Mobility Workx, LLC v. Unified Patents, LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MOBILITY WORKX, LLC,
Appellant
v.
UNIFIED PATENTS, LLC,
Appellee
KATHERINE K. VIDAL, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2020-1441
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
01150.
______________________
Decided: July 14, 2022
______________________
D AVID A. RANDALL , Hackler Daghighian Martino &
Novak, Los Angeles, CA, argued for appellant. Also repre-
sented by MICHAEL MACHAT , Law Offices of Michael
Machat, PC, West Hollywood, CA.
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 2
J ASON R. MUDD, Erise IP, P.A., Overland Park, KS, ar-
gued for appellee. Also represented by ERIC ALLAN BURESH ;
ASHRAF F AWZY , J ONATHAN RUDOLPH K OMINEK STROUD, Uni-
fied Patents, LLC, Washington, DC.
D ANA K AERSVANG, Appellate Staff, Civil Division, United
States Department of Justice, Washington, DC, argued for
intervenor. Also represented by MELISSA N. P ATTERSON;
K AKOLI CAPRIHAN, SARAH E. C RAVEN, T HOMAS W. K RAUSE ,
F ARHEENA YASMEEN RASHEED, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA.
ROBERT G REENSPOON, Dunlap, Bennett, & Ludwig,
PLLC, Chicago, IL, for amicus curiae US Inventor, Inc.
______________________
Before N EWMAN, SCHALL , and D YK, Circuit Judges.
D YK, Circuit Judge.
Mobility Workx, LLC (“Mobility”) appeals a decision of
the Patent Trial and Appeal Board (“Board”) determining
that claims 1, 2, 4, 5, and 7 of U.S. Patent No. 8,213,417
(“the ’417 patent”) were unpatentable as obvious. We af-
firm.
BACKGROUND
I
Mobility is the owner of the ’417 patent, which is titled
“System, Apparatus, and Methods for Proactive Allocation
of Wireless Communication Resources.” ’417 patent, col. 1,
ll. 1–3. The patent is “generally directed to allocation of
communication resources in a communications network.”
Mobility Br. 7. On June 1, 2018, Unified Patents, LLC
(“Unified”) filed a petition seeking inter partes review of
claims 1–7 of the ’417 patent on the theory that those
claims would have been obvious over U.S. Patent No.
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 3
5,825,759 (“Liu”) in combination with several other refer-
ences. On December 2, 2019, the Board issued its final
written decision, determining that claims 1, 2, 4, 5, and 7
were unpatentable as obvious, but that claims 3 and 6 were
not shown to be unpatentable. Mobility appealed.
In addition to challenging the Board’s decision on the
merits, Mobility raised several constitutional challenges
regarding the Board based on the Supreme Court’s decision
in Tumey v. Ohio, 237 U.S. 510 (1927), and additionally re-
quested a remand under United States v. Arthrex, Inc., 141
S. Ct. 1970 (2021). We rejected Mobility’s Tumey argu-
ments and, without reaching the merits, remanded to the
Board “for the limited purpose of allowing Mobility the op-
portunity to request Director rehearing of the final written
decision.” Mobility Workx, LLC v. Unified Patents, LLC, 15
F.4th 1146, 1157 (Fed. Cir. 2021). At the same time, we
retained jurisdiction over the appeal.
On the remand, Mobility did not request Director re-
hearing and, accordingly, the Board’s final written decision
in the case remains the final agency decision. In May 2022,
the parties jointly informed the court that “they [we]re not
aware of any reason that the Court should not proceed with
a decision on the merits in this case.” Joint Notice 1, ECF
No. 97. We lifted the stay and reinstated the appeal on
May 12, 2022.
II
The merits are now before us. As recited in our prior
opinion, the Background section of the ’417 patent explains
that mobile communication systems are typically composed
of mobile nodes (e.g., cell phones) that communicate with
one another through a series of base stations. Base sta-
tions serve different zones or cells, such that when a mobile
node moves from one cell to another, it must connect to a
new base station. When a mobile node has connected to a
new base station, i.e., when it is moving, it must let other
mobile nodes know where it can be reached. This can be
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 4
accomplished by having a mobile node register with a
“home agent so that the home agent can remain a contact
point for other nodes that wish to exchange mes-
sages . . . with the mobile node as it moves from one loca-
tion to another.” ’417 patent, col. 1, ll. 39–44.
This system “allows a mobile node to use two IP ad-
dresses, one being a fixed home address and the other be-
ing a care-of address.” Id. at col. 1, ll. 45–47. The home
address is assigned by the home agent. The care-of ad-
dress, on the other hand, is received when a mobile node
moves out of its home network and connects to foreign net-
works using foreign agents that act “as wireless access
points distributed throughout a coverage area of a network
or an interconnection of multiple networks.” Id. at col. 1,
ll. 57–60. However, delays and information losses can oc-
cur when a mobile node moves from one foreign network to
another because “the new communication link cannot be
set up until the mobile node arrives in the new foreign
agent’s physical region of coverage.” Mobility Br. 8.
The ’417 patent attempts to prevent these delays and
data losses by using a ghost foreign agent and a ghost mo-
bile node that “can be configured to register the mobile
node and allocate resources for communicating with the
mobile node according to a predicted future state of the mo-
bile node.” ’417 patent, col. 2, ll. 44–61. In other words,
“the ghost mobile node operates by signaling the foreign
agent before the mobile node arrives in the foreign agent’s
physical region of coverage, based upon the predicted fu-
ture state of the mobile node.” Mobility Br. 9. This, in turn,
increases the speed with which a mobile node can connect
to a new network, reducing delays and avoiding infor-
mation losses.
Claim 1 of the ’417 patent (from which claims 2, 4, and
5 depend) recites:
A system for communicating between a mobile
node and a communication network; the network
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 5
having at least one communications network node
that is interconnected using a proxy mobile inter-
net protocol (IP), comprising:
at least one mobile node;
at least one home agent;
at least one foreign agent;
a ghost-foreign agent that advertises messages
to one of the mobile nodes indicating pres-
ence of the ghost-foreign agent on behalf of
one of the foreign agents when the mobile
node is located in a geographical area
where the foreign agent is not physically
present; and
a ghost-mobile node that creates replica IP
messages on behalf of a mobile node, the
ghost-mobile node handling signaling re-
quired to allocate resources and initiate mo-
bility on behalf of the mobile node, the
ghost-mobile node triggering signals based
on a predicted physical location of such mo-
bile node or distance with relation to the at
least one foreign agent.
’417 patent, col. 12, ll. 49–67 (emphasis added).
During the Board proceedings, Mobility argued that
the claims were not obvious because the prior art failed to
disclose the ghost-foreign agent limitation. The Board
found that Liu, or alternatively, the combination of Liu
with U.S. Patent Application Publication 2002/0131386 A1
(“Gwon”), taught the ghost-mobile node limitation. The
Board concluded that claims 1, 2, 4, 5, and 7 were shown to
be obvious in light of the combination of Liu, Gwon, and
various other references. We have jurisdiction over this
appeal under 28 U.S.C. § 1295(a)(4)(A).
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 6
D ISCUSSION
“Obviousness is a mixed question of fact and law,” and
the Board’s conclusion that the claims are obvious is a “le-
gal determination subject to de novo review” while “subsid-
iary factual findings are reviewed for substantial
evidence.” Novartis AG v. Torrent Pharms. Ltd., 853 F.3d
1316, 1327 (Fed. Cir. 2017). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
Mobility argues that the Board erred with respect to
claim 1 because Liu, the relevant prior art reference, does
not teach the “the ghost-mobile node triggering signals
based on a predicted physical location of such mobile node
or distance with relation to the at least one foreign agent”
limitation (“the triggering limitation”). ’417 patent, col. 12,
ll. 61–67.1 Mobility does not separately challenge the
Board’s decision with respect to dependent claims 2, 4, and
5, so they stand or fall with claim 1. Mobility also raises
no arguments regarding independent claim 7, which the
Board found unpatentable on other grounds.
Liu relates to “methods and apparatus for supporting
data and service mobility to users of mobile networks.”
Liu, col. 1, ll.14–16. It discloses the following:
In accordance with one aspect of the invention, net-
work services and resources are distributed to a
mobile user in a mobile communication system by
providing the mobile user with a mobility (M)-agent
1 The Board alternatively concluded that the combi-
nation of Liu and Gwon taught this limitation. Mobility
argues that this was error for “the same underlying issue”
that it raises with respect to Liu alone. Mobility Br. 65.
Because we affirm the Board’s decision based on Liu alone,
we need not address the combination of Liu and Gwon.
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 7
[(corresponding to the ‘ghost-mobile node’ of the
’417 patent)] executing on a home fixed host or
router. It is then determined that the mobile user
is or will be travelling to a destination that is out-
side a service area of the home fixed host or router,
and a pre-assignment request is sent from the M-
agent to at least one mobile floating (MF)-agent
manager executing on a corresponding one of a like
number of remote fixed hosts or routers located at
the destination. . . . A mobile floating (MF)-agent
is then established for use by the mobile user at each
of the remote fixed hosts or routers, and the M-agent
is used to send data or service information from the
service area of the home fixed host or router to the
MF-agent at each of the remote fixed hosts or rout-
ers. In this way, services and/or data may be pre-
connected/pre-arranged at the mobile user’s desti-
nation.
Liu, col. 2, ll. 11–34.
The Board determined that Liu’s M-Agent teaches the
“ghost-mobile node” limitation, which includes the trigger-
ing limitation. See J.A. 29–31. The Board was “persuaded
by [Unified’s] unrebutted evidence that Liu . . . teach[es] or
suggest[s]” the ghost-mobile node limitation and “agree[d]
with [Unified] that Liu’s M-agent handles pre-assignment
signaling on behalf of the mobile device to prearrange ser-
vices (allocate resources) and initiate mobility on behalf of
the mobile device, and further does so based on a predicted
physical location of the mobile device.” J.A. 31.
Mobility argues that this was error under the plain
meaning of “trigger” because in Liu, it is “the mobile termi-
nal [(i.e., the cell phone) that] generates and sends the pre-
assignment request, along with the address of the new lo-
cation of where it is traveling to, and the M-Agent [(the
ghost-mobile node of the ’417 patent)] merely forwards the
request to the MF-agent manager(s) at the new location(s)
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 8
specified by [the] mobile node,” and that “[f]orwarding is
not triggering.” Mobility Br. 61; Mobility Reply Br. 25. In
support of its argument, Mobility cites to the following por-
tion of Liu:
The M-agent 50 is a representative of the user 21
in the network and is responsible in part for creat-
ing, deleting and managing the MF-agents on be-
half of mobile users. An M-agent 50 requests
creation or assignment of MF-agents 52. As shown
in FIG. 7 a mobile terminal 55 [(cell phone)] sends
an MF-agent assignment request to its M-agent 50
[(the ghost-mobile node)], in the local network, with
an address of a new location it is travelling to (701).
The new location may be one that has been explic-
itly provided by the user 21, or it may be one pre-
dicted by the PMM[2] functions 46. The assignment
request is a request to establish (i.e., alternatively
create or pre-assign) an MF-agent 52 at the loca-
tion that the mobile terminal 55 will be travelling
to and thus have any necessary services and data
ready for the mobile terminal, when it arrives at
the new location. The M-agent 50 then registers the
request and forwards the request 65 to the remote
MF-agent manager at the new location (702).
Liu, col. 7, ll. 22–38 (emphasis added).
Mobility concedes that it did not raise this argument to
the Board and that it does so for the first time on appeal.
2 PMM stands for “Predictive Mobility Manage-
ment.” Liu, col. 19, ll. 4–14. It is “used to predict the future
location of a mobile user according to the user’s movement
history patterns. The combination of the mobile floating
agent concepts with the predictive mobility management
allow for service and resource pre-arrangement.” Id. (em-
phasis added).
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 9
For that reason, it may be that the argument is waived.
E.g., MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d
1284, 1293 n.3 (Fed. Cir. 2015) (finding patentee waived
argument where it raised only “a few scattered sentences”
at the oral hearing); Fresenius USA, Inc. v. Baxter Int’l,
Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“[I]f a party fails
to raise an argument before the trial court, or presents only
a skeletal or undeveloped argument to the trial court, we
may deem that argument waived on appeal.”).
In any case, the argument is facially incorrect. The
’417 patent claims a ghost-mobile node “handling signaling
required to allocate resources and initiate mobility on be-
half of the mobile node, the ghost-mobile node triggering
signals based on a predicted physical location of such mo-
bile node or distance with relation to the at least one for-
eign agent.” ’417 patent, col. 12, ll. 62–67. Unified’s expert
testified that “[t]he M-Agent acts on behalf of the mobile
device by initiating registration with a foreign agent in the
foreign network.” J.A. 589 (emphasis added). The same
section of Liu quoted earlier discloses that the M-Agent is
“responsible in part for creating, deleting, and managing
the MF-agents on behalf of mobile users” and that “M-
Agent 50 requests creation or assignment of MF-agents
52.” Liu, col. 7, ll. 23–24, 26–27. The M-Agent performs
these functions after receiving an assignment request from
a mobile node with “an address of a new location it is trav-
elling to.” Id. at col. 7, ll. 26–28.
Mobility did not request claim construction of the trig-
gering limitation before the Board. The plain meaning of
trigger is “[a]n event or situation that upon its occurrence
activates a thing or a process.” Trigger, Black’s Law Dic-
tionary (11th ed. 2019). The M-Agent (i.e. ghost-mobile
node) plainly triggers signals “to allocate resources and in-
itiate mobility on behalf of the mobile node . . . based on a
predicted physical location” when it registers and forwards
the assignment request from mobile nodes (cell phones) to
MF-agents. ’417 patent, col. 12, ll. 63–66. Nothing in the
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MOBILITY WORKX , LLC v. UNIFIED PATENTS, LLC 10
plain meaning of the triggering limitation forecloses the M-
Agent in turn being triggered by a request from the mobile
node (cell phone). We see no error in the Board’s obvious-
ness determination, which is supported by substantial evi-
dence.
CONCLUSION
We affirm the Board’s decision holding unpatentable
claims 1, 2, 4, 5, and 7 of the ’417 patent.
AFFIRMED
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