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Next CIPCO case is CIPCO versus Emerson Electric 2018 1986 Mr.. Gonzalves May it please the court listen this appeal involves only two claims Although the petitioner challenged nine claims of the 661 patent the board instituted on only three and ultimately cancelled only two claims the board's obvious this ruling

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on these two claims should be reversed because it is based on an improper claim construction is easiest to understand the claim construction issue for claim five by referring to figure 3D at page 48 of the appendix.

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Figure 3D shows a sensor identified by number 310 in the upper middle portion.

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The output of the sensor

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is sent to a data controller identified by the number 324 via a data interface identified by the number 321.

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As indicated in the specification at page 65 of the appendix, column 9, lines 7 through 19, the sensor in its simplest form could be a two-state device such as a smoke alarm.

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The data controller, going back to figure 3D, which is identified by number 324, encodes the data from the sensor into a code using the table at 325.

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As explained in the specification at page 65 of the appendix, column 9, lines 48 to 49, the data controller is configured to apply a specific code consistent with the input.

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The encoded electrical signal of the sensor is then formatted along with the transceiver ID, which is shown in figure 3D as item 328, into a message 330 for transmission to the local gateway, which is identified by 210 via the radio frequency transceiver identified by 350.

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So consider a smoke alarm.

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A smoke alarm has two outputs, either the concentration

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of the reactants of combustion exceeds a certain threshold in the air.

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And then it says you have a smoke problem, or it's less than that.

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So that's the output you get from a sensor.

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But that's not what the claimed invention sends.

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The claimed invention takes that and then converts it to a code.

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And exemplary codes are shown in the table.

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So that is what is covered by the claims.

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that the specification requires two separate steps, requires encoding the electrical signal generated by the sensor, and then formatting the encoded signal along with the transceiver ID for radio frequency transmission.

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What is it that tells us that even if figure 3D has this two-step process, that that's required by the claims as opposed to simply one way of coming within the claim?

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OK.

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Can you please, Your Honor, look at claim five, which is at page 70 of the appendix, column 19, beginning at line 17?

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And this claim at that location resides consistent with the specification, a transmitter that is configured to perform two separate and independent tasks.

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One is to encode the electrical signal.

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that was generated by a sensor.

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And the second is to transmit the encoded electrical signal and transmitter identification information in a radio frequency signal.

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So the transmitter that's recited in the claim has to perform two separate tasks.

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In fact, the second task that it performs, encoded electrical signal being included in the radio frequency signal,

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The word the appears before encoded electrical signal, so it's clearly referring to what was encoded in that first configuration of the transmitter.

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So the board's overly broad construction of encoding as encompassing formatting data for RF transmission is incorrect for three reasons.

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Number one, it's inconsistent with the specification, as I just explained with respect to figure 3D.

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Number two, it's inconsistent with the language of claim five, which requires two distinct configurations of the transmitter.

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And number three, a person of ordinary skill in the art would not have understood the claim term encoding to encompass putting data into a message for transmission.

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There isn't a document in the record in this case that says that merely putting a message

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putting data into a message and transmitting it is encoding the data.

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Nor am I aware of any document that's ever been written that says such a thing.

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For example, if I write a letter to my mother, it doesn't become encoded just because I stick it in an envelope before I send it.

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The envelope has additional information from my mother's address, but it doesn't change the content

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of the letter that I'm sending to my mother.

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The board's flawed claim construction requires reversal of its conclusion that the prior art would have taught the encoding limitations.

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The board based its obviousness conclusion for the encoding claim limitation solely on Mason.

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Emerson relies heavily on an annotated version

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of Mason's Figure 3.

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I think you can understand this appeal.

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I showed you the picture from Figure 3D.

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And you can look at the annotated picture in Emerson's brief, the red brief at page 9.

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This annotated version

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of the figure and the accompanying text in Mason shows that the data read from the meter is not encoded, but instead is merely placed in a data packet for transmission.

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If you're looking at the annotated figure on the red brief at page 9, it shows that the meter data, which is shaded in pink, is merely placed into a data packet in the ANSI meter protocol.

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Additional data is added to the front, which is a header,

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and added to the end that's both shaded in beige.

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But the meter data that's shaded in pink does not change.

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Again, in turn, the ANSI meter protocol packet is merely placed within the data packet in the CE bus radio frequency protocol.

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Additional data is added to the front and the end, both shaded in yellow.

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But again, the meter-specific data, the data that was read from the meter, which is shaded in pink, itself is not encoded by either the ANSI meter protocol or the CE bus RF protocol.

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And this is significant because claim five of the 661 patent explicitly requires not just any data to be encoded,

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but instead a particular signal, the electrical signal generated by a sensor.

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So there's a big difference between what Mason does, which is just put metadata into a packet for communication, and what the 661 patent claims, which is when you look at figure 3D, you read information from a sensor

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and you don't send that information.

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Rather, you first go to a table, you encode it, and you put the code in that you're sending.

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I looked for the terms encode and decode in Mason.

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I did a search with the computer, because that's more accurate than what I can do by just looking at it with my eyes.

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I didn't see encode, decode, or any synonyms thereof anywhere in Mason.

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With respect to the second claim construction issue for claim six, Emerson and the board improperly construed the claim limitation of a transmitter configured to transmit a relatively low power radio frequency signal.

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The board construed the claim limitation of a transmitter configured to transmit a relatively low power radio frequency signal such that a transmitter that used repeating

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transceivers transmits a relatively low power radio frequency signal.

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But this construction is not consistent with how a person of ordinary skill in the art would have understood that term as used in claim six in line of specification.

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Because a person of ordinary skill in the art would have realized that the power of a signal sent by a transmitter depends on the electrical characteristics of the transmitter itself.

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It doesn't depend on the presence or absence of repeaters.

[00:10:14] Speaker 01:
On that point, didn't the board say you've kind of misunderstood what the argument is and what we're saying, which is it doesn't depend on the presence or absence of receivers, but the presence

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nearby receivers is an indication of the low power, the relatively low power limitation being satisfied.

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Right.

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I have two responses.

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Number one, there really isn't an alternate claim construction anywhere in the final written decision.

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It seemed like the only claim construction that they gave was dependent on the presence of repeaters.

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And secondly, Dr. Romeroff

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who is an IEEE fellow, by the way, is very good at communications.

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He gave examples in the electrical communication.

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He gave examples where the same transmitter, you're looking at a transmitter that has a particular power level,

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And under the board's interpretation, that same transmitter that has one power level could be considered to have both a relatively high power and simultaneously a relatively low power, depending upon whether there was a repeater.

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So if there was a repeater, they would say, oh, this transmitter is relatively low power.

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And if there was not a repeater, it would say, oh, this transmitter is relatively high power.

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But the same transmitter can't be relatively high power and relatively low power, because it only has one power, and that's it.

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So that's why the board's construction is illogical.

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The board's decision, the board's flawed claim construction requires reversal of its conclusion

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that the prior out would have taught the relatively low power claim limitation of claim six.

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The board ruled that claim six was obvious because Emerson's petition asserts that because Mason discloses that its radio units are nearby repeaters in order to effectively communicate,

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A person of ordinary school in the out would understand Mason's radio units transmit a relatively low power radio frequency signal.

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But as I explained before, that type of reasoning is based upon a flawed claim construction.

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Mason does not use the word nearby or any synonym thereof, like for example, close by.

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So there's no indication in Mason that its transmitters are low power.

[00:13:05] Speaker 02:
Council, you're into your rebuttal time.

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Do you wish to save it or continue?

[00:13:10] Speaker 00:
I'll continue for 10 seconds.

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All right.

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OK.

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The other point I want to make is combining with Cunningham, the board indicated that if you use the low power transmitters of Cunningham into Mason, then you'd come up with that particular claim limitation.

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But as explained by Dr. Almaroth, a person of our skill in the art

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would not have been persuaded to do such a thing.

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For instance, if you lower the power, then you need more transceivers.

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And so it would make the system more complicated.

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In addition, there was an assertion made that if you lower the power, you decrease the interference.

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Well, you would decrease the interference on that particular transmitter.

[00:14:01] Speaker 00:
Because you're using a low-power transmitter, you'd have to use many more transmitters, and so the aggregate interference from those many transmitters would have to be considered.

[00:14:13] Speaker 02:
Thank you, counsel.

[00:14:15] Speaker 02:
Mr. Davis?

[00:14:29] Speaker 03:
May I please score?

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With respect to the two claim terms in dispute, encoded electrical signal and relatively low power signal, the board properly applied the plain language of the claims and rejected CIPCO's attempts to try to read additional limitations into the claims.

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In addition, substantial evidence supports the board's findings that prior art discloses these particular limitations, particularly due to the parallels between the prior art and the disclosure in the 661 patent itself.

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For these reasons, the board's findings that claims five and six are unpatentable should be affirmed.

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Turning first to the first limitation in dispute, the encoded electrical signal.

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Claim five simply requires that the transmitter encode the electrical signal from the sensor and then transmit that encoded electrical signal in an RF signal.

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The board properly construed the term to simply be encoded information representing the electrical signal generated by the sensor.

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That's an appendix 13.

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Notably, CIPCO's own construction of that same term is consistent with that.

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It's a code generated from an electrical signal that was generated by a sensor from a physical condition.

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That's an appendix 577.

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And CIPCO has since run away from that proposed construction on appeal here.

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because it undermines the argument that they're attempting to pursue.

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They're trying to carve out from the claims or read an additional limitation into the claims that would preclude or exclude RF protocol conversion from being part of the potential encoding scheme.

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And the board properly rejected that argument below.

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Posing counsel also referenced a particular passage in the specification that was addressing the idea of encoding.

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This is at appendix 65, column 9, lines 46 to 52.

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And there it's discussing the idea that there could be a whole bunch of different encoding schemes, a whole bunch of different codes.

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But as long as the sender of the particular message and the receiver of the particular message understand what that encoding scheme is,

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That's encoding.

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There's nothing further or there's nothing additional required beyond that.

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So just like the encoding schemes that SIPCO is pointing to in the context of the 661 patent, Mason discloses the same concepts.

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Page 27 of the red brief has a couple of excerpted figures, figure 3 and figure 1, from Mason that help explain what its disclosures are.

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In figure 1, you have a series of different meters that are communicating via RF with one another, as well as with the RF node collector.

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And then that information is then taken and then transmitted from the RF node collector, which is the equivalent of the claimed gateway, and sent over to the computer.

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On the right-hand side of that page, you have the particular encoding schemes that are applied in each and every one of these levels.

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At the very bottom of Figure 3, you start off with the meter data.

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That is then encoded into the ANSI meter protocol.

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That is then encoded into the SEBIS RF protocol.

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And that CBIS-RF protocol is used to then send the information around that particular network.

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And then when it gets to the gateway, it's encoded into TCP IP and then sent along to the computer on the other side of a wide area network.

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With respect to the particular data fields that are inside of each of these encoding schemes, they're described in Mason at column 15 at several different points it's talking about.

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the particular ANSI or ANSI encoding scheme that's used inside of the CBIS-RF protocol, referring to table data as well as the particular encoding scheme details.

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For example, at column 15, lines

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49 through 53, explaining that table data also is accompanied by a one-byte acknowledgement code, a two-byte length field, and a one-byte checksum, which has to go along with the table data as part of that particular encoding scheme.

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CIPCO's arguments that none of the fields in the CBIS protocol or the ANSI protocol is simply indefensible.

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It's effectively looking for some type of ipsis verbus or in-hike verba disclosure.

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As he said, he's looking solely for the words encoded.

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That's not the test here.

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The test that should be applied and that the board properly applied is whether or not encoding is actually performed, not only to the disclosure.

[00:18:58] Speaker 01:
If you think about his analogy to putting something in an envelope,

[00:19:03] Speaker 01:
At least one way, and I may be incorrect, that one might understand what they're saying about figure three is that's a series of nested packagings, but there's no encoding of what ends up inside the four envelopes.

[00:19:24] Speaker 03:
I would disagree that there's no actual encoding there.

[00:19:28] Speaker 03:
I think that's further described.

[00:19:29] Speaker 03:
Figure 3 is a helpful illustration of what's happening, but if you look at column 15 of the Mason disclosure, you'll see that data that comes in from a sensor needs to be then converted into bits and bytes, ones and zeros, and a particular encoding scheme.

[00:19:46] Speaker 03:
If there wasn't an encoding scheme,

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the recipient on the other end would just be getting ones and zeros and wouldn't have any idea what it meant.

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There has to be an encoding scheme there.

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That data is then formatted into particular tables, as is disclosed in column 15, as well as adding on check sums, length fields, acknowledgement codes,

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the particular, it's an old part and parcel of the particular ANSI encoding scheme that needs to be used for the meter data that is to be sent across.

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And the board also credited Mr. Kinney, whose petitioner's expert's testimony on this.

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This is at appendix 738 at paragraph 119, where he testified.

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And the board recognized, would also note that this was cited at appendix 191 of the petition.

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A person of skill in the art would understand that Mason's transmitter, which is called the CEPUS RF board, encodes the electrical signal it receives from the sensor so that communications can be made using the CEPUS and ANSI C1218 protocols.

[00:21:00] Speaker 03:
If there's not any further questions on that limitation, I'll turn to the next limitation in dispute, relatively low power signal.

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Here again, substantial evidence also supports the board's findings.

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And the board actually had two findings.

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Not only does Mason disclose this expressly, but also Mason, in light of Cunningham's expressed teachings of a low power signal, also rendered the limitation obvious.

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The board doesn't even need to reach the claim construction issues that CIPCO tries to raise on this or Mason's disclosure, because Cunningham itself expressly discloses a low power signal.

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The only dispute between the parties is whether or not there would have been a motivation to combine.

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But here again, CIPCO is left empty handed.

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It was undisputed below that there was a particular motivation to combine that you have less interference when you're using a relatively low power signal versus a higher power signal.

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SIPCO had put in evidence from their expert that it might be more costly or might be more complicated to use low-power signals.

[00:22:05] Speaker 03:
That's not the test the test is whether or not there would have been a motivation to actually apply these teachings from Cunningham And the board found that there would would be also crediting mr. Kinney's testimony again at appendix 743 paragraphs 129 to 131 but in addition to that the board also found correctly that in light of Mason's teachings that you needed to use repeaters in order to reach inaccessible meters and

[00:22:33] Speaker 03:
That also would have meant to a person of important skill in the earth that you are using a relatively low power signal as opposed to a high power signal, crediting again Mr. Kinney's testimony on that point at paragraph 129 at appendix 743.

[00:22:49] Speaker 03:
The board's findings are, and I think to your question, Judge Toronto, the board wasn't construing the claim there, it was simply observing

[00:22:59] Speaker 03:
Just like in the specification, when you're using repeaters as opposed to simply using a higher power signal, you are therefore, or a person of order of skill in the art would have properly understood that you're using a relatively low power signal as opposed to a higher power one.

[00:23:15] Speaker 03:
That's for each of these reasons.

[00:23:17] Speaker 03:
The board's findings are supported by substantial evidence.

[00:23:20] Speaker 03:
If there's not any further questions.

[00:23:23] Speaker 02:
Thank you, counsel.

[00:23:24] Speaker 02:
Thank you.

[00:23:25] Speaker 02:
Mr. Gonzalez has a little rebuttal time.

[00:23:27] Speaker 02:
We'll give you two minutes.

[00:23:31] Speaker 00:
Thank you, Your Honor.

[00:23:33] Speaker 00:
Opposing counsel indicated that I was importing limitations into the claim.

[00:23:37] Speaker 00:
I did no such thing explaining what the word encoded means.

[00:23:42] Speaker 00:
That was the idea of the claim construction portion of the brief.

[00:23:47] Speaker 01:
But why doesn't encoded as a term cover what goes on when you encapsulate information inside

[00:24:00] Speaker 01:
a package with several different parts for compliance with the communication protocol, like the top four bars on the five bar, figure three.

[00:24:15] Speaker 00:
Well, the claim requires in particular, it doesn't require encoding just any data.

[00:24:21] Speaker 00:
The claim, if you look at claim five, it requires encoding a particular data item, the electrical signal that was generated by the sensor.

[00:24:30] Speaker 00:
So that's the thing that the claim requires to be encoded.

[00:24:35] Speaker 00:
And that thing, as indicated by the picture, is not adjusted.

[00:24:39] Speaker 00:
And this is very different

[00:24:41] Speaker 00:
than what's in the specification.

[00:24:44] Speaker 01:
I think Mr. Davis says it is adjusted in at least the sense that there are translations into bits and the addition of some bits for like a checksum, probably more than one bit, but some checksum bits and other things.

[00:25:03] Speaker 01:
So it's not real.

[00:25:06] Speaker 01:
It may look like it's just being put into a section

[00:25:11] Speaker 01:
of a larger package.

[00:25:14] Speaker 01:
But in fact, there's some adjustment of the data going on.

[00:25:20] Speaker 00:
Well, the checksum that you mentioned would be an additional field.

[00:25:23] Speaker 00:
And checksums are used to determine if the transmission was done correctly.

[00:25:28] Speaker 00:
So for example, a checksum would ensure that the entire message has either an odd number of bytes or an even number of bytes.

[00:25:35] Speaker 00:
And if you get to the receiver and you find out it doesn't match with what was sent, then you know that

[00:25:41] Speaker 01:
So that would be outside.

[00:25:44] Speaker 01:
Let's call it a dark red.

[00:25:46] Speaker 00:
Right.

[00:25:47] Speaker 00:
That was an example of just additional data.

[00:25:49] Speaker 00:
And if you look at figure 3D again, there's two items that are put in the message.

[00:25:58] Speaker 00:
One is a transceiver ID.

[00:26:00] Speaker 00:
And the second is the encoded electrical signal that comes from a sensor.

[00:26:05] Speaker 00:
Well, there's no allegation that the transceiver ID that's just put in the message is encoded.

[00:26:12] Speaker 00:
And in fact, it isn't.

[00:26:14] Speaker 00:
So the point I'm trying to make is that merely putting data in a message is not encoding.

[00:26:21] Speaker 00:
If it were, then the transceiver ID data that is merely put into the packet would also be considered to be encoding.

[00:26:29] Speaker 00:
And it's not.

[00:26:31] Speaker 00:
The figure 3D and the claim are crystal clear.

[00:26:36] Speaker 00:
Two data items are sent in the message.

[00:26:38] Speaker 00:
One is not encoded.

[00:26:40] Speaker 00:
One is encoded.

[00:26:41] Speaker 00:
Encoded you have to do a separate step you have to go in that table that's shown in figure 3d.

[00:26:46] Speaker 00:
Thank you.

[00:26:47] Speaker 00:
That's separate.

[00:26:48] Speaker 00:
Okay, so submitted