[00:00:00] Speaker 04: All right, the next argued case is number 20, 2167, Genuine Enabling Technology Against Nintendo Company. [00:00:09] Speaker 04: Mr. Padnipapan. [00:00:12] Speaker 00: Thank you, Your Honor. [00:00:13] Speaker 00: May it please the Court. [00:00:15] Speaker 00: The District Court's claim construction should be reversed for three reasons. [00:00:20] Speaker 00: One, the District Court's construction is contrary to the statements made by the inventor to distinguish the Yolen reference. [00:00:30] Speaker 00: The district court improperly relied on expert testimony when there was no ambiguity, and the district court identified none. [00:00:40] Speaker 00: And lastly, three, the district court used expert testimony to determine what the inventor should have said in distinguishing Yolen and not focused on what he actually said. [00:00:52] Speaker 00: Your Honors, each of these approaches violates the focus this court's law places on the intrinsic evidence [00:01:00] Speaker 00: construe claims. [00:01:01] Speaker 00: It also violates the underlying reason for the emphasis this court places on the intrinsic evidence, which is that it serves a public notice function. [00:01:11] Speaker 00: Based on the statements made by the inventor, the intrinsic evidence shows that the public had noticed that the input signal referred to signals containing 20 hertz or higher frequencies. [00:01:23] Speaker 00: The public never had noticed. [00:01:26] Speaker 03: Counsel, this is DeGrena. [00:01:28] Speaker 03: Let's go to your second point that you raised. [00:01:30] Speaker 03: We launched on expert testimony. [00:01:33] Speaker 03: I don't think you're saying that expert testimony has no place in claim construction that involves disclaimer of claim scope, correct? [00:01:47] Speaker 03: That's not your argument. [00:01:48] Speaker 03: That is not my argument. [00:01:50] Speaker 03: There is a place for extrinsic evidence, or as in this case, expert [00:01:56] Speaker 03: expert evidence. [00:01:59] Speaker 03: Yes. [00:01:59] Speaker 03: Does that expert evidence apply to the question as to whether there's been a clear and unmistakable disclaimer, or does it go to the secondary part of that, and that is the claim construction after the initial question of whether there's been a disclaimer of claim scope or not? [00:02:23] Speaker 03: Where does expert opinion apply in this type of scenario? [00:02:30] Speaker 00: Your Honor, the expert opinion can apply to that first question on whether there's clear disclaimer. [00:02:38] Speaker 00: But here is the caveat to it all, I think, based on your law, which is that when that analysis is being done, if the statements are clear as to what has happened, [00:02:52] Speaker 00: then there is really no place for expert testimony to reinterpret those statements. [00:02:58] Speaker 03: And in fact... Who makes that decision whether they're clear or not? [00:03:04] Speaker 03: It just seems to me that any exercise involving determining whether there's been a disavow or disclaimer of claim scope, that it inherently involves ambiguities. [00:03:17] Speaker 03: I mean, you're going to get arguments on both sides [00:03:21] Speaker 03: taking different positions. [00:03:23] Speaker 00: So let me answer that with an example from this case, Your Honor, but I think the way this court's law addresses extrinsic evidence like expert testimony is one bright line is if you're using expert testimony to contradict otherwise clear language from the intrinsic evidence. [00:03:42] Speaker 00: And so that's where I think this court has drawn a fairly bright line. [00:03:47] Speaker 00: And one example of that is [00:03:49] Speaker 00: One of the statements that's very clear from the inventor, Mr. Nguyen's statements to the Patent Office in distinguishing Yolen was that slow varying signals are not signals that contain audio or higher frequency. [00:04:05] Speaker 00: And if you just take that statement, there's nothing ambiguous about that. [00:04:10] Speaker 03: The court's construction... That's not where the extra testimony was used to reach that decision. [00:04:18] Speaker 03: The decision, the expert testimony seems to me to be used as to whether the claim construction, after that decision has been made of what was disavowed, then is whether on the claim construction, that's the disavowed signals or frequencies, whether the disavowed signals have frequencies up at least to 500Hz. [00:04:45] Speaker 00: Yes, and so that, but that is exactly where the, that is partly exactly where the error is, your honor. [00:04:51] Speaker 00: So when you know that the inventor has told the patent office, we have slow varying signals and we have signals that contain signal frequencies greater than 20 Hertz. [00:05:03] Speaker 00: The court now saying, [00:05:04] Speaker 00: I'm going to change that border from 20 hertz or the audio frequency range now to 500 hertz. [00:05:12] Speaker 00: That's contradicting the direct statement. [00:05:15] Speaker 03: Well, isn't that where the expert testimony came in? [00:05:20] Speaker 00: But that's where it's contrary to the law. [00:05:22] Speaker 00: There's no basis to bring in expert testimony to vary the clear, intrinsic evidence. [00:05:27] Speaker 03: You can't change that. [00:05:29] Speaker 03: No, no, no, no. [00:05:29] Speaker 03: Isn't that claim construction at that point? [00:05:32] Speaker 00: It is not, Your Honor. [00:05:34] Speaker 00: I'm sorry. [00:05:34] Speaker 00: I don't mean to interrupt. [00:05:35] Speaker 00: Go ahead and finish, and I'll start. [00:05:37] Speaker 00: I apologize. [00:05:38] Speaker 03: The decision has already been made as to whether there's clear, unmistakable disvalued clean scope, OK? [00:05:46] Speaker 03: And that decision was the low frequency, where we're left with a Yolen reference as to the low frequency. [00:05:56] Speaker 03: Now, it seems to me that expert testimony was brought in to say, what do we have left? [00:06:00] Speaker 03: What does that mean? [00:06:02] Speaker 03: low frequency, and that's where the experts said, well, it goes up to at least 500 hertz. [00:06:09] Speaker 00: No, Your Honor. [00:06:10] Speaker 00: I actually, I think once the court has made, and I say this respectfully, but once the court has really made the decision that what Mr. Wen told the Patent Office was, I distinguish you [00:06:24] Speaker 00: because it does not, it, we have, it discloses slow varying signals and does not address audio or higher frequency signals, which is 20 Hertz or greater. [00:06:32] Speaker 00: At that point, using an expert to come in and say, I'm going to look at Yolen and I'm going to tell you that the real distinction should be at 500 or greater is improper under this court's law. [00:06:46] Speaker 00: That's claim construction there. [00:06:48] Speaker 03: The decision's already been made. [00:06:50] Speaker 03: What? [00:06:50] Speaker 03: That Yolen? [00:06:51] Speaker 03: discusses or does not discuss audio or higher frequencies. [00:06:56] Speaker 03: And the question is, well, what's that decision that's been made? [00:07:01] Speaker 03: Then the expert seems to me that was brought in to discuss, what is audio or higher frequencies? [00:07:10] Speaker 00: In this case, every expert agrees audio or higher frequencies means 20 hertz or greater. [00:07:16] Speaker 00: So what the... Oh, sorry. [00:07:20] Speaker 01: I don't want to interrupt. [00:07:22] Speaker 01: I wanted to just ask a quick question, which was, counsel, do you think that Mr. Nguyen distinguished Yolen because Yolen doesn't teach audio or higher frequencies, or was it that he didn't think that Yolen would work with audio or higher frequencies? [00:07:42] Speaker 01: Several times he says that Yolen won't work. [00:07:45] Speaker 01: For example, even on page 1785 of the appendix, he says that an artisan may want to combine two signals coming from different sources, one from a UI and another from an audio or higher frequency signal. [00:08:04] Speaker 01: However, both the patents, that is Burnett and Yolen, do not anticipate the problem of generating a composite signal. [00:08:11] Speaker 01: And then it says Burnett would not work, and it says Yolen's method [00:08:15] Speaker 01: only works for slow-bearing signals, then says that he has a framer that would work with both an audio or higher frequency with a slower frequency signal. [00:08:32] Speaker 01: So again, my question is a little complicated, but do you think that he was saying that Yolen doesn't have a higher frequency signal, or was he saying that Yolen wouldn't work with a higher frequency signal? [00:08:45] Speaker 00: So Your Honor, he clearly says the latter because he talks about that collision problem and for the sentences you read. [00:08:53] Speaker 00: But he also actually does say Yolen only teaches slow varying signals. [00:09:01] Speaker 00: Because he has a sentence, and I can do it from the pages you're on too, he says on page appendix 1784, [00:09:13] Speaker 01: He says, your online only uses the configuration to receive the slow-varying signal from the physiological response sensors. [00:09:22] Speaker 01: I think that's the sentence you're referring to. [00:09:24] Speaker 01: Yes, Your Honor. [00:09:25] Speaker 01: But again, he's referring to the configuration, and he says to receive the slow-varying signal. [00:09:31] Speaker 01: And all of this has to be read in context of the entire discussion, right? [00:09:35] Speaker 00: Right. [00:09:36] Speaker 00: Um, so if, if, if, if, with that interpretation, your honor, uh, if you could say that he's really going towards Yolen doesn't implement it, but the way, the way it can also be interpreted fairly is I think what he's saying is for Yolen, whatever their implementation is, it's all slow varying signals. [00:09:56] Speaker 00: I think that's a part, part of the statement that I think he is making there. [00:10:01] Speaker 00: that he has read Yolen, he's representing Yolen to the patent office and saying, hey, this is addressing only slow-varying signals, and you're right in, he's also saying it cannot handle something with faster signals, the audio or higher frequency signals, but that is the main implication, yes. [00:10:28] Speaker 00: Your Honor, [00:10:29] Speaker 00: because I'm out of time, unless there's other questions, I'll just make one point and then I'll save the balance for my rebuttal is I just want to make sure this court knows or remembers that this term input signal was also interpreted in a Delaware case. [00:10:49] Speaker 00: And in that case, the Delaware court actually construed input signals to be audio or higher frequencies based on the intrinsic record. [00:10:57] Speaker 00: And the reason I bring this to your attention is that this is not your typical situation where you're reviewing whether the district court construed the claim properly. [00:11:06] Speaker 00: There are two district courts that have construed the same term in two different ways. [00:11:12] Speaker 00: The other one is not ready for your review. [00:11:14] Speaker 00: And as such, effectively, you're deciding which district court got it right. [00:11:19] Speaker 00: And to be clear, Sony, the defendant in the other case, asked the Delaware court to reconsider its claim construction [00:11:27] Speaker 00: based on this Washington court's decision, the district court reviewed this decision and decided not to change its construction. [00:11:34] Speaker 00: Was that unless you have other? [00:11:36] Speaker 00: Yes. [00:11:37] Speaker 01: So do I also remember correctly that there were two IPRs in which the board also interpreted this term to say that the disclaimer was of signals that are not audio or higher frequencies? [00:11:50] Speaker 00: Yes, Your Honor. [00:11:51] Speaker 00: In fact, I think there's three, but they all said the same. [00:11:56] Speaker 04: Okay. [00:11:58] Speaker 04: Any more questions? [00:12:00] Speaker 03: Yes, may I ask you another question? [00:12:01] Speaker 04: Yes, of course. [00:12:03] Speaker 03: Okay. [00:12:05] Speaker 03: I see that the court explained at J-16 that based on Yolan's disclaimer of slow variant singles, the court said that the opponent would understand that the upper bound of slow variant singles covered by Yolan to set the lower bounds of fast variant singles covered by the 730 patent. [00:12:26] Speaker 03: First of all, I'm not sure that this particular factor or what I just read, this position that I just read was considered in the other district court cases, but what does that say to you? [00:12:43] Speaker 00: Your Honor, I'm sorry, I'm reading it right now. [00:12:45] Speaker 00: You're looking at the last sentence based on this expressed disclaimer of Yolan's slow-varying signals. [00:12:49] Speaker 00: Is that the sentence you read to me, Your Honor? [00:12:51] Speaker 03: Yes, that a person of ordinary skill and art would, quote, understand the upper bound of slow-varying signals covered by Yolan. [00:12:59] Speaker 03: So the upper bound of slow-varying signals covered by Yolan set the lower bound of fast-varying signals covered by the 730 patent. [00:13:07] Speaker 00: Yeah, and Your Honor, the problem... Can you dispute that? [00:13:13] Speaker 00: I do dispute it to the extent that it varies from what Mr. Wen told the Patent Office. [00:13:22] Speaker 00: So when, if you read in context what he's saying is Yolen cannot handle a signal that's both slow varying and one with audio or higher frequencies. [00:13:35] Speaker 00: So the minute you have that as his line, he's drawn a line saying Yolen can never be in a situation where you have [00:13:42] Speaker 00: signals that are both slow varying and something over 20 and handle it. [00:13:46] Speaker 00: And so trying to go in the back door and saying, I'm going to make slow varying into the greater than 20 violates that rule because now you're actually saying something that's contradictory to what Mr. Wen told the Patent Office to distinguish Yolen, which is Yolen can never handle that situation where you have something that's slow varying and a signal that contains a frequency greater than 20. [00:14:10] Speaker 00: And so I disagree with the court on that because I don't think a person of ordinary still in the arc would read that because Mr. Wen is so clear that Yolen cannot handle signals where you have both slow varying and something that's greater than 20 hertz. [00:14:28] Speaker 00: And because he even says it's a collision problem. [00:14:30] Speaker 03: Did the expert testimony, did that evidence go to answering this particular point? [00:14:38] Speaker 03: No. [00:14:40] Speaker 00: What the expert really kind of did was, Your Honor, he went the other way. [00:14:44] Speaker 00: He just took Yolen and didn't worry so much about Mr. Wen's statements. [00:14:49] Speaker 00: He took Yolen and he said, at the time, I think you can have physiological sensors that can go up to 500 hertz. [00:14:57] Speaker 00: And then they just backed into it and said, okay, well, then that must be how you read it, which is contrary to exactly how we do claim construction. [00:15:05] Speaker 00: It now left the intrinsic record and started to look at Yolin and started to say, well, what would the patentee really mean in this context, not holding him to the words that he actually said to the patent office. [00:15:22] Speaker 03: Thank you. [00:15:23] Speaker 04: Okay, and anything else at the moment? [00:15:24] Speaker 04: We'll save you rebuttal time. [00:15:26] Speaker 04: Let's hear from Mr. Riebinger. [00:15:29] Speaker 02: Thank you, Your Honor. [00:15:30] Speaker 02: First, I'd like to address a couple of the points that Mr. Padmanabhan made. [00:15:36] Speaker 02: First, regarding the Sony case. [00:15:38] Speaker 02: The Sony case was based on a different record and different arguments. [00:15:43] Speaker 02: The arguments that were submitted to the district court, the District of Washington, that resulted in the claim construction in this appeal were not submitted to the court in Delaware. [00:15:54] Speaker 02: until after the district court in Washington made its ruling. [00:15:58] Speaker 02: And at that point, the judge in the Sony case said that it was too late for Sony to propose new arguments. [00:16:06] Speaker 02: So it was not a circumstance where the district of Delaware affirmed its conclusion despite what the district court of Washington said. [00:16:16] Speaker 02: They simply said it was too late for Sony to make those arguments. [00:16:19] Speaker 02: And regarding the patent trial and appeal board conclusion, [00:16:23] Speaker 02: They did say that the input signal was audio or higher, but they added a very important additional comment. [00:16:31] Speaker 02: The parties had argued about whether they needed to be higher. [00:16:35] Speaker 02: The input signals needed to be higher than the user input. [00:16:40] Speaker 02: And the PTAB said that we do not need to set the exact point for the purposes of the IPR, but they stated that the [00:16:53] Speaker 02: input signals need to have frequencies that are significantly higher than the user input signals. [00:17:00] Speaker 01: Counsel, this is Judge Stoll. [00:17:01] Speaker 01: I just wanted to ask you, I think that, do I understand you to believe that there's maybe two disclaimers here? [00:17:08] Speaker 01: One is disclaimer of signals that are not audio or higher, and secondly, a disclaimer of slow-bearing signals in Yolen. [00:17:21] Speaker 02: Yes, Your Honor, that is correct. [00:17:23] Speaker 02: We believe that there were two disclaimers, and the district court's claim construction that's on appeal here is focused on the first disclaimer, where both parties agreed that Yellen's physiological response sensor signals were disclaimed based on the frequency. [00:17:37] Speaker 01: Now, I think maybe there's one sentence that's the strongest to support you on that. [00:17:43] Speaker 01: It's on 1784, the one about Yellen only uses the configuration to receive this low-bearing signal coming from the physiological response sensors. [00:17:52] Speaker 01: Do you agree with that? [00:17:53] Speaker 02: Yes, that is a strong support for our position, Your Honor. [00:17:57] Speaker 01: Don't I have to read that, though, in light of all the other things that are said on these two pages at 1784 to 1785? [00:18:02] Speaker 01: I mean, he says three times after that that Yolen doesn't anticipate audio or higher frequencies. [00:18:12] Speaker 01: And he says that his invention uses audio or higher frequencies. [00:18:16] Speaker 01: He says it at least three times. [00:18:18] Speaker 01: So don't I have to read that? [00:18:21] Speaker 01: that language about slow-varying and Yellen in the context of all the other things that are said? [00:18:28] Speaker 02: Yes, Your Honor. [00:18:29] Speaker 02: The statements in the prosecution history are all read together. [00:18:33] Speaker 02: We agree with that. [00:18:35] Speaker 02: But the statements about audio or hire are not at all as clear as the distinction, the disavowal of the Yellen physiological response sensor signals. [00:18:46] Speaker 02: Because the actual language that is used [00:18:50] Speaker 02: It talks about Yellen not using signals to receive, and here's the quote, signals containing audio or higher frequencies. [00:19:01] Speaker 02: So that's phrased in the alternative. [00:19:02] Speaker 02: It's not a definitive statement. [00:19:05] Speaker 02: It's a disclaimer of signals not containing audio frequencies, or it's a disclaimer of signals not containing frequencies higher than audio. [00:19:14] Speaker 02: Whereas in contrast, we have a very express and agreed [00:19:19] Speaker 02: disclaimer of the Yellen physiological response sensor signals. [00:19:24] Speaker 01: Now the question I asked your opposing counsel earlier, and I apologize for interrupting you. [00:19:33] Speaker 01: I want you to know that I'm a little skeptical of your position, so that's why I'm asking all these questions. [00:19:38] Speaker 01: I want to give you the fairest chance to respond to my concerns, okay? [00:19:42] Speaker 01: So one of my questions is I read this entire context and I see where it said over and over again that Burnett and Yolen just aren't able to or don't anticipate the problem of this collision and that they only work for these slow varying signals. [00:20:04] Speaker 01: Not to be distinguished from saying Yolen doesn't disclose anything but slow varying signals. [00:20:10] Speaker 01: it seems to be saying Yolen couldn't work with anything other than slow-varying signals. [00:20:16] Speaker 01: And there's several places where it talks about how Yolen doesn't teach or suggest a method that could combine a high-frequency signal with a low-frequency signal. [00:20:30] Speaker 01: And so what is your response to that? [00:20:33] Speaker 02: Your Honor, the disclaimer of Yolen signals based on frequency is expressed. [00:20:40] Speaker 02: Whether it was something that was necessary doesn't change the fact that a person of ordinary skill reading the prosecution history would understand that Yolen's signals were disclaimed. [00:20:52] Speaker 02: All of the frequencies of Yolen's signals, not just the frequencies below 20 hertz and not just the frequencies that didn't overlap with audio. [00:21:02] Speaker 02: And it includes that bottom 2.5% of the audio range. [00:21:07] Speaker 01: Do you want to get into some specific sentences I should be looking at? [00:21:11] Speaker 01: Because to be honest, what you're saying to me is a little conclusory. [00:21:15] Speaker 02: Yes, Your Honor. [00:21:16] Speaker 01: OK, thank you. [00:21:18] Speaker 02: Yes, Your Honor. [00:21:19] Speaker 02: Of course, there is primarily the statement that Yolen only uses the configuration to receive the slow-varying signal coming from the physiological response sensors. [00:21:30] Speaker 02: That doesn't say that some of the physiological response sensor signals [00:21:35] Speaker 02: are slow-varying. [00:21:36] Speaker 02: It says that they all are. [00:21:38] Speaker 02: So whatever is the signal characteristic of Yellen, that was disclaimed. [00:21:44] Speaker 02: But it's also the purpose of the invention. [00:21:48] Speaker 01: If you look at what Mr. Nguyen invented, he combined... Go back to his pages on page A, 1784 to 85, because that's what really I need to focus on to see what he said. [00:22:00] Speaker 01: So what other sentence do you think supports your position here? [00:22:05] Speaker 02: If you look at page 1784, which is also page 3024, there is a statement that Yellen's invention does not teach or suggest any approach for receiving and recovering that kind of input signal. [00:22:21] Speaker 02: So what the inventor is saying is that there is nothing in Yellen that is consistent with an ability to deal with signals above the bottom of the audio range. [00:22:35] Speaker 02: That's not the same thing. [00:22:36] Speaker 01: That doesn't say that he thinks that Yolen's physiological sensors provide frequency signals that are not in the audio or higher frequency range. [00:22:51] Speaker 01: He's saying that it doesn't have the hardware to or any approach for dealing with that kind of input signal. [00:22:59] Speaker 02: What it's saying, Your Honor, is that all of Yolen is disclaimed, not just part of it. [00:23:04] Speaker 02: And what he intended to disclaim, what his interpretation, what his personal belief was, that's not the standard. [00:23:11] Speaker 02: The C-Change case that we cited in our brief makes that clear. [00:23:14] Speaker 02: The standard is an objective one, not the subjective intent. [00:23:18] Speaker 01: What if it turns out that Mr. Yolen was mistaken? [00:23:22] Speaker 01: He was mistaken. [00:23:23] Speaker 01: He thought that Yolen was just limited to below 20 hertz, or audio frequency. [00:23:31] Speaker 01: Should we hold that mistake against him? [00:23:34] Speaker 01: Does our case law say that it does say that we should hold that mistake against him, right? [00:23:41] Speaker 02: Yes, it does, Your Honor. [00:23:42] Speaker 01: OK. [00:23:44] Speaker 02: The standard is how a person of ordinary skill would understand what was disclaimed, regardless of the intensity of the impact. [00:23:50] Speaker ?: Right. [00:23:50] Speaker 01: Now, what about this? [00:23:51] Speaker 01: What if he actually was wrong in saying that Yolen couldn't handle frequencies of audio or higher? [00:23:58] Speaker 01: Would we hold that against him? [00:24:01] Speaker 02: It depends on how a person of ordinary skill, Your Honor, would understand that sentence. [00:24:06] Speaker 02: We believe a person of ordinary skill would understand that sentence and the rest of the prosecution history to say that all of the Yalan frequencies were disclaimed. [00:24:17] Speaker 02: That the Yalan frequencies were slow-varying and they're not for the purpose of the invention, which is to combine fast and slow. [00:24:25] Speaker 02: That's, by the way, consistent with the way the Patent Office looked at it. [00:24:29] Speaker 01: Can I ask you another question, which is that your methodology, this methodology that was used for understanding the scope of Mr. Nguyen's disclaimer seems very unusual. [00:24:41] Speaker 01: Do you know a single case from this court that used expert testimony, testing embodiments, and the distinguished prior art to understand the scope of an inventor's prosecution history disclaimer? [00:24:54] Speaker 02: Not those exact facts, Your Honor, but the Paul case, which we cited, [00:24:59] Speaker 02: is very much on point because in the Paul case, there was a disclaimer of art in a brochure. [00:25:05] Speaker 02: And as this court said, the question became, what did the brochure disclose? [00:25:11] Speaker 02: And it was remanded for the district court to go back and determine that evidentiary question, what did the brochure disclose? [00:25:18] Speaker 02: In this instance, the district court has done that work. [00:25:21] Speaker 02: They did the work by consulting an expert. [00:25:25] Speaker 02: whose declaration was not contested by GET. [00:25:29] Speaker 02: They could have chosen to contest the declaration, but they chose not to. [00:25:33] Speaker 02: And so the district court has done the work and determined effectively what's in Yellen. [00:25:40] Speaker 02: What does it disclose? [00:25:41] Speaker 02: It discloses a range of frequencies. [00:25:43] Speaker 02: And Dr. Chizik did that by reference to contemporary [00:25:47] Speaker 02: the contemporary as of the time of the invention. [00:25:49] Speaker 01: Sure. [00:25:50] Speaker 01: Can I ask you something else? [00:25:51] Speaker 01: I'm certainly familiar with that declaration. [00:25:54] Speaker 01: I know exactly what you're talking about. [00:25:56] Speaker 01: My other question is, did you present an invalid defense here based on Yellen, or did you present a non-infringement defense based on practicing the prior art? [00:26:07] Speaker 02: The appeal in this case is based on the summary judgment. [00:26:11] Speaker 01: I understand that. [00:26:12] Speaker 01: I'm just asking if you presented those other defenses. [00:26:16] Speaker 02: Not in the summary judgment motion, Your Honor, but they are defenses that are present in the case. [00:26:22] Speaker 02: So the summary judgment was based first on what we believe is the correct claim construction, and we had an alternative argument of indefiniteness. [00:26:31] Speaker 02: But in the summary judgment motion, we only presented the argument that the proper construction, under the proper construction, there cannot be infringement. [00:26:41] Speaker 04: Thank you. [00:26:44] Speaker 04: Any more questions for Mr. Reidinger? [00:26:50] Speaker 01: Time for me. [00:26:51] Speaker 04: All right. [00:26:52] Speaker 04: And rebuttal from Mr. Padmanabhan. [00:26:56] Speaker 00: Thank you, Your Honor. [00:26:58] Speaker 00: So let me just start with the last question that Your Honor asked. [00:27:04] Speaker 00: Yolen is not one that Nintendo relies on in the District Court Parade and Validity. [00:27:10] Speaker 00: That is not one of their charted references. [00:27:12] Speaker 00: We have a local practice there where [00:27:14] Speaker 00: everybody has to chart the references, and Yolen is not a charted reference. [00:27:18] Speaker 00: And separately, there is not a defense from Nintendo based on practicing the prior art. [00:27:25] Speaker 00: And so I would disagree with Mr. Riedinger on that. [00:27:30] Speaker 00: The only other point I just want to quickly address, Your Honor, we address the Paul case in our papers. [00:27:38] Speaker 00: But in the Paul case, it's very different in that [00:27:42] Speaker 00: the statements that they're all looking at from the patent holder was that actually implicated by, all they say is none of the materials disclosed, none of the materials in the brochure disclosed these claims. [00:27:56] Speaker 00: And it's a very general statement, so you have to go back to the brochure to look at what are they talking about. [00:28:02] Speaker 00: Here, for the reasons we've all discussed, this really comes down to a few paragraphs [00:28:08] Speaker 00: And the focus for Mr. Wen's statements throughout is really about handling these two types of signals, slow varying versus signals having audio or higher frequencies. [00:28:20] Speaker 00: And really, that is the focus of his statement. [00:28:23] Speaker 00: Whether he's right or wrong, that's the line he drew. [00:28:25] Speaker 00: And that's the disclaimer that people have found. [00:28:29] Speaker 00: And it's the appropriate disclaimer for this case. [00:28:31] Speaker 00: Unless there are other questions, I have nothing else, Your Honor. [00:28:34] Speaker 04: Any more questions? [00:28:38] Speaker 04: No. [00:28:39] Speaker 04: All right, well then, with thanks to counsel, the case is taken under submission. [00:28:43] Speaker 04: That concludes our argued cases for this morning. [00:28:48] Speaker 00: Thank you, Your Honor. [00:28:50] Speaker 04: The honorable court is adjourned until this afternoon at 2 p.m.