffic channel and the re-
           verse control channel at their respective ad-
           justed transmit power levels.
Id. col. 15 ll. 28–45 (emphases added).
                 3. The Dual Mode Patent
    The Dual Mode Patent relates generally to subscriber
units that can switch between different types of networks,
INTERDIGITAL   v. ITC                                    7



such as CDMA cellular networks and local wireless net-
works, to transfer data. ’970 patent abstract. According
to InterDigital, the patented innovation describes a way
for the subscriber unit itself to make the CDMA commu-
nication channels available for use rather than waiting
for the base station to allocate a channel.
    For the Dual Mode Patent, InterDigital asserts inde-
pendent claim 1 and dependent claims 2–9. Claim 1
states in relevant part:
       1. A subscriber unit comprising:
       a cellular transceiver configured to communi-
          cate with a cellular network via a cellular
          layered communication protocol;
       ....
       wherein the cellular layered communication
         protocol includes a plurality of layers above
         a physical layer, and a plurality of physical
         layer channels are available for assignment
         for communication with the cellular net-
         work and a communication session above
         the physical layer is maintained when all
         assigned physical layer channels have been
         released.
Id. col. 11 ll. 5–24 (emphasis added).
                 B. Commission Proceedings
     In 2011, InterDigital filed a complaint with the Com-
mission, alleging that several importers were violating
Section 337 by importing, selling for importation, or
selling after importation into the United States wireless
devices that infringe InterDigital’s patents. The Commis-
sion instituted an investigation and named several re-
spondents, including intervenors Nokia Inc., Nokia
8                                        INTERDIGITAL   v. ITC



Corporation, 2 ZTE Corporation, and ZTE (USA) Inc.
(collectively, “Intervenors”). 76 Fed. Reg. 54,252 (Aug. 31,
2011). After a seven-day hearing, the Administrative Law
Judge (“ALJ”) issued a 448-page initial determination.
Certain Wireless Devices with 3G Capabilities and Com-
ponents thereof, Inv. No. 337-TA-800 (June 28, 2013)
(“Initial Determination”). The ALJ found the Power
Ramp-Up Patents and the Power Control Patents not
infringed and held the Dual Mode Patent invalid as
obvious. After making a few modifications, the Commis-
sion upheld the rulings. InterDigital appealed, challeng-
ing the construction of a single claim term in each of the
patent groups at issue.
                       DISCUSSION
     We review the Commission’s legal rulings de novo and
its findings of fact for substantial evidence. Osram GmbH
v. Int’l Trade Comm’n, 505 F.3d 1351, 1355 (Fed. Cir.
2007). In construing claims, we rely primarily on the
claim language, the specification, and the prosecution
history. Phillips v. AWH Corp., 415 F.3d 1303, 1314–17
(Fed. Cir. 2005) (en banc). We may also seek guidance
from extrinsic evidence such as expert testimony, diction-
aries, and treatises. Id. at 1317–18.
             A. The Power Ramp-Up Patents
    At issue concerning the Power Ramp-Up Patents is
the construction of “successively sends [or sent] transmis-
sions.” The ALJ construed the term to mean “transmits


    2    Nokia Corporation subsequently transferred its
Devices & Services Business to Microsoft Mobile Oy.
Microsoft Mobile Oy was correspondingly substituted as
an intervenor in this appeal. InterDigital Commc’ns, LLC
v. Int’l Trade Comm’n, No. 2014-1176 (Fed. Cir. July 11,
2014) (order granting motion to substitute intervenor).
INTERDIGITAL   v. ITC                                    9



to the base station, one after the other, codes that are
shorter than a regular length code,” and the Commission
adopted that construction. Commission’s Decision at 19.
The Commission also adopted the ALJ’s conclusion that
the patents “disclose that the codes successively transmit-
ted during the random access process (i.e., the short
codes) are neither modulated with data, nor used to
modulate data.” Id. at 26. In so holding, the Commission
relied on the fact that previously, when discussing a
patent with the same specification as the Power Ramp-Up
Patents, the Federal Circuit determined that:
   the specification describes various codes, such as
   pilot codes and short codes, as “spreading codes”
   even though they carry no data and are not in-
   tended to do so.
InterDigital Commc’ns, 690 F.3d at 1326 (emphases
added).
    The Commission also cited the following from the
specification:
   The preferred embodiment of the present inven-
   tion utilizes “short codes” and a two-stage com-
   munication link establishment procedure to
   achieve fast power ramp-up without large power
   overshoots. The spreading code transmitted by the
   subscriber unit 16 is much shorter than the rest of
   the spreading codes (hence the term short code),
   so that the number of phases is limited and the
   base station 14 can quickly search through the
   code. The short code used for this purpose carries
   no data.
’830 patent col. 7 ll. 36–44 (emphases added).
    Finally, the Commission relied on InterDigital’s ex-
pert, who testified as follows:
10                                      INTERDIGITAL   v. ITC



     Q. All right. Now the successively sent transmis-
     sions of claim 1, those are the short codes de-
     scribed in the 830 patent, correct?
     A. Yes, the repeated transmissions of the short
     code are the successively sent transmissions.
     Q. And in the power ramp-up patents, the short
     code is not applied to a data signal, correct?
     A. Correct.
Commission Decision at 28.
    The Commission then affirmed the ALJ’s finding that
the accused products do modulate data and thus do not
meet the “successively sends transmissions” limitation.
    InterDigital now presents several arguments as to
why “the Commission erred in limiting the successively
transmitted short codes to codes ‘not modulated by data.’”
Appellants’ Br. 33. First, InterDigital argues that the
Commission improperly limited the claim term by relying
on statements concerning only a preferred embodiment.
    This argument is not without weight. The limitation
that short codes carry no data does follow a description of
the preferred embodiment. And, as InterDigital argues,
the contested limitation is not found in the only other
places that short codes are mentioned, the Abstract and
Summary of the Invention. See ’830 patent abstract (“The
short code is a sequence for detection by the base station
which has a much shorter period than a conventional
access code.”); id. col. 3 ll. 22–24 (“The short code is a
sequence for detection by the base station which has a
much shorter period than a conventional spreading
code.”).
    But the argument does not carry sufficient weight.
Given that the entire invention is described by reference
to a preferred embodiment, the argument that the limita-
tion is raised in the context of the preferred embodiment
INTERDIGITAL   v. ITC                                    11



is less persuasive. And the fact that the carries-no-data
limitation is expressly tied to the purpose of the short
codes, which InterDigital does not dispute is universal to
the invention, also undermines this argument.
    And we do not think that the summary statements
about “short codes” in the Abstract and Summary of the
Invention—where full explanations of the term are not
expected—are sufficient to justify a broader reading of
short codes. See 37 C.F.R. § 1.72(b) (“The purpose of the
abstract is to enable the Office and the public generally to
determine quickly from a cursory inspection the nature
and gist of the technical disclosure.”).
    In the end, InterDigital’s argument that the carries-
no-data limitation applies only to a preferred embodi-
ment, although not trivially dismissed, is insufficient to
overcome this court’s prior conclusions, a proper reading
of the specification, and InterDigital’s own expert testi-
mony.
    Second, InterDigital argues that “the Commission’s
construction improperly excludes an express preferred
embodiment.” Appellants’ Br. 44. The Power Ramp-Up
Patents’ specification expressly incorporates by reference
U.S. Patent No. 5,799,010 (“’010 patent”). According to
InterDigital, in the ’010 patent “the short codes are modu-
lated by ‘data’ in the sense that the selection from among a
known set of short codes could indicate [information].” Id.
at 45 (emphasis added). InterDigital then argues that, in
that sense, the accused products do the same thing, and
should be found to infringe.
    As an initial matter, this argument would have been
more effective at challenging the Commission’s infringe-
ment analysis and not its claim construction. Whether
the accused products, in some sense, do the same thing as
disclosed in the patent sheds little light on the proper
construction of the claim term, the only issue before us.
Further, InterDigital’s argument hinges on conclusory
12                                      INTERDIGITAL   v. ITC



statements about what the ’010 patent discloses, and
InterDigital fails to properly develop or support those
conclusions. InterDigital’s citation to a single table in
the ’010 patent is insufficient. Ultimately, InterDigital’s
argument concerning the ’010 patent is unpersuasive.
    Third, InterDigital argues that “[t]he Commission’s
supporting citations indicate that it also reasoned that
the short codes cannot carry data because that would
purportedly make the successively sent transmissions
unrecognizable to the base station, rendering the system
inoperable.” Id. at 40. InterDigital then goes on to de-
scribe why, in its view, this rationale cannot support the
Commission’s construction and corresponding finding of
no infringement. In response, Intervenors and the Com-
mission contend that InterDigital’s argument was im-
properly raised for the first time on appeal. Ultimately,
we need not reach these arguments and counterargu-
ments because, at most, InterDigital’s position merely
undermines unnecessary support for the Commission’s
holding. The Commission’s construction can stand with-
out this support.
    Fourth, InterDigital argues that the principles of
claim differentiation support not limiting short codes to
codes that do not carry data. According to InterDigital,
other related patents confirm that short codes can include
data. In those patents some of the independent claims
provide that the transmitted signals “carry no data,”
while others do not. InterDigital argues that under the
principles of claim differentiation, the short codes in
claims that do not have a carry-no-data limitation, can
carry data. But, as the Commission points out, claim
differentiation arguments are strongest when distinguish-
ing dependent claims from their independent claims. Cf.
World Class Tech. Corp. v. Ormco Corp., 769 F.3d 1120,
1125 (Fed. Cir. 2014) (“The doctrine of claim differentia-
tion creates a presumption that distinct claims, particu-
larly an independent claim and its dependent claim, have
INTERDIGITAL   v. ITC                                     13



different scopes.”). Here, InterDigital is attempting to
extract meaning by comparing independent claims that
are distinguishable in other ways. See Andersen Corp. v.
Fiber Composites, LLC, 474 F.3d 1361, 1370 (Fed. Cir.
2007) (“A further reason for not applying the doctrine of
claim differentiation in this case is that the [claims at
issue] are not otherwise identical . . . . Instead, there are
numerous other differences varying the scope of the
claimed subject matter.”). Further, those patents, alt-
hough related to the present patents, are not the patents
at issue in this case. The force of claim differentiation
here is diminished and insufficient to overcome the evi-
dence supporting the Commission’s construction.
    We have considered InterDigital’s remaining argu-
ments concerning these patents and find them unpersua-
sive.   We affirm the Commission’s construction of
“successively sends [or sent] transmissions,” and corre-
spondingly affirm its finding of no infringement of the
Power Ramp-Up Patents.
                B The Power Control Patents
    At issue concerning the Power Control Patents is the
Commission’s construction of “power control bit.” The
ALJ construed the term to mean “single-bit power control
information transmitted at an APC data rate equivalent
to the APC update rate.” Initial Determination at 101.
The Commission modified the construction to be simply
“single-bit power control information,” and struck the
later part of the ALJ’s construction. Commission Decision
at 30. It then affirmed the ALJ’s finding of no infringe-
ment based on the ALJ’s finding that the accused prod-
ucts use only multi-bit power control commands. 3 Id. at
38–39.



    3   Having found no infringement the Commission
did not address the ALJ’s determination that the claims
14                                       INTERDIGITAL   v. ITC



    On appeal, InterDigital contends that the Commission
erred in limiting the term to single-bit power control
commands. InterDigital presents several arguments in
support of its position. First, InterDigital turns to the
language of the claims and argues that some of the ’406
patent claims, such as claims 6 and 20, recite “the re-
ceived power control bit,” whereas other claims, such as
claims 13 and 26, recite “the received series of power
control bits.” InterDigital argues that if the latter claims
are not construed to include multi-bit power control
commands, “the express distinction in the language of
these claims would be meaningless.” Appellants’ Br. 51.
    But this claim differentiation argument is unpersua-
sive. As noted above, principles of claim differentiation
are often of limited use where, as here, one is comparing
two independent claims and not dependent claims with
the claims from which they depend. And ultimately, the
latter claims are sufficiently differentiated by requiring a
series of single-bit power control commands, and therefore
need not rely on the inclusion of multi-bit power control
commands for differentiation. It is not the case, as Inter-
Digital contends, that under the Commission’s construc-
tion “claims 13 and 26 ‘cover[] exactly the same subject
matter’ as claims 6 and 20, respectively.” Id.
    Finally, the plain language of the claims shows that
multi-bit power commands were not encompassed within
the scope of those claims, even where a series of power


were not invalid as anticipated. Intervenors argue that
“[o]n de novo review, the Court should reverse this finding
and conclude that, under the correct priority date, all
asserted claims are anticipated by the [prior art].” Inter-
venors’ Br. 52. Because we affirm the Commission’s
finding of no infringement, we do not reach the merits of
this argument or whether this issue is even properly
before us.
INTERDIGITAL   v. ITC                                     15



control bits is referenced. For example, the relevant part
of asserted claim 26 of the ’406 patent states:
   a despreading and demultiplexing device config-
   ured to recover a series of power control bits from
   a downlink channel, wherein each power control
   bit has a value indicating a command to either in-
   crease or decrease transmission power level.
’406 patent col. 16 ll. 36–40 (emphases added).
    Second, InterDigital turns to the specifications and
argues that the portions of the specifications relied on by
the Commission relate only to the preferred embodiment.
As noted by the Commission, the specifications do not use
the term “power control bit,” instead discussing APC
information. Commission Decision at 35–36. The Com-
mission thus looked to the discussion of APC information
to inform its construction of “power control bit.” For
example, the Commission relied on the following state-
ments, among others, to conclude that APC information is
conveyed as single-bit commands:
   APC information is always conveyed as a single
   bit of information, and the APC Data Rate is
   equivalent to the APC update rate.
’406 patent col. 9 ll. 46–48 (emphasis added). Further,
   [t]he APC signal is transmitted as one bit signals
   on the APC Channel. The one-bit signal repre-
   sents a command to increase (signal is logic-high)
   or decrease (signal is logic-low) the associated
   transmit power. In the described embodiment, the
   64kbps APC data stream is not encoded or inter-
   leaved.
Id. col. 6 ll. 47–52 (emphases added).       Similarly, in
the ’332 patent:
   The APC bits are transmitted as one bit up or
   down signals on the APC channel. In the de-
16                                       INTERDIGITAL   v. ITC



     scribed embodiment, the 64 kbs APC data stream
     is not encoded or interleaved.
’332 patent col. 64 ll. 12–14 (emphasis added).
     InterDigital argues that these limiting statements are
all confined to preferred embodiments. But this argument
is unpersuasive. These statements do appear in sections
describing preferred embodiments. That point, however,
carries limited weight because in both patents the entire
invention “has been described in terms of the exemplary
embodiment.” ’406 patent col. 14 ll. 51–52. There is no
discussion of a broader meaning for the term other than
boilerplate language that “it is understood by those
skilled in the art that the invention may be practiced with
modifications to the embodiment that are within the scope
of the invention as defined by the following claims.” Id.
col. 14 ll. 52–55.
    Further, and most importantly, the language of the
excerpts shows that the concept of single-bit power control
commands is not limited to preferred embodiments. As to
the first excerpt, the use of “always” when referring to the
use of “single bit of information,” but not when referring
to the APC Data Rate, indicates that the single-bit limita-
tion is universal to the invention, whereas the APC Data
Rate is not. The second and third excerpts contain that
same distinction, expressly limiting certain characteris-
tics of the APC data stream to the “described embodi-
ment,” but not so limiting the concept of single-bit power
control information.
    InterDigital also argues that a skilled artisan at the
time of the invention would have understood the term
“power control bit” in the same way as that term was used
in an industry standard with which the accused devices
comply. And under that standard, a “power control bit”
can be represented by multiple symbols and, in turn,
multiple underlying bits.
INTERDIGITAL   v. ITC                                     17



    But InterDigital provides no intrinsic evidence to
support its view that “power control bit” was defined the
same way in the Power Control Patents as in the industry
standard. And, to the extent that InterDigital is implying
that the commission erred in its construction of “bit,” the
argument is unpersuasive because the adopted construc-
tion also uses the term “bit,” without restriction as to
what constitutes a bit.
    In sum, InterDigital’s arguments that the Commis-
sion erred in construing “power control bit” are unpersua-
sive. We affirm the Commission’s construction and its
corresponding finding of no infringement.
                  C. The Dual Mode Patent
    The Commission adopted the ALJ’s holding that the
claims of the Dual Mode Patent are invalid as obvious. At
issue on appeal is the construction of “a plurality of physi-
cal layer channels are available for assignment for com-
munication with the cellular network.” The ALJ adopted
InterDigital’s proposed construction of the term, constru-
ing it to mean “two or more physical layer channels
allocable by the subscriber unit for data communication.”
Initial Determination at 303 (emphasis added).
    As part of the obviousness holding, the ALJ reasoned
that (1) in the context of the ’970 patent, “allocation”
means the same thing as “use,” (2) the prior art subscrib-
er units use two or more channels to transmit data, and,
thus, (3) the prior art discloses the contested limitation.
    Given that the ALJ adopted InterDigital’s proposed
construction, InterDigital understandably does not chal-
lenge the express construction. Instead, it argues that the
ALJ improperly modified the construction when doing its
obviousness analysis, specifically by equating “allocation”
with “use.” InterDigital believes that had the ALJ not
equated the terms it would not have held the claims
obvious.
18                                         INTERDIGITAL   v. ITC



     InterDigital’s argument is unpersuasive for several
reasons, most notable of which is that it was InterDigi-
tal’s own expert that equated “allocation” and “use.”
InterDigital’s expert testified as follows:
     Q. Your definition of assign, right is to allocate
     for use?
     ....
     A. . . . . Yes. My definition of assign is to use the
     channel, actually.
     Q. So allocate is use?
     A. Allocate, use, assign, yes.
     Q. So -- and in testimony you just gave, when the
     data is presented to the terminal, the terminal
     can use or assign in your way -- the way you in-
     terpret assign to whatever channels it needs to
     send that data, correct?
     A. The terminal, when presented with data that
     it needs to be transmitted will use a certain num-
     ber of channels that transmit that data from the
     mobile subscriber unit to the base station.
     Q. And that’s -- using there is assigning within
     the claim language, correct?
     A. Yeah, use, assign, yes.
J.A. 30498–99. Thus, according to InterDigital’s own
expert, in the context of this patent “assign,” “allocate,”
and “use” have the same meaning. It follows that the
corresponding claim limitation is satisfied when a sub-
scriber unit can use two or more physical layer channels
for communication. InterDigital has provided no compel-
ling contrary evidence and has not shown that any other
understanding of the construction it proposed is more
appropriate.
INTERDIGITAL   v. ITC                                  19



    InterDigital’s evidence that allocation must occur at
the subscriber unit—and not at the base station—is
unhelpful because the ALJ never concluded otherwise.
Indeed, when addressing infringement, the ALJ concluded
that “the ’970 claims are directed to ‘a subscriber unit,’
and that any allocation of channels must therefore be
performed by the subscriber unit, not the base station.”
Initial Determination at 305. At core, InterDigital simply
disagrees with the breadth of the ALJ’s understanding of
“allocable” as used in the construction. But the ALJ’s
understanding was properly based on InterDigital’s
expert testimony, and InterDigital has provided insuffi-
cient evidence that a different understanding is warrant-
ed.
    Having rejected InterDigital’s only argument on ap-
peal, we affirm the ALJ’s conclusion that the claims are
invalid as obvious.
                        CONCLUSION
    We have considered the remaining arguments and
conclude that they are without merit. For the foregoing
reasons, the Commission’s decision is affirmed.
                        AFFIRMED
