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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:12] Speaker 01:
Good morning.

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I call up the first case for argument today, which is 19-2215 Godot-Kesha IP Bridge 1 versus TCL Communications Technology.

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Mr. Nielsen, whenever you're ready.

[00:00:30] Speaker 00:
Yes, your honor.

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Good morning and may it please the court.

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Much of the briefing in this appeal has centered on two legal principles that before I got involved in this case, I was thought to be due.

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This court recognized a relatively narrow exception to the subtle rule of how one proves literal infringement in a patent case.

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It held that if the district court construes the claims and finds the reach of the claims includes any device that practices a standard, then this can be sufficient for a finding of infringement.

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And this was its express holding.

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So that's an exacting threshold that must be met for this alternative to the general rule for proving literal infringement to be available.

[00:01:09] Speaker 01:
But counsel, don't we need to read that language in Fujitsu?

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In context, I mean, it was considering a summary judgment conclusion, was it not?

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Well, Your Honor, if one actually looks at the decisions of the district court, the context is completely consistent with the language of Fujitsu's holdings.

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There was what the district court described as a first summary judgment ruling.

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in which it invited the plaintiffs, Phillips, Elgie, and Fujitsu, to prove that their patents, in fact, were standard essential in the way Fujitsu complicated, that they were necessary to be practiced.

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And the court expressly said that this was a matter where there were no pertinent facts except for the language used in the standards and the patents.

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The only dispute was how the pertinent language should be interpreted.

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In other words, it was a claim construction exercise.

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And the Supreme Court in Teva said, even when a claim construction involves subsidiary issues or underlying issues of fact, it's still exclusively for the court.

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It's not for the jury.

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Let me just follow up on that, sir.

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The language you get through that I have, the language I've taken out is saying,

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When an accused product operates in accordance with the standard, then comparing the claim to that standard is the same as comparing the claim to the accused product.

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Now, we all know it's unquestionably the jury's duty to compare the claim to the accused product.

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So why does it necessarily follow that it's also the jury's duty to compare the claim to a standard?

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considering Fujitsu instructs us that the two inquiries are the same.

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Well, because Fujitsu makes clear that it's not just enough that a patent has portions or limitations that reflect a standard.

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It has to be shown that only in situations where a patent covers, in other words, its coverage, its scope, every possible implementation of a standard, will it be enough to prove infringement by showing standard compliance.

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making a showing or a representation, but the result would be different if Fujitsu were not applied.

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You're just saying that as a matter of law, the fact that there was an instruction relying on Fujitsu that that ends it?

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No.

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In fact, Your Honor, we very expressly argue that once Fujitsu, once that analysis, which was used here as a shortcut to prove literal infringement, once one steps beyond that and tries to look at the actual evidence, then there was not sufficient evidence of literal infringement.

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With respect to the first patent, there is a limitation in that patent, the 239 patent, that's not present in the standard.

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and that is not required to be practiced.

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That's where you encounter the question of what was before the jury and whether it was pointed out to the jury that the evidence was inadequate or balanced or whatever else might have diminished its probative value.

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So would you touch on the jury role, please?

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With respect to the 239 patent, the one that I was just discussing, it was TCL's primary argument and really almost its sole argument that this particular requirement in the claim

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was not present in the standard and was not practiced in the source code.

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We moved for summary judgment on that basis, we argued at trial, and we argued it in JMAW.

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But what IPBridge maintained was that requirement was superfluous.

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You didn't need to do it.

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It was like checking the other side of a coin once you flipped it.

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But the problem is,

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that the claim originally had just a single set of checks.

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And this second conditional check, the final requirement in the claim to determine whether to send this CQI report with data, was added at the insistence of the examiner.

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The examiner said,

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Prior Art, the Shen reference, already discloses sending a CQI report by itself after checking these three conditions.

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But you didn't bring up prosecution history issues at the claim construction stage, did you?

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No, because it was our position, Your Honor, that this is the express language of the claim.

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We're not imposing an interpretation on the claim.

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We're saying this is an express element of the claim and the plain language of the claim does not read on the accused product.

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Well, if you're needing to rely on prosecution history to understand the claim, that is quintessential claim construction, is it not?

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I would disagree, Your Honor, in this instance.

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In this instance, we're saying to, we said to the judge and the jury, you cannot disregard an express element of the claim that was added.

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It must mean something, excuse me.

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And so we're not asking the court or the jury, and certainly not the jury, to interpret the claim.

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We're saying apply the language of the claim and if you do, there can be no infringement because in fact, IPBridge and its expert Dr. Min relied on precisely the same source code to prove the first affirmative check

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on which it relied to prove the second check.

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So you're asking us, counsel, to conclude that no reasonable jury could reach the conclusion that that limitation was not essential to the claim?

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Well, as a matter of law, the limitation is essential to the claim.

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We're asking this court to agree with us that there was no evidence that the limitation actually was found in the accused products, because there was none.

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But as a matter of law, each element of a claim is essential.

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So with respect to the second patent, the 538 patent, if the court agrees with TCL that this Fujitsu theory of literal infringement was wrong, and let me just step back.

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There's some suggestion that this Fujitsu is not the only authority on which IP bridge is relying.

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And then there's some citations to Erickson, JVC, Broadcom, Dynacor, but none of these cases ever upheld a determination of infringement based on evidence that the asserted patent was standard essential and the product complied with the standard.

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None of them did.

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Infringement was only upheld in Erickson and it was based on actual evidence of how the products worked when tested.

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And Erickson said, to prove literal infringement, the patentee must show that the accused products

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contained each and every limitation of the asserted claims.

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So moving to the 538 patent, if the court agrees with us that Fujitsu didn't apply here because the court never made the required threshold determination as a matter of claim construction, that the patents were necessary to implement the standard, then if you look at the other evidence, the actual evidence of how the products work, it was insufficient to prove infringement.

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Claim 14 requires selecting an orthogonal sequence from a plurality of orthogonal sequences.

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And Dr. Min, IPBridge's expert, never ever took two sequences of code and showed that they were orthogonal to each other.

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He didn't even try to do that.

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The only source code identified by IPREBridge for selecting among the plurality of orthogonal sequences is on page 41 of our brief.

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And the first three lines, which have the two slash marks in front of them, are not source code.

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They're comments.

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Dr. Mint's entire testimony on this issue, which IP Bridge now says was the real issue for the jury, is on two pages of the appendix, 13175 and 76.

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And in those pages, Dr. Mint doesn't even discuss or explain the source code.

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He just talks about the numbers in the comments and says, well, the code does exactly what the comments say.

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But here, the key testimony was from the Qualcomm engineers themselves.

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And the Qualcomm engineer who actually wrote this code, who was responsible for testifying, he said that the code doesn't do what the comments say, that they can't be mapped to one another, that there's no correspondence between them.

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But there is expert testimony to the contrary, is there not?

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So I have just pointed you to the only testimony from Dr. Min on his direct, two pages, where he doesn't even discuss the code on redirect.

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And this is at page 13191.

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There are two lines of testimony in which Dr. Min agrees with this.

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Yes, it's appendix 13191, two lines of testimony on redirect.

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when Dr. Min agrees with his counsel that you could substitute certain values in the code to match up with a one and a negative one.

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But he actually gets the reverse of what's in the standard.

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So even there he wasn't consistent.

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And that's it.

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Two lines of testimony.

[00:11:01] Speaker 01:
But didn't Dr. Wicker agree that the devices wouldn't work if they didn't actually use the plus one, minus one sequence?

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No, what Dr. Wicker said is, if this is the code, there must be something else.

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So that inoperability opinion, that assertion, depends upon IP bridge having found the correct code or found the only code involved in this process of reducing interference between these two kinds of signals.

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But Dr. Ricker is saying it's possible and likely that elsewhere in the code there's a mapping that goes along to keep this process working.

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But that's not literal infringement.

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That's not what's required by the claim and it's not what was identified by IPBridge as proof of infringement.

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Whether there is some way to achieve the same function by mapping this code to some other code is a question of equivalence, which wasn't ever even asserted in this case.

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So, unless there are further questions on the infringement issue, let me just discuss briefly the ongoing royalty issues because I believe that I'm approaching the time for rebuttal.

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If the court agrees with us that IP Bridge's Fujitsu theory was wrong as a matter of law, but it somehow determines that there was some evidence of sufficient evidence of literal infringement for one of these two patents, then the ongoing royalty award for non-accused products must be eliminated.

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It must be reversed.

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Assume for the moment that we don't agree with your reading of Fujitsu.

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But one of the questions I have for you about the ongoing royalties is the, well, there are two different arguments you make.

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One is about eBay, but the other is that it should not cover non-accused products.

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And this may be, excuse my ignorance if I don't completely understand, but the language the court used was any TCL product capable of connecting to an LTE network.

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Is it possible that a product could connect to an LTE network and still not practice the standard?

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Well, we in fact know that for the reasons that I just discussed with respect to the 538 patent,

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that Qualcomm engineers didn't base the code, didn't base how their processors work on the standard.

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They didn't read the standard when they coded.

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They didn't design it.

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But you didn't really answer my question.

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Assuming the standard is what it is, forget about whether they read it or when they coded.

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Is it possible to connect to an LTE network without practicing the standard?

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Well, for the reasons that I just was describing with respect to the 538 patent, it apparently was.

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The particular portion of the LTE standard that was relied on was not demonstrated to be present in the accused product.

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But if one assumes... Okay, so you're saying your products do not practice the standard?

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None of your products?

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The vast majority of the standard is practiced by the process.

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They are LT compliant in almost every respect.

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But the proof here did not show these specific patents were literally in print.

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That said, the real mischief in the court's ongoing royalty award is that TIBO requires an analysis of the colorable differences, the modified elements of the newly accused product against the asserted claim.

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And these are accused products that, in large part, don't even exist.

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So there was no analysis of the differences between any of these potential accused products.

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Potentially, they could have different source code, different baseband processors, different manufacturers.

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But they're already subject to the court's ongoing royalties.

[00:15:29] Speaker 01:
Well, is there a difference between saying any TCL product capable of connecting to an LTE network and saying,

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any product that is not different in kind from the accused products.

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Well, I think that this court is not colorably different.

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I think this court

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requirement in TIVA requires more than broad and sort of generalized assertions of similarity between products for them to be subject to what is essentially an... Well, the not colorably different language has been endorsed by us repeatedly.

[00:16:08] Speaker 01:
Yeah.

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My question to you is there a difference between not colorably different and capable of connecting to an LTE network?

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And I don't mean to misunderstand, Your Honor.

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To the extent that one accepts the premise that the district court did in its post-trial order that every product that connects to an LTE network infringes these patents, then there is not a real difference.

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There would be no powerful difference.

[00:16:41] Speaker 01:
You're still not answering my question.

[00:16:43] Speaker 01:
I'm sorry, Your Honor.

[00:16:45] Speaker 01:
All right, go on.

[00:16:47] Speaker 00:
Yes, let me take one more stab at it before I go further into my rebuttal time.

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If these products are in fact necessary, as the district court concluded after the jury's verdict, to connect to LTE networks, then there would be no colorable differences between them and other LTE compliant products.

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They would all be the same in that respect.

[00:17:16] Speaker 00:
Okay, that answer.

[00:17:18] Speaker 01:
Yeah.

[00:17:20] Speaker 01:
Why don't we reserve the remainder of your rebuttal for him over here from the other side.

[00:17:25] Speaker 00:
Thank you.

[00:17:26] Speaker 01:
Thank you.

[00:17:30] Speaker 03:
Thank you, Adam.

[00:17:31] Speaker 03:
It's the court.

[00:17:33] Speaker 03:
My name is Kevin post.

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I represent plaintiff.

[00:17:35] Speaker 03:
I really go to Keisha.

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I keep bridge one in this case.

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I'd like to

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To be sure to answer, Judge O'Malley, your question about connection, but before I talk about the ongoing royalty portion of the court's decision, I would like to return to the infringement question and make a few comments in particular.

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Well, can I interrupt for a moment just to make sure this is included in your comments, which is that you can give us any other transcript sites than your friend did with regard to the testimony that are

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less conclusory or more fulsome with regard to Dr. Mintz and Ricker?

[00:18:13] Speaker 03:
Certainly, Your Honor.

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So obviously, this is a case about standard essential patents and standards-based infringement proof.

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And TCL referred to another case that's important in this regard, and that is the Erickson decision.

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And I do want to clarify one point that counsel made.

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In that case,

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There was precisely the type of consideration that we had here by the jury of standards-based evidence and evidence of compliance.

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And I would direct the court to the site of 773 Fed 3rd, 1221, where the court, this court was discussing that evidence.

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In other words, it was evidence that the claims covered mandatory portions of their, the 802.11 standard.

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And that the product complied with that standard.

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And the court said that this is precisely the type of factual dispute that the jury should be resolving at 1221.

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That's what happened here.

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The jury was presented with substantial evidence in the form of expert testimony from Dr. Min as to step one.

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He testified how each claim element was present in the standard.

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He walked through the standard in great detail.

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He showed the jury the drafting instructions of the standard, which say when the standard uses these words like is and shall, that's mandatory.

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That means you must do these things.

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They are not optional.

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And he testified, expressed that there's no way to implement the LTE standard without practicing each of these claims.

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And that all of that testimony and evidentiary support is summarized in the red brief at pages 11 to 12.

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In response to that,

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TCL's expert, Dr. Wicker, testified simply that he didn't address those questions.

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He had no opinion in response to Dr. Min.

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And that appears in the appendix at page 13300.

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As to step two, again, Dr. Min.

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I'm saying that he said that he had no opinion regarding what?

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Regarding essentiality?

[00:20:16] Speaker 03:
That's correct, your honor.

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He had no opinion in response to what Dr. Minn had said is clear evidence of the mandatory nature of the claims.

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He understood his argument.

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He just didn't respond.

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And he did the same with respect to step two.

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Again, where Dr. Minn stepped through and showed compliance by TCL's LT products of the compliance matrices.

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He showed compliance reports.

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He showed TCL user manuals saying these are LTE devices.

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This is what the device will do when it's connected to and on an LTE network.

[00:20:49] Speaker 02:
Okay, perhaps he actually foresaw that there was a missing step, perhaps a step too much, that anything that meets the standard, no matter how different, no matter how creative, no matter how technologically changed,

[00:21:06] Speaker 02:
and nonetheless infringes, perhaps that's a position that he wasn't quite ready to adopt, and in a sense that's what's being presented to us, is it not, that there's a step that for infringement does

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have to be performed and in Fujitsu on the technology of that case didn't present an issue.

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Here we're told that there are differences and that there is an issue.

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Do you share the view that Fujitsu in principle is wrong and should be repealed somehow or shouldn't apply?

[00:21:49] Speaker 02:
Or what do we make of these?

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How to apply these apparently somewhat different facts to the precedent that we have?

[00:22:00] Speaker 03:
Certainly, Your Honor.

[00:22:01] Speaker 03:
Absolutely not.

[00:22:02] Speaker 03:
Do we disagree with Fujitsu?

[00:22:04] Speaker 03:
We think that that's

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absolutely a correct statement, it's good public policy as that case acknowledges to have, if you have identically operating products that practice a mandatory portion of the standard, absolutely, you should be able to use the standard to show infringement.

[00:22:21] Speaker 02:
That's what we're- You're if identically operating, that's entirely the question, is it not?

[00:22:27] Speaker 02:
That these are different.

[00:22:29] Speaker 03:
Absolutely, the question of identically operating.

[00:22:32] Speaker 03:
Again, the

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Dr. Wicker, TCL has never disputed that its products are LTE compliant.

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Again, they have compliance matrices.

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They advertise to their customers that these are LTE devices.

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Its own expert never addressed the question of compliance, had no opinion.

[00:22:50] Speaker 03:
Again, that's a 13300.

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And that's important because Dr. Wicker admitted, both in deposition and in trial, that this is one way, that showing that claims cover

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mandatory functionality of the standard and that the products comply.

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But that's one way to show infringement.

[00:23:05] Speaker 03:
He said that in Appendix 13.299.

[00:23:07] Speaker 03:
So he understood the test and he did not respond to Dr. Mint's extensive opinion.

[00:23:15] Speaker 03:
No mystery what IP Bridge's infringement proof was going to be.

[00:23:19] Speaker 03:
It had been their theory all along.

[00:23:22] Speaker 03:
Originally, at summary judgment, TCL's position was you can't look at the standard.

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The only thing that matters is source code.

[00:23:28] Speaker 03:
Set aside Fujitsu.

[00:23:30] Speaker 03:
Now, it's more nuanced.

[00:23:33] Speaker 03:
If you invoke Fujitsu, you have to have the court, as part of claim construction, consider a mountain of extrinsic evidence and somehow construe the claims to cover the standard.

[00:23:43] Speaker 03:
But that didn't happen in Fujitsu, as the panel noticed earlier.

[00:23:48] Speaker 03:
That was a descriptive statement of that case, reflective of its procedural posture.

[00:23:52] Speaker 03:
It wasn't a prescriptive rule that must be followed in every case.

[00:23:57] Speaker 03:
It hasn't been.

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It wasn't what the court in the Erickson case did.

[00:24:00] Speaker 03:
There was no essentiality hearing that the judge performed.

[00:24:03] Speaker 03:
That factual inquiry of what does the standard describe, that was part of the infringement analysis.

[00:24:09] Speaker 03:
The jury performed in that case.

[00:24:11] Speaker 03:
That's what the jury did here as well.

[00:24:13] Speaker 03:
And that unrebutted expert testimony from IPBridge is absolutely substantial evidence supporting the infringement verdict here.

[00:24:25] Speaker 03:
I'd like to answer, Judge Amali, your question about whether connection, what the evidence in the record about connection in terms of the ongoing royalty is.

[00:24:36] Speaker 03:
And there are several different references to connection, one of which, in fact, is an undisputed fact.

[00:24:42] Speaker 03:
And this appears at Appendix 13.147.

[00:24:46] Speaker 03:
And the fact, this was read to the jury, is, quote, each of the accused products is capable of connecting to an LTE network in the United States.

[00:24:55] Speaker 03:
Dr. Min also testified at Appendix 13-160 that connection to the network, you must use the technology that you can't connect without being compliant.

[00:25:06] Speaker 03:
He also testified at Appendix 13-176.

[00:25:10] Speaker 03:
And again, Dr. Whitger at Appendix 13-303 admitted that he was unaware of any LTE base station that could receive a signal.

[00:25:20] Speaker 03:
And this is in reference to the 538 pattern, these orthogonal codes.

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that was spread using anything other than the code in the table.

[00:25:28] Speaker 03:
The base station, it knows what it needs to receive.

[00:25:30] Speaker 03:
It needs to receive orthogonal sequences.

[00:25:33] Speaker 03:
And those sequences are the ones that are in the standard.

[00:25:37] Speaker 03:
The standard calls them orthogonal sequences in the table.

[00:25:42] Speaker 03:
And those, of course, appear on page 41 of the blue brief that was careful about confidentiality.

[00:25:52] Speaker 03:
But it appears there as well.

[00:25:53] Speaker 03:
And we know that the devices work in the system.

[00:25:57] Speaker 03:
At trial, when TCL presented their theory of what the devices are actually storing, what you've heard today, they started and used some of that in the opening statement.

[00:26:08] Speaker 03:
And Dr. Minn addressed specifically that argument and said, if these devices are doing what TCL tells you they're doing, they won't work.

[00:26:16] Speaker 03:
The system simply cannot

[00:26:19] Speaker 03:
Steve, those signals.

[00:26:21] Speaker 03:
Dr. Min testified that that way at appendix 13176.

[00:26:28] Speaker 03:
Later when TCL raised that same argument, the stone expert, Dr. Wicker, they actually removed a piece of that argument.

[00:26:35] Speaker 03:
They had presented three sequences, one of which was all zeros.

[00:26:39] Speaker 03:
That disappeared.

[00:26:40] Speaker 03:
from Dr. Wicker's testimony.

[00:26:41] Speaker 03:
He only talked about other ones.

[00:26:43] Speaker 03:
And we never saw that piece again, because Dr. Min had shown that if these devices were doing what they're now saying they do, a third of the time, they'd never work.

[00:26:54] Speaker 03:
And that's obviously not what we see.

[00:26:56] Speaker 03:
So what we know from the standard is you must do this spreading operation this way.

[00:27:01] Speaker 03:
The standard dictates precisely how that is.

[00:27:04] Speaker 03:
The products are indisputably compliant with the LT standard.

[00:27:08] Speaker 03:
Dr. Wicker doesn't dispute it.

[00:27:09] Speaker 03:
TCL has still never excused it.

[00:27:12] Speaker 01:
And we know that your answer then to my question about whether or not that capable of connecting and not colorably different are essentially two different ways to say the same thing is your answer to that question would be yes.

[00:27:29] Speaker 03:
Absolutely, Your Honor, yes.

[00:27:30] Speaker 03:
That here for this technology, for these standards, and for this evidence and compliance, connection to the LTE network

[00:27:38] Speaker 03:
shows not that it's just not color every different, they're the same.

[00:27:41] Speaker 03:
They may be different suppliers, there may be different firmware that is used on these devices, but they must practice this technology this way.

[00:27:50] Speaker 03:
The standard tells them that, and they do that, and they're compliant.

[00:27:53] Speaker 03:
So it really is that they are identical, not just not colorably different in this case.

[00:28:03] Speaker 03:
I'd like to touch on one point that council raised

[00:28:07] Speaker 03:
Going back to the question of infringement on the 239 patent, this is the one where the council is referring to the second set of checks.

[00:28:16] Speaker 03:
This was not a, there was no claim construction dispute about a second set of checks that was raised by TCL during Markman.

[00:28:24] Speaker 03:
Dr. Min did testify that there is no second set of checks.

[00:28:28] Speaker 03:
What the claims are directed to are transmissions, not checks.

[00:28:32] Speaker 03:
And if, direct your attention to page 7 of the red brief

[00:28:36] Speaker 03:
where the claim language is laid out.

[00:28:38] Speaker 03:
And we've annotated there where the checks are in the claims.

[00:28:43] Speaker 03:
And what you'll see when you look at those is that they are the same.

[00:28:49] Speaker 03:
And there are two elements here, one of which the first one is a circumstance where if conditions are such that say the channel is bad or it's low quality, or you only have a small amount of channel with which to send data,

[00:29:06] Speaker 03:
The device should transmit just this little bit of information about the channel quality.

[00:29:10] Speaker 03:
It should send only a channel quality report or a CQI report.

[00:29:15] Speaker 03:
But if the channel is better or it has more space, it can send that CQI report along with data.

[00:29:22] Speaker 03:
And that's the element that was added during prosecution after an interview with the examiner.

[00:29:29] Speaker 03:
This was something that wasn't called out in the priority record.

[00:29:33] Speaker 03:
It was added

[00:29:34] Speaker 03:
It changed the scope of the claim for sure, but what you see is that the checks that are used to determine whether I'm in this CQI only mode, I'm going to send transmission one, or I'm in the mode of I'm going to send CQI and data.

[00:29:49] Speaker 03:
Those checks are the same.

[00:29:50] Speaker 03:
The first is whether the device is even supposed to send CQI.

[00:29:55] Speaker 03:
It's a single set.

[00:29:56] Speaker 03:
That's check one.

[00:29:58] Speaker 03:
Check two is the same.

[00:29:59] Speaker 03:
What is the value of the MCS index?

[00:30:01] Speaker 03:
The value that says I send CQI only or is it a different value?

[00:30:06] Speaker 03:
Again, these are what Dr. Min described as the opposite sides of the same check.

[00:30:12] Speaker 03:
You either get one result or the other.

[00:30:14] Speaker 03:
It's like a coin flip.

[00:30:15] Speaker 03:
That's when he told the jury at Appendix 13165.

[00:30:19] Speaker 03:
But those first two checks are the same.

[00:30:22] Speaker 03:
The result is absolutely different, but the check is the same.

[00:30:24] Speaker 03:
And it's also true of the third where the device is looking at the number

[00:30:28] Speaker 03:
resource blocks that are allocated to it.

[00:30:30] Speaker 03:
Is it less than a threshold, or is it greater than the threshold?

[00:30:34] Speaker 03:
Both sides of that coin.

[00:30:36] Speaker 03:
So absolutely, there are three checks.

[00:30:38] Speaker 03:
There are always three checks in the claims.

[00:30:40] Speaker 03:
Those are the checks that Dr. Min testified about.

[00:30:43] Speaker 03:
The amendment to the claim didn't add another set of checks.

[00:30:47] Speaker 03:
What it set forth is a different transmission, that if you end up with a different result on those checks, then you send CQI and data.

[00:30:56] Speaker 03:
That was not disclosed

[00:30:57] Speaker 03:
in the Shannon reference, it was added and the claim issued.

[00:31:00] Speaker 03:
So this is probably why this wasn't a disputed issue with claim construction.

[00:31:05] Speaker 03:
The claim is clear.

[00:31:06] Speaker 03:
Dr. Min testified about the claim, showed the jury why the claim is infringed, why the standards set forth this requirement, why the products are compliant.

[00:31:16] Speaker 03:
And again, that is substantial evidence here.

[00:31:23] Speaker 01:
I'll ask my colleagues if they have anything further.

[00:31:27] Speaker 02:
Now, well, just to be sure that I understand your argument, it's that even if Fujitsu was being stretched or strained, there was enough evidence of a direct relationship between the claims and the accused devices so that this interim question was not controlling.

[00:31:54] Speaker 02:
Is that a position you're taking?

[00:31:59] Speaker 03:
Your Honor, that's correct.

[00:32:01] Speaker 03:
If this court believes that there needs to be a judicial determination of step one, if it takes it away from that fact question away from the jury, that there is evidence here, sufficient evidence to sustain the verdict.

[00:32:14] Speaker 03:
And in fact, I would point you to the court's own determination in the context of ongoing royalty.

[00:32:21] Speaker 03:
The court evaluated there, we talked about what

[00:32:24] Speaker 03:
that here there's no difference in fact between connection and no culpable differences between the devices.

[00:32:29] Speaker 03:
The court evaluated that evidence and determined that there was sufficient proof of the mandatory nature of the claims and the compliance to utilize that very same test in establishing the ongoing royalty.

[00:32:42] Speaker 03:
So even if that is a requirement that this court believes must be met, it was met here.

[00:32:49] Speaker 03:
And Your Honor, there's no further questions.

[00:32:52] Speaker 03:
Thank you.

[00:32:53] Speaker 03:
I thank you for your time.

[00:32:54] Speaker 03:
Thank you.

[00:32:58] Speaker 01:
We'll restore your original four minutes because you've got a number of questions.

[00:33:03] Speaker 00:
Thank you, Your Honor.

[00:33:04] Speaker 00:
So I just want to go through some of the points that opposing counsel made with respect to the Erickson case.

[00:33:13] Speaker 00:
The Erickson case only upheld one finding of infringement by the trial court.

[00:33:20] Speaker 00:
And that was based on testing.

[00:33:22] Speaker 00:
That's a 12-15 and 12-16 of that decision.

[00:33:25] Speaker 00:
It was based on tests that showed the accused devices could practice this functionality.

[00:33:32] Speaker 00:
The language that was quoted by opposing counsel had to do with a separate patent.

[00:33:37] Speaker 00:
And there was evidence presented by the defendant that it only provided one kind of feedback response.

[00:33:46] Speaker 00:
And so that was sufficient evidence

[00:33:49] Speaker 00:
for the Federal Circuit, and it was from the defendant, for there to be a finding of potential infringement.

[00:33:56] Speaker 00:
So again, it was reliant, that's 12-20, 12-21, actual evidence.

[00:34:01] Speaker 00:
And Erickson said, to prove literal infringement, a patentee must show that the accused device contains each and every limitation, he heard it claim.

[00:34:11] Speaker 00:
With respect to Dr. Wicker, Dr. Wicker

[00:34:15] Speaker 00:
with respect to LTE essentiality, he stated if it is indeed mandatory, then the device would need to practice that portion.

[00:34:29] Speaker 00:
And he explained, and this is at 13308, you can't just assume the premise.

[00:34:35] Speaker 00:
You have to show that those are in fact the case.

[00:34:39] Speaker 00:
So with respect to Dr. Min, I don't believe opposing counsel answered the question that was asked at the outset, which is, is it true that Dr. Min's analysis with respect to the 538 patent was confined to those three pages of the appendix?

[00:34:58] Speaker 00:
Again, 13175 to 76, 13191.

[00:35:03] Speaker 00:
And that's because they were.

[00:35:05] Speaker 00:
That's the entirety of his analysis.

[00:35:07] Speaker 00:
of the source code.

[00:35:09] Speaker 00:
And the first portion is not an analysis of the source code at all, and the second is just a conclusory assertion.

[00:35:16] Speaker 00:
And with respect to his statement, which is in the same pages of the appendix, that the devices wouldn't work if they didn't perform exactly literally in the way claimed in the 538 patent, there is no explanation of that opinion.

[00:35:32] Speaker 00:
It's just an ipsidicit assertion.

[00:35:35] Speaker 00:
and we know in fact that the devices do work, they did it, they do it in a different way, but the source code that is on page 41, the values on the right hand side, they're not orthogonal as a matter of mathematics and we haven't heard yet how they could be.

[00:35:53] Speaker 00:
With respect to the 239 patent, there's just, there's an assertion

[00:35:59] Speaker 00:
Uh, in the briefing, I believe the opposing council just mentioned it that, well, there are, there are checks, but it's a single set of checks and what was added by this amendment, which requires a check to see whether the MCS index is not a determined value.

[00:36:16] Speaker 00:
Check whether the number of resource blocks is not less than or equal to a number and to see whether that trigger that is set.

[00:36:24] Speaker 00:
Those are specific cases as described in the past.

[00:36:30] Speaker 00:
What was suggested is all that was really added was sending the report with data, the transmission.

[00:36:38] Speaker 00:
But the admitted prior art in this patent itself, this is a, as I said, column eight, line 39 to 44 of the 239 patent, discloses transmitting an aperiodic CQI report in multiplex mode.

[00:36:56] Speaker 00:
And that's what the examiner cited when he required this amendment.

[00:37:00] Speaker 00:
So it has to be more than just sending the report mixed with data.

[00:37:06] Speaker 00:
These checks have to mean something.

[00:37:09] Speaker 00:
And if they do, there was no infringement proven because IP bridge relied on exactly the same source code to prove both sets of checks.

[00:37:19] Speaker 00:
There is a suggestion, I believe, that we didn't really confront Fujitsu or TCL didn't confront it until trial.

[00:37:29] Speaker 00:
But at summary judgment, we made the same points that we've been making through trial and on appeal, which is Fujitsu doesn't apply here because the district court didn't make the threshold determination that as a matter of claim construction,

[00:37:47] Speaker 00:
The claims cover, their reach includes every device that practices a standard.

[00:37:53] Speaker 00:
Now, why is this such an exacting standard?

[00:37:56] Speaker 00:
Because if we allow, if this occurs, then potential defendants and manufacturers not even involved in the case are implicated.

[00:38:08] Speaker 00:
And I think Fujitsu recognized that.

[00:38:11] Speaker 00:
And that's exactly why it is required for the court to determine, rather than for a jury to be led by bedrock facts to conclude that any product that complies with the standards must infringe a patent that's been declared standards central.

[00:38:28] Speaker 01:
But didn't your own expert say that he knows of no device that works without practicing the standard?

[00:38:38] Speaker 00:
So I'm not sure what admission is being referenced there.

[00:38:42] Speaker 00:
Professor Wicker certainly or Dr. Wicker certainly did say that he didn't analyze the sensuality because he was conducting an infringement analysis comparing the claims to the accused product.

[00:38:57] Speaker 00:
I believe he did testify that he wasn't aware of source code that didn't match

[00:39:06] Speaker 00:
the claim, but that's a negative.

[00:39:09] Speaker 00:
He has not been shown any source code other than the source code that Dr. Min himself had identified.

[00:39:16] Speaker 00:
And Dr. Wicker said the source code that I.T.

[00:39:19] Speaker 00:
Bridge has identified does not match the claim's requirement with respect to the 538 patent.

[00:39:25] Speaker 00:
He also testified that the 239 patent is not standard essential.

[00:39:30] Speaker 01:
So the language I'm looking at is

[00:39:35] Speaker 01:
13303 and it relates to the, um, the five three.

[00:39:41] Speaker 00:
Yes.

[00:39:42] Speaker 00:
And I'm looking at that language.

[00:39:44] Speaker 00:
He says that at some point there is a mapping.

[00:39:47] Speaker 00:
This is a 1303 that occurs that could occur, but it's a mapping that I have not seen.

[00:39:54] Speaker 00:
And I have not seen any evidence that it exists other than we're storing two values different than the standard.

[00:40:04] Speaker 01:
Okay, I think I heard the tone.

[00:40:06] Speaker 01:
Did you?

[00:40:06] Speaker 00:
I didn't, but I wouldn't be surprised.

[00:40:12] Speaker 01:
Okay.

[00:40:13] Speaker 01:
Well, let's conclude the therefore on that note.

[00:40:17] Speaker 01:
Thank you very much, Your Honor.

[00:40:19] Speaker 01:
And the case is submitted.

[00:40:21] Speaker 01:
Thank you, Your Honor.

[00:40:22] Speaker 01:
Thank you.