[00:00:00] Speaker 02:
Our final case this morning is number 21-1085 Ortiz and Associates Consulting versus Unified Patents LLC.

[00:00:46] Speaker 02:
Mr. Wolberisen, is that how you pronounce it?

[00:00:49] Speaker 03:
Good morning, Your Honor.

[00:00:50] Speaker 03:
It's Matt Wolberisen for Appellant.

[00:00:53] Speaker 03:
Wolberisen, okay.

[00:00:55] Speaker 03:
I'd like to focus this morning on the claim language of the 9-1-4 patent, and specifically Claim 1, which is set out, well, the patent is at Appendix 61.

[00:01:09] Speaker 03:
Claim 1 draws a distinction requiring

[00:01:14] Speaker 03:
that a wireless data network identify a data rendering device.

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Whereas the video data is transmitted from either a wireless device or a server is transmitted either over a wireless network or a wired network.

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in the specific claim language is just a generic data network.

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So claim one here in all the independent claims draw this distinction requiring that the wireless network do something that is receive a request and then to actually identify the data rendering device whereas the network

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over which the video data is sent to the DRD, the data rendering device, can be either a wireless or a wired network.

[00:02:20] Speaker 00:
Yes.

[00:02:20] Speaker 00:
Didn't you admit before the board that the lines depicted in Figure 1 could represent a wired-based connection?

[00:02:31] Speaker 03:
Well, Your Honor, I don't believe I did admit that.

[00:02:35] Speaker 00:
The board says you did, right?

[00:02:38] Speaker 03:
well the board well let's look at figure one and the patent itself there's no teaching that those are wired connections and the the figure figure one should not be read into the claim we should

[00:03:02] Speaker 03:
The court should.

[00:03:04] Speaker 02:
Reading it into the claim, it's a question of figure one has to be covered by the claim, right?

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And if figure one shows some wired connections, then the claim can accommodate some wired connections within the network.

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Figure 1 discloses a preferred embodiment of the wireless network that supports communications with the WD, the wireless device.

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reject the suggestion that every connection in figure one is wireless and some of the connections are wired.

[00:03:44] Speaker 02:
Let's assume that.

[00:03:46] Speaker 02:
Then why wasn't the board correct here?

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That the definition of wireless network only requires some wireless connections.

[00:04:00] Speaker 03:
Because it renders meaningless the term wireless.

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Wireless defines the generic term data network.

[00:04:08] Speaker 01:
Wait, so is your argument that when you use the word wireless network, it has to be exclusively wireless, and that that's the common usage of it?

[00:04:20] Speaker 03:
It has to support wireless communications.

[00:04:23] Speaker 01:
That's not what I asked.

[00:04:24] Speaker 01:
That it has to be exclusively wireless.

[00:04:28] Speaker 01:
Is that the common definition, the plain meaning definition of wireless network?

[00:04:33] Speaker 03:
The plain meaning of wireless network is defined in the claims.

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The claim language defines what the wireless network is.

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And what is it?

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It is the wireless network that supports the communications of the wireless device.

[00:04:50] Speaker 01:
You're just repeating the claim language.

[00:04:52] Speaker 01:
Can you answer my question?

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Is the term wireless network, as used in the claims, means that no wired connections at all are allowed?

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That is, it is exclusively wireless?

[00:05:07] Speaker 03:
The wireless?

[00:05:08] Speaker 01:
That's a yes.

[00:05:09] Speaker 01:
Can you answer that with a yes or no?

[00:05:10] Speaker 01:
That's a yes or no question.

[00:05:12] Speaker 01:
Does the claims exclude or include some wired connections in the term wireless network?

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If the network supported the communications of the wireless device, it's irrelevant whether or not there are wired connections or not.

[00:05:31] Speaker 01:
So the network can have wired connections as long as it supports a wireless device, wirelessly?

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It must wirelessly support the WD, the wireless device.

[00:05:42] Speaker 03:
That's what the claim language says.

[00:05:44] Speaker 03:
Why doesn't Eldridge show a network supporting a wireless device?

[00:05:50] Speaker 03:
Eldridge specifically defines the network as a wired network.

[00:05:56] Speaker 02:
Well, that's irrelevant what they define the network as being a wired network.

[00:06:02] Speaker 02:
The fact is it shows the network supporting the wireless device, right?

[00:06:08] Speaker 03:
No, Your Honor.

[00:06:09] Speaker 03:
Eldridge shows the network relied upon in Eldridge is a network that does not support the wireless device.

[00:06:20] Speaker 03:
but rather the wireless device is bridged to the wired network.

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But the wired network in Eldridge does not support communications of the WD, the wireless device.

[00:06:36] Speaker 01:
What does that even mean?

[00:06:38] Speaker 01:
What do you mean when you say it's bridged to the wired network, but it doesn't support the wireless device?

[00:06:45] Speaker 03:
Well, if I could walk, Your Honor, through the preferred embodiment in Eldridge is a

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mobile phone that the user accesses and prints out a document on a printer.

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The printer is hooked up to the wired network.

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The mobile phone accesses the wired network via an IR or radio frequency bridge

[00:07:18] Speaker 03:
But that bridge, that wireless bridge... Okay, wait, wait, wait, stop.

[00:07:21] Speaker 01:
You're using terms I don't necessarily follow.

[00:07:24] Speaker 01:
IR or radio frequency, are those wireless transmissions?

[00:07:30] Speaker 03:
Those are bridged communications to the wired network.

[00:07:34] Speaker 01:
What does that mean?

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Is there a wire connecting the phone to the network?

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Or is it operating somehow wirelessly?

[00:07:44] Speaker 03:
It's a network that does not support the communications of the mobile phone.

[00:07:56] Speaker 01:
So the mobile phone can't connect to the network and print something?

[00:08:01] Speaker 03:
It can connect via this bridge.

[00:08:06] Speaker 01:
What is a bridge in terms of is there a wire?

[00:08:13] Speaker 01:
for the bridge, or is there not a wire?

[00:08:16] Speaker 01:
There's not a wire, Your Honor, but this bridge... So there's a third category of wireless, wired, and bridge?

[00:08:24] Speaker 03:
No.

[00:08:25] Speaker 03:
Your Honor, before the court is the 914PAT, and those claims require a wireless network

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to identify a data rendering device.

[00:08:39] Speaker 02:
The whole bridge concept is foreign to the 914 patent, right?

[00:08:44] Speaker 02:
That's correct, Your Honor.

[00:08:47] Speaker 02:
We're looking at the structure of Eldridge, not its terminology.

[00:08:52] Speaker 02:
It uses different terminology when it describes wireless network and wired network than the patent does.

[00:08:59] Speaker 02:
But what it shows, if you use the patent terminology, is a wireless network, right?

[00:09:08] Speaker 03:
It shows a wired network.

[00:09:13] Speaker 03:
Well, it says it shows a wireless network.

[00:09:15] Speaker 03:
But that wireless network does not support the communications of the mobile phone.

[00:09:20] Speaker 03:
It doesn't.

[00:09:21] Speaker 02:
It connects the mobile phone to the network.

[00:09:24] Speaker 03:
It doesn't support the communications of that mobile phone.

[00:09:28] Speaker 03:
What does that mean?

[00:09:29] Speaker 03:
I'm saying that the user and eldritch in the preferred embodiment cannot place a call to another person based on the wired network.

[00:09:41] Speaker 03:
It doesn't support the communications of that phone.

[00:09:44] Speaker 01:
But it does support sending something from the phone to the printer, right?

[00:09:51] Speaker 01:
Isn't that a form of communication?

[00:09:53] Speaker 03:
It does.

[00:09:54] Speaker 03:
And if I could stress the language of the 914 patent,

[00:09:58] Speaker 01:
Requesting that data communication sending a document from a phone to a network wirelessly Isn't that supporting it?

[00:10:08] Speaker 03:
This is this is precisely our point so the last step of the method in the 914 pattern is sending the video data to the the drd and That can be done over a wired or a wireless network

[00:10:26] Speaker 03:
And so that is a communication.

[00:10:29] Speaker 03:
However, the requirement at the top of the claim for identifying the DRD, receiving a request to find the DRD, and then identifying it, has to come from the wireless network that supports the wireless communications of the WD.

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And so it's not that transmission in Eldridge to the printer.

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print out this document, that's not the communication that has to support the WD.

[00:11:03] Speaker 03:
In the 914 patent, that's the last step, sending the video data.

[00:11:07] Speaker 03:
That can be either wired or wireless.

[00:11:10] Speaker 03:
But up at the top of claim one, the wireless network has to actually identify the DRD.

[00:11:18] Speaker 03:
And so that's our point, is that in Eldridge you have a wired network identifying the printer

[00:11:25] Speaker 03:
you can print it off here.

[00:11:27] Speaker 03:
But that is a wired network that does not support the communications of the WD.

[00:11:34] Speaker 03:
And on that basis, we think the board's construction of these claims is erroneous.

[00:11:44] Speaker 03:
And on the correct construction, which would be an ordinary meaning, that a wireless network supporting the WD

[00:11:56] Speaker 03:
is a connection without wires that supports those communications.

[00:12:04] Speaker 03:
Whereas the data network is either a wireless or a wired network and... You're saying the critical language here is the supporting wireless communications, right?

[00:12:18] Speaker 03:
Could you repeat that, Your Honor?

[00:12:20] Speaker 00:
You're saying the critical language in the claim is supporting wireless communications?

[00:12:26] Speaker 03:
Yeah, the critical language would be, so in claim one, requesting assistance from a wireless data communications network supporting wireless communications of said WD to locate the video enabled DRD for display of said video data.

[00:12:49] Speaker 03:
So this wireless network

[00:12:52] Speaker 03:
has to support wireless communications of said WD to locate the DRD.

[00:13:03] Speaker 03:
And so for the, so Eldridge does find the DRD, the printer in the preferred embodiment that unified patents relies on.

[00:13:21] Speaker 03:
Eldridge finds the printer, receives the request for the printer, but Eldridge teaches explicitly that it's a wired network.

[00:13:31] Speaker 03:
It is not a wireless network supporting communications of the mobile phone.

[00:13:37] Speaker 02:
But it makes no difference that Helridge uses wireless network and wired network in a different sense than the patent does.

[00:13:48] Speaker 02:
What we ask is what does it show in terms of the patented terminology?

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And based on the definition,

[00:13:57] Speaker 02:
of wireless network within the patent, it shows that even though some of the connections are wired.

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Figure 1 discloses the wireless network and regardless of whether or not the figure shows lines

[00:14:22] Speaker 03:
that are wired and I would stress that the specification doesn't teach that doesn't say that those elements those lines are wires they're not wired connections they have nothing to do with the claim doesn't rely on communications between those various elements in figure one there's no teaching that that is just simply

[00:14:49] Speaker 03:
read by the board into these patents.

[00:14:52] Speaker 01:
I don't understand what the point of this.

[00:14:54] Speaker 01:
I thought we'd already gotten past the notion that wireless network couldn't contain some wired elements.

[00:15:03] Speaker 01:
I thought even you agreed that wireless network as used in the patent can mean some wireless and some wired elements.

[00:15:11] Speaker 01:
Is that not correct?

[00:15:15] Speaker 03:
Your Honor, the critical point, and I'll emphasize it again, is that the wireless network needs to do a number of things.

[00:15:25] Speaker 03:
It's required by the claims to do a number of things.

[00:15:29] Speaker 01:
Support wireless communications of the WD receiver... I thought this case was about the construction of wireless network, not this other phraseology in the claims, but what wireless network itself meant.

[00:15:44] Speaker 03:
That is what this case is about.

[00:15:47] Speaker 03:
It's about that claim construction.

[00:15:50] Speaker 01:
Let me just make sure I'm clear on this.

[00:15:52] Speaker 01:
I think you've already answered this after some prompting.

[00:15:56] Speaker 01:
Wireless network is defined by the claims.

[00:15:59] Speaker 01:
Is it exclusively wireless or can it contain some wired elements?

[00:16:06] Speaker 03:
It could contain some wired elements if it performs supporting the WD

[00:16:13] Speaker 03:
Receiving a request to identify the DRD and then in fact identifying the DRD Looks like I'm out of time your honors

[00:16:47] Speaker 04:
May it please the Court, Your Honors.

[00:16:48] Speaker 04:
My name is Alyssa Holtz-Lander, and I represent Unified Patents in this matter.

[00:16:53] Speaker 04:
I want to be clear that wireless networks contain some wired components, and that is consistent with the specification and the expert testimony in this case.

[00:17:04] Speaker 04:
The evidence of record demonstrates that the ordinary and customary meaning of a wireless network corresponds to the board's construction, which requires a wireless connection

[00:17:14] Speaker 04:
but doesn't exclude some wire-based connections.

[00:17:18] Speaker 00:
Well, I think your friend on the other side is arguing, and I could be wrong, but I think what he's arguing is that Eldridge just accepts a wireless communication, and then after that, everything that occurs is wired.

[00:17:33] Speaker 00:
And so that there's no support for what the wireless communication is after it gets into the system.

[00:17:42] Speaker 04:
So I would disagree that

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That is how the 914 patent works and is differentiated by Eldridge.

[00:17:50] Speaker 04:
If you're looking at figure one of the 914 patents, it has wireless network communications hardware, which is what supports the wireless communication from the wireless device.

[00:18:03] Speaker 04:
Network 12 has various wired and or wireless components.

[00:18:09] Speaker 04:
And the 914 patent explicitly describes

[00:18:12] Speaker 04:
that some of those components, and if you look at page 21 of the red brief, there's an annotated figure, one that I find helpful to look at.

[00:18:23] Speaker 04:
The specification describes at column seven that the connection between DRD 7 and network server 15 may be completely wired, and that is part of what the data network is.

[00:18:40] Speaker 04:
when council was describing a distinction between a wireless network and a data network.

[00:18:46] Speaker 04:
A wireless network allows for wireless communications from the wireless device, and a data network could be a purely wired connection.

[00:18:57] Speaker 02:
The argument is that the cell tower is part of the network, part of the wireless network, and it supports communication from the cell phone, right?

[00:19:08] Speaker 04:
Yes, the cell tower is part of it.

[00:19:11] Speaker 04:
In column seven, line seven to 20, the specification describes the cellular wireless network communications hardware includes the antenna, for example, base station controller 17, and mobile system controllers 18.

[00:19:37] Speaker 04:
And those are all showed as being wired components in figure one of the 914 patterns.

[00:19:43] Speaker 04:
And those components allow for the wireless device to communicate with other devices on the network.

[00:19:51] Speaker 04:
It doesn't specify that all of those other devices on the network also cannot have wired components.

[00:20:00] Speaker 02:
And I would like to... The difference between this

[00:20:05] Speaker 02:
Patent in Elridge is that Elridge shows only one wireless connection between the cell phone and the tire, whereas figure one of the patent shows another wireless connection, I guess, between the network and the printer.

[00:20:30] Speaker 02:
At least that's what I understand.

[00:20:33] Speaker 02:
So Eldridge actually... There's more than one wireless connection here, whereas in Eldridge the only wireless connection is between the cell phone and the tower, right?

[00:20:42] Speaker 04:
No, that's not correct.

[00:20:43] Speaker 02:
That's not right?

[00:20:44] Speaker 04:
Eldridge also can talk, the wireless device can talk directly to the printer via, I believe it's the IR communication.

[00:20:53] Speaker 02:
I don't want to know that.

[00:20:55] Speaker 04:
Yes, you can see an annotated figure one of Eldridge on page 32 of the red brief.

[00:21:02] Speaker 04:
There's a wireless connection on the left side of wireless device 118, which communicates over to where the printer is located.

[00:21:18] Speaker 02:
Eldridge is in the middle of the page there, right?

[00:21:22] Speaker 04:
Eldridge is at the top of page 32, and the 914 patent is right below Eldridge.

[00:21:31] Speaker 04:
And you can see similarly, they both have two wired components.

[00:21:36] Speaker 04:
I think it's important to note that the specification in Eldridge describes a wireless network that uses traditional wireless components, such as a GSM network or a PCS network through RS Gateway 120.

[00:22:00] Speaker 04:
And as Ortiz's council had acknowledged, now that the claims only require a wireless connection supporting that wireless device, that that is similar to the RF gateway 120 is consistent with antenna 16 in the 914 patent.

[00:22:21] Speaker 04:
And I just want to note, going back to the construction, with respect to the extrinsic evidence, the record is one-sided.

[00:22:30] Speaker 04:
Ortiz provided no expert testimony regarding the construction of this term.

[00:22:35] Speaker 04:
In contrast, the board credited the testimony of our expert in determining how a person with ordinary skill and art would have understood the disputed term.

[00:22:43] Speaker 04:
And when considering all of this evidence, it's clear that the ordinary and customary meaning in light of the specification is a network that includes a wireless connection.

[00:22:59] Speaker 04:
but it's not prohibited from including some wire-based connections.

[00:23:06] Speaker 04:
And the question then is, why would we go from that ordinary and customary meaning to the narrow meaning that Ortiz is proposing?

[00:23:14] Speaker 04:
The court should only narrow beyond the ordinary and customary meaning when it's inconsistent with the context of the patent.

[00:23:20] Speaker 04:
Or there's a clear lexicography, disclaimer, disavow, or disparagement.

[00:23:25] Speaker 04:
Here, there are none of those things.

[00:23:27] Speaker 04:
Ortiz's arguments

[00:23:29] Speaker 04:
are also inconsistent with the specification.

[00:23:31] Speaker 04:
For example, Ortiz argues that the board's construction improperly imports an embodiment from the specification, but it's exactly the opposite.

[00:23:41] Speaker 04:
It's Ortiz that wants to narrow the construction beyond what the specification teaches and exclude every embodiment in the specification by contending that the wireless network need to exclude all wire-based connections.

[00:23:55] Speaker 04:
Using the figures and specification to understand the claims

[00:23:59] Speaker 04:
is not importing the limitation to the claims, but rather reading the claims in view of the specification as Phillips requires.

[00:24:09] Speaker 01:
I'm not sure, and frankly, well, I am pretty sure I don't really follow your friend on the other side's argument, but it seemed to me, at least this morning, he was arguing that the distinction between

[00:24:20] Speaker 01:
the prior art and the claims is that the wireless, it has to be a wireless network that supports the communications with the wireless device here, and that the prior art shows a wired network that a wireless device can tap into, but it is not the wireless network that's supporting the communications, it's the wired network.

[00:24:45] Speaker 01:
He will correct me if I'm wrong in that understanding, but assume it is.

[00:24:50] Speaker 01:
What's your response to that?

[00:24:52] Speaker 04:
So when you're looking at the network, you have to look from the two nodes that are communicating.

[00:24:57] Speaker 04:
So the network doesn't start on the other side of antenna 16.

[00:25:03] Speaker 04:
The network starts at the wireless device node and goes through the wireless network communications hardware to whatever other device or node that it is communicating with.

[00:25:15] Speaker 04:
take away the wireless connection between the wireless device and antenna 16.

[00:25:20] Speaker 04:
That is where this wireless communication is coming from.

[00:25:24] Speaker 00:
But I don't think you're answering Judge Hughes' question.

[00:25:27] Speaker 00:
So his real point is if all it is is the phone tapping in wirelessly to a wired network, is that enough?

[00:25:41] Speaker 00:
And you're saying it is.

[00:25:42] Speaker 04:
Yes.

[00:25:43] Speaker 04:
You have to have

[00:25:45] Speaker 04:
a wireless communication from the phone.

[00:25:48] Speaker 04:
And that's what this patent is all about.

[00:25:50] Speaker 00:
But he's saying that if you look at the claim, the claim talks about wireless activity beyond just the incoming message.

[00:26:01] Speaker 04:
Correct.

[00:26:03] Speaker 04:
So basically, in response to Ortiz's argument that the wireless network is not doing

[00:26:11] Speaker 04:
the locating and identifying of the data rendering device.

[00:26:17] Speaker 04:
The board found that this ignores that wireless connection from the wireless device to the antenna.

[00:26:24] Speaker 04:
That is where the request is going over.

[00:26:26] Speaker 04:
And that is where the location information is coming back through.

[00:26:30] Speaker 02:
It's coming back, too.

[00:26:32] Speaker 02:
It's not just the initial communication, as you've shown me on page 32 of the red

[00:26:40] Speaker 04:
Correct.

[00:26:40] Speaker 04:
It is coming back.

[00:26:41] Speaker 04:
You have the communications going from the wireless device over the wireless network to request a location of the data rendering device.

[00:26:52] Speaker 04:
And then you also have that location being sent back to the wireless device wirelessly.

[00:26:58] Speaker 04:
Ortiz doesn't argue that the wireless device in Eldridge has any plug-ins or things like that, that you have a wired connection getting information to it.

[00:27:09] Speaker 04:
it admits that it is receiving information wirelessly.

[00:27:17] Speaker 04:
And for all those reasons, I would ask your honors to affirm the decision of the board, unless you have any other questions for me.

[00:27:26] Speaker 02:
Okay, thank you.

[00:27:41] Speaker 02:
Two minutes, Mr. Wallace.

[00:27:42] Speaker 03:
Thank you, Your Honors.

[00:27:44] Speaker 03:
I'd just like to sum up by pointing out that the wireless network in the 914 pad is required to do the following.

[00:27:55] Speaker 03:
It has to support the communications of the WD.

[00:27:59] Speaker 03:
It has to receive a request to identify the DRD, the data rendering device.

[00:28:05] Speaker 03:
And then it has to actually identify the DRD.

[00:28:09] Speaker 03:
So that's a strict requirement, threefold requirements of the wireless network that it must do.

[00:28:17] Speaker 03:
In Eldridge, you don't, you only see the kind of permissive regime at the end of the claim, claim one of the 914 patent.

[00:28:27] Speaker 03:
It allows either wireless or wired communications to get the video data from the WD to the DRD.

[00:28:38] Speaker 03:
And so that can be pushed either via wired or wireless in the 914 patent.

[00:28:45] Speaker 03:
And so the construction here of wireless.

[00:28:48] Speaker 01:
I'm sorry, I'm having a hard time following.

[00:28:50] Speaker 01:
Are you saying that the prior art shows that it can be done either way and your patent requires that it only be done wirelessly so the prior art doesn't teach

[00:29:02] Speaker 01:
the wireless rendition because it can do it either way.

[00:29:06] Speaker 03:
Our patent requires that the wireless network support communications.

[00:29:12] Speaker 01:
I know your patent requires three different things.

[00:29:14] Speaker 01:
You just told us that they're all done wirelessly.

[00:29:18] Speaker 01:
Is your view that because the prior art shows those three things can be done wired or wirelessly that it doesn't disclose your patent?

[00:29:28] Speaker 03:
It's that Eldridge does not disclose those three things wirelessly.

[00:29:34] Speaker 03:
It shows a bridge to a wired network that performs those steps.

[00:29:39] Speaker 01:
Isn't that bridge wireless?

[00:29:41] Speaker 03:
No.

[00:29:42] Speaker 03:
Well, not under a correct construction because a wireless network under these claims has to do those three things.

[00:29:51] Speaker 02:
Running out of time here.

[00:29:54] Speaker 02:
Thank you.

[00:29:54] Speaker 02:
Thank both counsel.

[00:29:55] Speaker 02:
The case is submitted.

[00:29:56] Speaker 02:
That concludes our session for this morning.