[00:00:00] Speaker 01:
The next case for argument is 20-1828, Intel versus Qualcomm.

[00:00:08] Speaker 01:
Mr. Saunders, are you ready?

[00:00:10] Speaker 01:
Good morning.

[00:00:11] Speaker 04:
May I please report.

[00:00:13] Speaker 04:
So the board here adopted a new clean construction of hardware buffer not put forward by either party that excludes a temporary buffer.

[00:00:23] Speaker 04:
And it admitted that it didn't find any guidance in the claims that would lead it to this limitation.

[00:00:31] Speaker 04:
It also looked to the specification and noted hardware buffer is only used three times and doesn't provide much of any guidance on the meaning there.

[00:00:41] Speaker 04:
But still, based on a misreading of the discussion of temporary buffer in the specification, it read in this limitation.

[00:00:49] Speaker 02:
Can I ask you to read this?

[00:00:54] Speaker 02:
So the claim language says system memory and hardware buffer.

[00:00:59] Speaker 02:
That seems to me to imply, in the absence of anything else, the hardware buffer can't be in the system memory.

[00:01:05] Speaker 02:
And a large part of what's the substantive point of the specification description of what's going on here is they want to find a way to speed up

[00:01:17] Speaker 02:
the movement of the data portion of the software that's transferring from the primary processor to the secondary processor, mostly by avoiding a second copy process, a copy operation, two times I think the spec says.

[00:01:35] Speaker 02:
What we're trying to do here is to avoid an unnecessary copy operation.

[00:01:39] Speaker 02:
And that means the one thing you cannot do if you have a hardware buffer is borrow a piece of the system memory that the processor has to read from and then write to.

[00:01:54] Speaker 02:
in an ordinary copy operation, and that's what Svensson does.

[00:01:58] Speaker 02:
So that, in effect, what's excluded by hardware buffer is temporary use of system memory for which a copy operation would be necessary.

[00:02:10] Speaker 02:
And I realize that's not exactly what the board said, but as I think your colleague said a moment ago, not a moment ago, 30 moments ago, we get to decide this question to Nova.

[00:02:23] Speaker 04:
Right, that's definitely not what the board said.

[00:02:25] Speaker 04:
In terms of the directness here, and I would point you towards pages 45 and 46 of the appendix in analyzing some of the other claims.

[00:02:35] Speaker 02:
45 and 46?

[00:02:35] Speaker 04:
45 and 46.

[00:02:37] Speaker 04:
The board points out that the 949 patent, this is no more direct

[00:02:46] Speaker 04:
what we have in our prior combination.

[00:02:49] Speaker 04:
In our prior combination you have an intermediate storage area in one section of RAM.

[00:02:56] Speaker 04:
So you're going from the primary processor to that

[00:02:59] Speaker 04:
and then to the final location, which is the system memory.

[00:03:04] Speaker 04:
It's in the external RAM, physically separate from where our buffer is.

[00:03:10] Speaker 02:
As I read the spec, it acknowledges that's kind of prior art.

[00:03:16] Speaker 02:
Maybe the key problem, but in any way, a key problem is that if you do that, you have to have two copy operations, one into the, the.

[00:03:26] Speaker 04:
That's no joke.

[00:03:27] Speaker 04:
You have a copy operation in the nine for nine patent.

[00:03:30] Speaker 04:
You have a copy operation into the hardware buffer.

[00:03:34] Speaker 04:
And then you have a copy operation that goes from the hardware buffer to the system memory, the sort of final location where it's going to be executed from.

[00:03:42] Speaker 02:
I thought the specs as quite expressive.

[00:03:45] Speaker 02:
That's, in fact, not what you have.

[00:03:47] Speaker 02:
You don't have a reading of whatever the steps are by the CPU of what's in the hardware buffer.

[00:03:59] Speaker 02:
It's passing through without those extra steps.

[00:04:03] Speaker 02:
Well, but it's moving.

[00:04:04] Speaker 04:
I mean, there is a sort of zero flow section, zero copy section of specification.

[00:04:11] Speaker 04:
But for this claim, where you have the hardware buffer, it's in between.

[00:04:17] Speaker 04:
It goes into the hardware buffer, where it's temporarily stored, and then goes into the final destination.

[00:04:25] Speaker 04:
So this is why, on pages 45 and 46, the board looks at this for some of the other claims.

[00:04:35] Speaker 04:
nothing that's more direct about the 949 patent than what we have in the prior art here.

[00:04:44] Speaker 02:
Let's stipulate that the board says that.

[00:04:46] Speaker 02:
Why isn't the board wrong?

[00:04:48] Speaker 02:
Because if you were looking at what the 949 says, here's the thing that we struggled to do, that we have come up with a way to basically double the rate we would otherwise be able to get by not having the processing time of this, what is called an avoidable copy operation.

[00:05:10] Speaker 02:
Precisely because the CPA is not addressing the system memory and doing the multiple steps, which I wouldn't be able to describe to you, but doing the multiple steps that takes time and processing power.

[00:05:23] Speaker 04:
Right, so it has to do with the headers.

[00:05:25] Speaker 04:
So first let me explain why, you know, in the face of Claim 1, you have the multiple copying steps in the sense that the executable software image starts in the non-volatile memory of the primary processor.

[00:05:40] Speaker 04:
Where does it go from there?

[00:05:41] Speaker 04:
It goes to the hardware buffer.

[00:05:44] Speaker 04:
Where is the hardware buffer?

[00:05:46] Speaker 04:
The hardware buffer is on the secondary processor, the secondary processor comprising system memory and hardware.

[00:05:53] Speaker 02:
It's specifically in, what's this little pumping engine, what's the word engine go with?

[00:05:59] Speaker 02:
The DMA.

[00:06:00] Speaker 04:
You didn't?

[00:06:01] Speaker 02:
I know, sorry.

[00:06:02] Speaker 04:
It's right when memory access.

[00:06:03] Speaker 04:
I mean, it doesn't, not in the claim, the claim, just looking at claim one, you just have to look at the appendix.

[00:06:10] Speaker 04:
Secondary process.

[00:06:11] Speaker 02:
So I'm looking at figure three, the physical data pipe and the, oh, the hardware transport mechanism, I'm sorry.

[00:06:20] Speaker 04:
Right, there's a hardware transport mechanism.

[00:06:22] Speaker 02:
And their initial proposal, proposed claim construction, it has to be a buffer in the

[00:06:29] Speaker 02:
hardware transport mechanism, isn't that right?

[00:06:32] Speaker 04:
That was their construction.

[00:06:33] Speaker 02:
And why was that wrong?

[00:06:34] Speaker 04:
And that was wrong because the only time you see that mentioned is in figure three.

[00:06:39] Speaker 02:
But why isn't that exactly what the whole package is describing when it says the hardware, first of all, claim language, hardware buffer different from system memory, right?

[00:06:49] Speaker 02:
It says both.

[00:06:50] Speaker 02:
That suggests actually the hardware buffer can't be in the system memory.

[00:06:54] Speaker 02:
So it's somewhere else.

[00:06:55] Speaker 02:
It's in this hardware transport mechanism.

[00:06:59] Speaker 02:
And that, the patent says, is what enables you to avoid an extra copy operation.

[00:07:04] Speaker 04:
Right.

[00:07:04] Speaker 04:
And so in our prior, I mean, I'll work from the decades, in our priority, it is somewhere else.

[00:07:09] Speaker 04:
The system memory, the execution of the program.

[00:07:12] Speaker 02:
There are two addressable memories in Swenson under the line.

[00:07:16] Speaker 02:
Both of them are fully addressable and would constitute system memory.

[00:07:23] Speaker 02:
western piece of the one on the left.

[00:07:28] Speaker 04:
We had put forward extra testimony at length talking about how the

[00:07:35] Speaker 04:
The one that was sort of on chip, the first location where the intermediate software buffer is, isn't system memory.

[00:07:42] Speaker 04:
It's not where this is being executed from.

[00:07:45] Speaker 04:
It's a separate memory that's in between, just like the hardware buffer in the claim is a separate memory that's in between.

[00:07:54] Speaker 04:
And the hardware transport mechanism, I mean, that's something that is shown only in figure three expressly exemplary.

[00:08:02] Speaker 04:
And the board said, you know, we don't think that reading this is being limited to being in the hardware transport mechanism is a permissible construction because we're just talking about one example in the specification for term that is used more broadly.

[00:08:17] Speaker 04:
And so if I could get back, the extra copying that's saved,

[00:08:20] Speaker 04:
You have to think about this in terms of the headers and the payload, because the complaint that you see, and I can take you through these passages, about the prior art.

[00:08:31] Speaker 04:
is it's mentioning the temporary buffer, but what it's really complaining about is you're copying the entire image into there.

[00:08:39] Speaker 04:
And it talks about in the background section when it's talking about the temporary buffer, it's copying each of these where each thing being copied over has its own header.

[00:08:50] Speaker 04:
And so what they're purporting to innovate on here is saying if we have the initial header that comes over, it gets processed

[00:08:59] Speaker 04:
We can know then where everything needs to go.

[00:09:01] Speaker 04:
You avoid copying because every time a packet comes over, it doesn't have to have its own header telling you where things go from there.

[00:09:10] Speaker 04:
You can just be moving it along.

[00:09:13] Speaker 04:
And so you see this, the only time that temporary buffer and hardware buffer are discussed together is in column nine of the specification.

[00:09:24] Speaker 04:
And I'm starting on line 37, column nine.

[00:09:29] Speaker 04:
And it says, in one aspect, the executable software image is loaded into the system memory of the secondary processor without an entire executable software image being stored in the hardware buffer of the secondary processor.

[00:09:42] Speaker 04:
and a few lines down where it's contrasting says, thus conventional techniques employing a temporary buffer for the entire image and the packet header handling are bypassed.

[00:09:55] Speaker 03:
Can I just try to summarize this in my layman's thinking?

[00:10:00] Speaker 03:
What you're saying the point of this invention is is that instead of taking the whatever the software code with all the instructions and the headers and stuff from

[00:10:11] Speaker 03:
the primary processor and requiring the entire thing to be copied into a temporary buffer altogether copied before it starts being distributed to system memory.

[00:10:23] Speaker 03:
This can take pieces of it and then distribute it pieces at a time and you don't have to wait for the full copying to occur.

[00:10:31] Speaker 03:
At some point, except for maybe the headers, full copying of all the program code occurs, it's just not all at once, but it all still goes through a hardware buffer to the system's memory.

[00:10:48] Speaker 03:
There's no way to send direct code from

[00:10:53] Speaker 03:
the primary processor to the system memory without going through some kind of buffer.

[00:10:59] Speaker 03:
It's just whether it's done all at once or in pieces.

[00:11:02] Speaker 04:
Right.

[00:11:02] Speaker 04:
In this claim, the hardware buffer is sitting there in the middle.

[00:11:06] Speaker 03:
Here's my question on that.

[00:11:08] Speaker 03:
I think this gets into your prior art and why the construction is wrong, but why isn't it, even if

[00:11:17] Speaker 03:
this operates in the same way as a temporary buffer, which it sure sounds like it does to me.

[00:11:23] Speaker 03:
The fact that they've created a separate function and denoted it as a hardware buffer enough to say it's something different.

[00:11:33] Speaker 03:
They've dedicated a spot, and I can't even purport to understand how this actually works.

[00:11:39] Speaker 03:
when you're doing the code, but they've dedicated a spot in the memory of the second processor as the hardware buffer, and that is different than a temporary buffer, just because of the mere physical location.

[00:11:55] Speaker 03:
I think this is something maybe Judge Sharana alluded to, that generally the temporary buffers are part of

[00:12:01] Speaker 03:
the system memory.

[00:12:04] Speaker 03:
So the board's construction baffles me because it's not really a construction.

[00:12:08] Speaker 03:
It's just saying, well, whatever it is, it's not the prior art.

[00:12:12] Speaker 03:
But that's not a very good construction.

[00:12:14] Speaker 03:
That's just a shortcut for saying by the prior art doesn't cover this.

[00:12:20] Speaker 03:
But assuming, and I'm not saying their construction is correct either, but it at least is more specific in terms of positively defining it.

[00:12:28] Speaker 03:
So what's assuming?

[00:12:30] Speaker 03:
it positively defines it as something different.

[00:12:33] Speaker 03:
What's wrong with that construction, and then why isn't it not shown in the prior art?

[00:12:39] Speaker 04:
So even if you require something different, I think at most it's talking about physical difference.

[00:12:44] Speaker 04:
Where is the hardware to do this?

[00:12:47] Speaker 04:
And we have physical difference in our prior art.

[00:12:49] Speaker 04:
Our prior art was not where you're going to execute it.

[00:12:54] Speaker 04:
You then allocate a portion of that.

[00:12:57] Speaker 04:
it has two different memories on the secondary processor.

[00:13:02] Speaker 04:
And it may be an intermediate buffer, it may be allocated at runtime, but its job is to do that first receipt, like the claimed hardware buffer, and then pass it along to the XRAM in the Svensson and Bauer references,

[00:13:21] Speaker 04:
where it's going to be executed from.

[00:13:23] Speaker 04:
So you have that physical separation there.

[00:13:28] Speaker 04:
And the temporary nature of it really doesn't come in.

[00:13:31] Speaker 04:
Because again, talking about that claim, the column nine in body matter, when you look at the background section in column two, what it talks about is this.

[00:13:43] Speaker 03:
How do we know the temporary nature in the prior art doesn't make a difference, and that the whole point of doing this as a separate structure

[00:13:51] Speaker 03:
And let's just assume that it's some kind of separate permanent structure rather than a temporary buffer, that that doesn't somehow create an efficiency that you don't get from a temporary allocation of a buffer.

[00:14:05] Speaker 04:
Well, I don't think we have anything on the right.

[00:14:07] Speaker 04:
I mean, we do have the problem in this case of

[00:14:09] Speaker 04:
board adopted its own construction in the final written decision.

[00:14:13] Speaker 04:
So part of what we're talking about in the second part of our argument is we never had a chance to address this temporary buffer construction.

[00:14:22] Speaker 04:
I think you can see from the briefs that the parties are fighting over even what is meant by temporary.

[00:14:33] Speaker 02:
I guess either your petition or your expert say about whether in Svensson, under the line, the box on the Western side, which has itself an internal division, a piece of which is allocated for what it is, say about whether the box on the left is part of system memory in the Svensson system.

[00:14:59] Speaker 04:
So our expert did address this.

[00:15:05] Speaker 04:
about system memory.

[00:15:07] Speaker 04:
So if you look at pages, page 2084 of the appendix, it talks about the intermediate storage area being physically distinct and located in a different physical device as the external memory where the system memory is.

[00:15:29] Speaker 02:
2833 I'm sorry that you were reading 28284 And we're in particular and maybe you don't you're probably reading from something So if you're looking at the middle of the lines 19 to 21 I

[00:15:55] Speaker 02:
I'm looking for the phrase system memory.

[00:15:57] Speaker 02:
I see it there.

[00:15:58] Speaker 04:
Right.

[00:15:59] Speaker 04:
So I mean, really the whole page.

[00:16:00] Speaker 04:
Beginning at line three, he says he's identified the XRAM as being the system memory.

[00:16:07] Speaker 04:
He's asked whether that's the same or different structure from the hardware buffer.

[00:16:13] Speaker 04:
And he's then answering that next block in the middle of page, the yesterday, the intermediate storage area is located.

[00:16:20] Speaker 04:
So these are physically distinct structures.

[00:16:23] Speaker 04:
What are physically distinct structures?

[00:16:25] Speaker 04:
The intermediate storage area in Figure 1 is physically located in a different physical device as the external memory where the system memory is.

[00:16:35] Speaker 04:
So clear expert testimony, and he circles back to this at 2833 and 2835.

[00:16:48] Speaker 04:
about being sort of asked and emphasizing that this code is being executed from the XRAM.

[00:16:54] Speaker 04:
That is what we are relying on as the system memory.

[00:16:58] Speaker 04:
And there's this entirely different buffer in the middle.

[00:17:03] Speaker 04:
And yes, it may be an intermediate storage area, but it falls within the broad definition of hardware buffer.

[00:17:13] Speaker 03:
And this... Can I just stop you there?

[00:17:18] Speaker 03:
I suppose I find the board's construction of hardware buffer as not a temporary buffer completely unhelpful in determining how to judge the obviousness arguments here.

[00:17:29] Speaker 03:
What construction of hardware buffer should we be using?

[00:17:33] Speaker 03:
What does it mean?

[00:17:34] Speaker 04:
We think that it's simply, as the board looked at it, the way the board looked at it in its institution decision was it said, is there temporary storage?

[00:17:44] Speaker 04:
That's a buffer card.

[00:17:47] Speaker 04:
in hardware, is there a physical component associated with this?

[00:17:52] Speaker 02:
Somebody said, now I don't even remember where, maybe it was your, well, in what you just said, since we live in a physical world, how could there possibly be storage in anything but hardware, making the word hardware superfluous?

[00:18:10] Speaker 04:
Something we pointed out in our opening brief then is we said that

[00:18:17] Speaker 04:
if you look elsewhere in the patent, you know, we looked, let me find the citation here, at column five, lines 20 to 22, talks about the hardware boot ROM.

[00:18:28] Speaker 04:
So this is a patent where you have the word hardware appended to things that have a,

[00:18:35] Speaker 02:
physical embodiment.

[00:18:36] Speaker 02:
Everything with computers has a physical embodiment if you're storing something.

[00:18:40] Speaker 02:
So what work is the word hardware doing there?

[00:18:45] Speaker 04:
So I think from that example what we're seeing is I'm not sure the word hardware is doing distinct work here.

[00:18:52] Speaker 04:
You know, this Gordon has had cases that has said that the rule against surplusage is not an absolute rule and we're not going to sort of let that go.

[00:19:00] Speaker 03:
It's certainly not doing the work of saying it's a buffer

[00:19:05] Speaker 03:
implemented in hardware as opposed to other buffers that are not implemented in hardware because I assume even a temporary buffer is implemented in hardware at some point.

[00:19:16] Speaker 04:
Yes, it would be.

[00:19:18] Speaker 02:
It's fairly common and we have a lot of cases to say

[00:19:25] Speaker 02:
This can be implemented in software, or it can be implemented in hardware, by which is meant one can create etched circuits that do a particular job without having to give it an instruction.

[00:19:39] Speaker 02:
Why isn't this one of those?

[00:19:42] Speaker 02:
So that hardware buffer means the opposite of software-controlled buffer.

[00:19:52] Speaker 04:
I don't think that construction has been offered by Qualcomm.

[00:19:57] Speaker 04:
When they were accusing the devices in the litigation against Apple, they were looking at a random access.

[00:20:04] Speaker 04:
memory there, so they were not looking at someone's... To the accused devices or RAM devices?

[00:20:09] Speaker 04:
The accused devices had RAM.

[00:20:11] Speaker 02:
The buffer portion.

[00:20:12] Speaker 04:
Right, the buffer portion was the RAM in the direct memory access circuitry there.

[00:20:17] Speaker 03:
So it wasn't hard etched into the... Right, I just wanted to clarify that, because that is at least one way I understand the distinction between hardware and software also.

[00:20:28] Speaker 03:
But it didn't seem to me that anywhere in this patent they were suggesting that they were specifically etching into a chip somewhere a hardware processor that does this transferring thing.

[00:20:39] Speaker 03:
No, not at all.

[00:20:40] Speaker 03:
That's the construction.

[00:20:41] Speaker 03:
Do you have a problem with that construction?

[00:20:46] Speaker 03:
I'm guessing that you probably, in the end, wouldn't for infringement.

[00:20:50] Speaker 03:
It probably wouldn't solve your invalidity problems.

[00:20:52] Speaker 03:
But I can't imagine that any of you use devices that have the buffer actually etched into the chip.

[00:21:00] Speaker 04:
Right.

[00:21:01] Speaker 03:
I'm pretty sure your friend's going to get out and say that that's not what you're constructing.

[00:21:04] Speaker 04:
I think it's going to create big infringement problems for them.

[00:21:06] Speaker 04:
I'm hesitating because I don't want to overstress the BRI standard.

[00:21:11] Speaker 04:
But we have the BRI standard for a reason.

[00:21:14] Speaker 04:
And part of it is the clarity forcing function it has here, which is when we're in a proceeding like this, where there's an opportunity to amend.

[00:21:25] Speaker 04:
If we have readings of this that are both reasonable readings of it, then we should go with the broader one compared to the prior art.

[00:21:34] Speaker 04:
And if they then wanted to clarify.

[00:21:37] Speaker 02:
I'm sorry, your reasonable reading is the one that simply erases the word hardware.

[00:21:42] Speaker 02:
It doesn't erase the word.

[00:21:44] Speaker 02:
Maybe that's right, but am I missing some of that?

[00:21:47] Speaker 04:
It has to be implemented in hardware.

[00:21:49] Speaker 02:
Everything has to be implemented in hardware, unless you mean hardwired.

[00:21:53] Speaker 04:
Right.

[00:21:53] Speaker 04:
It may not make a practical difference.

[00:21:54] Speaker 04:
It may be that that is in the claim to signal some sort of physical separation.

[00:22:01] Speaker 04:
That would be something that wouldn't have to be resolved.

[00:22:03] Speaker 02:
And suppose I thought you don't need to go any further, or the right claim construction for BRI is simply not in system memory.

[00:22:15] Speaker 02:
Suppose we can't actually get anything more out of it than that, which seems apparent on the face of the claim.

[00:22:21] Speaker 02:
What happens to this case?

[00:22:25] Speaker 04:
So I think the minimum you'd have to remand at that point

[00:22:30] Speaker 04:
We did present our evidence below as to why we think this wasn't in system memory.

[00:22:34] Speaker 02:
And that's to answer the question, how to characterize what constitutes system memory in Svensson.

[00:22:40] Speaker 04:
Right.

[00:22:41] Speaker 04:
There wasn't, ultimately, the construction of system memory.

[00:22:44] Speaker 02:
And the board did not answer that question, right?

[00:22:47] Speaker 02:
The board did not answer that question, did it?

[00:22:49] Speaker 04:
It didn't, no.

[00:22:50] Speaker 04:
Well, it did to the extent that when the board was looking at the

[00:22:59] Speaker 04:
face of the claims, it concluded at Appendix 13 that recitation of a separate system memory by itself does not foreclose the possibility of implementing a buffer in some other system memory.

[00:23:17] Speaker 04:
So it was raising the question of are we talking about the system memory singular or

[00:23:25] Speaker 04:
a particular part of the system memory, where this is being executed from.

[00:23:32] Speaker 04:
And I think that gets significant, too, because if you think about the dependent claims, right?

[00:23:37] Speaker 04:
We're talking about claim one here.

[00:23:39] Speaker 04:
The dependent claims then come in and say, without the copying operations within system memory.

[00:23:47] Speaker 04:
So I think that the idea that system memory is this unit and that there can be sort of no intertwining is tough as a construction of hardware buffer, because you don't really see that introduced, no copying within system memory, until the dependent claims.

[00:24:05] Speaker 04:
And you have the board looking at the face of the claims and saying,

[00:24:09] Speaker 04:
term by itself doesn't foreclose that possibility.

[00:24:13] Speaker 04:
Now, we think as a factual matter, this is not systematic.

[00:24:17] Speaker 04:
There's a clear distinction.

[00:24:24] Speaker 04:
it is not used for anything else it's not used to run the software when it's being executed so we think we clearly win factually I'm hesitating about going straight to this distinction the system memory for the reasons that I'm saying and the concern is are we collapsing the independent claims and the dependent claims I think what you have is a situation where it is just

[00:24:49] Speaker 04:
use hardware buffer and we shouldn't sort of bend over backwards.

[00:24:55] Speaker 04:
I think that's what the board was doing here, saying we have to find some meaning for hardware here, some meaning for hardware here that will distinguish it.

[00:25:02] Speaker 04:
in a way that then, we shouldn't bend over backwards to do that, in a way that's then going to blur the distinction between these claims.

[00:25:08] Speaker 02:
But I guess, I don't want to, I probably am already beating a dead horse, but it seems to me that the one thing you can get pretty confidently out of the claim is that the hardware buffer must be a physical space different from system memory.

[00:25:21] Speaker 02:
Otherwise, they wouldn't be referred.

[00:25:23] Speaker 02:
Right.

[00:25:23] Speaker 04:
You have a transfer directly from the hardware buffer to system memory.

[00:25:26] Speaker 04:
Right.

[00:25:27] Speaker 04:
We are fine with a physical

[00:25:30] Speaker 04:
distinction there.

[00:25:32] Speaker 04:
And then I think you have a second order fight over what is the system memory with us clearly saying that is where the program is executed from.

[00:25:42] Speaker 04:
And so for all these reasons, I think what we're talking about is the board's temporary buffer construction is untenable.

[00:25:49] Speaker 04:
And as we argued in the alternative, even if it were, even if you were to somehow agree with that, we really didn't have the opportunity to address it because it's coming up late in the

[00:25:59] Speaker 01:
construction I know I'm well over my time I know I'm wondering if I should ask you about standing but we can wait till we reply I'd be happy to drive

[00:26:29] Speaker 01:
So we're obviously going to be very generous in time, if necessary, assuming there'll be questions.

[00:26:36] Speaker 00:
Thank you, Your Honor.

[00:26:38] Speaker 00:
I appreciate that.

[00:26:39] Speaker 00:
And I'm happy to engage the court on your questions.

[00:26:43] Speaker 00:
And I'd like to start with standing, because it is a threshold issue.

[00:26:48] Speaker 00:
But of course, I will.

[00:26:49] Speaker 00:
then be sure to save plenty of time to address the claim construction conversation you've had.

[00:26:54] Speaker 03:
Are there distinctions between the standing argument in the last case and in this case that you want to emphasize?

[00:27:00] Speaker 00:
Yes, there are.

[00:27:01] Speaker 00:
And I can start with that.

[00:27:03] Speaker 00:
I do want to put a pin on the fact that the evidence here is just as vague, if not more so, in general for Intel's standing claim.

[00:27:10] Speaker 00:
But there is an independent additional argument really at the threshold that we think this court should consider

[00:27:17] Speaker 00:
in determining that Intel does not have standing to bring this appeal.

[00:27:21] Speaker 00:
And that's because Intel has not provided any evidence that it makes a product, that it has ever made a product, that even arguably might meet all of the limitations of any claim of the 949 patent.

[00:27:35] Speaker 00:
And really, under just basic doctrine, when there isn't even any sort of showing that it has any product that might infringe

[00:27:43] Speaker 00:
And it's trying to say it should come in court because it fears an infringement suit.

[00:27:47] Speaker 02:
And this case differs in that respect from the other case.

[00:27:52] Speaker 02:
Why?

[00:27:53] Speaker 00:
Because, Your Honor, it goes to what the claims recite.

[00:27:56] Speaker 00:
And here, the 949 claims recite multiple elements.

[00:28:00] Speaker 00:
And Intel has not pointed to any product that it makes, that it's ever made, that was used in the accused Apple products when we sued Apple.

[00:28:13] Speaker 00:
There is no product that Intel has pointed to that it could potentially even have any sort of fear of meeting all of the limitations of any claim of the 9.9 patent.

[00:28:23] Speaker 02:
No, but could it?

[00:28:23] Speaker 02:
And forgive me if I'm confusing cases.

[00:28:28] Speaker 02:
Could it not be charged with inducement?

[00:28:31] Speaker 00:
theoretically, but it still needs to come to this court.

[00:28:35] Speaker 02:
This is one in which either some or all of the claims actually require two things, and Intel makes one of them, but it gets put together by Apple or whoever with the one they make, and on the assumption the one that they make doesn't have to be put together, there's no contributory, but inducements seem, and I think I'm on the right case, right?

[00:28:57] Speaker 02:
The inducement charge was the one that, I guess, as I was reading the briefs, I was thinking, why is that not an obvious risk?

[00:29:05] Speaker 00:
Let me give you a couple of reasons.

[00:29:07] Speaker 00:
One, Intel, and this is at page 50 of its opening brief, makes just the most conclusory statement that maybe there's some risk of induced infringement.

[00:29:16] Speaker 00:
It doesn't substantiate that.

[00:29:18] Speaker 00:
We don't know who the direct infringer might be, what the supposed direct infringer's system is.

[00:29:25] Speaker 00:
Application processors, first processors, secondary processors are different.

[00:29:29] Speaker 00:
And Intel hasn't demonstrated that its products have any risk of being used in combination.

[00:29:34] Speaker 02:
In Qualcomm's suit against Apple was part of the charge of infringement a component of the, I guess that was about iPhones, right?

[00:29:46] Speaker 00:
Yes.

[00:29:46] Speaker 02:
Anyway, the Apple devices that included an Intel processor

[00:29:54] Speaker 00:
Yes, and we're not disputing that.

[00:29:57] Speaker 02:
So the other case, actually, the intel one might even be directly infringing in the usual sense, because you don't need a second thing.

[00:30:04] Speaker 02:
But in this one, you need a second thing, which led me to think, so why, if they know what it's going to be put together with, is there not a serious risk of inducement?

[00:30:15] Speaker 02:
And you've already accused the device, based in part on that device, of meeting these claims.

[00:30:21] Speaker 00:
So a couple of responses with respect to this case.

[00:30:24] Speaker 00:
First, that case is four years old.

[00:30:28] Speaker 00:
And so on that basis, it's stale.

[00:30:30] Speaker 00:
We have settled with Apple.

[00:30:31] Speaker 00:
We brought a lawsuit against one party.

[00:30:34] Speaker 00:
Intel is now trying to get into the Article III door by pointing to an old, stale case.

[00:30:40] Speaker 00:
And the second point I want to emphasize is that Intel does not substantiate an induced infringement risk.

[00:30:48] Speaker 00:
This court's decision on Microsoft versus DataTerm made clear that the court looks at potential infringement liability in two respects.

[00:30:56] Speaker 00:
And each one is on an element by element basis.

[00:30:59] Speaker 00:
The first is, what is the cause of action?

[00:31:02] Speaker 00:
Induced infringement, of course, requires more than direct infringement.

[00:31:05] Speaker 00:
It requires an affirmative action sort of encouragement.

[00:31:09] Speaker 00:
And the second is that you do look at it on a claim by claim, element by element basis.

[00:31:13] Speaker 00:
And what Intel points to is some testimony, vaguely referring to some documents.

[00:31:18] Speaker 00:
It hasn't even put in those documents.

[00:31:20] Speaker 00:
And they are old.

[00:31:21] Speaker 00:
We don't know if Intel's still even making those documents, providing them to its suppliers, even using the same sorts of processors that were at issue in that suit.

[00:31:30] Speaker 00:
This is a rapidly changing.

[00:31:31] Speaker 02:
In the previous argument, there was some discussion of Fibo something.

[00:31:36] Speaker 00:
That's right.

[00:31:37] Speaker 00:
There's no mention of Fibcon in this case.

[00:31:40] Speaker 00:
Fibcon, Fibcon, I'm not sure the name of it.

[00:31:43] Speaker 00:
So in that sense, this case has Intel's declaration.

[00:31:47] Speaker 00:
It's evidentiary support that it put in an attempt to establish standing.

[00:31:52] Speaker 00:
Lacks the specificity that this court most recently in its Apple versus Qualcomm decision said.

[00:31:58] Speaker 00:
is inadequate.

[00:31:59] Speaker 00:
It is the petitioner's burden.

[00:32:01] Speaker 00:
Of course, they can file an IPR.

[00:32:02] Speaker 00:
But to come into an Article III court, it needs to actually give this court a reason to adjudicate a legal controversy that it has with the patent owner.

[00:32:11] Speaker 00:
It needs to be specific to the party and specific to products.

[00:32:14] Speaker 00:
We don't have products named here.

[00:32:16] Speaker 00:
We don't have who the purported customers might be.

[00:32:19] Speaker 00:
We don't have any sense of how Intel's baseband processors, which is the generic term it consistently uses

[00:32:26] Speaker 00:
in its declaration and in its brief how those might at all risk infringement of any 949 patent claim.

[00:32:41] Speaker 00:
Just to reiterate on the Apple suit, it was four years ago

[00:32:48] Speaker 00:
This is a rapidly changing technology.

[00:32:50] Speaker 00:
The burden is on Intel in any circumstance, but certainly here to establish that anything it's doing now might have any nexus to what was at issue or what was involved in the Apple case.

[00:33:01] Speaker 00:
And the final point there, again, the documents that Intel is pointing to are not in the record.

[00:33:06] Speaker 00:
But there's certainly nothing wrong with this court in Microsoft versus DataTurn said in bringing a suit against a particular customer or user, which is all that Qualcomm has done here, not against any other party, whether Intel or any other supplier.

[00:33:19] Speaker 00:
And the fact that we used some Intel documents to substantiate a portion of our infringement suit against Apple products and against Apple

[00:33:28] Speaker 00:
that Intel hasn't even put into the record is nothing remarkable.

[00:33:30] Speaker 00:
We were using relevant evidence for particular components, but not anything that would put Intel at any risk of an infringement suit.

[00:33:39] Speaker 03:
What does it matter if it's Intel at risk of infringement or one of its customers?

[00:33:44] Speaker 03:
If you're going to sue its customers based in part on their products, its customer is either going to face infringement liability, or they're going to stop buying the Intel product because it's going to infringe your patents.

[00:33:57] Speaker 03:
Isn't that enough?

[00:33:58] Speaker 03:
I understand your argument that they haven't made that showing, but if they have made that showing, if I think that their decorations and evidence are sufficient, isn't that enough that Apple might stop buying these Intel products because you sued them once on it and you might do it again?

[00:34:15] Speaker 00:
So respectfully, Your Honor, I don't think their declaration is enough.

[00:34:18] Speaker 00:
And I think here, the passage of time reinforces that.

[00:34:20] Speaker 00:
No, no, I get it.

[00:34:21] Speaker 03:
But let's just assume the declaration does provide that.

[00:34:23] Speaker 03:
Isn't that a legally sufficient basis for standing?

[00:34:26] Speaker 03:
You seem to go back and forth in suggesting that Intel hasn't shown that it can be sued.

[00:34:31] Speaker 03:
But I don't see what difference that makes if what's going to happen is you're going to sue Intel's customers, and they're going to either have to pay infringement damages based in part on that, or just not buy it from them.

[00:34:45] Speaker 00:
Number one, we don't have any allegations from Intel that that has happened, that it has a risk of happening.

[00:34:49] Speaker 03:
OK, let me make it clear.

[00:34:50] Speaker 03:
If those allegations are in the record in that factual scenario I think is sufficiently presented, is that enough to establish standing as a matter of law?

[00:34:59] Speaker 00:
Your Honor, I do think that would be a closer case.

[00:35:02] Speaker 00:
I still think Intel, under Microsoft versus DataTerm, would need to provide some sort of evidence, even if it's in a declaration, that it is engaging in all of the elements of a cause of action that would go to the indirect infringer of the inducer.

[00:35:17] Speaker 00:
But it is true that Intel hasn't even made any argument that it's been affected by the apple seat.

[00:35:22] Speaker 00:
And we have enough time here for that certainly to have been established and put in Intel's declaration.

[00:35:30] Speaker 00:
If there are no further questions on standing, I will turn to the claim construction argument and see if I can touch on the various points that were raised.

[00:35:38] Speaker 00:
Let me start with, I think, your inquiry, Judge Toronto, and the point of the hardware buffer.

[00:35:44] Speaker 00:
And I think this also goes to your question, Judge Hughes.

[00:35:46] Speaker 00:
There are different ways that the board could have defined or given a construction to hardware buffer in order to resolve the dispute that was before it.

[00:35:55] Speaker 00:
I think, one, to say it's not created in software at runtime.

[00:35:59] Speaker 00:
would be sufficient.

[00:36:00] Speaker 00:
What the board was doing was using the term in the patent that the patent juxtaposes each time between a temporary buffer.

[00:36:09] Speaker 03:
Can you go back to what you just said and explain that?

[00:36:11] Speaker 03:
I didn't quite.

[00:36:12] Speaker 03:
I mean, I understood it.

[00:36:13] Speaker 03:
What do you mean that a hardware buffer means it wasn't created in software at runtime?

[00:36:20] Speaker 00:
Sure.

[00:36:21] Speaker 00:
So at column two of the patent, the patent is just starting out by describing, let's talk about the prior art and what prior art techniques were used.

[00:36:30] Speaker 03:
I don't want to talk about this in terms of how it's distinguished over the prior art.

[00:36:33] Speaker 03:
I want you to give me a definition of how you think this patent defines hardware buffer.

[00:36:39] Speaker 03:
And what you just said sounds to me like a definition of that, but I'm not sure what you mean.

[00:36:44] Speaker 03:
Do you mean that

[00:36:47] Speaker 03:
this patent has created a hardware buffer in software, because I'm pretty sure you're not going to agree that this is etched into the chip as a hardware buffer, but that it is created permanently and not just at runtime.

[00:37:02] Speaker 03:
Is that what you mean?

[00:37:03] Speaker 00:
Yes, Your Honor.

[00:37:04] Speaker 00:
I really don't want to venture into etching that's not part of the record, and I don't want to start

[00:37:11] Speaker 00:
opining on something that an expert should have opined on, but that is exactly right.

[00:37:15] Speaker 03:
You're not going to propose the notion that this hardware buffer is actually etched into the chip as software.

[00:37:22] Speaker 03:
It's still implemented through software.

[00:37:25] Speaker 03:
Because that's what you just said, I think what you're trying to get at is there's a difference between being implemented in software at runtime versus just implemented in software

[00:37:36] Speaker 03:
Am I using the right word when I say permanently?

[00:37:38] Speaker 03:
This is what I don't understand, and this is what I think is key for us to understand in terms of how we view the prior art too.

[00:37:49] Speaker 00:
Let me see if I can answer that.

[00:37:50] Speaker 00:
The hardware buffer, I think the best way to think of it is that it is permanently existing.

[00:37:57] Speaker 00:
on the chip.

[00:37:58] Speaker 00:
It is pre-created and will always be there.

[00:38:01] Speaker 00:
You turn your phone on or off, and it's always going to be there.

[00:38:05] Speaker 00:
That's part of the contribution of the patent.

[00:38:08] Speaker 02:
I'm sorry, can I get more specific?

[00:38:10] Speaker 02:
Something that is physically on the phone is always on the phone.

[00:38:14] Speaker 02:
I don't think that's what you mean.

[00:38:15] Speaker 02:
I think you mean, or rather, that's not making a distinction.

[00:38:20] Speaker 02:
You mean that that piece of physical space is permanently dedicated to this task.

[00:38:27] Speaker 00:
Yes, Your Honor.

[00:38:29] Speaker 00:
I think we're saying the same thing.

[00:38:32] Speaker 00:
Yes, it is permanently dedicated.

[00:38:34] Speaker 00:
It's not allocated each time you're trying to boot up your phone.

[00:38:39] Speaker 00:
You're not having to spend part of your secondary processor taking time and creating the space

[00:38:46] Speaker 00:
so that then you can have data go into it.

[00:38:48] Speaker 00:
It's already there.

[00:38:50] Speaker 00:
It's already in the structure of the phone, of the multiprocessor device.

[00:38:57] Speaker 00:
And that's what the patent is distinguishing, that one way of performing such loading, this is at column two, is to allocate a temporary buffer.

[00:39:05] Speaker 00:
Again, really at the end of the day, every buffer is going to be part of hardware, but what does the patent

[00:39:12] Speaker 00:
say when it's distinguishing temporary buffer versus hardware buffer.

[00:39:17] Speaker 00:
And this goes to, I think, a premise I'd really like to clarify and correct, because there is no plain and ordinary meaning of hardware buffer.

[00:39:26] Speaker 00:
Intel has a single evidentiary site for its view that this court can rest on a buffer that's implemented in hardware.

[00:39:36] Speaker 00:
That's the statement of its expert at Appendix 1797, Paragraph 25,

[00:39:41] Speaker 00:
the most conclusory statement that simply says a hardware buffer is a buffer implemented in hardware.

[00:39:46] Speaker 00:
The board was correct.

[00:39:47] Speaker 00:
That doesn't give meaning to the term.

[00:39:49] Speaker 00:
And there's no dictionary definition.

[00:39:50] Speaker 00:
You'd think there'd be a manual, a treatise, a text, but something that Intel would have offered.

[00:39:54] Speaker 00:
So that's the wrong premise.

[00:39:56] Speaker 00:
We have to look at the patent and see how does it distinguish

[00:39:59] Speaker 00:
hardware buffer from temporary buffer.

[00:40:02] Speaker 00:
And while there could be other definitions and other aspects to the claim construction, with the board, by the time this wound its way through trial, there were other terms that were being proposed by the parties as what they might mean.

[00:40:14] Speaker 00:
And some of the definitions that were offered were offered in relation to those other terms.

[00:40:19] Speaker 00:
But when it got down to it for these claims, claims 1 through 9 and 12, that recite hardware buffer,

[00:40:26] Speaker 00:
Other claims do not.

[00:40:27] Speaker 00:
For these claims, the board said the patent uses a distinct term that differentiates from the prior art temporary buffer.

[00:40:37] Speaker 00:
You don't have to go allocate it each time you're going to load up.

[00:40:40] Speaker 00:
It's already there.

[00:40:41] Speaker 00:
That's part of the savings and the efficiency in getting this data moved over.

[00:40:46] Speaker 00:
You've already got this dedicated space to your point, Judge Toronto.

[00:40:51] Speaker 02:
I think we understand each other, but I mean, I can't tell you how important it is to me in thinking about this and getting from incoherence to coherence is the word dedicated.

[00:41:02] Speaker 02:
Or the concept dedicated.

[00:41:04] Speaker 02:
Dedicated, I think is dedicated is- Because physical things are not being created in this process, right?

[00:41:12] Speaker 00:
I think the dedicated space, whether we think of it as a

[00:41:19] Speaker 00:
Again, every buffer is implemented in hardware.

[00:41:21] Speaker 00:
And the question is, has it already been a dedicated space?

[00:41:25] Speaker 00:
Or is it dedicated anew each time, therefore allocated anew each time, therefore a temporary buffer?

[00:41:36] Speaker 00:
I hope I answered your question.

[00:41:38] Speaker 03:
Can I just let me ask you a hypothetical about that to make sure?

[00:41:42] Speaker 03:
I understand.

[00:41:42] Speaker 03:
I think this is important, too.

[00:41:44] Speaker 03:
And I think this is

[00:41:46] Speaker 03:
at least demonstrated to me why the board has not fully explained this in a way that allows me to assess the prior art.

[00:41:54] Speaker 03:
But when you say dedicated space, let's just say you have a secondary processor.

[00:42:02] Speaker 03:
You're not saying, are you, that by dedicated space for

[00:42:08] Speaker 03:
the hardware buffer that there's, say there's a chip for the system memory and there's a separate chip for the hardware buffer.

[00:42:20] Speaker 03:
You're not saying it in that term, are you, that there is a specific dedicated chip devoted only to the hardware buffer.

[00:42:28] Speaker 03:
We're talking about two different memory places.

[00:42:31] Speaker 03:
One is system memory, maybe something's in other systems memory or has some other name.

[00:42:38] Speaker 03:
Are you saying that by using hardware buffer, they're saying it's a sole physical piece of equipment dedicated only to, and by equipment, I mean something you could pluck out of the phone and say, this is the hardware buffer.

[00:42:53] Speaker 03:
That's not what you're saying when you say dedicated, right?

[00:42:57] Speaker 00:
I think it could be both, but I think it is sufficient.

[00:43:01] Speaker 03:
Okay, but if we're under BRI then,

[00:43:04] Speaker 03:
then the fact that it could be both means it doesn't have to be a chip.

[00:43:10] Speaker 03:
It doesn't have to be physical.

[00:43:12] Speaker 03:
It can be a dedicated part of the secondary processor's memory.

[00:43:20] Speaker 00:
Right, Your Honor.

[00:43:20] Speaker 00:
And again, for the board to evaluate Intel's prior art combination, which was relying on Benson for this piece,

[00:43:28] Speaker 00:
It's enough to know that the hardware buffer is already dedicated.

[00:43:34] Speaker 00:
Unlike Stenson, and if you look at it.

[00:43:37] Speaker 03:
But the problem is the board's construction does not

[00:43:41] Speaker 03:
give me any firm confidence that they understood that this is what they meant, that it had to be a dedicated portion.

[00:43:49] Speaker 03:
It seems to me they were just saying whatever hardware buffer is, it's not a temporary processor and therefore the prior art doesn't cover it.

[00:43:58] Speaker 03:
But it could be that there's a middle ground here that the prior art is using a dedicated space also that's distinct from

[00:44:09] Speaker 03:
the system memory to do this data transfer, and that it may use different words than hardware buffer, it's doing the same thing, and that it's also, in some sense, dedicated.

[00:44:23] Speaker 03:
Why isn't it right for us to come up with a better claim construction or tell the board to come up with a better claim construction that aligns with what you're arguing to us today about a dedicated space for the hardware buffer as just opposed to saying what it is not?

[00:44:41] Speaker 00:
A couple of responses, Your Honor.

[00:44:43] Speaker 00:
I don't think this is the sort of negative limitation that ultimately isn't helpful when we look at the context of the board's decision.

[00:44:52] Speaker 00:
And it's saying it's not just that it's not a temporary buffer.

[00:44:56] Speaker 00:
It's not something that's allocated while the program is running, is loading.

[00:45:03] Speaker 03:
Well, I think you started off with that, and I found that very helpful.

[00:45:06] Speaker 03:
But why isn't that in the board's claim instruction?

[00:45:09] Speaker 03:
Because I don't get that.

[00:45:11] Speaker 03:
not temporary?

[00:45:14] Speaker 00:
I think it is in the board's analysis and is the essentially what the board is saying when it says not temporary.

[00:45:22] Speaker 00:
It was using the terms from the patent.

[00:45:24] Speaker 00:
I think the board could have said it's not allocated by software, which is sort of opposite of hardware.

[00:45:31] Speaker 00:
It's not something that's, it's not something, a hardware buffer is something that's already been dedicated

[00:45:38] Speaker 00:
for that use all the time.

[00:45:39] Speaker 00:
There are other ways it could have defined the construction, but I don't think it requires any remand.

[00:45:45] Speaker 00:
Because regardless what Intel relies on, and this was critical to the board's analysis, it looked at what Intel's prior art was disclosing.

[00:45:54] Speaker 00:
And while Intel's counsel says there's two separate things, that's not the inquiry.

[00:45:59] Speaker 00:
It's not whether there's two separate things.

[00:46:00] Speaker 00:
That's not the level that we're looking at this.

[00:46:03] Speaker 00:
the patent makes clear, it's not just that it's something different, it's what is it?

[00:46:08] Speaker 00:
And it is something that is fully dedicated for this particular feature of taking some of the data images before it gets fully transferred into the system memory.

[00:46:19] Speaker 00:
I think there are ways to define it as we proposed, as Contra indicated, from system memory or from software.

[00:46:26] Speaker 00:
But the fundamental rub.

[00:46:28] Speaker 03:
Can I just stop you?

[00:46:29] Speaker 03:
Because every time you say this, it strikes me

[00:46:33] Speaker 03:
as somehow imprecise and incorrect when you say distinct from software.

[00:46:39] Speaker 03:
I get distinct from system memory, that's fine.

[00:46:41] Speaker 03:
I think your friend would say there's a distinct, that prior artist is distinct from system.

[00:46:45] Speaker 03:
What do you mean when you say distinct from software?

[00:46:48] Speaker 00:
Let me be precise.

[00:46:50] Speaker 03:
Because it's not distinct from software in some senses.

[00:46:53] Speaker 03:
This is using software to code a hardware buffer.

[00:46:58] Speaker 03:
Unless you're going back to saying this is actually a physical chip that is solely dedicated to hardware buffer, which I can't imagine you're saying because I can't imagine anybody's products would infringe because who has room in a phone for a chip dedicated to hardware buffer?

[00:47:15] Speaker 03:
It's somehow implemented in software, isn't it?

[00:47:20] Speaker 03:
Your Honor, I think there may be sort of software involved at some point, but the point is... Sorry, I'll let you finish, but let me just emphasize the real problem for me is when you say the word hardware buffer, you're not using hardware in the sense that we traditionally understand it as some kind of physical hold in your hand component, are you?

[00:47:42] Speaker 00:
This may be where there's been some confusion.

[00:47:43] Speaker 00:
I don't know that it's at the chip level, and that's not our point.

[00:47:47] Speaker 00:
If you look at figure three of the patent, it's part of a controller, a physical thing.

[00:47:52] Speaker 00:
I do think there is an argument that it is a physical

[00:47:57] Speaker 00:
portion of this device.

[00:48:00] Speaker 03:
But how does it get to be a physical portion?

[00:48:02] Speaker 03:
Is it because it's some kind of memory or whatever you call the computer processing power that is coded through software to be the hardware buffer?

[00:48:12] Speaker 00:
In that sense, right, software is involved.

[00:48:14] Speaker 00:
I don't mean to say that there's sort of no role of software.

[00:48:18] Speaker 03:
That's why I think you need to be precise and also why the word hardware has no real meaning here.

[00:48:25] Speaker 03:
in the sense that we traditionally understand, and at least why I'm struggling with it.

[00:48:29] Speaker 03:
Because even you acknowledge that it has to be implemented through software in some sense.

[00:48:35] Speaker 03:
So the board's construction is not really helping me very much.

[00:48:40] Speaker 00:
It is not being implemented by software each time you load up your phone.

[00:48:46] Speaker 00:
So if your phone is turned off, you're not having to implement.

[00:48:49] Speaker 03:
It's being implemented by software one time when this

[00:48:53] Speaker 03:
whole thing is created as part of the programming, and it's always there.

[00:48:58] Speaker 00:
That's correct, Your Honor.

[00:48:59] Speaker 03:
Why don't we have a claim construction that says that?

[00:49:03] Speaker 00:
I think there are other constructions that would be the equivalent, such as permanent, fixed, pre-existing, pre-allocated.

[00:49:11] Speaker 00:
Any of those, I think, are synonymous and would get to the same point and would be the critical distinction from the art that Intel was asserting, because in

[00:49:22] Speaker 00:
Spensen, you see that no matter what hardware buffer means, any of those definitions or options, in Spensen, you clearly see in figure two that it's getting what they call the hardware buffer, what Intel accused as the hardware buffer, the intermediate storage area, isn't created until halfway down the process.

[00:49:44] Speaker 00:
But the patent says we're distinguishing those sorts of temporary buffers that are allocated while you're loading up because we are disclosing a hardware buffer.

[00:49:55] Speaker 00:
And I think in that sense, hardware and buffer, in the context of the specification, the full context of the intrinsic evidence, those are antonyms and opposites.

[00:50:04] Speaker 03:
I understand what you're saying.

[00:50:05] Speaker 03:
But the real problem is it sounds like, to me, an awful lot like you're saying.

[00:50:10] Speaker 03:
even if the board's construction is wrong, whatever construction you come up with, you can just look at this part of the art and determine that it doesn't render this obvious.

[00:50:19] Speaker 03:
And there is no way that I can figure out how to read Svensson with the new construction, with the aid of the board's analysis.

[00:50:29] Speaker 00:
I appreciate that point, Your Honor, but I don't think

[00:50:33] Speaker 00:
I'm not at all walking away from the board's construction.

[00:50:37] Speaker 00:
I want to reiterate that the board's construction here was sufficient for the dispute before it that Intel brought before it.

[00:50:43] Speaker 00:
I do think based on the reading of the patent, the full intrinsic evidence, and each time the patent distinguishes a temporary buffer and a hardware buffer, it's not just saying it's not a temporary buffer and we have no guidance.

[00:50:56] Speaker 00:
It says it uses that as a distinct term to differentiate the art, and the art is allocating

[00:51:02] Speaker 00:
this buffer, whatever we call it.

[00:51:04] Speaker 00:
It's allocating it while it's running.

[00:51:06] Speaker 03:
Are you saying that even though the board's, when it says it's official claim construction, it just does it negatively.

[00:51:13] Speaker 03:
It has implicitly imposed all of these qualifying conditions we've been talking about for the last 10 minutes about permanent and only done one time and not every time it started up and things like that.

[00:51:26] Speaker 03:
And that's how we can understand what the board's claim construction meant.

[00:51:31] Speaker 00:
I think that's a fair reading of the board's construction, including in our surreply where we made this distinction between a permanent buffer, which is a hardware buffer, and a temporary buffer as disclosed in the prior art.

[00:51:46] Speaker 00:
And our surreply where we made that distinction is that Appendix 43-97.

[00:51:53] Speaker 02:
Can I ask you a question which may not actually bear on at least directly what we've been talking about?

[00:52:02] Speaker 02:
Can you explain to me, in terms I might understand, how a copy operation is avoided in this system compared to what the patent describes as the prior art?

[00:52:17] Speaker 00:
Yes, Your Honor, and I think this does go to the same issue.

[00:52:21] Speaker 00:
because you're not tying up the creation of copying in the software, both in creating the buffer and having some of your system memory, that's where the temporary buffer is, have to be tied up with the copying.

[00:52:36] Speaker 00:
It is the sort of wishing through the hardware buffer that's already there and is not tying up the software to then get it into your system memory.

[00:52:48] Speaker 00:
So that's what the patent calls the zero

[00:52:51] Speaker 00:
copy transport flow and it is in critical part based on the hardware buffer that is already there and is not burdening the processor to create this and to create the buffer or to use its own system memory to do that.

[00:53:10] Speaker 00:
It reserves that, it doesn't touch the system.

[00:53:12] Speaker 00:
There are other reasons you wouldn't want a hardware buffer because having more hardware on your system can be

[00:53:19] Speaker 00:
heavier can have complications.

[00:53:21] Speaker 00:
And that's part of the innovation of what Qualcomm did in the combination of aspects and features recited in these claims.

[00:53:31] Speaker 00:
Thank you for the additional time.

[00:53:33] Speaker 00:
The court has no further questions.

[00:53:35] Speaker 00:
We would ask the court to dismiss for lack of standing.

[00:53:39] Speaker 02:
I know Mr. Saunders didn't talk, but we have this little lingering issue about, what is it, claims 16 and 17?

[00:53:46] Speaker 00:
Yes.

[00:53:48] Speaker 02:
Do I understand the state of play as follows?

[00:53:51] Speaker 02:
You said there is sufficient structure.

[00:53:55] Speaker 02:
you know, for the, you know what I mean.

[00:53:57] Speaker 02:
Intel originally said it thought there was sufficient structure.

[00:54:01] Speaker 02:
It changed its mind and said there is not sufficient structure, at which point the board, rather than deciding whether there is sufficient structure, said Intel had to show that it was, it loses and loses with a, let's call it, a merits judgment that would trigger a stopper.

[00:54:22] Speaker 02:
Is that?

[00:54:23] Speaker 00:
You have that correct, Your Honor.

[00:54:25] Speaker 02:
Okay.

[00:54:25] Speaker 02:
Is it your view, well, let me just ask this.

[00:54:29] Speaker 02:
Why should we not send it back for the board to answer the question it didn't answer, which is whether there is sufficient structure, precisely so that, which is a legal question, not a factual question, and precisely so that what

[00:54:51] Speaker 02:
that a party in Intel's position, never mind whether Intel did this,

[00:54:57] Speaker 02:
doesn't have the power to essentially regret including certain claims in the IPR and effectively take them out of the IPR by making a concession that then gets the benefit of our SAMHSA ruling that there's no estoppel when it's impossible to understand the claim for prior comparison purposes.

[00:55:24] Speaker 00:
Your Honor, first,

[00:55:25] Speaker 00:
This was within Intel's control.

[00:55:28] Speaker 00:
We're not in a situation, as in other cases, where the petitioner was sort of at the behest of the board and what the board ultimately found the claims to mean.

[00:55:38] Speaker 00:
Intel and the board relied on this, on its own rule that puts it on the petitioner.

[00:55:43] Speaker 00:
If a petitioner is going to bring means plus function claims into an IPR,

[00:55:48] Speaker 00:
Rule 42.104 specifically says that petitioner needs to identify a corresponding structure.

[00:55:55] Speaker 00:
And Intel, as you said, in basically quitting on its own case, but still keeping the claims in the IPR, the necessary consequence under this court's decision in Cochlear-Bone is that Intel, the board is entitled to say that Intel has failed to meet its burden.

[00:56:11] Speaker 00:
It just withdrew, essentially, the corresponding structure that under the board's rules,

[00:56:17] Speaker 00:
required Intel to point to.

[00:56:19] Speaker 00:
And Intel hasn't challenged that board rule.

[00:56:22] Speaker 00:
So I don't think this is a scenario that's going to arise in other cases.

[00:56:25] Speaker 02:
Is there a formal mechanism for a petitioner to remove certain claims from its petition so that there's no final written decision on them?

[00:56:34] Speaker 00:
To my understanding, first, of course, Intel didn't have to bring them into the IPR.

[00:56:39] Speaker 00:
But it did, and it offered corresponding structure.

[00:56:42] Speaker 00:
It could have defended that when the board's institution said, institution's decision.

[00:56:49] Speaker 00:
Into your question.

[00:56:50] Speaker 00:
I do think there is an opportunity for Intel between filing its petition and at least before the institution's decision to say it's withdrawing claims.

[00:56:58] Speaker 00:
And we didn't have that here.

[00:57:00] Speaker 03:
What if Intel had defended its structure and the board had found no structure?

[00:57:04] Speaker 03:
What would have happened then?

[00:57:05] Speaker 03:
The board would have just said, we can't determine patentability and dismiss, right?

[00:57:11] Speaker 00:
I think the board would still have had to say that Intel didn't carry its burden, because under SAS.

[00:57:16] Speaker 03:
Well, that can't be right.

[00:57:17] Speaker 03:
If they're not going to address patentability after Intel has tried to show that they're structured that, you know.

[00:57:23] Speaker 03:
Isn't that Samsung?

[00:57:26] Speaker 00:
So Samsung is a little bit different, because Samsung involved a type of indefiniteness that

[00:57:31] Speaker 00:
that this court said the board could address, this ipixel, ipxl, where you have sort of a mishmash of different types of method and apparatus claims.

[00:57:40] Speaker 00:
If the board can't ultimately find a corresponding structure,

[00:57:43] Speaker 00:
Again, that's not this case because that's not what the board found.

[00:57:46] Speaker 00:
The board rested on Intel's failure to support any corresponding structure.

[00:57:51] Speaker 00:
But I think in a scenario where the board ultimately can't find corresponding structure, the result under SAS Institute is still sort of basically an up or down vote as the petitioner demonstrated that those claims are unpatentable or not.

[00:58:07] Speaker 00:
The board can't even assess that analysis, which is the cochlear bone scenario.

[00:58:12] Speaker 00:
Then in that final written decision in cochlear bone, just like here, the board said, we therefore cannot find the petitioner has carried its burden in demonstrating patentability.

[00:58:22] Speaker 00:
I acknowledge that in cochlear bone there's a separate question of estoppel in that circumstance.

[00:58:28] Speaker 00:
I do think that's a premature question here, but also fundamentally different here, where Intel offered corresponding structure and then basically reversed course.

[00:58:36] Speaker 00:
It could have supported that corresponding structure, but this is no fault on Qualcomm.

[00:58:41] Speaker 00:
This is on Intel and its regret or its strategic choice.

[00:58:46] Speaker 03:
Or it's recognition that it couldn't prove its case and willingness to let the board not go through a necessary exercise in determining that there was no structure.

[00:58:59] Speaker 00:
Respectfully, Your Honor, if that was Intel's position, it should have made that assessment before putting the claims in the IPR and continuing with them.

[00:59:06] Speaker 03:
Well, I mean, maybe they had good faith then and they changed their minds.

[00:59:10] Speaker 03:
I mean, I think you're putting them into a trap when they decided they couldn't show structure.

[00:59:15] Speaker 03:
And the alternative seemed to be to force him to go through an unnecessary exercise or stop them.

[00:59:22] Speaker 03:
And neither of those seemed correct.

[00:59:26] Speaker 00:
If I can thank you again for the additional time I can just answer that.

[00:59:29] Speaker 00:
I do think there's two different consequences from Intel's conduct.

[00:59:36] Speaker 00:
One is by putting the claims in the IPR and not following the board's rule, the board was

[00:59:40] Speaker 00:
fully within its rights, consistent with Cochlear Bone, to hold that Intel did not carry its burden and therefore could not find claims 16 and 17 unpatentable.

[00:59:50] Speaker 00:
There's a separate consequence that Your Honor raised about estoppel.

[00:59:54] Speaker 00:
We think that's premature here.

[00:59:55] Speaker 00:
We think there are reasons why under the plain language of the statute, even in this scenario, Intel is estopped.

[01:00:00] Speaker 00:
But we're not asking the court to decide that.

[01:00:02] Speaker 00:
But we do think it is a different scenario when given intel's change of position than when it's the board determining there isn't sufficient corresponding structure.

[01:00:16] Speaker 01:
Okay, thank you.

[01:00:16] Speaker 00:
Thank you.

[01:00:18] Speaker 01:
Okay, well, we're not compelled to keep it even, but to the extent we're trying, you get eight minutes on rebuttal if you need it.

[01:00:32] Speaker 04:
On standing, Qualcomm asserted this patent, targeted Intel by suing its largest customer

[01:00:47] Speaker 04:
twice with the goal of trying to drive Intel from the market.

[01:00:52] Speaker 02:
And the relevant Intel component in that case is the XMM-7360, is that right?

[01:00:57] Speaker 02:
Right.

[01:00:58] Speaker 02:
And it's our base band.

[01:00:59] Speaker 02:
And does Fibocom sell that?

[01:01:00] Speaker 04:
It's the same part being supplied to Fibocom, but it is the line of the base band processors.

[01:01:06] Speaker 04:
It sort of depends on which iPhone you're talking about.

[01:01:10] Speaker 02:
I guess what I'm trying to figure out,

[01:01:14] Speaker 02:
In the previous case, you said Fibocom is actually selling this RF transceiver.

[01:01:20] Speaker 02:
Same is today.

[01:01:22] Speaker 02:
Forget about Apple in the past.

[01:01:23] Speaker 02:
Today, Fibocom.

[01:01:25] Speaker 02:
Is that true about the modem that's relevant to this app?

[01:01:30] Speaker 04:
Yes, it is.

[01:01:32] Speaker 04:
But primary focus here has been on Apple, just because I think it's- The litigation history.

[01:01:38] Speaker 04:
Right, the litigation history.

[01:01:40] Speaker 04:
And just two things to point out.

[01:01:42] Speaker 04:
One is, if you look at claim 16, every element of that claim is at or by the secondary processor.

[01:01:49] Speaker 04:
We were the two secondary processor in the patent.

[01:01:52] Speaker 04:
And then when you look at the trial record, we put in the trial transcripts, and what you see is them saying, identifying

[01:02:00] Speaker 04:
But all the other claims require somebody else, something else.

[01:02:05] Speaker 02:
They require other things.

[01:02:06] Speaker 02:
And some of them actually are method claims that require somebody to actually be practicing.

[01:02:11] Speaker 04:
Right.

[01:02:11] Speaker 04:
But then when you look at the trial record, they identified at 6264, 6265, they identified our processor as the secondary processor with all the components there.

[01:02:22] Speaker 04:
And then as we discussed in our brief,

[01:02:25] Speaker 04:
repeatedly looked at the Intel design documents to show the integration here.

[01:02:32] Speaker 04:
So, you know, 6.2.6.2, these are Intel design documents that describe how the Intel baseband processors are integrated into the iPhones.

[01:02:41] Speaker 04:
6.2.6.4, they're looking at, quote, hardware block diagrams of how you would integrate.

[01:02:46] Speaker 02:
I'm sorry, I mean, I think I understand the lay of the land looking backwards at the Apple thing.

[01:02:53] Speaker 02:
I'm really interested in this Fibocom business.

[01:02:57] Speaker 02:
Do you have a declaration saying, or even a portion of your brief in this case, the way you did in the other one that referred to Fibocom?

[01:03:04] Speaker 04:
We do not refer to Fibocom by name.

[01:03:08] Speaker 04:
What our declaration did is it talked about the past enforcement of Apple.

[01:03:11] Speaker 04:
It said we're continuing to supply same processors from the same iPhones, which are still being sold.

[01:03:18] Speaker 04:
And then it said, we sell to another customer.

[01:03:21] Speaker 04:
We did not, in that declaration, name Fibrecom.

[01:03:25] Speaker 04:
And there are sort of concerns here, because we think the reason we're doing this is we think we are going to be that infringement target.

[01:03:33] Speaker 04:
And we're talking about a suit against Apple that ended only in 2019, where we were the real target pair.

[01:03:43] Speaker 04:
Just very briefly on claim construction, I think that

[01:03:47] Speaker 04:
What we are hearing today is probably the third or fourth iteration.

[01:03:52] Speaker 02:
Well, unless what we just went through, at least I'll say me, went through was a complicated roundabout process to get to what, in slightly different words, the board actually did say.

[01:04:07] Speaker 02:
That hardware means there are physical locations that are permanently dedicated to serving this buffer function.

[01:04:15] Speaker 02:
which is to say, it's the opposite of temporary allocation, which is what the board said.

[01:04:19] Speaker 02:
And maybe it took us, or at least me, rather a long time to get there.

[01:04:22] Speaker 02:
But I think Qualcomm's argument here is in effect, that is actually what the board said, but using the negative words, which can easily be translated into the positive words.

[01:04:39] Speaker 04:
Board certainly didn't make that clear.

[01:04:40] Speaker 04:
It didn't talk in terms of allocation.

[01:04:42] Speaker 04:
And I think the question I would ask is, where are we getting that from the patent?

[01:04:47] Speaker 04:
Because the distinction, the discussion of temporary buffer, you won't find a statement in the patent that says, don't use a temporary buffer because you're going to slow things down allocating.

[01:04:59] Speaker 04:
The allocating is just this initial step done at runtime.

[01:05:02] Speaker 04:
It's allocated.

[01:05:04] Speaker 04:
And then in our prior art references, it's there and to be used.

[01:05:08] Speaker 04:
What their focus is is they're saying, don't copy the entire image.

[01:05:13] Speaker 04:
Don't have the headers in everything.

[01:05:15] Speaker 04:
Parse the header first.

[01:05:17] Speaker 04:
And then you can be doing this more direct copying.

[01:05:20] Speaker 04:
And so every instance, the background description of the temporary model.

[01:05:25] Speaker 03:
So are you saying that their assertion that this is somehow one time pre-allocated

[01:05:33] Speaker 03:
that would be an incorrect claim construction too, not consistent with the patent.

[01:05:39] Speaker 03:
The patent doesn't support one-time pre-allocation.

[01:05:42] Speaker 04:
Right, exactly.

[01:05:43] Speaker 04:
I think that is sort of a new justification that's not flowing from the specification itself.

[01:05:51] Speaker 04:
And so again, I come back to the broadest reasonable interpretation standard, and I feel like we are

[01:05:56] Speaker 04:
We are cycling here in claim construction, searching, searching, searching for what the meaning is.

[01:06:01] Speaker 04:
And this is a circumstance where I don't think we are seeing one that is compelled over the other.

[01:06:08] Speaker 04:
This is a circumstance where they are the least cost avoider.

[01:06:11] Speaker 04:
This is their patent.

[01:06:13] Speaker 04:
We're the ones who are having our customer be sued under this.

[01:06:18] Speaker 04:
And so the proper thing to do forward is to go and give it that broader construction and not be trying to rewrite it on other things that they might have claimed, had they used different words.

[01:06:31] Speaker 04:
And just with your doubt, if I say one thing quick on claim 16, I didn't want to burden you.

[01:06:36] Speaker 04:
What we did is in the petition, we said,

[01:06:40] Speaker 04:
customer has been sued in the ITC and we are challenging these claims under the very claim construction that Qualcomm was using in asserting the patent against us.

[01:06:53] Speaker 04:
And we put, you know, the Joint Appendix has their claim charts from the ITC in it.

[01:06:58] Speaker 04:
The board then at the institution says, we're not so sure we see the corresponding structure here.

[01:07:05] Speaker 02:
Qualcomm then came in.

[01:07:06] Speaker 02:
And Qualcomm's construction in the ITC that you attached was a 112F construction or not?

[01:07:12] Speaker 02:
Yes, it was meansful.

[01:07:13] Speaker 02:
Everybody agrees it's a meansful structure.

[01:07:14] Speaker 04:
In terms of the only question is can you identify the corresponding structure?

[01:07:16] Speaker 04:
And we looked, you know, it's their patent.

[01:07:19] Speaker 04:
They presumably did the best job anyone could do to identify the corresponding structure.

[01:07:24] Speaker 04:
We offered them.

[01:07:25] Speaker 04:
I mean, there's no, this isn't the alecrate case where there was nothing in the petition.

[01:07:29] Speaker 04:
And the board's enforcing a rule about what is or isn't in the petition.

[01:07:32] Speaker 04:
The petition said the corresponding structure is this.

[01:07:35] Speaker 04:
It's what they say it is.

[01:07:36] Speaker 04:
Board expressed doubts on institution.

[01:07:40] Speaker 04:
Qualcomm then comes in.

[01:07:41] Speaker 04:
It continues to defend what is ultimately its construction.

[01:07:46] Speaker 04:
but then also defended on other grounds.

[01:07:49] Speaker 04:
It basically said, we're going to rely on distinguishing the prior art on things other than those elements.

[01:07:56] Speaker 04:
It comes back to us, and we say, we're relying on Qualcomm's construction.

[01:08:03] Speaker 04:
We don't think you have to construe these claims because the only grounds in which they are defending are other points.

[01:08:09] Speaker 04:
So you wouldn't need to construe them.

[01:08:11] Speaker 04:
But then we did concede in candor to the board that it

[01:08:15] Speaker 04:
It seems to be right in terms of the difficulties of this patent.

[01:08:19] Speaker 02:
This business about whether it's not feeling symmetric to me.

[01:08:24] Speaker 02:
It seems to me they can defend against prior art by saying element C is missing.

[01:08:33] Speaker 02:
And so it doesn't matter if we understand what element B means.

[01:08:39] Speaker 02:
That's the means plus function.

[01:08:40] Speaker 02:
But you can't do that.

[01:08:44] Speaker 04:
Well, we can... You need to show all of them.

[01:08:48] Speaker 04:
We do.

[01:08:48] Speaker 04:
And it's shown all of them under the construction, under the construction we offered in the petition, under their construction.

[01:08:58] Speaker 04:
And in candor to the board said, you appear to be right about the problems with identifying corresponding structure here.

[01:09:08] Speaker 04:
Because that's a problem with the patent itself.

[01:09:10] Speaker 04:
And so I think this is a Samsung situation.

[01:09:16] Speaker 04:
If we had just sort of stayed silent and said, no, we're offering their construction, then we would be in a place where the board would have to decide, well, can we construe this or not?

[01:09:29] Speaker 04:
And the only thing that's different here is the board itself had already said we are willing to have it.

[01:09:35] Speaker 01:
Yeah, but it didn't have to go the extra step.

[01:09:37] Speaker 01:
I mean, it said that at institution, but don't we need the board to have decided that there's no corresponding structure?

[01:09:45] Speaker 01:
Right.

[01:09:46] Speaker 04:
And they did not do that.

[01:09:47] Speaker 04:
No, they didn't do it.

[01:09:48] Speaker 04:
And that's what they should have done, rather than saying they are agreement with their initial assessment than that we hadn't carried our burden.

[01:09:58] Speaker 04:
And so now they will enter a final decision against us on the merits, potentially triggering a stop all.

[01:10:07] Speaker 04:
When we were just agreeing with them, they should have then completed that thought.

[01:10:10] Speaker 04:
They should have either looked at the claims under the construction in the petition and that Qualcomm was defending and analyzed it against the prior arch.

[01:10:20] Speaker 04:
Or they should have said, we can't do that.

[01:10:22] Speaker 04:
We can't reach a construction, in which case we would be in the world of the Samsung case.

[01:10:27] Speaker 04:
And it would be inappropriate to say this is a failure on our part and that there's a sample.

[01:10:32] Speaker 04:
So that's all we're asking for is that they need to complete that exercise and come to that conclusion rather than turning around and saying this is a failure of proof because even though it was a petition, even though Qualcomm was still defending it,

[01:10:48] Speaker 04:
You agreed with our preliminary assessment.

[01:10:51] Speaker 01:
But why is your scenario, which maybe is arguably compelling about how things went down here, is that completely responsive to what your friend on the other side said, which is this is the board procedure?

[01:11:03] Speaker 01:
You make this assertion, and you have to see it through.

[01:11:07] Speaker 04:
Well, the board's procedure is in terms of what has to be in the petition.

[01:11:11] Speaker 04:
That's the rule it cited.

[01:11:13] Speaker 04:
And this was in the petition.

[01:11:16] Speaker 04:
We didn't go into this and try to argue indefiniteness in the IPR.

[01:11:20] Speaker 04:
We went into this and said, this is the construction.

[01:11:22] Speaker 04:
Essentially, if this can be construed at all, this is their construction.

[01:11:27] Speaker 04:
Here's how it's met by the prior art.

[01:11:30] Speaker 04:
They are then defending that.

[01:11:32] Speaker 04:
And by the time we say anything different, it's not a failure or an absence from the petition.

[01:11:38] Speaker 04:
It was simply an agreement that the board, in its assessment, acknowledging the board had a point.

[01:11:44] Speaker 04:
The board had looked at this and said, we are concerned about this corresponding structure.

[01:11:49] Speaker 04:
And there really wasn't a way to do better, because we're limited by what's in the patent.

[01:11:56] Speaker 04:
So it's another way of just saying, our customers are being sued on this at the time.

[01:12:00] Speaker 04:
We're doing the best we can to get an IPR with their construction while also being candid with the board.

[01:12:06] Speaker 04:
It is going towards the opposite conclusion, saying we're struggling to construe this.

[01:12:12] Speaker 04:
And the board should have continued down that path then and said we can't construe these and we'd be in the realm of Samsung and there wouldn't be questions.

[01:12:21] Speaker 01:
Or they maybe could, once they looked at it, they may have decided they could construe it and then we'd have to go through an appeal of that again, right?

[01:12:29] Speaker 04:
It would be a possibility.

[01:12:31] Speaker 04:
I don't think there's anything else.

[01:12:34] Speaker 04:
If it's not the Qualcomm construction, then I don't think you're going to find correspondence.

[01:12:43] Speaker 02:
able to answer this.

[01:12:45] Speaker 02:
Regarding standing, if these patents, this one and the one in the previous case, end up getting struck down, would that have any effect on the Apple Qualcomm Agreement?

[01:13:02] Speaker 04:
I'm not privy to the Apple Qualcomm Agreement, so I don't

[01:13:05] Speaker 04:
That's part of the point is we are not a party to that agreement.

[01:13:08] Speaker 04:
It certainly would have an effect on us and the piece that we'd get here and the certainty going forward.

[01:13:15] Speaker 04:
Because we're exposing, we're talking about acts that have already been done.

[01:13:18] Speaker 04:
We're still within the statute of limitations for them.

[01:13:20] Speaker 04:
And we're basically continuing to make those exact same sales today.

[01:13:25] Speaker 04:
Thank you.

[01:13:26] Speaker 04:
Thank you.

[01:13:27] Speaker 04:
We're going to both sides in the case this evening.