       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

       ADVANCED MEDIA NETWORKS, LLC,
              Plaintiff-Appellant

                           v.

               AT&T MOBILITY LLC,
                  Defendant-Appellee
                ______________________

                      2018-1014
                ______________________

   Appeal from the United States District Court for the
Northern District of Texas in No. 3:15-cv-03496-N, Judge
David C. Godbey.
                ______________________

             Decided: September 17, 2018
               ______________________

    BRIAN ANDREW CARPENTER, Buether Joe & Carpenter
LLC, Dallas, TX, argued for plaintiff-appellant. Also
represented by MICHAEL CLAYTON POMEROY.

    STEVEN MOORE, Kilpatrick Townsend & Stockton
LLP, San Francisco, CA, argued for defendant-appellee.
Also represented by ALTON LUTHER ABSHER, III, CAROLINE
K. WRAY, Winston-Salem, NC; RUSSELL KORN, Atlanta,
GA; TAYLOR HIGGINS LUDLAM, Raleigh, NC; MICHAEL
2       ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




HAWES, Baker Botts, LLP, Houston, TX; LAUREN J.
DREYER, Washington, DC.
              ______________________

    Before PROST, Chief Judge, LOURIE and CHEN, Circuit
                          Judges.
CHEN, Circuit Judge.
    Advanced Media Networks LLC (AMN) sued AT&T
Mobility LLC (AT&T) for alleged infringement of U.S.
Patent No. 5,960,074 (’074 patent), which relates to
wireless networking. The district court issued a claim
construction order and granted AT&T’s motion for sum-
mary judgment of non-infringement as to claims 1–3, 9,
42, and 58 and invalidity under 35 U.S.C. § 305 as to
claims 128–29, 135, 146, 160–61, 165–67, and 171. Be-
cause the district court correctly construed the term
“ethernet packet switching protocol” to require the use of
the IEEE 802.3 or draft IEEE 802.11 standards, and the
construction of this term is dispositive, we affirm.
                       BACKGROUND
            A. Networking Protocols and Layers
    Computer networks typically use several protocols
that work together to transmit information, and these
protocols can be modeled as “layers” in a “stack.” See J.A.
262. For example, the Open Systems Interconnect (OSI)
model has seven layers, which include, starting from layer
1, the physical layer, data link layer, network layer,
transport layer, session layer, presentation layer, and
application layer. J.A. 226.
    In the Internet Protocol (IP), data is divided into
“packets” that are routed to intended destinations and
might not arrive in the order in which they are sent. See
J.A. 227–28. IP is a network-layer (layer 3) protocol. See
id. Transmission Control Protocol (TCP), a transport-
layer (layer 4) protocol, reassembles packets in the proper
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC         3



order. J.A. 228. The combination of TCP and IP is abbre-
viated TCP/IP. J.A. 14.
    “Ethernet” protocols, typically used in local area net-
works, reside below TCP and IP at the data link and
physical layers of the OSI model (layers 2 and 1 respec-
tively). J.A. 273 ¶ 65; J.A. 290. In 1983, the Institute of
Electrical and Electronics Engineers (IEEE) published its
802.3 standard, which was based on preexisting work by
Robert Metcalfe and others. See J.A. 462–63. IEEE 802.3
describes ethernet on a wired network, see J.A. 338, while
a standard ratified in 1997 called 802.11 describes wire-
less ethernet, see J.A. 559; J.A. 272. By 1996, the time of
application for the ’074 patent, a working group had been
developing a draft of the 802.11 standard for five years.
J.A. 271.
     As an example of how protocols at different layers in-
teract, an application such as a file transfer program,
operating at the application layer, might take part of a
file and add an application header to the data before
passing it to the presentation layer. See J.A. 226; J.A.
341. This process repeats from layer to layer. At the
transport and network layers, the data transmission
would rely on TCP and IP, respectively. See id. From the
network layer, the data could be passed to an ethernet
connection at layers 2 and 1. See id. At the physical
layer, the data passes to its destination.
                    B. The ’074 Patent
    The ’074 patent issued from an application dated Sep-
tember 23, 1996. The claimed invention connects a wire-
less local area network (LAN) to a microwave
communication system via a hub. “In one embodiment,
the LAN 104 is a wireless ethernet LAN connecting
multiple remote personal computers (PCs) as nodes.” ’074
patent, col. 4 ll. 32–34. Relevant to the parties’ claim
construction dispute, “[i]n one embodiment, the micro-
wave communication system and the wireless LAN trans-
4       ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




fers information using an ethernet packet switching
protocol . . . .” Id. col. 2 ll. 9–11. Claim 1 is illustrative:
    1. A telecomputer network system comprising:
        a redundant digital microwave communi-
        cation system;
        a wireless local area network (LAN); and
        a mobile hub station configured to transfer
        information as a single nomadic transmis-
        sion/reception point between the micro-
        wave communication system and the
        wireless LAN using an ethernet packet
        switching protocol.
               C. Prior USPTO Proceedings
    The ’074 patent issued in 1999 with 40 claims. J.A.
21. During the course of four ex parte reexaminations,
AMN amended certain claims in ways that are not at
issue in this appeal and added 131 claims, for a total of
171 claims. Id. No claims were found unpatentable. 1
                  D. The Instant Dispute
    AMN sued AT&T in October 2015. AMN accused
smartphones and other devices operating on AT&T’s
wireless 3G and 4G/LTE network of infringing claims of
the ’074 patent. J.A. 1434–35; J.A. 174. AMN argued
that AT&T’s wireless communication system constitutes a
“redundant digital microwave communication system”
under the claims. J.A. 1434. Further, AMN accused
smartphones and other devices capable of acting as wire-
less access points (or “hotspots”) of satisfying the ’074


    1  Additionally, six Inter Partes Review petitions
have been filed against the ’074 patent. Appellant Br. 29.
The results of those proceedings are not before us.
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC         5



patent’s “wireless LAN” and “mobile hub” limitations.
J.A. 1434–35.
    On March 1, 2017, the district court issued a claim
construction order. J.A. 1–14. The district court con-
strued “ethernet packet switching protocol” to mean “a
packet switching protocol defined by the IEEE 802.3 and
draft IEEE 802.11 standards as of the filing date of the
Patent.” J.A. 9. The district court also adopted AT&T’s
proposed construction of “wireless local area network
(LAN)” and construed it to mean “an access point device
and client devices connected by local over-the-air links
through which the client devices communicate with the
access point device.” J.A. 8.
     AMN argued that AT&T’s accused devices satisfy the
“ethernet packet switching protocol” limitation because
(a) the devices, when acting as mobile hotspots, rely on IP
to transfer data between connected clients and servers on
the Internet via AT&T’s 3G or 4G/LTE network; and (b)
in AMN’s view, IP is an ethernet packet switching proto-
col. See J.A. 104.
    On August 25, 2017, the district court rejected AMN’s
argument that IP—independent of 802.3 or 802.11—is an
“ethernet packet switching protocol” and granted sum-
mary judgment of non-infringement for claims 1–3, 9, 42,
and 58. Advanced Media Networks, LLC v. AT&T Mobili-
ty LLC, No. 3:15-CV-3496-N, 2017 WL 3987201 (N.D. Tex.
Aug. 25, 2017). The district court also analyzed claims
128–29, 135, 146, 160–61, 165–67, and 171, which were
added in reexamination and recite “internet protocol”
instead of “ethernet packet switching protocol.” The
district court concluded that because “ethernet packet
switching protocol” does not encompass IP, these claims
impermissibly broadened the scope of claim 1 and were
thus invalid under 35 U.S.C. § 305. Id. at *2. AMN
appealed.     We have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
6        ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




                         DISCUSSION
    I. Construction of “Ethernet Packet Switching Protocol”
    The “ultimate issue of the proper construction of a
claim” is “a question of law” that we review de novo. Teva
Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 838–39
(2015). When a district court “consult[s] extrinsic evi-
dence in order to understand, for example, the back-
ground science or the meaning of a term in the relevant
art during the relevant time period,” the district court’s
“subsidiary factfinding must be reviewed for clear error on
appeal.” Id. at 841.
    There is a “heavy presumption” that claim terms “car-
ry their accustomed meaning in the relevant community
at the relevant time.” Home Diagnostics, Inc. v. LifeScan,
Inc., 381 F.3d 1352, 1355 (Fed. Cir. 2004). “A claim term
should be given its ordinary meaning in the pertinent
context, unless the patentee has made clear its adoption
of a different definition or otherwise disclaimed that
meaning.” Ancora Techs., Inc. v. Apple, Inc., 744 F.3d
732, 734 (Fed. Cir. 2014). For a patentee to act as its own
lexicographer and give a term something other than its
well-established meaning, the patentee must “clearly set
forth a definition of the disputed term.” CCS Fitness, Inc.
v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
    The district court construed “ethernet packet switch-
ing protocol” to mean “a packet switching protocol defined
by the IEEE 802.3 and draft IEEE 802.11 standards as of
the filing date of the Patent.” J.A. 9. The parties dispute
whether an “ethernet packet switching protocol” encom-
passes any system that transfers data between a wireless
LAN and a microwave communication system using
TCP/IP (such as AT&T products used as wireless
hotspots), or whether, to satisfy this limitation, a device
needs to transfer data between the networks using the
IEEE 802.3 or 802.11 protocols.
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC           7



    The parties’ disagreement centers on the meaning of
“ethernet” when combined with the phrase “packet
switching protocol.” While AMN argues that “ethernet”
broadly encompasses any transmission protocol that relies
on a “shared transmission medium,” AT&T argues that by
1996, persons of skill in the art defined “ethernet” with
reference to the IEEE 802.3 and draft 802.11 standards.
The specification sheds no light on which construction of
“ethernet” is correct; it does not discuss shared media, nor
does it discuss the 802.3 or 802.11 standards. According-
ly, the parties and the district court relied on extrinsic
evidence to establish the meaning of “ethernet packet
switching protocol” in 1996.
    The district court reviewed the evidence presented
and found that persons of ordinary skill in the art in 1996
understood “ethernet” to refer the IEEE 802.3 and draft
802.11 standards. Relying in part on a networking text-
book, AT&T’s expert declared: “As of 1996, those of ordi-
nary skill in the art understood ‘ethernet’ to refer to the
IEEE 802.3 standard protocol.” J.A. 270; J.A. 224 (“IEEE
802.3, popularly called Ethernet™, for example, is a bus-
based broadcast network . . . .”); see also Ethernet, Federal
Standard 1037C, Telecommunications: Glossary of Tele-
communication Terms (1996), J.A. 1455 (“Ethernet: A
standard protocol (IEEE 802.3) . . . .”); Ethernet, Oxford
Dictionary of Computing (4th ed. 1996), J.A. 455 (“The
formal definition of the Ethernet standard is available as
ISO 802.3.”). AT&T’s expert explained that “ethernet”
was not limited to 802.3, which specified wired network-
ing: “Because of its many similarities with the IEEE 802.3
protocol . . . the IEEE 802.11 standard was at the time of
the application for the ’074 patent often referred to by
those of ordinary skill in the art as ‘wireless ethernet.’”
J.A. 272. Moreover, “[b]y 1996, the IEEE 802.11 working
group had been developing the IEEE 802.11 wireless LAN
standard for five years.” J.A. 271. AMN submitted other
extrinsic evidence in support of its “shared medium”
8       ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




construction, e.g., J.A. 444; J.A. 309–10; but none of
AMN’s citations compels reversal.
    AT&T’s expert also distinguished ethernet from
TCP/IP because ethernet operates at the physical and
data link layers of the OSI model, while IP and TCP
operate at the network and transport layers, respectively.
J.A. 273. One technical dictionary on which both parties
rely indicates that “Ethernet is a physical link and data
link protocol reflecting the two lowest layers of the
DNA/OSI model.” Ethernet, Newton’s Telecom Dictionary
(7th Ed. 1994), J.A. 290. AMN cites no technical litera-
ture indicating that “ethernet” encompasses IP. Indeed,
AMN concedes that “the noun ‘ethernet’ and the noun ‘IP’
are not the same.” Reply Br. 4 (emphasis added). To the
extent AMN is arguing that using “ethernet” as an adjec-
tive rather than as a noun somehow changes its meaning
and broadens its scope, AMN has presented no intrinsic or
extrinsic evidence clear enough to compel departure from
the conventional understanding of “ethernet,” which
requires IEEE 802.3 or 802.11.
    Based on the evidence of record, the district court did
not clearly err in making a factual finding that to a per-
son of ordinary skill in the art in 1996, “ethernet” referred
to the IEEE 802.3 and draft 802.11 standards. 2
    Thus, in light of the district court’s well-supported
findings, and in the absence of a redefinition or disclaimer
by the patentee, the ordinary meaning of an “ethernet
packet switching protocol” requires transmitting data in



    2   The district court did not construe “packet switch-
ing protocol” independently of “ethernet.” J.A. 8–9. On
appeal, the parties agree that “packet switching protocol”
needs no independent construction, as one skilled in the
art would have readily understood it.
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC           9



packets over a data link that uses the IEEE 802.3 or draft
IEEE 802.11 standards as of the filing date of the patent.
For example, a device that uses IP at OSI layer 3 and
IEEE 802.11 at OSI layer 2 uses an ethernet packet
switching protocol. On the other hand, a device that uses
IP at OSI layer 3 and does not use IEEE 802.3 or 802.11
would not use an ethernet packet switching protocol. 3
“Ethernet” had such a well-understood meaning by 1996
that, without further guidance in the intrinsic record, it is
unreasonable to suggest that “ethernet packet switching
protocol” referred simply to layer 4 and layer 3 protocols
such as TCP/IP, without the 802.3 or 802.11 protocols at
layer 2.
    AMN nevertheless argues that when used in conjunc-
tion with “packet switching protocol,” ethernet refers not
to 802.3 or 802.11, but more broadly to communication
using a packet switching protocol “via a shared transmis-
sion medium.” While AMN does not explicitly state that
it was acting as its own lexicographer, the thrust of
AMN’s argument is that the definition of “ethernet packet
switching protocol” does not require the commonly under-
stood “ethernet” protocols (i.e., 802.3 or 802.11) but in-
cludes IP alone. As explained below, we disagree.
    A construction of “ethernet” requiring IEEE 802.3 or
draft 802.11 is consistent with the structure of the claims.
Claim 1 recites, in relevant part: “a mobile hub station
configured to transfer information . . . between the micro-
wave communication system and the wireless LAN using


    3   The parties dispute whether 802.3 or 802.11,
without any layer 3 protocols such as IP, are “ethernet
packet switching protocols.” We need not resolve this
issue because AMN’s infringement theory is based on the
accused devices’ use of the layer 3 Internet Protocol and
not IEEE 802.3 or 802.11.
10     ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




an ethernet packet switching protocol.” On its face, claim
1 does not require the use of TCP/IP. Dependent claim 3
recites “[t]he network defined in claim 1 wherein the
information is transferred using the TCP/IP protocol.”
AMN argues that TCP/IP must be a limitation on “ether-
net packet switching protocol.” But claim 3 does not
actually specify that “the ethernet packet switching
protocol is TCP/IP.” As explained above, TCP/IP and
ethernet operate at different layers in the OSI model and
can operate in parallel or independently. See, e.g., J.A.
228; J.A. 335. AMN’s expert agreed that TCP/IP data at
layers 3 and 4 could be carried via ethernet protocol at
layer 2, or via a layer 2 protocol other than ethernet. J.A.
1382–83 at 91:25–92:8. Thus, claim 3 could be interpret-
ed to require ethernet protocol at layer two plus TCP/IP
at layers 3 and 4. The claim structure does not indicate
that TCP/IP alone is a type of ethernet packet switching
protocol.
    AMN primarily relies on two passages in the specifi-
cation to argue that “ethernet packet switching protocol”
includes IP even without 802.3 or draft 802.11. The
specification states: “In one embodiment, the microwave
communication system and the wireless LAN transfers
information using an ethernet packet switching protocol,
such as an Internet protocol (e.g., the TCP/IP protocol).”
’074 patent, col. 2 ll. 8–11. Furthermore, the specification
states: “In one embodiment, the microwave communica-
tion system transfers information using multiple relay
stations via an ethernet packet switching protocol such as
the IEEE 802.10 protocol or the TCP/IP protocol used on
the World Wide Web.” Id. col. 2 ll. 49–53.
    AMN’s citation to these passages is unpersuasive.
For a patentee to act as its own lexicographer and give a
term something other than its well-established meaning,
the patentee must “clearly set forth a definition of the
disputed term.” CCS Fitness, 288 F.3d at 1366. Here, the
specification does not provide a clear definition of “ether-
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC        11



net packet switching protocol.” Rather, it briefly men-
tions two possible embodiments, one using TCP/IP and
one using a security protocol known as 802.10 that the
specification does not mention elsewhere. Under our
precedents, these brief references in the specification do
not constitute a redefinition of the well-understood term
“ethernet.”
     For example, in Ancora, we held that a patent specifi-
cation that used a term in a limited manner to describe
embodiments was insufficient to redefine the term. 744
F.3d at 735. We analyzed whether the term “program” in
a patent was limited to application programs or could also
include operating systems, in accordance with the ordi-
nary meaning of “program.” Id. We noted that the speci-
fication discussed using the claimed invention to verify
“application” programs in several examples, including an
example describing a “preferred embodiment.” Id. Never-
theless, we explained that “nothing in the specification
would lead one of ordinary skill in the art to understand
that the claims use ‘program’ in a sense narrower than its
ordinary meaning.” Id. Just as a description of a “pre-
ferred embodiment” in Ancora was insufficient to redefine
“program,” here, a description of “one embodiment” of an
“ethernet packet switching protocol” is insufficient to
redefine “ethernet.” The specification’s mention of an
embodiment using TCP/IP does not exclude a communica-
tion system using ethernet (802.3 or 802.11 at OSI layer
2) in combination with TCP/IP at OSI layers 3 and 4.
    We have also held that a patentee’s “inconsistent” us-
age of a term in the intrinsic record did “not clearly indi-
cate that the patent use[d] the language at issue without
its accepted scientific descriptive meaning.” Bayer Crop-
Science AG v. Dow AgroSciences LLC, 728 F.3d 1324,
1328 (Fed. Cir. 2013) (holding that “[n]othing in the
intrinsic record affirmatively indicates that, if the phrase
‘2,4–D monooxygenase’ is descriptive, the ‘mono’ part is to
be ignored”). AMN’s proposed construction would have us
12     ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




ignore the accepted meaning of “ethernet” in “ethernet
packet switching protocol.”
    AMN also relies on a statement during prosecution
that the prior art does not disclose an “ethernet packet
switching protocol such as a TCP/IP protocol” to argue
that the disputed term includes IP. But like AMN’s cited
statements from the specification, this fails to set forth a
clear definition of “ethernet packet switching protocol”
that could displace the ordinary meaning of “ethernet,”
which requires 802.3 or 802.11. Even if, as AMN argues,
“packet switching protocol,” in isolation, could encompass
IP or any other protocol that sends data in packets (such
as the IPX protocol), AMN does not explain how combin-
ing “ethernet” with “packet switching protocol” could
broaden the phrase “ethernet packet switching protocol”
to mean IP or TCP/IP, independent of the use of 802.3 or
draft 802.11. Like the district court, we reject adopting
an interpretation of “ethernet packet switching protocol”
that would essentially give no meaning to the word
“ethernet.”
    AMN’s remaining claim construction arguments are
unpersuasive. AMN argues that draft 802.11, the only
wireless protocol that fits the court’s construction of
“ethernet,” has short range and would not be suitable to
transfer data to the “redundant microwave communica-
tion system,” which, AMN argues, is a wireless wide-area
network, or WAN. As AT&T points out, however, AMN
cites no evidence in support of its argument, and the
claims at issue on appeal do not require a wireless WAN,
but simply a microwave communication system, which is
not restricted to a wide area network. Thus, even though
802.11 is typically associated with local area networks,
that fact should not render it unsuitable for the claims as
written.
   AMN also argues that the fact that claims 128 and
160—which recite “using an Internet protocol” instead of
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC      13



“using an ethernet packet switching protocol”—issued
during reexamination shows that the PTO believed IP
was in the scope of “ethernet packet switching protocol.”
As AT&T points out, however, this Court has refused to
use later-issued claims to determine the scope of earlier-
issued claims. See ArcelorMittal France v. AK Steel Corp.,
786 F.3d 885, 889 (Fed. Cir. 2015).
     Finally, AMN asserts that construing the disputed
term to require the use of 802.3 or draft 802.11 would
exclude the purported embodiments of “ethernet packet
switching protocols” listed in the specification, namely
TCP/IP and 802.10. But, as AT&T points out, nothing
precludes the use of TCP/IP or 802.10 in conjunction with
802.3 or 802.11 ethernet technology. As AMN’s expert
acknowledged, “TCP/IP can [be] and frequently is used on
802.11 networks.” J.A. 655 ¶ 26. Moreover, AT&T’s
expert explained that 802.10’s security functions “can be
used in networks based on IEEE 802 physical or data link
layer protocols.” J.A. 274 ¶ 66. AMN’s counsel agreed
that 802.10’s security features can be used in networks
utilizing IEEE 802.3 or 802.11 ethernet. Oral Arg. 14:41–
52.
    In summary, the district court correctly concluded
that an “ethernet packet switching protocol” requires the
use of the IEEE 802.3 or draft IEEE 802.11 standards. 4



   4    AT&T also argues that during reexamination of
the ’074 patent, AMN disclaimed TCP/IP from being an
ethernet packet switching protocol. Because the plain
meaning of the disputed term provides a sufficient basis
to establish that an “ethernet packet switching protocol”
requires the use of IEEE 802.3 or draft IEEE 802.11, we
need not reach the issue of disclaimer. Moreover, because
our construction of “ethernet packet switching protocol”
14     ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




                 II. Summary Judgment
    We apply the law of the regional circuit when review-
ing a district court’s grant of summary judgment. Classen
Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 892,
896 (Fed. Cir. 2015). The Fifth Circuit reviews a district
court’s grant of summary judgment de novo. Profectus
Tech. LLC v. Huawei Techs. Co., 823 F.3d 1375, 1379
(Fed. Cir. 2016).
                   A. Non-Infringement
    AMN agrees that claim construction is case-
dispositive, 5 but AMN argues that it should prevail even
if “ethernet packet switching protocol” requires IEEE
802.3 or draft 802.11 because AMN found what it charac-
terizes as a “draft 802.11” document, which, AMN claims,
“defines” IP. The district court concluded that IP “is the
protocol defined by IETF RFC 791 and its progeny
through the filing date of the patent,” J.A. 14, and AMN
has not appealed this ruling. However, AMN asserts that
a draft specification entitled “IEEE P802.11-96/108, Draft
Inter Access Point Protocol (IAPP) Specification” (J.A.
613–36) disclosed IP in substantially the same level of
detail as RFC 791. According to AMN, because the IAPP
document discusses IP in detail, and the IAPP document
constitutes a “draft 802.11 standard,” IP must constitute
an “ethernet packet switching protocol,” and any device
that uses IP can satisfy the relevant limitation of claim 1.
The district court rejected AMN’s reasoning. 2017 WL
3987201 at *1–2.



renders all asserted claims either invalid or not infringed,
we need not reach the construction of “wireless LAN.”
    5   Appellant Br. 56 (“AMN conceded that it could
prove infringement only if [ethernet packet switching
protocol] included within its scope IP.”)
ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC       15



     We agree with the district court that the IAPP docu-
ment does not define IP. On appeal, AMN admits that
“RFC 791, published in 1981, ‘specifies the DoD Standard
Internet Protocol.’” Appellant Br. 7. During claim con-
struction, AMN explicitly argued that “TCP/IP is not
defined by the IEEE 802.x family of standards, but is
instead defined by various Internet Engineering Task
Force Request for Comments documents.” J.A. 426 (em-
phasis added). AMN clearly understood that IP does not
fall within the formal technical specifications of the IEEE
802.3 or draft 802.11 standards but is instead defined
elsewhere. Even if the IAPP document were a “draft
802.11 standard”—and the district court determined that
it was not 6—AMN still would not be able to identify any
draft 802.11 standard specifying that IP is an “ethernet
packet switching protocol.”
    Because IP—without 802.3 or 802.11—does not meet
the definition of an ethernet packet switching protocol,
and AMN’s only infringement theory was based on the
accused products’ use of IP, the district court did not err
in granting summary judgment of non-infringement.
          B. Invalidity of Reexamination Claims
     The district court granted summary judgment of inva-
lidity of claims 128–29, 135, 146, 160–61, 165–67, and
171, which recite “internet protocol” instead of “ethernet
packet switching protocol” because it concluded that the
claims are broader than the claims in the original patent.
See 35 U.S.C. § 305 (“No proposed amended or new claim
enlarging the scope of a claim of the patent will be per-
mitted in a reexamination proceeding under this chap-



   6     In light of the analysis above, we need not reach
the district court’s ruling that the IAPP document “is
facially not a draft IEEE 802.11 standard.” J.A. 17.
16     ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC




ter.”). AMN’s only argument for reversal is that the
claims are not broader because IP is within the scope of
“ethernet packet switching protocol.” Because we reject
AMN’s argument that IP, without IEEE 802.3 or draft
802.11, is encompassed within the term “ethernet packet
switching protocol,” we also affirm the district court’s
conclusion that claims 128–29, 135, 146, 160–61, 165–67,
and 171 impermissibly broadened the scope of the claims
in the ’074 patent.
                  III. Remaining Issues
    AMN complains that the district court erred in taking
judicial notice of evidence outside the record in construing
the challenged claim terms and granting summary judg-
ment. See Appellant Br. 5. In this case, any error in
relying on the challenged material was harmless, because
even without the challenged material, the record supports
the district court’s conclusion that using IP without IEEE
802.3 or draft 802.11 does not satisfy the “ethernet packet
switching protocol” limitation.
    We have considered AMN’s other arguments and find
them unpersuasive. For the foregoing reasons, we affirm
the district court’s order granting summary judgment.
                       AFFIRMED
