[00:00:48] Speaker 00:
The next case is Zipko versus Emerson Electric, 2018, 1856.

[00:00:53] Speaker 00:
Mr. Bonney.

[00:00:54] Speaker 00:
Good morning, Your Honor.

[00:00:57] Speaker 04:
May it please the court?

[00:00:58] Speaker 04:
I'd like to begin with the claim construction issue.

[00:01:01] Speaker 04:
The board erred in construing the phrase a receiver address comprising a scalable address of at least one remote device.

[00:01:08] Speaker 04:
The plain language of this phrase requires that the address of at least one remote device can be scalable.

[00:01:14] Speaker 04:
The board's construction reads that requirement out of the claim.

[00:01:17] Speaker 04:
And that is how the board was able to find Johnson and validates the claims, even though the board acknowledged that none of the receiver addresses in Johnson include a scalable remote device address.

[00:01:29] Speaker 03:
Do I understand correctly that this claim construction argument applies to both of the rejections, Johnson and the other one, Mason Plus?

[00:01:41] Speaker 03:
And I don't think the other side.

[00:01:43] Speaker 03:
disputes that, that if you're right about the claim construction, the whole thing can't stand.

[00:01:48] Speaker 03:
It either needs to go back, or in your view, you get to walk away with a victory.

[00:01:53] Speaker 04:
The answer is yes to all of the subparts of that question you're on.

[00:01:56] Speaker 04:
Now, the board was persuaded by Emerson's argument that because the claim language says at least one remote device, this means that it reads on the entire concept of what is exemplified in figure 8 of the patent.

[00:02:10] Speaker 04:
In other words, a format that can be used to address a message to a broadcast to all devices, a broadcast to type, or to an individual transceiver.

[00:02:19] Speaker 04:
But that is not correct.

[00:02:20] Speaker 04:
The claim language does not read on that entire concept.

[00:02:24] Speaker 04:
Principally, because figure 8, not every implementation of figure 8 would satisfy the claim language.

[00:02:30] Speaker 04:
In fact, if the inventor had simply wanted to claim that general concept of a scalable to address, he would have just used the words scalable receiver address.

[00:02:39] Speaker 04:
That would have encompassed the entire concept of figure 8 of being able to send different messages of different sizes.

[00:02:44] Speaker 04:
But instead, the inventor included the additional requirement

[00:02:48] Speaker 04:
that the receiver address must further include a scalable address of at least one remote device.

[00:02:55] Speaker 04:
And so this is a nested address within an address structure.

[00:03:00] Speaker 04:
And this additional claim language must be given meaning.

[00:03:02] Speaker 04:
And the most logical meaning based on the specification is that it's referring to the scalable transceiver address that's shown in bytes 4 through 6 of figure 8.

[00:03:12] Speaker 01:
This claim doesn't have a limitation on whether the receiver address, which I'll refer to as the two address.

[00:03:18] Speaker 01:
Is that fair?

[00:03:19] Speaker 04:
That's fair, Your Honor.

[00:03:20] Speaker 01:
Well, the receiver address, which is the two address, this claim doesn't have a limitation, so this could be scalable or non-scalable, correct?

[00:03:26] Speaker 04:
That's correct.

[00:03:27] Speaker 01:
Even though the spec in multiple places does describe the two address as being scalable, you would say those are examples and not necessarily imported into the claim.

[00:03:36] Speaker 01:
Is that correct?

[00:03:38] Speaker 04:
Yes, Your Honor.

[00:03:38] Speaker 04:
What I'd say is there's two types of scalability.

[00:03:41] Speaker 01:
Well, the patent uses the word scalable a bunch of times to refer to a bunch of different things.

[00:03:47] Speaker 01:
And I'm not certain if you agree with this, but I think that may

[00:03:51] Speaker 01:
B, where your argument is most logically that the board got confused because the specification itself does refer to the scalable 2 address in at least two or three places.

[00:04:07] Speaker 04:
I think you're right, Your Honor.

[00:04:08] Speaker 04:
I mean, you probably articulated it better than I was going to.

[00:04:11] Speaker 04:
There are different types of scalability discussed in the patent.

[00:04:15] Speaker 04:
One is the general scalability of the to address, as you just alluded to.

[00:04:19] Speaker 04:
That seems to be what the board glommed onto because it saw this discussion of a scalable to address.

[00:04:26] Speaker 04:
But that's actually not what's being claimed in these claims.

[00:04:29] Speaker 04:
The other type of scalability that's discussed in the patent is the scalability of the receiver address, excuse me, the remote device address itself, which is within the receiver address.

[00:04:40] Speaker 01:
Two things.

[00:04:41] Speaker 01:
Number one, when you say that's not being covered by these claims, I think, respectfully, you're wrong.

[00:04:46] Speaker 01:
It is encompassed by these claims because you don't have a limitation scalable or non-scalable in front of the word receiver.

[00:04:52] Speaker 01:
Technically, I think your claim does extend to a scalable receiver address.

[00:04:58] Speaker 01:
And the second point would be, is there anywhere in your spec where you do use the word scalable when you're talking about the transceiver or the remote device?

[00:05:08] Speaker 01:
Is there anywhere?

[00:05:09] Speaker 01:
I know it's not necessarily required.

[00:05:12] Speaker 01:
The claim language is clear.

[00:05:14] Speaker 01:
But the word scalable appears a bunch of times.

[00:05:17] Speaker 01:
And I think this is the kind of drafting that causes you to be in front of us, right?

[00:05:24] Speaker 01:
Because the patent is drafted to use this word a lot.

[00:05:27] Speaker 01:
But I don't think ever with regard to the exact device it used it for in the claim.

[00:05:33] Speaker 04:
Your honor, I'm not aware of the exact use of the word scalable.

[00:05:36] Speaker 04:
What it says is that the unique transceiver address can be varied as necessary, the size or the length, and I'm reading from column six, lines 25 to 26.

[00:05:48] Speaker 04:
And it says that the length of the unique transceiver address can be varied as necessary given individual design constraints.

[00:05:54] Speaker 04:
And that is actually the undisputed definition that everybody agrees to of what a scalable address is.

[00:06:00] Speaker 04:
So although it didn't use the word scalable, it used the synonym for it, which everybody agrees means a scalable address.

[00:06:06] Speaker 04:
And in fact, the board acknowledged that in Appendix 11.

[00:06:10] Speaker 04:
The board acknowledged that the specification does disclose that you can vary the size of this

[00:06:17] Speaker 04:
unique transceiver address.

[00:06:18] Speaker 04:
So I think that's where you find the disclosure in the specification that supports this particular claim limitation, Your Honor.

[00:06:27] Speaker 04:
Now, what we believe that the claims are drafted on, or what they're referring to here with this language, is the scalable portion of figure 8 that's represented by bytes 4 through 6, where you can now address an individual transceiver using

[00:06:44] Speaker 04:
an address that can vary in size.

[00:06:48] Speaker 01:
And in fact, we explain... Can I ask you, can we go back for just one second?

[00:06:52] Speaker 01:
You and I both agree that since the claim with regard to the two address or the receiver address doesn't contain the word scalable or non-scalable in front of it, if it isn't limited, do we then

[00:07:06] Speaker 01:
Is it possible that the board's decision ought to be affirmed rather than vacated?

[00:07:11] Speaker 01:
Even if I agree with you, because what they found is Johnson discloses a scalable address, since your claim is not limited to scalable or non-scalable, your claim is broad enough to encompass the Johnson scalable address.

[00:07:26] Speaker 01:
Does that mean that we're kind of in the same place for an affirm?

[00:07:29] Speaker 04:
No, Your Honor.

[00:07:30] Speaker 01:
I mean, even if I agree with you, they got the claim construction wrong, even the correct construction,

[00:07:35] Speaker 01:
Definition of receiver address is broader, not narrower.

[00:07:39] Speaker 04:
Our definition of receiver address requires that it include within it at least a address of at least one remote device that's scalable.

[00:07:49] Speaker 04:
And so that's where the Johnson.

[00:07:50] Speaker 01:
So they stuck scalable on.

[00:07:52] Speaker 01:
You think the board's error was to stick scalable on receiver address, but not attach it to transceiver address.

[00:07:58] Speaker 04:
That's correct, Your Honor.

[00:07:59] Speaker 04:
I had a little illustration in the brief.

[00:08:01] Speaker 04:
I think they took the word scalable, and they moved it in the claim, and they put it in front of receiver address.

[00:08:05] Speaker 04:
And by the way, that's exactly the same point that two previous board panels made, is that it's not enough that the receiver address be scalable.

[00:08:15] Speaker 04:
In these claim limitations, you have to show that the address of the remote device itself is scalable.

[00:08:22] Speaker 04:
Because you can have a scalable receiver address that's scalable for different reasons.

[00:08:26] Speaker 04:
It's scalable because there's other things in that address.

[00:08:29] Speaker 04:
that are being scaled.

[00:08:30] Speaker 04:
And what these claims are getting at is something more specific.

[00:08:32] Speaker 04:
They're saying that to the extent their scalability, that scalability has to be due to the fact that the receiver, the address of at least one remote device itself is scalable.

[00:08:42] Speaker 04:
Now, with respect to Johnson, what the board did is it found, based on its construction that this claim language is only talking about the broad concept of being able to send three different types of messages, the board went and found three different types of formats in Johnson and said, well, these are three formats that can be used to send these three different types of messages.

[00:09:03] Speaker 04:
But the board acknowledged and made a factual finding that none of those three formats actually has a scalable remote device address in it.

[00:09:12] Speaker 04:
So what the board did is it said that the choice between these three nonscalable formats constitutes a scalable address because it was using this broad construction where all you have to find is this broad concept of being able to send three different types of addresses.

[00:09:28] Speaker 04:
But the hypothetical choice between three non-scalable addresses of different sizes does not constitute a scalable address.

[00:09:36] Speaker 04:
Just like the choice between three hats of different sizes doesn't constitute a scalable hat.

[00:09:42] Speaker 04:
You can pick a small hat off the shelf, or a medium-sized hat, or a large hat.

[00:09:47] Speaker 04:
But then whatever you have in your hand is not a scalable hat.

[00:09:50] Speaker 04:
It's just a hat of whatever size you chose.

[00:09:52] Speaker 01:
I mean, maybe you're right about this.

[00:09:55] Speaker 01:
And maybe my understanding is too simplistic.

[00:09:58] Speaker 01:
But scalable doesn't mean an infinite number of possibilities.

[00:10:00] Speaker 01:
And if there are only three options that you can choose from, but you can choose any of those three, why don't you have a scalable circumstance?

[00:10:09] Speaker 04:
Your Honor, it goes to the claim language.

[00:10:10] Speaker 04:
If I could draw your attention to the claim one in Appendix 85 and focus on the last limitation of the claim.

[00:10:20] Speaker 04:
rather than the first limitation.

[00:10:21] Speaker 04:
This is a claim that's talking about communicating between remote devices.

[00:10:25] Speaker 04:
So it's communicating between the various transceivers that are out there in the mesh network.

[00:10:29] Speaker 04:
And the last limitation ties everything together.

[00:10:31] Speaker 04:
And it says the remote device is configured to send a pre-formatted message comprising the receiver address.

[00:10:39] Speaker 04:
And the receiver address is what has to contain the scalable address of at least one remote device.

[00:10:44] Speaker 04:
So we're not talking about a hypothetical choice now between message formats.

[00:10:48] Speaker 04:
We're talking about a single message format because it's in a pre-formatted message.

[00:10:53] Speaker 04:
When you go to Johnson, the board was looking at three different message formats and saying that

[00:10:59] Speaker 04:
essentially it created a composite or a hypothetical format that had the features of all three of those.

[00:11:05] Speaker 04:
But that's actually not what Johnson teaches.

[00:11:07] Speaker 04:
Johnson is teaching three different formats.

[00:11:09] Speaker 04:
You can take the broadcast to class format from Johnson and drop it into a pre-formatted message, and that will not meet this claim limitation.

[00:11:16] Speaker 01:
Just to be clear, while your argument sounds

[00:11:18] Speaker 01:
Intuitively appealing to me what Johnson does disclose and whether it satisfies the pre-formatted message portion of the claim That's a question of fact isn't it it is but you think the boards factual findings are in our favor your honor the board made a specific factual finding that none of the three message formats Individually satisfies the scalable address limitation, but that's because they construed it wrong

[00:11:44] Speaker 04:
That's correct.

[00:11:44] Speaker 04:
They made an error in claim construction, but then they made a factual finding that is still subject to substantial evidence review.

[00:11:50] Speaker 04:
And there is substantial evidence to support that factual finding, which is that none of the three message formats in Johnson satisfies the scalable address limitation here under the correct construction.

[00:12:02] Speaker 04:
So if your honors reverse that construction, there is now a fact finding by the board that is supported by substantial evidence that would preclude Johnson from meeting our claim limitation.

[00:12:11] Speaker 03:
Is it a matter of claim construction or something other than claim construction, whether a choice of among three possible formats of different size would constitute a scalable address?

[00:12:26] Speaker 04:
Your Honor, I think in this case it's just claim construction.

[00:12:28] Speaker 04:
I think if you look at what this claim is actually talking about, the fact that it's talking about a pre-formatted message, that means you've got a single format.

[00:12:35] Speaker 04:
And that message has to contain a scalable address of at least one remote device.

[00:12:43] Speaker 04:
I think that's claim construction.

[00:12:44] Speaker 04:
You can't now say, well, the choice between three formats satisfies that, because the claim is very clearly talking about one format.

[00:12:52] Speaker 04:
That particular format and that particular message

[00:12:54] Speaker 04:
has to satisfy the claim limitation.

[00:12:58] Speaker 00:
You're into your butthole, Tom.

[00:12:59] Speaker 00:
You may save it.

[00:13:00] Speaker 00:
I'll continue.

[00:13:02] Speaker 04:
Unless there's burning questions now, I'd like to save my time.

[00:13:05] Speaker 04:
We will save it.

[00:13:07] Speaker 00:
Mr. Hall, Wood, Greenmire.

[00:13:15] Speaker 02:
May it please the court.

[00:13:17] Speaker 02:
The board construed the

[00:13:20] Speaker 02:
distributed limitation consistent with both the language of the text itself and of the specification.

[00:13:27] Speaker 02:
And notably, it's consistent with Zipko's own construction of the same limitation in the Eastern District of Texas, as reflected in Appendix 1797, where they said,

[00:13:38] Speaker 02:
The opposite of what they say here, they said the specification is clear.

[00:13:42] Speaker 01:
Well, that's OK, because the board said the opposite of what it says here two times.

[00:13:46] Speaker 01:
So we've got everybody being inconsistent.

[00:13:50] Speaker 01:
So why don't you just go to the language and tell me why the word scalable should be imported in front of the word receiver?

[00:13:59] Speaker 02:
That's not what we do, Your Honor, and it's not what the board did.

[00:14:03] Speaker 02:
It's a scalable address of at least one

[00:14:08] Speaker 02:
remote device.

[00:14:09] Speaker 02:
And it's the at least one that CIPCO reads out.

[00:14:13] Speaker 02:
And that's important because in column 10, which is one of the two instances in which the specification uses the phrase and describes scalable address, it talks about an address between 1 and 6 bytes for the intended receiver, apostrophe S.

[00:14:32] Speaker 02:
Now, the one byte address CIPCO acknowledges is a broadcast address.

[00:14:38] Speaker 02:
Its scalability, as used in the specification, is between a broadcast address, which is one byte, or a unique address, which is six bytes.

[00:14:48] Speaker 02:
And the broadcast address is to the intended receiver, apostrophe s, or, you know, parens s, because it's at least one receiver.

[00:14:58] Speaker 02:
The receiver could be one in the six byte instance,

[00:15:01] Speaker 02:
or it could be all in the broadcast instance.

[00:15:05] Speaker 02:
That's what scalability is, as described in the specification.

[00:15:09] Speaker 02:
And it's the same thing that is claimed when it says a scalable address of at least one remote device.

[00:15:16] Speaker 02:
So it has to comprehend the possibility that the address is not to a unique remote device, but to multiple remote devices.

[00:15:26] Speaker 02:
That's the broadcast address or a multicast address.

[00:15:30] Speaker 02:
And that's within the specifications description of a scalable address.

[00:15:37] Speaker 02:
As the board found, both the Johnson and EIA references disclose scalability

[00:15:43] Speaker 01:
Precisely the same type of scalability that is claimed in yeah I think you stick with claim construction longer before you move over to Johnson because I don't necessarily Think that I follow you just yet, and I want to I want to understand what you're saying the word scalable appears before the transceiver of

[00:16:03] Speaker 01:
Now, of course, it can be more than one transceiver, and each of those would then have to have a scalable address, it seems to me.

[00:16:13] Speaker 01:
But I don't understand why that necessitates that we put the word scalable into the to address that comes before it, which doesn't have it.

[00:16:22] Speaker 01:
I will grant you there are at least two places in the patent where this patent talks about a scalable to address or receiver address.

[00:16:29] Speaker 01:
But that isn't part of this claim.

[00:16:32] Speaker 01:
So why would we import that limitation in here?

[00:16:35] Speaker 02:
Well, this claim is talking about the fields in the pre-formatted message, the receiver address being one of those.

[00:16:44] Speaker 02:
And it is a scalable address of at least one device.

[00:16:49] Speaker 01:
So the question is whether at least- No, but you can't say it's a scalable address of at least one device, because you've now already inserted the word that's not there in there.

[00:16:56] Speaker 02:
What have I inserted?

[00:16:57] Speaker 01:
Scalable.

[00:16:59] Speaker 02:
The word there is comprising a scalable address of at least one remote device.

[00:17:04] Speaker 02:
Oh, I'm sorry.

[00:17:05] Speaker 01:
I thought you were talking about the receiver address.

[00:17:07] Speaker 02:
Well, the receiver address comprises, so it has to be able to comprehend a scalable address that is the address of more than one remote device.

[00:17:17] Speaker 02:
That's the broadcast address.

[00:17:18] Speaker 01:
No, not more than one, at least one.

[00:17:21] Speaker 02:
It has to comprehend.

[00:17:23] Speaker 02:
It has to be within it that it could be multiple remote devices.

[00:17:28] Speaker 02:
That's why it says at least one.

[00:17:29] Speaker 02:
Otherwise, it would just say of a remote device or one remote device, which is not what it says.

[00:17:35] Speaker 02:
It says at least one.

[00:17:36] Speaker 02:
So it has to comprehend the possibility of the scalability being for multiple

[00:17:44] Speaker 02:
remote devices.

[00:17:46] Speaker 03:
I'm not sure, at least just textually, that that follows.

[00:17:49] Speaker 03:
It makes perfect sense to say a scalable address of at least one remote device to mean at least one scalable address of a remote device may be a scalable address of this device and a different scalable address of this other device.

[00:18:06] Speaker 03:
That seems like the natural reading of this language.

[00:18:09] Speaker 02:
So why is that not compelled?

[00:18:12] Speaker 02:
The problem is that we're using the broadest reasonable interpretation.

[00:18:16] Speaker 02:
It comprehends the circumstance in which the scalability is of individual unique addresses.

[00:18:24] Speaker 02:
But it also comprehends the possibility where the scalability is between the address being a one byte address, which goes to all

[00:18:33] Speaker 02:
remote devices, or a multicast address, which might be two bytes that goes to a subset of remote devices, or a six byte address, which would go to a unique individual remote device.

[00:18:49] Speaker 02:
And that is precisely what is set forth on columns 9 to 10.

[00:18:53] Speaker 03:
Let me just ask you this.

[00:18:58] Speaker 03:
In this system, you can have an address, a single address, which when used produces something on the receiving end at multiple remote devices.

[00:19:14] Speaker 02:
Yes, Your Honor.

[00:19:16] Speaker 02:
That's the FF address in example figure nine.

[00:19:22] Speaker 02:
For example, on appendix A78, it uses the address FF.

[00:19:28] Speaker 02:
That's described in figure 8 on appendix 77 as a broadcast all devices one byte address.

[00:19:38] Speaker 02:
And that is what is described at columns 9 to 10.

[00:19:43] Speaker 02:
At column 9, in particular, it says the address can be scalable from 1 to 6 bytes based upon size and complexity.

[00:19:51] Speaker 02:
But we have an example, the two address can indicate a general message, all transceivers, and below it says, in the six byte address, the first byte indicates transceiver type, all transceivers.

[00:20:04] Speaker 02:
So a one byte broadcast address, ff, which is one of the examples given, is an address of one byte, and it goes to all remote devices.

[00:20:17] Speaker 02:
That's what's described in the specification.

[00:20:20] Speaker 02:
Again, it's the only instance in the specification that really describes what a scalable address is.

[00:20:27] Speaker 02:
Both references to scalable address in column 9 and again at the top of column 10 say that it's scalable between 1 and 6 bytes.

[00:20:36] Speaker 02:
The 1 byte FF is a broadcast address.

[00:20:40] Speaker 02:
It goes to all.

[00:20:41] Speaker 02:
Now we also know, and this is from column 11, which is describing

[00:20:47] Speaker 02:
Figure 9, and this is at lines 34 to 36, that in this example, the message is sent from a central server with an address that's a unique address, six bytes, or five bytes rather, to a integrated transceiver with an address of FF.

[00:21:10] Speaker 02:
Now again, the address of FF is a broadcast address.

[00:21:13] Speaker 02:
It goes to all.

[00:21:16] Speaker 02:
The CIPCO acknowledges that in its reply brief.

[00:21:19] Speaker 02:
So the address, FF, is being described in the spec as to a integrated transceiver, although it's also to all other integrated transceivers.

[00:21:30] Speaker 02:
And so because this is BRI, it can't be just the one narrow construction that they prefer today because that gets them out of the prior art.

[00:21:42] Speaker 02:
It has to be what is comprehended

[00:21:45] Speaker 02:
within the language.

[00:21:46] Speaker 02:
And the language comprehends scalability between one and six bytes between a broadcast address or an individual address, which would reach one or more, at least one,

[00:22:02] Speaker 01:
Intended recipient so that's what you keep saying between one and six bites It could be far more than six couldn't it because the claim is open-ended at least one remote device right your honor Please don't interrupt me The specification in the example you keep pointing to is obviously contemplating only three unique transceiver addresses Which is why it's allocating three at most three unique transceiver addresses white which is why it's only allocating

[00:22:30] Speaker 01:
Six bites am I understanding that right?

[00:22:35] Speaker 01:
I'm not sure you're the first bite is the transceiver type to receive all transceivers right that's a broadcast the second bite is the identification date But base by three through six can be used for the unique receiver addresses either standalone or integrated so

[00:22:55] Speaker 01:
I guess I don't necessarily understand this technology well enough, but I'd like to.

[00:23:00] Speaker 01:
Are bytes three through six then each byte is directed to an individual unique transceiver address potentially?

[00:23:09] Speaker 02:
No, Your Honor.

[00:23:10] Speaker 02:
In the preferred embodiment, which is described on column six, which my opposing counsel referenced, it says,

[00:23:19] Speaker 02:
that the unique transceiver address can be varied.

[00:23:24] Speaker 02:
It is preferably a six byte address.

[00:23:26] Speaker 02:
So the six byte address, all six bytes, define the unique identification for a single node, a single transceiver.

[00:23:36] Speaker 02:
So you need all six bytes to do that.

[00:23:43] Speaker 02:
increasing specification.

[00:23:45] Speaker 02:
So the first one, the first byte, might indicate everybody in a subnet, the next one all in the subnet of a particular type, the next one all in a subnet of a particular manufacturer, et cetera.

[00:23:59] Speaker 01:
Perhaps I'm confused.

[00:24:02] Speaker 01:
Scalability is referring to the number of bytes, am I correct?

[00:24:05] Speaker 02:
In the address, yes, that are occupied by the address.

[00:24:09] Speaker 01:
Right.

[00:24:10] Speaker 01:
And the reason you clarified that is why.

[00:24:13] Speaker 01:
You felt you needed to clarify something.

[00:24:14] Speaker 01:
So there's another use of the word scalability that isn't referring to bytes.

[00:24:17] Speaker 01:
What is it?

[00:24:19] Speaker 01:
I can tell you there are three in the pattern.

[00:24:21] Speaker 02:
OK.

[00:24:22] Speaker 02:
I didn't.

[00:24:23] Speaker 01:
But I assumed that's what you were thinking, which is why you paused.

[00:24:28] Speaker 02:
Well, it says it's scalable between 1 and 6 bytes.

[00:24:34] Speaker 02:
I'm more thinking about the fact that the prior art, for example, Johnson,

[00:24:39] Speaker 01:
Describes an address that can be zero one four or five Bites what is claim eight let's look at claim eight for a sec claim eight uses the word scalable in multiple places one is a scalable data value comprising a scalable message in that context are we talking about one to six bytes or is that word scalable not referring to a variation in bytes in terms of the field I think it is

[00:25:04] Speaker 02:
referring to the message that can be up to a certain number of bytes.

[00:25:11] Speaker 02:
Again, that's disclosed in Johnson, where if the address is using up fewer bits, the message gets more bits.

[00:25:20] Speaker 02:
You can use more for that.

[00:25:23] Speaker 01:
So when it uses the word scalable there, is it referring to varying number of bytes for that message?

[00:25:30] Speaker 01:
I'm trying to understand.

[00:25:31] Speaker 01:
You've told me what you understand the word scalable to mean in the context of this invention.

[00:25:36] Speaker 01:
But I find the word scalable appearing all over the place in this patent.

[00:25:40] Speaker 01:
And I don't think it means the same thing everywhere it appears.

[00:25:42] Speaker 01:
So I'm not certain I understand.

[00:25:44] Speaker 02:
Let me be specific.

[00:25:47] Speaker 02:
I'm describing what scalable address means, because that particular phrase, which is used in claim one,

[00:25:54] Speaker 02:
and claim 10 and the others that are in dispute is the term that is described in the specification as between 1 and 6 bytes.

[00:26:03] Speaker 02:
Obviously, there can be scalability in theory that is not in terms of bytes.

[00:26:08] Speaker 02:
It can be of a different range.

[00:26:10] Speaker 01:
Well, in fact, in this patent, it's true.

[00:26:13] Speaker 01:
It seems, based on claim eight at least.

[00:26:15] Speaker 01:
It may be.

[00:26:16] Speaker 01:
But in any event, going back to claim one, I guess the problem I have is just because you have a scalable address for at least one remote device, I don't understand why that necessarily requires the receiver to have a scalable address.

[00:26:32] Speaker 02:
Well, Your Honor, the receiver comprises this.

[00:26:35] Speaker 02:
So it includes the scalable address.

[00:26:38] Speaker 02:
It could include other things.

[00:26:40] Speaker 02:
But we know that it includes a scalable address.

[00:26:43] Speaker 02:
And we know that it is a scalable address, not just of a remote device, but of at least one.

[00:26:50] Speaker 01:
But I understand that.

[00:26:51] Speaker 01:
And definitely, that's what the claim says.

[00:26:53] Speaker 01:
What if it was just one?

[00:26:55] Speaker 01:
Would you then say the receiver address is, in fact, scalable?

[00:26:59] Speaker 01:
It comprised a scalable address of only a single transceiver?

[00:27:06] Speaker 01:
You wouldn't?

[00:27:06] Speaker 00:
Yes.

[00:27:07] Speaker 01:
Oh, why?

[00:27:08] Speaker 01:
What are the other bytes being used for?

[00:27:10] Speaker 01:
I don't understand.

[00:27:13] Speaker 01:
You would still say it's a scalable 2 address if there's only a single unique device address being complained.

[00:27:21] Speaker 02:
If the design of the system is that it can be a unique address that has 2 bytes or 6 bytes or 7 bytes, EIA says a unique

[00:27:31] Speaker 02:
Address can have two bytes or seven bytes.

[00:27:34] Speaker 02:
Johnson says the unique address could have four bytes or five bytes.

[00:27:38] Speaker 02:
That's scalable in precisely the same way.

[00:27:41] Speaker 02:
And this is where I disagree.

[00:27:42] Speaker 02:
And to go to your first question, Judge Toronto, the board actually said that EIA is scalable as to the unique address between formats 2A and 3.

[00:27:55] Speaker 02:
That's on A43.

[00:27:57] Speaker 02:
It also said, with respect to Johnson,

[00:28:00] Speaker 02:
that under patent owners proposed construction, Johnson discloses scalability of the unique address.

[00:28:11] Speaker 02:
That's on pages A35 to 36.

[00:28:14] Speaker 02:
Now, this is when it was construing claim 10, but it's the same concept of scalable address.

[00:28:21] Speaker 02:
And there, they acknowledged that in Johnson, it describes the address for a unique device

[00:28:28] Speaker 02:
could be 32 bits or 40 bits, four or five bytes.

[00:28:33] Speaker 02:
And that's depending upon the size and complexity of the system.

[00:28:38] Speaker 02:
If the system is such that the type can be assumed, then you can use 32 bits.

[00:28:45] Speaker 02:
But if you need it, then it's 40 bits.

[00:28:48] Speaker 00:
Council, I'm afraid argument time is not scalable.

[00:28:52] Speaker 00:
And yours has been failed.

[00:28:55] Speaker 00:
Mr. Barney has some rebuttal time.

[00:29:01] Speaker 04:
Just a couple of points, Your Honor.

[00:29:03] Speaker 04:
With respect to my colleague's point that the claim has to envision the ability to have a scalable address of more than one remote device, the patent discloses that because the transceivers can be either standalone or integrated transceivers.

[00:29:18] Speaker 04:
An integrated transceiver can have additional remote devices associated with it, such as sensors or actuators, or even another transceiver.

[00:29:27] Speaker 04:
There's an embodiment that talks about a data transceiver

[00:29:30] Speaker 04:
that is combined with a voice band transceiver, and that they are addressed with a single unique address.

[00:29:35] Speaker 04:
So that gets to the point of what my counsel was talking about.

[00:29:38] Speaker 04:
It does envision the ability to address multiple devices.

[00:29:42] Speaker 03:
With respect to- Can you focus on what he said about the, on figure eight, the first, what is it, the FF?

[00:29:52] Speaker 04:
Yes.

[00:29:52] Speaker 03:
Broadcast all devices, a one byte address.

[00:29:55] Speaker 03:
I think what I was understanding, and I may be misunderstanding, is that he was saying,

[00:30:00] Speaker 03:
That, you can have a single byte, it will be an address.

[00:30:05] Speaker 03:
You send a message with that address, it will go to all the remote devices there are.

[00:30:12] Speaker 03:
So why is that not covered by the scalable address of at least one remote device where what's not scalable there is the number of bytes you use for a all-device broadcast?

[00:30:30] Speaker 04:
Well, two reasons.

[00:30:31] Speaker 04:
One, it's a broadcast address.

[00:30:33] Speaker 04:
The specification makes a differentiation between broadcast addresses and addresses to

[00:30:38] Speaker 04:
individual remote devices, such as a transceiver.

[00:30:41] Speaker 03:
Where is that best?

[00:30:43] Speaker 04:
Well, you can look at Figure 8, for instance.

[00:30:45] Speaker 04:
Figure 8 refers to that as a broadcast all devices address.

[00:30:50] Speaker 04:
It's not the address of a transceiver.

[00:30:54] Speaker 04:
It goes to all transceivers.

[00:30:56] Speaker 04:
In fact, as we explained in the brief, when the transceiver sends a broadcast address, it doesn't even know who it's going to.

[00:31:02] Speaker 04:
It just broadcasts it out, and every receiver

[00:31:05] Speaker 04:
within its broadcast range is going to get that message.

[00:31:08] Speaker 04:
It may not even know who's in that range because transceivers can come and go because they're portable.

[00:31:13] Speaker 04:
And second reason is it's a one-byte address, so it's not scalable.

[00:31:17] Speaker 04:
It's always one byte.

[00:31:18] Speaker 04:
And so that's an example of figure eight.

[00:31:22] Speaker 04:
in an implementation of figure 8, that's possible under figure 8, but wouldn't meet this particular claim limitation, because it's not a scalable address of at least one remote device.

[00:31:31] Speaker 04:
It's a non-scalable, one byte address that goes to all remote devices indiscriminately.

[00:31:40] Speaker 04:
If there's no other questions, I'm.

[00:31:42] Speaker 00:
Thank you, Mr. Bonney.

[00:31:43] Speaker 00:
The case is submitted.