Optis Cellular Technology LLC and Ors v Apple Retail UK Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Birss,Lord Justice Arnold,Lord Justice Newey |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] EWCA Civ 758 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001086 |
[2023] EWCA Civ 758
Lord Justice Newey
Lord Justice Arnold
and
Lord Justice Birss
Case No: CA-2022-001086
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES,
INTELLECTUAL PROPERTY LIST (ChD), PATENTS COURT
Mr Justice Meade
HP-2019-000006
Royal Courts of Justice
Strand, London, WC2A 2LL
Lindsay Lane KC, Jeremy Heald (instructed by Wilmer & Hale) for the Appellants
Tom Hinchliffe KC, Jennifer Dixon (instructed by EIP) for the Respondents
Hearing dates: 16, 17 & 18 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal concerns two patents said to be essential to the 4G LTE mobile telephony standard. They are EP (UK) 2 187 549, entitled “Radio communication device and response signal diffusion method”, and EP (UK) 2 690 810, entitled “Radio communication device and response signal spreading method”. The 810 patent is a divisional of the 549 patent. The patents claim priority from a Japanese filing dated 13 th August 2007. The patents belong to the respondent, Optis. Following a trial in January 2022, Meade J gave judgment on 15 th March 2022 ( [2022] EWHC 561 (Pat)) holding that the patents were both valid as amended, essential to the relevant standard, and infringed by the mobile telephones of the appellant (Apple). The appellant appeals with the permission of the judge.
The patents are concerned with an uplink control channel in LTE called the Physical Uplink Control Channel (PUCCH). This channel is used by mobiles to send two kinds of signal to the base station. One is called an ACK/NACK and indicates whether a packet of data previously sent by the base station to the mobile has been accurately received (ACK) or not (NACK). The other is called CQI (which stands for channel quality indicator) and signals the quality of the downlink channel from the base station as received by the mobile. That information helps the base station allocate optimal resources to downlink communications. Control signalling on the PUCCH is sent via resource blocks which are shared between mobile phones. In other words these control signals from multiple mobiles are sent using the same set of resources controlled by the base station.
The claims are directed to so called “mixed resource blocks” (or MRBs). These are resource blocks which contain both ACK/NACK and CQI signals, whereas by contrast “dedicated” resource blocks contain only one kind of signal. Since a given mobile will only transmit one kind of signal, ACK/NACK or CQI, at one time, a mixed resource block will necessarily involve signals from different mobiles. This can lead to problems of interference between the signals, and the claims provide for the use of sets of rules which include restrictions to separate out the signals so as to keep the risk of interference at an acceptable level and allow the base station to distinguish the messages.
The claims in their amended form refer to the set of rules as a “code multiplexing structure”. The effect of the rules can be explained using a pattern, examples of which are shown in the figures of the patents. The key decisions, such as whether to use mixed resources blocks at all and, if so, which particular code multiplexing structure to use, are made by the base station. Nevertheless the claims in issue in this case are claims to the mobile itself. The main issues on this appeal arise from that.
Although mixed resource blocks are required by the LTE standard, and are used in some countries, they are not used in the UK. Broadly the reason is because of the way radio spectrum bandwidth is allocated to network operators here, but the details do not matter. Therefore a method implementing the inventions will not be in use in the UK. However, as the judge held, the patent claims mobiles adapted to use this system and the appellant's mobiles are so adapted. An issue on appeal is whether these conclusions are correct. What is not in dispute is that the appellant's mobiles need this capability in order to be compliant with the relevant standard. Moreover it is also not in dispute that the relevant mobiles will operate in the right way if they are taken abroad to a place in which the mixed resource blocks are in operation. In other words for the mobiles to be able to “roam” to other places, they need to have that capability.
The judgment, rightly, covered a lot of ground and handled numerous issues, many of which do not arise on appeal. Before this court the application to amend the claims is no longer in issue and we can take the claims as amended. Moreover significant parts of the obviousness case in issue below are not in issue before this court. This appeal relates to three topics:
i) Claim construction. The question is whether, as the appellant contends, the relevant claims (of 549 and 810) are limited to mobiles when they are using the relevant technique or are wider. There is also an issue, if the wider construction is adopted, whether the appellant's mobiles satisfy the claim.
ii) Anticipation. The question is whether, if claim 1 of 549 is construed widely, as the respondent contends and the judge held, it lacks novelty over prior art referred to as “Nokia”. Nokia is paper R1-073006 produced for a June 2007 meeting (3GPP TSG RAN WG1 #49bis) of the relevant standard setting group.
iii) Construction and obviousness of claim 1 of the 810 patent. The issues here relate to a technique called implicit signalling and to a document referred to as the “Kobe agreement”. The Kobe agreement is another, earlier, document arising from the same standard setting process. It is a draft report or in effect minutes of the May 2007 meeting of the same group (Paper R1-072646 3GPP TSG RAN WG1 Meeting #49b).
Claim 1 of the 549 patent (as amended) is in the following form. The labelling of the integers is the same as below.
1 (a) A radio communication apparatus of a mobile station adapted to spread and transmit an ACK/NACK signal or a CQI signal in accordance with a code-multiplexing structure for code—multiplexing ACK/NACK signals and CQI signals from a plurality of mobile stations, the radio communication apparatus comprising:
1 (b) a first spreading unit (214) adapted to spread the ACK/NACK signal with a sequence defined by one of twelve cyclic shift values, the sequence being one of twelve sequences that are mutually separable because of mutually different cyclic shift values of the twelve cyclic shift values;
1 (c) a second spreading unit (219) adapted to spread the CQI signal with a sequence defined by another one of the twelve cyclic shift values, the sequence being another of the twelve sequences;
1 (d) a third spreading unit (216) adapted to spread the ACK/NACK signal, after the ACK/NACK signal has been spread with the sequence defined by one of twelve cyclic shift values, with a sequence that is one of three orthogonal sequences that each have a different respective orthogonal sequence number of first, second and third orthogonal sequence numbers;
1 (e) a control section adapted to:
control the spreading of the ACK/NACK signal by the first spreading unit (214) by setting a code-multiplexing cyclic shift value, of first cyclic shift values for spreading ACK/NACK signals, in accordance with the code-multiplexing structure;
1 (f) control the spreading of the CQI signal by the second spreading unit (219) by setting a code-multiplexing cyclic shift value, of second cyclic shift values for spreading CQI signals, in accordance with the code-multiplexing structure; and
1 (g) control the spreading of the ACK/NACK signal by the third spreading unit (216) by setting a code-multiplexing orthogonal sequence number, of the first, second and third of orthogonal sequence numbers, in accordance with the code-multiplexing structure; and
1 (h) a transmitting unit (223) adapted to transmit the ACK/NACK signal, and adapted to transmit the CQI signal,
1 (i) characterized in that said first spreading unit (214), in each symbol that forms the ACK/NACK signal, uses said code-multiplexing cyclic shift value of said first cyclic shift values, and said first cyclic shift values form a portion of the twelve cyclic shift values, for the ACK/NACK signal;
1 (j) said second spreading unit (219), in each symbol that forms the CQI signal, uses said code-multiplexing cyclic shift value of said second cyclic shift values, and said second cyclic shift values are not within the portion of the twelve cyclic shift values, for the CQI signal; and
1 (k) a cyclic shift value between the first cyclic shift values and the second cyclic shift values is not used for either the ACK/NACK signal or the CQI signal,
1 (l) wherein the first cyclic shift values for spreading ACK/NACK signals and the first, second and third orthogonal sequence numbers are arranged in a 2-cyclic shift interval mesh structure in the code-multiplexing structure, according to which ACK/NACK signals for which the second orthogonal sequence number is set have 2-cyclic-shift-interval cyclic shift values set that are offset by one cyclic shift value with respect to 2-cyclic-shift-interval cyclic shift values that set for the ACK/NACK signals for which the first and third orthogonal sequence numbers are set,
1 (m) the CQI signals in the code-multiplexing structure are not spread with any of the orthogonal sequences, and
1 (n) the unused cyclic shift value is positioned after an immediately preceding cyclic shift value for spreading CQI signals, and before an immediately subsequent cyclic shift value for spreading ACK/NACK signals, in the code-multiplexing structure,
1 (o) so...
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