[00:00:12] Speaker 03:
We will hear argument next in case number 181836, Wireless Protocol Innovations Against TCT Mobile.

[00:00:25] Speaker 03:
Mr. Neruzzi, whenever you're ready.

[00:00:35] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:00:39] Speaker 00:
In this appeal,

[00:00:41] Speaker 00:
The board erred with respect to each of its final written decisions, both in terms of the lack of substantial evidence to support its findings and in terms of errors of law with respect to claim construction.

[00:00:58] Speaker 00:
With respect to the 991 patent, the board ignored WPI's argument and evidence that Abinasef does not meet two limitations of claim one.

[00:01:08] Speaker 00:
The board relied on Abhinasef and its figure 9 to make a finding that is irrelevant to satisfying the claim limitations.

[00:01:17] Speaker 00:
Abhinasef's figure 9 instead shows that the actual requirements of the limitations are not met.

[00:01:24] Speaker 03:
The board's finding asked to send, in turn, rested on the board's- Rather than summarizing at a high level of generality, which is not getting to the concrete things, just go back to the starting point.

[00:01:37] Speaker 03:
You've got two related claim limitations that you think Abin Nassif does not meet.

[00:01:43] Speaker 03:
What are they and why doesn't Abin Nassif meet them?

[00:01:45] Speaker 00:
So there is a transitioning.

[00:01:48] Speaker 00:
In fact, the order

[00:01:49] Speaker 00:
is the other way compared to what we argued, but we think that it's better illustrated in the order that we argued it.

[00:01:56] Speaker 00:
In the order of the claims, there's a requirement of transmitting the request from the client device to the base station for a bandwidth grant while the client device remains in what's called the grant pending absence state.

[00:02:12] Speaker 00:
So there's a requirement that you be in a particular state when you make this request.

[00:02:16] Speaker 00:
And then there's a further requirement

[00:02:18] Speaker 00:
that you transition, that the client device transitions to what is then called the grant pending state only after not only a request has been made, but a bandwidth grant has been received at the client device.

[00:02:30] Speaker 00:
And what's going on with Abhinasev is it simply has a different

[00:02:35] Speaker 00:
configuration and teaching as to the states and the transitions that it makes.

[00:02:39] Speaker 00:
And if we, I think the easiest way to understand this is to look at figure nine and to also look at the relevant teachings of Abi Nassif, which I can direct you to.

[00:02:47] Speaker 00:
So in figure nine, what we see is that

[00:02:55] Speaker 02:
The critical question is at the bottom of that triangle in Figure 9, where there's an arrow pointing to the active state from the inactive state, and that arrow is labeled non-contention request.

[00:03:09] Speaker 00:
Right.

[00:03:10] Speaker 00:
So in Figure 9 of Abhinasev at the bottom, there is an arrow going from inactive to active non-contention request.

[00:03:21] Speaker 00:
But there's also an error going back from active to inactive request satisfied.

[00:03:26] Speaker 00:
And in fact, the board relied on the request satisfied error, which was erroneous, and I'd like to detail that.

[00:03:33] Speaker 00:
In terms of the transition from inactive to active with a non-contention request, ABINASIF itself teaches at appendix 1312, quote,

[00:03:45] Speaker 00:
when the Mac user receives data to be transmitted, the Mac user transitions into the active state upon receiving a contention-free opportunity to transmit a request.

[00:03:57] Speaker 00:
And so there are a couple of things going on there that are really important.

[00:04:02] Speaker 00:
The first is that, as Abhinasa frames it, it's all about having data descend as a starting point.

[00:04:08] Speaker 00:
And so in that moment when the client device requires data to descend and it's in the inactive state,

[00:04:13] Speaker 00:
And it also receives the opportunity to make a bandwidth grant request.

[00:04:18] Speaker 00:
In that moment, it moves over to the active state.

[00:04:20] Speaker 00:
And that's what the arrow at the bottom shows.

[00:04:23] Speaker 00:
And there's a further teaching in Abhinasep that's really important on this issue that really helps to understand the distinction between Abhinasep's approach and the patents, which is that if you look at the bottom of 1312 going into 1313, and I'm signed to the appendix here, Abhinasep explains that

[00:04:43] Speaker 00:
There are three possibilities when the base station gives the client devices an opportunity to make a bandwidth request.

[00:04:51] Speaker 00:
One is that no request is made.

[00:04:53] Speaker 00:
Another is that a request is made and the grant is successfully given.

[00:04:57] Speaker 00:
The first is called idle.

[00:04:58] Speaker 00:
The second is called success.

[00:04:59] Speaker 00:
But there's a third possibility, which is that multiple client devices simultaneously make that request, and they run into a collision situation.

[00:05:11] Speaker 00:
And in that collision situation, the collision has to be resolved.

[00:05:15] Speaker 00:
And so at the top of 1313, it teaches, on the other hand, if multiple MAC users respond, i.e., if the result of the contention is collision, then the primary station 102 attempts to aid in resolving the collision by providing additional request transmission opportunities.

[00:05:34] Speaker 00:
And this is really important because it tells us that even though the transition has been made into active state,

[00:05:41] Speaker 00:
The bandwidth grant has not necessarily yet been received.

[00:05:44] Speaker 00:
If it's been received, we wouldn't have a collision problem or a need for additional requests for opportunities.

[00:05:50] Speaker 00:
This is a key distinction with the claims of the 991 and the patents teachings.

[00:05:54] Speaker 02:
I guess just looking at Figure 9, as I understand what the board was doing with Figure 9 was

[00:06:02] Speaker 02:
was interpreting it as having these three states and then all these arrows labeled and basically saying those labels represent conditions.

[00:06:16] Speaker 02:
And once those conditions are met or accomplished, then you transition from one state to another.

[00:06:25] Speaker 02:
And so, for example,

[00:06:27] Speaker 02:
At the very beginning of the whole process, your client is in the inactive state.

[00:06:32] Speaker 02:
But then once it makes a contention request, then the client transitions from the inactive state to the contention state.

[00:06:42] Speaker 02:
And then once that request is accepted, then the client moves from the contention state to the active state.

[00:06:50] Speaker 02:
That's how I understand figure nine, and that's how I understand the board understanding figure nine.

[00:06:55] Speaker 02:
And then likewise, when you look at the bottom of the triangle in figure nine, when a client is in inactive state, after it makes a non-contention request, then it transitions from the inactive state to the active state.

[00:07:10] Speaker 02:
That's one reading of figure nine.

[00:07:12] Speaker 02:
And even accepting that reading, Your Honor, the board's decision would still fail.

[00:07:16] Speaker 00:
Because it doesn't say the request has to be granted.

[00:07:20] Speaker 00:
That's absolutely correct, Your Honor.

[00:07:21] Speaker 02:
The claim limitation.

[00:07:22] Speaker 02:
I guess the question is, why wouldn't it be the way this system, this state machine in Aby Nassib works?

[00:07:31] Speaker 02:
You make a request.

[00:07:33] Speaker 02:
the request is granted, and then you get to activate, and then you get to start transmitting data in the active state.

[00:07:40] Speaker 00:
Why wouldn't it work that way?

[00:07:42] Speaker 00:
Yes, and this is why the teaching at the bottom of 13.12 and 13.13 in the appendix is so relevant to this question.

[00:07:49] Speaker 00:
In the 991 patent and its claims, the concept of the state machine order of operations is that you don't move from the grant pending absence state until you've received the bandwidth grant.

[00:08:01] Speaker 00:
And that ensures that when you have

[00:08:03] Speaker 00:
Receive the bandwidth grant and you make the transition to the grant pending state you already have a bandwidth grant right?

[00:08:09] Speaker 00:
So there's no possibility of a collision happening where multiple client devices are vying for the same Transmission grant because the system has made sure to give you the grant before it allows you to move over into the grant pending state and

[00:08:24] Speaker 00:
However, in Avinasif, where we see in Figure 9 that all it takes is a non-contention request to move into active, Avinasif at the bottom of 1312 and the top of 1313 teaches that it could be a consequence of that approach, which is that you don't have a bandwidth grant yet, that you run into a collision problem.

[00:08:43] Speaker 00:
And then that collision problem needs to be solved.

[00:08:45] Speaker 00:
And it does ultimately solve it.

[00:08:47] Speaker 00:
Avinasif teaches that ultimately a bandwidth grant will be given.

[00:08:51] Speaker 00:
But it's a different approach to the process of managing a client device that does not have a bandwidth grant moving into a state where it can start to make contention-free transmissions.

[00:09:03] Speaker 00:
In the 991 patent, you enter the state of contention-free transmissions after you already have a bandwidth grant.

[00:09:09] Speaker 00:
In ABI-NASIF, you don't get there yet.

[00:09:12] Speaker 00:
You make the transition to the active state.

[00:09:14] Speaker 00:
But you may run into a collision.

[00:09:16] Speaker 00:
And if you run into a collision, then there is a further process where the collision has to be resolved by the base station.

[00:09:22] Speaker 00:
And only then, once it's resolved, do you enter into the contention-free state.

[00:09:27] Speaker 00:
So even though you're in the active state, you don't yet get the contention-free opportunity.

[00:09:32] Speaker 00:
So it's simply a matter of a difference of architecture.

[00:09:37] Speaker 03:
Perhaps I've misunderstood this, but I think one

[00:09:41] Speaker 03:
version of the harmless error argument in the red brief is you're just talking about labels.

[00:09:49] Speaker 03:
That is, abinasef, when it says active, if there's still a contention, a collision state, it's not really the active state.

[00:09:59] Speaker 03:
And until that has occurred, that is until you can actually freely use the channel, it's not really in

[00:10:08] Speaker 03:
the counterpart to what your patent claims.

[00:10:11] Speaker 03:
Can you address that?

[00:10:13] Speaker 00:
Right.

[00:10:13] Speaker 00:
So that's not actually the harmless error argument that they ever make.

[00:10:17] Speaker 00:
I think the version that you're describing is a different theory of how Abhinasef would potentially map onto the claims, which says, no, it's not the point

[00:10:29] Speaker 00:
where you transition to active, it's something after the point where you've transitioned to active and you've also received a bandwidth grant.

[00:10:36] Speaker 00:
And they've never made that argument.

[00:10:38] Speaker 00:
They don't even make that argument here on appeal.

[00:10:40] Speaker 03:
I know this is unfair, but what would be wrong with that argument?

[00:10:43] Speaker 00:
What would be wrong with that argument?

[00:10:45] Speaker 00:
Well, first of all, there are lots of procedural things wrong with that argument, right?

[00:10:48] Speaker 00:
We're standing here on appeal.

[00:10:49] Speaker 03:
That's why I said it wasn't fair.

[00:10:51] Speaker 00:
But in addition, I think it's still not consistent with the claim limitations, because then you would not be sending the request while you're in the grant pending absence date.

[00:11:04] Speaker 00:
So I would have to see a specific theory, Your Honor, of exactly what they're pointing to and how it would map out before I could say what exactly would be wrong with it.

[00:11:15] Speaker 00:
Frankly, it's not one that they've ever put forth, so it's hard for me on the fly to tell you what claim limitation it would not meet.

[00:11:20] Speaker 00:
But I assume, and I think- Let me try.

[00:11:24] Speaker 02:
We know that at the bottom of the triangle, going from inactive to active, you first have to make a request for the bandwidth.

[00:11:36] Speaker 02:
And we also know that request is going to have to be granted before you start transmitting data.

[00:11:42] Speaker 02:
So you have the request, you have the grant, and then you have transmission of data.

[00:11:46] Speaker 02:
Right now, it is your argument that even if the request has to happen before Aby Nassif transitions to active, the grant happens during active.

[00:11:59] Speaker 02:
Or at a minimum, the reference is silent as to where the grant happens.

[00:12:04] Speaker 02:
Is it before or after you transition to active?

[00:12:07] Speaker 02:
But nevertheless, these are the same kinds of operational steps that are going on in your claim, request for bandwidth, grant of bandwidth, and then finally, transmission of data.

[00:12:18] Speaker 02:
So the underlying operational steps are identical in Abhinasev and in your claimed invention.

[00:12:28] Speaker 02:
It's just a matter of,

[00:12:30] Speaker 02:
this metaphysical transition between two states, whatever that means.

[00:12:36] Speaker 02:
And even if Abhinasa is silent as to where the grant occurs in the inactive or the active state, it would be painfully obvious to have the grant happen first before Abhinasa formally transitions to the active state.

[00:12:54] Speaker 02:
Because there's really no functional difference, no operational difference to Aby Nassif where the grant of the bandwidth request occurs in its inactive state or its active state.

[00:13:07] Speaker 02:
No difference at all.

[00:13:09] Speaker 00:
And I do disagree with that, Your Honor.

[00:13:11] Speaker 00:
I understand the argument as you've articulated it.

[00:13:14] Speaker 00:
And I think there are several problems with it.

[00:13:15] Speaker 00:
First of all, it would not be obvious because Aby Nassif expressly went down a particular different path, which is let's do the bandwidth grant later.

[00:13:26] Speaker 00:
And if we run into a problem of collision, let's deal with that collision problem, right?

[00:13:29] Speaker 00:
Whereas the 991 patent says, let's avoid the collision problem.

[00:13:31] Speaker 02:
Well, let's assume for the moment that Aby Nassif doesn't really explain

[00:13:35] Speaker 02:
where the grant occurs.

[00:13:37] Speaker 02:
We know that there must necessarily be a grant of the bandwidth request before data starts getting transmitted.

[00:13:43] Speaker 02:
But we don't know exact, because Abu Nassif isn't clear where and exactly when that happened.

[00:13:50] Speaker 00:
Well, I think it is clear, because I think that's what the bottom of 1312 to 1313 is talking about.

[00:13:55] Speaker 00:
But let's put that aside for a moment, because I think it's a little hard to prove that issue in my remaining time.

[00:14:02] Speaker 00:
I'll leave it to the board's consideration.

[00:14:04] Speaker 00:
Going down the path that Your Honor is describing, and I'm sorry, I meant the court, going down the path that Your Honor is describing would also just videate the transitioning limitation.

[00:14:15] Speaker 00:
And it would set a precedent that these kinds of limitations, where you move from one state to another state, are somehow not patentable.

[00:14:22] Speaker 00:
I'll say that argument was never raised before appeal by the appellee.

[00:14:26] Speaker 00:
I'll also say that if you look at Abinasef, Sen, every reference in this proceeding, every other prior art reference, talks about state machines and states.

[00:14:36] Speaker 00:
And so we know that to those of skill in the art,

[00:14:39] Speaker 00:
state machines and transitions between states are absolutely relevant and they define the way that these systems are architected.

[00:14:46] Speaker 00:
So to say here for purposes of patent law that somehow they're trivial and irrelevant flies in the face of how people of ordinary skill design these systems and conceive of these systems.

[00:14:55] Speaker 03:
Can I switch before you sit down?

[00:14:57] Speaker 03:
And I will restore your rebuttal time, but maybe not all of it, but some of it.

[00:15:03] Speaker 03:
Sen.

[00:15:03] Speaker 03:
You have to win on Sen as well.

[00:15:05] Speaker 03:
Now, on the assumption that the board, if I understand it right, rejected your argument about Sen basically by rejecting your claim construction point.

[00:15:17] Speaker 03:
Assume for the moment that that was wrong.

[00:15:20] Speaker 03:
Do we vacate and remand, or is it clear

[00:15:24] Speaker 03:
that we would reverse on that.

[00:15:26] Speaker 03:
And I guess I have in mind, I'm not entirely sure what's this is that the relevant material that's being cited is what column four lines 49 to say 59, being generous, I think.

[00:15:39] Speaker 03:
Exactly what it says about whether CEN transmits some information in the transition state.

[00:15:47] Speaker 03:
And so that's kind of a factual question.

[00:15:50] Speaker 03:
Is that really clear what's going on there?

[00:15:52] Speaker 03:
And second, these are method claims.

[00:15:55] Speaker 03:
Even if the packet, what's it called, the packet standby, is that the?

[00:16:01] Speaker 00:
Yes, you're on.

[00:16:02] Speaker 03:
The packet standby, in the packet standby state, it could transmit something or can.

[00:16:10] Speaker 03:
Why might it not operate in a way that it doesn't and therefore come within the method claims

[00:16:18] Speaker 03:
which means if it runs a single time performing the steps without transmitting, might it not fall within the method?

[00:16:27] Speaker 00:
So, Your Honor, I'll try to address that as briefly as I can.

[00:16:31] Speaker 00:
The short answer is it is undisputed by the appellee that the factual predicate to Sen not meeting the claim limitation

[00:16:41] Speaker 00:
is there in Sen.

[00:16:42] Speaker 00:
So they don't dispute that point.

[00:16:44] Speaker 00:
And the board didn't dispute that point.

[00:16:46] Speaker 00:
It's all about the claim construction.

[00:16:47] Speaker 00:
And so if this court finds that the claim construction was incorrect, which it is because it's taught against by the specification expressly, then there's no remaining dispute as to the factual issue of whether Sen meets the proper claim construction.

[00:17:03] Speaker 00:
We put that forth in our opening brief, and they did not dispute it.

[00:17:07] Speaker 00:
And the reason is that in order to meet

[00:17:10] Speaker 00:
the claim limitation, you have to be in a state, in a grant pending absence state where you do not have a bandwidth grant.

[00:17:18] Speaker 00:
And SEND does have a bandwidth grant.

[00:17:21] Speaker 00:
And so the mere existence of the bandwidth grant violates the grant pending absence state, regardless of whether you use the grant or not.

[00:17:34] Speaker 03:
We'll restore your rebuttal time.

[00:17:36] Speaker 00:
Thank you, Your Honor.

[00:17:42] Speaker 03:
Mr. Peterson.

[00:17:51] Speaker 01:
Thank you.

[00:17:52] Speaker 01:
May it please the court?

[00:17:53] Speaker 01:
Judge Chen, I do think you identified what is the critical question, which is the significance of that arrow between the inactive state and the active state.

[00:18:02] Speaker 02:
Can we just, because I think we can get Sen out of the way quickly, I just want to make sure I understand.

[00:18:09] Speaker 02:
If we disagree with the board's claim construction,

[00:18:12] Speaker 02:
as to the ability to transmit data in the so-called grant pending absence date, then do we no longer have to worry about SEND?

[00:18:23] Speaker 02:
We would just reverse that aspect?

[00:18:26] Speaker 01:
There are two different aspects, I think, of the construction my friend has opposed for SEND.

[00:18:30] Speaker 01:
So I think you could affirm, or at the very least, you'd need to remand to the board on that.

[00:18:35] Speaker 01:
There are two different aspects of this.

[00:18:37] Speaker 01:
One is whether you can have access to bandwidth when you're in what CIN calls its packet standby state.

[00:18:43] Speaker 01:
The other is whether you can transmit upstream data when you're in CIN's packet standby state.

[00:18:48] Speaker 01:
Now, CIN does teach that it has access to bandwidth in the packet standby state.

[00:18:53] Speaker 01:
If you look at CIN, though, column four, this is appendix page 1336, and I'm looking at lines

[00:19:01] Speaker 02:
My understanding of the briefing was it was just about the claim construction.

[00:19:06] Speaker 01:
Well, yes and no.

[00:19:08] Speaker 01:
The problem here is that this claim construction argument was never thoroughly developed by WPI below.

[00:19:15] Speaker 01:
If you look at WP's arguments to the board, if you look at its opening brief, you will not see any arguments about the significance of the name Grant Pending Absent.

[00:19:23] Speaker 01:
In fact, what you'll actually see, its appendix page is 2158 to 2159.

[00:19:28] Speaker 01:
is when WPI developed this argument below.

[00:19:30] Speaker 01:
They didn't say you need to construe the claims this way.

[00:19:33] Speaker 01:
What they said was it was about the timing of the transition between a grant pending state and a grant pending absent state.

[00:19:40] Speaker 01:
So we do think you would need to actually remand to the board if you're going to say this is the right claim construction to determine whether there's actually evidence under that claim construction.

[00:19:50] Speaker 01:
SIN doesn't require actually transmitting data in its packet standby state.

[00:19:54] Speaker 01:
since as you can either transmit data or this is line 63 when the base station receives a which column column for appendix page 1336 so sin can have its original bandwidth Reallocated and that's going from its packet standby state to its packet strength transfer state either when a first one of the packets is received by the base station that's transmitting data or when the base station receives a control packet requesting more bandwidth

[00:20:23] Speaker 01:
I'm sorry, I'm lost.

[00:20:25] Speaker 01:
Where on column four was all this?

[00:20:27] Speaker 01:
I'm sorry, this is...

[00:20:29] Speaker 02:
The key is 81336, column 4, line?

[00:20:33] Speaker 01:
That is line 58 through line 63.

[00:20:39] Speaker 01:
Beginning with the base station receives the packets and reallocates the original bandwidth to the mobile station.

[00:20:46] Speaker 01:
When a first one of the packets, so again that would be the data transmission, is received or when the base station receives a control packet.

[00:20:57] Speaker 01:
So I think if you were to accept the broadest form of my friend's argument, which is that you're not permitted to have any bandwidth whatsoever, SEND does unquestionably have bandwidth when it's in its packet transfer state.

[00:21:07] Speaker 01:
SEND doesn't, however, require transmitting data in order to move from the packet standby state to the packet transfer state.

[00:21:15] Speaker 01:
That teaching there is that you can send a control packet instead, requesting more bandwidth.

[00:21:19] Speaker 01:
I'm confused.

[00:21:20] Speaker 02:
So what's the purpose in SEND for having that

[00:21:24] Speaker 02:
reduced allocation of bandwidth during the packet standby state?

[00:21:28] Speaker 01:
Well, you can do one of two things with it.

[00:21:29] Speaker 01:
I think SEND teaches primarily that the reduced bandwidth allows you to immediately transmit data.

[00:21:35] Speaker 01:
Or, as SEND teaches here, you could alternatively transfer a control packet and use that control packet to request more bandwidth.

[00:21:42] Speaker 01:
Again, this wasn't fully developed before the board largely because of how WPI made these arguments.

[00:21:48] Speaker 01:
I think if you disagree with the board's claim construction, you would need to remand.

[00:21:52] Speaker 01:
Just briefly on SIN, the name grant pending absence... Is this passage something that you cited below?

[00:21:59] Speaker 01:
No, and this wasn't, again, this wasn't focused on before the board because WPI never argued this as a claim construction.

[00:22:07] Speaker 01:
They simply argued about the transition from the grant pending absent state that sends packet standby state into the packet transfer state.

[00:22:17] Speaker 01:
So we didn't have reason to develop these arguments before the board.

[00:22:22] Speaker 01:
With the name grant pending absent, I think the problem with my friend's argument there is that he's reading the word pending out of it.

[00:22:29] Speaker 01:
What he wants to say is that grant pending absence state means that you're not allowed to have any bandwidth when you're in that state.

[00:22:36] Speaker 01:
And I think if you look at the claims of the 991 packet, you'll see that that's not quite what it means.

[00:22:44] Speaker 01:
So you'll find the 991 packet, it's appendix page 123, line three to four,

[00:22:52] Speaker 01:
So you're operating the CPE in a grant pending state wherein the CPE awaits receipt of a bandwidth grant.

[00:23:01] Speaker 01:
So you are awaiting receipt of a bandwidth grant and therefore you have a grant pending and you're in the grant pending state.

[00:23:08] Speaker 01:
When you look at line 8 to 9,

[00:23:11] Speaker 01:
and then line 14 as well, you transfer into the grant pending absent state when you have no pending bandwidth request.

[00:23:20] Speaker 01:
So the grant pending absent state doesn't mean that you don't have bandwidth.

[00:23:25] Speaker 01:
It simply means you don't have a pending bandwidth request.

[00:23:29] Speaker 01:
And you see that as well in specification when it's talking about piggybacking.

[00:23:34] Speaker 01:
and hints the name of the state.

[00:23:35] Speaker 01:
That's appendix page 121.

[00:23:37] Speaker 02:
And then it also talks about no transmission of data during the grant pending absence date.

[00:23:45] Speaker 01:
That's right.

[00:23:46] Speaker 01:
And I think that is the strongest argument.

[00:23:49] Speaker 02:
And the board said there's nothing in the claim that precludes the transmission of data in the grant pending absence date.

[00:23:58] Speaker 02:
The board said that, right?

[00:23:59] Speaker 02:
Yes.

[00:24:00] Speaker 02:
So let's assume that the court disagrees with that.

[00:24:04] Speaker 01:
If the court disagrees with that, I do think you'd need to remand to ask about SIN's disclosure of the control packets.

[00:24:10] Speaker 01:
Do you have some defense of that board statement?

[00:24:12] Speaker 01:
I think it's the right statement, that this is simply disclosure of a preferred embodiment, and nothing in the claims precludes this.

[00:24:21] Speaker 01:
So when you look at this, every time it mentions, don't SIN data in this state, it also simultaneously mentions unicast polling.

[00:24:29] Speaker 01:
Now, when you look at the claims, everyone agrees, my friend agrees, that the first type of bandwidth request that is mentioned in the claims is not unicast polling.

[00:24:39] Speaker 01:
It can be broader.

[00:24:40] Speaker 01:
This is a case where the claims are written more broadly here than this preferred embodiment from the specification.

[00:24:45] Speaker 01:
We also have the language in column 8 of the specification talking about alternative embodiments.

[00:24:51] Speaker 01:
Appendix page 121, looking at lines 11 to 15, the invention can be embodied in a method for controlling communications using the state machine described above, and then skipping to 14 to 15, and in various other embodiments, and you see going down on 35.

[00:25:07] Speaker 01:
Although preferred embodiments are disclosed, many variations are possible which remain within the content, scope, and spirit of the invention.

[00:25:15] Speaker 01:
The standard here is broadest reasonable interpretation, and the question here, if we're talking about

[00:25:20] Speaker 01:
a line from the specification isn't reflected in the claims.

[00:25:23] Speaker 01:
Is there a clear disclaimer to want to skill in the art?

[00:25:26] Speaker 01:
And I'd suggest that given that language in column 8, it's impossible to find that this is a clear disclaimer.

[00:25:31] Speaker 01:
I'd also note this is a common specification shared with not just the 991 patent, but also the 051 and the 256 patents.

[00:25:40] Speaker 01:
Now recall, those two patents don't require a grant pending absence date at all, much less a grant pending absence date in which no data is transmitted.

[00:25:49] Speaker 01:
So it's quite odd to say,

[00:25:50] Speaker 01:
This particular embodiment, which requires a pending absent state, disclaims all other embodiments to want to skill in the art.

[00:25:58] Speaker 01:
This is why we have claims to define the scope of the invention.

[00:26:02] Speaker 01:
Let me turn to the combination of Abenasif and Doxus 1.1, unless there are further questions about sin.

[00:26:08] Speaker 01:
And that's the line on appendix page 1328, connecting the inactive state to the active state.

[00:26:18] Speaker 01:
Now, my friend's argument based on

[00:26:20] Speaker 01:
Appendix page 1312 is that Fabine Assif transitions into the active state immediately and doing absolutely nothing else after receiving an opportunity to transmit a non-contention request.

[00:26:35] Speaker 01:
Yet this line between inactive and active shows non-contention request on there.

[00:26:41] Speaker 01:
So the question is, how do we read the state machine?

[00:26:43] Speaker 01:
I think the right thing to do is look at the testimony of Mr. Lohm, who is WPI's expert.

[00:26:49] Speaker 01:
You can find this on Appendix Page 2413, and he offers testimony about how state diagrams should be read.

[00:26:57] Speaker 01:
Usually when you draw a state diagram, especially a formal one, the arrows are labeled with the thing that causes the transition.

[00:27:08] Speaker 01:
You can also look at WPI's brief.

[00:27:13] Speaker 01:
I think page 29 is figure two from the patent.

[00:27:16] Speaker 01:
And figure two from the patent illustrates a state machine reflecting these claims.

[00:27:27] Speaker 01:
There's an arrow there from the grant pending absence state to the grant pending state.

[00:27:31] Speaker 01:
That arrow is labeled with grant.

[00:27:34] Speaker 01:
the same grant that my friend contends has to occur in the grant pending absence date.

[00:27:40] Speaker 01:
Turning to page 31 of WPI's brief, this is a diagram.

[00:27:44] Speaker 02:
Here's the problem.

[00:27:45] Speaker 02:
Let's cut to the chase.

[00:27:46] Speaker 02:
Sure.

[00:27:47] Speaker 02:
The board relied on this notion of the request being satisfied.

[00:27:52] Speaker 02:
That label in Figure 9 is somehow proving up that both a request and a grant of bandwidth has occurred before you transitioned from Abhinasev's inactive to active state.

[00:28:05] Speaker 02:
And I'll be honest, that didn't really make sense to me.

[00:28:08] Speaker 02:
why that request satisfied arrow going back the other way necessarily conveys to me that a grant of the bandwidth request is occurring in the arrow that's merely labeled request.

[00:28:25] Speaker 01:
I think what that implies, the request satisfied, is that there has been a bandwidth grant.

[00:28:33] Speaker 02:
There has been a request.

[00:28:35] Speaker 02:
There has been a grant.

[00:28:36] Speaker 02:
There has been transmission of all the data that was requested to be transmitted.

[00:28:41] Speaker 02:
But it doesn't tell me anything about the timing of the bandwidth grant vis-a-vis transitioning between an inactive state and an inactive state.

[00:28:50] Speaker 02:
That's right.

[00:28:51] Speaker 02:
So then it doesn't make any sense to me why the board leaned on this label, request satisfied, as answering the question of when does the grant of the bandwidth request occur.

[00:29:04] Speaker 01:
Because the board was answering WPI's argument that the transition occurs upon the opportunity to make a request.

[00:29:12] Speaker 01:
WPI has consistently argued that all you look at is that one sentence in Appendix Page 1312, transition when there is an opportunity.

[00:29:20] Speaker 01:
So if WPI were right about that, you could be in the active state when there has been no bandwidth request.

[00:29:28] Speaker 01:
And I think what the board is saying there is we can infer by request satisfied that there must be a bandwidth request to get into the active state.

[00:29:37] Speaker 01:
It's the only way out of the active state.

[00:29:39] Speaker 01:
Now, I'll tell you, I think the board could have pointed to many more things in the record.

[00:29:43] Speaker 01:
supporting its findings.

[00:29:44] Speaker 01:
And the question here isn't whether the board identified all the evidence supporting its findings.

[00:29:48] Speaker 01:
Well, it wasn't clear to me that you pointed to anything else other than the request satisfied label.

[00:29:53] Speaker 01:
Well, that is the R expert's testimony.

[00:29:55] Speaker 01:
The question is what appendix page 1312 and appendix page 1328 mean to one of skill in the art.

[00:30:03] Speaker 01:
Did the expert ever refer to request satisfied?

[00:30:06] Speaker 01:
I thought that showed up in your petition or reply, which looks like attorney argument.

[00:30:12] Speaker 01:
Our expert didn't refer to request satisfied.

[00:30:14] Speaker 01:
Our expert referred to what was meant by the line on 1312 of Benasif.

[00:30:20] Speaker 01:
And you see that on appendix page 342.

[00:30:22] Speaker 01:
That's our expert's testimony explaining that upon receiving this opportunity, what happens is a Benasif teaches that the device will request bandwidth, receive a grant, and thereby transition.

[00:30:40] Speaker 01:
What's the best paragraph your expert has?

[00:30:42] Speaker 01:
The best paragraph, I think, probably is from his deposition.

[00:30:45] Speaker 01:
Let me give you that.

[00:30:46] Speaker 01:
Well, no.

[00:30:46] Speaker 01:
8342.

[00:30:47] Speaker 01:
342 is the top paragraph.

[00:30:51] Speaker 01:
Paragraph 234.

[00:30:55] Speaker 01:
Yes, Your Honor.

[00:30:58] Speaker 01:
After receiving a contention-free opportunity, the MAC user will request bandwidth, receive a grant, and thereby transition from inactive to active.

[00:31:09] Speaker 02:
Right.

[00:31:09] Speaker 01:
So he's just saying it.

[00:31:11] Speaker 01:
Well, he's saying that's what it means to him as one of skill in the art.

[00:31:15] Speaker 01:
On appendix page 2251 to 52, this is his deposition.

[00:31:19] Speaker 03:
I'm sorry, say those pages again, please.

[00:31:25] Speaker 01:
I'm sorry, appendix pages 2251 to 52.

[00:31:32] Speaker 01:
Mr. Lipoff explained, I'm looking at lines 20 to 24,

[00:31:43] Speaker 01:
The unicast poll is received by the CPE when the system is in the inactive state.

[00:31:48] Speaker 01:
The request is then made.

[00:31:49] Speaker 01:
And when the non-contention request is made after the handshaking that occurs, you then move into the active state.

[00:31:57] Speaker 03:
I apologize.

[00:31:59] Speaker 03:
What are you reading from, please?

[00:32:00] Speaker 01:
This is the deposition of Mr. Lipoff.

[00:32:02] Speaker 01:
He's our expert.

[00:32:04] Speaker 01:
That was the column on the left, page 149, lines 20 to 24.

[00:32:08] Speaker 03:
Page 149.

[00:32:12] Speaker 02:
It's not clear to me what from Abi Nasif he's interpreting when he's making this statement, this declaration of what Abi Nasif teaches to him.

[00:32:23] Speaker 01:
So as I think we've agreed, there's nothing on appendix page 1312 that expressly says here is when Abi Nasif, when it goes through non-contention, makes the non-contention request and when it receives the bandwidth grant.

[00:32:38] Speaker 01:
So the question is, what is disclosed on Appendix Page 1312 mean to one skill in the art?

[00:32:44] Speaker 01:
How does one of skill in the art read those two things in combination?

[00:32:47] Speaker 01:
And this is our expert testifying.

[00:32:50] Speaker 01:
His understanding is when Abinassif says, upon receiving a contention-free opportunity to transmit a bandwidth request, you transition into the active state.

[00:32:59] Speaker 01:
What he understands that to mean is that.

[00:33:02] Speaker 01:
What's the line on A1312?

[00:33:04] Speaker 01:
The top line is.

[00:33:12] Speaker 01:
When the Mac user receives data to be transmitted, the Mac user transitions into the active state upon receiving a contention free opportunity to transmit a request.

[00:33:29] Speaker 01:
And the question is simply, does that mean, as my friend suggests,

[00:33:33] Speaker 01:
you immediately transition into the active state, and you make the request and receive bandwidth in the active state, or to want a skill in the art, does it also teach that you make the request, handshake and receive bandwidth, as our expert says, and then transition into the active state?

[00:33:48] Speaker 03:
Where is the discussion that handshaking equals receipt of bandwidth?

[00:33:53] Speaker 01:
I believe you see that on 2252.

[00:34:04] Speaker 01:
I'm sorry, the handshaking mention is on 2251.

[00:34:07] Speaker 03:
Right, but I don't, I guess.

[00:34:10] Speaker 03:
And this is past.

[00:34:11] Speaker 03:
I'm asking what that means.

[00:34:13] Speaker 03:
You've equated it to a grant as opposed to, you've equated to a grant.

[00:34:20] Speaker 03:
How do we know that that's what it equates to?

[00:34:22] Speaker 01:
I think the expert's testimony on 2252, it's page 153, lines 3 to 13.

[00:34:31] Speaker 01:
As I understand what Ibn Asif teaches, after you receive the contention-free opportunity to make the request, there are a number of things that happen.

[00:34:39] Speaker 01:
You request the bandwidth, receive the grant, transmit the information, then you transition from the inactive state to the active state, where you're now waiting for the actual grant for data, and you send the data up.

[00:34:50] Speaker 01:
So you transition from inactive to active as a result of receiving the contention-free opportunity and making that request.

[00:34:59] Speaker 02:
So what do you think Avi Nasif was trying to tell us when he told us at A1312 that the Mac user transitions into the active state upon receiving a contention-free opportunity to transmit a request?

[00:35:14] Speaker 02:
That sounds like as soon as you get the opportunity to make a request, you're already now in active state land.

[00:35:22] Speaker 02:
Then you can make the request for transmission of data.

[00:35:26] Speaker 02:
Then you get the request granted.

[00:35:29] Speaker 02:
Then you can finally transmit data.

[00:35:31] Speaker 02:
And all three steps occur in the active state.

[00:35:33] Speaker 01:
Well, I think one of skill in the art understands, it's implied, but one of skill in the art understands when you look at that in combination with figure nine,

[00:35:41] Speaker 01:
that you are receiving that opportunity.

[00:35:43] Speaker 01:
And what you do when you receive that opportunity before you transition is to make the request and receive the grant.

[00:35:50] Speaker 01:
And when you look at Figure 9, that arrow is labeled non-contention request.

[00:35:53] Speaker 02:
Right.

[00:35:54] Speaker 02:
It doesn't say non-contention request accepted.

[00:35:57] Speaker 02:
Right?

[00:35:57] Speaker 02:
There's another arrow in that same Figure 9 going down from the contention state to the active state where it says request accepted.

[00:36:07] Speaker 00:
Right?

[00:36:07] Speaker 02:
Now we know this.

[00:36:09] Speaker 02:
Abhinasev inventor understands how to label arrow's request accepted.

[00:36:16] Speaker 02:
And it did so there.

[00:36:17] Speaker 02:
It did not do so on that bottom arrow where it just says non-contention request.

[00:36:21] Speaker 01:
That's right.

[00:36:22] Speaker 01:
And that's why it actually supports us.

[00:36:24] Speaker 01:
Because if you look... That's hard for me to believe.

[00:36:26] Speaker 01:
Let me help.

[00:36:27] Speaker 01:
Because the label there also says request denied.

[00:36:30] Speaker 01:
with a contention request.

[00:36:31] Speaker 01:
And that's the difference between a contention request and a non-contention request.

[00:36:36] Speaker 01:
I'm lost.

[00:36:37] Speaker 01:
So non-contention requests can be denied.

[00:36:40] Speaker 01:
Non-contention requests are actually what my friend was talking about when he was reading from the bottom of 1312 over to 1313.

[00:36:47] Speaker 01:
So non-contention requests can fail.

[00:36:50] Speaker 01:
They can collide with each other.

[00:36:51] Speaker 01:
Venus Eve teaches they might not work.

[00:36:55] Speaker 01:
So with non-contention requests, there's no guarantee that you get the ban.

[00:37:00] Speaker 01:
With non-contention requests, you might ask for it, and your request might not go through.

[00:37:04] Speaker 01:
The answer might be no.

[00:37:06] Speaker 01:
But with contention requests, you don't actually need to show request accepted.

[00:37:14] Speaker 01:
That's because a non-contention request is always accepted.

[00:37:18] Speaker 02:
Where did you say this in your petition or your petitioner reply?

[00:37:24] Speaker 01:
I didn't see any of this.

[00:37:27] Speaker 01:
This is certainly what was argued by our expert.

[00:37:31] Speaker 01:
And when he was explaining his understanding of the operation of Abin Asif, he never suggested that there was a way that a non-contention request could be denied.

[00:37:40] Speaker 01:
When you look at the record references that I showed you,

[00:37:42] Speaker 01:
What he said is all three of these things happen in sequence every time.

[00:37:46] Speaker 01:
There's a non-contention opportunity or an opportunity to make a non-contention request.

[00:37:51] Speaker 01:
There is a non-contention request, and that non-contention request is answered with a grant of bandwidth.

[00:37:57] Speaker 01:
So when you look at our expert's testimony, what he's saying is these three things always follow one after the other.

[00:38:04] Speaker 02:
Yes, but we don't know why certain things happen before the active state transition occurs.

[00:38:12] Speaker 01:
The last thing I'll point you to on this, and maybe this is helpful, is just understanding that nothing in Abena Seif suggests that you do not have bandwidth when you are in the active state.

[00:38:23] Speaker 01:
When you look at its discussion of the contention requests, this is lines 10 to 11 of appendix page 1312,

[00:38:30] Speaker 01:
It explains that upon making a successful reservation in the non-contention state, the MAC user transitions into the active state.

[00:38:38] Speaker 01:
So we know at least when you are going through contention, you only go into the active state after you have already reserved bandwidth.

[00:38:46] Speaker 01:
And I'll also point out the testimony of Mr. Lohm.

[00:38:49] Speaker 02:
He was the plaintiff's... That discussion is going from the contention state to the active state, right?

[00:38:55] Speaker 02:
That's right, but it provides at least some... That's not about the inactive state to the active state.

[00:38:59] Speaker 01:
But it's a question of what it means to be in the active state.

[00:39:02] Speaker 01:
Are you in the active state when you have bandwidth, or are you in the active state when you are making a bandwidth request?

[00:39:09] Speaker 01:
So we know at least going through contention.

[00:39:11] Speaker 01:
you have bandwidth when you're in the active state.

[00:39:13] Speaker 01:
We asked their expert what his understanding was of the active state.

[00:39:17] Speaker 01:
You see this on appendix page 2435.

[00:39:19] Speaker 01:
What is your understanding of the active state?

[00:39:22] Speaker 01:
He answered, it is the state in which data is transmitted.

[00:39:25] Speaker 01:
He didn't say the active state is the state in which a non-contention request for bandwidth is sent.

[00:39:31] Speaker 01:
He didn't say the active state is the state in which a non-contention request for bandwidth is received.

[00:39:36] Speaker 01:
He said the active state is the state in which data is transmitted.

[00:39:59] Speaker 00:
Your honor, I'd like to point you to Appendix 1311, because I just want to clarify that everything in Appendix 1311 to 1313 is talking about Abhinas's Figure 9.

[00:40:14] Speaker 00:
And so I just want to make sure there's no doubt that those two things are one and the same.

[00:40:18] Speaker 00:
They're not different teachings or alternative teachings.

[00:40:21] Speaker 00:
At the bottom of 1311, it explains a reservation MAC-based protocol can be represented at a high level by a state diagram for each MAC user as shown in Figure 9.

[00:40:32] Speaker 00:
The MAC user starts in the inactive state and remains there so long as it has no data to transmit or it is waiting for an opportunity to transmit a request.

[00:40:44] Speaker 00:
As Judge Chen rightly pointed out from there, the language that comes next, which is at the heart of this conversation, states that the transition is made upon

[00:40:55] Speaker 00:
the availability of the opportunity.

[00:40:57] Speaker 00:
Now, there's been a lot of discussion about whether Figure 9, in fact, teaches that the transition happens based on the opportunity or the request actually being made.

[00:41:05] Speaker 00:
As we discussed in my opening argument, that's irrelevant.

[00:41:09] Speaker 00:
It doesn't matter because what's necessary, that would not be sufficient to meeting the claim limitation, right?

[00:41:15] Speaker 00:
the claim doesn't simply require a request to be made.

[00:41:18] Speaker 00:
So it doesn't matter if it's the opportunity that triggers the transition or the request itself.

[00:41:23] Speaker 00:
It's about when is the bandwidth grant given.

[00:41:26] Speaker 03:
And do you, I think your friend on the other side said,

[00:41:31] Speaker 03:
for the non-contention request.

[00:41:35] Speaker 03:
A non-contention request is never denied.

[00:41:37] Speaker 03:
So to make the request is automatically, though perhaps not instantaneously, to get the grant.

[00:41:43] Speaker 03:
Do you disagree with that?

[00:41:44] Speaker 00:
I disagree with the relevance of that in terms of what it tells us about the timing of the transitions.

[00:41:51] Speaker 03:
Right.

[00:41:51] Speaker 03:
I think you understand that you just changed the question.

[00:41:54] Speaker 03:
Do you disagree with the proposition that in

[00:42:01] Speaker 03:
in this, Abiy Nassif, every non-contention request is granted.

[00:42:09] Speaker 03:
There may be a lack, but is it true, or do you disagree, that it is granted?

[00:42:15] Speaker 00:
The answer to that is at the bottom of 1312 and the top of 1313, where it explains that there are three possibilities.

[00:42:24] Speaker 00:
And my friend on the other side said that

[00:42:26] Speaker 00:
These possibilities that are taught here only relate to the contention pathway.

[00:42:31] Speaker 00:
That's not correct.

[00:42:32] Speaker 00:
There's no such evidence in the record.

[00:42:34] Speaker 00:
And in fact, the reading of it demonstrates that it applies to any situation where there's an opportunity to make a request and a request is made.

[00:42:43] Speaker 00:
And this passage shows that either there can be no request when there's an opportunity, or the request can be successful, or there can be a collision.

[00:42:53] Speaker 00:
It also explains that if there is a collision, collisions are resolved.

[00:42:56] Speaker 00:
And so it is correct that ultimately, one way or another, the bandwidth grant will be provided.

[00:43:04] Speaker 00:
But the question is, at what point in the process?

[00:43:07] Speaker 00:
There's no dispute whatsoever that there has to be a bandwidth grant for the data to be sent up.

[00:43:14] Speaker 00:
And that data can be sent out once you enter into non-contention free grant land, you can send up your data.

[00:43:21] Speaker 00:
And since you can get to that place at some point, you have to have a bandwidth grant.

[00:43:25] Speaker 00:
But the question is, when does that happen?

[00:43:28] Speaker 00:
And does it happen in a way that meets the transition requirements and the timing requirements of the 991 patents claim limitations?

[00:43:35] Speaker 00:
And the answer to that is no, based on figure nine in the teachings in 1312 to 1313.

[00:43:40] Speaker 00:
And importantly, the board has

[00:43:42] Speaker 00:
No contrary finding, really.

[00:43:44] Speaker 00:
They have no basis to support their decision.

[00:43:47] Speaker 00:
They have two things.

[00:43:48] Speaker 00:
One is the request satisfied error, which Judge Chen rightly pointed out doesn't work, and we've briefed that in detail.

[00:43:54] Speaker 00:
The other is they rely on two sections of DOCSIS 1.0, 6.4.1.1.1 and .1.1.5.

[00:44:03] Speaker 00:
Neither of those has anything to do with this transition issue.

[00:44:05] Speaker 00:
We explained that in our opening brief, and it was not disputed or contested in the response brief.

[00:44:12] Speaker 03:
The expert testimony that your friend on the other side relied on, is it your view that it doesn't say what your friend said it says or that it says it, but it's so conclusory that it can't support anything?

[00:44:26] Speaker 00:
Well, it is the latter because he does make a statement about when he contends these transitions happen, but there's no basis for the statement.

[00:44:33] Speaker 00:
And certainly in one iteration, there's no explanation.

[00:44:37] Speaker 00:
And it's just a mere statement.

[00:44:39] Speaker 00:
And in the second iteration, it has to do with the handshaking.

[00:44:42] Speaker 00:
And there's, again, no explanation of how you get from handshake to equals bandwidth grant.

[00:44:48] Speaker 00:
That does not logically follow.

[00:44:50] Speaker 00:
Handshakes don't require bandwidth grants, and there's no demonstration in their evidence to the contrary.

[00:44:56] Speaker 00:
So it is.

[00:44:58] Speaker 03:
Is the handshake something like that screeching noise on a fax machine that says I'm listening or something?

[00:45:03] Speaker 03:
Or what is the handshake?

[00:45:05] Speaker 00:
That might be one way to think of it.

[00:45:07] Speaker 00:
The handshake is a communication between the client and the base station that is a sort of authentication.

[00:45:13] Speaker 00:
And one thing that's really important to keep in mind.

[00:45:15] Speaker 03:
Is there any other material in the record to explain that a handshake is not the same as a grant?

[00:45:20] Speaker 03:
of the bandwidth to start submitting data?

[00:45:25] Speaker 00:
Frankly, Your Honor, this was not an issue that was briefed.

[00:45:28] Speaker 00:
And so it's not in my memory what exists in the record on that point.

[00:45:32] Speaker 00:
But I will say that it's important on this issue to recognize the distinction between control channel communications and data channel communications.

[00:45:40] Speaker 00:
And these claims, as we have said in our briefing, are all about what happens with respect to data and payload data.

[00:45:46] Speaker 00:
There can be control channel communications and grants of control channel communications, and that might be a part of what happens with a handshake, but that doesn't demonstrate the existence of a bandwidth grant on the data channel, which is what we're talking about.

[00:46:03] Speaker 03:
Okay.

[00:46:03] Speaker 03:
I will thank you then for your argument, and thanks to all counsel, and say the case is submitted.