On July 7, 2014, the Federal Circuit issued its opinion in X2Y Attenuators, LLC  v. Int’l Trade Comm’n (2013-1340).  This was an appeal by X2Y Attenuators, LLC (“X2Y”) from the International Trade Commission’s (the “Commission”) final determination in Certain Microprocessors, Components Thereof, and Products Containing Same (Inv. No. 337-TA-781).

In the opinion, the Federal Circuit affirmed the Commission’s final determination of no violation of Section 337 by Intel Corp., Intel Americas, Inc., Componentes Intel De Costa Rica S.A., Intel Technology Sdn. Bhd, Intel Products (Chengdu) Ltd., Apple Inc., and Hewlett-Packard Co. (collectively, “Respondents”) with respect to U.S. Patent Nos. 7,609,500, 7,916,444, and 8,023,241 (collectively, the “asserted patents”).  In particular, the Federal Circuit affirmed the Commission’s claim construction and thus affirmed the Commission’s finding that X2Y’s asserted patents do not cover Respondents’ accused products.

According to the opinion, the Commission found that certain claim terms (the “electrode terms”)  were limited to a so-called “sandwich” configuration—an arrangement of three electrodes in which a center conductor is flanked by paired differential, or oppositely charged, conductors.  In particular, the Commission adopted ALJ David P. Shaw’s construction of the electrode terms requiring “a common conductive pathway electrode positioned between paired electromagnetically opposite conductors.”  This construction was based on a finding that X2Y had disavowed a broader construction in the specifications of the asserted patents.  Because X2Y conceded non-infringement in view of this claim construction, the Commission found no violation of Section 337.  See our March 8, 2013 post for more details on the Commission’s opinion.

On review, the Federal Circuit agreed with the Commission’s claim construction and thus affirmed the finding of no violation of Section 337 due to non-infringement.  The Federal Circuit noted that the asserted patents stated that the presence of a common conductive pathway electrode positioned between paired electromagnetically opposite conductors is “universal to all the embodiments” and is “an essential element among all embodiments or connotations of the invention.”  The Federal Circuit found that these statements constituted a clear and unmistakable disavowal of claim scope and thus operated to limit the scope of the claims as the Commission had found.  In coming to this conclusion, the Federal Circuit rejected an argument by X2Y that some of the disclaimers were inapplicable because they only appeared in priority patents to which the asserted patents are related as continuations-in-part.

In view of the Federal Circuit’s affirmance of the Commission’s claim construction and X2Y’s concession of non-infringement based on that claim construction, the Federal Circuit affirmed the Commission’s final determination of no violation of Section 337.