Rehearing Denied Dec. 11, 2013.
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Constantine L. Trela, Jr., Sidley Austin, LLP, of Chicago, IL, argued for appellant. With him on the brief were David T. Pritikin, Richard A. Cederoth, Ellen S. Robbins and John W. McBride. Of counsel on the brief were Brian R. Nester and Ryan C. Morris, of Washington, DC. Of counsel were Michael R. Franzinger, of Washington, DC, and Douglas I. Lewis, of Chicago, IL.
Michael Liberman, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for appellee. With him on the brief were Dominic L. Bianchi, Acting General Counsel, and James A. Worth, Acting Assistant General Counsel. Of counsel was Andrea C. Casson.
Charles K. Verhoeven, Quinn Emanuel Urquhart & Sullivan, LLP, of San Francisco, CA, argued for intervenor. With him on the brief were David A. Nelson, of Chicago, IL; and Edward J. DeFranco, Raymond N. Nimrod and Matthew A. Traupman, of New York, NY.
Before RADER, Chief Judge, PROST, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Microsoft Corporation appeals from an order of the United States International Trade Commission that found no violation of 19 U.S.C. § 1337 insofar as Microsoft alleged that Motorola Mobility, Inc. (Motorola), infringed four of Microsoft's patents, U.S. Patent Nos. 6,578,054; 6,826,762; 7,644,376; and 5,664,133. The Commission found no infringement of those patents. As to three of the patents, the '054, '762, and '376 patents, the Commission also found no violation on an additional ground, namely, that Microsoft had not proved that there was a domestic industry relating to articles protected by the patents.
We affirm the Commission on three of the patents but reverse in part on the fourth. We affirm the finding that Motorola does not infringe the '054 patent, as well as the finding that Microsoft failed to prove that a domestic industry exists for products protected by the '762 and '376 patents. As to the claims of the '133 patent that are at issue, however, we hold that the Commission relied on incorrect claim constructions in finding no infringement, the only basis for its finding no violation, for the main group of accused products, while we affirm the non-infringement finding for the accused alternative design. We therefore partly reverse the Commission's final determination as to the '133 patent and remand for further proceedings. 
In 2010, Microsoft filed a complaint in the Commission against Motorola. Microsoft alleged that Motorola had violated section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, by importing mobile phones and tablets that infringe a number of Microsoft's patents. The Commission instituted an investigation and assigned the case to an administrative law judge. In the Matter of: Certain Mobile Devices, Associated Software, and Components Thereof; Notice of Investigation, 75 Fed.Reg. 68379-02 (Nov. 5, 2010).
After an evidentiary hearing, the ALJ found, as relevant to the present appeal, that the accused Motorola products did not infringe any of the asserted claims of the '054, '762, '376, or '133 patents.
Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, EDIS No. 467464, at ii (Dec. 20, 2011) (Initial Determination). The ALJ also addressed whether Microsoft made a showing, required for relief under section 337, that an industry in the United States " relating to the articles protected by the patent[s] ... exists or is in the process of being established." 19 U.S.C. § 1337(a)(2), (3). To make that domestic-industry showing, Microsoft sought to rely on mobile devices allegedly loaded with the Microsoft Windows mobile operating system, in which Microsoft had invested substantial resources in the United States. But the ALJ found that Microsoft had failed to prove that the mobile devices on which it relied actually implemented the '054, '762, and '376 patents. Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, EDIS No. 467464, at 199, 203-08.
The Commission reviewed the ALJ's decision in part, allowing the unreviewed parts, including the non-infringement findings at issue here, to become Commission determinations. The Commission specifically upheld the ALJ's findings regarding Microsoft's failure to prove that the Microsoft-supported products on which it relied for its domestic-industry showing actually practiced the '054, '762, and '376 patents. Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, USITC Pub. 4384, at 16 (Mar.2013) (Final).
Microsoft appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(6).
We first address the Commission's finding of no section 337 violation based on the '054 patent. Entitled " Method And System For Supporting Off-Line Mode Of Operation And Synchronization Using Resource State Information," the '054 patent discloses a system and method for synchronizing copies of a data resource ( e.g., a calendar entry or document) in a client-server environment, where any of several clients ( i.e., computers or mobile devices) may make changes to its copy of that resource even when not connected to the server. '054 patent, col. 2, lines 49-53, 57-60. When a client receives a copy of a resource from the server, it also receives " resource state information." Id., col. 16, lines 51-54. The resource state information " represents the state of the resource stored at the server at a selected moment." Id., col. 16, lines 51-54. The client stores this copy (a local copy) so that the client can modify the resource even when it is not connected to the server. Id., col. 16, lines 55-63. After a connection is reestablished with the server, the client transmits the resource and the resource state information stored at the client to the server. Id., col. 16, line 64, through col. 17, line 3. The server then determines if the copy just received from the client " is the most current version of the data object or resource, and all copies of the data object are synchronized to the most current version." Id., col. 3, lines 36-39.
Microsoft asserted independent claim 11 and dependent claims 13-15 of the ' 054 patent against Motorola. The dispute over infringement centered on claim 11's requirement of " resource state information." Although the parties agreed before the hearing that the term " resource state information" needed no construction, the ALJ concluded that the meaning of the term was actually in dispute and construed
it to mean " information that is associated with a resource that allows the server, client computer, or both to determine the version of the resource stored on the server at a particular moment, and if there has been a change in the resource, and to take appropriate action to synchronize the documents if there has been a change." Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, EDIS No. 467464, at 40-41, 49. The ALJ explicitly noted that, under his construction, " resource state information" did not ...