[00:00:00] Speaker 03: We'll start with the first case. [00:00:02] Speaker 03: That's number 21, 1805, Baratron Ventures against Google LLC. [00:00:11] Speaker 03: OK. [00:00:12] Speaker 03: Mr. Mora, proceed and cover. [00:00:15] Speaker 03: Take whatever time it takes to cover the background and whatever is common to these three cases. [00:00:23] Speaker 02: OK. [00:00:23] Speaker 02: May it please the court, good morning. [00:00:26] Speaker 02: My name is Denise DeMorey from Bunso DeMorey, and I'm here on behalf of Varennes Inventors. [00:00:31] Speaker 02: I want to start out by saying that although I could not be with you today because of the 14-day COVID test rule, I appreciate your combination of my ability to be there last week. [00:00:41] Speaker 02: And fortunately, my client representative is actually there, and the inventor of multiple patents, Don Heena, is in the courtroom with you today. [00:00:51] Speaker 02: So first, in accordance with the court's claim order that was issued a couple weeks ago, I'm going to start with some claim construction issues and sort of some common background to the patents in suit. [00:01:03] Speaker 02: I'm going to start with time scale modification. [00:01:05] Speaker 02: I'm going to move then to presentation reads and then talk about media work. [00:01:12] Speaker 02: So first, let's talk about time scale modification. [00:01:16] Speaker 02: So we'll start first with the 228 patent, which is the case that was called first. [00:01:24] Speaker 02: And this patent is entitled, Method and Apparatus for Controlling Timescale Mockification During Multimedia Broadcasts. [00:01:35] Speaker 02: And in particular, it begins by introducing the concept that the timescale modification applies to audio and audiovisual works. [00:01:44] Speaker 02: And throughout the entire 228 patent, you're always talking about at least audio and perhaps additionally video. [00:01:54] Speaker 02: And that's important because an audio stream in this context, we're talking about how one of ordinary still in the art would understand time scale modification. [00:02:03] Speaker 02: In this case, we're talking about an audio stream, which is like a constant stream of information. [00:02:09] Speaker 02: And it's digitized by sampling portions of it. [00:02:13] Speaker 02: And then the TSM presents known methods of being able to modify this digital samples so that the perceived articulation rate of the passages can be modified dynamically. [00:02:29] Speaker 02: And that's at column five, lines three through 14. [00:02:32] Speaker 02: The entire specification describes, when TSM is described, we're talking about audio only. [00:02:38] Speaker 02: We're talking about modifying the stream. [00:02:40] Speaker 02: We're talking about modifying samples in a buffer. [00:02:44] Speaker 02: And when we get to the video portion, we're talking about something different. [00:02:47] Speaker 02: So audio portions have a particular duration, and video frames have no duration. [00:02:54] Speaker 02: They're just a series of images that can be flashed on the screen, and they're sub-sampled, skipped, or replicated. [00:03:02] Speaker 02: And the 228 patent is about making sure that a user understands a public service announcement, for example. [00:03:10] Speaker 02: So it is about [00:03:12] Speaker 02: controlling the rate at which information is presented to the user for understandability. [00:03:18] Speaker 02: That is the key aspect of the two-two-week pattern. [00:03:22] Speaker 02: So when we talk about the two-two-week pattern, the board obviously interpreted timescale modification in an extremely broad manner to be just the speeding up and slowing down of information. [00:03:38] Speaker 02: So I think the easiest place to start, actually, is in the prosecution history. [00:03:43] Speaker 02: of the 228 patent. [00:03:44] Speaker 02: So we're looking at the intrinsic record of what happened during the prosecution of the 228 patent. [00:03:52] Speaker 02: And we have in the intrinsic record a very specific description that says, timescale modification is completely different from merely speeding up the playback rate of a signal, for example, by subsample. [00:04:10] Speaker 02: As is well known, merely speeding up the playback rate of the signal causes local pitch periods to be shorted. [00:04:16] Speaker 02: As is further well known, the shortened local pitch periods increase in frequency. [00:04:21] Speaker 05: Ms. [00:04:21] Speaker 05: DeMore, where are you in the prosecution history right now? [00:04:26] Speaker 02: I am in the prosecution history for the 228 patents and its appendix pages 1, 2, 3, 8, and 3 patents. [00:04:33] Speaker 05: 1238 1239 and Is this a office action response or what is this? [00:04:42] Speaker 05: The appeal brief to the board Okay, was this in the summary of the invention section I [00:04:54] Speaker 01: Is this portion in the summary of the invention portion? [00:04:57] Speaker 01: I do not believe so. [00:04:58] Speaker 01: I believe it's part of the invention. [00:05:00] Speaker 05: Yeah, it is in the summary of the invention section. [00:05:02] Speaker 05: This is not the portion of the appeal brief where you are distinguishing your claims over the cited prior art in the context of the various 103 rejections. [00:05:18] Speaker 02: Sure, but we're talking in this context. [00:05:20] Speaker 02: We're here to construe time scale modification as what one ordinary skill in the art would have understood it to mean. [00:05:26] Speaker 02: So it is not Brenton's position that this is a disclaimer. [00:05:30] Speaker 02: This is a description of time scale modification that is completely consistent with the entire intrinsic record, Google's admissions, and [00:05:39] Speaker 02: all of the extrinsic records that have been put before this torch? [00:05:43] Speaker 05: Well, when I look through your patent specification, and we're talking about the 228, I don't see anything in the spec that refers to time scale modification as preserving intelligibility or pitch. [00:06:00] Speaker 05: I see the passages that I believe the board relied on, which you're familiar with, columns three, columns five, et cetera, about slowing down playback rate, speeding up playback rate, [00:06:16] Speaker 05: And to the extent that there's any evidence outside of the 228 spec that you're relying on for a particular type of TSM, I believe the board just simply concluded, well, there's different types of TSM. [00:06:34] Speaker 05: where you could preserve pitch and intelligibility, but those aren't necessary to every single version of TSM. [00:06:44] Speaker 05: And the baseline TSM understanding is something that speeds up or slows down playback rate. [00:06:49] Speaker 05: And then there can be additional features if you want, like preserving pitch and intelligibility. [00:06:54] Speaker 05: Could you comment about that? [00:06:58] Speaker 02: Sure. [00:06:58] Speaker 02: The time construction starts with one ordinary skill in the art understands this to mean [00:07:03] Speaker 02: I understand that that was the board's position on time scale modification. [00:07:07] Speaker 02: But there's no evidence of any TSM system that is just slowing up and speeding down in the record. [00:07:15] Speaker 02: So everything in the record is quite the opposite. [00:07:18] Speaker 02: So when we start with 228 itself, we talk about perceived articulation rate of passengers. [00:07:27] Speaker 02: The 228 patent also incorporates by reference the 769 patent. [00:07:32] Speaker 02: And it says, here's one way of doing TSM, and here's the background information, certainly. [00:07:38] Speaker 02: But when you go to the 769 patent, which is instructive, not controlling, but instructive as declined construction under a recent federal circuit law, it says it has multiple examples, which we discussed in our briefing, that describe time scale modification as something that preserves pitch and intelligence. [00:07:59] Speaker 02: And so everything is consistent, perceived articulation rate is consistent with that. [00:08:07] Speaker 05: And in particular, what we've noticed is... What about J82248, where Varentum's predecessor stated, quote, it proposed a clear definition drawn directly from the 769 patent specification of the term time scale modification refer only to speeding up or slowing down playback rate of a signal. [00:08:29] Speaker 02: Yeah, so let's talk about that. [00:08:31] Speaker 02: So a lawyer for a predecessor in interest and an interlocutory in any hearing made that statement about a claim that had limitations directed to an improved solar method. [00:08:46] Speaker 02: So if you look at the claim of the 769 patent, it actually has take a window of samples, rate the samples, [00:08:54] Speaker 02: overlap them. [00:08:56] Speaker 02: So the method that is actually claimed in the 2-2-A patent, actually by itself, without the preamble, which is where Fenske-Modification appeared in that claim, perceived the preserves pitch. [00:09:11] Speaker 02: That's the method that is actually claimed. [00:09:14] Speaker 02: So there was a lawyer there, and we've said this in our motion for reconsideration, who said that particular statement without question. [00:09:22] Speaker 02: It was a strategic decision, I suppose, because the claims cover a time scale modification. [00:09:31] Speaker 02: I think it was wrong. [00:09:34] Speaker 02: I'm sorry, the claim limitations themselves already cover a presumed pitch. [00:09:39] Speaker 02: I think it was wrong. [00:09:40] Speaker 02: And I think Judge Tiger understood it to be wrong as well. [00:09:43] Speaker 02: And when he actually adopted, when he did his actual claim construction order, [00:09:51] Speaker 02: The concern was really that Apple was not that they weren't practicing the limitations, but that there was a non-imprisonment defense that they were going to say that it didn't perfectly preserve pitch. [00:10:05] Speaker 02: And so when you look at what he actually said in his claim construction order, he construed the claim, and he included that language, and then he went on to say, [00:10:15] Speaker 02: I'm not going to include without preserving pitch, because that would require an absolute preservation of pitch. [00:10:22] Speaker 02: And the claims don't require an absolute preservation of pitch. [00:10:26] Speaker 02: And that was omitted both from the district court's order in this case, and in addition, from the board's discussion. [00:10:34] Speaker 02: And I'll pull up the record set for that just one moment. [00:10:40] Speaker 02: So that is in the court's claim construction, [00:10:44] Speaker 02: order in the EPL case, and that is that APX 2267 and 68. [00:10:53] Speaker 02: And so that claim construction was not that if you read the transcript and if you read more fulsomely in our motion for reconsideration, which is at 67 and 68, the reason for that was because they were concerned about this overly technical non-infringement argument. [00:11:13] Speaker 02: Counsel argued against limiting the preamble with that definition because the claim limitations already had the preserving pitch in it. [00:11:22] Speaker 02: It was a natural consequence of the claim limitations. [00:11:25] Speaker 02: Judge Tiger understood that. [00:11:26] Speaker 02: He said, it's not absolutely preserving pitch. [00:11:29] Speaker 02: He did not say that the method did not preserve pitch or that time scale modification did not preserve pitch. [00:11:36] Speaker 02: He just didn't want to add that particular limitation because he was afraid it gave rise to a non-infringement argument. [00:11:45] Speaker 02: And beside that, in addition to that, what that lawyer said, I mean, we're here to construe the claims as a matter of law. [00:11:52] Speaker 02: A lawyer representing a prior entity said that in a hearing. [00:11:56] Speaker 02: It was wrong. [00:11:59] Speaker 02: It's inconsistent with the 769 specification. [00:12:02] Speaker 02: It is inconsistent with perceived articulation rate. [00:12:06] Speaker 02: It is inconsistent with Google's own description and admissions. [00:12:10] Speaker 05: Doesn't the 769 patent that [00:12:14] Speaker 05: JA 2898, column one, line six to eight say, you know, the present invention relates to a method for time scale modification, TSM, i.e. [00:12:27] Speaker 05: changing the rate of reproduction of a signal. [00:12:30] Speaker 02: Right, so rate of reproduction is an interesting, I mean, so that's, so it doesn't preclude anything I was saying. [00:12:35] Speaker 02: So that's sort of the introductory thing, certainly. [00:12:38] Speaker 02: It changes the rate of reproduction. [00:12:40] Speaker 02: But then it goes on immediately after that in 769, [00:12:43] Speaker 02: to say this is concerned with audio samples and perceiving pitch. [00:12:50] Speaker 02: So certainly the 769 pattern begins that way. [00:12:54] Speaker 02: And then immediately thereafter, one just one second. [00:12:57] Speaker 02: Let me hold that page here. [00:13:01] Speaker 02: So if we turn to 769, two of them. [00:13:09] Speaker 02: If we turn to the 769 patent, it does start beginning by saying the quote that you said. [00:13:17] Speaker 02: And then it says, it goes on to say, a need exists for a method of time scale modification of acoustic signals such as feeder music, in particular, a method which provides time scale modification without modifying pitch or without modifying signals. [00:13:32] Speaker 02: Then it goes on to say. [00:13:34] Speaker 05: Where are you? [00:13:35] Speaker 05: I don't know where you are. [00:13:37] Speaker 02: I'm sorry. [00:13:37] Speaker 02: I'm in column 1, line 15. [00:13:41] Speaker 02: And it goes on to describe then at line 26, specifically time scale modification of a signal by time scale compression, speeding up playback. [00:13:51] Speaker 05: IE, a method for speeding up a playback rate of the signal. [00:13:55] Speaker 05: Correct. [00:13:55] Speaker 05: Or by time scale expansion, IE, a method for slowing down the playback rate of a signal. [00:14:01] Speaker 05: So I mean, basically everything I'm seeing here in column one is the idea of there's a baseline understanding of what time scale modification is, i.e., slowing up or speeding up the playback rate. [00:14:14] Speaker 05: And then what this patent wants to do is it wants to improve that baseline TSM by trying to figure out a way to, I don't know, do it without an accompanying change in local periodicity. [00:14:30] Speaker 02: Well, if we go down to common ones, starting at line 64, several methods have been developed in the prior art to provide TSM. [00:14:38] Speaker 02: Previously, TSM was accomplished by three different methods, frequency domain processing, et cetera. [00:14:44] Speaker 02: All of these methods have drawbacks, and then it goes on to list all of these methods. [00:14:52] Speaker 02: And all of these methods, as described in the Boncelet Declaration that we went through, [00:14:58] Speaker 02: are methods that the baseline notion is to reserve pitch and intelligibility. [00:15:04] Speaker 02: So sure, there are prior methods of speeding up and slowing down. [00:15:08] Speaker 02: There's also fast forward. [00:15:10] Speaker 02: Just straight up fast forward, just play it faster. [00:15:13] Speaker 02: But in the 769 pattern, all of these prior methods have to do with preserving pitch and periodicity, which is what pitch refers to. [00:15:27] Speaker 02: And we can go, I think there's another place to go that deals with this directly, which is if we go to the 433 patent, I think it makes it abundantly clear. [00:15:37] Speaker 02: So if we turn to the 433 patent and we look at column one, line 10, I'm sorry, column 162 through line 10. [00:15:53] Speaker 05: Which patent is the 433 patent? [00:15:56] Speaker 05: Is that one of your other appeals, right? [00:16:01] Speaker 02: Yeah, right. [00:16:01] Speaker 02: So we're trying to discuss the claim construction issues common to all of them. [00:16:06] Speaker 02: And TSM is a term that is common. [00:16:14] Speaker 05: I know, but I guess you're jumping to a different patent spec. [00:16:18] Speaker 05: Is this 433 patent spec somehow incorporated into the patent spec here of the 228? [00:16:26] Speaker 02: It is not incorporated. [00:16:28] Speaker 02: And I think that the point here is that a person of ordinary skill in the art would understand TSM consistent with these specifications. [00:16:36] Speaker 02: And this is another example, a contemporaneous example of time scale modification. [00:16:43] Speaker 02: described in a patent, and it's just generically describing the scale modification. [00:16:48] Speaker 02: It's not describing the taste or flavor. [00:16:50] Speaker 00: But, Council, Council, am I correct that the 433 patent does not even recite, that the claims do not recite time scale modification? [00:16:59] Speaker 02: The claims do not recite time scale modification. [00:17:01] Speaker 02: That is correct. [00:17:02] Speaker 02: The entire patent is directed to something called listener-directed time scale modification. [00:17:09] Speaker 00: So when we look at the 433 patent... But your arguments address time scale modification as if it is a recited term. [00:17:18] Speaker 00: So it seems to me you're bringing in something outside of the patent into the claims. [00:17:24] Speaker 00: In this case, just time scale modification. [00:17:27] Speaker 00: Whether that's correct or not, it's not even in the claims. [00:17:33] Speaker 02: So it is our position that we are correct in stating that time scale modification, it is like every other case with a, if we had accused a text only system of infringing the 433 patents, we would have a defendant saying, this patent is directed to time scale modification, every figure, [00:17:57] Speaker 02: every line of every structure that is in here, subscribe to this time scale modification. [00:18:02] Speaker 02: The background is listener directed time scale modification. [00:18:05] Speaker 02: That is how the patent begins. [00:18:08] Speaker 02: And it begins by saying, this patent is about listener directed time scale modification. [00:18:13] Speaker 02: And it is about creating a data structure that captures information about how people perceive [00:18:25] Speaker 02: that use time scale modification to actually, you know, we can tell what people understood, didn't understand, whether they liked something or they didn't like something. [00:18:33] Speaker 02: And in that context, it says specifically, the time scale modification is used to be presented intelligently at increased rates. [00:18:43] Speaker 02: And you can comprehend while fast forwarding. [00:18:46] Speaker 02: This is TSM. [00:18:48] Speaker 02: It's the articulation rate. [00:18:49] Speaker 02: And that is column one, 21 through 42. [00:18:53] Speaker 02: and it's what the entire patent's about. [00:18:56] Speaker 02: And critically, in the 433 patent, it contrasts time scale modification with fast forward. [00:19:05] Speaker 05: I'm getting lost. [00:19:05] Speaker 05: Are you arguing your second appeal right now as to the 433 patent, or are we still talking about your first appeal, which is about the 228 patent? [00:19:17] Speaker 02: So I understood from the court's order that in this first session, I was to talk about the common claim construction issues between the patents. [00:19:25] Speaker 02: So one critical and common term between them is timescale modification. [00:19:31] Speaker 02: That is an issue in all of the appeals. [00:19:34] Speaker 02: And so that's what I was talking about. [00:19:38] Speaker 05: But just so I'm clear, below, in front of the patent board, in the IPR of the 228 patent, [00:19:48] Speaker 05: you weren't arguing, you weren't relying on the specification of the 433 patent as evidence of how to understand timescale modification if that claim term was used in the 228 patent. [00:20:00] Speaker 05: Is that fair to say? [00:20:01] Speaker 02: I believe that's fair to say, although the board didn't rely on the 433 patent for some other things, because the board imported skip from the 433 patent. [00:20:12] Speaker 02: So the entire skip issue came from the 433 patent they imported in here. [00:20:18] Speaker 02: So the board did look across and did cross-site across these appeals. [00:20:24] Speaker 05: And to the extent we're now talking about timescale modification in the context of the IPR for the 433 patent, we only get to that question if we construe a different term to presentation rate to include timescale modification. [00:20:46] Speaker 05: Is that right? [00:20:47] Speaker ?: Sure. [00:20:47] Speaker 01: That is correct. [00:20:48] Speaker 05: And the board's concluded that presentation rate, as that term is used in the 433 patent, is not limited to time scale modification. [00:20:58] Speaker 01: That is correct as well. [00:21:00] Speaker 05: OK. [00:21:01] Speaker 05: So if we agree with that, then we don't have to wrestle over the meaning of times [00:21:08] Speaker 02: I think textbook modification means the same thing across all the patents. [00:21:11] Speaker 02: It's meant the same thing since the mid-80s. [00:21:15] Speaker 02: It meant the same thing in the inventor's thesis from 1990. [00:21:20] Speaker 02: It meant the same thing in the 769 patent. [00:21:23] Speaker 02: It means the same thing when you say perceived articulation rate. [00:21:27] Speaker 02: It means the same thing in the 433 patent when you say that it's about understandability and intelligibility. [00:21:35] Speaker 02: and preserving and contrasting that with fast forward where you can't understand it. [00:21:41] Speaker 02: And frankly, Google understood it exactly that way when it, in its invalidity contentions. [00:21:49] Speaker 02: And those invalidity contentions are, again, this is the same thing. [00:21:52] Speaker 02: This is, what does one of ordinary skill in the art understand time scale modification to mean? [00:21:57] Speaker 02: And in the context of those invalidity contentions, [00:22:00] Speaker 02: They were not saying, Verentum interpreted the claims this way. [00:22:05] Speaker 02: We're reading it this way because Verentum, you know, because we looked at their infringement contentions and they're saying timescale modification. [00:22:12] Speaker 02: And now I am in the record at appendix 1934 and 35. [00:22:19] Speaker 02: And this is, it begins by saying, certain claims in the 903 family recite time scale modification that modifies the playback rate of audio while also modifying the audio to avoid changing the pitch. [00:22:34] Speaker 02: For example, reducing the chipmunk effect. [00:22:38] Speaker 02: TSM was well known at the time of the alleged adventure. [00:22:41] Speaker 02: Bad Cam Car, one of the references they rely on, [00:22:44] Speaker 02: For example, just for modification, techniques that modify audio or audiovisual to change the display rate, speeding up or slowing down, with reduced artifacts of distortion. [00:22:57] Speaker 02: And then COVAL, which they argue here, takes this out of timescale modification. [00:23:02] Speaker 02: They specifically said, in the district court case, facilitates high rate of compression while maintaining the intelligibility of the resulting sounds. [00:23:13] Speaker 05: In their Markman brief, did they make these same arguments about what TSM means? [00:23:21] Speaker 02: No, they argued based on the EPL case, on the prior statement of prior counsel in another case, even though their statements are unequivocally clear. [00:23:33] Speaker 05: So their Markman brief, where they had to urge a particular conception of what this claim term means, [00:23:40] Speaker 05: They didn't include the ideas of intelligibility and pitch. [00:23:45] Speaker 02: They did not. [00:23:46] Speaker 02: They did not. [00:23:47] Speaker 02: But clearly, when they were, they made a strategy decision not to do that. [00:23:53] Speaker 02: But as to how a person of ordinary filmy art would understand it, when they read it, when they read Ben Kempcar, when they read Cobell, when they read the 885 patent, Google described it clearly. [00:24:05] Speaker 02: It's perfectly consistent with [00:24:07] Speaker 02: perceived articulation rate. [00:24:09] Speaker 02: It's consistent with the 769. [00:24:11] Speaker 02: It's consistent with the way Judge Tiger understood the patent. [00:24:15] Speaker 02: And it is consistent with the entire intrinsic record. [00:24:17] Speaker 02: And I see I'm just about at 25 minutes. [00:24:21] Speaker 02: So I will stop here unless anyone has any other questions. [00:24:27] Speaker 03: OK. [00:24:27] Speaker 03: We'll hear from the other side. [00:24:29] Speaker 03: We'll save you rebuttal time. [00:24:31] Speaker 03: Thank you. [00:24:32] Speaker 03: Mr. Moody. [00:24:33] Speaker 04: May it please the court. [00:24:34] Speaker 04: As an initial matter, the intrinsic record rejects the notion that time scale modification should be read into any claims that do not recite time scale modification through the presentation rate term. [00:24:47] Speaker 04: The 228 patent provides a very clear definition of presentation rate. [00:24:53] Speaker 04: At appendix 182, column 42, lines 37 to 43, it recites presentation rate [00:25:01] Speaker 04: parentheses, i.e., a rate of presentation of information. [00:25:07] Speaker 04: If we look to the 433 patent, it similarly has a definition section. [00:25:11] Speaker 04: And in that definition section, at appendix 90 of the 1934 appeal, it defines presentation rate. [00:25:19] Speaker 04: And it defines it as a rate at which a media work is presented. [00:25:24] Speaker 04: Now, Varentum argues that TSM is a term that's repeatedly discussed in its specification. [00:25:29] Speaker 04: But that's a fundamentally different situation than what was in play in the GP&E and Vernetics cases, where a particular term was repeatedly described in a particular way. [00:25:40] Speaker 04: Here, presentation rate is not repeatedly described as requiring time scale modification. [00:25:47] Speaker 04: To the contrary, it's actually defined in a manner that does not require time scale modification. [00:25:55] Speaker 04: In any event, however, [00:25:57] Speaker 04: When time scale modification is construed for the claims that do recite it, the intrinsic record consistently defines time scale modification as simply broadly requiring speeding up or slowing down the playback rate of content. [00:26:13] Speaker 04: And I think the 769 patent is pretty instructive here. [00:26:16] Speaker 04: And I'll note the 769 patent is actually incorporated by reference by both the 228 and the 433 patent. [00:26:24] Speaker 04: And I think that at appendix 2900, column 6, lines 47 to 53, it's pretty indicative of the dispute between Google and Parentum. [00:26:34] Speaker 04: There, the 769 patent indicates that the present invention relates to a method for timescale modification [00:26:41] Speaker 04: i.e., changing the rate of reproduction of a signal. [00:26:44] Speaker 04: So that's where time scale modification is defined. [00:26:47] Speaker 04: And then it goes on to describe the invention of the 769 pattern, which was a method for time scale modification of a sampled signal by time domain processing the sampled signal to provide reproduction of the signal at a wide variety of rates without an accompanying change in pitch. [00:27:05] Speaker 04: So the notion that you somehow perform this improved method of timescale modification that doesn't involve a change in pitch, that was the purported invention of the 769 pattern, which is a pattern that's not challenged in any of these IPRs. [00:27:19] Speaker 04: I also think EPL's, Vrentum's predecessor's statements were clear. [00:27:24] Speaker 04: They stated, quote, [00:27:25] Speaker 04: that the 769 patent very clearly uses the term timescale modification to refer only to the speeding up or slowing down of the playback of a signal. [00:27:35] Speaker 04: That's in Appendix 2248. [00:27:39] Speaker 04: I also think it's important for the court to realize that the 228 patent itself, at Appendix 182, column 42, lines 36 to 48, to the extent there is any doubt, maybe sometimes timescale modification is referred to in this narrow manner that Varentum alleges. [00:27:55] Speaker 04: The 228 patent indicates that a TSM rate, a time scale modification rate, should be understood to include, quote, any type of presentation rate, and that this term should, quote, be understood as being used in the broadest sense. [00:28:09] Speaker 00: Counselor, apart from the prior code, is there any other private art that explains that time scale modification is limited to pitching and intelligibility? [00:28:25] Speaker 04: I suggest, Your Honor, that Covell actually says that time scale modification is not limited to pitch and intelligibility. [00:28:31] Speaker 00: Correct. [00:28:31] Speaker 00: That's what I meant to say. [00:28:32] Speaker 00: So is there any other private reference? [00:28:35] Speaker 04: Sure, Your Honor, there is. [00:28:36] Speaker 04: For example, at Appendix 3126, this is a publication that Varentum actually cites. [00:28:42] Speaker 04: It indicates that ideally, time scale modification preserves properties like pitch and timber. [00:28:51] Speaker 04: I also think it's noteworthy that at Appendix 2635, which is at a paragraph 18 of Dr. Bansalai, Rentomexpert's declaration, he also indicated that if timescale modification is done well, the viewer can speed up or slow down the work and still understand and digest its content. [00:29:10] Speaker 04: Well, that means that if it's not done well, it's still timescale modification, and the user might not understand its content. [00:29:19] Speaker 04: It's also noteworthy that Brenton's construction is really insolubly ambiguous. [00:29:24] Speaker 04: They don't say that it maintains pitch and intelligibility. [00:29:26] Speaker 04: They say it substantially maintains pitch and intelligibility. [00:29:29] Speaker 04: And when we asked Dr. Bonsallet what that meant, he said it's the sort of thing that's in the eye of the beholder, that reasonable people can disagree about certain scenarios. [00:29:37] Speaker 04: Something might be time scale modification to one person and not to another. [00:29:45] Speaker 04: With respect to the [00:29:47] Speaker 04: Motion for reconsideration that Varentum points to. [00:29:50] Speaker 04: For one, that's not an argument Varentum even made below to the board. [00:29:52] Speaker 04: They only cited that to inform the board that it's not a resolved issue at the district court. [00:29:57] Speaker 05: What motion for reconsideration? [00:29:59] Speaker 04: So Varentum points to its own motion for reconsideration. [00:30:02] Speaker 04: It filed with the district court. [00:30:04] Speaker 04: And in that motion, they had quotations from Google's preliminary and validity contentions. [00:30:10] Speaker 04: And so that's the paper when they're talking about Google's statements and validity contentions. [00:30:14] Speaker 04: They're actually quoting from their motion for reconsideration that was filed at the district court. [00:30:20] Speaker 04: They didn't actually argue that Google made any admissions to the board. [00:30:23] Speaker 04: That's a new argument they're making on appeal. [00:30:25] Speaker 04: And I'll just note, I think the court's aware of this, but all of those filings were made before clay construction was done. [00:30:30] Speaker 04: Google made absolutely clear it was making those statements because it didn't know what Varentum was going to argue, but appeared pretty clear that Varentum intended to argue time still modification in the manner that it does now and that it did at District Court. [00:30:56] Speaker 04: Unless your court has any further questions, I'm happy to return the remainder of my time to the court. [00:31:00] Speaker 04: Prosecution history? [00:31:03] Speaker 04: Sure, Your Honor. [00:31:07] Speaker 04: So with respect to the prosecution history, I think really two things are key here. [00:31:13] Speaker 04: For one, Brenton does not even allege that there was a disclaimer. [00:31:17] Speaker 04: It conceded in its gray brief at page 8 that there was no disclaimer, and it's not arguing disclaimer. [00:31:22] Speaker 04: For another, as Your Honor pointed out, the statement was, in fact, made in the summary of the invention, not to distinguish over any prior art. [00:31:30] Speaker 04: It was really just a gratuitous statement, Brenton included in there. [00:31:33] Speaker 04: The examiner, we have no idea if the examiner gave it any weight. [00:31:36] Speaker 04: And here are the intrinsic evidence in any event, the specification, the definition in the 769 patent, the statement in the 228 patent that timescale modification should be understood in its broadest possible sense. [00:31:48] Speaker 04: All of that outweighs any possible [00:31:53] Speaker 04: weight that the two sentences in the prosecution should be given. [00:31:59] Speaker 03: OK, thank you. [00:32:00] Speaker 04: Thank you. [00:32:00] Speaker 03: All right, we'll hear rebuttal. [00:32:05] Speaker 03: Just wait a moment while we move the equipment. [00:32:09] Speaker 03: OK, thank you. [00:32:10] Speaker 03: May proceed. [00:32:11] Speaker 02: Thank you, Your Honor. [00:32:14] Speaker 02: First, I want to start with the statement that Cobell somehow is being consistent with [00:32:22] Speaker 02: with the notion that time scale modification requires reserving pitch. [00:32:28] Speaker 02: I must point out on the record that we are crediting a statement, made it a claim construction argument on another patent, as controlling the meaning of time scale modification in this proceeding. [00:32:42] Speaker 02: And that's what is being argued by Google. [00:32:45] Speaker 02: And in this case, we have a statement from Google, unprompted by Marenta, completely. [00:32:52] Speaker 02: describing the COBAL reference in the underlying litigation. [00:32:58] Speaker 02: And Google itself describes the COBAL reference as being part of well-known TSM technology. [00:33:09] Speaker 02: So it says, TSM was well-known at the time of the alleged invention. [00:33:14] Speaker 02: And then it lists two examples, bad can car and COBAL. [00:33:20] Speaker 02: And it says, unprompted by anything Verentum said, because we surely didn't rely on Covel for anything, it says that Covel disposes, facilitating high rates of compression and or expansion while maintaining the intelligibility of resulting sounds, using an improved solo technique, which uses time scale modification, non-uniformly to individual audience by accounting for the overall pattern of speech to provide a more intelligible signal upon playback [00:33:49] Speaker 02: even at high plant modification rates. [00:33:52] Speaker 02: And then it goes on to say, the Badcamp car and Covell patents were assigned to Interval Research Corporation. [00:33:57] Speaker 02: Additional Interval Research patents publications provide further details regarding the development of advanced TSM in both audio and video, including, and it goes on. [00:34:08] Speaker 02: And so this is Google saying TSM was well known. [00:34:14] Speaker 02: And this is Google saying that TSM is [00:34:18] Speaker 02: modifying it to avoid the chipmunk effect. [00:34:21] Speaker 02: And the first paragraph describes the 903 patents. [00:34:24] Speaker 02: And as we've pointed out, the 903 patents doesn't even have time scale modification in the claims. [00:34:31] Speaker 02: And then it goes on to say that the 885 patents, which is another patent in the underlying litigation, makes this absolutely clear as well. [00:34:39] Speaker 02: And this is Google's statements about what time scale modification means. [00:34:43] Speaker 02: It's not in the context of what are responding to our infringement contentions. [00:34:47] Speaker 02: This is just Google voluntarily saying, hey, here's some examples of time span modification. [00:34:52] Speaker 02: It was completely well known. [00:34:54] Speaker 02: It means exactly what Berentum is asking you to construe it now. [00:34:58] Speaker 02: And that's what happened. [00:34:59] Speaker 02: But in contrast to that, the claim is something that prior counsel for not this entity said about a non-related patent, albeit incorporated by reference, is going to control the patent. [00:35:16] Speaker 02: And in addition to that, when we look at COVAL itself, it's talking about time scale modification at a uniform rate. [00:35:23] Speaker 02: And it says when you play, so it's not perfect because it is still trying to preserve pitch, but it says when you play it fast or when you play it slow, then doing it at a uniform rate results in, it doesn't say chipmunking, it says squeaky and more basal. [00:35:44] Speaker 02: So it still attempts to preserve the intelligibility. [00:35:47] Speaker 02: It's just that if you do time scale modification at a uniform rate, it's not as good as if you do it at a non-uniform rate, which is what Covell describes in the claims. [00:35:58] Speaker 02: But nowhere in Covell does it say you don't do what, you don't try to preserve pitch or intelligibility. [00:36:06] Speaker 02: And nowhere does it say that. [00:36:07] Speaker 02: And Google has helped acknowledge in the context of this litigation that that's what it means. [00:36:13] Speaker 02: It's a well-known term at the time of the election, but it was talking about all of the patents that are issued here, which is exactly Varenda's point. [00:36:21] Speaker 02: It was a well-known term, and it meant precisely what Varenda is arguing that it means. [00:36:27] Speaker 02: And that is an appendix. [00:36:29] Speaker 02: This is Google's admissions at appendix 1934 and 1935. [00:36:34] Speaker 02: In addition to that, let's just move to, I'll say it again. [00:36:43] Speaker 02: I mean, if we go back even to the inventor's 1990 thesis, and it's just a description of time scale modification. [00:36:53] Speaker 02: This is supposedly some litigation-induced definition. [00:36:58] Speaker 02: But we go back to the 1990 thesis and every other thing that is in Dr. Bonsall's declaration. [00:37:03] Speaker 02: And what we're here to do is, this is not a term that is generally known. [00:37:08] Speaker 02: And the fact that you speed up and slow down, of course you speed up and slow down. [00:37:12] Speaker 02: But you do it in a way that is different than fast forwarding, which is exactly what the 433 patent says. [00:37:18] Speaker 02: You do it to preserve intelligibility. [00:37:21] Speaker 02: And so if we go back to the inventor's thesis, which is in the 805 appeal, it is excerpts 2951 and 2962. [00:37:39] Speaker 02: It says refers to processing performed on speech signals that changes the perceived rate of articulation without affecting the pitch or intelligibility of speech. [00:37:48] Speaker 02: It's just a general definition. [00:37:49] Speaker 02: It is what time scale modification means. [00:37:52] Speaker 02: And it's not by any litigation. [00:37:56] Speaker 02: It's not by anything. [00:37:57] Speaker 02: It's just a general definition. [00:37:58] Speaker 02: And every definition, including the ones that Google gave that's implementing contentions, not responding to a random is [00:38:06] Speaker 02: is consistent with that. [00:38:08] Speaker 02: And the fact that the patents also say, describe it as speeding up and slowing down, that is also not inconsistent. [00:38:14] Speaker 02: And that's presentation rate. [00:38:15] Speaker 02: But when they talk about, every single one of them, when they talk about time scale modification, they always say, at a minimum perceived articulation rate, up to the 433, which says, preserve pitch and intelligibility, and I am different than, fast forward, which you cannot understand pitch and intelligibility. [00:38:36] Speaker 02: So I think I'm counting up so I've reached the end of my time. [00:38:42] Speaker 03: Any more questions as to this case? [00:38:46] Speaker 03: All right. [00:38:47] Speaker 03: Thank you. [00:38:48] Speaker 03: This case is taken under submission.