[00:00:02] Speaker 04: The next case for argument is 22-1699, Dolly Wireless versus CommScope Technologies. [00:00:52] Speaker 04: Mr. Leffler, please proceed. [00:00:53] Speaker 01: Yes, Your Honor. [00:00:56] Speaker 01: Christopher Leffler on behalf of Dolly Wireless, point of appellant in this matter. [00:01:02] Speaker 01: There are five related issues at issue in this appeal. [00:01:09] Speaker 01: There are three terms that were construed on the Eve of Trial that are under appeal. [00:01:16] Speaker 01: And the issue is, were those construed properly? [00:01:20] Speaker 01: And the remaining issue is, with that construction, do they contradict previously construed terms that are still operative in the case? [00:01:30] Speaker 04: Well, I want you to explain more what you mean by the second part, because I'm not sure. [00:01:34] Speaker 04: But let me ask you, is this a preliminary matter? [00:01:37] Speaker 04: In order to prevail in this case, do you agree that we would have to agree with you on a reversal on all three claim constructions done by the district court, Judge? [00:01:47] Speaker 01: I actually don't necessarily agree with that. [00:01:49] Speaker 01: It depends on how you disagree with the district court judge. [00:01:54] Speaker 01: So as we've said, there are three interrelated terms at issue. [00:01:58] Speaker 01: There is the translating as appropriate. [00:02:01] Speaker 01: There is routing and switching the packetized, packetizing the baseband signals and routing and switching the packetized signals. [00:02:11] Speaker 01: So if we start with translating. [00:02:13] Speaker 03: Could you elaborate a little bit more on your answer? [00:02:16] Speaker 03: I mean, I think you said it depends on how we agree. [00:02:19] Speaker 03: So what does that mean? [00:02:20] Speaker 03: Does it mean like if we agree on two of these particular ones, then we wouldn't have to reach a third? [00:02:26] Speaker 03: Could you just give that more detail? [00:02:28] Speaker 01: Sure. [00:02:28] Speaker 01: I believe that the key here is the first one, the translating as appropriate, and the third one, routing and switching the packetized signals according to the reconfiguration. [00:02:40] Speaker 01: on packetizing the baseband signals. [00:02:44] Speaker 01: If translating as appropriate is properly construed, then I believe that the antecedent basis for that construction is present, and there wouldn't be a disagreement. [00:02:59] Speaker 04: OK. [00:03:00] Speaker 04: OK. [00:03:01] Speaker 04: Can I ask you one further housekeeping question, which is I know there are two pending district court proceedings that we've been apprised of. [00:03:07] Speaker 04: involved in these claims? [00:03:08] Speaker 01: Yes, Your Honor. [00:03:09] Speaker 01: Those are currently state pending IPR. [00:03:12] Speaker 04: Are the same claim limitations in dispute there, the construction of those claims? [00:03:19] Speaker 04: I don't know what the infringement issues are there. [00:03:21] Speaker 04: So are they the same or different? [00:03:23] Speaker 01: They are different. [00:03:25] Speaker 04: Different claim construction. [00:03:27] Speaker 04: Correct. [00:03:28] Speaker 04: They don't implicate the claim constructions that are on appeal here? [00:03:31] Speaker 01: The claim constructions from the district courts there that are state [00:03:35] Speaker 01: The constructions are different than the constructions here. [00:03:38] Speaker 03: Do the constructions here impact anything that's at issue in those other cases in Texas? [00:03:45] Speaker 01: Yes. [00:03:47] Speaker 03: OK. [00:03:48] Speaker 03: Which claim constructions? [00:03:50] Speaker 01: The packetizing, the baseband signals, or the translating as appropriate. [00:03:54] Speaker 01: I'm sorry. [00:03:56] Speaker 01: All three, but if the same thing, if we get translating as appropriate, then I believe the second one, the antecedent basis would be OK. [00:04:05] Speaker 01: And therefore, then it would be the third one as well. [00:04:08] Speaker 04: So can I ask you the flip side of what you're telling us? [00:04:11] Speaker 04: If we were to agree with the district court on the translating limitation, did the other two claim construction disputes fall out? [00:04:19] Speaker 04: And is this sufficient to resolve the claim construction disputes in the district court? [00:04:24] Speaker 01: Yes, Your Honor. [00:04:30] Speaker 02: The Texas case too. [00:04:32] Speaker 02: Is there a claim construction in the translating in the Texas case? [00:04:41] Speaker 01: No, it's right. [00:04:42] Speaker 01: It's not. [00:04:42] Speaker 03: It's your stipulation. [00:04:44] Speaker 03: You have a stipulation somewhere, right? [00:04:46] Speaker 01: I'm trying to remember what the claim construction in that case was, and I apologize. [00:04:49] Speaker 01: I believe it's plain and ordinary meaning. [00:04:52] Speaker 02: Oh. [00:04:54] Speaker 01: Which doesn't help us here. [00:04:56] Speaker 02: But if we decide the translating step, [00:05:00] Speaker 02: here, then that's going to control the other district court case. [00:05:05] Speaker 01: It will, yes. [00:05:06] Speaker 01: This will be precedent for that. [00:05:08] Speaker 02: Because you haven't asked for plain, or at least we're not dealing with plain and ordinary here. [00:05:12] Speaker 01: OK. [00:05:12] Speaker 01: Well, Your Honor, we have asked, in our briefing, we did ask for plain and ordinary meaning for this document. [00:05:19] Speaker 01: But you didn't get it. [00:05:21] Speaker 01: We didn't get it in the district court, but we're hoping to get it here. [00:05:25] Speaker 03: So can I ask you about the meaning of the word as appropriate? [00:05:30] Speaker 03: The phrase as appropriate as in window for full limitation translating the uplink and downlink signals between RF and baseband as appropriate. [00:05:40] Speaker 03: I think the district court said as appropriate is to the extent, you know, I guess [00:05:46] Speaker 03: as much as the amount of translation. [00:05:50] Speaker 03: My question is, why doesn't as appropriate mean the type of translation? [00:05:55] Speaker 03: And let me explain. [00:05:57] Speaker 03: The limitation says translating the uplink and downlink signals between RF and baseband as appropriate. [00:06:03] Speaker 03: So in other words, it's talking about translating from RF to baseband [00:06:08] Speaker 03: and from baseband to RF, right? [00:06:11] Speaker 03: Correct. [00:06:11] Speaker 03: And so as appropriate would it absolutely, the language preceding it in which it can be modifying is between RF and baseband. [00:06:24] Speaker 03: Correct. [00:06:24] Speaker 03: Such that as appropriate means, you know, translating from RF to baseband or from baseband to RF as appropriate. [00:06:33] Speaker 03: In other words, it's telling you what type of translating. [00:06:36] Speaker 01: That is Dali's position. [00:06:39] Speaker 01: That is the position that Dolly has taken in this case. [00:06:41] Speaker 03: That's the position that your point is. [00:06:43] Speaker 01: And that is the position that we're arguing for, yes. [00:06:45] Speaker 03: OK. [00:06:46] Speaker 03: That still doesn't necessarily answer the question of whether the translation occurs, right? [00:06:54] Speaker 01: Correct. [00:06:54] Speaker 03: Because you say, I thought you were saying as appropriate means as the evidence. [00:06:59] Speaker 01: Well, it's very subtle point. [00:07:02] Speaker 01: So in the system, you have in a DAS system, you have, as disclosed in the specification and in the claims, you have the DAU, which is the digital access unit, which communicates to the network provider, for example, AT&T and others. [00:07:17] Speaker 01: And the DAU connects to the RR units, the remote radio units, that communicate with the cell phone, the users on the other hand. [00:07:26] Speaker 01: And translating [00:07:29] Speaker 01: can happen, but it's not necessary to happen at either the DAU or the RRU. [00:07:36] Speaker 01: So if you get a signal to the RRU that is an RF, and it needs to be transported to the DAU, one of the inherent parts of the system that's not in dispute is that communication is digital. [00:07:50] Speaker 01: It's over an optical cable. [00:07:52] Speaker 01: It's shown in the drawings and in the specification. [00:07:54] Speaker 01: And that is digital, and that is done in basement. [00:07:57] Speaker 01: So when the RRU receives an RF signal and it transports it to the DAU, translation must occur. [00:08:04] Speaker 01: Similarly, if the DAU sends a baseband signal to the RRU, and the RRU needs to make that an RF signal to send to the user, that would be translated as well. [00:08:17] Speaker 01: Similarly, the DAU and its communications with the network operator, that's agnostic. [00:08:27] Speaker 01: And if you looked at the pattern, I believe it's column, I don't want to get it wrong. [00:08:39] Speaker 01: Column five, lines one and two. [00:08:44] Speaker 01: Actually, that's what I was looking for. [00:08:51] Speaker 01: Column five, lines [00:08:53] Speaker 01: 8 to 15, it describes that this invention can communicate with all sorts of signals coming into the DAU. [00:09:02] Speaker 01: It can go with microwave, it can go with an ethernet cable, which would be digital, and it can also bring in RF. [00:09:11] Speaker 01: So depending on what the DAU is connected to, then there may be translating into the DAU as well. [00:09:17] Speaker 03: You're looking at page 856, column 8? [00:09:21] Speaker 03: I mean, column 5, lines 8 through 15. [00:09:27] Speaker 03: I'll be honest with you. [00:09:27] Speaker 03: Maybe I'm missing something technology-wise, but it doesn't expressly say what you've just said. [00:09:34] Speaker 03: So why do you think that the language here says what you just said? [00:09:39] Speaker 03: Instead, it says it can be deployed with distributed base systems, distributed antenna systems, distributed repeaters. [00:09:47] Speaker 03: Unless I'm looking at the wrong place, I'm not seeing a clear understanding of why this supports what you just said. [00:09:53] Speaker 01: Then it gets to other wireless communication systems such as microwave and satellite communications. [00:09:58] Speaker 01: The present invention is also field upgradable through a link such as an ethernet connection. [00:10:03] Speaker 01: A microwave is a different signal than an RF. [00:10:08] Speaker 01: A satellite will send different signals, and an ethernet would be a digital signal. [00:10:13] Speaker 02: So all of those require translation to baseband? [00:10:17] Speaker 01: So if they're going to be communicating out to the radio units, absolutely. [00:10:22] Speaker 01: So all communications between radio unit and DAU must be based. [00:10:27] Speaker 03: But your claim's directed to a method for routing and switching RF signals. [00:10:32] Speaker 01: The preamble does say a method of routing and switching RF signals. [00:10:35] Speaker 01: And the method actually does route and transmit RF signals at the radio units every single time at the DAU, depending on what it's connected to sometimes. [00:10:50] Speaker 02: I'm a little confused as to your answer, agreeing with her claim construction, because it did sound like the claim construction you were proposing. [00:10:59] Speaker 02: I thought the claim construction you were proposing would allow your claim to read on a system that did no translation whatsoever. [00:11:06] Speaker 01: No, Your Honor. [00:11:08] Speaker 01: I apologize if that didn't come through clearly. [00:11:12] Speaker 01: What I've tried to make clear is that the translation step is optional at each spot. [00:11:20] Speaker 01: But it's conditional at the DAU and it's conditional at the RRU. [00:11:25] Speaker 01: But it's not optional. [00:11:28] Speaker 01: It has to happen. [00:11:29] Speaker 01: There has to be translation. [00:11:31] Speaker 01: And there is translation at the RRU in both directions every time. [00:11:38] Speaker 01: At the DAU, it's translated as appropriate. [00:11:41] Speaker 01: If an RF signal comes in, it's translated to transmit. [00:11:44] Speaker 01: If a digital signal comes in, it doesn't need to be translated because it's not appropriate to translate that signal. [00:11:51] Speaker 01: That signal's already in the form that it needs to be. [00:11:56] Speaker 04: Well, I must say, I'm confused, too, because I thought the issue on translation was whether or not it was a requisite step or whether or not it was a mandatory step or not. [00:12:06] Speaker 01: No, I think, with all due respect, ComSCO's briefing has made that an issue. [00:12:11] Speaker 01: But that's not an issue that I raised. [00:12:15] Speaker 01: We've said repeatedly that it's a condition, not an optional thing. [00:12:20] Speaker 03: What exactly is the language of your proposed construction? [00:12:24] Speaker 03: Where and where will I find it? [00:12:37] Speaker 01: So Dolly's proposal is plain and ordinary meaning, subject to the district court's existing construction of downlink settings. [00:12:42] Speaker 04: Where are you reading it from? [00:12:43] Speaker 01: Oh, I'm sorry. [00:12:43] Speaker 01: I'm reading from docket 26, Dolly's brief at page 58. [00:12:48] Speaker 04: Do you have an appendix of that? [00:13:01] Speaker 02: Well, that's not a construction that an implanted ordinary meaning is not very helpful here. [00:13:08] Speaker 03: So the thing you're really arguing about today is the last sentence of your proposed construction, right? [00:13:14] Speaker 03: That translating as appropriate is a conditional limitation? [00:13:18] Speaker 03: Correct. [00:13:20] Speaker 03: Which means that it only happens sometimes. [00:13:23] Speaker 01: It means that it happens when it's necessary. [00:13:26] Speaker 01: The step happens every time. [00:13:31] Speaker 01: whether or not the translation has to occur is conditional upon if it's appropriate or not. [00:13:36] Speaker 01: That's as appropriate. [00:13:38] Speaker 02: When does it make it as appropriate? [00:13:41] Speaker 02: When it comes in as an RF signal? [00:13:42] Speaker 01: It comes in as an RF signal and it needs to go between, you're always in baseband between the RRUs and the DAE. [00:13:49] Speaker 02: Always that's the parent in the system if it comes in as an RF signal And it's going to something that I can't keep track of all these different units It's very complicated, but if it's going through that phase that you say always has to be a baseband correct It has to be translated correct and similarly if it's coming from one of those things that only sense a baseband baseband signal And it's going out for something that needs our app. [00:14:14] Speaker 02: It's going to translate our app correct [00:14:16] Speaker 02: So it's always going to translate from RF to baseband when it's the type of receiver that needs one or the other. [00:14:24] Speaker 01: Yes, it will always translate to make sure that the appropriate signal form is at the appropriate spot for that communication. [00:14:33] Speaker 02: I mean, it would have been more helpful if you would have proposed an actual construction rather than just, say, plain and ordinary meeting. [00:14:42] Speaker 04: Or even conditional limitation, because it obviously is some computing, but what [00:14:47] Speaker 01: Yes, Your Honor. [00:14:48] Speaker 04: Did you explain that in any more depth than anything in what you presented to the District Court? [00:14:55] Speaker 01: In our presentation to the District Court, we walked through when it happens. [00:15:05] Speaker 02: I mean, I don't understand why the district court's construction sounds wrong to me, but I don't understand how it's necessarily inconsistent with what you're proposing and how it would lead to... Did you stipulate a non-imprisonment under this? [00:15:20] Speaker 01: Under the three together. [00:15:22] Speaker 01: We stipulated to a lack of evidence. [00:15:24] Speaker 02: But you said this is the most important one. [00:15:26] Speaker 01: This, along with the third one. [00:15:29] Speaker 01: And I'm running out of time. [00:15:30] Speaker 02: Well, I'm just... [00:15:32] Speaker 02: Why would the district court's construction of this claim render their system not infringing and yours not? [00:15:43] Speaker 01: So under the crux of the issue is that their system receives baseband signals at the DAU. [00:15:52] Speaker 01: Those baseband signals are then sent to the RRUs, translated and sent off. [00:15:58] Speaker 01: As the district court cascaded these constructions, the district court is requiring that packetized signals, which the district court says were produced, which I would argue they were introduced but not produced in the translating step, those are routed and switched in both directions. [00:16:20] Speaker 01: And what is true about CommScope system is that the downlink signals [00:16:28] Speaker 01: are routed and switched, but the uplink signals are only routed. [00:16:32] Speaker 01: They are not switched. [00:16:34] Speaker 01: And so through the cascading effect of the court's constructions, the court has locked in a limitation that didn't exist in the original reading of the claims. [00:16:45] Speaker 03: So the routing and the switching, that is the third limitation. [00:16:50] Speaker 01: Correct. [00:16:52] Speaker 01: And that limitation needs to be read in conjunction with the whole of the claim limitation, because it says according to the reconfiguring. [00:17:02] Speaker 01: And the reconfiguring, as described in the specification and the purpose of this invention, is that when there are limited resources available at each of the remotes, [00:17:12] Speaker 01: then the system can reconfigure where those resources are available. [00:17:17] Speaker 01: For instance, if people come into a cafeteria all at once, you have a whole bunch of people in the cafeteria, then you need more resources in the cafeteria relative to other spots in the system. [00:17:26] Speaker 01: Those resources are then reconfigured. [00:17:30] Speaker 01: And then you route and switch according to the reconfigured. [00:17:33] Speaker 01: And so that's always in the downward direction. [00:17:35] Speaker 03: One of the problems I'm having with your argument on third limitation is just the plain language of the claim. [00:17:42] Speaker 03: where it says routing and switching the packetized signals. [00:17:46] Speaker 03: And then I understand what you're saying, that maybe that switching and routing doesn't occur with respect to some of the signals. [00:17:58] Speaker 03: But your claim doesn't seem to allow for that. [00:18:02] Speaker 01: The claim specifically says the packetized signals are routed and switched according to the reconfiguration. [00:18:08] Speaker 01: And the reconfiguration is always done at the remote radio units. [00:18:12] Speaker 01: And those communications are always in the downlink direction. [00:18:18] Speaker 01: Imagine a system where there is a single DAU, which is what the claim allows for. [00:18:22] Speaker 01: A single DAU has one to many. [00:18:26] Speaker 01: And so when you're going from one to many, you need to route and switch. [00:18:30] Speaker 01: Routing is telling it where to go. [00:18:32] Speaker 01: Switching is choosing the path, how it gets there. [00:18:36] Speaker 01: But when you have many to one, [00:18:39] Speaker 01: It's inherent in that system that there's only routing. [00:18:41] Speaker 01: You say, go there. [00:18:43] Speaker 01: But there's no alternative path to get there. [00:18:46] Speaker 01: And the specification actually calls that out in the claim. [00:18:50] Speaker 01: And so reading according to the reconfiguring in light of the specification and what the specification specifically says about how communications move in the system, I think it's clear that the packetized signals that are routed and switched are according to [00:19:09] Speaker 01: reconfigure, which is always in the downward direction. [00:19:38] Speaker 04: We'll move on to the questions that were asked in your friend's presentation. [00:19:43] Speaker 00: I am eager to help. [00:19:44] Speaker 00: And may it please the court, my name is William Bullard, representing Appellee Combskill. [00:19:49] Speaker 00: The court should affirm, and the court can affirm based on any of the three claim constructions entered by the district court. [00:19:56] Speaker 00: And I want to start there by clarifying that point and point out that in our brief on page 5, we highlighted the three separate stipulations that were entered. [00:20:08] Speaker 00: by Dolly. [00:20:09] Speaker 00: Dolly separately stipulated that it, quote, cannot be infringement under this construction for each individual construction. [00:20:18] Speaker 00: And [00:20:20] Speaker 00: I'm going to take up my presentation starting with the routing and switching where he left off, and I want to highlight that also on page three of our brief, there is a separate factual point in the record which was undisputed. [00:20:32] Speaker 00: Delaware has a procedure where the undisputed facts are identified, and it is an undisputed fact that the Q's product, quote, does not perform the routing and switching step for any packetized uplink signal. [00:20:44] Speaker 00: So that is absolutely [00:20:46] Speaker 03: Did you say for any packetized uplink or downlink, or just uplink? [00:20:49] Speaker 00: Uplink signals, Your Honor. [00:20:51] Speaker 00: So that is absolutely an independent and sufficient reason to affirm. [00:20:56] Speaker 00: And so if I may, Your Honors, I'd like to start with that routing and switching step and follow up, Judge Schlon, your point about the plain language. [00:21:04] Speaker 00: So the court was resolving the dispute of what does the packetized signals refer to. [00:21:10] Speaker 00: And the court didn't do something unusual. [00:21:12] Speaker 00: It simply applied the ordinary rule that when you have a phrase like the packetized, that begs for antecedent basis. [00:21:19] Speaker 00: And the only possible antecedent basis is the packetizing step that does expressly have an and. [00:21:24] Speaker 00: It says packetizing. [00:21:26] Speaker 00: downlink and uplink signals. [00:21:28] Speaker 00: It doesn't just say downlink signals. [00:21:30] Speaker 04: But what about your friend points to the language at the end of that limitation, which says according to a result of the reconfiguring. [00:21:39] Speaker 04: He says it's downlink only. [00:21:41] Speaker 00: I don't agree with that. [00:21:42] Speaker 00: And I would identify, Your Honor, that they didn't even make that argument in the briefing. [00:21:47] Speaker 00: Their argument in the briefing about the other claim language [00:21:51] Speaker 00: focused on the word among. [00:21:53] Speaker 00: They never point it to the according to a result of a reconfiguring. [00:21:56] Speaker 00: And if we look at any of the other surrounding claim language, whether it's via the DAU, among the remote radio units, or according to the result of a reconfiguring, if you just take that plain language, [00:22:08] Speaker 00: via, among, and according. [00:22:10] Speaker 00: None of those state a one direction only requirement. [00:22:14] Speaker 00: They don't exclude a direction. [00:22:16] Speaker 00: That's not the plain language of the claim. [00:22:18] Speaker 03: Do you agree that there might be an embodiment in the specification where it's only the downlight signals that are routed and switched? [00:22:26] Speaker 00: No, I don't agree with that. [00:22:27] Speaker 00: The specification teaches we have this is a mirror system. [00:22:33] Speaker 00: It's a bidirectional system. [00:22:34] Speaker 00: And the whole point is just like I can talk to you, you can talk back to me. [00:22:38] Speaker 00: And there's going to be a reciprocal operation that goes back and forth. [00:22:41] Speaker 00: So we have figure one, that's the downlink. [00:22:44] Speaker 00: Figure two is the uplink. [00:22:45] Speaker 00: They're shown having the identical setup. [00:22:48] Speaker 00: It's simply reversed. [00:22:49] Speaker 00: And the specification teaches that you can understand the uplink similar to the downlink. [00:22:54] Speaker 00: So it's not teaching the uplink is different. [00:22:57] Speaker 00: It's saying it's similar. [00:22:58] Speaker 00: And the specification expressly uses the identical word routed when describing the downlink signals and the uplink signals. [00:23:07] Speaker 00: Does that answer your honor's question? [00:23:09] Speaker 03: Well, I guess so. [00:23:12] Speaker 00: Thank you. [00:23:14] Speaker 00: And so I do think the plain language is clear. [00:23:18] Speaker 00: And I would point out that, you know, we're here to identify, did the district report make an error? [00:23:22] Speaker 00: And my colleague says, well, the district report made an error. [00:23:25] Speaker 00: It did the anacene basis analysis wrong. [00:23:28] Speaker 00: But they never explained what the correct anacene basis analysis would have been. [00:23:32] Speaker 00: Again, their construction is just plain and ordinary meaning. [00:23:35] Speaker 00: There's no other option for the anacene basis analysis. [00:23:39] Speaker 03: Where's the packetized signals coming from? [00:23:41] Speaker 03: you know, routing and switching the packetized signals to emphasize the, so what is that coming out of the packetizing step, right? [00:23:49] Speaker 00: Correct. [00:23:50] Speaker 00: Okay. [00:23:52] Speaker 00: Correct. [00:23:53] Speaker 00: And if we stay with the plain language or the claim in this idea of what about the other plain language, although I think the packetized is very clear, I do think that there, my colleague on the other side says a misunderstanding, you know, this step is doing multiple things. [00:24:07] Speaker 00: It's saying what is routed and switched? [00:24:09] Speaker 00: That's the packetized signals. [00:24:11] Speaker 00: And then it's also explaining the how. [00:24:12] Speaker 00: How are the signals routed and switched? [00:24:14] Speaker 00: And that's this longer phrase about among the one or more remote units, via the digital access unit, according to the result of the reconfiguring. [00:24:22] Speaker 00: But that how is not redefining or narrowing what is being routed and switched. [00:24:27] Speaker 00: If they meant to do that, you would expect a claim that said something like routing and switching v-packetized signals, wherein the v-packetized signals are only downlink signals. [00:24:36] Speaker 03: That's not the claim. [00:24:37] Speaker 03: What about the via v, at least one digital access unit? [00:24:40] Speaker 00: Yes. [00:24:41] Speaker 03: How are the uplink signals, when they're packetized via the at least one, how is the routing and switching via the at least one digital access unit, how does that happen with respect to uplink signals? [00:24:58] Speaker 00: Absolutely. [00:24:59] Speaker 00: Because the uplink signals flow through that at least one digital access unit. [00:25:04] Speaker 00: The court's construction, which neither party is disputing or via, was through. [00:25:08] Speaker 00: So you can move through something in the forward direction. [00:25:11] Speaker 00: You can move through something in the reverse direction. [00:25:13] Speaker 03: It just means through. [00:25:14] Speaker 03: It doesn't mean that the digital access unit has some work that it does in the switching and routing. [00:25:21] Speaker 00: Correct. [00:25:22] Speaker 00: The court's construction was through. [00:25:23] Speaker 00: And I believe the court even used that race flow through. [00:25:26] Speaker 00: And we point out. [00:25:29] Speaker 00: in our briefing with annotations, how exactly you would route and switch through the DAU those uplink signals. [00:25:38] Speaker 00: And that's shown in our brief on page, starting on page 57. [00:25:58] Speaker 00: We do it in, we start with showing the downlink, and then we show it's the mirror operation for the uplink. [00:26:04] Speaker 00: So from pages 57 through pages 59. [00:26:07] Speaker 00: And I would note that they didn't come back and say, you know, Mr. Bullard, you annotated these figures wrong. [00:26:13] Speaker 00: There's something misleading here. [00:26:14] Speaker 00: This does correctly show how it flows through the DAU. [00:26:19] Speaker 00: I think the annotation on the top of 59 might be the clearest because there's so many colors going on here. [00:26:25] Speaker 00: And he did make a point that he was suggesting it would be impossible to route and switch uplink signals if you only had one DAU. [00:26:35] Speaker 00: That's not true. [00:26:36] Speaker 00: You see in the figure, which is the figure from the bat and figure two on the top of page 59, that [00:26:43] Speaker 00: You can have multiple uplink destinations that these signals need to go back to. [00:26:48] Speaker 00: They came from something when they were in the downlink, and now they need to go back to that something in the uplink. [00:26:54] Speaker 00: So you could have one base station, two base stations, three base stations. [00:26:58] Speaker 00: And you have to correctly route and switch them back to those destinations. [00:27:02] Speaker 04: Can I just ask you about a point of clarification, especially where you started, where you started by pointing us out to, pointing us to page five of your brief, where they [00:27:12] Speaker 04: where they stipulated that there's no infringement of these constructions. [00:27:18] Speaker 04: What is the link between that and what you pointed us to on page three? [00:27:22] Speaker 04: Where there you say, you also pointed out, that Dolly agreed that the accused product doesn't perform the routing and switching step. [00:27:31] Speaker 04: Is that the routing and switching step as construed by the court or just generally? [00:27:37] Speaker 00: Generally, Your Honor. [00:27:37] Speaker 00: That was just what's on page three. [00:27:41] Speaker 00: is a statement describing the factual operation of the accused product. [00:27:45] Speaker 04: So what had happened was... So how could there be any infringement? [00:27:48] Speaker 04: Why didn't the case begin and end in the air? [00:27:52] Speaker 00: Well, that's our position. [00:27:54] Speaker 00: So these became undisputed in connection with summary judgment briefing. [00:27:58] Speaker 00: And that was our argument. [00:28:00] Speaker 00: We were saying, look, these facts are undisputed. [00:28:02] Speaker 00: The proper construction, we're just following the plain language of the plain. [00:28:05] Speaker 00: We don't infringe. [00:28:06] Speaker 00: And the court said, I'd like to do some supplemental claim construction. [00:28:10] Speaker 00: And then when the court agreed with us, then Dolly entered the three stipulations on page five. [00:28:16] Speaker 04: So do you understand the position now before us that if voting and switching is construed as they think it should be construed as opposed to the way you think it should be construed, [00:28:27] Speaker 04: that they would agree that there's no infringement? [00:28:31] Speaker 00: No. [00:28:31] Speaker 00: If I'm understanding your question right, I do think my colleague is saying, if the court reversed, if this court reversed and said, I guess their construction's plain and ordinary meaning, so that's a problem. [00:28:42] Speaker 00: I don't understand what that would mean, because we are the plain and ordinary. [00:28:44] Speaker 04: Well, now they're clarifying about this result of the reconfiguring always being downloaded. [00:28:51] Speaker 00: And I don't think the claim says it's always downlink. [00:28:54] Speaker 00: But Your Honor, if the court said, I guess if the court said, we're entering a construction, the routing and switching step excludes routing and switching uplink signals. [00:29:05] Speaker 00: That's excluded. [00:29:07] Speaker 00: Then I would think there would need to be a remand on that. [00:29:12] Speaker 04: So you don't think this is what you pointed to on remands, that they [00:29:16] Speaker 04: they lost the case anyway because they said they didn't. [00:29:20] Speaker 00: Correct. [00:29:20] Speaker 04: I just want to be clear how far you would go in this situation. [00:29:24] Speaker 00: Yes. [00:29:25] Speaker 00: And so I do want to transition to the second issue. [00:29:29] Speaker 00: So I'm working backwards from routing and switching. [00:29:31] Speaker 00: Now I'd like to go to the packetizing step we've already touched on in the second issue, which was, again, unseen in basis, what does the baseband signals refer to here? [00:29:41] Speaker 00: And the court did the same approach where it said the ordinary rule is that the definite article V is going to refer to something earlier in the claim. [00:29:50] Speaker 00: And we only have one candidate here, which is the translating step. [00:29:53] Speaker 00: And I only have one point to highlight here, which is there's just an immediate hole in my colleague's argument. [00:30:04] Speaker 00: Their position, if you look at their construction, is plain and ordinary meaning and a seem basis is present, quote, by implication. [00:30:12] Speaker 00: But the whole is, by implication, from what? [00:30:15] Speaker 00: I mean, what is it in the claim, or even in the specification, that implies this antecedent basis? [00:30:21] Speaker 00: So their construction is like a half thought. [00:30:24] Speaker 00: They just say, by implication, but from what, again? [00:30:27] Speaker 00: And if we look at the claim, it's conceded by them, via their expert, that the only candidate in the claim is the translating step. [00:30:37] Speaker 00: And if we look at the specification, it's also conceded, via their expert, that, quote, all the baseband signals were produced by the prior translating step, which is the court's construction. [00:30:51] Speaker 03: Is there any dispute at all between the parties about whether the steps in this claim will perform sequentially? [00:30:56] Speaker 03: I haven't seen any dispute about that. [00:30:59] Speaker 03: I mean, there are, you know, I think we have some case law that says when you have a method claim, there's some sort of minor presumption that it's either sequential or not sequential. [00:31:10] Speaker 03: Is there anything about that in the dispute between the parties? [00:31:16] Speaker 00: I don't want to put words in my colleague's mouth, but I do think there are statements from their brief that would suggest they can't dispute that there is a logical sequence here in the method. [00:31:26] Speaker 00: And what I would point to, and we certainly point this out in the brief, on page 44 of our briefing, [00:31:37] Speaker 00: We note that they had two concessions. [00:31:39] Speaker 00: We say that Dolly concedes the packetizing step, quote, logically follows the translating step. [00:31:45] Speaker 00: So if it logically follows, I do think there has to be an order there. [00:31:50] Speaker 00: And they also told the [00:31:52] Speaker 00: There was another concession identified on that page that I'll just note. [00:31:56] Speaker 04: Before your time runs out, can we talk about translating? [00:31:59] Speaker 00: Yes. [00:31:59] Speaker 04: Because there's obviously at least a misunderstanding on my part. [00:32:02] Speaker 04: Viewing their position as being as appropriate meant that it wasn't mandatory. [00:32:08] Speaker 04: And now it seems like what they're telling us here is no, that's not their position. [00:32:12] Speaker 04: So I'm understanding it. [00:32:13] Speaker 04: So maybe you understood it better than I did. [00:32:15] Speaker 00: To be honest, Your Honor, I don't understand it better. [00:32:18] Speaker 00: I have been confused with this. [00:32:19] Speaker 00: This started because their expert opined that the step was, quote, optional. [00:32:23] Speaker 00: We include that, quote, in our brief. [00:32:25] Speaker 00: So that's where we started. [00:32:27] Speaker 00: And we pointed out that it's highly disfavored to construe a step to be optional. [00:32:32] Speaker 00: So then their lawyers shifted to, well, it's conditional. [00:32:35] Speaker 00: But the way they articulate their conditional position, they often refer to no translation be necessary. [00:32:42] Speaker 00: So on page 59 of. [00:32:45] Speaker 00: my colleague's opening brief, they give this whole litany. [00:32:49] Speaker 00: There's this paragraph at the top of the page that they say is what the plain meaning of the claim is. [00:32:55] Speaker 00: And I think that's a problem. [00:32:56] Speaker 00: I mean, they really have a problem articulating what does this claim mean. [00:33:00] Speaker 00: But in this paragraph, they have this line. [00:33:02] Speaker 00: They say, quote, but if the downlink signal is baseband, that's VQ's product, not RF, then no translation is necessary or appropriate before the signal is packetized. [00:33:13] Speaker 00: So they're admitting that their position is going to be, before you packetize, no translation. [00:33:19] Speaker 00: And that doesn't make any sense. [00:33:20] Speaker 00: Remember, they've conceded that the packetizing has to logically follow the translating, which is why you can't just point to a remote unit that does a translation that's untethered from packetizing, it's untethered from routing and switching, and just the remote unit just emits that signal, it's gone, and there's no further processing. [00:33:40] Speaker 03: What do you think of the interpretation that I proposed for as appropriate, which is that there's some translation that's occurring, but it's either as appropriate means [00:33:54] Speaker 03: either from RF to baseband or baseband from RF to RF. [00:33:59] Speaker 03: Because the claim is putting, it doesn't have a single translation step of translating from one to the other period. [00:34:08] Speaker 03: It says translating between these two possibilities as appropriate. [00:34:13] Speaker 03: In other words, translating occurs is just what type of translating, but translation always has to occur. [00:34:21] Speaker 00: I certainly agree translation always has to occur. [00:34:23] Speaker 00: And I do think the district court agreed in part with your honor. [00:34:27] Speaker 00: The court included a footnote. [00:34:29] Speaker 03: I'm not saying I'm buying that. [00:34:30] Speaker 03: I'm just staring out there to see what you think of it. [00:34:33] Speaker 00: Yes. [00:34:33] Speaker 00: Well, so I do think the most sort of, you know, this court has often observed that the construction that sort of stays true to the claim language and naturally aligns with the specification is the correct instruction. [00:34:45] Speaker 00: And I think the court's construction does that. [00:34:48] Speaker 00: You know, it stays true to the claim language because [00:34:50] Speaker 00: When you look at the phrase as appropriate, the only evidence the court heard was that the ordinary meaning of as relates to the amount. [00:34:58] Speaker 00: And if you look at the ordinary meaning of baseband, baseband relates to an amount. [00:35:01] Speaker 00: It's zero, zero frequency. [00:35:03] Speaker 00: And RF, it's undisputed as a range. [00:35:05] Speaker 03: So I think there's nothing in the specification that talks about the amount of translation required that I can find. [00:35:13] Speaker 03: I don't see anything in there where that's an aspect of the invention or even hinted at. [00:35:19] Speaker 03: Well, first it has to decide how much translation is required. [00:35:23] Speaker 03: There's nothing like that. [00:35:24] Speaker 03: So it seems kind of bizarre to be reading that into the plan. [00:35:29] Speaker 00: Well, so two points, Your Honor. [00:35:31] Speaker 00: One, I do think there is a comment in the specification where it talks about you need to, when you have an, if we're looking at the uplink signal now, and remember the uplink and the downlink, it's the same, it's just reversed. [00:35:42] Speaker 00: You have to go back to the quote, appropriate frequency band. [00:35:46] Speaker 00: And it's agreed that the frequency bands are arranged. [00:35:49] Speaker 00: So I think that is a little sport. [00:35:51] Speaker 00: Now, I do take your honor's point. [00:35:53] Speaker 00: And I think the real reason is translation, it sounds very technical when we're talking about today. [00:35:58] Speaker 00: To a person with skill in the art, this is regular course of business. [00:36:02] Speaker 00: They know what translation is. [00:36:04] Speaker 00: They know how to do translation. [00:36:06] Speaker 00: And they know that the amount is going to vary. [00:36:08] Speaker 00: It's just math. [00:36:09] Speaker 00: It's like turning a radio dial between high radio [00:36:14] Speaker 00: station down to a lower radio station. [00:36:16] Speaker 03: Why did the district court feel the need to interpret as appropriate? [00:36:19] Speaker 03: I understood the district court was interpreting the term as appropriate just because in response to the argument being made by Dolly that as appropriate means as necessary or conditional. [00:36:33] Speaker 03: I think that's the language they were relying on to say that it doesn't occur every time or [00:36:39] Speaker 03: that it's conditional? [00:36:40] Speaker 03: Yes. [00:36:41] Speaker 03: So is that why you think the district board had to say give a scribe meaning to as appropriate to say whatever it means it doesn't mean what Dolly's saying it doesn't means conditional? [00:36:51] Speaker 00: Yeah, so I think the district court was just trying to do a complete job. [00:36:55] Speaker 00: And I think it would have been sufficient. [00:36:56] Speaker 00: The court could have been a little lazier and could have just stopped at rejecting their position that it was a conditional limitation. [00:37:02] Speaker 00: I think that would be sufficient, would have been sufficient. [00:37:05] Speaker 00: But I think the court wanted to do a complete job. [00:37:09] Speaker 00: And I do want to be clear, though, Judge, that on this question of why couldn't it be from one type to the other, [00:37:16] Speaker 00: The court did include a footnote. [00:37:19] Speaker 00: This is footnote one right off of her own construction, where she says she's not excluding that other type of thing. [00:37:25] Speaker 00: Do you have a page? [00:37:26] Speaker 00: Yes, it's appendix three. [00:37:27] Speaker 00: I'm sorry, Your Honor. [00:37:28] Speaker 03: That's right. [00:37:34] Speaker 00: So in footnote one, the court has explained she's not excluding translation from baseband signal to an RF signal, which I think is, Judge Stoll, what you are getting at. [00:37:44] Speaker 00: But what the court is recognizing is, [00:37:47] Speaker 00: There's this narrowing language in the packetizing step that it has to be packetizing the baseband signal. [00:37:52] Speaker 00: So that's what tells us that we have to have some particular baseband signals. [00:37:57] Speaker 00: And there's this logical sequence here. [00:37:59] Speaker 00: That was really the heart of the dispute, which the court recognized. [00:38:02] Speaker 00: Quote, the fundamental dispute is whether the baseband signal that gets packetized was previously translated. [00:38:10] Speaker 00: Does that answer your honor's question? [00:38:13] Speaker 00: Sure. [00:38:13] Speaker 00: And I don't want to. [00:38:16] Speaker 00: I don't think we need to pile on. [00:38:17] Speaker 00: I mean, there's already three independent reasons to affirm. [00:38:21] Speaker 00: But I would note that if we keep going down this rabbit hole of what does as appropriate mean, we pointed out, let's just accept their argument. [00:38:28] Speaker 00: Let's just say it's conditional. [00:38:30] Speaker 00: That runs into this court's Hyterra case, which we cited on page 59 of our brief. [00:38:37] Speaker 00: And my colleague didn't specifically respond to this Hyterra case. [00:38:41] Speaker 00: and so the high terror case was interpreting this earlier Lincoln case and what I want to just identify is that this high terror case did involve a method claim where there was an expressly conditional limitation and [00:38:57] Speaker 00: I wanted to be precise, so I printed out what it said. [00:39:01] Speaker 00: The claim there said, quote, if the time slot is the current desired time slot, selecting a synchronization pattern selected from a first set, otherwise selecting a synchronization pattern selected from a second set. [00:39:15] Speaker 00: So there were two options for this selecting step. [00:39:17] Speaker 00: And this court held that to meet this claim, the system still had to be at least configured to perform the selecting step in response to each of those conditions. [00:39:27] Speaker 00: So you had to be able to do the if, you had to be able to do the otherwise, even though if in any one particular performance you didn't do both. [00:39:36] Speaker 00: If we apply that rule here, so we give them what they want, which I don't think they're entitled to, but that goes back to the undisputed facts that I identified on page three at the start. [00:39:47] Speaker 00: It's undisputed that the whole system, quote, [00:39:50] Speaker 00: cannot translate a downlink RF signal to baseband. [00:39:54] Speaker 00: So even in their conditional construction, that's one of the conditions they say. [00:39:58] Speaker 00: They say, if you get a downlink signal that's RF, you translate it to baseband. [00:40:03] Speaker 00: But it's undisputed we can't do that. [00:40:05] Speaker 00: So it wouldn't meet this high terror case law. [00:40:08] Speaker 00: My final point is that this Hyteric case law, it does, I think, provide an illuminating contrast that shows we're going way out of bounds here with this conditional idea. [00:40:18] Speaker 00: The limitation was conditional there because the plain language number one expressly used the conditional language if. [00:40:27] Speaker 00: Number two, expressly defined a condition, quote, if the time slot is the current desired time slot. [00:40:33] Speaker 00: And number three, expressly use the conditional format where the method actually split in two different steps, do one thing or the other thing. [00:40:41] Speaker 00: We don't have any of those facts here. [00:40:43] Speaker 04: OK. [00:40:43] Speaker 04: We'll wait behind that. [00:40:44] Speaker 00: Thank you, Your Honor. [00:40:54] Speaker 01: Yes, there's a lot to unpack there and and I fully appreciate your confusion because as I listen to it I can understand where a lot of that confusion comes in Starting with the translating effects I want to point out two things one your honor mentioned that I had mentioned that the Specification talks about routing and switching when talking about the downlink and only routing when talking about the upload [00:41:18] Speaker 01: That routing and switching in the downlink can be found at column 8, lines 30 through 33. [00:41:24] Speaker 01: And when talking about the uplink, it just calls out routing. [00:41:30] Speaker 01: That can be found at column 9, 27 to 30. [00:41:36] Speaker 01: And the overall theme I just heard is that [00:41:42] Speaker 01: each one of these cascades from the previous. [00:41:45] Speaker 01: So starting at the bottom, saying the packetized signals must be routed and switched in both directions. [00:41:52] Speaker 01: That's really what this comes down to, because what the plaintiffs are trying to create is an argument that requires translating in both directions, packetizing in both directions, and routing and switching in both directions. [00:42:08] Speaker 01: But the claim as written and the specification as presented made clear that looking at each limitation, there are two pieces of information that inform a posita of what needs to occur at each limitation. [00:42:21] Speaker 01: There are two pieces of hardware. [00:42:23] Speaker 01: There's a DAU and there are RRUs. [00:42:25] Speaker 01: There are two directions. [00:42:26] Speaker 01: There's uplink and there's downlink. [00:42:28] Speaker 01: And there's two types of signals. [00:42:30] Speaker 01: There are baseband and there are [00:42:32] Speaker 01: RF cities and what What these the cascading effect the comscope has brought into this? [00:42:41] Speaker 01: They're trying to create a system in which you must translate at both the DAU and the RRUs You must packetize at both the DAUs and the RRUs and you must route and switch at both the DAUs and the RRUs [00:42:55] Speaker 01: But a plain reading of the claim and the teaching of the specification don't actually require those things. [00:43:01] Speaker 01: Those are only created when you stack these things on top of each other. [00:43:06] Speaker 01: And it starts with the translating step creating. [00:43:12] Speaker 01: the baseband signals that are going to be packetized. [00:43:16] Speaker 01: But if read much more according to the plain language of the claim, where you get the uplink and downlink signals, by the way, there's no antecedent basis called out for that. [00:43:26] Speaker 01: And that's never been raised. [00:43:27] Speaker 01: Why? [00:43:27] Speaker 01: Because it's inherent that there are uplink and downlink signals in the system. [00:43:32] Speaker 01: But in the translating step where you have the uplink and downlink signals that are translated as appropriate between RF and baseband, that is where baseband signals are introduced in this claim. [00:43:43] Speaker 01: The antecedent basis for the packetizing the uplink and downlink baseband signals has antecedent basis in the step just before it without the requiring that the translation happens at both of these spots. [00:43:57] Speaker 01: So translating needs to occur, right? [00:44:01] Speaker 01: don't think it's conditional in the sense that it doesn't need to occur. [00:44:04] Speaker 01: But it doesn't need to occur in both places, in both directions, at all times. [00:44:09] Speaker 01: The claims just don't require it. [00:44:14] Speaker 01: There was also any, I'm sure there are questions on that. [00:44:19] Speaker 01: Or should I move on? [00:44:22] Speaker 01: Keep going. [00:44:22] Speaker 01: OK. [00:44:25] Speaker 01: So the via, at least one. [00:44:27] Speaker 01: and saying it can just pass on through, but it has to be routed and switched. [00:44:32] Speaker 01: All the things that my colleague pointed to as being routed and switched in the uplink direction aren't part of the system. [00:44:40] Speaker 01: They're not. [00:44:40] Speaker 03: Can I ask you, did you dispute, he had said, that the district court held, and I do recall this happened, the district court held that via the at least one digital access unit means through. [00:44:53] Speaker 03: And there's no dispute of that, right? [00:44:55] Speaker 01: There is no dispute that through is. [00:44:57] Speaker 04: And what was your proposed construction on this? [00:45:00] Speaker 01: A via. [00:45:01] Speaker 04: No, of the result of reconfiguring, did that come up? [00:45:03] Speaker 04: What was your first construction on this routing and switching? [00:45:07] Speaker 01: That given the plain language of that claim where the routing and switching occurs according to the result of the reconfiguration means it must be in the downlink direction. [00:45:19] Speaker 01: Because the reconfiguring is literally the crux of this patent, which is you reconfigure remotes, [00:45:26] Speaker 01: Only remotes you never once and it's never discussed that you reconfigured EA is so you reconfigure the remotes and then you route and switch resources to the remotes as needed The other thing as appropriate has come up many many times the word appropriate is found in the specification precisely eight times and [00:45:55] Speaker 01: And seven of those eight times, it stands alone, and it is used in conjunction with appropriate RF signal. [00:46:02] Speaker 01: And that is, when read in context, that is eliciting a choice among options. [00:46:10] Speaker 01: RF signals, the RF signals that are used in these are distinct things. [00:46:15] Speaker 01: They don't, they don't interoperate, they don't communicate. [00:46:18] Speaker 01: There is a choice, and you make the choice, and it's, [00:46:22] Speaker 01: it informs a decision amongst choices. [00:46:25] Speaker 01: The single time as appropriate is used in as appropriate, as it column five, lines one and two, it again is saying you route, an option is that you can route as appropriate amongst WiMAX, Wi-Fi, VOIP. [00:46:43] Speaker 01: Again, it is using as appropriate to say you have a decision amongst choices. [00:46:47] Speaker 01: It is not talking about an amount or a necessary amount. [00:46:54] Speaker 03: There, when it says as appropriate, it's saying one of those three, though, right? [00:47:00] Speaker 01: Yeah, it's an exemplar. [00:47:02] Speaker 01: It's just an example. [00:47:02] Speaker 03: It's going to do one of those things. [00:47:04] Speaker 03: It says reroute the users to VoIP, Wi-Fi, or WiMAX as appropriate. [00:47:13] Speaker 03: There, as appropriate is modifying whether it's going to be VoIP, Wi-Fi, or WiMAX, right? [00:47:19] Speaker 03: Sure. [00:47:19] Speaker 01: And here it is distinguishing between baseband and RF. [00:47:24] Speaker 03: The translation, whether you're going to go RF to baseband or be RF. [00:47:27] Speaker 01: Correct. [00:47:27] Speaker 01: There's nothing in that claim that says that it has to be at the DAU or it has to be at the RRU. [00:47:33] Speaker 01: So as long as it happens, and we know it always happens at the RRUs, that claim should be met. [00:47:42] Speaker 01: Thank you. [00:47:44] Speaker 04: Thank you.