[00:00:00] Speaker 01: The next case for argument is 21-1661, direct packet research versus polycom. [00:00:37] Speaker 01: Mr. Ross, please proceed. [00:00:40] Speaker 04: May it please the court, Mr. Ross, representing the Appellant Patent Owner, Direct Packet Research, Inc., in this case. [00:00:47] Speaker 04: Your Honor, this is a very straightforward issue of claim preclusion, of claim construction, arising out of a decision by the Patent Trial and Appeal Board. [00:00:58] Speaker 04: The claim term at issue is multimedia data stream. [00:01:03] Speaker 04: The board below found that multimedia data stream does not need to include multimedia data. [00:01:12] Speaker 04: We would submit to you that that's wrong as a matter of law. [00:01:15] Speaker 00: Am I correct that multimedia data is content? [00:01:20] Speaker 00: Correct, Your Honor. [00:01:22] Speaker 04: The data is the content. [00:01:23] Speaker 04: Multimedia just modifies the type of data, meaning it's got to be both audio and video as examples. [00:01:30] Speaker 03: But your problem is that in figure four of the patent, in the specification and in, for example, claim three, it talks about assembling protocol messages, which are the signaling messages, right, and not the content, to form the multimedia data stream. [00:01:52] Speaker 03: which seems to suggest that the multimedia data stream could be composed of the signaling messages and not the content. [00:02:04] Speaker 04: I would disagree, Your Honor. [00:02:06] Speaker 04: I don't think that's what Figure 4 indicates. [00:02:09] Speaker 03: Explain to me why that's the case. [00:02:12] Speaker 03: Look at Claim 3. [00:02:14] Speaker 03: It says, set plurality of intermediate protocol messages to form. [00:02:21] Speaker 03: So your honor. [00:02:23] Speaker 03: Why don't these references in the patent contemplate a multimedia data stream composed solely of protocol messages? [00:02:36] Speaker 03: Did you say solely of protocol messages? [00:02:38] Speaker 03: Composed solely of protocol messages, signaling messages. [00:02:43] Speaker 04: Oh, signaling messages. [00:02:44] Speaker 04: Yes, Your Honor. [00:02:45] Speaker 04: For one thing, that's not what the patent is about. [00:02:47] Speaker 04: The patent is about affecting a multimedia communication. [00:02:51] Speaker 03: But that's talking in such general terms about what the patent is about is probably not helpful. [00:02:57] Speaker 03: I'm asking you about a specific question where there's a description here which seems to suggest that a multimedia [00:03:07] Speaker 03: Data stream can be composed of signaling messages only so your honor the claim construction starts with the words of the client my question I'm pointing to a specific thing does not figure four describe a multimedia data stream composed solely of signaling messages No, your honor. [00:03:30] Speaker 04: I don't believe it does I'm not [00:03:37] Speaker 04: So figure four, Your Honor, is the flowchart illustrating the steps executed to convert a first protocol into an intermediate protocol. [00:03:46] Speaker 04: It does not tell you what the multimedia data is. [00:03:50] Speaker 04: The multimedia data has already reached the first protocol at that point. [00:03:55] Speaker 04: And therefore, you have to look at figures one, two, and three. [00:03:58] Speaker 04: OK. [00:03:58] Speaker 03: Take claim three, then, if you don't like referring to the figures. [00:04:04] Speaker 03: It says, assembling SID. [00:04:07] Speaker 03: Multi plurality of intermediate protocol messages those are signaling messages right no your honor. [00:04:12] Speaker 03: That's not true It's not true. [00:04:15] Speaker 04: No your honor the intermediate protocol is a mix of common data and signaling commands from the two different types of protocols that are being used if that has been selected to allow it to traverse the firewall and [00:04:30] Speaker 04: It is not, it is in no way relevant to what the definition of multimedia data street should be. [00:04:36] Speaker 01: The first protocol message is a signaling message, right? [00:04:39] Speaker 01: The first protocol message. [00:04:41] Speaker 04: The first protocol. [00:04:42] Speaker 01: What is referred to as the first protocol message generally in these claims? [00:04:45] Speaker 01: That's usually the signaling message, correct? [00:04:46] Speaker 04: No, Your Honor, that's not correct. [00:04:48] Speaker 01: No? [00:04:48] Speaker 04: The first protocol is a format, not a message. [00:04:52] Speaker 01: The first protocol. [00:04:54] Speaker 01: No, it says first protocol message. [00:04:56] Speaker 01: So that's what the claim says. [00:04:57] Speaker 01: First protocol message. [00:04:59] Speaker 01: So I said, is the first protocol message the signal, the one that pings you and says, hey, I'm sending data? [00:05:05] Speaker 01: No? [00:05:06] Speaker 04: OK, so no, Your Honor. [00:05:07] Speaker 04: I really need to start at the beginning with how this works. [00:05:10] Speaker 04: So you have a multimedia data stream coming into a first protocol. [00:05:15] Speaker 04: That first protocol is comprised of a signaling protocol. [00:05:20] Speaker 04: So we know that the first protocol has to be capable of handling two types of message streams, a signaling message and a multimedia data message. [00:05:30] Speaker 04: That gets you into the first protocol. [00:05:33] Speaker 00: The first protocol then... Where does it say that in Claim 1? [00:05:38] Speaker 00: Claim 1 ends up by saying we're in the first protocol comprises a signaling protocol. [00:05:44] Speaker 00: Because you want to add that it also [00:05:48] Speaker 00: encompasses or comprises a data or the content protocol. [00:05:53] Speaker 04: So, Your Honor, that clause, the comprising clause, modifies the prior phrase, a first protocol. [00:06:01] Speaker 04: The multimedia data stream, however, is in the first protocol. [00:06:06] Speaker 04: For the multimedia data stream to be in the first protocol, [00:06:11] Speaker 04: The first protocol necessarily has to be able to handle data as well as signaling. [00:06:18] Speaker 04: And this is what both experts, Polycoms and DPR's expert agreed upon, that it has to be capable of handling both multimedia data and signaling messages. [00:06:30] Speaker 04: That goes into the first protocol. [00:06:32] Speaker 04: The first protocol then transmits that stream to the communication controller, which performs a conversion process that allows it to go through the firewall to another communication controller receiving it. [00:06:45] Speaker 01: And, counsel, is what you're saying supported by the exact claim language that Jadrina read, where it says, wherein the first protocol comprises a signaling protocol, the word comprises is open-ended. [00:06:57] Speaker 01: That just means the first protocol has to at least include a signaling protocol. [00:07:01] Speaker 01: Absolutely. [00:07:01] Speaker 01: But it can also include, and in this case because of the word multimedia data earlier in the claim, [00:07:07] Speaker 01: It can also include multimedia data. [00:07:09] Speaker 04: Absolutely, Your Honor. [00:07:09] Speaker 04: And by the way, that's the only way you could perform a multimedia communication. [00:07:14] Speaker 04: You have to have both media and signaling. [00:07:17] Speaker 04: And if you didn't have both media and signaling, you would not be engaged in a multimedia communication, which is what the patent is all about and which the solution provided by the invention is all about. [00:07:27] Speaker 04: So to read multimedia data out of this term is essentially to say that the patent makes no sense. [00:07:35] Speaker 04: And that's what the board did here. [00:07:38] Speaker 04: The board did exactly what Judge Moore has corrected and said, well, we can't have multimedia and comprising both live at multimedia data. [00:07:48] Speaker 04: That's great. [00:07:49] Speaker 04: We can only have one or the other. [00:07:50] Speaker 04: That's not true, because comprising language allows it and says one and other things. [00:07:56] Speaker 03: OK, let me ask you. [00:07:57] Speaker 03: Suppose we conclude in claim three, for example, [00:08:03] Speaker 03: Protocol messages are just the signaling messages and don't include the content Then this would be consistent with the board's construction, right? [00:08:13] Speaker 03: No your honor I think that's factually incorrect first the board never reached, but you're not accepting my assumption I'm assuming that the language here referring to Protocol messages is the signaling messages and not the media content [00:08:30] Speaker 03: Assuming that that's the case, hypothetically, then this would indicate that a multimedia data stream can just be composed of signaling messages, right? [00:08:41] Speaker 04: No, I disagree, Your Honor, because I think your factual predicate is impossible. [00:08:46] Speaker 01: Council, let me try and help you, because you're floundering a bit here. [00:08:50] Speaker 01: Column one, doesn't the column one of the patent explain that there are many different types of protocols and IE protocol messages and not all of them are limited to signaling? [00:08:59] Speaker 01: Some of them are voiceover IP and other things. [00:09:02] Speaker 01: Am I wrong in my reading of column one right about line 20 plus? [00:09:06] Speaker 04: It's the whole predicate to this patent that there are multiple protocols. [00:09:09] Speaker 04: Yes, for the record. [00:09:11] Speaker 01: Yes, I'm right what I say. [00:09:13] Speaker 04: You're absolutely correct. [00:09:14] Speaker 01: The patent itself defines the fact that there are multiple different kinds of protocols, not all of which are limited to signaling protocols. [00:09:22] Speaker 01: And thus, when the claims say protocol messages, it would encapsulate all of the things disclosed clearly in the patent. [00:09:29] Speaker 04: That's correct, Your Honor. [00:09:30] Speaker 04: All the different types of protocols. [00:09:32] Speaker 04: Any other protocols are out there because it has that language at the end. [00:09:35] Speaker 04: It says we could encompass other things as well. [00:09:38] Speaker 04: So moreover, the definition that we propose for and that we think the board got wrong for. [00:09:46] Speaker 01: But just to be clear, a signaling, there can be a signaling protocol message, can't there? [00:09:54] Speaker 01: Yes, your honor. [00:09:55] Speaker 04: It could be a pure signal. [00:09:57] Speaker 01: Correct. [00:09:57] Speaker 01: That is possible. [00:09:58] Speaker 04: Yes, your honor. [00:09:59] Speaker 01: But you're saying that's not what this patent means and it's not even the plain language understanding of the words multimedia data stream. [00:10:05] Speaker 04: Correct. [00:10:06] Speaker 04: And you couldn't do a multimedia communication with just a signal. [00:10:09] Speaker 01: Because you wouldn't have multimedia. [00:10:11] Speaker 04: You wouldn't have content. [00:10:12] Speaker 04: Yeah. [00:10:12] Speaker 03: But if that's mistaken, if this reference to protocol messages is just limiting to signaling messages, I know you disagree with that. [00:10:23] Speaker 03: then this is consistent with the board's construction, right? [00:10:29] Speaker 04: You're asking me to comment upon a hypothetical. [00:10:31] Speaker 03: Yes, we do that. [00:10:32] Speaker 03: Actually, you have to come here and be prepared to answer hypotheticals. [00:10:36] Speaker 03: So what's the answer to the hypothetical? [00:10:39] Speaker 03: I know you disagree with the premise. [00:10:41] Speaker 03: You may be right in disagreeing with the premise. [00:10:44] Speaker 03: I'm asking you a specific question. [00:10:46] Speaker 03: Accepting the premise, is that not the case? [00:10:49] Speaker 03: that that would be consistent with the board's construction. [00:10:52] Speaker 03: No, I refuse to accept that, Your Honor, because that would create an inoperable embodiment. [00:10:57] Speaker 03: That is completely inappropriate for you to refuse to answer a hypothetical question because you don't agree with the premise. [00:11:04] Speaker 04: I'm saying that it would produce an inoperable embodiment and therefore it simply can't be true. [00:11:09] Speaker 04: I don't know how else to explain it. [00:11:13] Speaker 04: You cannot have an operable multimedia communication without having both signaling [00:11:19] Speaker 01: and messaging content. [00:11:39] Speaker 01: That is correct, Your Honor. [00:11:40] Speaker 01: Yes. [00:11:40] Speaker 01: So wouldn't that be a better answer to Judge Syke? [00:11:41] Speaker 01: The answer would be Claim 3 requires you add the signaling protocol in, but it doesn't suggest that is the entire message or multimedia data. [00:11:50] Speaker 04: I agree with what Your Honor is saying. [00:11:51] Speaker 04: I'm not sure that was the question being asked, though. [00:11:54] Speaker 04: But I agree with what Your Honor is saying. [00:11:56] Speaker 04: Perhaps not. [00:11:59] Speaker 04: I'm already into my rebuttal time, Your Honor. [00:12:03] Speaker 01: Would you like to save it? [00:12:05] Speaker 04: I would like to save it, unless there are questions that you wish to ask now. [00:12:08] Speaker 01: We'll hear from Mr. Eaton. [00:12:42] Speaker 02: Good morning, Your Honors. [00:12:44] Speaker 02: I'd like to start by kind of making a general observation about why the board got this claim construction right. [00:12:52] Speaker 02: And then I can break it down into individual pieces that will be responsive to some of the things that Mr. Ross said. [00:12:58] Speaker 02: The claim, Your Honors, the relevant claim term is multimedia data stream. [00:13:04] Speaker 02: It is not just multimedia data. [00:13:06] Speaker 02: The appellant's essential argument is multimedia means many media, therefore it always has to have more than one media, therefore it can't include only signaling messages, and therefore comprising signal protocols must include... I don't think they ever said it can't include signaling messages. [00:13:19] Speaker 02: No, no, you're right. [00:13:20] Speaker 02: That's not what I intended to say. [00:13:22] Speaker 02: There can be no embodiment in which it is only signaling messages, I think, is their position. [00:13:27] Speaker 01: Correct, because that wouldn't be multimedia data. [00:13:29] Speaker 02: That is their position. [00:13:32] Speaker 02: Here's a [00:13:34] Speaker 02: characterization of that I think helps explain why that's wrong and that I can get into the claims in the spec and the extrinsic evidence and to support it. [00:13:41] Speaker 02: The term is multimedia data stream. [00:13:43] Speaker 02: A data stream like any other kind of stream doesn't appear from nowhere, right? [00:13:47] Speaker 02: It has a start, it has content, and then it has a stop. [00:13:50] Speaker 02: That's how data streams work. [00:13:51] Speaker 02: That's how physical streams work. [00:13:54] Speaker 02: What this claim is saying is the comprising signaling portion, the comprising signaling protocols portion is saying [00:14:03] Speaker 02: This has to be, this is about where the start is. [00:14:06] Speaker 02: The signaling protocols, as your honor, I think, was getting at in one of your questions, signaling protocols are about the initiation of the connection between endpoints. [00:14:15] Speaker 02: They are not about the exchange of content between the endpoints. [00:14:18] Speaker 02: And so when it says comprising a signaling protocol, what kind of messages travel in signaling protocols? [00:14:27] Speaker 02: Well signaling messages do, and I don't think they dispute that. [00:14:30] Speaker 02: Their argument is it has to be more than signaling protocols. [00:14:33] Speaker 02: But what this claim is really getting at is that first step. [00:14:37] Speaker 02: The patent and the spec and the claims and the extrinsic evidence all tell us that this process of establishing a multimedia data stream has at least two pieces. [00:14:46] Speaker 02: There's an initiation piece, which is achieved by communication or signaling protocols. [00:14:51] Speaker 02: And then there's a transport piece, which is about actually carrying the media through using a different kind of protocol like RTP or UDP or TCP. [00:15:01] Speaker 02: Reference in claim one to signaling protocols tells us that this is about that first step. [00:15:07] Speaker 02: And the stream doesn't exist without that first step. [00:15:10] Speaker 02: So it is not incongruous to say that there is a multimedia data stream. [00:15:14] Speaker 01: But does the stream exist without data? [00:15:18] Speaker 02: Well, the stream exists. [00:15:20] Speaker 02: I mean, in order for the stream to come into existence. [00:15:23] Speaker 01: You've got a multimedia data stream. [00:15:25] Speaker 01: He would not dispute that this claim requires a signaling portion. [00:15:31] Speaker 02: True. [00:15:32] Speaker 01: But I think he would also say, but it also has to require a media portion, right? [00:15:37] Speaker 01: Because hence the words multimedia data stream. [00:15:40] Speaker 02: And I think in almost every embodiment, it does. [00:15:43] Speaker 02: But this particular claim, claim one, is saying, we are also covering that first step, where we are connecting one end to the other, without which no data stream can exist. [00:15:52] Speaker 01: I think he would agree that this patent is meant to, for sure, include the first step, which is a signaling protocol. [00:15:59] Speaker 02: Well, I don't think so. [00:16:01] Speaker 01: Forgive me, Ron. [00:16:02] Speaker 01: says there has to also be data because this entire thing is about transmitting multimedia data streams. [00:16:10] Speaker 01: So you have to have data. [00:16:13] Speaker 02: Ultimately, there does have to be data. [00:16:15] Speaker 02: But if it didn't cover an embodiment where you only had the signaling portion, then it wouldn't cover the first step of the initiation of any multimedia data stream. [00:16:23] Speaker 02: They wanted to cover that. [00:16:24] Speaker 02: That is largely what the spec is talking about. [00:16:26] Speaker 02: It's talking about incompatible communications protocols. [00:16:29] Speaker 02: It makes reference to transport protocols [00:16:31] Speaker 02: only in passing and only in contradiction to what communications protocols do. [00:16:37] Speaker 02: They are never mentioned again. [00:16:38] Speaker 01: But the claim includes receiving a multimedia data stream. [00:16:45] Speaker 01: If what is received is only a signal, then how has this claim been satisfied? [00:16:53] Speaker 02: Well, that's in a sense a circular argument, Your Honor. [00:16:55] Speaker 02: You're assuming that multimedia data stream means multimedia only. [00:16:59] Speaker 01: No, I'm not assuming it means multimedia only. [00:17:01] Speaker 01: I'm seeing it must include multimedia. [00:17:04] Speaker 01: I'm not saying only. [00:17:05] Speaker 01: You keep misstating this. [00:17:07] Speaker 02: And Your Honor, again, the stream of multimedia, the multimedia data stream has to consist ultimately of both, right? [00:17:17] Speaker 01: And so how can you receive a multimedia data stream if there's no media? [00:17:23] Speaker 02: Because of the way multimedia stream is being defined in this patent is to include the first step at initiation. [00:17:29] Speaker 01: Include. [00:17:30] Speaker 01: Right. [00:17:31] Speaker 01: Yes. [00:17:31] Speaker 01: But how can you receive a multimedia data stream? [00:17:35] Speaker 01: How can it be received if there's no media? [00:17:38] Speaker 01: You're saying it covers an embodiment in which there is no media whatsoever. [00:17:41] Speaker 02: That is precisely what I'm saying. [00:17:43] Speaker 02: Because if you didn't cover that, you wouldn't cover the process. [00:17:46] Speaker 02: The process has to cover that first step, or you've missed it. [00:17:49] Speaker 00: Doesn't your argument challenge the definition [00:17:53] Speaker 00: multimedia data stream that's found in the pen? [00:17:59] Speaker 02: I don't believe that it does, Your Honor. [00:18:00] Speaker 02: Could you direct me to that? [00:18:01] Speaker 02: All right. [00:18:03] Speaker 01: Well, what's the plain meaning of multimedia data stream? [00:18:06] Speaker 02: So multimedia means many media, for sure. [00:18:09] Speaker 01: So plain meaning is many media. [00:18:11] Speaker 01: Is there something in this patent that leads you to believe that they were lexicographer-ing themselves away from that plain meaning? [00:18:18] Speaker 02: No, I don't think that there's... We are not making a lexicography argument here, Your Honor. [00:18:22] Speaker 02: We are interpreting the claim multimedia data stream in the context of the claims, which specifically recite comprising a signaling portion. [00:18:31] Speaker 01: Right, but doesn't the word comprising mean including? [00:18:35] Speaker 02: It does, but it also means doesn't have to include. [00:18:37] Speaker 02: That's what it means. [00:18:39] Speaker 01: Doesn't have to include? [00:18:39] Speaker 01: No, when you say comprising, it's the opposite of that. [00:18:43] Speaker 02: No, it has to include the signaling portion. [00:18:45] Speaker 02: It doesn't have to include anything else. [00:18:46] Speaker 02: That's what the comprising step means. [00:18:48] Speaker 01: Unless the plain meaning of the term necessarily, I say a bicycle comprising wheels, right? [00:18:55] Speaker 01: The wheels don't exist on their own. [00:18:58] Speaker 01: It necessarily, well, I guess I said a bicycle that might be viewed as a preamble and not limiting. [00:19:03] Speaker 01: But if it was a claim limitation to a bicycle, a limitation now, not a preamble, which comprises wheels. [00:19:13] Speaker 01: Inherent in the use of the word bicycle as a limitation, not a preamble, it has to be given the rest of its plain meaning understood definition, doesn't it? [00:19:25] Speaker 01: If it's a claim limitation. [00:19:26] Speaker 01: If the word multimedia here were in the preamble, you'd have a much stronger case. [00:19:31] Speaker 01: But the more multimedia data stream is a claim limitation itself. [00:19:35] Speaker 02: It is, Your Honor. [00:19:36] Speaker 02: And I think the case of bicycle is somewhat different. [00:19:38] Speaker 02: Bicycle is an extremely easy to define item, right? [00:19:42] Speaker 02: Multimedia data stream could mean a variety of things. [00:19:45] Speaker 02: It could mean audio and video. [00:19:46] Speaker 02: It could mean audio and text. [00:19:47] Speaker 01: It could mean audio and asking. [00:19:48] Speaker 01: But it always means data. [00:19:50] Speaker 01: It always means data. [00:19:51] Speaker 01: It never just signals. [00:19:53] Speaker 02: No, Your Honor, I don't think there's any dispute that signaling messages are data. [00:19:56] Speaker 01: But that would only be one form of data. [00:19:59] Speaker 01: And the word multi implies something other than just one, right? [00:20:03] Speaker 02: It does, Your Honor, in general. [00:20:06] Speaker 01: But not in this patent? [00:20:07] Speaker 01: But not in this patent? [00:20:08] Speaker 02: Not in this patent. [00:20:08] Speaker 02: Not the way it is used here. [00:20:10] Speaker 01: So the plain meaning of the word should not be used in this patent. [00:20:15] Speaker 01: So what in this patent tells us that this patentee intended to disclaim or lexicographer themselves away from plain meaning? [00:20:23] Speaker 02: Your Honor, here's a way to flip that question, OK? [00:20:27] Speaker 01: How about you answer my question? [00:20:28] Speaker 02: Well, I'm going to answer it indirectly. [00:20:30] Speaker 02: And then if you don't like the answer, I'll re-answer it directly. [00:20:32] Speaker 02: How about that? [00:20:34] Speaker 01: The word multi, we all agree, has a plain meaning, meaning more than one. [00:20:42] Speaker 01: So what in this claim or this patent shows us that the patentee intended to lexicography or disavow [00:20:54] Speaker 01: more than one, i.e. [00:20:55] Speaker 01: the word multi. [00:20:56] Speaker 01: The normal plane understood definition of multi. [00:21:00] Speaker 01: What in this patent shows me they clearly and unmistakably wanted to get away from the plane meaning. [00:21:07] Speaker 02: Because, Your Honor, when the spec talks about [00:21:11] Speaker 02: Communications protocols which are overwhelmingly the focus of the spec I think you will agree they talk about what how they're used they you're used to facilitate Multimedia communications is what you're saying that when it says a method for multimedia Communication it means a method for enabling multimedia communication It encompasses that but it also encompasses encompasses or could encompass the resulting communication itself by virtue of the comprising terms [00:21:39] Speaker 02: The patent is primarily focused on compatibility between signaling. [00:21:42] Speaker 03: Okay, but I don't think that we're trying to figure out what it means without comprising, without the additional stuff that could be included but doesn't necessarily have to be included. [00:21:52] Speaker 03: The question is what does the terminology mean without the comprising aspect of it? [00:22:01] Speaker 03: Is your contention that it means a method for enabling multimedia communication? [00:22:11] Speaker 03: Or does it actually have to include the multimedia data stream itself? [00:22:17] Speaker 02: I think it, we may be going in circles, Your Honors, but I think that the way the board defined multimedia data stream, it has to include that signaling piece. [00:22:30] Speaker 02: And I think that's correct based on what the patent says it's trying to do. [00:22:35] Speaker 02: Imagine that they had said this instead of challenging the construction of multimedia data stream. [00:22:40] Speaker 03: Okay, but what we're struggling with is obviously multimedia data stream in and of itself means content. [00:22:47] Speaker 03: Yes. [00:22:48] Speaker 03: And if the claim one includes transmitting content, then the board's construction is wrong. [00:23:01] Speaker 03: And so I'm asking you, what's your theory as to how to read claim one so that it isn't referring to both the signaling message and the content stream? [00:23:17] Speaker 03: And I've given you a possibility, which is it means [00:23:21] Speaker 03: a method for enabling multimedia communication. [00:23:24] Speaker 03: I don't know whether that's right or not. [00:23:25] Speaker 03: But you have to come up with something where the plain language of the claim is limited in the way the board said it is limited, and the way you said it is limited. [00:23:37] Speaker 02: Well, imagine just for a second, Your Honor, that instead of saying multimedia data stream has to include content, what if they had said instead this is effectively what they are saying? [00:23:48] Speaker 02: that signaling protocol actually means signaling protocol and a transport protocol. [00:23:53] Speaker 02: Because the patent makes a very hard distinction between those two things. [00:23:56] Speaker 02: Communications protocols, signaling protocols, establish connections, which enable the stream. [00:24:03] Speaker 02: Transport protocols carry the media. [00:24:05] Speaker 02: They carry the content, right? [00:24:07] Speaker 02: They knew how to say that. [00:24:09] Speaker 02: If they had wanted to say multimedia data stream in a first protocol [00:24:15] Speaker 02: which comprises a signaling protocol and a transport protocol, that would cover their interpretation. [00:24:19] Speaker 02: The patent knew how to do that. [00:24:21] Speaker 02: It didn't do it. [00:24:22] Speaker 02: So I don't see how you can, you're essentially reading the signaling protocol part out in favor of the transport protocol part. [00:24:30] Speaker 02: If you adopt their interpretation, I don't think that would be appropriate. [00:24:37] Speaker 02: Your Honor, just to conclude, there are a series of fact findings by the board about the existence of a SIP embodiment. [00:24:45] Speaker 02: It is undisputed that SIP does not carry media. [00:24:49] Speaker 02: There are embodiments in the patent that disclose the use of SIP as the first protocol. [00:24:53] Speaker 02: If the claim is to cover those embodiments, it must include only signaling messages. [00:24:59] Speaker 02: And they haven't challenged those fact findings in a meaningful way, because they couldn't, because both experts agreed on that. [00:25:05] Speaker 02: There is clearly evidence from which a reasonable person could reach that conclusion. [00:25:08] Speaker 02: The SIP embodiments alone are sufficient to sustain this, and it's largely what the board [00:25:14] Speaker 02: And as it happens, by the way, they rely a lot on H.323 because it can, in some circumstances, carry media and signaling messages. [00:25:26] Speaker 02: But the record is quite clear that it doesn't always do that. [00:25:29] Speaker 02: There are multiple embodiments of H.323 devices in the rest prior art that disclose H.323. [00:25:41] Speaker 02: establishing connections initially using signaling-only functions, only after which does media flow. [00:25:48] Speaker 02: That's described as a conventional H.323 employment. [00:25:52] Speaker 02: And the rest, and there's another one, there's H.323 in some context, is able to do what's called fast start. [00:26:00] Speaker 02: It can do media and signaling at the same time. [00:26:04] Speaker 02: But rest is quite clear that not every H.323 embodiment can do that. [00:26:08] Speaker 02: Some of them have to signal first. [00:26:10] Speaker 02: So there's multiple embodiments in the prior art and in the claim of signaling protocols that have to be used this way. [00:26:18] Speaker 02: The patent claims them. [00:26:21] Speaker 02: And therefore, claim one has to be interpreted in a way that doesn't read those out. [00:26:26] Speaker 02: The other side hasn't really even disputed that. [00:26:28] Speaker 02: They've just said that, well, there is no such embodiment. [00:26:30] Speaker 02: But there clearly is. [00:26:31] Speaker 02: It's explicit in the patent. [00:26:32] Speaker 01: Where is this in the patent that you think is an embodiment that turns a multimedia data stream into simply a signal or signaling protocol? [00:26:43] Speaker 01: Where is the embodiment? [00:26:45] Speaker 02: Figure 1A is described in column three as essentially describing the first protocol as either a text-based protocol such as SIP [00:26:58] Speaker 02: Or a binary protocol. [00:26:59] Speaker 01: Can you point me to a line where you are? [00:27:00] Speaker 02: Sure, sure. [00:27:01] Speaker 02: So the description of the figure starts at 314. [00:27:05] Speaker 02: The mention of SIP occurs at 326. [00:27:08] Speaker 02: It's describing a text-based embodiment in which the first protocol is SIP. [00:27:16] Speaker 02: The first protocol is SIP. [00:27:18] Speaker 02: SIP is a signaling-only protocol. [00:27:19] Speaker 02: It does not carry media. [00:27:21] Speaker 02: If the patent is to cover this, it must cover embodiments that carry signaling only. [00:27:26] Speaker 02: And that support is sufficient of itself to support the board's interpretation. [00:27:31] Speaker 01: I'm still struggling to find where you're saying this is. [00:27:34] Speaker 01: Can you read me the sentence? [00:27:35] Speaker 01: Sure, sure. [00:27:35] Speaker 02: So at column 314, it begins the description of figure 1A. [00:27:41] Speaker 02: The second paragraph of that is beginning endpoints 101. [00:27:45] Speaker 02: Endpoints 101 and 107 each use a text-based communication protocol such as SIP. [00:27:49] Speaker 02: The other endpoints use binary communication protocols such as H323. [00:27:54] Speaker 01: And it just says these are specific examples of text-based and binary protocols. [00:27:58] Speaker 01: Other protocols may be used as well. [00:28:00] Speaker 01: Yes, but... I'm struggling to see how this is an embodiment where the words multimedia data stream are limited to a signaling protocol. [00:28:12] Speaker 02: It is not in hot verve used that way, Your Honor. [00:28:16] Speaker 02: But again, if the first protocol is SIP, [00:28:19] Speaker 02: We're using this to define multimedia data stream, not saying that multimedia data stream is defined in this passage. [00:28:25] Speaker 02: What we're saying is, for claim one to be operative, for it to cover the embodiment that the board found as fact is expressed in the patent, that is to say a SIP only embodiment is the first protocol, it has to carry... But where is that? [00:28:40] Speaker 01: Where is the SIP only embodiment? [00:28:42] Speaker 02: Your Honor, if endpoint 101 and 107 each use a text-based communication protocol such as SIP, [00:28:48] Speaker 02: That is an embodiment using SIP. [00:28:49] Speaker 02: It could also be other embodiments, but it has to cover SIP, because it says SIP. [00:28:53] Speaker 02: In fact, there are only two communications protocols even described in the patent, SIP and H.323, both of which are capable of launching and exchanging multimedia communications, beginning with a signaling-only portion, which is the part that is claimed by claim one. [00:29:10] Speaker 02: Remember, I'm out of time. [00:29:11] Speaker 02: If you have further questions, I'm happy to entertain them. [00:29:14] Speaker 01: Thank you very much, Mr. Eaton. [00:29:15] Speaker 01: Mr. Ross, you have some rebuttal time. [00:29:28] Speaker 04: Your Honor, let me start with this initiation colloquy that you have. [00:29:32] Speaker 04: There is not a purely signaling portion to the initiation. [00:29:36] Speaker 04: The patent says that at column four, lines 21 through 26, where it says, and I'm reading, when initiating multimedia communications, an endpoint transmits the multimedia data stream. [00:29:53] Speaker 04: It does not transmit just a signaling data stream. [00:29:55] Speaker 04: It transmits a multimedia data stream, even at initiation. [00:30:00] Speaker 04: Now, with respect to the SIP only embodiment, first, no such embodiment can exist, because SIP can't carry media. [00:30:10] Speaker 04: So there would be no multimedia communication. [00:30:13] Speaker 04: But Your Honor, you can't read this section that you were just discussing, column three, lines 25 on. [00:30:20] Speaker 04: Unless you understand that over on column one at lines 31 through 34, the patent expressly says that SIP must rely on multiple other protocols for sending and receiving multimedia traffic. [00:30:37] Speaker 04: In other words, SIP never acts by itself. [00:30:40] Speaker 04: SIP only acts with other, multiple other protocols to send and receive multimedia traffic. [00:30:48] Speaker 04: That specifically puts the dagger into this notion of a SIP-only embodiment. [00:30:57] Speaker 04: Finally, with respect to the data issue, the notion that signaling is equal to data, that's distinguished on column four at lines 47 to 51, where it expressly differentiates. [00:31:12] Speaker 01: Even if signaling was data because, say, it's a text-based communication, which could be viewed as data, it's not media. [00:31:18] Speaker 01: That's correct your honor. [00:31:19] Speaker 01: So why don't we stick with that? [00:31:21] Speaker 01: I'm fine with that your honor. [00:31:22] Speaker 04: With that we'll rest rely on the arguments in our brief your honor. [00:31:26] Speaker 01: Thank you. [00:31:27] Speaker 01: Thank you both counsel. [00:31:28] Speaker 01: This case is taken under submission. [00:31:29] Speaker 01: You all don't have to move you can stay where you are.