[00:00:00] Speaker 05:
Next is 20-1852, Traxel Technologies versus Sprint Communications.

[00:00:06] Speaker 05:
Mr. Ramey, please proceed.

[00:00:10] Speaker 00:
Good morning, Judge Prost, Judge O'Malley, and Judge Stoll.

[00:00:13] Speaker 00:
If it pleases the court, may I begin?

[00:00:16] Speaker 00:
Please.

[00:00:18] Speaker 00:
I'd like to start with the issue of Traxel's objections to the report and recommendations finding of non-infringement of Claim 12 of the 284 Patent

[00:00:29] Speaker 00:
that we did in fact make objections and we found that both the magistrate court, the district court, and followed by Sprint's misapplied this court's case on infringement of the means plus function limitation.

[00:00:45] Speaker 00:
Concentrating like the magistrate judge did on how the identified structure operates rather than determining whether the identified structure performs the court's functions.

[00:00:56] Speaker 05:
And I'm sorry, Mr. Ramey, just to be clear, is that issue connected to claim one of the 284 patent?

[00:01:05] Speaker 00:
No, Your Honor, this is, pardon me, Your Honor, I'm sorry, I did not mean that.

[00:01:09] Speaker 05:
No, go ahead, go ahead.

[00:01:11] Speaker 00:
No, Your Honor, this has to do with claim 12 of the 284 patent.

[00:01:16] Speaker 00:
OK, OK.

[00:01:18] Speaker 00:
If it's OK with the court, I may ask to address claim one later on.

[00:01:21] Speaker 00:
But I do understand from the previous argument that that may be a short argument on my part.

[00:01:26] Speaker 00:
So nothing in the identified functions of receiving the performance data and corresponding locations from said radio tower and correcting radio frequency signals of said radio tower requires the additional steps that the district court put forward at what you'll find in appendix pages 00122 through 123.

[00:01:53] Speaker 00:
The claim function simply doesn't require these extra steps, these extra limitations.

[00:01:59] Speaker 00:
Therefore, the magistrate judge was an error when he required these functions, and that caused, of course, the district court windows to fail.

[00:02:07] Speaker 03:
Mr. Ramey, this is Judge Stoll.

[00:02:09] Speaker 03:
So as I understand it, the magistrate judge construed the corresponding structure and the specification to be the algorithm in certain figures of the 284 patent, right?

[00:02:21] Speaker 03:
And I think that you did not dispute that at all, that it was a means plus function claim and that the court identified the correct corresponding structure.

[00:02:34] Speaker 03:
So then when you look then at whether the accused device has that corresponding structure, don't you have to consider all of the corresponding structure that was undisputed and identified by the district court?

[00:02:51] Speaker 00:
No, Your Honor.

[00:02:52] Speaker 00:
My understanding of the case law is that we're looking to make sure that it performs the function in substantially the same way, producing substantially the same results.

[00:03:04] Speaker 00:
So we don't need to look at any extraneous functions.

[00:03:07] Speaker 00:
We just need to look at the structure necessary to perform that function.

[00:03:12] Speaker 03:
You think that because we're just focusing on the way and results,

[00:03:17] Speaker 03:
that you don't have to worry about all the steps of the algorithm.

[00:03:23] Speaker 03:
I mean, if you're performing different steps other than those specified in the corresponding algorithm, how is that not in a different way?

[00:03:34] Speaker 00:
Your Honor, so the core function is merely collecting these operational parameters and then making adjustments to the network base to correct and improve radio frequency communication.

[00:03:46] Speaker 00:
That's what the means plus function claim limitation is.

[00:03:50] Speaker 00:
And the structure that we identified is doing that, figures 38A, 38B, and 38C.

[00:03:55] Speaker 00:
And then column 54 to column 55 from the specification describe how one embodiment from the patent performs that function of collecting operational parameters and making adjustments to the network based on those operational parameters to increase radio frequency communication.

[00:04:16] Speaker 03:
So what we think that it's a... But if you choose to use a Use Plus Function Claim under 112.6, you are choosing to have your claim limited to the corresponding structure, whether it's one embodiment with specification or not.

[00:04:32] Speaker 03:
And I heard you to be emphasizing it's just one embodiment, but it has to be the same corresponding, same or equivalent corresponding structure in the accused device, right?

[00:04:44] Speaker 00:
The structure doesn't have to be the same.

[00:04:47] Speaker 00:
The structure, in fact, can be different.

[00:04:49] Speaker 00:
What we concentrate on is whether the functions perform the same, produce the same results essentially the same way by that structure.

[00:04:58] Speaker 00:
So I would take it as a slightly different nuanced approach to that.

[00:05:02] Speaker 00:
We're not saying that the structure can be vastly different.

[00:05:05] Speaker 00:
The structure has to be similar enough that it produces the same structure.

[00:05:12] Speaker 00:
function in the same manner.

[00:05:14] Speaker 00:
So that's what we put forward.

[00:05:16] Speaker 00:
We think that, in fact, does perform that.

[00:05:22] Speaker 04:
Counsel, I still don't think you're understanding Judge Stoll's question.

[00:05:27] Speaker 04:
This is Judge O'Malley.

[00:05:31] Speaker 04:
Performing the same function is not enough, correct?

[00:05:34] Speaker 04:
I think the problem is that you have a fundamental misstatement of the law in terms of what you think you need to show.

[00:05:45] Speaker 00:
Well, you're not.

[00:05:46] Speaker 00:
Hmm.

[00:05:50] Speaker 00:
We don't.

[00:05:51] Speaker 00:
Okay.

[00:05:51] Speaker 00:
Your honor.

[00:05:52] Speaker 00:
That's, uh, I understand what I do understand what the court is saying, but, uh, if you go to, we go to the case, the Beauregard, the Beauregard case, that when the court construed the claim to mean, uh, the funnel means, right.

[00:06:09] Speaker 00:
And when the court put in the construction process of judging infringement,

[00:06:13] Speaker 00:
It set certain limits on that, and that's what the court took away.

[00:06:17] Speaker 00:
So I think that we can come back to this particular analysis and say that the court identified a function and a structure.

[00:06:27] Speaker 00:
The court identified the function of just doing that, of what we just went through earlier, not to read it back into the record.

[00:06:34] Speaker 00:
So what we're looking for is structure that performs that function substantially the same way.

[00:06:41] Speaker 00:
That's the way that we put the brief forward.

[00:06:45] Speaker 00:
In fact, if you go to page, pardon me, Your Honor, if you go to appendix pages 0098 through 138 at page 24, it again talks about what the district court is saying, that the court fails or tri-cell fails to provide analysis for several aspects required by the claims.

[00:07:07] Speaker 00:
But the claims, in fact,

[00:07:08] Speaker 00:
don't require that.

[00:07:09] Speaker 00:
The claims are just a means plus function where we identified the structure that was agreed.

[00:07:15] Speaker 00:
In fact, I think we're the ones that proffered the structure.

[00:07:19] Speaker 00:
And then the function was also agreed by the court.

[00:07:21] Speaker 00:
And the court went to great lengths to saying that this function doesn't even require location-based corrections.

[00:07:30] Speaker 00:
So the court fully got into that.

[00:07:32] Speaker 00:
And then so they identified structures that we have from Nokia's

[00:07:37] Speaker 00:
I'm sorry, from the Verizon and Sprint systems were ones that performed those particular functions, Verizon, CSUN, and the LSM from Sprint's device.

[00:07:52] Speaker 00:
So the district would thereby focus on how the identified structure operates rather than determining whether the identified structure performs the function of receiving set performance data and corresponding to the case.

[00:08:04] Speaker 04:
I think you're the one who's in error here.

[00:08:06] Speaker 04:
He has to do both.

[00:08:08] Speaker 04:
the district court properly said that performing the function is not enough.

[00:08:13] Speaker 04:
It has to do it in substantially the same way.

[00:08:17] Speaker 00:
So, Your Honor, it's our position, and my apologies to the court, but it's our position, if I wasn't clear about that, my apologies, that we do do it in substantially the same way.

[00:08:27] Speaker 00:
And then we ran through how we did that by providing the testimony of Dr. Hildre, who identified the StemSons, LSM, and Verizon CSUN for how they

[00:08:36] Speaker 00:
We want to analyze that for sprints, the ANR, automatic neighbor relations, operational parameters, and how they configured thresholds, updated and monitored in our briefing.

[00:08:49] Speaker 00:
And we did the same thing for sprints, minimization of drive tests.

[00:08:53] Speaker 00:
So we did attempt to, so I wasn't trying to say the structure didn't have to be substantially similar.

[00:08:59] Speaker 00:
And if I did say that, my apologies.

[00:09:01] Speaker 00:
I understand the law that it has to be substantially similar to our position that they are.

[00:09:09] Speaker 00:
And then I'm going to drop from the argument claims 1 through 11 of the 284 patent.

[00:09:15] Speaker 00:
And I'm going to go to what I think is maybe a larger issue in this case, if I might please the court to talk a little bit about the error in the judicial court in requiring the patent to use, when they use the term program to have actually performed the claim function.

[00:09:36] Speaker 00:
And I think it's been the law from this court and the federal courts for some time that whether program capability ultimately is executed is required only for infringement of a patented method claim, not a system claim.

[00:09:50] Speaker 00:
And further, in means plus function claims, the means don't have to be actuated.

[00:09:56] Speaker 00:
So the district court erred by failing to recognize that each of Sprint and Verizon's wireless networks are programmed to operate in two modes.

[00:10:06] Speaker 00:
in a mode where they take wireless device measurements from the network.

[00:10:10] Speaker 00:
In the program to operate in a mode where they take wireless device measurements from other places.

[00:10:15] Speaker 00:
And there's ample record evidence that we cited that Verizon's wireless network, or Sprint's wireless network, gets its network measurements from the wireless network, specifically for Sprints.

[00:10:29] Speaker 00:
Sprints requires its devices to be able to

[00:10:33] Speaker 00:
support location determination by the wireless device, the UE, through assisted GPS, AFLT, which is advanced forward link, trilateration, and cell sector or MS assisted, mobile station assisted manner of location determination.

[00:10:51] Speaker 00:
And we provide ample sites in the briefing to the courts.

[00:10:55] Speaker 00:
And further for sprints, we talk about sprints, CSUN being able to do the same thing that we

[00:11:03] Speaker 00:
as well.

[00:11:05] Speaker 00:
And we do present evidence concerning Sprint's wireless network and how it determines location of wireless device from local computation from the network.

[00:11:16] Speaker 00:
And we have Google's corporate representative that's testified that Google Maps, no matter for what, always uses location information determined from the network and arriving in its final location determination.

[00:11:34] Speaker 00:
And SPRINT uses the location determination from its elements of the Position Determination Entity, or PDE, or from the SPRINT LSM uses a variety of different methods, such as OT, DOA, or call trace analysis to perform its location determination.

[00:11:54] Speaker 04:
And the position determination... Council, am I correct that you actually agreed to the claim construction of location?

[00:12:05] Speaker 00:
Your Honor, and yes, Your Honor, and this gives us back a little bit to the argument concerning whether or not the issue had been passed on.

[00:12:14] Speaker 00:
And in our opinion, if I may, Your Honor, I'll finish answer your question.

[00:12:19] Speaker 05:
Yes, please answer Judge O'Malley's question.

[00:12:22] Speaker 00:
Yes, and so this goes back to our position that's slightly similar to the Nokia case.

[00:12:28] Speaker 00:
We had believed that the issue was passed on by the district court.

[00:12:31] Speaker 00:
from the Nokia briefing.

[00:12:33] Speaker 00:
And so we didn't think that the court, we were going to be able to convince the court.

[00:12:37] Speaker 00:
We thought we had better arguments for the single computer argument we were making.

[00:12:41] Speaker 00:
So we were allowing that issue.

[00:12:42] Speaker 00:
So we didn't agree with it.

[00:12:43] Speaker 00:
Our briefing shows that it wasn't agreed.

[00:12:45] Speaker 00:
And we maintained in our claim destruction objections and the rest that we did contest that issue.

[00:12:51] Speaker 00:
But the court is correct that we did agree to limit the issues that the district court was going to decide because we felt that that issue had already been passed on.

[00:13:00] Speaker 05:
Okay, well, where does that leave us, Mr. Raimi?

[00:13:04] Speaker 05:
If you stipulate to a trial court's construction, we take that as a given.

[00:13:10] Speaker 05:
We don't reassess that because of the other things you're talking about that are going on, right?

[00:13:15] Speaker 05:
We take that as a given, right?

[00:13:18] Speaker 00:
Yes, Your Honor.

[00:13:19] Speaker 00:
It could be taken as a given.

[00:13:21] Speaker 00:
But here I think maybe what we would suggest to be the more appropriate remedy would be to consider whether or not that issue had been passed on by the district court, whether we were generating new arguments, which we're not.

[00:13:34] Speaker 00:
This is clearly issues that we've briefed all along the way to the district court.

[00:13:39] Speaker 04:
But you're basically saying then we're supposed to assume that anything that went on in a different case is somehow preserved in this case

[00:13:50] Speaker 04:
even though you don't preserve it?

[00:13:56] Speaker 00:
Your Honor, no, I think we didn't.

[00:13:59] Speaker 00:
Excuse me.

[00:13:59] Speaker 00:
I think we did, in fact, preserve it through our objections and through the briefing.

[00:14:05] Speaker 00:
We will only agree to it.

[00:14:08] Speaker 05:
In the Kea case, when you say you preserved it, are you talking about stuff that went on in the Nokia case or the stuff that went on here?

[00:14:15] Speaker 00:
And stuff that went on in this case as well, Your Honor.

[00:14:17] Speaker 00:
We think it was a preserved issue.

[00:14:19] Speaker 00:
And we think that if you just go, the Forchy case actually helps us in this regard.

[00:14:23] Speaker 00:
Because the issues that the appellate courts primarily look at is that they don't consider issues that have not been passed upon below.

[00:14:32] Speaker 00:
And that's not a concern for any claim destruction argument we're making.

[00:14:36] Speaker 00:
Because this has been, the district court and the magistrate judge has had the chance to pass on all these issues.

[00:14:44] Speaker 05:
Mr. Rainey, I think I'm correct.

[00:14:49] Speaker 05:
In the first case, you didn't cite Forshee, even though it was the centerpiece for your responses to the concerns that we raised.

[00:14:57] Speaker 05:
I think the same is true in the second case.

[00:15:00] Speaker 05:
Forshee is not cited as a reason or a rationale for you to have been permitted to do this, is it?

[00:15:07] Speaker 00:
Yes, Your Honor, it is.

[00:15:09] Speaker 00:
And if I can reserve 30 seconds, I'll find that exact site and give it to you in my 30 seconds.

[00:15:18] Speaker 05:
Okay, we'll look forward to your answer on appeal on reply.

[00:15:22] Speaker 05:
Let's hear from the other side.

[00:15:24] Speaker 05:
Mr. Krumholz, are you representing Verizon?

[00:15:27] Speaker 05:
I'm sorry, I lost track.

[00:15:29] Speaker 02:
Yes, that's correct, Your Honor.

[00:15:30] Speaker 02:
I'm representing Verizon.

[00:15:32] Speaker 02:
I'm spending my time with Spence Council.

[00:15:34] Speaker 02:
My focus will be

[00:15:36] Speaker 02:
on the 388 patent and the term location of the 024 patent and Splints Council's focus will be on the 284 patent, specifically in validity for claims 1 through 11 and non-enrichment for claim 12, as well as the term computer for the 024 patent.

[00:15:53] Speaker 02:
That's how we've divided our time.

[00:15:55] Speaker 02:
And I'll begin with the 388 patent.

[00:15:57] Speaker 02:
There's one issue on appeal.

[00:15:59] Speaker 02:
with regard to the 388 pattern, and that's whether the location of the wireless device is determined by the network or whether it's determined by the device.

[00:16:09] Speaker 02:
First, it's plain that the claim language requires that the location of the device be determined by the network.

[00:16:15] Speaker 02:
Representative claim one, for example, states that the wireless device receives the location information, quote, from the wireless communications network, end quote, independent claims 11 and 21 have the same language.

[00:16:29] Speaker 02:
And Traxel seems to admit as much on page 25 of its reply, as well as admissions by its expert at his deposition at appendix page 4571.

[00:16:41] Speaker 02:
And finally, the prosecution history makes it clear that to overcome a 102 rejection, they added the second processor at the network, determining the location to get over the prior R. So I think it's clear what the claim requirements are in terms of the non-infringement position

[00:16:59] Speaker 02:
So for Sprint, only Google Maps has been accused.

[00:17:02] Speaker 02:
For Verizon, it's both Google Maps and DZ Navigator, but the arguments are the same for each.

[00:17:08] Speaker 02:
Mr. Ramey made some confusing comments about the representative from Google Maps talking about the use of location information.

[00:17:18] Speaker 02:
That was in the context of the 388 patent and what he explicitly said.

[00:17:23] Speaker 02:
was that the location is determined by the device.

[00:17:26] Speaker 02:
It is not determined by the network.

[00:17:28] Speaker 02:
He's unequivocal in that testimony at page 2137 in the appendix.

[00:17:34] Speaker 02:
For VZ Navigator, we have the representative from ComTech, which is the company that provides the VZ Navigator product to Verizon, and he was equally unequivocal at page 2171 of the appendix.

[00:17:49] Speaker 02:
that, again, the device determines its location rather than the network.

[00:17:56] Speaker 02:
Traxel does not refute that testimony.

[00:17:59] Speaker 02:
It doesn't try and challenge that testimony.

[00:18:02] Speaker 02:
Instead, it provides this undifferentiated mass of documents without ever explaining how they're relevant to the application or to the claims or to their assertions of infringement.

[00:18:15] Speaker 02:
I would make four general criticisms.

[00:18:18] Speaker 02:
One is that they make no attempt to tie any of those functions or documents to the accused products.

[00:18:24] Speaker 02:
Two, they rely on burial documents.

[00:18:26] Speaker 05:
Mr. Kremholtz, this is Judge Kroos.

[00:18:30] Speaker 05:
I just want to make sure we're talking about the same thing.

[00:18:33] Speaker 05:
Are you referring to the blue brief pages 37 through

[00:18:38] Speaker 05:
41 or so and all of their citations and their footnotes.

[00:18:43] Speaker 05:
Okay, I just wanted to make sure we were on the same wavelength.

[00:18:46] Speaker 02:
Yes, exactly.

[00:18:46] Speaker 02:
Particularly pages 37 and 38, where they just have an alphabet soup of assertions without tying any of those in.

[00:18:55] Speaker 02:
And when they do look at documents, they're typically looking back at documents from the 2008 time frame and not 2017 and forward, which is the relevant time frame.

[00:19:05] Speaker 02:
And what's also significant is they made no effort to ever ask a single question of any witness about any of those documents at any time.

[00:19:13] Speaker 02:
It made a strategic decision not to find out what the real answers were.

[00:19:17] Speaker 02:
And that's all in the context of the fact that they had all the present-day documents, they had the present-day source code, none of that is ever cited in support of any of their claims.

[00:19:27] Speaker 04:
So they made... Can I back up for a second?

[00:19:30] Speaker 04:
Because again, you keep citing us to things.

[00:19:33] Speaker 04:
Am I to assume that all of your

[00:19:36] Speaker 04:
Confidentiality markings are to be disregarded to the extent that you refer to anything that could support our conclusions?

[00:19:48] Speaker 02:
Yes.

[00:19:50] Speaker 04:
We will make that same representation and we note... Mr. Cromwell, if you were in the middle of telling us, I believe, that you are waiving the confidentiality requirements to the extent that you have cited anything in the briefs or that you're citing us to anything,

[00:20:04] Speaker 04:
during your argument as well.

[00:20:06] Speaker 04:
Is that correct?

[00:20:07] Speaker 02:
That is correct, and I do note the panel's comments earlier about it would have been more proper to have done that at the outset, and we will certainly do that in the future.

[00:20:18] Speaker 05:
I appreciate that.

[00:20:19] Speaker 02:
Thank you.

[00:20:22] Speaker 02:
Go ahead.

[00:20:23] Speaker 02:
Yes, I confess I'm not exactly sure where I left off before... You were talking about pages 37, 38 of the blue brief?

[00:20:32] Speaker 02:
And those citations?

[00:20:34] Speaker 02:
Right, right.

[00:20:35] Speaker 02:
So the fundamental problem with those, with their sites is they, one, they make no attempt to tie any of those documents or those functions to the accused navigation products.

[00:20:47] Speaker 02:
Two, they're generally relying on very old documents dating back as far as 2008 to prove infringement in 2017 and later.

[00:20:54] Speaker 02:
Three, they made the strategic decision not to ask any witness about any of those documents in order to find out whether any of those documents are actually relevant.

[00:21:03] Speaker 02:
to the accused products.

[00:21:06] Speaker 02:
And four, we had produced all present-day documents at source code, and they made no attempt to cite any of those documents to try and prove their case.

[00:21:16] Speaker 02:
So they made a tactical decision to rely upon old documents without asking any questions about them and do it in an undifferentiated way, while not in any way rebutting the affirmative testimony of the two witnesses who have the subject matter knowledge

[00:21:32] Speaker 02:
So we believe the judge was entirely correct in the finding of non-infringement with regards to 3A that's passed.

[00:21:41] Speaker 03:
Mr. Krumholz, this is Judge Stoll.

[00:21:44] Speaker 03:
I just wanted to ask you about the related cases.

[00:21:47] Speaker 03:
There is a number of related cases identified as being cases that will be directly affected by the court's decision.

[00:21:54] Speaker 03:
Are you familiar with any of those cases and what issues those cases involve?

[00:22:03] Speaker 02:
A generalized understanding, I'm just going to, if you bear with me for a moment, I have a summary of what the cases are.

[00:22:12] Speaker 02:
So roughly we have the Nokia case, which is the SON patents only.

[00:22:20] Speaker 02:
We have the consolidated Verizon Sprint T-Mobile, which we're dealing with here, which is the SON and the 388.

[00:22:28] Speaker 02:
The T-Mobile matter was stayed pending the outcome of the Nokia appeal because it's the same

[00:22:33] Speaker 03:
Mr. Krumholz, I think where you left off, you were talking about the related cases.

[00:22:38] Speaker 03:
I was just interested in knowing if any of the pending cases in district court had related issues.

[00:22:46] Speaker 02:
Yes, so there is a T-Mobile case that has stayed pending the outcome of the Nokia appeal because it's the same accused product.

[00:22:56] Speaker 02:
And then there is a new case... Are they the same claim?

[00:22:59] Speaker 04:
That issue, I mean, there's claim language, so the claim construction issues, are those the same?

[00:23:03] Speaker 04:
I'm sorry, this is Judge O'Malley.

[00:23:05] Speaker 02:
That's my understanding.

[00:23:06] Speaker 02:
I have to give a caveat that, you know, we're not, I'm not representing Nokia, but that is my understanding.

[00:23:13] Speaker 02:
And then there is another case that Traxel has brought against T-Mobile and Nokia that involves new patents.

[00:23:19] Speaker 02:
in the same family, those have been stayed pending resolution of the appeals.

[00:23:24] Speaker 02:
I can't tell you specifically.

[00:23:26] Speaker 02:
My understanding is it stayed because there is a potential of impact, even though they're new patents, but because in the same family, but I can't tell you specifically how.

[00:23:34] Speaker 05:
Okay.

[00:23:35] Speaker 05:
Well, Mr. Ramey, we'll hear from you again after your friends complete their argument.

[00:23:39] Speaker 05:
So I hope you will be prepared to give us an accurate summary of the pending cases.

[00:23:46] Speaker 05:
Yes, Your Honor.

[00:23:47] Speaker 02:
So, if I may, with the time that I've left, on the location, I think there's been... So, there are two arguments for non-imprisonment that are independent of each other.

[00:23:57] Speaker 02:
One concerns whether the CSON uses location at all, and the answer is that it does not.

[00:24:06] Speaker 02:
It measures distance through something called the timing advance.

[00:24:09] Speaker 02:
Timing advance data is a metric that measures the time that it takes for a message to travel from a wireless device to a base station.

[00:24:17] Speaker 02:
from that data, you can calculate distance.

[00:24:20] Speaker 02:
That's not dependent on claim construction.

[00:24:22] Speaker 02:
And then just lastly, with regard to the other argument is the court has heard about the construction for location.

[00:24:32] Speaker 02:
Assuming that construction is upheld, the CSUN uses bins.

[00:24:38] Speaker 02:
It puts up data into bins, which are circles around a base station that are separated geographically.

[00:24:46] Speaker 02:
certainly fall within the definition of BINs, and their expert, Mr. Helgert, admitted as much in his deposition.

[00:24:54] Speaker 05:
Thank you.

[00:24:55] Speaker 02:
Thank you.

[00:24:56] Speaker 02:
And again, I apologize for the technical problems that I had.

[00:24:59] Speaker 05:
Okay.

[00:25:00] Speaker 05:
Mr. Schmaltzberg, Bach.

[00:25:01] Speaker 05:
You have eight, seven minutes.

[00:25:05] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:25:06] Speaker 01:
Brian Schmaltz back for Sprint.

[00:25:08] Speaker 01:
I'll address some additional reasons for affirming as to the SON network tuning patents.

[00:25:13] Speaker 01:
Starting with the 284 patent,

[00:25:15] Speaker 01:
My understanding was that Mr. Ramey said that he is dropping the Claim 1 argument.

[00:25:21] Speaker 01:
So I'm happy to answer any questions that Your Honors have as to Claim 1 and its dependence.

[00:25:27] Speaker 01:
But otherwise, we agree with the district court that Claim 1 is indefinite.

[00:25:32] Speaker 01:
And if there are no questions, I'll move on to Claim 12, which Mr. Ramey focused on.

[00:25:39] Speaker 01:
As to Claim 12,

[00:25:41] Speaker 01:
Tracktail's only challenge on appeal is that the district court required proof of unclaimed extraneous functions in the specification.

[00:25:49] Speaker 01:
But Tracktail never made that objection to the report and recommendation.

[00:25:53] Speaker 01:
Its objection was that it did show evidence that the accused systems practiced the nine structural aspects of the construed term that the district court found missing.

[00:26:04] Speaker 01:
That's quite different from the argument he makes now.

[00:26:07] Speaker 01:
But that objection never put the district court on notice that it needed to decide whether those nine structural aspects were required structure or extraneous function.

[00:26:18] Speaker 01:
But on the merits, the only real dispute now on appeal is whether Traxel needed to present evidence addressing, in some respects, those nine aspects of the corresponding structure or their equivalence.

[00:26:29] Speaker 01:
Traxel's position is that it doesn't.

[00:26:32] Speaker 01:
But it does.

[00:26:33] Speaker 01:
Each of those nine structural aspects

[00:26:35] Speaker 01:
implements the agreed functions of either receiving performance data and location from a radio tower or correcting the radio frequency signal of said radio tower.

[00:26:46] Speaker 01:
The problem for Traxel is that Traxel itself proposed those nine structural aspects identified by the district court to overcome the defendant's indefinite misogyny.

[00:26:56] Speaker 01:
For example, Traxel proposed figures 38B and C as structure corresponding to that function.

[00:27:03] Speaker 01:
But Traxel provides no evidence at all that the accused sprint product corresponds to anything in the way those figures implement the construed function.

[00:27:14] Speaker 01:
What we ask your honors to agree with is the proposition that you can't propose structure corresponding to a function to defeat indefiniteness and then turn around and argue that that structure you propose is extraneous to that function.

[00:27:28] Speaker 01:
And that same problem is fatal for the doctrine of equivalence

[00:27:31] Speaker 01:
since Traxel can't prove equivalence by ignoring large chunks of the structure that Traxel itself proposed.

[00:27:40] Speaker 01:
Now, as to the computer limitations, the district court was right that the son claims reciting a computer, which is most of them, require a single computer to perform the claimed functions and right that no single computer in the accused sprint systems satisfies that requirement.

[00:27:58] Speaker 01:
As Your Honor's discussed in the Nokia argument, Traxell's challenge to that claim construction is waived.

[00:28:06] Speaker 01:
But I'd like to focus on the point that this was more than a simple forfeiture.

[00:28:10] Speaker 01:
This was Traxell's intentional strategic decision.

[00:28:13] Speaker 01:
Traxell knew the deadline for objecting to the Markman order because Sprint and Verizon had filed their own timely objections noting the deadline.

[00:28:21] Speaker 01:
Traxell had a different strategy.

[00:28:23] Speaker 01:
In its own words at Appendix 2761,

[00:28:27] Speaker 01:
Trexel, quote, intended to make its objection to the claim construction order if necessary after the ruling on summary judgment.

[00:28:37] Speaker 01:
That intentional strategy should not be rewarded on appeal.

[00:28:41] Speaker 01:
And the district court's construction was correct in any event.

[00:28:44] Speaker 01:
The asserted claims always refer back to the same computer performing additional functions, confirming that a computer or the computer or a first computer is singular.

[00:28:54] Speaker 01:
When the claims refer to another computer performing additional functions, they do so explicitly by specifying a second computer.

[00:29:02] Speaker 01:
And the prosecution history confirms that meaning.

[00:29:05] Speaker 01:
The applicant repeatedly and clearly distinguished prior art that used multiple computers by saying that this invention needs a single computer.

[00:29:16] Speaker 01:
Now, Trexel then tries to backdoor its waived multiple computer construction under the doctrine of equivalence.

[00:29:23] Speaker 01:
But those equivalence contentions are not preserved.

[00:29:26] Speaker 01:
Tracktail moved for leave to add equivalence contentions after the deadline under local rules.

[00:29:31] Speaker 01:
And the district court correctly found no good cause to excuse that tardiness.

[00:29:36] Speaker 01:
But Tracktail does not even appeal that no good cause holding, either in the blue brief or the gray brief, let alone show why that holding was an abuse of discretion.

[00:29:47] Speaker 01:
As to infringement, it was Tracktail's burden to present evidence that a single computer practiced

[00:29:53] Speaker 01:
each element of the asserted claims.

[00:29:55] Speaker 01:
But Tractel fails to overcome the undisputed evidence that the accused Samsung desonde system used by Sprint is, as the name suggests, distributed across multiple systems and multiple computers.

[00:30:09] Speaker 01:
So the need to involve both the LTE system manager or LSM and one or more computers at base stations called eNodeBs means that the single computer limitation is not satisfied.

[00:30:22] Speaker 01:
And in particular, the LSM alone can't do it.

[00:30:25] Speaker 01:
The LSM is the computer that TrackCell focuses on in its reply brief.

[00:30:30] Speaker 01:
Because TrackCell admits that the LSM is just a system interface that manages and maintains other network computers, like eNodeB.

[00:30:39] Speaker 01:
TrackCell's real argument in the brief appears to be that it should be enough to have a single computer, quote, programmed to actuate other systems that perform the function.

[00:30:50] Speaker 01:
That's from page 48 of the blue brief.

[00:30:52] Speaker 01:
But that's the same unpreserved equivalence argument, that multiple computers should be equivalent to a single computer.

[00:30:59] Speaker 01:
The summary judgment was correct on all the asserted claims containing that computer term.

[00:31:06] Speaker 01:
If the court has no questions on the 284 claims or the computer limitations, we would ask you to affirm.

[00:31:13] Speaker 05:
Thank you.

[00:31:14] Speaker 05:
Hearing no questions.

[00:31:16] Speaker 05:
All right, Mr. Ramey, we're back for your rebuttal timing.

[00:31:20] Speaker 05:
Could you take a few minutes just to tell us what your assessment is of the pending cases that we've been asking the other side about?

[00:31:29] Speaker 05:
Apologies, Your Honor.

[00:31:30] Speaker 04:
How much time should I set for Mr. Ramey?

[00:31:31] Speaker 04:
He exceeded his time.

[00:31:33] Speaker 05:
Oh, OK.

[00:31:34] Speaker 05:
Well, give him four minutes.

[00:31:37] Speaker 05:
Okay, thank you.

[00:31:38] Speaker 05:
Yeah, but I'll be flexible in terms of, because we are, obviously all of us have asked about the pending cases and the overlap.

[00:31:45] Speaker 05:
So I'd like to hear your view on that, please.

[00:31:48] Speaker 00:
Yes, Your Honor.

[00:31:48] Speaker 00:
I'll be as quick as I can.

[00:31:50] Speaker 00:
And I do have four points if I could take 15 seconds apiece, so no more than a minute to address the rebuttal.

[00:31:56] Speaker 00:
But I'll do that after the case synopsis, I guess.

[00:32:01] Speaker 00:
Yes, Your Honor.

[00:32:02] Speaker 00:
So there are multiple pending cases.

[00:32:04] Speaker 00:
The Nokia case,

[00:32:06] Speaker 00:
It has the issues of claim construction, of location of first computer, and the... And the case that we heard earlier today, that's the case... Yes, Your Honor.

[00:32:15] Speaker 05:
Okay, we know about that case.

[00:32:17] Speaker 00:
Okay, okay, I'll go on.

[00:32:18] Speaker 00:
Then there was a case for Sprint, a case for Verizon, and a case for AT&T, and a case for T-Mobile.

[00:32:25] Speaker 00:
The AT&T case is settled, and the case for T-Mobile is stayed, and so the case for Verizon and Sprint is the case under this appeal.

[00:32:34] Speaker 00:
The state T-Mobile case has similar issues, but we haven't conducted any discovery so that we don't think that any order from this court necessarily would be dispositive as to the 388 patent.

[00:32:50] Speaker 00:
There may be certain things that come out of the claim instructions for computer and location that would affect the viability of claims on the SON patents, that being the 024 patent, the 320 patent, and the 284 patent, but the 388 patent

[00:33:04] Speaker 00:
is a slightly different beast, Your Honor, for the related cases that are along the very same timeline as the Sprint and Verizon case.

[00:33:13] Speaker 00:
There has been a later filed T-Mobile case that is on different patents that are unrelated, in large respect, two of them to the SON patents.

[00:33:23] Speaker 00:
One is the 388 patent, in fact, and one is the 196 patent.

[00:33:30] Speaker 00:
And then there's a 353 patent that more is SON related.

[00:33:33] Speaker 00:
So the issues from this court regarding the construction of first computer and location would directly impact, but not foreclose necessarily those claims, because the claims again are different.

[00:33:44] Speaker 00:
They claim different aspects of the invention.

[00:33:48] Speaker 05:
But the 388 patent is in play in this case.

[00:33:51] Speaker 05:
So will our decision in this case with regard to the 388 necessarily or likely impact the other T-Mobile case?

[00:34:01] Speaker 00:
Not likely, your honor, if I can explain briefly, my apologies to the court.

[00:34:06] Speaker 00:
The three and eight wasn't brought up on a claim construction issue.

[00:34:09] Speaker 00:
It was more about sufficiency of the evidence issue.

[00:34:13] Speaker 00:
OK.

[00:34:14] Speaker 00:
OK.

[00:34:14] Speaker 00:
And then there are actually three later filed cases, once against Verizon and Erickson, with different patents, one against Apple and one against Google, that are only recently filed within the last six or seven months.

[00:34:28] Speaker 00:
There are new patents that are issued well after

[00:34:31] Speaker 00:
Even all these cases were finally determined most of the times.

[00:34:36] Speaker 00:
And so they actually disclaimed or got rid of any apparent prosecution history disclaimers.

[00:34:42] Speaker 00:
So there's a lot of other cases down the road.

[00:34:45] Speaker 00:
But the impact, we've tried to craft the claims and continuing applications since the impact from this case

[00:34:54] Speaker 00:
We've learned from what the district court and this court will tell us and try to improve those later patents.

[00:34:59] Speaker 00:
If that helps the court.

[00:35:00] Speaker 05:
Thank you.

[00:35:02] Speaker 05:
Judge O'Malley and Judge Stoles, did you have any further questions about the pending cases?

[00:35:06] Speaker 05:
None for me.

[00:35:08] Speaker 05:
OK.

[00:35:08] Speaker 05:
Then please proceed with the remainder of your reply argument.

[00:35:11] Speaker 00:
Yes, Your Honor.

[00:35:12] Speaker 00:
It will take no more than a minute.

[00:35:14] Speaker 00:
Just to be clear, I'm going to answer the court's question.

[00:35:16] Speaker 00:
I'm citing to the foreshe.

[00:35:18] Speaker 05:
Your answer about foreshe.

[00:35:21] Speaker 00:
Yes, Your Honor, so 4C was what we considered to be the seminal case as it's the one that set forth the standard.

[00:35:26] Speaker 00:
We actually cited that on page 8 of our reply in the Golden Bridge Tech versus Nokia Inc.

[00:35:33] Speaker 00:
case, 527, Fed 1318.

[00:35:36] Speaker 00:
And that was in response to arguments brought up by Sprint and Verizon.

[00:35:40] Speaker 00:
Three other very quick questions.

[00:35:42] Speaker 05:
I'm sorry.

[00:35:42] Speaker 05:
Can you just help me with this?

[00:35:44] Speaker 05:
In this case, you say you cited it on page what?

[00:35:49] Speaker 05:
Because I'm not sure.

[00:35:51] Speaker 00:
Page eight of our reply, Your Honor.

[00:35:55] Speaker 05:
Yeah.

[00:35:56] Speaker 05:
I'm looking at the table of contents and the table of authorities.

[00:36:00] Speaker 05:
And I'm not seeing it cited.

[00:36:03] Speaker 05:
But you're saying it's cited on page eight?

[00:36:07] Speaker 00:
Yes, Your Honor.

[00:36:08] Speaker 00:
I think it's cited through the Golden Bridge technology case.

[00:36:11] Speaker 00:
It was talking about 4C in that case.

[00:36:14] Speaker 05:
So in a footnote, you have a site to CEG Golden Bridge Technology.

[00:36:21] Speaker 05:
Is that what you're telling me?

[00:36:23] Speaker 05:
And that case sites Forshee?

[00:36:26] Speaker 00:
Yeah, it's the one that discusses that principle.

[00:36:28] Speaker 00:
Yes, Your Honor.

[00:36:29] Speaker 05:
OK.

[00:36:30] Speaker 05:
Thank you.

[00:36:31] Speaker 05:
Anything further?

[00:36:33] Speaker 00:
Yes, Your Honor.

[00:36:33] Speaker 00:
I'll be very quick with these last three points.

[00:36:36] Speaker 00:
Just to be clear, I heard opposing counsel, police counsel say that we were dropping claim one.

[00:36:42] Speaker 00:
We were not dropping it, but I understand the court's likely to invalidate it, but we weren't dropping that argument in the appeal, just to be clear.

[00:36:52] Speaker 00:
And then real quick, the evidence of denying functions brought up by appellee's counsel was new argument, the way that they addressed it.

[00:37:01] Speaker 00:
We did make objections, and that was never brought up on this appeal that we failed to object.

[00:37:07] Speaker 00:
And lastly, if you go to page, what the court referred to as page,

[00:37:11] Speaker 00:
37 and 38, which is 38 and 39 of the corrected brief.

[00:37:20] Speaker 00:
And if you go to the footnotes, we cite new evidence.

[00:37:24] Speaker 00:
And so I'm unclear as to how they got that this is old evidence.

[00:37:28] Speaker 00:
We reference specifically the use of location determination all throughout the footnotes in those sites.

[00:37:35] Speaker 00:
And these are documents produced by Verizon, not our documents.

[00:37:40] Speaker 00:
And we go through a painstaking effort of disclosing every instance of how locations determine and how, through these various network-based determinations or wireless device determinations, and then how performance measures are taken.

[00:37:57] Speaker 00:
So I just want to say that these are new documents.

[00:37:59] Speaker 00:
These are documents produced by Verizon.

[00:38:03] Speaker 00:
and sprint later on on the next page.

[00:38:06] Speaker 00:
So we did, in fact, cite new documents, not old documents trying to make our case.

[00:38:10] Speaker 04:
Which of the documents are from 2017 or later?

[00:38:16] Speaker 00:
Your Honor, any of the, OK, Your Honor.

[00:38:18] Speaker 00:
So for instance, the very first one, VZW underscore track cell.

[00:38:23] Speaker 00:
This is in footnote 131.

[00:38:25] Speaker 00:
My apologies, Your Honor.

[00:38:27] Speaker 00:
1725 through 1797, that talks about the,

[00:38:32] Speaker 00:
The Verizon position engine used to determine wireless device location.

[00:38:39] Speaker 00:
And then we specified by pages what those particular pages are.

[00:38:42] Speaker 00:
1749 cell location must be enabled.

[00:38:45] Speaker 00:
1750 VZW system must be enabled.

[00:38:48] Speaker 00:
So we did, in fact, specify particularly what those various functions are and how they tie back to the accused instrumentalities by painstaking detail of going through every page and explaining what it shows.

[00:39:01] Speaker 00:
So there is a plethora of evidence tying it back.

[00:39:05] Speaker 00:
And every one of these documents, Your Honor, that's produced by Verizon, these are new documents.

[00:39:11] Speaker 00:
These aren't the old documents.

[00:39:12] Speaker 00:
The old documents were documents produced by Traxel that had a Traxel-based number on it.

[00:39:17] Speaker 05:
Well, Mr. Raimi, I think your friend's criticism, which I think might have some heft, and a point in which the district court made, is that you cite all these.

[00:39:30] Speaker 05:
You've got numerous footnotes and millions and tons of documents.

[00:39:34] Speaker 05:
And there's never a sufficient explanation as to the link between those documents and the mapping feature.

[00:39:40] Speaker 05:
And I think that's the point that the district court was making.

[00:39:43] Speaker 05:
And I think that's the point your friends from Verizon were making as well.

[00:39:47] Speaker 00:
Your Honor, so we cited to the particular page within those documents for support, and we explain what those particular pages show.

[00:39:56] Speaker 00:
And if the court determines that that wasn't sufficient, we'll stand on what we did.

[00:40:01] Speaker 00:
We weren't trying to hide the ball.

[00:40:04] Speaker 00:
As the court can appreciate countless hours, countless hours going through these documents and pulling out what we felt showed for the district court's benefits,

[00:40:17] Speaker 00:
how these accused instrumentalities did in fact practice the claim limitations.

[00:40:21] Speaker 00:
We set it forth in the footnotes.

[00:40:23] Speaker 00:
But I just wanted to specify, I have well exceeded my time and I greatly appreciate the courts indulging me and I'll pass on the rest of the case.

[00:40:34] Speaker 00:
Thank you, Your Honor.

[00:40:34] Speaker 00:
Unless you have questions.

[00:40:36] Speaker 05:
Any questions from the panel?

[00:40:38] Speaker 05:
Hearing none, thank you.

[00:40:40] Speaker 05:
Thank both parties.

[00:40:41] Speaker 05:
The case is submitted.