[00:01:04] Speaker 02:
The next appeal is 18-1727, Alien Technology LLC versus Intermec Incorporated.

[00:01:18] Speaker 02:
Mr. Sawyer, whenever you're ready.

[00:01:31] Speaker 03:
Thank you.

[00:01:32] Speaker 03:
May it please the court.

[00:01:33] Speaker 03:
I'd like to reserve three minutes for rebuttal, if I may.

[00:01:36] Speaker 03:
My name is Doug Sawyer and I represent the InterMet parties.

[00:01:40] Speaker 03:
The appeal of two patents today comes down to one key dispute, whether the district court erred in importing limitations from the specification into the asserted claims.

[00:01:50] Speaker 03:
I'd like to start with the 807 patent, if I may.

[00:01:53] Speaker 03:
The 807 patent is not limited to a battery-powered tag.

[00:01:56] Speaker 02:
Before you go any further, just quickly, both of these patents are expired, is that right?

[00:02:01] Speaker 03:
That's correct, Your Honor.

[00:02:02] Speaker 02:
Okay.

[00:02:02] Speaker 02:
Are there any other pending medications besides this one involving these two patents?

[00:02:07] Speaker 03:
No, Your Honor.

[00:02:09] Speaker 03:
Okay.

[00:02:12] Speaker 03:
I'd like to start with the 807 patent.

[00:02:15] Speaker 03:
It's not limited to a battery-powered tag or a tag-talk-first system for three reasons.

[00:02:20] Speaker 03:
First, the claim language.

[00:02:22] Speaker 03:
does not support or require either.

[00:02:24] Speaker 03:
There is simply no textual hook to require those narrowing limitations.

[00:02:29] Speaker 03:
Two, the prosecution history, claim differentiation, and prior litigation support the broader construction.

[00:02:35] Speaker 03:
And three, the patent did not clearly disavow any of the three claimed inventive concepts and claimed each inventive concept to a different degree in the patent.

[00:02:46] Speaker 03:
Alien all but concedes the first two points.

[00:02:48] Speaker 03:
Instead it focuses on the specifications use of

[00:02:51] Speaker 02:
Is it really all but concede the first two points?

[00:02:55] Speaker 02:
I mean I thought you the patent owner in over ten years ago in a litigation said yes all of these claims are a tag talk first patented technology and now you're here telling us no this can also be reader talks first.

[00:03:11] Speaker 03:
So there is a interrogatory response in an earlier case, the SCS case, in which counsel was describing the continuous self-identification and ability, capability to self-identify.

[00:03:26] Speaker 03:
And at that interrogatory it talks about that particular limitation and says it is a tag-talk first invention.

[00:03:34] Speaker 03:
If this invention requires a continuous

[00:03:38] Speaker 03:
continuous self-identification or continuous scrolling, then it would be a tag-talk first.

[00:03:42] Speaker 03:
But the inventor, if you look at the patent specification, describes three inventive concepts.

[00:03:48] Speaker 03:
And the three inventive concepts, and Alien recognized in an earlier brief, we cited on our opening brief 46 to 47, that one of the inventive concepts is the verification and selective transmission.

[00:04:01] Speaker 03:
The verification and selective transmission of the tag and the reader prevents overwriting of the tag.

[00:04:09] Speaker 03:
And when the patent describes that specific inventive concept.

[00:04:14] Speaker 02:
What if I were to say I read this patent and it was trying to overcome a limitation in the prior art.

[00:04:21] Speaker 02:
The limitation in the prior art was that the prior art required

[00:04:25] Speaker 02:
the reader to talk first, and starting up the communication between the reader and the tag, but the reader talking first consumed valuable time in the short amount of time you have for these two devices to talk to each other.

[00:04:38] Speaker 02:
So it came up, so the invention came up with the idea of the tag talking first, where the tag is continuously scrolling, self-identifying itself, so that when it comes with an RF range of the reader, the reader will

[00:04:50] Speaker 02:
immediately be able to pick that up and then identify the tag and then be able to quickly send information and data over to the memory of the tag.

[00:05:00] Speaker 02:
And that's what this invention is about.

[00:05:04] Speaker 02:
I don't quite understand what you're talking about when you say there are multiple different inventive concepts here.

[00:05:12] Speaker 02:
I mean, the patent's not that long.

[00:05:14] Speaker 03:
It is not that long, Your Honor.

[00:05:17] Speaker 03:
And I agree with you.

[00:05:18] Speaker 03:
That is one inventive aspect of the invention.

[00:05:21] Speaker 03:
And so just for background, tag talk first, reader talk first, battery powered tags and active tags or passive tags.

[00:05:30] Speaker 03:
All were in the prior art.

[00:05:32] Speaker 03:
So it is not the idea that just being a tag-talk first is inventive.

[00:05:37] Speaker 03:
There was tag-talk first systems prior to this invention.

[00:05:41] Speaker 03:
What this invention does is it improves upon the prior art and it improves upon the prior art in three specific ways.

[00:05:47] Speaker 03:
The first, which is what's at issue in Claim 4 and what is supported by the plain language of Claim 4 is this

[00:05:54] Speaker 03:
Verification and then selective transmission, which has the interrogator recognizing a particular tag and sending information only to that particular tag.

[00:06:04] Speaker 02:
Now, in fast moving systems... You do that when the tag is self-identifying itself by continuously scrolling and then the reader sees that and then understands what's the nature of this tag and therefore the reader knows what kind of data, if any data at all, to transmit to the tag, right?

[00:06:25] Speaker 03:
Yes and no, Your Honor.

[00:06:27] Speaker 03:
So if you look at the claim language or even say the abstract, when it talks about this specific inventive concept, it talks about the tag backscatter modulates the received signal with data temporarily and permanently stored in the tag.

[00:06:43] Speaker 03:
That's true.

[00:06:43] Speaker 03:
But if you look at the preceding sentence, it says an interrogator sends an RF signal to a remote tag, the signal including data intended to be received and stored by the tag.

[00:06:54] Speaker 03:
So just even in the abstract and in the same claim language, this is talking about that specific reader and tag interaction is talking about something later in the communication cycle.

[00:07:08] Speaker 02:
So if we read the first two limitations the way you want us to, and I understand that there's a reason to do that, the reader sends a modulated RF signal

[00:07:23] Speaker 02:
with data for the tag to store.

[00:07:28] Speaker 02:
And the reader does that first.

[00:07:31] Speaker 02:
And then the tag would backscatter modulate that already modulated RF signal back to the reader.

[00:07:39] Speaker 02:
Is that right?

[00:07:41] Speaker 02:
I guess what I'm wondering is how would that work?

[00:07:43] Speaker 02:
How would you be able to send a coherent backscatter modulated signal back to the reader when it's relying on an already

[00:07:52] Speaker 02:
data modulated signal.

[00:07:54] Speaker 03:
Certainly, Your Honor.

[00:07:55] Speaker 03:
I think the claims and if you look at the patent specification and even some of the figures, there are... There's nothing in the specification that contemplates doing that, right?

[00:08:05] Speaker 02:
The whole idea is you get a continuous wave RF signal unmodulated coming in from the reader and then the tag takes that signal unmodulated and then backscatter modulates it back to the reader.

[00:08:20] Speaker 03:
No, Your Honor, I believe there is a contemplation in the specification in which it talks about, there is obviously there is a contemplation where it's a tag talk first where the interrogator is just sending a continuous wave unmodulated and the tag responds.

[00:08:39] Speaker 03:
But if you look at, for instance, the, let me put it here,

[00:08:54] Speaker 03:
In column 4 of the 807 patent, in step 13 of figure 1, the interrogator recognizes... I'm sorry, we're in column 4?

[00:09:03] Speaker 03:
I'm sorry, column 4.

[00:09:06] Speaker 02:
Yes.

[00:09:09] Speaker 03:
In step 13 of figure 1, the interrogator recognizes that there is a read-write tag in its range, the sensitivity that the tag has been increased.

[00:09:18] Speaker 03:
And so, I guess probably a little bit further down, whereas as indicated in step 14, the interrogator then checks to see if it has a message for that tag, having already received the read-write, the read of the tag's identification, the interrogator compares and then sends back.

[00:09:35] Speaker 03:
The way in which the tag and reader communicate is once the tag identifies itself, the interrogator can receive information, send it back, and I think there's more than just... I'm trying to find an embodiment in here where

[00:09:58] Speaker 02:
Before the tag starts talking to the reader, the reader is already sending data to a not yet identified tag for that not yet identified tag to store that data in the tag's memory.

[00:10:18] Speaker 02:
I don't think I'm going to find that in the

[00:10:19] Speaker 02:
in the nine columns here, right?

[00:10:21] Speaker 03:
I don't think you're going to find that specific, what you're asking for, that specific sequence of communications.

[00:10:29] Speaker 03:
But what you will find in here is a tag, and in the description of the prior art as well, that there can be reader talk first or tag talk first.

[00:10:38] Speaker 03:
And if the reader talks first, it will send a communication to the tag that is modulated.

[00:10:45] Speaker 02:
Reader talk first, that would be the

[00:10:48] Speaker 02:
what, the Tenoc patent described in the background?

[00:10:53] Speaker 02:
Yes, the 880, correct.

[00:10:55] Speaker 02:
That the specification distinguishes away from, and explains why it doesn't want to be like Tenoc?

[00:11:03] Speaker 03:
So, it doesn't want to be like Henoc in this particular, in that inventive concept, because that inventive concept is talking about the fast moving at column two around

[00:11:15] Speaker 03:
18 to 21 is talking about in a fast moving system, you really want to limit the or expand the time in which you're in the right mode and limit the handshake.

[00:11:25] Speaker 03:
That's true.

[00:11:27] Speaker 03:
And you want to do that with a tag talk first and continuous scrolling and the capability.

[00:11:31] Speaker 00:
I was going to say you accomplish that with the continuous scrolling, correct?

[00:11:34] Speaker 00:
You do.

[00:11:36] Speaker 00:
That's what the patent specification teaches.

[00:11:38] Speaker 03:
That's true.

[00:11:38] Speaker 03:
And in claim 2 and claim 7 through 11, they claim that.

[00:11:42] Speaker 03:
They claim this continuous scrolling and self-identification.

[00:11:47] Speaker 03:
But in claims 1, which has now been canceled, but claim 4, they exclude that.

[00:11:53] Speaker 03:
And they only talk about this verification and self-verification

[00:11:59] Speaker 03:
selective transmission, which the patent recognizes is an advantage over the prior art because it stops overriding of information for a tag if you don't have that particular information for that tag.

[00:12:15] Speaker 02:
Your best argument is that the second limitation for the remote object makes reference to upon receipt of said RF signal.

[00:12:23] Speaker 02:
So it uses the

[00:12:25] Speaker 02:
signal said but what's wrong with what your friend on the other side points out about the last limitation of the client which explains really the entire sequence of the signals going back and forth between the reader and the tag and that it becomes quite clear expressly so that

[00:12:49] Speaker 02:
The reader doesn't send any data to the tag for the tag to store in its memory until after the tag itself sends the self-identifying information to the reader.

[00:13:04] Speaker 03:
Well, I think that the claim language itself doesn't exclude the reader talk-first system.

[00:13:09] Speaker 03:
So there could be communications before that communication protocol starts.

[00:13:16] Speaker 03:
So that's the right protocol.

[00:13:18] Speaker 03:
But there could be.

[00:13:19] Speaker 03:
There certainly is other transactions or other signals that are contemplated by the invention that are not listed in the claim.

[00:13:28] Speaker 03:
I think Alien even recognizes that this claim, claim four, is covering a subsection of the overall communication protocol that's described in the patent.

[00:13:38] Speaker 03:
And so I don't think the patent, that claim certainly shouldn't be limited to TagTalk first.

[00:13:44] Speaker 03:
It contemplates both tag talk first or reader talk first.

[00:13:48] Speaker 02:
You're into your rebuttal.

[00:13:48] Speaker 02:
Do you want to put a quick marker down on any other argument?

[00:13:51] Speaker 02:
Or do you want to save your time?

[00:13:53] Speaker 03:
I will just give maybe just one minute on the 80, the 181.

[00:13:59] Speaker 03:
The 181 comes down to really whether or not all the tag functions need to be operable during a frequency hop.

[00:14:06] Speaker 03:
The claim requires less.

[00:14:07] Speaker 03:
The claim requires that there be a tag energy store that collects rectified energy.

[00:14:13] Speaker 03:
District Court found that the persistent nodes do collect rectified energy.

[00:14:17] Speaker 03:
They do survive a frequency hop and that those persistent nodes keep the flags.

[00:14:23] Speaker 02:
Are those nodes supplying energy to any other electronic piece?

[00:14:29] Speaker 03:
There is evidence at the District Court level.

[00:14:33] Speaker 02:
Or is it merely just holding on to whatever energy it has?

[00:14:36] Speaker 03:
So during the frequency hop it holds the energy.

[00:14:39] Speaker 03:
And it holds the energy for specific reasons.

[00:14:41] Speaker 03:
So that it maintains the

[00:14:43] Speaker 03:
the flags during the frequency hops so that you can restart communication protocol without a malfunction.

[00:14:49] Speaker 03:
After the frequency hop, I think there is evidence to suggest that the nodes provide energy to other parts of the electronics.

[00:14:59] Speaker 00:
I thought it was your position that the tag electronics are the flags themselves.

[00:15:05] Speaker 03:
Certainly, the tag electronics could include the flags themselves.

[00:15:12] Speaker 03:
The tag electronics, I think, are a broad subset of electronics on the tag that are used, the tag, to function.

[00:15:19] Speaker 03:
But the persistent nodes are also collecting rectified energy and a tag energy store.

[00:15:27] Speaker 02:
Okay.

[00:15:27] Speaker 01:
Let's hear it from the other side.

[00:15:32] Speaker 01:
Thank you.

[00:15:33] Speaker 01:
May it please the court.

[00:15:34] Speaker 01:
I'd like to begin on the 807 patent and address Judge Chan's questions about the claim language, because I think that the arguments that Intermec has made with the claim language illustrate that this is a patent that only discloses one invention, repeatedly describes that invention as an invention that is a tag-talks-first system that has this continuously scrolling feature, and there are nine different instances in the patent specification where this is described as the invention, the present invention.

[00:16:00] Speaker 01:
The argument that they've made with regard to the claim language

[00:16:03] Speaker 01:
This is from the reply brief of page 16.

[00:16:06] Speaker 01:
They state that the wording of the claim actually supports their view that this is a reader talk for a system because it requires, quote, the tag remote object to respond to the reader interrogator, quote, upon receipt, then quoting the language from the next paragraph of the claim, of a modulated signal from the reader.

[00:16:26] Speaker 01:
We absolutely know, and this was not argued below, this is incorrect.

[00:16:29] Speaker 01:
This cannot be how the system works.

[00:16:32] Speaker 02:
If you read the first two limitations, that's how it seems to read.

[00:16:39] Speaker 02:
If you read those two limitations together, the interrogator sends the RF signal, and that signal includes data.

[00:16:47] Speaker 02:
And then the remote object, upon receipt of said RF signal, backscatter modulates that signal.

[00:16:54] Speaker 01:
That's how it reads.

[00:16:55] Speaker 01:
It does read that way, Your Honor, but it's unintelligible that way, and I'll explain why.

[00:16:58] Speaker 01:
Because it's referring in that first phrase.

[00:17:01] Speaker 02:
I'm not disagreeing with you that it's unintelligible, but if that's the way they wrote it, that's maybe what they get.

[00:17:07] Speaker 01:
But it can't be what they get, and let me explain why.

[00:17:09] Speaker 01:
Because when they say an interrogator for sending an RF signal to said remote object, said signal, including data, intended to be received and stored by said remote object.

[00:17:18] Speaker 01:
Received and stored is referring to the right operation.

[00:17:22] Speaker 01:
The right operation has nothing to do with reader talks first or tag talks first.

[00:17:26] Speaker 01:
reader talks first and tag talks first is not about writing.

[00:17:29] Speaker 01:
It's about identifying.

[00:17:31] Speaker 01:
The question is, is there a command signal which is not stored?

[00:17:34] Speaker 01:
Command signals are not stored.

[00:17:36] Speaker 01:
It's whether the

[00:17:37] Speaker 01:
Interrogation comes from the tag voluntarily backscattering an unmodulated signal, or it gets a command that asks it to modulate a signal.

[00:17:45] Speaker 01:
It has nothing to do with what this is talking about.

[00:17:47] Speaker 01:
This is talking about writing.

[00:17:49] Speaker 01:
Right.

[00:17:49] Speaker 02:
So maybe, as absurd as it sounds, the claim calls for a reader talking first as well as writing first before the tag ever does anything.

[00:17:59] Speaker 01:
Well, that can't be the case, Your Honor, because then it goes on to say that the remote object upon receipt of said RF signal backscatters

[00:18:07] Speaker 01:
set RF signal with its identification information and as your honor pointed out at the end of the claim it specifies that before any data can be stored and received by the tag the tag must have first identified itself so it would be completely be pointing past each other and be completely inconsistent so when the claim says set RF signal

[00:18:36] Speaker 02:
I guess you want us to read that to mean an RF signal.

[00:18:41] Speaker 02:
There's no way to read said RF signal as you normally would as a patent lawyer.

[00:18:49] Speaker 02:
That's what you have to be saying to me.

[00:18:51] Speaker 01:
Or the only intelligible reading I can have of the second phrase, said signal including data intended to be received and stored by said remote object, is as a further modification of

[00:19:04] Speaker 01:
What it's describing is the functionality.

[00:19:06] Speaker 01:
An interrogator for sending an RF signal to said remote object, said signal including data intended to be received and stored by said remote object, that is the functionality of the interrogator in the system.

[00:19:17] Speaker 01:
So that ultimately, the interrogator is intending to send information to be written.

[00:19:22] Speaker 01:
But when it then goes on to discuss what happens, it's clear that the backscatter modulated signal is a backscatter modulated signal of the identification information

[00:19:33] Speaker 01:
which must proceed the storage and writing of the information, otherwise the claim makes no sense.

[00:19:38] Speaker 01:
It seems like you could have sought to invalidate this claim for indefiniteness.

[00:19:45] Speaker 02:
Because the claim is at war with itself when it talks about said RF signal at the top and then at the bottom it talks about the completely different sequence of steps that goes on in the communication process.

[00:19:57] Speaker 01:
And Your Honor, just to point out how the support for our reading of the claim, there's no support for their reading of the claim.

[00:20:03] Speaker 01:
But we know from several sources that this must be talking about the identification preceding the writing.

[00:20:10] Speaker 01:
And that's in the last paragraph of claim four, as Your Honor noted.

[00:20:14] Speaker 01:
In the brief description of the invention at column three, lines one to two, it states the interrogator, quote, recognizes the identity of the remote object from the returned backscattered signal

[00:20:25] Speaker 01:
and transmits data to the remote object only if the interrogator has data to be transmitted to that particular identified remote object.

[00:20:33] Speaker 01:
Figure 1 has steps 14 and 15, which are the steps of sending the data, occurring after steps 10 and 11, which are the tag identification.

[00:20:43] Speaker 01:
Column 4, lines 29 through 32 states the interrogator then checks to see if it has a message for that tag.

[00:20:51] Speaker 01:
This is what counsel referred to in his argument.

[00:20:54] Speaker 01:
The interrogator then checks to see if it has a message for that tag, having already received and read the tag's identification.

[00:21:01] Speaker 01:
There is only one way that this patent ever describes what happens.

[00:21:04] Speaker 01:
Identification first, writing second.

[00:21:07] Speaker 01:
And that's separate from reader talks first, tag talks first.

[00:21:10] Speaker 01:
Reader talks first, tag talks first is just how does the identification occur.

[00:21:14] Speaker 01:
So that language about the data to be stored and written in the tag, that can't be the first thing that happens.

[00:21:19] Speaker 01:
Nothing in the patent supports that.

[00:21:21] Speaker 01:
And their own expert below admitted this.

[00:21:24] Speaker 01:
This is at the appendix 1564.

[00:21:25] Speaker 02:
I'm not disagreeing with you, but what you're describing is perhaps a written description defect, that this claim as written, at least the first two limitations, if you read them together, have no written description before.

[00:21:41] Speaker 01:
I don't think it's simply, there may well be a written description problem too, but there's also an issue of claim construction.

[00:21:47] Speaker 01:
We think the court properly construed the claims room

[00:21:50] Speaker 01:
Because the other side argued that we cited cases that kind of talk past each other as to when you read descriptions of the invention and the specification as requiring certain things in the claims.

[00:22:03] Speaker 01:
We would submit if the court reviews those cases carefully, they are actually harmonious and can be reconciled.

[00:22:09] Speaker 00:
Why isn't this a situation where the specification is just listing three or four reasons why the prior art is distinguished and it's not fair to limit the claims to just one of those or any one of those without the plain claim language making it explicit?

[00:22:26] Speaker 01:
Because respectfully, Your Honor, I don't think that's what the patent does in the background section.

[00:22:31] Speaker 01:
In the background section, it describes the Hennock prior art system

[00:22:35] Speaker 01:
which is a priority system, so they've claimed that there's this independent verification selective transmission, but HANNIC did that.

[00:22:42] Speaker 01:
This is what the patent says about HANNIC.

[00:22:50] Speaker 01:
It says that... So this is column one, line 60, to column two, line three.

[00:23:05] Speaker 01:
This is describing the prior art.

[00:23:06] Speaker 01:
The interrogator at the remote receiving station first transmits to the tag prior to being able to identify the tagged object and prior to transmitting any information bearing signals to the tag, an interrogation command signal.

[00:23:20] Speaker 01:
The signal tells the tag to transmit the identification data stored in the tag's memory to the transmitter.

[00:23:25] Speaker 01:
After the interrogator recognizes this identification data, it sends a key signal to the tag to enable a write.

[00:23:32] Speaker 01:
That's the prior art.

[00:23:33] Speaker 01:
That is describing verification and selective transmission.

[00:23:37] Speaker 01:
The only difference, as the background of the section goes on to state, is that this occurs in a reader talks first system.

[00:23:44] Speaker 01:
And they have taken a position where they have said, well, you can have, there's nothing in here that says you can't have a wake-up command.

[00:23:50] Speaker 01:
That's completely inconsistent with the description of the invention.

[00:23:54] Speaker 01:
This is at column five, lines 11 to 21, where it states the signaling sequence of the invention.

[00:24:01] Speaker 01:
has considerable advantages over the prior art sequence, which requires the interrogator first to wake up the tag before the interrogator can identify it.

[00:24:10] Speaker 01:
Again, it's referring to the invention.

[00:24:12] Speaker 01:
And this court's absolute, I would submit to the court that the absolute software case takes these separate lines of cases and it looks to where you're describing something as the invention or the present invention.

[00:24:23] Speaker 01:
And it states where you do that consistently.

[00:24:26] Speaker 01:
There's a public notice component to a patent.

[00:24:28] Speaker 00:
Do you also rely on the language in column three lines?

[00:24:32] Speaker 00:
32 to 33, where it says, unlike the tags of the prior, the tag of the invention continuously scrolls through the data in its memory.

[00:24:43] Speaker 00:
Is that something we also rely on here for your claim construction?

[00:24:48] Speaker 01:
Column three lines.

[00:24:49] Speaker 01:
I'm sorry, Your Honor.

[00:24:50] Speaker 01:
Which lines?

[00:24:50] Speaker 00:
It looks to be around line 32.

[00:24:52] Speaker 00:
It's right under the detailed description of the invention.

[00:24:57] Speaker 01:
Yes.

[00:24:57] Speaker 01:
Yes.

[00:24:58] Speaker 01:
And that is describing a way in which

[00:25:00] Speaker 01:
So the way this works is that continuously scrolling is one way that you can further shorten the time for the tag to identify itself.

[00:25:08] Speaker 01:
And I would refer the court, there's an article in the record which is a commercial embodiment of the invention.

[00:25:14] Speaker 01:
That's at A63958, and it talks a little bit about the scrolling.

[00:25:18] Speaker 01:
And what it indicates is that when you scroll, so you're constantly sending this memory, you're sending the identification information, that means that the reader is getting frequent identification signals.

[00:25:30] Speaker 01:
So if there's a problem, if there's a weak signal, and if some of them fail, you increase the chances that you're going to get the signal.

[00:25:37] Speaker 01:
So that's a way to do it, is the scrolling, which it describes as the way that the invention does it.

[00:25:42] Speaker 01:
But it's somewhat, it's not,

[00:25:43] Speaker 01:
It's not completely coextensive with Tag Talks First, because a tag could talk first without necessarily doing this continuous scrolling.

[00:25:51] Speaker 02:
All this continuous scrolling discussion throughout the specification, that really goes to your argument why the tag, the recited tag is a battery-powered tag.

[00:26:04] Speaker 02:
Yes, yes.

[00:26:07] Speaker 02:
Do you move to win on both claim construction debates for the

[00:26:11] Speaker 02:
for there to be an affirm here?

[00:26:13] Speaker 02:
No, Your Honor.

[00:26:14] Speaker 02:
Or either one?

[00:26:15] Speaker 01:
Either one, Your Honor.

[00:26:16] Speaker 01:
They've conceded that we do not have a Tag Talk First system.

[00:26:19] Speaker 01:
We have a Reader Talks First system.

[00:26:20] Speaker 01:
And that's why I went to that first, because I think that's the clearest disclosure.

[00:26:23] Speaker 01:
I think the district court was right on both grounds.

[00:26:25] Speaker 02:
And your tags lack a battery or a power source?

[00:26:29] Speaker 02:
Correct.

[00:26:29] Speaker 02:
Correct.

[00:26:29] Speaker 02:
They are passive.

[00:26:30] Speaker 01:
Because they're passive.

[00:26:31] Speaker 01:
Yes.

[00:26:32] Speaker 01:
Yes.

[00:26:33] Speaker 01:
So very quickly, Your Honor, unless there are further questions on this, I just also wanted to point out, just to clarify for the record,

[00:26:41] Speaker 01:
I think it's now conceded that they had pointed to Figure 3 as not disclosing a battery.

[00:26:46] Speaker 01:
It's very clear if the court reviews the discussion of Figure 3 in the context of the patent, although the battery is not depicted there, the embodiment that's depicted in Figure 3 has a battery, and that is reflected.

[00:26:58] Speaker 02:
Does everyone agree that if a tag is continuously scrolling, that necessarily translates to a tag that has its own power source?

[00:27:09] Speaker 01:
Yes, and they do not dispute that.

[00:27:11] Speaker 01:
They can see that.

[00:27:15] Speaker 01:
I also would just very, very briefly point out to your honors that their argument that this is a somehow they're separate independent inventions.

[00:27:23] Speaker 01:
I mean, there's certainly a case law.

[00:27:24] Speaker 01:
You can have separate independent inventions described in the specification that have different features.

[00:27:29] Speaker 01:
The selective transmission and verification, as I mentioned, that was in the prior art.

[00:27:33] Speaker 01:
They describe it as being in the prior art.

[00:27:35] Speaker 01:
And the portion that Intermec has cited to

[00:27:39] Speaker 01:
as disclosing the supposedly completely independent invention, at column 7, lines 33 through 34, the verification procedure prevents a tag being overwritten with the wrong data.

[00:27:50] Speaker 01:
If the court looks at the earlier part of that paragraph, this is again in the context of a scrolling tag.

[00:27:57] Speaker 01:
Just look a few lines up in lines 23.

[00:28:00] Speaker 01:
It says, the tag then recognizing the command one pulse causes the scrolling to stop.

[00:28:06] Speaker 01:
And as they've conceded, scrolling requires a battery.

[00:28:09] Speaker 01:
So this is not describing some independent reader talk first verification invention.

[00:28:14] Speaker 01:
It's describing it in the context of what the patent over and over and over again says is the invention, which is a Tag Talks First system.

[00:28:21] Speaker 01:
Very, very briefly, if I have any time in my two minutes, I just wanted to address the 181, unless the court has any further questions on the 807.

[00:28:29] Speaker 01:
So on the 181, I wanted also to go to Judge Chan's questions about the evidence concerning, I believe it was Judge Chan, it might have been Judge Stoll,

[00:28:38] Speaker 01:
about the questions about whether there is any delivery of power from these capacitors, from the persistent nodes to the tag electronics.

[00:28:48] Speaker 01:
And the answer is... The power off period.

[00:28:51] Speaker 01:
Well, it's undisputed that during the power off period there isn't any.

[00:28:54] Speaker 01:
They concede that.

[00:28:55] Speaker 01:
And that's the only relevant period of time for the anti-depletion limitation.

[00:29:01] Speaker 01:
In our view it is, but I just want to address their arguments, because even under their arguments we still should have an affirmance.

[00:29:09] Speaker 01:
So they say that if the persistent node circuit delivers power after the power comes back up, that that's okay, because it's allowing the tags to function.

[00:29:20] Speaker 01:
There's no evidence in the record that suggests that that ever happens.

[00:29:23] Speaker 01:
The claim term requires that there has to be

[00:29:26] Speaker 01:
a tag energy store and a means for delivery of energy from the tag energy store to the tag electronics.

[00:29:33] Speaker 01:
There's no evidence that that happens.

[00:29:35] Speaker 01:
They cite to appendix 13.13516 and all their expert says there, he's describing what capacitors do, he says it's holding a charge.

[00:29:45] Speaker 01:
He says it's really powering the state retention circuit in effect, but it was then asked, it's providing power to the persistent node circuit

[00:29:53] Speaker 01:
Yes, so it's allowing current to flow through that circuit under certain conditions because there's a switch that isolates that capacitor to stop the charge from leaking away.

[00:30:03] Speaker 01:
And I would refer the cord to Joint Appendix 19069 because what this persistent node circuit is, it's a capacitor which holds power and it's two transistors.

[00:30:13] Speaker 01:
And all the transistors do is prevent the capacitor from leaking.

[00:30:16] Speaker 01:
That's what he's saying is power.

[00:30:18] Speaker 01:
It's just the means by which it holds its power.

[00:30:21] Speaker 01:
It doesn't deliver power to anything else in the tag.

[00:30:24] Speaker 01:
And this is also in Joint Appendix 1900, where the CTO of Alien describes how this works.

[00:30:36] Speaker 01:
And I see I'm out of time, but I would just also refer the court to Appendix 13517.

[00:30:42] Speaker 01:
where their own expert admits that what gets powered is when the power comes back up, our reserve capacitor, which is a separate component they do not claim is the tag energy store, that supplies power to the persistent node circuit, not the other way around.

[00:30:56] Speaker 01:
There's no delivery of any energy going from this persistent node circuit to any other part of the tag electronics.

[00:31:04] Speaker 01:
OK, thank you.

[00:31:04] Speaker 01:
Thank you very much.

[00:31:09] Speaker 02:
Two minutes for Mr. Sawyer.

[00:31:23] Speaker 03:
I'd just like to address this idea that the 807 patent does disclose different inventive concepts.

[00:31:30] Speaker 03:
In fact, in Aliens' opening claim construction brief at Appendix 9694, they say a key feature of the 807 invention

[00:31:39] Speaker 03:
is that the data to be written into the tag is sent to and received and stored only a previously identified tag for whom such information is intended.

[00:31:48] Speaker 03:
In other words, the data is transmitted to only one tag, is received by only one tag, and is stored by only one tag.

[00:31:55] Speaker 03:
So they are recognizing that that is one of the key inventive aspects of the invention.

[00:32:03] Speaker 03:
The patent examiner also recognized that there are independent reasons for allowance of this particular patent.

[00:32:11] Speaker 03:
One was a continuous scrolling, and the second was this idea that there's a recognition by the interrogator of the remote for which the interrogation has designated data.

[00:32:21] Speaker 03:
And that's at appendix 9257.

[00:32:26] Speaker 03:
Lastly, with respect to

[00:32:30] Speaker 03:
aliens discussion of whether or not the TAG energy store delivers power to the TAG electronics.

[00:32:40] Speaker 03:
Admittedly, there's not a lot in the record about that, but that's because the claim construction was really focused on what is a TAG energy store and really what does it mean, this depletion limitation, what does it mean that TAG electronics don't function.

[00:32:53] Speaker 03:
And so there wasn't a whole lot of discussion in the record about specifically if it gets delivered.

[00:32:59] Speaker 03:
There is evidence in the record, though, that Aliens, excuse me, that Intermex experts said that there is power that the TAG energy store delivers to other TAG electronics.

[00:33:14] Speaker 03:
And Judge Chen mentioned whether or not it is during power off or not.

[00:33:19] Speaker 03:
There's nothing in the claim that says the delivery has to be during the power off period.

[00:33:23] Speaker 03:
It just says it has to deliver energy with that.

[00:33:26] Speaker 02:
Did you say A9257?

[00:33:31] Speaker 02:
The examiner?

[00:33:32] Speaker 02:
Yes.

[00:33:36] Speaker 02:
Okay.

[00:33:42] Speaker 02:
Thank you.

[00:33:43] Speaker 02:
Case is submitted.