[00:00:00] Speaker 05:
the ITC, and Fitbit et al.

[00:00:05] Speaker 05:
2021-2064.

[00:00:09] Speaker 05:
Mr. Thompson, we're ready when you are.

[00:00:13] Speaker 05:
From Peloton to Fitbit.

[00:00:17] Speaker 04:
Yes.

[00:00:17] Speaker 04:
It's all about exercise today.

[00:00:22] Speaker 04:
Thank you.

[00:00:23] Speaker 04:
Good morning, Your Honors.

[00:00:25] Speaker 04:
May it please the court.

[00:00:27] Speaker 04:
The ALJ era.

[00:00:29] Speaker 04:
in determining the claim two of the 228 Bremer patent merely invoked a computer as a tool.

[00:00:36] Speaker 04:
They did that rather than recognizing that the claims were directed to an improvement in circuit technology as the specification makes clear.

[00:00:47] Speaker 04:
Claim 2, in fact, is directed to improving the operation of circuitry, and specifically to a measurement unit and processor by adding an interruption in the outputting and the monitoring that did not exist before in such circuits.

[00:01:07] Speaker 04:
The specification explains that even with a minimum sampling frequency of 16 times per second, that's what the specification says,

[00:01:17] Speaker 04:
interruptions should be added to the downstream outputting and monitoring circuitry that thereby save power while maintaining the sample frequency.

[00:01:29] Speaker 04:
Previous circuits monitored continuously at the sample frequency without added interruptions.

[00:01:38] Speaker 04:
And that would be continuously in time, as opposed to what the claim says,

[00:01:43] Speaker 04:
discontinuously in time.

[00:01:45] Speaker 04:
That's an important, I think, in thinking through this distinction to ask, is it continuous in time or discontinuous in time?

[00:01:54] Speaker 04:
Claim two.

[00:01:56] Speaker 04:
is specific to the circuit improvement and does not preempt any building blocks of innovation.

[00:02:03] Speaker 04:
We believe that the Tallis v. US case had similar claims.

[00:02:07] Speaker 04:
And I think if you look at the structure of the claims in that case, you'll see that it's actually sort of remarkable just structurally how the claims were.

[00:02:16] Speaker 04:
This court found those to be eligible under step one because they were directed to improve circuits.

[00:02:23] Speaker 04:
The Unilogged VLG Electronics case is another one that I would recommend the court to look at.

[00:02:29] Speaker 04:
Now relative to anticipation, I'd like to switch to anticipation under Section 102, the ALJ applied Claim 2 to a catheter and a master control unit that operated continuously and in phase with the generation of the sensor signals.

[00:02:49] Speaker 04:
claim to, as I mentioned before, is limited to circuitry that adds interruptions to the outputting and monitoring circuitry.

[00:02:58] Speaker 04:
The catheter and master control unit simply don't include the added interruptions in Cunningham.

[00:03:05] Speaker 04:
Cunningham generates sensor signals at a rate of 330 times per second.

[00:03:11] Speaker 04:
And I'll note the spec says approximately 330.

[00:03:14] Speaker 04:
The exact number is 330 times per second.

[00:03:18] Speaker 04:
And those sensor signals are continuously output and monitored.

[00:03:22] Speaker 04:
And this is important.

[00:03:23] Speaker 04:
This is in Cunningham.

[00:03:25] Speaker 04:
And I'll just read it, quote it.

[00:03:27] Speaker 04:
It says, in phase with the activation of said transducers.

[00:03:31] Speaker 04:
So what's that mean?

[00:03:32] Speaker 04:
That means that the sample and hold circuit is operating, as it says, in phase with the activation of the transducers, continuously.

[00:03:42] Speaker 04:
Actually, at the very same time, according to the specification.

[00:03:46] Speaker 04:
And I'll point you to appendix 18326 at column 12, lines 27 through 32 for that point.

[00:03:57] Speaker 04:
So column 12, lines 27 through 32.

[00:04:03] Speaker 04:
The ALJ also erred in applying the monitoring and turn limitations of Claim 2, which distinguished the tracking of the sensor signals

[00:04:12] Speaker 04:
concurrently and in parallel.

[00:04:14] Speaker 04:
In other words, claim two makes clear that in the in turn limitation, that if you process concurrently and in parallel, as opposed to in turn, then you are outside the scope of the claim.

[00:04:30] Speaker 00:
In Cunningham, you're making a, I would say, factually based argument, it sounds like.

[00:04:37] Speaker 00:
And we're looking at a substantial evidence standard to review here.

[00:04:41] Speaker 00:
Can you show us where the determination we're reviewing is not supported by substantial evidence?

[00:04:48] Speaker 04:
Yes.

[00:04:49] Speaker 04:
That would be, well, first off, let me make an overall observation, which is that there is not really any dispute as to what Cunningham teaches.

[00:04:59] Speaker 04:
First off, Cunningham is a patent, right?

[00:05:01] Speaker 04:
So we can read the patent for what it says.

[00:05:04] Speaker 04:
And this is anticipation.

[00:05:05] Speaker 04:
I think if you look at the record, there really is not sort of like the situation where one expert says this and another expert says that.

[00:05:13] Speaker 04:
The circuitry is described clearly in Cunningham.

[00:05:20] Speaker 04:
And what happens is the catheter over a single line sends a collective signal that then is received.

[00:05:30] Speaker 04:
And I guess I would point to,

[00:05:33] Speaker 04:
I can point you to a specific thing here.

[00:05:37] Speaker 04:
I would look at figure 15, which is 18315.

[00:05:47] Speaker 00:
On that figure, item 47, what is that referring to?

[00:05:56] Speaker 00:
the entire unit that we're looking at, or just a little box?

[00:05:59] Speaker 04:
Yeah, so I have the patent here.

[00:06:01] Speaker 04:
If it's OK, I know this might be too far to see.

[00:06:04] Speaker 04:
But this is the catheter here.

[00:06:07] Speaker 00:
Well, we have that, if you cite it to us.

[00:06:09] Speaker 00:
Oh, yeah, yeah, yeah.

[00:06:10] Speaker 00:
It's a JA 18315.

[00:06:13] Speaker 04:
Yeah, figure 15.

[00:06:15] Speaker 04:
15.

[00:06:17] Speaker 04:
Yeah.

[00:06:17] Speaker 01:
And so.

[00:06:18] Speaker 01:
Just for clarity, there's three different claim limitations that are discussed with respect to this anticipation.

[00:06:24] Speaker 01:
So which specific one are you addressing right now?

[00:06:27] Speaker 04:
I'm referring to monitoring in turn.

[00:06:30] Speaker 04:
that limitation, because it, again, we were asked to.

[00:06:36] Speaker 01:
But you're saying Cunningham doesn't disclose them.

[00:06:38] Speaker 04:
Yes, because these circuits here, when it does monitor, they're in parallel.

[00:06:43] Speaker 01:
Can you give us the reference number, since we do have the pattern?

[00:06:46] Speaker 04:
Oh, yes.

[00:06:46] Speaker 04:
Sorry, Your Honor.

[00:06:47] Speaker 04:
So the in parallel part of the circuitry

[00:06:50] Speaker 04:
starts with the sample and hold circuits that are 44, 144, and 244.

[00:06:58] Speaker 04:
And those are for the x, y, and z. That's the first time that an actual x signal is created, or a y signal is created, or a z signal is created in a way that they could possibly even be then processed in turn.

[00:07:15] Speaker 04:
They don't exist up until that time.

[00:07:19] Speaker 04:
And then 46, 146, and 246, then do further processing on those.

[00:07:30] Speaker 04:
And all of this, I think, importantly, as I mentioned before, the patent says that that is done in phase with the activation of the transducers.

[00:07:42] Speaker 04:
Those are all done concurrently.

[00:07:44] Speaker 04:
They're in phase with the activation of the transducers.

[00:07:48] Speaker 01:
So all of this is- What about the language in the patent that says the master control unit nine receives the three signals of the transducers in successive time intervals?

[00:07:58] Speaker 04:
At that point in time, the signals are not separate.

[00:08:06] Speaker 04:
They're a single voltage.

[00:08:08] Speaker 04:
And that is shown in actually the same page

[00:08:12] Speaker 04:
on figure 16.

[00:08:13] Speaker 01:
But what about when it says signals from three uniaxial transducers 2x, 2y, and 2z in distinct and successive time intervals?

[00:08:25] Speaker 01:
I think that's in column 6.

[00:08:27] Speaker 04:
In column 6, the reference, bear with me for one second so I can refer to it.

[00:08:39] Speaker 04:
It also says in the next sentence,

[00:08:41] Speaker 04:
that what's available on that wire has to be reconstructed into the three signals before it can be monitored in turn.

[00:08:55] Speaker 04:
And what I'm specifically referring to is column 6, line 56.

[00:09:04] Speaker 04:
starts the master control unit nine, reconstructs within itself the three analog signals from the three accelerometer transducers.

[00:09:12] Speaker 04:
And that's the only time that the x, y, and z then can be processed separately in order to be in turn as the claim requires.

[00:09:21] Speaker 04:
And indeed, they're not processed in turn.

[00:09:24] Speaker 04:
At that point, they're processed in parallel and concurrently in phase.

[00:09:32] Speaker 04:
So I would also then, I'd like to go back, if I may, to a few of the citations that I thought some of the evidence out of the patent that I think would be helpful for the court.

[00:09:48] Speaker 04:
And I'm just going to refer to the Bremer patent, which begins on Appendix 377.

[00:09:53] Speaker 04:
That's the 228 patent.

[00:09:55] Speaker 04:
So these citations that I'm talking about are all within it.

[00:09:59] Speaker 04:
So at column one.

[00:10:01] Speaker 04:
lines 33 through 34.

[00:10:04] Speaker 04:
The patent, and this goes to the 101 question, that it specifically says that it is directed to, and I'll quote, the state of our techniques in the field of integrated circuit technology.

[00:10:17] Speaker 04:
So is a computer used as a tool just to implement some previous existing process?

[00:10:22] Speaker 04:
Absolutely not.

[00:10:23] Speaker 04:
The patent itself says that what it's trying to do is improve circuit technology.

[00:10:29] Speaker 04:
then at column 2, 51 through 54.

[00:10:34] Speaker 04:
And I think that in this sort of area of the patent, 51 through 59, is where it really explains what the addition was.

[00:10:44] Speaker 04:
Because it says that in the normal monitoring, it says, and I'll quote, this is at line 51.

[00:10:54] Speaker 04:
54 probably, this requires a sample frequency of at least 16 hertz.

[00:11:00] Speaker 04:
So at least 16 hertz means a minimum of 16 hertz, but could be more.

[00:11:06] Speaker 04:
And 16 hertz is 16 times per second.

[00:11:09] Speaker 04:
And then it says in the next sentence, however, what we've discovered is instead of continuously monitoring and outputting that, having circuits that do that, namely a measurement unit,

[00:11:21] Speaker 04:
and a processor, that what we have is we recognize that, however, as a human person seldom changes this kind of activity, et cetera, and then here's the key, it is not necessary to do the monitoring continuously.

[00:11:38] Speaker 04:
So very next sentence.

[00:11:40] Speaker 04:
So you sample it 16 times per hertz, but then they recognize, they realize, you don't have to have your circuits monitor at that frequency.

[00:11:49] Speaker 04:
And so they added interruptions.

[00:11:51] Speaker 04:
And that was the change to the measurement unit and the processor.

[00:11:58] Speaker 01:
Do I remember correctly that you have to be successful on both anticipation and 101 in order to have your claim survive?

[00:12:08] Speaker 04:
That's correct.

[00:12:08] Speaker 04:
There are two issues that the court would need to address.

[00:12:12] Speaker 04:
This I'm referring at this point in time to 101.

[00:12:15] Speaker 04:
But they do fit together.

[00:12:18] Speaker 04:
Because if you look at the invention that I was just describing about adding interruptions, that's also the failure of Cunningham.

[00:12:27] Speaker 04:
They're one and the same.

[00:12:29] Speaker 04:
Cunningham does not have any added interruptions.

[00:12:32] Speaker 04:
And that's made very clear by the specification itself, where it says that everything is done

[00:12:41] Speaker 04:
It's that important sentence I mentioned.

[00:12:44] Speaker 04:
Everything is done in a phase with the activation of the transducers.

[00:12:50] Speaker 01:
Just to be clear, though, your claims are, at least claim one, looks broader than that.

[00:12:56] Speaker 01:
I mean, it doesn't talk about adding interruptions.

[00:12:59] Speaker 01:
It does talk about discontinuously measuring, outputting discontinuously, monitoring and processing discontinuously.

[00:13:09] Speaker 01:
But it doesn't say adding interruptions, right?

[00:13:13] Speaker 04:
That's not what the claim says, but that's the meaning of it and the interpretation by the court or by the ALJ where they interpreted

[00:13:26] Speaker 04:
monitoring, so you have to read them together.

[00:13:29] Speaker 04:
So it's discontinuously in time, but that goes to monitoring or outputting.

[00:13:33] Speaker 04:
So they're joined.

[00:13:36] Speaker 05:
You're well into your rebuttal, Tom.

[00:13:38] Speaker 05:
You can continue or you can save it as you wish.

[00:13:41] Speaker 04:
I will try to answer this in two very brief seconds.

[00:13:46] Speaker 04:
So the discontinuously in time was construed at appendix 342 to mean an eruption, pauses, or breaks.

[00:13:55] Speaker 04:
And so that's why.

[00:13:56] Speaker 04:
Thank you.

[00:14:00] Speaker 05:
Mr. Rosenstein?

[00:14:03] Speaker 03:
Your Honor, may it please the Court?

[00:14:04] Speaker 03:
I'll try to keep this pretty quick and just respond to the points that Phillips raised, unless you have questions.

[00:14:12] Speaker 03:
Counsel for Phillips came out and said that this patent is directed to an improvement in circuit technology as the specification makes clear.

[00:14:20] Speaker 03:
That's simply not so.

[00:14:22] Speaker 03:
The commission's brief in this case went through the specification line by line and explained how nearly all of it characterizes the prior art.

[00:14:30] Speaker 03:
And the invention here is merely turning things off in an unspecified way at unspecified times.

[00:14:37] Speaker 03:
There is no circuit technology that's disclosed in this patent.

[00:14:41] Speaker 03:
We have generic processors.

[00:14:43] Speaker 03:
We have, I would say, accelerometers, but the patent isn't even limited to accelerometers.

[00:14:47] Speaker 03:
Generic motion sensors of any sort.

[00:14:50] Speaker 03:
combined together in a generic activity monitor.

[00:14:54] Speaker 03:
And that's all the structure that there is.

[00:14:57] Speaker 03:
Council relied on the Thales case.

[00:15:00] Speaker 03:
I don't know how to pronounce that.

[00:15:03] Speaker 03:
Thales is very different.

[00:15:04] Speaker 03:
Thales involved unconventional sensor placement that resulted in having to use

[00:15:10] Speaker 03:
Calculations from a different frame of reference that's simply in apposite here.

[00:15:17] Speaker 03:
Unilock involved adding new fields to Bluetooth in order to decrease latency in a very specific way.

[00:15:26] Speaker 03:
That also looks nothing like the present case in which all that is taught is turning off the sensors or turning off the sensors and the processor in these patent claims.

[00:15:39] Speaker 03:
Other cases that I think are helpful are MCRO, which explain that by incorporating the specific features of the rules for animation, it would avoid abstraction.

[00:15:53] Speaker 03:
But there are no rules in this patent.

[00:15:55] Speaker 03:
There are no rules in this claim.

[00:15:56] Speaker 03:
There are no rules whatsoever.

[00:15:59] Speaker 03:
It's actually kind of surprising that a patent like this comes so far away from even disclosing a best mode of operation, much less claiming it.

[00:16:07] Speaker 03:
Also, in SRI, another case that I think may be helpful for the court, the claims prevented the normal expected operation of a computer network.

[00:16:17] Speaker 03:
So kind of like Thales, when you have something unexpected happening, it might not be abstract.

[00:16:24] Speaker 03:
But here, turning off the sensors or turning off the sensors and the processor results in completely predictable results using completely generic hardware.

[00:16:37] Speaker 03:
I'll turn then to Cunningham, unless the court has any questions about 101.

[00:16:42] Speaker 03:
On Cunningham, counsel turned to column 12, which is getting into this

[00:16:49] Speaker 03:
unit 47 versus processing unit 9 issue, which we've discussed in our brief.

[00:16:56] Speaker 03:
Before the ALJ, Phillips relied entirely on that little box of 47 in the figure that he showed you, because you have three wires coming in, and never looked at 9.

[00:17:11] Speaker 03:
So Phillips is expert, for example, at page

[00:17:15] Speaker 03:
In 2000 and 2004, the appendix said that in reviewing and validity, it only looked at 47, not 9.

[00:17:23] Speaker 03:
The accused infringers in this case explained with substantial evidence why it was that 9 was the claim processor and not 47.

[00:17:33] Speaker 03:
And we have testimony from the accused infringer's expert, Dr. Paradiso, at pages 1800 to 02 of the appendix, 1850 to 53, 6033 to 38.

[00:17:47] Speaker 03:
We also have Phillips's own expert admitting that it was nine that does the processing at page 1954 of the appendix.

[00:17:56] Speaker 03:
Then, in its petition for commission review,

[00:17:58] Speaker 03:
Phillips never raised this issue about whether the ALJ was correct or incorrect in determining that the processor of Cunningham was 47 versus 9.

[00:18:09] Speaker 03:
So the commission never looked at it.

[00:18:10] Speaker 03:
I could tell you that there's substantial evidence in the record that would support the ALJ, but the commission never looked at that.

[00:18:18] Speaker 03:
Judge Stoll is correct in observing that the Cunningham patent repeatedly teaches sending the X, Y, and Z signals one at a time up the wire from the implantable device in Cunningham to the processor.

[00:18:36] Speaker 03:
And Cunningham is right on point here.

[00:18:41] Speaker 03:
For this Cunningham issue, anticipation is a question of fact.

[00:18:46] Speaker 03:
And counsel's effort to say, well, it's a patent, so we don't need to rely on an expert, or we don't even need to rely on anything in the administrative record.

[00:18:57] Speaker 03:
We'll just look at the patent.

[00:18:59] Speaker 03:
That finds no support in this court's case law.

[00:19:02] Speaker 03:
Substantial evidence supports the commission's finding of anticipation.

[00:19:06] Speaker 01:
Do you want to remember correctly that there's expert testimony on both sides supporting this?

[00:19:11] Speaker 01:
that the processor 9 measures each of those signals successively?

[00:19:19] Speaker 03:
It does.

[00:19:20] Speaker 03:
I don't want to suggest that the experts had a single view.

[00:19:25] Speaker 03:
Phillips's experts said, well, the processor should be 47.

[00:19:29] Speaker 03:
And looking at the figure, you can see why that is.

[00:19:31] Speaker 03:
But at the same time,

[00:19:33] Speaker 03:
Even Phillips's expert at page 1954 recognized that it was Control Unit 9, recognized that Control Unit 9 did processing.

[00:19:42] Speaker 03:
Dr. Paradiso's testimony on the pages that I referred you to walked through the patent to explain why it is the person of ordinary skill would understand that it's 9 rather than 47, including looking at the

[00:19:55] Speaker 03:
the representative numbering and the patent claims and looking specifically at the patent's explanation throughout about Control Unit 9 doing the processing.

[00:20:05] Speaker 03:
Again, though, this issue is forfeited on appeal because it was not presented for the commission's review below.

[00:20:12] Speaker 03:
The commission has rules that say that if you do not raise an issue in your petition for review, it's abandoned.

[00:20:19] Speaker 03:
And this court has cases like Broadcom and Finnegan.

[00:20:22] Speaker 03:
There are a lot of them where this court recognizes the principle of administrative exhaustion and doesn't allow parties to raise arguments that were not presented to the agency below.

[00:20:33] Speaker 03:
I see the council has not raised anything with respect to the 698 patent.

[00:20:39] Speaker 03:
The commission's finding of no violation as to that patent should be affirmed.

[00:20:44] Speaker 03:
And unless the court has any further questions, I'll yield my time to my colleague.

[00:20:50] Speaker 05:
Thank you.

[00:20:51] Speaker 05:
Mr. Bagatell.

[00:20:54] Speaker 02:
May I please report Dan Bagatell.

[00:20:56] Speaker 02:
Good morning.

[00:20:57] Speaker 02:
I am arguing on behalf of all the respondents, and I represent Fitbit in particular,

[00:21:02] Speaker 02:
I'll be brief because I think Commission's Council covered the issues very well.

[00:21:07] Speaker 02:
As far as the 101 issue, the real problem is that it's just a conceptual patent.

[00:21:11] Speaker 02:
It never describes anything at a low-level circuit diagram of specifically how you would

[00:21:17] Speaker 02:
turn on and off the sensors or the processor.

[00:21:21] Speaker 02:
It's simply the concept of doing it.

[00:21:23] Speaker 02:
And this court has repeatedly held that you can't just describe a concept without a specific way of implementing it.

[00:21:29] Speaker 02:
It's not in the claim.

[00:21:30] Speaker 02:
It's not even in the specification.

[00:21:32] Speaker 02:
Turning to Cunningham.

[00:21:33] Speaker 05:
But it doesn't describe a concept, does it?

[00:21:37] Speaker 05:
It describes a monitor, a measurement unit, and a processor.

[00:21:43] Speaker 05:
Aren't these articles of manufacture?

[00:21:46] Speaker 02:
They are articles of manufacture.

[00:21:49] Speaker 02:
But basically, if you look at the patent 228, if you look at figure one, it's basically a black box.

[00:21:59] Speaker 02:
The activity monitor is a measurement unit, a processor, and a memory unit.

[00:22:05] Speaker 02:
They don't even claim the memory unit.

[00:22:07] Speaker 02:
And they just talk about basically turning the measurement unit on and off at some time, for some reason, with no particular specification on how to do it.

[00:22:17] Speaker 02:
That's not a low-level circuitry analysis.

[00:22:20] Speaker 02:
That's simply the concept of discontinuous operation.

[00:22:24] Speaker 01:
Do you think that in making that determination, then, you have to look and see in the claim what's conventional and what's not?

[00:22:31] Speaker 01:
I'm just taking the time now to ask you that.

[00:22:34] Speaker 01:
I mean, it says an activity monitor.

[00:22:36] Speaker 01:
That's a thing.

[00:22:37] Speaker 01:
So does that mean that we're supposed to look at the improvement of the thing compared to other things, and that's how we determine what the abstract idea is?

[00:22:43] Speaker 01:
We've got to consider that prior.

[00:22:46] Speaker 02:
I think you can look at both the claims and the specification to determine what this patent is directed to.

[00:22:53] Speaker 02:
The claims basically discuss acting discontinuously.

[00:22:58] Speaker 02:
And the specification makes clear that the entire activity monitor is prior art.

[00:23:03] Speaker 02:
The only difference is that you're going to operate discontinuously.

[00:23:07] Speaker 02:
They actually have an internal limitation that was in a dependent claim.

[00:23:10] Speaker 02:
It's nowhere described in the written description.

[00:23:12] Speaker 02:
It's never been purportedly novel.

[00:23:13] Speaker 02:
It couldn't be novel because the accused

[00:23:15] Speaker 02:
In turn, protocol is something that existed in the prior art.

[00:23:20] Speaker 02:
So they've never attempted to argue that that was some sort of inventive concept at step two.

[00:23:25] Speaker 02:
So I think you can look at both the claims and the specification, and you can see clearly that this is simply directed at the concept of discontinuous operation in an activity monitor.

[00:23:36] Speaker 02:
This was back in 2003 or 2004.

[00:23:37] Speaker 02:
This was before Alice, and I guess people thought that they could.

[00:23:41] Speaker 02:
Claim those sorts of things.

[00:23:42] Speaker 02:
We know today that you can't simply say, take this general concept and apply it in this particular field of art and call it patent eligible.

[00:23:51] Speaker 05:
In other words, an article of manufacture, if it's doing the same thing that other articles of manufacture have done, is abstract.

[00:24:02] Speaker 02:
Not necessarily.

[00:24:03] Speaker 02:
It depends on what the idea is.

[00:24:05] Speaker 02:
Because if you have a claim that were simply directed to an object, and that object was in the priority, it would simply be anticipated.

[00:24:14] Speaker 02:
The problem with ineligibility is that it's directed, in this case, to an eligible concept, which is the idea of discontinuous operation.

[00:24:22] Speaker 02:
It's an idea of discontinuous operation in a particular technological context, namely activity honors.

[00:24:28] Speaker 02:
But the Supreme Court has said time and again, and so has this court, that you can't simply take an abstract idea and put it into a particular type of device and call that an invention for purposes of Section 101.

[00:24:40] Speaker 02:
If Your Honors have no more questions on 101, I'll turn very briefly to Cunningham and 102.

[00:24:47] Speaker 02:
There were two issues, basically, discontinuous operation and monitoring in turn.

[00:24:56] Speaker 02:
It's very clear, as far as discontinuity, that in Cunningham, Cunningham basically quickly reads x, reads y, reads z, and then stays quiet for 29th, 30th of the duty cycle.

[00:25:10] Speaker 02:
Boom, boom, boom, off.

[00:25:15] Speaker 02:
And then it repeats.

[00:25:16] Speaker 02:
Boom, boom, boom, off.

[00:25:18] Speaker 02:
And so as a result of that, you're saving 29 30ths of the power.

[00:25:22] Speaker 02:
The patent repeatedly describes reading three signals in turn, x, y, and z. And that is at the direction of the processor nine, master control unit nine.

[00:25:34] Speaker 02:
using number 10, the timing circuit, tells you to read sequentially, one, two, three, in order.

[00:25:44] Speaker 02:
Mr. Thompson discussed the reconstruction of the signals.

[00:25:47] Speaker 02:
That is really a red herring.

[00:25:49] Speaker 02:
There are two types of reconstruction that are discussed in the patent.

[00:25:53] Speaker 02:
One is that you want to limit it in Cunningham to a particular bandwidth.

[00:25:58] Speaker 02:
You want to throw out the highs and lows.

[00:26:00] Speaker 02:
And there's some amount of reconstruction that you need to do to get it down to that.

[00:26:04] Speaker 02:
The other type of reconstruction is basically analog to digital, back to analog again.

[00:26:09] Speaker 02:
And their own infringement theory in this case depended on the idea that the analog and the digital are just two flavors of the same signal.

[00:26:16] Speaker 02:
And so all you're doing in reconstruction is just taking them back out again.

[00:26:20] Speaker 02:
You put them through an interface, and you've got to put all the x's together and the y's together and the z's together.

[00:26:25] Speaker 02:
But they're known to be x's, y's, and z's.

[00:26:28] Speaker 02:
They're just analog and digital versions of the same.

[00:26:32] Speaker 02:
I don't need to belabor the point, but the basic concept is

[00:26:38] Speaker 02:
You sequentially activate the sensors.

[00:26:40] Speaker 02:
You receive the information, x, y, and z. They are received and turned.

[00:26:43] Speaker 02:
And they are tracked and turned.

[00:26:45] Speaker 02:
How do we know that they're tracked and turned?

[00:26:47] Speaker 02:
Because they're subsequently processed.

[00:26:49] Speaker 02:
They are received.

[00:26:49] Speaker 02:
They're not thrown away.

[00:26:50] Speaker 02:
They don't have to be put in a memory or anything like that in the claim.

[00:26:53] Speaker 02:
They are simply kept track of.

[00:26:55] Speaker 02:
And then you can do all sorts of processing, whether that's reconstruction or calculating peak-to-peak values.

[00:27:00] Speaker 02:
We know that they've been kept track of because they know which are the x's and which are the y's and which are the z's.

[00:27:06] Speaker 02:
And that is sufficient to satisfy the construction of that limitation.

[00:27:11] Speaker 02:
Thank you, George.

[00:27:13] Speaker 05:
Thank you, Mr. Begapel.

[00:27:14] Speaker 05:
Mr. Thompson has minutes and a half left.

[00:27:21] Speaker 04:
Thank you, members.

[00:27:24] Speaker 04:
I'll start with 102.

[00:27:25] Speaker 04:
There was quite a bit of discussion about intern from them, but not a whole lot about the discontinuous in time, the interruptions.

[00:27:36] Speaker 04:
And that is because sampling is about generating a signal, not monitoring and not outputting a signal.

[00:27:46] Speaker 04:
And the claim talks about a measurement unit that's been changed now

[00:27:52] Speaker 04:
to output discontinuously in time.

[00:27:55] Speaker 04:
And that has been interpreted to mean with interruptions or breaks or pauses.

[00:28:00] Speaker 04:
Those are new things that never existed before in that component.

[00:28:05] Speaker 04:
Same thing with the processor.

[00:28:07] Speaker 04:
The processor is to monitor discontinuous in time.

[00:28:10] Speaker 04:
And the new thing is,

[00:28:12] Speaker 04:
as was interpreted, the interruptions, the breaks or pauses.

[00:28:17] Speaker 04:
That makes for a big difference.

[00:28:20] Speaker 04:
That makes a device much more usable because it lasts longer.

[00:28:24] Speaker 04:
I think we all know that if our phones or our devices run out of battery in five minutes or five seconds, they're just not useful.

[00:28:32] Speaker 04:
This is a major technical problem of electronic devices.

[00:28:36] Speaker 04:
And this thing is about changing the measure.

[00:28:39] Speaker 00:
So what are you now?

[00:28:40] Speaker 00:
Are you in on 102 or 101?

[00:28:42] Speaker 04:
Well, they are very joined here.

[00:28:45] Speaker 04:
They are definitely very joined here, because it's the same advancement in the circuitry that is distinguishing the Cunningham case.

[00:28:53] Speaker 00:
What's the claimed advancement here?

[00:28:55] Speaker 00:
Is it monitoring sensor signals discontinuously in time?

[00:29:02] Speaker 00:
Is that what the claimed advance is?

[00:29:04] Speaker 04:
The discussed advancement and specification focuses on that.

[00:29:09] Speaker 04:
Of course, the claims also include another limitation.

[00:29:11] Speaker 00:
What's the claim that advance would do say?

[00:29:13] Speaker 04:
Oh, the claimed, the discussed advancement is to change the measurement unit and the processor, to change them.

[00:29:22] Speaker 04:
Instead of processing and being made to operate continuously at the sample rate, there's now a change.

[00:29:31] Speaker 04:
Now they will not do that.

[00:29:33] Speaker 04:
They're no longer that device that was there before.

[00:29:36] Speaker 04:
Now they're going to put an interruption.

[00:29:39] Speaker 04:
They're going to operate discontinuously in time.

[00:29:42] Speaker 00:
How does that help you with respect to Cunningham?

[00:29:46] Speaker 04:
Because in Cunningham, as Cunningham says in column 12, 27 through 32, and I don't think this is disputed, they certainly didn't say anything, its circuitry operates in phase with the activation of the transducers.

[00:30:01] Speaker 04:
That means that the outputting and the monitoring is done at the same time.

[00:30:06] Speaker 04:
That's not with interruptions.

[00:30:09] Speaker 04:
And that's why I was saying what they confuse is they look at the generation of the signal and say that that is the monitoring.

[00:30:18] Speaker 04:
That's not.

[00:30:19] Speaker 04:
That is the generation of the signal.

[00:30:21] Speaker 04:
Going back to the specification, it says that the minimum sample rate is 16 hertz.

[00:30:27] Speaker 04:
And what our advancement is is that we realize that you don't have to monitor continuously at that rate.

[00:30:34] Speaker 04:
You can add interruptions.

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

[00:30:37] Speaker 05:
As you can see, your time has expired.

[00:30:40] Speaker 05:
The case is submitted.