[00:00:00] Speaker 00:
I'm glad you're feeling better than you were last.

[00:00:03] Speaker 00:
Much better.

[00:00:46] Speaker 03:
Next case is GenBand US versus Metaswitch Networks, 2018-1969.

[00:00:53] Speaker 03:
Mr. Verhoeven.

[00:00:54] Speaker 00:
Thank you, Your Honors.

[00:01:07] Speaker 02:
May it please the Court?

[00:01:09] Speaker 02:
The plaintiffs in this case elected to try

[00:01:14] Speaker 02:
seven different patents from five families in a five-day trial.

[00:01:20] Speaker 02:
That was their election to do that.

[00:01:23] Speaker 02:
The results of the trial demonstrate that there's no substantial evidence for five of the seven patents with respect to clear claim elements, which of course, as a matter of law, requires a finding of non-infringement.

[00:01:40] Speaker 02:
In addition, we have appealed, Your Honor, because

[00:01:43] Speaker 02:
the district court judge made claim construction rulings during and after the trial that are unsupported.

[00:01:53] Speaker 02:
And we'll go through, we briefed through those.

[00:01:57] Speaker 02:
Two of the patents also suffer from patent eligibility problems under section 101.

[00:02:04] Speaker 02:
And then finally, two of the patents have means plus function claims where there's just a black box and no disclosure.

[00:02:13] Speaker 02:
Let me take as an example the 658 patent.

[00:02:18] Speaker 02:
This is the one with the computer languages.

[00:02:21] Speaker 02:
I call it the interworking patent.

[00:02:24] Speaker 02:
So first and foremost, this patent is not patent eligible under section 101.

[00:02:30] Speaker 02:
All its claims is one language, one person has one language, another person has another language, and a third person, the interworking agent, which could be a human being,

[00:02:43] Speaker 02:
uses a common language that both understand to do the translation.

[00:02:50] Speaker 02:
And the only thing in addition to that is they pass through stuff that doesn't translate unaltered.

[00:02:56] Speaker 02:
That's a plain abstract idea that's been around forever.

[00:03:04] Speaker 02:
Using a common language to help translate between two other languages is not eligible for patent protection.

[00:03:12] Speaker 02:
In addition to that, the one thing they might point to as being unique, which we disagree with, is that they pass through these unmatched translations without alteration.

[00:03:29] Speaker 02:
We don't do that.

[00:03:31] Speaker 02:
Infused products do not pass through unmatched translation items without alteration.

[00:03:41] Speaker 00:
The undisputed evidence... I'm sorry, on that question, which is an infringement question, is this the one in which there's a dispute about the interpretation of, I forget whether it's testimony or a document about... It was Mr. Rowland's testimony?

[00:03:57] Speaker 00:
Something that you say that something is dropped before it's passed through.

[00:04:02] Speaker 00:
They say it's passed through and then potentially dropped.

[00:04:05] Speaker 02:
Yes, that's Mr. Rowland's testimony.

[00:04:07] Speaker 02:
Mr. Rowland testified very clearly

[00:04:11] Speaker 02:
that if there is no match, this is Appendix 1919 through 20, parameters that do not map from the first protocol to the second protocol, quote, will just be discarded.

[00:04:28] Speaker 02:
And what the plaintiff, and I'll let them argue about it, Your Honor, but what the plaintiff is doing is they're taking

[00:04:37] Speaker 02:
going into the weeds and trying to create something that doesn't exist.

[00:04:41] Speaker 02:
And I'm not going to try and interpret it because I have a hard time understanding what they're even saying.

[00:04:45] Speaker 02:
But Mr. Rowland clearly testified that if it doesn't match, it's discarded.

[00:04:52] Speaker 02:
It's not passed through without alteration.

[00:04:55] Speaker 02:
And there's no evidence, there's no evidence that we do that.

[00:05:01] Speaker 02:
We just don't do it.

[00:05:03] Speaker 02:
And so

[00:05:06] Speaker 02:
You've got 101 and the fact that there's no evidence as to what the main claim elements as to this patent requires a reversal here.

[00:05:18] Speaker 02:
The 658 patent is another, or excuse me, the 561 patent is another one.

[00:05:28] Speaker 02:
Another example, this patent also suffers from patent eligibility problems.

[00:05:34] Speaker 03:
Doesn't it claim a firewall?

[00:05:37] Speaker 02:
Claims firewall, yeah.

[00:05:39] Speaker 02:
Firewalls have been around.

[00:05:41] Speaker 02:
But the abstract idea, even as said by the court, is receiving a stream of incoming packets and then applying the packets to either an application proxy or a packet filter.

[00:05:56] Speaker 02:
The patent itself, at column one, lines 12 through 40, acknowledges

[00:06:03] Speaker 02:
that application proxies and packet filters were well-known prior R components.

[00:06:09] Speaker 02:
So what you're talking about is you've got three streams.

[00:06:15] Speaker 02:
You've got the signal channel, the media channel, and the control channel.

[00:06:20] Speaker 02:
So you've got streams of these three channels coming in.

[00:06:24] Speaker 02:
And you either apply it to one proxy, well-known proxy, or another well-known proxy.

[00:06:31] Speaker 02:
anything other than just some abstract idea that you take streams and apply them to proxies.

[00:06:36] Speaker 02:
That's it.

[00:06:37] Speaker 02:
There's nothing else in the actual claim.

[00:06:39] Speaker 02:
There's not some abstraction of that concept.

[00:06:44] Speaker 02:
And then here too, we have no evidence as to the control channel.

[00:06:51] Speaker 02:
So the claims require a signaling channel, a media channel, and a control channel.

[00:06:58] Speaker 02:
There's no control channel in any of our systems.

[00:07:01] Speaker 02:
If you look at the evidence presented to the jury, the accused product is the perimeter product.

[00:07:06] Speaker 02:
It clearly shows there's only two channels, the signaling channel and the media channel.

[00:07:12] Speaker 02:
And signaling channels and media channels, by the way, have been around forever because of the obvious utility in taking your content, which is massive, in one channel and your signaling, which is exponentially smaller, in a different channel because you want to process them in different ways.

[00:07:31] Speaker 00:
So, didn't the other side have evidence that the same component was in fact performing providing both channels?

[00:07:43] Speaker 02:
That's very interesting.

[00:07:46] Speaker 02:
Prior to cross-examination at Trott, their expert's name is Mr. Beckman, so Mr. Beckman admitted that there were only two channels and not a third channel.

[00:07:58] Speaker 02:
In fact, I will

[00:08:01] Speaker 00:
My recollection when I read that testimony, which you cited right at the beginning of that portion of your brief, is that he did not actually say that.

[00:08:12] Speaker 00:
He said something close, but close is actually the key distinction here, because the key distinction, I think, was that both channels can be provided by the same, let's call it a component.

[00:08:29] Speaker 02:
The claim construction for applying all packets, your honor, as a contributor to the court is, quote, applying, comma, for the setup, duration, and takedown of the real-time internet action application, sorry, comma, all IP packets associated with the bearer channel to the packet filter.

[00:08:51] Speaker 02:
Now, you don't need to see all in patent claims.

[00:08:57] Speaker 02:
That's because

[00:08:58] Speaker 02:
The patent office rejected all of this based on prior art.

[00:09:02] Speaker 02:
And the only way they got around it was saying that all of the packets have to make it through.

[00:09:09] Speaker 02:
But going back to setting aside, let's assume you're right, Your Honor, that there isn't a change of testimony.

[00:09:18] Speaker 02:
The first time that Beckman testified about a single channel and that you could combine signaling and channel into a single multiplex channel,

[00:09:28] Speaker 02:
was on cross-examination.

[00:09:30] Speaker 02:
Throwaway speculation, trying to defend himself because the evidence he presented on direct clearly didn't show that all IP packets are applied.

[00:09:43] Speaker 00:
Sometimes cross-examination produces evidence, the questioner might not.

[00:09:49] Speaker 02:
But simply say, well, it could be multiplexed into a single channel is not substantial evidence.

[00:09:56] Speaker 02:
That is, you're talking about some sort

[00:09:58] Speaker 02:
Possibility.

[00:09:59] Speaker 02:
He didn't go in there and say that had happened in the accused products.

[00:10:04] Speaker 02:
He didn't go in and present any evidence for the setup, duration, and takedown of the application that this is happening in a multiplex situation.

[00:10:19] Speaker 02:
There's no evidence.

[00:10:20] Speaker 02:
I mean, it's not just saying, well, you can multiplex, and therefore I've proved infringement.

[00:10:26] Speaker 02:
You have to look at the product.

[00:10:27] Speaker 02:
You have to show evidence to support your position, and he just didn't do so here.

[00:10:33] Speaker 00:
What's the difference between a control and a signal?

[00:10:37] Speaker 02:
The claim language expressly, well, let me step back.

[00:10:42] Speaker 02:
We treated it as plain and ordinary meaning.

[00:10:45] Speaker 02:
So there's no construction, unless I'm wrong, I think so, as to control channel.

[00:10:53] Speaker 02:
Let me double check to make sure I'm right.

[00:10:59] Speaker 02:
There is one construction, though, that's very important, is that a channel is a stream of packets.

[00:11:05] Speaker 02:
And I'll explain why that's important in a second.

[00:11:09] Speaker 02:
But I'm sorry, I forgot your question.

[00:11:14] Speaker 00:
I wanted to understand what the difference is in a common sense way between a signal channel and a control channel.

[00:11:20] Speaker 00:
It seems to me a control channel is carrying signals to exercise control.

[00:11:24] Speaker 00:
So what are the signals in the non-control signal channel?

[00:11:28] Speaker 02:
I mean, that's the problem I have too with the claim.

[00:11:31] Speaker 02:
The claim itself refers to this control channel.

[00:11:36] Speaker 02:
And it says it's separate.

[00:11:38] Speaker 02:
So you have three channels.

[00:11:40] Speaker 02:
It clearly says that.

[00:11:42] Speaker 02:
That's what it's claiming.

[00:11:43] Speaker 02:
And to say we've shown infringement with only two channels when it claims three channels is to vitiate the third channel.

[00:11:52] Speaker 02:
And because when we're talking about channels, we're talking about things coming in.

[00:11:57] Speaker 02:
through packets, a stream of packets.

[00:12:02] Speaker 02:
There's only two channels where that happens.

[00:12:04] Speaker 02:
It's undisputed in the evidence, signaling the media.

[00:12:07] Speaker 03:
Can you address the exclusion of your demonstrative?

[00:12:12] Speaker 02:
Yes.

[00:12:13] Speaker 02:
Thank you for asking about that.

[00:12:15] Speaker 02:
This relates to the 279 and the 589 patents.

[00:12:19] Speaker 02:
Our main non-infringement argument on these patents was that the thing that

[00:12:27] Speaker 02:
Beckman pointed to for the control element of these patents was an invite.

[00:12:34] Speaker 02:
And that an invite is not... Command.

[00:12:38] Speaker 02:
I'm sorry.

[00:12:38] Speaker 02:
Command.

[00:12:39] Speaker 02:
I'm sorry.

[00:12:39] Speaker 02:
The command element.

[00:12:40] Speaker 02:
So many patents.

[00:12:41] Speaker 02:
Sorry to keep it straight.

[00:12:42] Speaker 02:
The invite is not a command.

[00:12:45] Speaker 02:
We previously disclosed this position in our expert reports.

[00:12:49] Speaker 02:
We had two rounds of claim construction.

[00:12:52] Speaker 02:
Two rounds where the parties presented what they wanted to have interpreted.

[00:12:58] Speaker 02:
And nobody presented, neither side presented a special interpretation of commands.

[00:13:05] Speaker 02:
We just said, plain and ordinary meaning.

[00:13:08] Speaker 02:
So what do we have now?

[00:13:11] Speaker 02:
What happened is no mention that command should be not given as plain and ordinary meaning.

[00:13:19] Speaker 02:
Then we have the day of our expert's testimony

[00:13:25] Speaker 00:
But first of all, you cross-examine their expert to kind of make the point.

[00:13:30] Speaker 00:
A SIP invite is not really... I did a setup.

[00:13:33] Speaker 00:
And then your expert comes in with, I don't know, 150 or something.

[00:13:37] Speaker 00:
Demonstratives, is that what's in the packet?

[00:13:39] Speaker 00:
A very large number.

[00:13:40] Speaker 02:
Well, the objection was to a substantive argument that we made.

[00:13:44] Speaker 00:
Well, it was specifically an objection to particular demonstratives.

[00:13:47] Speaker 00:
And then, as the judge later explained, his rejection of it seemed to be on the ground that it was making a claim construction point that was incorrect.

[00:14:00] Speaker 02:
And therefore,

[00:14:04] Speaker 02:
Go ahead.

[00:14:04] Speaker 02:
I'm sorry, your honor.

[00:14:05] Speaker 00:
Right.

[00:14:05] Speaker 00:
And therefore, even though all that he technically did was refuse to allow you to use the demonstrative, you treat that as an exclusion of evidence.

[00:14:15] Speaker 02:
He precluded us from arguing that an invite is not a control.

[00:14:20] Speaker 02:
He said, you cannot argue that.

[00:14:23] Speaker 02:
And so our main, he did it in chambers.

[00:14:27] Speaker 02:
And I asked, and we asked him, he said, we've got to put this on the record.

[00:14:31] Speaker 00:
But he did.

[00:14:32] Speaker 02:
And then he did.

[00:14:33] Speaker 02:
And it's clearly he's talking about, I'll read it to you.

[00:14:36] Speaker 02:
This is from, gosh, I don't have this site here.

[00:14:43] Speaker 02:
But it's from the court's ruling.

[00:14:45] Speaker 02:
Quote, the court ruled on those disputed demonstrators based on the express language in the order set forth as 135.

[00:14:51] Speaker 02:
That's the second claim construction order.

[00:14:56] Speaker 02:
Particularly, I called to the attention of the parties the sentence on page 36, which states,

[00:15:02] Speaker 02:
Subquote.

[00:15:03] Speaker 02:
Further, the specification discloses, for example, that the control system may transmit commands to the telephony device merely to notify it of status.

[00:15:14] Speaker 02:
And so based on that one sentence, in the specification, in an in-chambers conference, before our expert was just about to testify about his main non-imprisonment argument, the judge says you can't do it.

[00:15:27] Speaker 03:
Counsel, you want to save some time for a bottle, which is just about gone.

[00:15:31] Speaker 03:
Let's hear from the other side, and we'll give you three minutes of our total time.

[00:15:35] Speaker 02:
Thank you very much.

[00:15:35] Speaker 03:
Mr. Kubeil.

[00:15:43] Speaker 01:
Good morning, Your Honors.

[00:15:44] Speaker 01:
Doug Kubeil on behalf of GenBand.

[00:15:45] Speaker 01:
You may please the court.

[00:15:48] Speaker 01:
GenBand brought this case because of widespread infringement by its direct competitor Metaswitch.

[00:15:54] Speaker 01:
The jury did find that five patent families were infringed.

[00:16:00] Speaker 01:
There is substantial evidence supporting that jury's finding, and Metaswitch hasn't carried its clear and convincing burden of invalidating the patents.

[00:16:09] Speaker 01:
I'd like to start with the 658 patent that Council for Metaswitch started with, and this idea of parameters that are passed without alteration.

[00:16:19] Speaker 01:
The jury heard evidence from Mr. Rowland.

[00:16:22] Speaker 01:
He was Metaswitch's corporate representative on this issue.

[00:16:26] Speaker 01:
He was the director of engineering for the products that we're talking about.

[00:16:30] Speaker 01:
He gave testimony at Appendix 1920 where he was asked the question, for parameters that don't map from the first protocol to the second protocol, what happens to those?

[00:16:46] Speaker 01:
And he very clearly explained that's a two-part answer.

[00:16:51] Speaker 01:
The first thing that happens is some of those parameters might get used by the first protocol, and then they're not useful anymore, so they're discarded.

[00:17:00] Speaker 01:
But then he said there's a second part of the answer as well.

[00:17:04] Speaker 01:
And the second part shows infringement.

[00:17:06] Speaker 01:
For those parameters that are not used and discarded, he testified that those parameters are passed to the second protocol agent and actually put into memory where the second protocol agent can read them.

[00:17:19] Speaker 01:
And it's only after they've been passed through unaltered and read by the second protocol agent that they can then be discarded if they're not useful at that point.

[00:17:29] Speaker 01:
but he testified very clearly that parameters, it's not only capable of passing these parameters unaltered, that's in fact what it's designed to do and what it does do.

[00:17:41] Speaker 01:
With respect to the second patent that was talked about, the 561 patent and the control channels, it is not accurate that Dr. Beckman didn't address the control channels until cross-examination.

[00:17:58] Speaker 01:
During his direct examination,

[00:18:00] Speaker 01:
he explained using plaintiffs exhibit 522, which is not addressed in their opening appeal brief and kind of surprisingly because this was squarely addressed in the rule 50 motions.

[00:18:13] Speaker 01:
They made the same argument that he hadn't addressed this issue and it was pointed out in the district court agreed that he relied specifically on exhibit plaintiffs exhibit 522, which was a meta switch document to show

[00:18:26] Speaker 01:
that when MetaSwitch uses the term signaling information, it's talking about two things.

[00:18:31] Speaker 01:
It's talking about both call control information and it's also talking about call signaling information.

[00:18:39] Speaker 00:
Can you now just add two sentences to explain to me what the difference is?

[00:18:45] Speaker 00:
Exhibit five exhibit just what's control information and what signaling information sure?

[00:18:50] Speaker 01:
In the meta switch the patent doesn't give specifics about the differences between those two in the meta switch document It explains that call control information is information to for example set up the call Call signaling information can be used for things like quality of service determinations during the call, okay?

[00:19:09] Speaker 00:
Would you mind switching to, I guess, two topics that are of particular interest?

[00:19:15] Speaker 03:
This is meta switch.

[00:19:18] Speaker 00:
Right.

[00:19:19] Speaker 00:
I should be standing up.

[00:19:21] Speaker 00:
So one is what happened on the SIP invite is not command.

[00:19:27] Speaker 00:
And the other, which Mr. Verhoeven didn't get to, but I guess I'm quite interested in, which is the indefiniteness of the 112F.

[00:19:36] Speaker 00:
claim in the language in the 427 and 984.

[00:19:39] Speaker 00:
Let's first let's start with the sip invite is not command.

[00:19:43] Speaker 01:
Yes Judge Schrono.

[00:19:47] Speaker 01:
MetaSwitch is complaining about a ruling that simply did not happen.

[00:19:52] Speaker 01:
There was no ruling saying you may not make this argument as your honor asked can you show me in the record where that ruling was made.

[00:20:00] Speaker 01:
No such ruling was made.

[00:20:02] Speaker 01:
There is not a ruling in the record saying

[00:20:04] Speaker 01:
Your expert is precluded from testifying that a SIP invite cannot be a command.

[00:20:10] Speaker 00:
But when the only reason given by the district court, after the fact, just recording what had been done in the unrecorded chambers conference, the only reason given is, I'm going to summarize, I think that's contrary to the proper meaning of the claim.

[00:20:32] Speaker 00:
At that point,

[00:20:33] Speaker 00:
Why isn't the exclusion of the demonstrative an equivalent to the exclusion of evidence?

[00:20:41] Speaker 01:
Well, Your Honor, I guess I'd first start with we would need a record on which to determine what was it that was excluded.

[00:20:51] Speaker 01:
We don't have in the record the demonstratives.

[00:20:54] Speaker 01:
There was no offer of proof made as to what is it that you want to.

[00:20:57] Speaker 00:
I thought I read the demonstrative.

[00:21:00] Speaker 01:
There are demonstratives that were put into the appendix that were not in the record below.

[00:21:05] Speaker 01:
Those are not part of the appeal record.

[00:21:06] Speaker 00:
But there's no dispute about what the demonstratives said.

[00:21:09] Speaker 00:
I mean, that is, it was to say a SIP invite is not a command.

[00:21:14] Speaker 00:
And the judge said, the reason I excluded that is that

[00:21:20] Speaker 00:
As I explained briefly in my claim construction order, there's a passage in the patent that uses the word command to refer to something other than I'm telling you what to do, rather, but to mere notification.

[00:21:35] Speaker 01:
There definitely is a dispute about that, Your Honor.

[00:21:39] Speaker 01:
If you're willing to go outside of the record and look at the appendix with respect to the email that went to the court and the demonstratives that went to the court,

[00:21:49] Speaker 01:
there were two particular demonstratives that were objected to.

[00:21:52] Speaker 01:
That was numbers 37 and 38.

[00:21:54] Speaker 01:
And what you see on those demonstratives is no reference to SIP invites.

[00:22:00] Speaker 01:
What they were trying to do was to make a claim construction argument that a command in the patent was something that was mutually exclusive from a message.

[00:22:09] Speaker 01:
That issue had been dealt with in claim construction where it was argued that

[00:22:14] Speaker 01:
a command could not be a message, a command must be something that commands an entity.

[00:22:20] Speaker 01:
And the court had pointed to the patent specification where it noted that a command is something as simple as a notification of status.

[00:22:29] Speaker 01:
So what the court did in terms of the demonstratives is said, you're not going to put up a demonstrative that suggests that in the patent,

[00:22:41] Speaker 01:
a command and a message are two mutually exclusive things.

[00:22:45] Speaker 01:
But he made no ruling with respect to any demonstratives that had SIPP invite on it.

[00:22:51] Speaker 01:
That's not in the record and that didn't happen.

[00:22:56] Speaker 01:
And that's kind of the whole problem we're dealing with here, Your Honors, is that no offer of proof was made as to any of this.

[00:23:02] Speaker 01:
And so we've got attorney argument after the fact saying, well, gee, I wish I would have argued this and I would have done this and I would have done that.

[00:23:08] Speaker 01:
And that's the whole reason that we have an offer of proof

[00:23:11] Speaker 01:
requirements.

[00:23:12] Speaker 01:
There was a cross-examination that was made on the point, and it's MetaSwitch's job to say, well, what is it?

[00:23:19] Speaker 01:
What is it that you would have put into evidence that's different than what was in the cross?

[00:23:25] Speaker 01:
What specifically was excluded and what would you have said?

[00:23:28] Speaker 01:
They had an opportunity to do that, and they didn't do that.

[00:23:30] Speaker 01:
We don't have an appeal record.

[00:23:32] Speaker 00:
You said which exhibit, which demonstrative was?

[00:23:34] Speaker 01:
Demonstrative number 37 and demonstrative number 38 are the specific ones.

[00:23:39] Speaker 00:
Right, so 38 expressly refers to SIP.

[00:23:43] Speaker 01:
Let me make sure I'm correct on this.

[00:23:45] Speaker 00:
This is Artage, Appendix 6011.

[00:23:53] Speaker 00:
This is Volume 3.

[00:23:59] Speaker 00:
I don't know if that's an invite in SIP or just something else in SIP.

[00:24:04] Speaker 01:
So 6010 and 6011.

[00:24:10] Speaker 01:
So you can see that the argument they wanted to make on 6011 was underlying the word command on one side and over on the other side the word messages.

[00:24:22] Speaker 01:
And it had been argued in claim construction

[00:24:24] Speaker 01:
that a message was something mutually exclusive from a command.

[00:24:28] Speaker 01:
One can't be the other.

[00:24:29] Speaker 01:
That had been argued.

[00:24:30] Speaker 01:
That had been rejected.

[00:24:31] Speaker 01:
And so this slide, re-arguing that, that a command and a message are mutually exclusive, was contrary to what the court already had taken up in claim construction.

[00:24:40] Speaker 00:
And he- Well, I guess I'm trying to understand whether your argument is, even if the judge did essentially preclude

[00:24:51] Speaker 00:
Um, the expert from testifying contrary to what he viewed as the claim construction, there was no error in that because the claim, his, the judge's claim construction was in fact correct.

[00:25:02] Speaker 00:
That is, you cannot say that a mere message, including a sip invite is not a command.

[00:25:12] Speaker 01:
That is definitely part of the argument, your honor.

[00:25:14] Speaker 01:
There, there certainly is no harm here because the claim construction argument that they wanted to put forward

[00:25:21] Speaker 01:
which was that messages and commands are mutually exclusive, is contrary to the patent.

[00:25:26] Speaker 01:
It directly contradicts the specification.

[00:25:28] Speaker 01:
So the first level of the argument is we don't have an offer of proof.

[00:25:32] Speaker 01:
We don't have an order from which to appeal with respect to the issue of did the court order that you may not say that an invite is not a command.

[00:25:42] Speaker 01:
He didn't order that.

[00:25:44] Speaker 01:
Secondly, if he had done that,

[00:25:47] Speaker 01:
It's harmless.

[00:25:48] Speaker 01:
Number one, because they were allowed to cross-examine on that point.

[00:25:51] Speaker 01:
And there's certainly no offer of proof made as to what, in addition to the cross-examination, did you want to accomplish there?

[00:26:00] Speaker 01:
And then third, as we've just talked about, the argument that a command and a message are mutually exclusive and one can't be the other was contrary to the claim construction, contrary to the patent.

[00:26:16] Speaker 01:
the patent specification, which specifically says that a mere notification of status can be a command.

[00:26:22] Speaker 00:
Can you talk about packetization module?

[00:26:25] Speaker 00:
So as I understand it, you did not have evidence of ordinary usage of that term outside the scope of the patent that would mean that it was something, it was a structural term itself and therefore wholly outside 112F.

[00:26:45] Speaker 00:
And the judge said this is a nonce term, so we're in 112F.

[00:26:51] Speaker 00:
And when I look in the spec, I see two things, only one of which you rely on.

[00:26:57] Speaker 00:
That is, one thing I see is a box with a bunch of specifics in it, but you don't in fact assert that that's the structure that corresponds to the term.

[00:27:08] Speaker 00:
And then the other thing I see is a box with the name packetization module on it, and that doesn't actually do anything that the nonce term doesn't do either.

[00:27:17] Speaker 01:
So your honor what we what we rely on is the text associated with figure five So you've referred to figure five in a box, but there's text associated with that figure That text runs from column 13 line 36 to line 17 line 56 the recitation of the claimed function appears that appendix 96 and I I won't reread that into the record, but there's a specific function that the packetization module

[00:27:48] Speaker 01:
is to accomplish.

[00:27:50] Speaker 00:
I'm sorry, so I'm looking at the 427?

[00:27:51] Speaker 00:
Yes, Your Honor.

[00:27:53] Speaker 01:
If you're in the appendix, it would be appendix 463.

[00:27:59] Speaker 01:
It starts at 1336.

[00:28:02] Speaker 01:
And in particular, what the court relied on was, I believe, at 1346 through 1555.

[00:28:13] Speaker 01:
And there it's explained that

[00:28:15] Speaker 01:
In this particular embodiment, the packetization module is implemented on a separate printed circuit board.

[00:28:25] Speaker 00:
So my recollection from your brief is that that's the only thing that you relied on, what the module sits on, which doesn't seem to need to tell us anything about what the module, what the internal structure of the module.

[00:28:38] Speaker 01:
I would disagree that the printed circuit board is something that the module sits on.

[00:28:43] Speaker 01:
The way that they've articulated is that this black box sits on top of this thing called a printed circuit board.

[00:28:49] Speaker 01:
But the printed circuit board, it's not just a blank slab of silicone.

[00:28:55] Speaker 01:
It's a printed circuit board.

[00:28:56] Speaker 01:
It has the circuitry on it.

[00:28:58] Speaker 01:
It is the packetization module.

[00:28:59] Speaker 00:
Sitting on top, then, is not the right language.

[00:29:02] Speaker 00:
But rather, to say that it is embodied in printed circuitry on the board doesn't tell you anything about the structure of that circuitry.

[00:29:13] Speaker 01:
It tells you, so columns 13 through 17 talk about the function of the module, and 1346 explains that that functionality is carried out on a printed circuit board.

[00:29:29] Speaker 01:
And there's actually different embodiments in the patent.

[00:29:33] Speaker 01:
There's an embodiment where it doesn't have to be on a separate printed circuit board.

[00:29:38] Speaker 01:
For example, A465, column 17,

[00:29:44] Speaker 01:
line 53 discusses where multiple functionalities can happen on the circuit boards.

[00:29:51] Speaker 01:
The separate printed circuit board is a specific structural embodiment of the packetization module that's different than other embodiments.

[00:30:00] Speaker 00:
And I trust you do not rely on item 110 in figure six?

[00:30:05] Speaker 01:
Sure, let me describe the difference.

[00:30:07] Speaker 00:
Because that actually has stuff in it.

[00:30:09] Speaker 01:
So in figure five,

[00:30:12] Speaker 01:
Figure five describes that there's multiple embodiments you can have.

[00:30:16] Speaker 01:
You can have a packetization module that handles multiple different protocols, or you could have separate packetization modules that each handle one protocol.

[00:30:28] Speaker 01:
Figure five allows for both.

[00:30:31] Speaker 01:
Figure six describes a specific embodiment where the packetization module handles one protocol.

[00:30:38] Speaker 01:
That's what's described in the text for figure six.

[00:30:42] Speaker 01:
Figure six is an embodiment that falls within what is described in figure five, but figure five is not limited to just that embodiment in figure six.

[00:30:52] Speaker 01:
Those are two different.

[00:30:53] Speaker 01:
Figure five describes both embodiments in text.

[00:30:56] Speaker 01:
Figure six shows one of those embodiments in the figure.

[00:30:59] Speaker 01:
And then figure six doesn't go on.

[00:31:01] Speaker 00:
And I assume you didn't say Item 110 in Figure 6 is the corresponding structure because you can't say that the accused products have an equivalent to that.

[00:31:14] Speaker 00:
In any event, you don't seem to have said it in your brief here.

[00:31:17] Speaker 01:
That wasn't addressed at trial because that was not the claim construction.

[00:31:21] Speaker 01:
The claim construction was Acquisition Module of Figure 5, as described with respect to Figure 5.

[00:31:29] Speaker 03:
Do you have a final thought, Mr. Kubiel?

[00:31:33] Speaker 01:
I am happy to answer any questions your honors have.

[00:31:39] Speaker 01:
This is an important case for us.

[00:31:41] Speaker 01:
We are direct competitors.

[00:31:43] Speaker 01:
We worked very hard to establish infringement in this case.

[00:31:49] Speaker 01:
We did that.

[00:31:49] Speaker 01:
The jury found it.

[00:31:51] Speaker 01:
We think this court should affirm in full.

[00:31:55] Speaker 03:
We will work very hard to decide the case properly.

[00:31:59] Speaker 03:
Mr. Verhoeven, why don't you take three minutes?

[00:32:05] Speaker 02:
Thank you, Your Honor.

[00:32:07] Speaker 02:
Let me start with indefiniteness and Judge Toronto's questions about Figure 6.

[00:32:15] Speaker 02:
The reason they don't point to Figure 6 is because we don't infringe Figure 6 and the accused products don't have those elements in them, whether you deem them structurally sufficient or not.

[00:32:27] Speaker 02:
For this court, the only argument that's being made is that figure five discloses the structure.

[00:32:32] Speaker 02:
And obviously, figure five is just a black box.

[00:32:35] Speaker 02:
You heard counsel admit the specification he was referring to was a functional description.

[00:32:41] Speaker 02:
And the only thing they could point to is the printed circuit board argument.

[00:32:50] Speaker 02:
But that can't provide sufficient structural disclosure.

[00:32:55] Speaker 00:
Have we said somewhere that a circuit is itself a structural term, rejected the idea that that is not a 112F term?

[00:33:07] Speaker 02:
I'm not aware of the court saying that, Your Honor.

[00:33:12] Speaker 02:
Williamson is important here.

[00:33:14] Speaker 02:
And Williamson, when talking about whether or not the structure someone points to is sufficient, says that the structure has to be, quote,

[00:33:24] Speaker 02:
adequate corresponding structure to perform all of the claimed functions.

[00:33:29] Speaker 02:
And there's nothing in there about structure to perform the claimed functions.

[00:33:35] Speaker 02:
And as the Robert Bosch case we cited says, in that case they try to point to connections to the black box, which is basically what they're doing now.

[00:33:48] Speaker 02:
Pretty circuit board, as you hear him say,

[00:33:50] Speaker 02:
is on the supposed structure is on top of that.

[00:33:54] Speaker 02:
Well, in Bosch, they said you can't point to connections to the structure and say that's a vision structure.

[00:33:59] Speaker 02:
There's nothing identifying the structure that actually performed the claimed function.

[00:34:04] Speaker 02:
And that's what we have here.

[00:34:06] Speaker 02:
We don't even know if the structure is a hardware component or a software module.

[00:34:14] Speaker 02:
There's no disclosure of it.

[00:34:17] Speaker 02:
And so it's indefinite.

[00:34:21] Speaker 02:
I have 46 seconds on invite control.

[00:34:26] Speaker 02:
We did everything we could to take that in-chambers ruling and put it on the record.

[00:34:30] Speaker 02:
We asked the judge to.

[00:34:32] Speaker 02:
It was very irritated when we did it.

[00:34:34] Speaker 00:
Why is the ruling incorrect?

[00:34:36] Speaker 02:
If it's correct, then it doesn't really matter if... Well, first of all, we had no opportunity to brief or argue or anything.

[00:34:41] Speaker 00:
But secondly, the only thing... I thought it was briefed during the claim construction procedure.

[00:34:46] Speaker 00:
No.

[00:34:46] Speaker 00:
Whether message... A message... That is wrong.

[00:34:51] Speaker 02:
No.

[00:34:53] Speaker 02:
Control, let's see, what are we on here?

[00:34:55] Speaker 02:
Invite control.

[00:34:56] Speaker 02:
Control was never construed.

[00:34:59] Speaker 02:
Both parties relied on its plain and ordinary meaning.

[00:35:01] Speaker 02:
Command.

[00:35:02] Speaker 02:
Command.

[00:35:03] Speaker 02:
I am so sorry.

[00:35:04] Speaker 02:
This is the second time.

[00:35:07] Speaker 02:
Both sides relied on its plain and ordinary meaning.

[00:35:09] Speaker 02:
And the only thing the judge, this isn't about admission of demonstratives.

[00:35:15] Speaker 02:
He told us, you cannot argue.

[00:35:18] Speaker 02:
Your expert cannot argue

[00:35:20] Speaker 02:
I can't argue in closing that an invite's not a command.

[00:35:24] Speaker 02:
I can't even make the argument.

[00:35:26] Speaker 02:
That was his ruling.

[00:35:27] Speaker 02:
And it was a claim construction ruling.

[00:35:29] Speaker 02:
You heard from counsel, well, there's no offer of proof.

[00:35:32] Speaker 02:
Offer of proof on a claim construction ruling?

[00:35:34] Speaker 02:
This isn't about putting in evidence what the evidence would show.

[00:35:37] Speaker 02:
It's clear error by the judge ruling in chambers, denying us our main non-infringement argument.

[00:35:44] Speaker 03:
Is that ruling on the record?

[00:35:46] Speaker 02:
We tried to get it on the record.

[00:35:48] Speaker 02:
And one thing I'll note that's ironic is that they did not challenge the preservation of this issue in response to our Rule 50 motions.

[00:36:01] Speaker 02:
So the irony is they waved this argument because they didn't make it in the Rule 50s.

[00:36:04] Speaker 02:
They didn't make it in the Rule 50s because everybody in this trial knew what the judge's ruling was.

[00:36:10] Speaker 02:
And the ruling was a claim construction ruling.

[00:36:13] Speaker 02:
And when I asked the court to point to something, he pointed to one sentence in the specification for the basis of his ruling that does not support the notion that it doesn't even mention invites.

[00:36:29] Speaker 02:
Really quickly, if I can, Your Honors, a very important point on this is that Genvan now admits in his appeal arguments

[00:36:42] Speaker 02:
that it is advancing a construction that, quote, is not as narrow as the dictionary definition of commands, close quote.

[00:36:53] Speaker 02:
So all the way up to trial, plain and orderly meeting, we get sandblasted with you can't make your main argument the day of the testimony.

[00:37:05] Speaker 02:
And now they're saying, well, this

[00:37:10] Speaker 02:
Because they concede, apparently, that command, plain and ordinary meeting, would not include invite.

[00:37:16] Speaker 02:
They're saying that the judge's ruling was made command not as narrow.

[00:37:26] Speaker 02:
In other words, broadened the word command beyond its plain and ordinary meaning.

[00:37:31] Speaker 03:
Thank you, counsel.

[00:37:32] Speaker 02:
That is there.

[00:37:32] Speaker 02:
Thank you very much.

[00:37:33] Speaker 03:
We have your argument.

[00:37:34] Speaker 03:
We'll take the case on revise.