Barkan Wireless Access Technologies, L.p. v. Cellco Partnership, d/b/a VERIZON WIRELESS

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BARKAN WIRELESS ACCESS TECHNOLOGIES,
L.P.,
Plaintiff-Appellant
v.
CELLCO PARTNERSHIP, d/b/a VERIZON
WIRELESS,
Defendant-Appellee
______________________
2017-2264
______________________
Appeal from the United States District Court for the
Eastern District of Texas in No. 2:16-cv-00293-JRG-RSP,
Judge J. Rodney Gilstrap.
______________________
Decided: August 29, 2018
______________________
ROBERT D AVID K ATZ, Katz PLLC, Dallas, TX, argued
for plaintiff-appellant.
MEGAN S. WOODWORTH , Venable LLP, Washington,
DC, argued for defendant-appellee. Also represented by
F RANK C. C IMINO, J R, J ONATHAN L. F ALKLER .
______________________

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 2
Before WALLACH , T ARANTO, and STOLL , Circuit Judges.
STOLL , Circuit Judge.
Barkan Wireless Access Technologies, L.P. appeals
the district court’s construction of the term “Access Point,”
under which Appellee Cellco Partnership d/b/a Verizon
Wireless concededly does not infringe the asserted claims.
We determine that the district court erred by concluding
that the patents expressly define “Access Point,” but we
nevertheless affirm the district court’s ultimate decision.
BACKGROUND
Barkan’s U.S. Patent Nos. 8,559,369 and 9,042,3061
acknowledge “a growing number of WiFi public hot-spots
(or Access Points—‘AP’)” and explain that such Access
Points allow WiFi-enabled devices (called “STAs”)—such
as laptops—within their range to connect to the internet.
See ’306 patent col. 1 ll. 30–33. The patents describe a
“viral-like method” for spreading internet access. Id.
at col. 1 ll. 20–26. According to the invention, as shown in
Figure 1, STA 11 connects to Access Point 10 and spreads
connectivity by itself acting as an Access Point through
which additional STAs 12 and 13 connect to the internet.
See id. at col. 5 ll. 58–64, col. 11 ll. 33–41.
1 These related patents share substantially similar
specifications. We refer to the ’306 patent unless other-
wise noted.

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 3
Id. at Fig. 1.
Claim 1 of the ’306 patent illustrates the invention:
1. A computing device comprising:
at least one communication module adapted to:
(1) wirelessly connect said computing device to
an IP based network via a first wireless access
point (AP) having a first AP Identification (APID);
and
(2) wirelessly communicate with other wireless
enabled computing devices;
a user interface and display adapted to allow a
user of said computing device to interact with des-
tinations over the IP based network, through the
first wireless AP, using a first public IP address
associated with the computing device; and
an AP module adapted to:

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 4
(1) provide a given device of the other wireless
enabled computing devices with access to the IP
based network by causing said computing device
to serve the given device as a second AP having a
second APID, distinct from the first APID, and
provide the given device access to the network via
the first AP; and
(2) tunnel data traffic from the given device,
through said computing device, through the first
AP, through the IP network, to a proxy server,
such that the proxy server acts as a proxy of the
given device and the data traffic is secure from
said computing device and first AP and the given
device operates on the network using a second
public IP address distinct from the first public IP
address, with the second public IP address associ-
ated with the given device.
Id. at col. 32 ll. 26–53. Each independent claim at issue
in this case similarly recites “a first wireless access point”
and requires a device connected to the first wireless
access point to serve as a “second A[ccess] P[oint].” Id.
at col. 33 ll. 30–65, col. 35 l. 50–col. 36 l. 10; ’369 patent
col. 32 ll. 38–62; J.A. 1–2.
In 2016, Barkan sued Verizon for infringing the ’369
and ’306 patents. As relevant to this appeal, the parties
briefed competing constructions of several terms, includ-
ing “Access Point.” Barkan urged the district court to
construe “Access Point” as “a device that connects a
computer to a network,” thus including both WiFi and
cellular connections. See Barkan Wireless Access Techs.,
L.P. v. Cellco P’ship, No. 2:16-cv-293, 2017 WL 2099565,
at *11 (E.D. Tex. May 14, 2017) (“Markman Order”).
Verizon proposed construing the term as “WiFi public
hotspots,” arguing that the specification defined “Access
Point” and limited the term to WiFi connections by dis-

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 5
closing “a growing number of WiFi public hotspots (or
Access Points—‘AP’).” Id.
The district court agreed that the specification ex-
pressly defined “Access Points” as “WiFi public hotspots.”
See Markman Order, 2017 WL 2099565, at *12–14; J.A. 4.
Accordingly, the district court construed “Access Point” as
proposed by Verizon. The parties then stipulated to
noninfringement, stating “the Accused Instrumentalities
do not connect to an IP based network via a first wireless
access point wherein the first wireless access point is a
WiFi public hotspot.” J.A. 3. Barkan now appeals. We
have jurisdiction. 28 U.S.C. § 1295(a)(1).
D ISCUSSION
We review the ultimate construction of the claim, a
legal question, de novo. See MasterMine Software, Inc. v.
Microsoft Corp., 874 F.3d 1307, 1310 (Fed. Cir. 2017).
Constructions based solely on intrinsic evidence receive de
novo review, and we review any subsidiary factual find-
ings for clear error. See Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
I
We first consider whether the specification defines
“Access Point.” A patentee may define claim terms in the
specification. When the patentee acts as his own lexicog-
rapher, his “definition ‘[u]sually . . . is dispositive; it is the
single best guide to the meaning of a disputed term.’”
Jack Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d
1352, 1360 (Fed. Cir. 2002) (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)
(alterations in original)). Our cases, however, set a high
standard for lexicography. “[A] patentee must ‘clearly set
forth a definition of the disputed claim term’” and “‘clearly
express an intent’ to redefine the term.” Thorner v. Sony
Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012) (quoting CCS Fitness, Inc. v. Brunswick

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 6
Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); Helmsderfer
v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008)). We hold that, given other statements in
the specification, the statement “there is a growing num-
ber of WiFi public hotspots (or Access Points—‘AP’),”
’306 patent col. 1 ll. 30–31, does not meet this standard.
The district court read “WiFi public hotspots (or Ac-
cess Points—‘AP’)” as an “explicit[]” definition because it
uses “or” and capitalizes “Access Points” and because the
specification refers in the next sentence to “these APs.”
Markman Order, 2017 WL 2099565 at *12.
But the specification uses similar “or” phrases when
discussing Access Points (or APs) that deliver no defini-
tions. A section explaining “managed networks, such as
cellular networks, campuses, or office environment[s]”
states that “[i]n managed networks, the APs (or the
cellular cells) are synchronized . . . and are usually con-
trolled by some other network entity (e.g., BSC—base
station controller in cellular systems).” ’306 patent col. 2
ll. 52–61 (emphases added). These parentheticals analo-
gize WiFi APs and cellular technology; they do not define
“APs” or “network entit[ies].” Because “(or the cellular
cells)” defines no term, we see no basis to read the paren-
thetical “(or Access Points)” as a definition based on its
structure. Similarly, though Verizon asserts parentheti-
cals inherently suggest a definition, we disagree in the
context of this specification. See Appellee’s Br. 11–13.
We also cannot conclude “Access Point’s” capitaliza-
tion necessarily designates a definition. Elsewhere, this
specification capitalizes “Internet,” “Portable,” “Laptops,”
and even “Connect” mid-sentence. But it does not define
these terms. See, e.g., ’306 patent col 1 ll. 20–33.
And although the specification’s use of “[t]hese APs”
to refer back to “WiFi public hotspots (or Access Points—
‘AP’),” id. at col. 1 ll. 30–33, supports construing “Access
Point” to encompass “WiFi public hotspots,” it does not

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 7
evince a clear intent to define “Access Point.” As in the
preceding paragraph, “these” may simply reference some-
thing recently described.
II
Having determined that the specification does not
clearly define the term “Access Point,” we now consider its
appropriate construction. We construe claim terms
according to their ordinary meaning, that is, their “mean-
ing to the ordinary artisan after reading the entire pa-
tent.” See Eon Corp. IP Holdings v. Silver Spring
Networks, 815 F.3d 1314, 1320 (Fed. Cir. 2016) (quoting
Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
2005) (en banc)).
The parties agree that an Access Point connects a
device to a network. See Appellant’s Br. 5; Appellee’s
Br. 4–5, 10 (explaining that a “WiFi public hotspot” allows
devices to connect to the internet). They dispute how the
Access Point, and particularly, the claimed “first wireless
access point,” must make that connection on the device
(not network) side of the Access Point—in terms of
Figure 1, the nature of the connection from AP 10 to
Laptop 11 and from Laptop 11 to STA 12 (not from AP 10
to Internet 32). See Appellant’s Br. 7–8;
Oral Arg. at 10:07–11:15, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2017-2264.mp3. Barkan
argues that an Access Point may use any wireless
technology, including both WiFi and cellular, while
Verizon argues an Access Point must use WiFi. We hold
that Barkan’s broad construction lacks support in the
specification and conclude that the district court properly
rejected it.
WiFi, not cellular technology, characterizes the pa-
tents. The specification envisions WiFi “compet[ing] with
or complement[ing] . . . cellular service,” ’306 patent col. 2
ll. 25–34, and it announces the disclosure as one “for
producing a wireless [i]nternet connection to WiFi-

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 8
enabled devices,” id. at Abstract (emphasis added). The
specification describes WiFi public hotspots as Access
Points, id. at col. 1 ll. 30–33, and it describes the STAs in
its system as “WiFi-enabled,” id. at col. 1 ll. 31–33. The
specification details WiFi-specific security configurations,
id. at col. 8 ll. 45–59. It notes that the system capitalizes
on “local” networks, while explaining that “the coverage of
a single WiFi AP is very small,” id. at col. 9 ll. 21–25,
col. 2 ll. 35–37. And it emphasizes the “innovative,”
“viral-like” spread of its system, see, e.g., id. at col. 1
ll. 20–26, col. 9 ll. 40–54, col. 12 ll. 5–48, a concept Barkan
concedes relates only to WiFi, Oral Arg. at 12:00–12:15,
14:14–14:18.
Further, the patents address WiFi-specific problems.
The specification advertises improved handovers, which
overcome the “major difficult[y] . . . that the coverage of a
single WiFi AP is very small,” ’306 patent col. 2 ll. 7–18,
col. 2 ll. 35–41. It states that the invention “prevent[s]
exhaustion of resources at the APs,” id. at col. 8 ll. 15–20,
col. 25 ll. 38–49, an issue associated with WiFi protocols,
id. at col. 4 ll. 57–65. It touts that the invention provides
service (legally) when “WiFi coverage . . . exist[s] but [the
Access Point] is locked,” see id. at col. 5 ll. 16–19, col. 9
ll. 7–8, and it explains that the invention reduces location
updates problematic under “[c]urrent WiFi protocols,” see
id. at col. 5 ll. 20–45, col. 8 ll. 21–36, col. 26 ll. 1–18.
The “Disclosure of Invention” and “Best Mode for Car-
rying out the Invention” sections of the specification refer
to “WiFi” at least twenty-two times. ’306 patent col. 5
l. 54–col. 32 l. 23. In contrast, as Barkan concedes, nei-
ther section refers to cellular technology at all. See Oral
Arg. at 8:16–9:27 (“At the moment, I don’t see references
specifically to cellular . . . .”); Trs. of Columbia Univ. v.
Symantec Corp., 811 F.3d 1359, 1364 (Fed. Cir. 2016)
(“[T]he patentee’s choice of preferred embodiments can
shed light on the intended scope of the claims.” (quoting

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 9
Astrazeneca AB v. Mut. Pharm. Co., 384 F.3d 1333, 1340
(Fed. Cir. 2004))).
The specification does mention cellular technology in
its “Background Art” section; however, it does so to ex-
plain concepts borrowed from the cellular context and to
contrast WiFi and cellular technology. The patent intro-
duces handovers by referencing cellular networks,
’306 patent col. 2 ll. 52–55, and it compares WiFi and
cellular technology to explain the unique challenges of
location updates with WiFi, id. at col. 5 ll. 31–42; see also
id. at col. 5 ll. 20–22 (comparing low battery operation for
WiFi and cellular). But the specification nowhere re-
counts an embodiment of the claimed invention in which
the Access Points use cellular technology—rather, the
specification’s emphasis on WiFi undermines Barkan’s
broad construction of “Access Point.” See GPNE Corp. v.
Apple Inc., 830 F.3d 1365, 1370 (Fed. Cir. 2016) (constru-
ing term based on “repeated” description of “the devices in
the patented system”); VirnetX, Inc. v. Cisco Sys., Inc.,
767 F.3d 1308, 1318 (Fed. Cir. 2014) (“The fact that
[feature] is ‘repeatedly and consistently’ used to charac-
terize the invention strongly suggests that it should be
read as part of the claim.” (quoting Eon–Net LP v. Flag-
star Bancorp., 653 F.3d 1314, 1321–23 (Fed. Cir. 2011))).
Barkan argues that dependent claims requiring cellu-
lar networks or systems, equating “Access Points” and
cellular cells, and mandating multiple wireless protocols,
see, e.g., ’306 patent col. 32 l. 62–col. 33 l. 3, conclusively
demonstrate that “Access Point” includes cellular technol-
ogy. Appellant Br. 13–15. “[D]ependent claims can aid in
interpreting the scope of claims from which they depend,
[however,] they are only an aid to interpretation and are
not conclusive. The dependent claim tail cannot wag the
independent claim dog.” Multilayer Stretch Cling Film
Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1360
(Fed. Cir. 2016) (quoting N. Am. Vaccine, Inc. v. Am.
Cyanamid Co., 7 F.3d 1571, 1577 (Fed. Cir. 1993)). The

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 10
dependent claims Barkan identifies do not compel a
construction of “Access Point” inconsistent with the speci-
fication, particularly where these claims were added after
the patent application filing date.
Barkan also asserts that limiting “Access Point” to
WiFi improperly excludes wired embodiments disclosed in
the specification. Appellant Br. 8–9 (citing ’306 patent
col. 11 ll. 42–44). Again, we disagree. The specification
states:
When laptop 11 is connected to AP 10 through a
wired connection, it can simply set its wireless
connection as an AP (Infrastructure mode). How-
ever, when laptop 11 is connected to AP 10
through a wireless connection, the situation is
more complex. Disclosed is a novel method in
which laptop 11 can be connected to AP 10 and
serve as an AP using only a single wireless net-
work card.
’306 patent col. 11 ll. 42–48 (emphases added). If any-
thing, this disclosure undermines Barkan’s argument—
only wireless connections between the device and the first
Access Point implicate the “novel method.” Id.; see also
id. at Title (describing invention as a “Wireless Internet
System and Method”).2 Indeed, each asserted independ-
ent claim commands wireless device-Access Point connec-
tion. Id. at col. 32 ll. 26–53, col. 33 ll. 30–65, col. 35 l. 50–
col. 36 l. 10; ’369 patent col. 32 ll. 38–62; J.A. 1–2.
We therefore conclude that although the specification
does not expressly define “Access Point,” the district court
2 In its reply, Barkan also cites the Abstract’s dis-
cussion of “connect[ing] a STA by wire to [a] network,”
Appellant’s Reply Br. 4. But that disclosure relates to a
“method for configuring STAs to connect to a wireless
network.” ’306 patent Abstract (emphases added).

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BARKAN WIRELESS ACCESS v. CELLCO P’ SHIP 11
did not err in rejecting Barkan’s proposed construction in
favor of Verizon’s. Accordingly, the district court’s judge-
ment of noninfringement is affirmed.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Thus, for the foregoing
reasons, we affirm the district court.
AFFIRMED
COSTS
Costs to Appellee.

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