[00:00:00] Speaker 02:
The next case for argument is 21-1039, Sitko versus Emerson Electric.

[00:00:07] Speaker 02:
Mr. Stach?

[00:00:09] Speaker 02:
Yes.

[00:00:09] Speaker 02:
Mr. Stach, please proceed.

[00:00:12] Speaker 04:
Thank you, Your Honor, and may it please the court.

[00:00:14] Speaker 04:
I'd like to start today by talking about the errors regarding claims 11 through 15 in the board's decision.

[00:00:21] Speaker 04:
The board upheld those claims in the Mason 545 IPR, but found them unpatentable in the Johnson 547 IPR.

[00:00:27] Speaker 04:
And the Mason findings are not on appeal.

[00:00:30] Speaker 04:
So if the Johnson grounds do not support unpatentability, then the claims should be confirmed.

[00:00:36] Speaker 04:
Now, claim 11 refers to providing a controller to determine if at least one received message is a duplicate message and determining a location from which the duplicate message originated.

[00:00:48] Speaker 04:
And the board combined two references that it expressly found did not disclose this feature.

[00:00:54] Speaker 04:
The first is Johnson, which the board directly found to discard duplicates and did not separately determine the location from which duplicates were generated.

[00:01:03] Speaker 04:
And the second is Ehlers, which the board also correctly found not to disclose duplicates at all, let alone tying determining a location to the duplicate detection.

[00:01:16] Speaker 04:
These findings were in relation to the other three grounds that Emerson had raised regarding the unpatentability of claim 11.

[00:01:23] Speaker 04:
And so what we have here is actually a gap between these references.

[00:01:27] Speaker 04:
Neither discloses or links determining a location with duplicate detection.

[00:01:32] Speaker 04:
And this is not merely a gap in a motivation to combine.

[00:01:35] Speaker 04:
This is actually a missing claim feature.

[00:01:38] Speaker 04:
Essentially, there's an inventive step that the board had to take in combining these two references to get to the claim feature that's in claim 11.

[00:01:47] Speaker 03:
Well, AILRS discloses the determination of location with a location trigger, right?

[00:01:55] Speaker 04:
It does disclose a location in, for example, someone's house if a light bulb was in a hallway versus the kitchen, something like that.

[00:02:02] Speaker 03:
It has location as a feature of the invention.

[00:02:06] Speaker 04:
Yes, Your Honor.

[00:02:06] Speaker 04:
It doesn't tie that to any duplicate detection, but it does provide identifying a location within our home.

[00:02:12] Speaker 03:
OK.

[00:02:15] Speaker 03:
You're focusing on claims 11 at SEC, right, at this time?

[00:02:21] Speaker 04:
Yes, Your Honor.

[00:02:21] Speaker 04:
For right now, I do plan to talk about the preamble as well later, which applies to other claims, but for claim 11.

[00:02:27] Speaker 03:
Let me clarify something that comes up in the red brief, and I'm sure you've seen it.

[00:02:31] Speaker 03:
But the red brief asserts that, I think, pages 5 and 54, that if we reject your position on the preambles,

[00:02:41] Speaker 03:
then that disposes of everything except claims 11 and sec.

[00:02:45] Speaker 03:
Is that right?

[00:02:47] Speaker 04:
No, that is not right, Your Honor.

[00:02:48] Speaker 04:
Why not?

[00:02:49] Speaker 04:
The reason is because we do need to win reversal of the claim construction on the preamble to then have the format and message argument become relevant.

[00:03:00] Speaker 03:
So at least the format issue goes away, is that correct, if we disagree with you on preamble?

[00:03:06] Speaker 04:
So you are correct, yes, because there is a scenario where if the court reverses on the claim construction but then remands to the board, where the board then needs to determine the effect that the preamble has on Mason and Johnson.

[00:03:22] Speaker 04:
And if they find, for example, that we've overcome the Johnson grounds based on the preamble, but they don't find that we've overcome the Mason grounds based on the preamble, then the formatted message could save those claims related in the Mason IPR.

[00:03:37] Speaker 04:
So it's a very specific, I recognize a very specific factual scenario, but we wanted to make sure that we addressed the formatted message just to be sure that we covered that.

[00:03:49] Speaker 04:
So back on claim, on the duplicate detection, we have this missing claim feature from the references.

[00:03:55] Speaker 04:
And the question is, can that gap be filled in some way?

[00:03:58] Speaker 04:
And we mentioned Arendi.

[00:04:00] Speaker 04:
We mentioned that you wouldn't really be able to fill the gap here with common sense or expert testimony.

[00:04:06] Speaker 04:
The board actually addressed this in their decision as well, because they correctly found that location determining was not unusually simple or particularly straightforward.

[00:04:15] Speaker 04:
And then at Appendix 112, they also said that Petitioner has not shown that associating a location with duplicates is a well-understood function, such as simply sending and receiving messages.

[00:04:26] Speaker 04:
Now, this was in the context of Johnson alone, but these findings are irreconcilable with the finding of unpatentability when they combine Johnson with Ehlers.

[00:04:37] Speaker 04:
And so because these are irreconcilable findings, and in particular because the original findings are supported by the record, supported by Johnson, Johnson's a very complex reference, 85 pages long, without the lengthy certificate of correction, it's not something that could be simply added in through common sense or just expert testimony saying, oh, they would have done this.

[00:05:00] Speaker 04:
And so that's a primary problem with the Johnson-Ellers combination, but there's a second problem with it as well.

[00:05:09] Speaker 04:
The second problem does relate to the board's motivation to combine.

[00:05:12] Speaker 04:
It lacks substantial evidence because Johnson's meters

[00:05:16] Speaker 04:
are fixed meters.

[00:05:18] Speaker 04:
We're talking about gas meters, electric meters.

[00:05:21] Speaker 04:
The power company needs to know where to send the bill.

[00:05:24] Speaker 04:
They know where their meters are located.

[00:05:25] Speaker 04:
They know how far they're spaced apart.

[00:05:28] Speaker 04:
And so we had argued there's no reason to add into Johnson a location determining feature because Johnson already knows

[00:05:36] Speaker 04:
where its meters are.

[00:05:38] Speaker 04:
And Johnson is also very concerned about, as Emerson admits in their motivation, the motivation is we want to minimize bandwidth usage in Johnson.

[00:05:48] Speaker 04:
And that helps avoid some problems.

[00:05:50] Speaker 04:
And here what they're suggesting is to then increase the processing load within Johnson to determine a location from which duplicates are generated, even though we already know where the meters are located in Johnson.

[00:06:07] Speaker 03:
of this a little unclear from the briefing, but help me out.

[00:06:12] Speaker 03:
Isn't it even the case that even with fixed locations that it is useful to know which particular locations are generating the problems?

[00:06:25] Speaker 03:
Which are created, the duplicates?

[00:06:30] Speaker 04:
Yes, I think there is testimony from their expert about that.

[00:06:34] Speaker 04:
And I think that there can be value in knowing when a meter is fixed.

[00:06:40] Speaker 04:
Yeah, even if it's fixed, I think that's correct.

[00:06:42] Speaker 04:
But then the question becomes, do you then add in this extra processing load into Johnson with this duplicate detection and location tracking angle when we already have another way to figure out the answer to that question, where are these meters located?

[00:06:58] Speaker 04:
It's already well known.

[00:07:00] Speaker 04:
And when the board looked at this, they acknowledged that we made it.

[00:07:02] Speaker 03:
So these meters, are you talking about the meters that are malfunctioning?

[00:07:07] Speaker 04:
Really, all of the meters are in no location.

[00:07:09] Speaker 03:
That's what you need to know, right?

[00:07:09] Speaker 03:
Which is malfunctioning.

[00:07:11] Speaker 03:
Yes, and you can determine.

[00:07:12] Speaker 03:
Isn't that important to determine?

[00:07:14] Speaker 03:
And can't that be determined more efficiently, or at least as efficiently, with a location detection mode like Eller's?

[00:07:21] Speaker 04:
I don't think it would be as efficiently because you're adding a significant additional layer of bandwidth usage into Johnson if you were to do that.

[00:07:31] Speaker 04:
And that's contrary to the motivation that Emerson has talked about, which is to minimize bandwidth.

[00:07:36] Speaker 04:
They don't want additional loads on the signal paths within Johnson.

[00:07:40] Speaker 04:
And what they're saying is,

[00:07:42] Speaker 04:
If you can figure out what is faulty, which meters are causing more duplicate messages, maybe you can solve that problem and then reduce the bandwidth by getting rid of some of those duplicates.

[00:07:54] Speaker 04:
But the problem is their solution is to add in a lot of extra processing into Johnson and add in location information that would in fact increase the bandwidth demands and maybe lead to further issues, additional collisions, things like that.

[00:08:10] Speaker 04:
And there's not a reason to do that.

[00:08:13] Speaker 04:
As you see, Johnson has multiple mitigation strategies for how it balances its system when it discloses how it is dealing with the duplicate issue.

[00:08:24] Speaker 04:
And so adding this on top of it, when you already know, OK, the meter, that's meter number 30, is located at address XYZ.

[00:08:35] Speaker 04:
Why would we add that in and increase the bandwidth demands within Johnson when we know

[00:08:40] Speaker 04:
that the entire motivation from Emerson is that we want to minimize that bandwidth.

[00:08:45] Speaker 04:
We can figure it out a different way that does not burden Johnson's system with the Ehlers information.

[00:08:54] Speaker 04:
And if we look at what the board said on this, at appendix 148, they really don't address any of these questions that you're raising, Judge Bryson, and that we had raised.

[00:09:05] Speaker 04:
They acknowledged that we argued that there was no reason to add this into Johnson.

[00:09:10] Speaker 04:
But then the entire analysis consists of them looking at the 708 patent, saying that the claims are not limited to mobile devices, that it can include stationary devices, and then looking at the 268 patent, which is in the priority chain of the 708 patent.

[00:09:29] Speaker 04:
And so they really just looked at, what did the inventors teach here?

[00:09:33] Speaker 04:
What's the scope of the claim?

[00:09:34] Speaker 04:
They didn't go back and say, what actually would have been obvious to one of ordinary skill in the art in light of Johnson, in light of elders?

[00:09:40] Speaker 04:
Their entire analysis, if you look at it at appendix 148, focuses inwardly on the 708 patent, inwardly on the inventor's statements about this.

[00:09:51] Speaker 04:
And that's improper, I think, as a matter of law to do that.

[00:09:55] Speaker 04:
That's hindsight.

[00:09:57] Speaker 04:
But it also doesn't address all of these other reasons why one would not have been motivated to do this.

[00:10:06] Speaker 04:
So I'd like to turn to the preamble

[00:10:09] Speaker 04:
argument here.

[00:10:12] Speaker 04:
So there were two primary errors in the board's analysis of the preamble.

[00:10:19] Speaker 04:
The first was that they did not require communication between two like devices.

[00:10:24] Speaker 04:
They said that you could have one device as claimed and then some other kind of device.

[00:10:31] Speaker 04:
And that other kind of device has more limited capabilities.

[00:10:36] Speaker 04:
Effectively could be a dead end in the system, so you don't end up with all of these pathways that can carry both command and sense state of the way that we've argued.

[00:10:44] Speaker 04:
They make this error clear when they talk about the term another in the body of claim one.

[00:10:51] Speaker 04:
They say that another wireless communication device could, their analysis really just says it may mean a different type of device.

[00:11:00] Speaker 04:
They didn't say it, in fact, is a different kind of device.

[00:11:02] Speaker 04:
They just said it may mean a different kind of device.

[00:11:04] Speaker 04:
And then they decided a case that suggests that another may be an indefinite article in their view.

[00:11:13] Speaker 04:
So their analysis is actually quite limited.

[00:11:18] Speaker 04:
It's one paragraph, appendix page 21 in the 545.

[00:11:22] Speaker 04:
And then it's the same paragraph and appendix 86 to 87 in the 547.

[00:11:29] Speaker 04:
But they essentially just say that another may be an indefinite article in some context.

[00:11:34] Speaker 04:
And that there are some cases, or one case anyway, that says that it might be.

[00:11:37] Speaker 01:
Counsel, what do you understand is the reason why patent applicants cite prior op to the Patent Office?

[00:11:47] Speaker 04:
Well, I think they have a duty to the office to do that, for one.

[00:11:53] Speaker 01:
A duty to cite what kind of references?

[00:11:59] Speaker 01:
Material.

[00:12:00] Speaker 01:
Those that are material.

[00:12:01] Speaker 04:
Yes, Your Honor.

[00:12:02] Speaker 01:
His patent cites

[00:12:05] Speaker 01:
40 columns of references.

[00:12:07] Speaker 04:
Yes, Your Honor.

[00:12:08] Speaker 01:
If they're all material, I mean, what is there to this invention?

[00:12:14] Speaker 01:
Or are they trying to bury relevant references by citing hundreds, if not thousands of references?

[00:12:20] Speaker 01:
Is that a mystery?

[00:12:23] Speaker 04:
I don't know if it's a misuse of the system.

[00:12:26] Speaker 04:
I think that the system has shifted to where people tend to be cautious and try to make sure that there's not a claim later.

[00:12:33] Speaker 04:
And I recognize that maybe some may view the line as different, and maybe some may view what may be appropriate, because references were raised in litigation.

[00:12:47] Speaker 04:
When a party tells you in litigation, these are all references we might rely on.

[00:12:51] Speaker 04:
then you go and generally you provide those to the patent office.

[00:12:56] Speaker 04:
And you don't want to be left open later on to a claim that, oh, you were on notice.

[00:13:02] Speaker 04:
We told you this, right?

[00:13:03] Speaker 04:
And so I think a lot of the times when we see as a practical matter, a lot of references, it's because the system is set up in such a way where once you're told,

[00:13:13] Speaker 04:
by another party that something might be relevant, you're really risking it to not put it in front of the office.

[00:13:19] Speaker 04:
And I don't know the details of every reference that was cited here.

[00:13:24] Speaker 04:
But I understand your point, but that's the best I have on that.

[00:13:33] Speaker 04:
I am into my rebuttal time, so I will take a seat unless there are other questions at the moment.

[00:13:40] Speaker 02:
Is it help how Howard Dreimer am I getting that right?

[00:13:46] Speaker 02:
I'm gonna be a mess they say it again.

[00:13:49] Speaker 02:
Say it for me again Howard Dreemeyer, thank you That's a lot of bubbles on the SATs

[00:14:08] Speaker 00:
May it please the court.

[00:14:10] Speaker 00:
I will address the argument with respect to claims 11 through 15.

[00:14:15] Speaker 00:
First, as appellant did, what the board found, and this is, of course, reviewed for substantial evidence.

[00:14:22] Speaker 00:
And the board is very careful at pages 73 through 79 to explain its rationale, or rather 71.

[00:14:31] Speaker 00:
We start with the motivation to combine.

[00:14:36] Speaker 00:
Johnson is very clear that a problem it identifies is collisions, when two messages are being sent at the same time.

[00:14:46] Speaker 00:
And it points to location as one of the ways to address that problem.

[00:14:54] Speaker 00:
And it says that you can, by addressing the spacing, reduce the problem of collisions.

[00:15:02] Speaker 00:
But Johnson doesn't say how to identify

[00:15:05] Speaker 00:
that location.

[00:15:08] Speaker 00:
Ehlers, the board notes, addresses the same kind of system of controlling and monitoring remote meters.

[00:15:17] Speaker 00:
It's the same kind of system.

[00:15:18] Speaker 00:
And it has the same kind of structure.

[00:15:21] Speaker 00:
But one thing that Ehlers discloses specifically, that Johnson does not, is that one would include the location as part of the identification

[00:15:32] Speaker 00:
for the signal, where it's coming from.

[00:15:39] Speaker 00:
The board acknowledges, and it relies on Emerson's expert at paragraphs 109 and 496, as explaining that to further address this problem of collisions, one would simply modify Johnson by adding location as an additional part of the identification of the center.

[00:16:07] Speaker 00:
And that once one has that, that's the motivation, because it makes the system more stable.

[00:16:13] Speaker 00:
The fewer collisions one has, the less bandwidth that's being used unnecessarily.

[00:16:20] Speaker 00:
And once one has done that.

[00:16:22] Speaker 03:
I just have curiosity, because it doesn't really come out in the briefs.

[00:16:25] Speaker 03:
How is location a factor that determines reduction or increase in the number of collisions?

[00:16:35] Speaker 00:
the speed of light and the farther apart they are the less the same message will be I think it's because of the spacing and whether it's it's all consistent spacing so that messages are being sent at the same time or they're they're set in a way that's more staggered

[00:16:53] Speaker 03:
But why does location matter for that purpose?

[00:16:56] Speaker 03:
What is the physics of it, just out of curiosity?

[00:16:58] Speaker 00:
Your Honor, I'm not sure that that's disclosed, and I'm not sure that I would give you an accurate response.

[00:17:03] Speaker 00:
What Johnson specifies is that it is the spacing of the RCNs that matters in terms of reducing these collisions.

[00:17:16] Speaker 00:
And so that raises this issue of location and suggests that location

[00:17:22] Speaker 00:
is important to resolving.

[00:17:25] Speaker 00:
And Emerson's expert picks up on this and says, yes.

[00:17:29] Speaker 00:
And so one would modify Johnson to include this information that Johnson identifies as important of location in the data structure, because the data structures are similar.

[00:17:43] Speaker 00:
And that once one has modified Johnson in that fashion, then the deep

[00:17:49] Speaker 00:
duplication, which is the claim here, is done by Johnson as modified.

[00:17:56] Speaker 00:
Johnson already talks about deduplicating.

[00:18:00] Speaker 00:
And it talks about doing so based upon identifying the address field.

[00:18:06] Speaker 00:
But if the address field now includes the location because of the modification with Ehlers, then

[00:18:14] Speaker 00:
You've identified the source of the message, including its location.

[00:18:18] Speaker 00:
And I'm reading from Appendix 146, which is page 71 of the final written decision.

[00:18:25] Speaker 00:
Because in this combination, now as modified by Ellis, RCN uses device entry and includes the device location to identify the sending device.

[00:18:34] Speaker 00:
Emerson's expert explains that in doing deduplication, which, again, Johnson discloses we want to do,

[00:18:43] Speaker 00:
using the location would be advantageous because, for example, one could de-duplicate the one that's more remote, right?

[00:18:54] Speaker 00:
That would be efficient.

[00:18:56] Speaker 00:
And this is, again, in paragraph 496, which is at... That's what Matt said he's reporting.

[00:19:04] Speaker 03:
Yeah.

[00:19:04] Speaker 03:
Where in Johnson itself is that disclosed?

[00:19:09] Speaker 00:
The deduplication?

[00:19:10] Speaker 00:
Yeah.

[00:19:10] Speaker 00:
Your honor, the deduplication in Johnson is at column 24, which is in appendix 11, 157.

[00:19:20] Speaker 00:
Oh, I'm sorry.

[00:19:23] Speaker 00:
That's the collisions language.

[00:19:25] Speaker 00:
Yeah.

[00:19:25] Speaker 00:
Your honor, I apologize.

[00:19:28] Speaker 00:
Johnson, with respect to the deduplication, is at column

[00:19:38] Speaker 00:
52 talks about eliminating message redundancy.

[00:19:47] Speaker 00:
So again, this is on substantial evidence review.

[00:19:51] Speaker 00:
The board has explained its basis.

[00:19:53] Speaker 00:
It's identified.

[00:19:54] Speaker 03:
It's just basically saying message redundancy is a bad thing.

[00:19:57] Speaker 00:
Yes.

[00:19:58] Speaker 03:
Right.

[00:19:58] Speaker 03:
It doesn't go on to say anything about how.

[00:20:01] Speaker 00:
It says to eliminate the duplication.

[00:20:04] Speaker 00:
And you're supposed to identify

[00:20:07] Speaker 00:
whether there's a duplicate by looking at the address field of the NSN packet.

[00:20:15] Speaker 00:
So that's how you identify.

[00:20:17] Speaker 00:
That's one of the things you have to look at to identify whether it's a duplicate.

[00:20:20] Speaker 03:
So now that you have- That just tells you that it's a duplicate.

[00:20:24] Speaker 03:
It doesn't tell you anything about how to get rid of the duplicates.

[00:20:26] Speaker 00:
Well, Johnson discloses that it would be discarded, Your Honor.

[00:20:31] Speaker 00:
the duplicate, but which one to discard is what Mancetti says you would want to look at the location and you would discard the one that is more remote.

[00:20:45] Speaker 00:
So Mancetti explains why you would use this modification

[00:20:52] Speaker 00:
in a way to operate it.

[00:20:56] Speaker 03:
Yeah, what's troubling me, and you can explain why it shouldn't be troubling me, is that Mattesetti, and a lot of this seems to be Mattesetti's bridging the gap rather than the reference's bridging the gap.

[00:21:10] Speaker 03:
In other words, Mattesetti is saying, ah, the way you can deal with this duplication problem by using location.

[00:21:16] Speaker 03:
is to get rid of the ones that are farther.

[00:21:19] Speaker 03:
I don't see any of that in either Ehlers or Johnson.

[00:21:22] Speaker 00:
That's the best.

[00:21:23] Speaker 00:
Ehlers does not address duplication.

[00:21:26] Speaker 00:
That's in Johnson, Your Honor.

[00:21:28] Speaker 00:
And Johnson doesn't specifically say to use location to do that.

[00:21:33] Speaker 00:
In fact, the board found that Johnson itself did not.

[00:21:37] Speaker 00:
Then we wouldn't have to have the combination.

[00:21:39] Speaker 00:
That's right.

[00:21:40] Speaker 00:
But it does talk about using the address field

[00:21:45] Speaker 00:
to identify whether it is a duplicate.

[00:21:47] Speaker 00:
And if the address field now includes the location, because it's been modified with errors, then you have the information that allows you to decide which to deduplicate, which to discard.

[00:22:00] Speaker 00:
And that's, man, the study does help bridge the gap.

[00:22:05] Speaker 00:
But that's, again, substantial evidence review is very deferential.

[00:22:09] Speaker 00:
And the question is, is there a basis to conclude that there would be a motivation to combine?

[00:22:14] Speaker 00:
Yes.

[00:22:15] Speaker 00:
and that so combined, it would disclose.

[00:22:18] Speaker 00:
And there is a substantial basis.

[00:22:21] Speaker 00:
I do want to turn to addressing the question about whether the preamble is limiting, because here, the preamble simply recites the intended use.

[00:22:33] Speaker 00:
It's not a limitation.

[00:22:35] Speaker 00:
And it simply recites, that is, for communicating commands and sense data.

[00:22:42] Speaker 00:
The claims are very carefully

[00:22:44] Speaker 00:
crafted.

[00:22:46] Speaker 00:
All of them do include something with respect to communicating commands and sense data.

[00:22:53] Speaker 00:
But they do so very differently.

[00:22:55] Speaker 00:
Claim 1, for example, sends a message with command and data, but it only discloses receiving a message with a command.

[00:23:04] Speaker 00:
Claim 11 discloses receiving a message with command and data.

[00:23:11] Speaker 00:
And claim 12, a dependent claim,

[00:23:13] Speaker 00:
talks about receiving and formatting a message with command and data.

[00:23:18] Speaker 00:
So all four, both ways.

[00:23:19] Speaker 00:
But that's only in claim 12, the dependent claim.

[00:23:22] Speaker 00:
Claim 22 talks about receiving and formatting a message with command and data.

[00:23:29] Speaker 00:
So all four are in claim 22, but they're not in claim 1.

[00:23:33] Speaker 00:
Claim 23, a dependent claim to claim 22, talks about that data being sensed data.

[00:23:40] Speaker 00:
What CIPCO wants to do is use this

[00:23:43] Speaker 00:
language that is very vague and general in the preambles to obliterate all of the fine distinctions between the claims and suggest that every one of the claims must be not only bidirectional, both sending and receiving both command and data both ways, but also that it must be able to do so according to multiple paths to the gateway.

[00:24:07] Speaker 00:
The gateway is not referenced in any of these claims, nor in the preamble.

[00:24:12] Speaker 00:
So they're trying to import through this general preamble language, language that's not in any of the claims or supported by it, nor is it supported by the specification.

[00:24:24] Speaker 00:
The only thing that they point to in support is actually their own experts handwritten marks on the figure two.

[00:24:33] Speaker 00:
That's not the issue.

[00:24:35] Speaker 00:
These are the arrows?

[00:24:36] Speaker 00:
These are the arrows, the blue and the red arrows that they

[00:24:39] Speaker 00:
that they showed.

[00:24:39] Speaker 00:
That's not a disclosure that's sufficiently important in the specification that leaving it out of the claims renders the invention sort of something other than what the patent owner thought it was inventing.

[00:24:55] Speaker 00:
With respect to antecedent, there's no antecedent argument even with respect to claim.

[00:25:00] Speaker 00:
But with respect to claim one, they say that the phrase another wireless communication device requires an antecedent.

[00:25:10] Speaker 00:
But this court's decision in predicate logic makes clear, by contrasting language of another instantiated index as being perhaps an instantiated index that was generated by some process other than the claimed process from another of said instantiated

[00:25:31] Speaker 00:
index, which required an antecedent.

[00:25:34] Speaker 00:
In that case, the claim language used another of said.

[00:25:37] Speaker 03:
But isn't it fair to say that in this case, consistent even with your approach to the preamble, that a portion of the preamble clearly is limiting in that a wireless communication device, and then leave out the rest of the preamble, comprising A, B, C, D, E.

[00:26:00] Speaker 03:
a wireless communication device is limiting by defining the device, then doesn't the another problem fall away?

[00:26:10] Speaker 00:
You're right, Your Honor, in that they need to succeed not only to show that it's limiting, but that it has to carry all of this extra baggage.

[00:26:19] Speaker 00:
You're right.

[00:26:20] Speaker 03:
That another, to say simply- I mean, we've said that portions of preambles can be limiting and other portions not.

[00:26:28] Speaker 00:
That's right, Your Honor.

[00:26:31] Speaker 00:
And even if you said that it had to be a wireless communication device, what they need for it to have is a wireless communication device with all of the limitations of the claimed wireless communication device.

[00:26:47] Speaker 00:
That's what Predicate Logic says you can do if you say another said wireless communication device.

[00:26:54] Speaker 00:
But here, they didn't do that.

[00:26:56] Speaker 00:
So they don't carry with it all of the limitations with respect to the claimed wireless communication device.

[00:27:06] Speaker 00:
And as I said before, in each of these claims,

[00:27:10] Speaker 00:
What that wireless communication device does is something different.

[00:27:14] Speaker 00:
So it doesn't connote this sense of first bidirectionality, but also by multiple paths so that you can get to the gateway.

[00:27:23] Speaker 00:
But I do want to make the point that even if it carried all of that, Mason figure one has the same cycle.

[00:27:31] Speaker 00:
In fact, Mason figure one actually has arrows that run in both directions, which their expert has to fill in.

[00:27:39] Speaker 00:
So Mason does disclose that circle.

[00:27:44] Speaker 00:
And Johnson would disclose it, too, with respect to the Edge RCNs.

[00:27:49] Speaker 00:
They will communicate with the IVT, depending upon which has the better communication, or through one another, depending upon which has the better communication.

[00:27:59] Speaker 00:
So even if that were required and imported, read into the claims through the preamble, it would be disclosed.

[00:28:08] Speaker 00:
And I want to underscore that with respect to bidirectionality alone, the board found with respect to Claim 22, both as DeMason and Johnson, that, remember I said before, Claim 22 says receive and format both command and data.

[00:28:25] Speaker 00:
And they didn't contest before the board that Johnson disclosed

[00:28:29] Speaker 00:
both ways of sending both command and data and receiving both command and data, or that Mason did that.

[00:28:37] Speaker 00:
So the bidirectional doesn't get them anywhere.

[00:28:40] Speaker 00:
They need this notion of multiple kinds of a gateway.

[00:28:45] Speaker 00:
Again, the gateway not even being cited anywhere in any of these claims.

[00:28:49] Speaker 00:
And their support for that is a statement in the summary that other prior art had a problem of single-node failure.

[00:28:58] Speaker 00:
But their own figure two shows repeated points that would be subject to single-node failure.

[00:29:04] Speaker 00:
So it would not solve that problem, unless there are any questions, Your Honor.

[00:29:11] Speaker 02:
Thank you.

[00:29:11] Speaker 02:
Thank you.

[00:29:11] Speaker 02:
Mr. Speck, you have some available comments.

[00:29:14] Speaker 04:
Thank you, Your Honors.

[00:29:15] Speaker 04:
So on the point about Johnson and message redundancy in column 52 that they pointed to, discarding duplicates, Johnson does not say that all redundancy is bad.

[00:29:30] Speaker 04:
In fact, it says in column 52, line 30, the passage that counsel pointed to, it says, message redundancy is a fundamental feature of the wide area communication network contributing to the system's ability to achieve a high probability of reception of NSM messages.

[00:29:45] Speaker 04:
Now, the problem is that in Johnson, they recognized that you could lose pathways if they say that in an urban environment, some pathways may go down.

[00:29:55] Speaker 04:
So they want to have redundant pathways where you may get duplicates.

[00:29:58] Speaker 04:
But they don't want too many, because then you end up with the collision problem that's being discussed.

[00:30:04] Speaker 04:
And so when you look at this, it's not as simple as just saying, let's get rid of all redundant pathways.

[00:30:11] Speaker 04:
Let's get rid of all duplicates.

[00:30:13] Speaker 04:
It's actually a feature.

[00:30:14] Speaker 04:
that allows Johnson to have a high reliability, a high message reception rate, the fact that there are these redundant paths.

[00:30:22] Speaker 04:
And in fact, in column 24, which counsel initially pointed to, it says there are two issues that affect the message loss rate.

[00:30:31] Speaker 04:
And the first that's identified, line 34,

[00:30:35] Speaker 04:
is path loss, which is caused by the nature of the urban propagation environment.

[00:30:40] Speaker 04:
And the second one is simultaneous message transmissions or collisions.

[00:30:43] Speaker 04:
And so he then identifies multiple techniques that help balance these two considerations.

[00:30:49] Speaker 04:
It's a balanced system.

[00:30:51] Speaker 04:
You may hear that a lot, finely tuned, that sort of thing.

[00:30:55] Speaker 04:
It is the real deal here.

[00:30:56] Speaker 04:
He has two competing objectives.

[00:30:58] Speaker 04:
And so to import and increase bandwidth by adding extra information,

[00:31:03] Speaker 04:
like a location, when you don't need to, because we already have another way to figure that out.

[00:31:08] Speaker 04:
That is contrary to what is in Johnson.

[00:31:12] Speaker 02:
Thank you, counsel.

[00:31:13] Speaker 02:
This case is taken under submission.