[00:00:00] Speaker 03: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:07] Speaker 03: God save the United States and this honorable court. [00:00:14] Speaker 02: Good morning. [00:00:15] Speaker 02: We have three cases set for oral argument this morning. [00:00:20] Speaker 02: Our first case is CommScope Technologies LLC versus Dally Wireless, Inc., number 20-1817. [00:00:30] Speaker 02: Mr. Kaspers, you reserved five minutes of time for rebuttal. [00:00:36] Speaker 02: Is that correct? [00:00:37] Speaker 02: That's correct. [00:00:38] Speaker 02: Thank you. [00:00:40] Speaker 02: And Mr. Davis, you reserved three on the cross appeal. [00:00:44] Speaker 00: Yes, Your Honor. [00:00:45] Speaker 02: OK. [00:00:46] Speaker 02: We're all set to begin. [00:00:48] Speaker 02: Mr. Kaspers, you may start, please. [00:00:51] Speaker 03: Yes. [00:00:51] Speaker 03: May it please the court, on CommScope's appeal, I will start with Dali's 521 patent and address the issues of infringement [00:01:00] Speaker 03: and anticipation by write at the same time. [00:01:03] Speaker 03: Those issues are tied together. [00:01:05] Speaker 03: Now, recall, write is the prior art reference that, like CommScope's product, employs a selector switch that toggles between multiple power amplifiers. [00:01:18] Speaker 03: Also, recall that Dolly's 521 pattern requires a controller and that the controller be turned off. [00:01:26] Speaker 03: And here, [00:01:27] Speaker 03: is the point I want to emphasize is that Dolly takes two contradictory interpretations of that controller limitation in its response brief. [00:01:37] Speaker 03: First, at page 47, to avoid anticipation by right, Dolly says the claim requires the controller itself must be put into a non-operating state, turned off. [00:01:53] Speaker 03: Dolly said, quote, [00:01:55] Speaker 03: Claim 1 of the 5-2-1 patent requires a controller that controls a switch and places itself and the switch in a non-operating state in order to disconnect the power amplifier. [00:02:10] Speaker 01: Now... Yes. [00:02:12] Speaker 01: I have a quick question, which is... Sure. [00:02:14] Speaker 01: What is the alleged controller in Wright or in your product? [00:02:20] Speaker 01: It's not the switch, is it? [00:02:22] Speaker 01: Or is it something... That's correct. [00:02:24] Speaker 03: It's not the switch. [00:02:25] Speaker 03: It's not the switch. [00:02:26] Speaker 03: And the controller, to be clear, the controller in right is element 70 in right figure 33. [00:02:34] Speaker 03: And we pointed that out in our brief at page 42, footnote 7. [00:02:39] Speaker 03: And they had no response to that. [00:02:41] Speaker 03: So again, getting back to the two positions they took, first they took one at page 47 for anticipation, then at 44, page 44, [00:02:55] Speaker 03: Dolly argued the exact opposite when addressing infringement. [00:02:59] Speaker 03: After conceding that CommScope's controller is continuously operating on page 44 of the brief, Dolly takes the position on the same page in footnote 10 that, quote, CommScope's premise that the controller itself must be turned off is also literal nonsense, end quote. [00:03:24] Speaker 03: These are Dolly's own words. [00:03:27] Speaker 03: For anticipation, Dolly stressed, the controller itself must be turned off. [00:03:33] Speaker 03: But for infringement, Dolly stressed that requiring the controller itself be turned off is nonsense and not required. [00:03:41] Speaker 03: Look, Dolly can't have it both ways. [00:03:43] Speaker 03: The infringement should be overturned. [00:03:46] Speaker 03: Turning to the issue whether [00:03:52] Speaker 03: Bouter anticipates. [00:03:55] Speaker 03: I have one point on Bouter. [00:04:00] Speaker 03: And recall, Bouter is the reference that includes a training circuit in the loop, in the feedback loop, in precisely the same location as the controller in the 521 pattern. [00:04:15] Speaker 03: It's located at the end of the feedback loop by the lookup table that's being updated. [00:04:22] Speaker 03: Now, the point I want to emphasize is this is not a battle of the experts. [00:04:28] Speaker 03: Dolly is relying on a conclusory opinion of an expert that contradicts the express teachings of the bowder reference. [00:04:38] Speaker 03: Bowder Figure 2 has express arrows that undeniably show how the feedback signal connects to the lookup table. [00:04:48] Speaker 03: And Dolly's expert didn't provide a different interpretation of the arrows in Figure 2 or how the feedback signal connects to the lookup table. [00:04:56] Speaker 03: Dolly's expert just failed to give any explanation as to how the signal would remain connected to the lookup table when the training circuit is off. [00:05:06] Speaker 03: And to be clear, you can see Bouter Figure 2 at page 45 of CommScope's lead brief. [00:05:14] Speaker 03: We added highlighting on top of the arrows to show [00:05:19] Speaker 03: One, the feedback path, the path of the feedback signal. [00:05:24] Speaker 03: Two, the training circuit is in that path. [00:05:29] Speaker 03: And finally, the training circuit is the specific structure that connects the feedback signal to the lookup table. [00:05:37] Speaker 03: So to be clear, Dolly admitted in JMOL briefing at appendix 26108 [00:05:47] Speaker 03: that Bowder's training circuit can be switched on and off between an operating state on and a non-operating state off. [00:05:59] Speaker 03: And looking at Figure 2 and following the arrows, when the training circuit is switched off and stops operating, the feedback signal will not reach the lookup table. [00:06:11] Speaker 03: Updating of the lookup table stops. [00:06:14] Speaker 03: Again, this is not a battle of the experts. [00:06:16] Speaker 01: This is Judge Stoll again. [00:06:19] Speaker 01: I'm wondering, you know, I'm looking at the expert testimony at JA-2354. [00:06:23] Speaker 01: I mean, there's a little bit of a discussion here and talking about, you know, getting some feedback and having a transmitter and, you know, talking about how you can't disconnect the feedback path [00:06:41] Speaker 01: Why isn't that not enough for a jury? [00:06:45] Speaker 01: I mean, we are talking about a jury verant here. [00:06:48] Speaker 01: So why, that doesn't sound so conclusory to me. [00:06:54] Speaker 03: Well, if you turn off the power to the training circuit, the feedback signal can't reach the lookup table. [00:07:03] Speaker 03: You don't update. [00:07:04] Speaker 03: And more importantly, their own expert explained how [00:07:11] Speaker 03: what happens when you turn off the power in the 521 pad? [00:07:15] Speaker 03: It stops updating the lookup table. [00:07:19] Speaker 03: And the court's construction of turning off means put into a non-operating state. [00:07:29] Speaker 03: That's expressly what Bowder discloses. [00:07:34] Speaker 03: Bowder expressly discloses that you put [00:07:39] Speaker 03: the controller in a non-operating state after you completed the training phase. [00:07:46] Speaker 03: And to be clear, it has to go ahead. [00:07:51] Speaker 02: Why do you say that if you're in this non-operative state that the, for example, that the FWP is no longer transmitting a signal? [00:08:04] Speaker 03: Well, it's got no power. [00:08:06] Speaker 03: It's non-operating. [00:08:07] Speaker 03: It has no power. [00:08:09] Speaker 03: I mean, that's one of the advantages of turning it off, is you conserve power. [00:08:15] Speaker 03: And both Bouter and the 521 discuss that advantage. [00:08:22] Speaker 03: So here's the way I look at it. [00:08:28] Speaker 02: It's... Turning off this thing doesn't necessarily mean that you've turned off the entire PA. [00:08:36] Speaker 02: Is that what you're saying? [00:08:37] Speaker 03: Well, you're not turning off. [00:08:38] Speaker 03: Yeah, the point is you're disconnecting the feedback signal from the lookup table. [00:08:43] Speaker 03: That's what the 521 patent discloses. [00:08:46] Speaker 03: And it's the controller that disconnects the feedback signal from the lookup table in the 521 patent. [00:08:52] Speaker 03: And in Bouter, it's the training circuit that disconnects the signal from the lookup table. [00:09:00] Speaker 02: So the controller, when you switch it off, it disconnects a single that's representative of the output. [00:09:05] Speaker 02: of the PA, right? [00:09:07] Speaker 02: That's exactly right. [00:09:09] Speaker 02: OK, doesn't require switching off the entire signal from the PA. [00:09:14] Speaker 02: That's right. [00:09:17] Speaker 03: So let me turn to the DALY's 473 patent. [00:09:26] Speaker 03: Recall that the asserted claims require the host to transmit different subsets to second. [00:09:36] Speaker 03: to transmit different subsets to different remotes. [00:09:40] Speaker 03: And CommScope's brief at 74, page 74, challenged DALI to identify any disclosure in the specification that supports the ordinary meaning of host to transmit different subsets to different remotes, as illustrated, for example, in concept B in our briefs. [00:10:00] Speaker 03: And DALI didn't do so. [00:10:02] Speaker 03: Instead, it attempts to cure this lack of support [00:10:06] Speaker 03: by arguing for a new interpretation and frames the dispositive issue as a legal one. [00:10:12] Speaker 03: DALI's new interpretation effectively replaces transmits with manages. [00:10:18] Speaker 03: And DALI now says the host does not actually have to transmit the different subsets. [00:10:25] Speaker 03: It says it's sufficient for the host to transmit all available carriers to each remote, but then manage the software settings of each remote so that each remote can select out [00:10:35] Speaker 03: its own subsets and output those to its antennae. [00:10:38] Speaker 03: That's a different concept. [00:10:41] Speaker 03: They didn't claim that. [00:10:42] Speaker 03: That was the subject of claim one. [00:10:45] Speaker 03: And so I guess the point is they didn't claim the host manages. [00:10:54] Speaker 03: They claimed the host transmits different subsets. [00:10:59] Speaker 03: Dolly's argument ignores the ordinary meaning [00:11:03] Speaker 03: a host to transmit different subsets and tries to erase the intrinsic record. [00:11:08] Speaker 03: I'll defer to our briefs. [00:11:10] Speaker 03: I think they're very clear on the intrinsic record and what they relied on in IPR to distinguish the art. [00:11:18] Speaker 02: Before you sit down, let me find out if my colleagues have any outstanding questions. [00:11:26] Speaker 02: There's a lot of moving parts to this appeal, and I want to make sure we get to cover everything we want to. [00:11:33] Speaker 02: Okay. [00:11:34] Speaker 01: Thank you, Judge Raina. [00:11:35] Speaker 01: This is Judge Stoll. [00:11:36] Speaker 01: I do have one question. [00:11:37] Speaker 01: It's actually about the anticipation issue. [00:11:42] Speaker 01: And I was wondering if you had a view on what signal Dr. Bims was referring to when he was saying that [00:11:51] Speaker 01: the signals were all the same, such that it was, and that's what a simulcast system is. [00:11:57] Speaker 01: If you were to look, for example, at the, your brief, the blue brief, page 83, looking at that figure six on there, what signal do you think he was saying was the same? [00:12:09] Speaker 01: I'll ask your opposing counsel the same question. [00:12:15] Speaker 03: I'm not sure I understand the question. [00:12:17] Speaker 03: I know their position at trial was that [00:12:19] Speaker 03: you had to be able to, oh, yeah, OK, I've got the figure right here. [00:12:25] Speaker 03: So they were trying to say that their system requires the remote to be able to select out individually, one by one, the resources and be able to send them individually to any specific remote. [00:12:42] Speaker 03: And that was a construction that was rejected by the PTAB [00:12:48] Speaker 03: and the district court, in fact. [00:12:49] Speaker 01: Can I ask you a more pointed question? [00:12:52] Speaker 01: When they say that the signals are the same, are they saying that the box labeled, I think it's sector one, and it's blue, and then there's sector two that's green, and then sector K that's red, are they saying that those different sectors are all receiving the same signal? [00:13:13] Speaker 01: Is that what the cert experts are saying? [00:13:17] Speaker 01: No? [00:13:18] Speaker 01: OK. [00:13:19] Speaker 01: All right. [00:13:22] Speaker 02: Thank you. [00:13:25] Speaker 02: I have a question on the written description and enablement arguments that you've raised. [00:13:33] Speaker 02: And that's whether they've been waived or not. [00:13:36] Speaker 02: Can you address that quickly? [00:13:40] Speaker 03: Oh, absolutely. [00:13:41] Speaker 03: If anybody waived it, it's Dolly. [00:13:46] Speaker 03: We've taken the same position from the beginning of this case of what it means. [00:13:50] Speaker 02: Did you present these arguments during the Markman hearings? [00:13:55] Speaker 03: No. [00:13:56] Speaker 03: We went with the plain and ordinary meaning. [00:13:58] Speaker 03: And incidentally, they agreed with it. [00:13:59] Speaker 03: If you look at the IPR, they were taking the same interpretation as we did, the plain and ordinary meaning, Your Honor. [00:14:09] Speaker 02: Yeah, you seem to rely quite a bit on the IPR. [00:14:13] Speaker 02: I seem to recall that that decision was vacated, although on Arthrex. [00:14:20] Speaker 02: But nonetheless, it was vacated. [00:14:22] Speaker 02: It has no applicability at this time. [00:14:26] Speaker 03: That's a good question, Your Honor. [00:14:27] Speaker 03: But the record is still there. [00:14:29] Speaker 03: It's still part of the prosecution record. [00:14:32] Speaker 03: And so I do have two quick points on Dolly's appeal. [00:14:41] Speaker 03: Go ahead. [00:14:41] Speaker 03: Actually, I'll reserve the rest of the time. [00:14:45] Speaker 03: I'll address that in reply, in rebuttal. [00:14:50] Speaker 02: All right. [00:14:52] Speaker 02: Counselor Davis. [00:14:55] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:14:57] Speaker 00: Charles Davis for Dali Wireless. [00:14:59] Speaker 00: Judge Rainey, as you mentioned, there's a lot of moving parts in this case. [00:15:02] Speaker 00: But I thought it's best to start with your last point about waiver and the Section 112 issue on the 473 patent. [00:15:10] Speaker 00: what happened was that CommScope did not challenge this question of transmit below. [00:15:16] Speaker 00: In its reply brief here, it appears to agree with Dali that this whole section 112 argument is about the meaning of the term transmit. [00:15:24] Speaker 00: Now, instead at Markman, they challenged transmit for whether it's an intended use or not. [00:15:29] Speaker 00: This is at appendix 165 through 67, shows the claim construction. [00:15:34] Speaker 00: But the important thing here, and I think this is what Judge Raina, you were getting at, [00:15:37] Speaker 00: is that the jury was not presented with a claim construction about whether transmit requires this direct connection between the remote unit and the host unit. [00:15:46] Speaker 00: And that's out of appendix 101 through 106. [00:15:48] Speaker 00: This court has made very clear that when a jury is not provided with a construction of the term, the jury applies ordinary meaning of the language. [00:15:56] Speaker 00: The only question is one of substantial evidence. [00:15:59] Speaker 00: And as Dr. Bims testified, and that Dolly had not, or that Comscope had not refuted [00:16:05] Speaker 00: There is disclosures in columns six and seven and 11 of the patent explaining how the host unit sends instructions to the remote unit, and that qualifies as transmit. [00:16:16] Speaker 00: The fact that Comscope in its reply brief disagrees with that interpretation of transmit does not mean that it's a different standard or that it's somehow a legal question. [00:16:27] Speaker 00: It's still a question of substantial evidence, and Comscope's failure to raise this below answers the question here. [00:16:35] Speaker 00: about affirming. [00:16:37] Speaker 00: Now, Comscope also made a point about the, about sabot, and this is in response to Judge Stoll's question about what same means. [00:16:48] Speaker 00: And this is a very technical question that goes a little bit to the disclaimer argument, but the same issue in sabot goes to simulcasting. [00:16:56] Speaker 00: And the point of simulcasting is that a base station is connected to one remote unit. [00:17:02] Speaker 00: And that remote unit has to output everything from the base station. [00:17:07] Speaker 00: That's what final casting means. [00:17:09] Speaker 00: So when in the alleged disclaimer, and even in the discussion of Sabat, the question is about whether the Sabat only discloses sending out the entirety of the signal that comes from the base station. [00:17:27] Speaker 00: Whereas the 473 pattern is about sending subunit. [00:17:31] Speaker 00: and the host unit compiles all of the signals from the base station and sends out different subunits to different remote units. [00:17:39] Speaker 01: Council, this is Judge Stoll. [00:17:42] Speaker 01: What is the claim language that you're specifically relying on for this distinction? [00:17:50] Speaker 00: Yes, Your Honor. [00:17:51] Speaker 00: So there is both the language about the second subset being different than the first subset, [00:18:00] Speaker 00: There's no question that Sabat does not send different subsets to different remote units. [00:18:07] Speaker 01: At most... Can I ask you something? [00:18:08] Speaker 01: Can I, looking at, can we look for a second at that figure six in Sabat? [00:18:14] Speaker 01: In particular, I was looking at the version of the colors that's in the blue brief at page 83. [00:18:20] Speaker 01: So, as I understand it, the signals that are coming in to Sector 1, Sector 2, and Sector K, they're different from one another, right? [00:18:31] Speaker 00: Correct, your honor. [00:18:32] Speaker 01: Okay. [00:18:33] Speaker 01: And then my understanding was that, you know, sector one could send. [00:18:39] Speaker 01: Why doesn't that mean if the [00:18:43] Speaker 01: Disclosure in this patent is that different signals coming in could be sent to any remote digital radio. [00:18:53] Speaker 01: The element 510 could send any of those subsets coming in to 1, 2, and K to any of those remote digital radios that we see on the right-hand side of that figure. [00:19:08] Speaker 01: Why does that teach the idea that the second subset is different from the first subset? [00:19:16] Speaker 00: Yes, Your Honor, so two points on that. [00:19:18] Speaker 00: The first point is that at most, this is a contested question between experts about Comscope's own annotation of a figure in the patent. [00:19:29] Speaker 00: Dr. Bims at Appendix 28381 [00:19:32] Speaker 00: through 83 explicitly said to the jury that it did not agree with how Comscope annotated the figure, and the jury agreed. [00:19:43] Speaker 01: But to your... Okay, can I set aside those annotations? [00:19:46] Speaker 01: Forget about the annotations. [00:19:47] Speaker 00: Okay. [00:19:49] Speaker 00: But Your Honor, at bottom, what the 473 patent is disclosing is taking multiple subunits from a signal or multiple signals and sending them to different remotes. [00:20:02] Speaker 00: What Sabat is discussing is sending the exact same signal from a base station to possibly multiple remotes or only one remote. [00:20:11] Speaker 00: But the point of Sabat is sending the same signal to each one of them. [00:20:15] Speaker 00: It's not about turning this into parallel. [00:20:19] Speaker 01: So is it your position, let's say that the device is marked 502 and it says Sector 1, could it send a signal to remote digital radio marked 504? [00:20:32] Speaker 00: 504. [00:20:36] Speaker 00: Yes. [00:20:37] Speaker 00: Well, Your Honor, that would depend on how the switches are lined up. [00:20:41] Speaker 00: but if it sent a signal to 504, it would be sending the exact same signal to the blue one that's right next to it and the blue one at the bottom. [00:20:50] Speaker 00: So the, and that was what Dr. Benz was explaining to the jury is the difference between what's disclosed in the bot and in the patent. [00:21:00] Speaker 00: And that's why he kept hammering home this point about final casting versus multicasting. [00:21:06] Speaker 00: Now, [00:21:07] Speaker 01: Can I ask one other question? [00:21:09] Speaker 01: Are these remote digital radios, they all could receive different signals from one another, right? [00:21:15] Speaker 01: On the right side of the page, there's nine of them shown. [00:21:19] Speaker 01: They could receive, you know, there's three different possible signals they could receive, right? [00:21:25] Speaker 01: At least three? [00:21:27] Speaker 00: Yes, Your Honor. [00:21:28] Speaker 00: Based on how the diagram looks, it appears that different, so like, so one of the remote units could get that downlink free. [00:21:36] Speaker 00: But the point is, it could only receive the entirety of downlink three. [00:21:41] Speaker 00: And that's what simulcasting is talking about. [00:21:43] Speaker 01: What claim language do you rely on to the idea that the input to, say, sector one is not itself a subset of all the inputs to all of these different sectors? [00:21:56] Speaker 01: Why is that not a subset? [00:22:00] Speaker 00: Well, Your Honor, I [00:22:03] Speaker 00: I apologize, but I think the point is that each one of the sectors is themselves a base station that sends out a full signal that's routed through the switches to specific remote units. [00:22:18] Speaker 00: I don't believe there's any disclosure or discussion about the remote units being connected together or being different subsets. [00:22:26] Speaker 00: The fact is each one of those sectors are themselves its own signal. [00:22:30] Speaker 00: And I think this discussion we're having is exactly the battle of the experts that the jury heard and justified affirming on that basis based on this court's view of substantial evidence. [00:22:44] Speaker 01: Was there a construction of the word subset? [00:22:49] Speaker 00: I do not believe so, Your Honor. [00:22:51] Speaker 01: And do you think that experts actually battled over the meaning of the word subset or what a subset is? [00:22:59] Speaker 00: I don't think they battled directly over it, but I think that's implicit in the arguments between the parties and between the experts about why SBOT is anticipatory or not. [00:23:11] Speaker 00: Because, you know, ComSCO takes this view that a subset is anything sent out from a base station. [00:23:18] Speaker 00: That's how they annotated this. [00:23:19] Speaker 00: And Dr. Benz's response was, no, that's not what a subunit is. [00:23:25] Speaker 00: So, but I will then, I don't think the two parties directly said, well, this is a subunit versus this is not a subunit, but I think that's at the heart of their dispute. [00:23:37] Speaker 00: Okay. [00:23:38] Speaker 00: Thank you. [00:23:38] Speaker 02: Now, Your Honor, and... Counselor, on the 521 patent, your friend on the other side says that you have, you're presenting contradictory argument with respect to the invalidity determination. [00:23:52] Speaker 02: and the anticipation arguments. [00:23:54] Speaker 02: What's your response to that? [00:23:58] Speaker 00: Your Honor, these are not contradictory interpretations. [00:24:01] Speaker 00: So first of all, taking right, because that's what ComSCO started with. [00:24:04] Speaker 02: Does this come down to a battle of the experts as well? [00:24:08] Speaker 00: Yeah. [00:24:08] Speaker 00: Well, Your Honor, I do believe it's about the experts. [00:24:11] Speaker 00: But I think there's a very important point in right that needs to be brought out. [00:24:14] Speaker 00: And that's that Appendix 28278. [00:24:16] Speaker 00: Dr. Wood specifically states [00:24:21] Speaker 00: that the reason he chose Wright is because it doesn't have a controller. [00:24:27] Speaker 00: And he says in there, well, my view of Dr. Kenny's infringement theory is he didn't have to identify a controller. [00:24:35] Speaker 00: And because he didn't identify a controller, Wright would be anticipatory. [00:24:40] Speaker 00: And that's just not correct. [00:24:42] Speaker 00: Dr. Kenny made clear at appendix 28011 through 12, 28047 through 49, that there is a controller. [00:24:51] Speaker 00: But even beyond that, Dr. Kinney explained to the jury, and we discussed this on pages 47 through 49 of our brief, about why RFMUX does not meet the claim language, why it would not be anticipatory. [00:25:05] Speaker 00: And on the other hand, for the infringement theory, Dr. Kinney explained to the jury how the construction of the term, and specifically how the switching our controller to a non-operating state language, [00:25:19] Speaker 00: would apply to a multiple power amplifier system. [00:25:23] Speaker 00: Now, Dali's or Komska's expert disagreed with that interpretation, but Komska has not identified that that was somehow unreasonable or patently wrong interpretation of how you would apply this language to a multiple power amplifier system. [00:25:40] Speaker 01: And for that reason... Are you talking about the FlexWave system right now or are you talking about right? [00:25:45] Speaker 00: FlexWave, Your Honor. [00:25:47] Speaker 01: Okay. [00:25:48] Speaker 01: So you're talking about the switch that's in the accused FlexWave, right? [00:25:53] Speaker 01: Do I understand correctly that what you're pointing to as being this claim element is the switch, the element that's marked SW in the figure at JA28011? [00:26:07] Speaker 00: Well, Your Honor, to be clear, Dr. Kenney explained to the jury that there was a switch in this simplified diagram. [00:26:15] Speaker 00: And then he explained that there was also a controller connected to it. [00:26:19] Speaker 00: He said this to the jury. [00:26:20] Speaker 00: And then when pressed on it in cross appeal, he explained again that there is a controller there. [00:26:26] Speaker 00: And importantly, he said that his infringement theory was predicated on the existence of this controller. [00:26:32] Speaker 00: And the controller is shut off? [00:26:35] Speaker 00: So as the controller is shut off? [00:26:38] Speaker 00: As Dr. Kenney described to the jury, that it would [00:26:44] Speaker 00: Dr. Kenney explained to the jury that in the two-power amplifier system of the flex wave, when one of the power amplifiers goes from the training phase to the operating phase, the controller and switch are placed in a non-operating state. [00:26:59] Speaker 01: Even though the other power amplifier is input, the switch is receiving input from the other power amplifier, right? [00:27:09] Speaker 00: Yes, Your Honor. [00:27:10] Speaker 01: And so it's a dispute over the meaning of the word off? [00:27:13] Speaker 01: Is that what you're saying? [00:27:16] Speaker 00: Well, it's interesting because the court did construe off, but it construed it with the term non-operating state. [00:27:23] Speaker 00: And I do think there could be a bit of ambiguity in how that applies. [00:27:28] Speaker 00: But Dr. Kenney explained to the jury how that ambiguity or how that claim language should apply to the FlexWave, and the jury agreed. [00:27:37] Speaker 01: Can you explain to me how a switch or even a controller for the switch is in a non-operating state when it's in fact receiving an input from a power amplifier? [00:27:55] Speaker 00: Well, Your Honor, in the FlexWave system, because it has multiple power amplifiers that share a controller and a switch, when one of the power amplifiers is in the operating phase, [00:28:06] Speaker 00: there's no use of the training phase circuit. [00:28:09] Speaker 00: And therefore, the controller and switch are in a non-operating state while that power amplifier is going through its operating phase. [00:28:20] Speaker 01: So would you say that it's in a non-operating state with respect to the first power amplifier? [00:28:25] Speaker 01: Is that what your answer is? [00:28:28] Speaker 01: It's respective to whichever power amplifier you're talking about? [00:28:32] Speaker 00: Well, yes, your honor, but that comes naturally from the claim construction of the term power amplifier. [00:28:38] Speaker 00: And we explained this in our briefing on page 42 and 43, but the court construed that claim term to mean that infringement is shown by showing that one power amplifier goes through the training phase or the initiating phase, the training phase, and the operating phase. [00:28:53] Speaker 02: Did you challenge that construction? [00:28:57] Speaker 00: Yes, your honor, that was a challenge. [00:29:00] Speaker 00: Oh, no, no. [00:29:01] Speaker 00: Sorry, your honor. [00:29:02] Speaker 00: It was it was challenged at the beginning of Markman. [00:29:06] Speaker 00: But then by the end of Markman, it'd be the parties agreed that the claim construction required proof that at least one power amplifier goes through all three of the different stages. [00:29:17] Speaker 01: In a non operating state, you're not challenging that part. [00:29:22] Speaker 01: You're not challenging any of any of the court's claim construction of this term, right? [00:29:27] Speaker 00: No, Your Honor, we're not challenging the phrase not operating state. [00:29:31] Speaker 00: What we're explaining is that Dr. Kenney applied that language to the multiple power amplifier system of the FlexWave. [00:29:41] Speaker 02: It seems to me that even you're actually arguing against the construction now on appeal. [00:29:49] Speaker 00: Well, no, Your Honor, what we are arguing is that [00:29:54] Speaker 00: the way in which this term applies to a multiple power amplifier system is not as straightforward as, Your Honor, I think I'm in my rebuttal time. [00:30:03] Speaker 00: You can continue. [00:30:05] Speaker 00: Yes. [00:30:05] Speaker 00: It's not as straightforward in a multiple power amplifier system as compared to a single power amplifier system. [00:30:11] Speaker 00: But Dr. Kenney still presented his discussion of this term and how would it apply to the jury, and the jury agreed with how Dr. Kenney established the elements of the claim. [00:30:25] Speaker 02: OK. [00:30:27] Speaker 02: Do my colleagues have any additional questions? [00:30:31] Speaker 03: No. [00:30:31] Speaker 03: OK. [00:30:33] Speaker 02: All right. [00:30:34] Speaker 02: Mr. Casper, I mean Mr. Davis, we thank you. [00:30:38] Speaker 02: Let's hear back from Mr. Casper. [00:30:46] Speaker 02: Hello? [00:30:48] Speaker 03: Yes. [00:30:49] Speaker 03: Thank you, Your Honor. [00:30:50] Speaker 03: I was muted. [00:30:52] Speaker 03: Yes, just a few points. [00:30:53] Speaker 03: On the 473 patent, [00:30:55] Speaker 03: I heard counsel say that they agree that the ordinary meeting applies, but that's not what they're arguing now. [00:31:02] Speaker 03: Remember, the claim requires hosts to transmit subsets. [00:31:09] Speaker 03: And now I heard him say, well, the claim is directed to or suggested the claim is directed to the concept of transmitting instructions. [00:31:17] Speaker 03: Well, the claim does not say transmitting instructions. [00:31:20] Speaker 03: It says transmitting subsets, subsets of the carriers. [00:31:25] Speaker 03: That's on the 473. [00:31:27] Speaker 03: The next point relates to the 521. [00:31:32] Speaker 03: Remember, when they wrote this claim, they could have claimed just the result, disconnecting the feedback signal. [00:31:41] Speaker 03: But instead, they put a method step in of switching the controller off to get that result of disconnecting. [00:31:51] Speaker 03: Next point, infringement of the [00:31:54] Speaker 03: 521 patent. [00:31:56] Speaker 03: It's not a battle of the experts. [00:31:59] Speaker 03: Can I finish this point? [00:32:02] Speaker 03: Yes, please. [00:32:03] Speaker 03: Yes, go ahead. [00:32:04] Speaker 03: The court adopted the construction that switching it off means non-operating. [00:32:12] Speaker 03: And Dolly didn't appeal that construction. [00:32:15] Speaker 03: In fact, they conceded, as I pointed out at page 44 of our brief, that our controller is continuously operating. [00:32:23] Speaker 03: That's it. [00:32:24] Speaker 03: That's all I have, Your Honor, thank you. [00:32:27] Speaker 02: Okay, thank you. [00:32:28] Speaker 02: Let's hear you on the cross-appeal quickly. [00:32:31] Speaker 00: Thank you, Judge Raina. [00:32:34] Speaker 00: And if the court has any questions in particular about the cross-appeal, I'm happy to discuss them. [00:32:40] Speaker 00: But the basic concept of Dolly's cross-appeal argument is that Comscope adopted an interpretation of this term, indicative of, that would cover a narrow band of signal. [00:32:52] Speaker 00: gave that to the jury, the jury agreed, and by relying on that use of indicative of for its infringement analysis, it opens itself up to this challenge for lack of written discretionary enablement. [00:33:08] Speaker 00: And the important point here is that although Dr. Benz explained to the jury that nothing in the patents discloses any sort of filter that would narrow the band like a bandpass filter, [00:33:22] Speaker 00: Dr. Acompera's responses to the jury were either one, this concept of maintaining the phase and amplitude, which as Dahle explained in page 13 of its reply brief, that is a necessary condition, but not a sufficient condition. [00:33:37] Speaker 00: And additionally, this paragraph that Comscope identified on Appendix A27244, where it stated that, well, there's some additional filters that must do it, or the duplex are done. [00:33:49] Speaker 00: narrowing function. [00:33:51] Speaker 00: But as Kandali explained, those are non-responsive answers because none of those filters perform the sort of filtering necessary for the narrowing to support the [00:34:10] Speaker 00: language of indicative of that was used to convince the jury on infringement. [00:34:15] Speaker 00: And if the court has any further questions about the cross appeal or any of the other issues, I'm happy to answer them now. [00:34:24] Speaker 02: Okay. [00:34:25] Speaker 02: Here, Enan, we thank you for your arguments. [00:34:29] Speaker 02: We thank all the parties for the arguments, and we take this case under submission. [00:34:34] Speaker 02: Thank you, Your Honor.