[00:00:00] Speaker 02:
All right, our next case for argument is 22-2101, Nikon Telegraph and Telephone Corporation, versus Director Vidal.

[00:00:08] Speaker 02:
Mr. Saunders, please proceed.

[00:00:10] Speaker 05:
Thank you, Your Honor.

[00:00:12] Speaker 05:
There are two simple issues on appeal in this case, despite the complicated subject matter.

[00:00:19] Speaker 05:
One is a straightforward issue of client construction.

[00:00:21] Speaker 05:
Due disclaimers, the specification 720 patent requires excluding equalizers from the construction of interference cancelor.

[00:00:29] Speaker 02:
So it's really, I'm going to stop you for a second.

[00:00:33] Speaker 02:
But the one thing that has really baffled me and made it hard for me in this case is your entire brief is disclaimer, disclaimer, disclaimer.

[00:00:41] Speaker 02:
I get it.

[00:00:42] Speaker 02:
Do you realize you didn't use that word before the board?

[00:00:44] Speaker 02:
The word disclaimer doesn't appear in any of your briefing before the board.

[00:00:49] Speaker 02:
Now, if you do it one page, state that because you said equalizers are not part of the present invention, they should be excluded from the claim of construction.

[00:00:58] Speaker 02:
And you cite the Verizon case, which happens to be a disclaimer case.

[00:01:01] Speaker 02:
But you literally didn't use the word disclaimer in your brief anywhere.

[00:01:05] Speaker 02:
You used it like 1,000 times here.

[00:01:08] Speaker 02:
And one of your complaints was that the board didn't take seriously and address your argument about disclaimer.

[00:01:14] Speaker 02:
I find that criticism hollow because you didn't use the word in your briefing to the board.

[00:01:21] Speaker 02:
So I don't know what to do with that.

[00:01:22] Speaker 02:
I mean, I'm not going to say you waived the issue entirely because you stated that

[00:01:28] Speaker 02:
that sentence should impact and limit your claim construction.

[00:01:31] Speaker 02:
And you cited a disclaimer case for it.

[00:01:33] Speaker 02:
But it was a little hard for me.

[00:01:35] Speaker 02:
This case I found to be difficult.

[00:01:38] Speaker 02:
And I understand, to some extent, why the board struggled with it.

[00:01:43] Speaker 05:
I appreciate that, Your Honor.

[00:01:44] Speaker 05:
As you pointed out, we did cite the relevant case law disclaimer.

[00:01:47] Speaker 05:
We didn't use those magic words.

[00:01:49] Speaker 05:
Obviously, a lot of the record below focused on arguments that we're not pursuing on appeal, which I think is a lot of the confusion

[00:01:56] Speaker 05:
probably, and a lot of why the board ultimately spent much more of their reasoning.

[00:02:00] Speaker 03:
What was that?

[00:02:04] Speaker 05:
Well, the primary issue is under the, quote, unquote, district court's construction, which is also the construction that was adopted by the board and the preliminary or the decision institution and the board ultimately saw its correct instruction for not raising the issue of invalidity under that construction.

[00:02:23] Speaker 05:
the construction that the board adopted.

[00:02:25] Speaker 03:
Aren't you arguing that there should be a negative limitation in the claim?

[00:02:28] Speaker 05:
Correct.

[00:02:29] Speaker 03:
That is the construction.

[00:02:32] Speaker 03:
There should be a negative limitation which in essence says interference counselor cannot be an equalizer.

[00:02:43] Speaker 05:
That's correct.

[00:02:44] Speaker 05:
So before the board we argued both

[00:02:47] Speaker 05:
you know, the claim construction argument, but then even if we lost on claim construction, we'd still win as a matter of fact.

[00:02:53] Speaker 02:
And that's the part, the matter of fact, if we, you know, if the- Let's assume for one second that I agree with you that claim, column four, line 64 creates some sort of disclaimer.

[00:03:07] Speaker 02:
It has an impact on claim construction.

[00:03:10] Speaker 02:
But what it says is, in the present invention,

[00:03:13] Speaker 02:
an OFDM method is used to realize a signal communication system for an MIMO channel without using an equalizer.

[00:03:23] Speaker 02:
So what that says is, in the present invention, our whole system doesn't use an equalizer.

[00:03:30] Speaker 02:
You're asking me for a disclaimer that says this one component of our system, the cancelor,

[00:03:38] Speaker 02:
shouldn't have an equalizer in it.

[00:03:39] Speaker 02:
That's not what that says.

[00:03:41] Speaker 02:
What that says is my whole system does that.

[00:03:43] Speaker 02:
And it makes sense that he said the whole system does that in column four, because the entire prior arc was about a series of antennas and a series of equalizers, which reduced the delay, the ISI delay, before it got inputted into the canceler.

[00:03:56] Speaker 02:
And so the equalizer was a separate component.

[00:03:59] Speaker 02:
And I have a really dumb question.

[00:04:01] Speaker 02:
Are they both hardware?

[00:04:02] Speaker 02:
Is the equalizer a thing, a piece of hardware?

[00:04:06] Speaker 05:
The answer is sometimes.

[00:04:08] Speaker 05:
I think that's sometimes.

[00:04:09] Speaker 02:
Because I was trying to think, is it like a low bandpass filter?

[00:04:11] Speaker 02:
You know what I mean?

[00:04:12] Speaker 02:
I was trying to understand, is this hardware or software?

[00:04:17] Speaker 02:
But am I right to understand that prior R was antenna, equalizer, canceler.

[00:04:23] Speaker 02:
And the equalizer was reducing only one of the forms of noise, the ISI delay.

[00:04:28] Speaker 02:
It wasn't touching stabilization and other noise.

[00:04:32] Speaker 02:
But it was reducing that before it went into the canceler.

[00:04:34] Speaker 02:
Does that sound right?

[00:04:35] Speaker 05:
That's correct.

[00:04:36] Speaker 05:
I mean, obviously there's also that iterative process with how the output is then put back in.

[00:04:42] Speaker 02:
Yes, and there's lots of antennas and, you know, I mean, this is like a, right?

[00:04:45] Speaker 02:
There's multiple antennas.

[00:04:46] Speaker 05:
Yes, that by no means multiple antennas.

[00:04:48] Speaker 02:
Yeah, yeah, okay.

[00:04:49] Speaker 02:
So, but, but, so you have a, you've got the prior art, and the prior art has this equalizer that is a separate thing that precedes the input signal going into the canceler.

[00:04:58] Speaker 02:
And so you say, no, my system uses no equalizers.

[00:05:04] Speaker 02:
So,

[00:05:05] Speaker 02:
I guess, is the disclaimer, my system uses no equalizers as components unto themselves that feed into the canceler?

[00:05:13] Speaker 02:
Or is my disclaimer, my system uses no equalizers anywhere, anyhow, no matter what?

[00:05:20] Speaker 05:
So I guess this ties to two of the issues that the PTO made on appeal.

[00:05:24] Speaker 05:
One is kind of the textual hook issue.

[00:05:26] Speaker 02:
Don't worry about the issues.

[00:05:27] Speaker 02:
Just answer my question.

[00:05:28] Speaker 05:
Well, I'm trying to frame the answer in the context of the arguments that we made.

[00:05:34] Speaker 05:
And you're right, in column four.

[00:05:37] Speaker 02:
I gotta get it right whether you made the right argument or not.

[00:05:39] Speaker 05:
I understand.

[00:05:40] Speaker 05:
So I would say the law of textual hook says that we're gonna apply this, we're gonna apply a statement about a system, we're gonna find a claim, we're gonna apply that claim construction even if it's not.

[00:05:51] Speaker 02:
I don't wanna know about textual hook.

[00:05:53] Speaker 02:
What I wanna know about is what is the scope of your disclaimer?

[00:05:57] Speaker 02:
Not wearing the claim, you're gonna attach it.

[00:06:00] Speaker 02:
But what is the scope that I should attribute to this language?

[00:06:04] Speaker 02:
This language is in fact a disclaimer.

[00:06:07] Speaker 02:
I agree with you on that point.

[00:06:08] Speaker 02:
I just don't know what it's a disclaimer of precisely.

[00:06:11] Speaker 02:
And that's what I'm trying to understand for you because I'm not sure.

[00:06:14] Speaker 02:
For example, suppose somebody else has a system like the prior art where there's an equalizer and then a canceler.

[00:06:28] Speaker 02:
If I just adopt your construction that the canceler can't have an equalizer,

[00:06:33] Speaker 02:
Are you going to try to assert it against the person who's got an equalizer in advance of the counselor?

[00:06:37] Speaker 02:
They're going to say, oh, I don't have an equalizer inside my counselor.

[00:06:40] Speaker 02:
Do you understand the problem I'm having?

[00:06:42] Speaker 05:
I understand.

[00:06:43] Speaker 05:
Yes, I understand.

[00:06:44] Speaker 05:
We do think the appropriate construction is reflected in the term, interference counselor.

[00:06:49] Speaker 03:
No.

[00:06:50] Speaker 03:
Your course will recognize and equalize it.

[00:06:55] Speaker 03:
If you look at column 56 in your path,

[00:06:59] Speaker 03:
Your patent says that in this circumstance, the noise amplitude is equalized.

[00:07:08] Speaker 03:
So there's some equalization going on in your patent.

[00:07:11] Speaker 03:
And as a matter of fact, that kind of equalizing at column 56 is the same kind of equalizing that exists in Raleigh, which is what you contend made Raleigh into an equalizer.

[00:07:28] Speaker 03:
If you look at JA 1893, you'll see the language that you cited to try to prove that Raleigh is an equalizer, not an interference cancel.

[00:07:41] Speaker 03:
And that language says, in Raleigh, it equalizes the strength of each resulting sub-channel, which is the same as equalizing the amplitude.

[00:07:57] Speaker 05:
Yes, Your Honor.

[00:07:57] Speaker 03:
So our position on appeal is that... You know what I'm trying to get at is that your claim of what it is that makes Rowling an equalizer is something that your patent recognizes is going on inside your own head.

[00:08:15] Speaker 05:
Understand I correct.

[00:08:16] Speaker 05:
I understand the point you're gonna make correct.

[00:08:18] Speaker 05:
Yes or no, I don't believe so and our position is that what's the difference between?

[00:08:22] Speaker 03:
noise amplitude Amplitude is equalized in your pattern.

[00:08:27] Speaker 03:
This is column 56 our position on appeal between that and equalizing the strength of resulting sub-channel and

[00:08:37] Speaker 05:
our position.

[00:08:39] Speaker 05:
The answer is no I don't have that I believe that's appropriate matter subject of experts and our position is that the board never made a factual finding

[00:08:51] Speaker 05:
that if our construction was adopted, the board never made a factual finding that said, Raleigh's ZF solution is not an equalizer.

[00:08:59] Speaker 05:
That's not a factual finding that appears in there.

[00:09:02] Speaker 05:
And in fact, they called it a ZF equalizer.

[00:09:05] Speaker 03:
Well, they made a finding on AJ 17 that even if they determined that the proper construction precludes equalization, the particular citation to Raleigh doesn't honor an equalization.

[00:09:19] Speaker 05:
Well, we addressed that point, Your Honor, and that's the issue of.

[00:09:23] Speaker 03:
What I was trying to get at is what the chief and presiding judge was asking was, well, what kind of equalization was the patent saying we don't do?

[00:09:34] Speaker 03:
And we know from the prior art what kind of equalization that was going.

[00:09:37] Speaker 03:
And your patent says, we don't need to do that.

[00:09:40] Speaker 03:
And I think what the presiding judge was asking was, does that actually mean that there is a surrender of scope for some other

[00:09:47] Speaker 03:
possible kind of equalization, which is not knowing what was so computer-difficult driven.

[00:09:54] Speaker 05:
I understand.

[00:09:54] Speaker 03:
There is nothing computer-driven difficultly about equalizing the strength of the subject.

[00:09:59] Speaker 05:
The particular position we took as the scope of equalizers on the appendix of 310, which we signed our reply group of 23.

[00:10:08] Speaker 05:
So that's the position that we took regarding what the equalizer means in this claim term, as construed by our construction.

[00:10:22] Speaker 05:
Our position is that it's not a question that has to be reached because the board didn't make that finding that it's not an equalizer.

[00:10:35] Speaker 03:
Get rid of Raleigh is what probably anticipates your claim, because Raleigh seems to have the matrix and has all the makings of an interference cancel.

[00:10:45] Speaker 05:
We're trying to distinguish the Raleigh reference.

[00:10:47] Speaker 05:
We've narrowed the number of ways that we're distinguishing it from below.

[00:10:50] Speaker 03:
Well, first would be to claim that it is nothing but an equalizer.

[00:10:55] Speaker 03:
And that argument you really can't make because of the fact findings on the board that it actually is an interference cancel with the matrix system missing.

[00:11:04] Speaker 03:
So in my mind, you lose the argument that Raleigh is whole lock, stock, and barrel an equalizer, like prior art equalizer.

[00:11:13] Speaker 03:
So then the question is, does Raleigh cease to be a prior art reverence because it has some equalization going on in it somewhere?

[00:11:21] Speaker 05:
Yes, that's the position that we took in the interview.

[00:11:24] Speaker 03:
So then the question turns back to the presiding judges.

[00:11:27] Speaker 03:
I think the great first question, which is, well, if there is some form of surrender of scope,

[00:11:33] Speaker 03:
If there's not a surrender scope, you sit down and you move on.

[00:11:36] Speaker 03:
But if there is some surrender scope, what was it?

[00:11:40] Speaker 03:
If, for example, Raleigh was nothing but a priori equalizer, then in case you win, because clearly that would be excluded.

[00:11:48] Speaker 03:
But you have an equalizing function in Raleigh, which I'm pointing to, J.A.

[00:11:54] Speaker 03:
1893.

[00:11:56] Speaker 03:
That's the only reference in Raleigh at all.

[00:11:59] Speaker 03:
that you cite to to say that it's an equalizer, correct?

[00:12:02] Speaker 05:
Well, we also cite to the expert's characterization as the expertise.

[00:12:05] Speaker 03:
No, but I'm talking about impact.

[00:12:06] Speaker 05:
That's correct.

[00:12:07] Speaker 03:
That's it.

[00:12:08] Speaker 03:
One sentence equalizes the strengths of each sub-channel.

[00:12:12] Speaker 03:
And you're saying that's enough of an equalizer to neuter a reference which clearly contains your channel or the matrix system.

[00:12:24] Speaker 03:
And you don't immediately contest the board's court fact-finding

[00:12:28] Speaker 03:
that Raleigh teaches that interference cancels.

[00:12:32] Speaker 03:
Right?

[00:12:32] Speaker 05:
Well, it doesn't teach the portion of the interference.

[00:12:35] Speaker 05:
So our position is that as our construction was proposed, it had two components.

[00:12:41] Speaker 05:
The construction had a positive limitation, which is about reducing interference, and had a negative limitation, which was excluding equalizers.

[00:12:48] Speaker 05:
We're not challenging that positive aspect of the limitation.

[00:12:51] Speaker 03:
That's what I was trying to say.

[00:12:52] Speaker 03:
So it's the only question why Raleigh would fall out, as a prior reference.

[00:12:56] Speaker 03:
is that it refers to equalizing the strength of each rezoning sub-channel.

[00:13:01] Speaker 05:
Well, not just the fact that Raleigh refers to it, but the fact that both experts below agree that this ZF solution was an equalizer.

[00:13:08] Speaker 03:
Well, nobody's denying that.

[00:13:11] Speaker 03:
Raleigh equalizes the strength of each rezoning sub-channel, and that's an equalizing function.

[00:13:15] Speaker 03:
No one disputes that.

[00:13:17] Speaker 03:
But your own patent recognizes that your own patent does the same thing.

[00:13:23] Speaker 03:
I'll have to say your honor that.

[00:13:26] Speaker 03:
So you've got a little dilemma from my perspective because how can you say something in Raleigh disqualifies it as a prior on reverence went as in connection with

[00:13:37] Speaker 03:
I need a parent's counsel when you say, we did the same thing.

[00:13:40] Speaker 04:
If I could add to that, my understanding is your position on appeals, you can only win if you get the full scope of the full disclaimer that you're arguing for.

[00:13:50] Speaker 04:
Is that right?

[00:13:51] Speaker 05:
Well, I would say if there's any of these, if the court adopts any other construction, then the appropriate act would be to vacate or amend under Chenner.

[00:13:59] Speaker 04:
At a minimum, we can't affirm if we adopt any construction other than yours.

[00:14:05] Speaker 04:
If we find some disclaimer not as broad as the one you've argued for, we can't affirm.

[00:14:11] Speaker 05:
Yes, you can't affirm it would be appropriate to vacate in remand.

[00:14:15] Speaker 04:
We can't reverse for you, right?

[00:14:17] Speaker 05:
Similarly, you could not reverse, yes.

[00:14:18] Speaker 05:
You would have to vacate in remand if there's a third construction.

[00:14:20] Speaker 02:
Can you tell me, what do we do with this?

[00:14:22] Speaker 02:
I mean, my problem is I see a disclaimer in column four.

[00:14:26] Speaker 02:
I don't know how you could include otherwise.

[00:14:27] Speaker 02:
The president mentioned this method doesn't include equalizers.

[00:14:33] Speaker 02:
And it does seem to me that the board

[00:14:35] Speaker 02:
didn't address that, really.

[00:14:37] Speaker 02:
So I don't know that you prevail.

[00:14:40] Speaker 02:
In fact, I'm leaning against you, to be honest, because if I were deciding this using the disclaimer, because I think you're trying to force the disclaimer into only one component of the method.

[00:14:52] Speaker 02:
And I think that would not at all be consistent with what you were trying to actually disclaim, which were equalizers that preceded the interference canceler.

[00:15:02] Speaker 02:
and the way you're trying to put, no, you just can't have an equalizer inside the interference capacitor, I actually think you're trying to recapture some of what you've disclaimed.

[00:15:11] Speaker 02:
But I think the disclaimer might be broad enough that it also, when it says no equalizers, it means no equalizers, full stop, anywhere, no matter where in the system.

[00:15:19] Speaker 02:
So it might include no equalizers inside the interference cancelor.

[00:15:23] Speaker 02:
I'm not sure, you know, but I do think that

[00:15:27] Speaker 02:
your articulation of what you think the scope of the disclaimer is, is wrong.

[00:15:32] Speaker 02:
But I do think there's a disclaimer.

[00:15:34] Speaker 02:
So assuming that's where I come out, what do I do with this case?

[00:15:37] Speaker 05:
I think the appropriate answer would be to vacate and remand.

[00:15:41] Speaker 05:
If we're not adopting entities construction as is, where it's in the context of an interference counselor, and we're not adopting the board's conclusion that there is no disclaimer, then the appropriate response is to vacate and remand.

[00:15:53] Speaker 04:
We don't have a petitioner here any longer, is my understanding.

[00:15:57] Speaker 04:
So what happens on Brunei?

[00:15:59] Speaker 05:
Well, I guess the board has some options.

[00:16:02] Speaker 05:
It's probably going to ask for additional briefing.

[00:16:04] Speaker 02:
The board can choose to proceed.

[00:16:06] Speaker 02:
The board can choose to have it proceed.

[00:16:07] Speaker 02:
The absence of the petitioner does not end the proceeding, correct?

[00:16:09] Speaker 05:
That's correct.

[00:16:10] Speaker 05:
I mean, unless there's some motion to terminate the proceeding, that's correct.

[00:16:13] Speaker 04:
Just one more.

[00:16:14] Speaker 04:
Column 4 uses the president and bench in three prior times before we get to the line we focused on.

[00:16:20] Speaker 04:
Is it your contention that all of that also has the effect of disclaimer, meaning I don't infringe unless I do everything in column 4?

[00:16:29] Speaker 05:
That's not an issue that we've made a contention on, and I haven't reviewed each of those.

[00:16:35] Speaker 04:
But logically, would you agree that has to be your position if the basis of the disclaimer is the present invention is?

[00:16:43] Speaker 05:
Well, just one clarification.

[00:16:44] Speaker 05:
That's not the sole basis for our conclusion in support of our construction.

[00:16:48] Speaker 05:
We also point out, first of all, there's the criticism of equalizers, and so criticizing and distinguishing prior art is another basis for the construction.

[00:16:56] Speaker 05:
We also point out that there's that difference between looking at the figures before and after.

[00:17:01] Speaker 05:
If we look before in the prior art figure, we have both equalizers and interference counselors.

[00:17:06] Speaker 05:
If we look in the embodiments, the invention figures, we only have interference counselors.

[00:17:09] Speaker 05:
So taking all of those items together, we think makes it clear that the board erred.

[00:17:14] Speaker 05:
Certainly, the present invention invokes the court's case law on that issue.

[00:17:17] Speaker 04:
And none of the claims use the term equalizer or equalizing or anything like that, correct?

[00:17:23] Speaker 05:
I don't believe so.

[00:17:25] Speaker 04:
Would you at least agree it's kind of an odd way to claim what you contend is the key innovation of this patent to do it through the definition of interference cancelor, which appears nowhere in the packet?

[00:17:42] Speaker 05:
Well, I obviously appreciate it.

[00:17:43] Speaker 05:
It certainly looks like it's the key, but we're just focusing.

[00:17:46] Speaker 05:
We've narrowed our arguments down on appeals, so we're focusing on a clear error by the board, rather than all potential arguments, what eventually makes it novel.

[00:17:55] Speaker 03:
How do we know that Rowling teaches equalizer?

[00:18:01] Speaker 05:
Our position is that the board did not make a factual finding that Raleigh is not an equalizer.

[00:18:07] Speaker 03:
Is it possible that on remand it will be determined that Raleigh doesn't teach an equalizer at all?

[00:18:13] Speaker 03:
as the word equalizer is used in your patent?

[00:18:16] Speaker 05:
I think that would be hard in light of the factual record.

[00:18:19] Speaker 05:
In particular, the fact when, as we point out, in the very opening of the petition with the petitioner's declaration, they said they called it an equalizer.

[00:18:29] Speaker 05:
Our expert was consistent calling it an equalizer.

[00:18:31] Speaker 05:
So with both sides experts having called an equalizer, I think that's a hard conclusion.

[00:18:35] Speaker 05:
But obviously, the board can reach its own conclusion on remand.

[00:18:39] Speaker 03:
Well, your argument is that the reason why Raleigh is an equalizer is because of one quotation at JAD93, whereas the same language appears in your patent.

[00:18:54] Speaker 03:
It's hard for me to believe that Raleigh actually teaches an equalizer as

[00:19:00] Speaker 03:
you meant to exclude equalizers in your path.

[00:19:04] Speaker 05:
Well, certainly there's no factual dispute that the board had raised and addressed about what the medium equalized.

[00:19:11] Speaker 03:
The board would be open, however, if it's told that there is some form of disclaimer.

[00:19:17] Speaker 03:
Then once it decides what the disclaimer is, it can go into Rowley and look at Rowley and say, is that kind of

[00:19:28] Speaker 03:
equalizer present in Raleigh.

[00:19:31] Speaker 03:
Yeah, that is... Because to me, Raleigh presents an interesting case because it seems to be no doubt that Raleigh does teach an acclaimed interference testing.

[00:19:41] Speaker 03:
The question is whether or not Raleigh follows the way as a reference because it teaches something else.

[00:19:47] Speaker 05:
Certainly the question is whether Raleigh is excluded because of the negative aspect of it.

[00:19:52] Speaker 02:
Whether Raleigh includes the thing you said can't be there.

[00:19:55] Speaker 05:
Exactly.

[00:19:56] Speaker 02:
Okay.

[00:19:56] Speaker 02:
All right, sit.

[00:19:58] Speaker 02:
Way over time.

[00:19:59] Speaker 02:
Way over.

[00:19:59] Speaker 02:
I'll restore two minutes of rebuttal time.

[00:20:01] Speaker 02:
Mr. Umme, is it Umme?

[00:20:03] Speaker 02:
Mr. Umme, please proceed.

[00:20:08] Speaker 01:
Good morning, honors, and may it please the court.

[00:20:11] Speaker 01:
If I might, I'd like to start with the Raleigh prior reference, because I think it gives us something concrete to look at and to evaluate the rest of the disputes.

[00:20:19] Speaker 02:
Did the board make any fact findings with regard to Raleigh?

[00:20:21] Speaker 01:
Yes, and I think the critical fact-finding in terms of the dispute here, I think, is on page 17 of the board's decision.

[00:20:28] Speaker 01:
Page 17?

[00:20:29] Speaker 01:
That's correct.

[00:20:31] Speaker 01:
So in the pages preceding, the board addressed the situation where, like, addressed the argument under the dispute.

[00:20:39] Speaker 02:
On page 17, what's the fact-finding that you're saying is critical?

[00:20:41] Speaker 01:
So they, here they reject NTT's argument that

[00:20:47] Speaker 01:
that the disclosure in Raleigh is an equalizer.

[00:20:50] Speaker 02:
Can you point me to the exact sentence?

[00:20:52] Speaker 01:
Sure, the second full paragraph.

[00:20:55] Speaker 01:
So the second sentence in that sentence, that paragraph states, absent the construction that Pat Naran proposes, equalizers are not recited as a negative limitation.

[00:21:03] Speaker 01:
And then the board

[00:21:04] Speaker 01:
provides an alternative finding.

[00:21:05] Speaker 01:
Even if we determined that a proper construction did preclude equalization, petitioner citation Raleigh does not rely on equalization, but instead on Raleigh's TSP RSP multiplication.

[00:21:15] Speaker 01:
So I think in context, the board, in context, I think it's clear that the board is rejecting NTT's argument that Raleigh is limited to an equalizer.

[00:21:25] Speaker 01:
So even if equalizers are read out of the claim that Raleigh still teaches the interference cancel mutation.

[00:21:33] Speaker 01:
I think the board made a similar finding on page 29.

[00:21:45] Speaker 01:
First full paragraph, first paragraph, second sentence, petitioner relies on the ZF algorithm procedure in Raleigh to cancel.

[00:21:52] Speaker 03:
Look at the lead sentence.

[00:21:53] Speaker 01:
At the very top.

[00:21:54] Speaker 03:
No, the lead sentence says, Raleigh's interference counselor, whether or not an equalizer is irrelevant.

[00:22:02] Speaker 01:
Right, so I guess.

[00:22:04] Speaker 03:
The board provided two alternatives because there were two... No, but the sentence that I just read to you seems to me to feed into the argument that was going on earlier, which is, does Raleigh do any equalizing?

[00:22:19] Speaker 01:
And I agree, I think the board did consider that an issue, but I think the board separately considered the issue of whether, even if equalizers were excluded, does Raleigh teach to claim?

[00:22:28] Speaker 01:
And I think that's what the board found in appendix 17.

[00:22:31] Speaker 01:
And I think on page 29, the second sentence is making that alternative finding.

[00:22:38] Speaker 01:
Second sentence at the top of the page.

[00:22:44] Speaker 02:
And if I might also... Well, but that says Petitioner relies on Reviya's auditing procedure in Raleigh to cancel ISI interference and does not rely on equalization.

[00:22:55] Speaker 02:
That's not the same question as whether there's an equalizer in there.

[00:22:59] Speaker 01:
I agree with you.

[00:23:01] Speaker 01:
I guess the clearer passage then would be Appendix 17.

[00:23:04] Speaker 03:
Basically what's happening is that Raleigh doesn't... The equalization that Raleigh does to modulate the signal strength, which I talked about,

[00:23:13] Speaker 03:
which the patent also does, doesn't have anything to do with the matrix system that is producing the interruption cancellation, right?

[00:23:23] Speaker 01:
Yes, I think so, yeah.

[00:23:24] Speaker 01:
I think the idea that both the patent and the prior art envision the same equalization effects, I completely agree with.

[00:23:31] Speaker 02:
And so I think that even if there were to... I understand that the patent and the prior art focus on the same equalization effects.

[00:23:42] Speaker 02:
But the problem is, what do we do with this disclaimer at the bottom of column four that says, in the present invention, an OFDM method for MIMO channels without using an equalizer?

[00:24:01] Speaker 02:
doesn't use an equalizer, which of course it doesn't, because the prior art didn't have an equalizer contained within the interference canceler.

[00:24:08] Speaker 02:
But it also doesn't say, and I just mean an equalizer preceding the input to the interference canceler.

[00:24:13] Speaker 02:
It is much broader.

[00:24:14] Speaker 02:
It says the present invention has no equalizers in it at all, in the whole method.

[00:24:18] Speaker 02:
Right?

[00:24:19] Speaker 02:
Am I... Is that a fair reading on that sentence?

[00:24:21] Speaker 01:
I think that what this sentence is conveying is the goal that the President is actually trying to achieve.

[00:24:26] Speaker 03:
And I think that... Can we talk about a little bit about... I mean, the presiding judge has indicated her view that she thinks this probably is a disclaimer on some structure.

[00:24:38] Speaker 03:
But isn't it possible to read that language?

[00:24:41] Speaker 03:
It says we do it without an equalizer, meaning we don't need to use one.

[00:24:45] Speaker 03:
We don't need to use an equalizer.

[00:24:49] Speaker 03:
That's not the same as you can't use an equalizer.

[00:24:55] Speaker 01:
And that is the way I understand it.

[00:24:56] Speaker 03:
The scope says you can't use it.

[00:24:58] Speaker 03:
If it's there, it's poisonous.

[00:25:03] Speaker 01:
That is the way I read this and that's the way I understand NTT's expert who testified on this passage to describe this as being a goal that they're trying to achieve as opposed to kind of limiting the invention itself.

[00:25:13] Speaker 01:
I think Judge Stark, you were pointing out that the preceding three paragraphs all state the present dimension is, the present dimension is, the present dimension is.

[00:25:21] Speaker 01:
This paragraph does not state the present dimension is.

[00:25:23] Speaker 02:
What says, in the present invention, there's no equalizer.

[00:25:26] Speaker 01:
Right.

[00:25:27] Speaker 01:
And I think that, and as NTT's expert, Dr. Hernandez explained, what that's saying is that when you use OFDM, you don't need an equalizer.

[00:25:37] Speaker 03:
And so that, and I think that's, and then the next sentence, I think- I mean, to me, the first argument is, is there a disclaimer on the reasonable mind's mind or mind or disagree with that, but one way to read it is that what this patent doesn't found a new way to do it, we don't use

[00:25:52] Speaker 03:
equalizing exactly and if you did some equalizing you can't be an interference cancel exactly I think that's one way to look at the other way to look at it is way that resigns and I think

[00:26:05] Speaker 01:
I think the former way is the only way to look at it for two reasons.

[00:26:08] Speaker 03:
One, I think if you read that paragraph... You rely on the law that says, especially if you're reading a negative limitation in your claim, you're supposed to be pretty confident that that's what you're supposed to be doing, right?

[00:26:18] Speaker 01:
Absolutely right.

[00:26:19] Speaker 01:
And I think it's also clear based on column 41 in Molly, about line nine.

[00:26:28] Speaker 02:
Did the board refer to it?

[00:26:30] Speaker 02:
The board, I don't believe, I'm not sure if the board would refer to this, but I think- So if the board didn't rely on that column in Riley and make this point, can we really use it on appeal, or isn't there a generate problem with that?

[00:26:44] Speaker 02:
I don't think there's a generate problem here, because this issue wasn't- Do you think on appeal we can look at portions of the reference that the board didn't mention as supporting their fact findings?

[00:26:53] Speaker 01:
Well, I think that the reason why this court can look at it is that the question wasn't really posed to the board.

[00:26:59] Speaker 01:
Before the board, NTT gave them two options for resolving the dispute between parties.

[00:27:04] Speaker 01:
One was a largely factual dispute, which is no longer on appeal.

[00:27:07] Speaker 01:
And the other one was this legal argument.

[00:27:08] Speaker 01:
The board chose the first one, said, we'll resolve this on the factual dispute.

[00:27:13] Speaker 01:
And the board therefore did not need to reach the second issue, like the legal disclaimer argument.

[00:27:18] Speaker 01:
And so the reason why I think that,

[00:27:21] Speaker 01:
like this passage would be referred to on the first time in appeal, is that this kind of legal claim construction issue wasn't really teed up before the board.

[00:27:29] Speaker 03:
Well, so I guess I would refer the court to appendix 349.

[00:27:51] Speaker 01:
And so this paragraph has explained their position to the board.

[00:27:56] Speaker 01:
They're saying that the plain and ordinary meaning as explained in section VI, they're saying the preliminary construction already excludes equalizers.

[00:28:11] Speaker 01:
So that the preliminary construction is the one that does not have the negative limitation.

[00:28:14] Speaker 01:
They're saying that that does not exclude equalizers.

[00:28:17] Speaker 01:
And then they make the disclaimer argument.

[00:28:18] Speaker 01:
But the way they frame it is that, however to the extent the board feels this exclusion could be made more explicit, it would be appropriate to do so.

[00:28:24] Speaker 01:
And then at the end, the last line, they say, although it is not necessary.

[00:28:29] Speaker 01:
So they're telling the board, you don't need to construe it this way.

[00:28:31] Speaker 02:
Wait, but on page 347, turn back two pages.

[00:28:38] Speaker 02:
The boys begin second in bold.

[00:28:40] Speaker 02:
They have multiple arguments in the alternative here.

[00:28:43] Speaker 02:
Second, the 720 Act describes, quote, the present invention, end of quote, as providing a method of signal processing that in bold antitalics does not require involvement of an equalizer.

[00:28:58] Speaker 02:
It is well established that the descriptions of, quote, the present invention, end of quote, can limit scope.

[00:29:03] Speaker 02:
And they cite Verizon, which is 100% a disclaimer case.

[00:29:06] Speaker 01:
Absolutely.

[00:29:07] Speaker 01:
And this is that second argument, which they told the board, you do not need to reach.

[00:29:11] Speaker 01:
They made that clear.

[00:29:13] Speaker 02:
They don't want the board to reach it if the board finds the paper of them on the first argument.

[00:29:16] Speaker 02:
We have this all the time, right?

[00:29:17] Speaker 02:
I'm going to give you two alternative arguments.

[00:29:19] Speaker 02:
If you agree with me on one, you don't have to reach two.

[00:29:22] Speaker 02:
It's very appealing to us judges to have that happen.

[00:29:24] Speaker 01:
Well, I think that this is not an argument on the alternative.

[00:29:27] Speaker 01:
They're giving the board two different options to resolve the dispute before them.

[00:29:30] Speaker 01:
They're not saying, if you find against this on A, you must consider B. They're saying, here are two different paths for resolving the dispute.

[00:29:38] Speaker 01:
If you find against us on either way, that resolves the dispute.

[00:29:41] Speaker 02:
I understand the second path here, because it's the one that's entirely on appeal.

[00:29:46] Speaker 02:
What's the first path that you say, which

[00:29:49] Speaker 02:
I don't think is unappealed, right?

[00:29:51] Speaker 02:
So what is that first path?

[00:29:53] Speaker 01:
And that's the path that the board chose, was whether or not ISI qualifies as unwanted symptoms of noise, which was part of the construction before the board.

[00:30:03] Speaker 03:
The board expressly rejected the notion of reading a negative limitation under the claim, correct?

[00:30:08] Speaker 01:
That's correct, yeah.

[00:30:09] Speaker 03:
That has to be as a matter of clean construction.

[00:30:11] Speaker 01:
Yes.

[00:30:12] Speaker 01:
So I think the board did touch on that.

[00:30:14] Speaker 03:
I'm confused.

[00:30:14] Speaker 03:
And the other parties argued that would be wrong.

[00:30:16] Speaker 03:
And then now you've pointed us to something the patent owner gave to the board that said that the president mentioned does not require involvement of an equalizer.

[00:30:28] Speaker 03:
Does not require.

[00:30:29] Speaker 01:
I'm sorry.

[00:30:29] Speaker 03:
That's a whole lot different from saying the patent requires an exclusion of an equalizer.

[00:30:38] Speaker 01:
Correct.

[00:30:39] Speaker 01:
Absolutely.

[00:30:40] Speaker 03:
And so I think that's kind of the issue that we're... As to the nature of whether there is in column four a disclaimer, and if so, what it is, as opposed to whether it's simply a statement of we don't need one, this statement by the Patent Honor himself seems to me to say we don't require involvement from the equation.

[00:31:03] Speaker 03:
Maybe there will be one, maybe there won't.

[00:31:05] Speaker 03:
We don't require it.

[00:31:07] Speaker 01:
I absolutely agree with that, and I think that's supported both by the discussion of what they thought the problem was with equalizers on column 3, and I think it's absolutely supported by column 41, which I think states pretty clearly that the patent envisions that interference cancellers can have equalization effects.

[00:31:24] Speaker 01:
What is 41 in the patent?

[00:31:25] Speaker 03:
It's Appendix 112.

[00:31:34] Speaker 01:
Yeah, I'm really confused about what line.

[00:31:38] Speaker 01:
Starts at about line nine.

[00:31:40] Speaker 03:
Line nine, incidentally?

[00:31:42] Speaker 01:
Yeah, that's correct.

[00:31:44] Speaker 01:
The subcarrier interference cancel at 315 achieves a similar.

[00:31:47] Speaker 03:
It's worked out incidentally?

[00:31:48] Speaker 01:
Oh, that's correct, yes.

[00:31:53] Speaker 02:
Yeah, but this just says we do it a different way than signal equalization, right?

[00:31:58] Speaker 01:
No, it's saying that the operation of the subcarrier interference cancel has a signal equalization effect.

[00:32:05] Speaker 02:
No, it achieves a similar effect to signal equalization.

[00:32:09] Speaker 02:
So it's saying we do it, we get to the same result in a different way.

[00:32:13] Speaker 01:
Well, I think that the sentence that starts with that is explains what that means.

[00:32:17] Speaker 01:
That is interference cancellation reproduces the original digital signal.

[00:32:20] Speaker 02:
I don't know where you are.

[00:32:22] Speaker 01:
I'm sorry.

[00:32:22] Speaker 01:
It's about line 16.

[00:32:24] Speaker 03:
Line which?

[00:32:25] Speaker 01:
16.

[00:32:26] Speaker 03:
Thus?

[00:32:28] Speaker 01:
That is.

[00:32:29] Speaker 01:
That is.

[00:32:32] Speaker 01:
That is, the interference cancellation reproduces the original digital signal, and hence the amplitudes are always constant.

[00:32:37] Speaker 01:
That's exactly what Raleigh says when he says it was.

[00:32:39] Speaker 03:
Now, was the reproducing the original signal the amplitude that we were trying to talk to earlier?

[00:32:44] Speaker 01:
Yes, yeah, exactly.

[00:32:45] Speaker 01:
And that's exactly what Raleigh's doing.

[00:32:47] Speaker 03:
You should say so.

[00:32:48] Speaker 03:
I mean, so what you're saying is that the patent recognizes equalization for a particular purpose.

[00:32:57] Speaker 03:
leveling the amplitude and that's what this is saying and that's what the letter provision I'm going to do is saying, right?

[00:33:03] Speaker 01:
Yes, absolutely.

[00:33:06] Speaker 03:
So does that go to whether there's a disclaimer or does that go to the fact that there's nothing in, nothing, no reason to disqualify Raleigh because all Raleigh is doing what the patent does.

[00:33:18] Speaker 01:
I think it goes to both.

[00:33:18] Speaker 01:
I think that if we're considering the issue as to whether there's a disclaimer of the term interference counselor, I think it goes to both.

[00:33:25] Speaker 01:
Because I think that if you look at this passage and the background passage, what that tells you is that you are- Forget the term interference counselor.

[00:33:32] Speaker 02:
I know.

[00:33:32] Speaker 02:
That's what he's arguing.

[00:33:35] Speaker 02:
But suppose this patent actually issued with these claims.

[00:33:39] Speaker 02:
Are you telling me this claim would read on a device that looks very similar to the prior art, maybe has slightly different limitations, not relevant to what we're discussing, but which has an equalizer that reduces the ISI delay and feeds that input into an interference canceler?

[00:34:00] Speaker 02:
Are you saying that these claims, since they don't use the word equalizer, would read on a device that has that prior art combination

[00:34:09] Speaker 02:
Equalizer feeding into an interference cancer.

[00:34:12] Speaker 02:
No, we're not saying it would read on that I agree with you and that issue wasn't really litigated below and I don't think it's really relevant to the Raleigh Roberts

[00:34:31] Speaker 01:
So it's not clear to me that it is a disclaimer.

[00:34:33] Speaker 02:
If it's not clear to you that it's a disclaimer, it can't be, right?

[00:34:36] Speaker 02:
Because declaimers have to be clear and unambiguous, correct?

[00:34:39] Speaker 00:
Absolutely.

[00:34:40] Speaker 02:
So if that's the case, it's not clear it's a disclaimer, then this claim as issued would read on a device that actually has an equalizer that reduces ISI delay and then feeds that exact signal into an interference canceler.

[00:34:55] Speaker 02:
That's what you're asking me to conclude.

[00:34:57] Speaker 01:
I'm not, because I think that they would have a separate argument then based on what's disparaging, what's disparaging in column three.

[00:35:03] Speaker 01:
So I agree with you.

[00:35:04] Speaker 01:
So I think that if that were the case, then their argument would be our negative limitation is based on what's in column three, the background section.

[00:35:13] Speaker 01:
I was just looking at what's on column four, that sentence that you were pointing to, Your Honor.

[00:35:17] Speaker 02:
And you don't think the combination of what's on column three and what's on column four create a disclaimer with regard to an equalizer

[00:35:23] Speaker 02:
feeding into an input signal for the interference canceler?

[00:35:28] Speaker 01:
I think that column three can be read that way.

[00:35:30] Speaker 02:
So you think there's a disclaimer in this case?

[00:35:33] Speaker 02:
It's just in column three, not column four?

[00:35:35] Speaker 02:
So I guess what I was trying to say is that there is that at most... You are asking me to adopt an argument that there is no limitation on the use of an equalizer in these clients.

[00:35:48] Speaker 01:
What I'm saying is that that issue wasn't considered below.

[00:35:52] Speaker 01:
And that wasn't disputed between parties here.

[00:35:55] Speaker 01:
I think that if there's a disclaimer, that's the disclaimer.

[00:35:58] Speaker 01:
That equalizers cannot be used as the input into an interference counselor.

[00:36:02] Speaker 01:
But that wasn't the issue, because that's not what Raleigh teaches.

[00:36:05] Speaker 01:
Raleigh, the only mention, as Judge Clevenger pointed out, the only mention to equalization is that one clause in column 18, which if I may, I'd love to turn to it, that's okay.

[00:36:17] Speaker 01:
So I think that what's critical is that two points for Raleigh.

[00:36:24] Speaker 01:
One, Raleigh teaches everything that the NTT says you need to do to obviate the need for an equalizer.

[00:36:31] Speaker 01:
And I think that when you turn to appendix 1892 and 1893,

[00:36:38] Speaker 01:
And if you keep in mind what... Just let me ask you.

[00:36:40] Speaker 02:
Will you affirm that this patent is dead?

[00:36:45] Speaker 02:
Is that right?

[00:36:46] Speaker 02:
Like it's gone?

[00:36:47] Speaker 02:
Like there's no patent?

[00:36:49] Speaker 02:
What's the ultimate result here?

[00:36:51] Speaker 01:
I'm not sure that all the claims were canceled.

[00:36:53] Speaker 01:
All the claims were challenged.

[00:36:54] Speaker 01:
And so I don't think that's a... But I guess I'd have to double check to make sure.

[00:37:00] Speaker 01:
I'm not sure whether all the claims were challenged here.

[00:37:20] Speaker 02:
Why did the petition drop out?

[00:37:25] Speaker 02:
What happened?

[00:37:25] Speaker 02:
Did they settle or something?

[00:37:26] Speaker 01:
I believe so, yeah.

[00:37:29] Speaker 01:
Yes, not all the claims are challenged, see, on Appendix 8.

[00:37:33] Speaker 03:
So the patent itself wouldn't be... Do we know if there are any other pending suits?

[00:37:38] Speaker 01:
I'm not sure.

[00:37:39] Speaker 01:
I understand there were other suits in Western District of Texas.

[00:37:41] Speaker 01:
I'm not sure if all of them also got dismissed.

[00:37:45] Speaker 01:
But if I might just very briefly just touch on the Raleigh reference, because I think it resolves and renders the claim construction issues mood.

[00:37:51] Speaker 01:
Because if we keep in mind what NTT says is an equalizer, as a device designed to equalize, I think it's clear when you look at columns 16, 17, and 18 that this VF solution is not designed to equalize at all.

[00:38:05] Speaker 01:
Column 16.

[00:38:06] Speaker 02:
The CF solution is the interference controller.

[00:38:10] Speaker 02:
Yes, I understand you say it's not designed to equalize.

[00:38:13] Speaker 02:
The question is, does it contain an equalizer?

[00:38:15] Speaker 01:
Well, I think those two are the same, because on page 20.

[00:38:19] Speaker 02:
That's why I could say something like this device isn't meant to build up resistance or capacitance or whatever, but that's a different question.

[00:38:28] Speaker 02:
Does it actually have a capacitor in it?

[00:38:30] Speaker 01:
And I agree with that, but I think that what's critical on page 23 of the reply brief, that's how they define equalizer.

[00:38:37] Speaker 01:
It's a device that's designed to equalize.

[00:38:39] Speaker 01:
So for this to fall into the carve-out that they're trying to establish within the claim language, it must be designed to equalize.

[00:38:46] Speaker 03:
Designed to equalize what?

[00:38:48] Speaker 01:
Well, yes, I think that, but also I think it's clear that this is not designed to equalize.

[00:38:52] Speaker 03:
Both the patent and Rawlin recognize that there is equalization occurring.

[00:38:57] Speaker 03:
Right.

[00:39:01] Speaker 01:
And I think in their re-hearing request, they acknowledge that when you're canceling interference, spatial interference, that is not equalization.

[00:39:09] Speaker 01:
That's not the equalization they're concerned about.

[00:39:11] Speaker 02:
No, because it's elect.

[00:39:14] Speaker 01:
It's not spatialized.

[00:39:15] Speaker 01:
Well, and Raleigh's concerned with spatial interference.

[00:39:18] Speaker 01:
And I think that, for example, if you look at column 16, lines 59 to 64, that describes what the purpose of this ZS solution is in Raleigh.

[00:39:27] Speaker 02:
Yeah, but I mean, I don't know.

[00:39:28] Speaker 02:
You keep talking about all this purpose stuff, but I mean, I think of these things as things, right?

[00:39:32] Speaker 02:
There's a capacitor, there's a resistor.

[00:39:34] Speaker 02:
That's why I asked at the outset, is there a thing?

[00:39:36] Speaker 02:
Is there a thing?

[00:39:38] Speaker 01:
And I think the answer to that is that it's hard to tell, because all these terms are defined functionally.

[00:39:43] Speaker 01:
And so they can be met by hardware, or they can be met by software.

[00:39:47] Speaker 01:
The proposal that they proposed to district court with respect to interference counselors explicitly said software or hardware, and or hardware.

[00:39:55] Speaker 01:
So it could be either.

[00:39:57] Speaker 02:
Okay, we're way over our time.

[00:39:58] Speaker 02:
Do you have anything further you feel like you really need to talk about?

[00:40:03] Speaker 01:
No?

[00:40:03] Speaker 01:
Okay.

[00:40:05] Speaker 02:
Thank you.

[00:40:12] Speaker 05:
First, I'd just like to address the argument regarding whether the board was presented with two options to resolve the dispute.

[00:40:21] Speaker 05:
We don't believe that's a correct characterization of the arguments that we're making.

[00:40:24] Speaker 05:
We're clearly making arguments in the alternative.

[00:40:27] Speaker 05:
An example of that, why it was clear, the heading on Appendix 345, the intrinsic record and canons of claims instruction require exclusion of equal answers.

[00:40:38] Speaker 05:
That's a very clear argument that we're making.

[00:40:41] Speaker 05:
hey, this is a claim construction argument.

[00:40:42] Speaker 05:
And the language that counsel pointed to later on in that same section on 349 was just as Judge Moore suggested.

[00:40:49] Speaker 05:
It was, hey, if we win on this other factual dispute, which is the one that's not on appeal now, you don't need to necessarily get to this claim construction aspect.

[00:40:57] Speaker 05:
But because the board did not agree on the factual aspect it did need to reach that and in fact the board Did reach it the board did understand that there was a negative, you know limitation being met It just didn't have a proper analysis and I have to direct you though to 347 because I have the same concern that I think Judge Clevenger raised

[00:41:16] Speaker 04:
To the extent, and maybe you didn't have to say disclaimer to the board, but how do we read this sentence second as a disclaimer argument?

[00:41:25] Speaker 04:
It seems to be when you say the 720 patent describes the President mentioned as providing a method of signal processing that does not require involvement of an equalizer.

[00:41:36] Speaker 04:
That means it doesn't require an equalizer, but perhaps it may have an equalizer.

[00:41:41] Speaker 05:
I think the most reasonable reading of a sentence is you look at the next sentence immediately after that in the same paragraph, when it says, it is well established that description of this present invention can limit the claim scope when we get to size.

[00:41:51] Speaker 04:
It's eliminated.

[00:41:52] Speaker 04:
Would you at least say your disclaimer argument is ambiguous?

[00:41:56] Speaker 05:
I would say it could have been more artfully drafted.

[00:41:58] Speaker 05:
And certainly, I would have included the word disclaimer more.

[00:42:02] Speaker 05:
But yeah, when it says, you know.

[00:42:04] Speaker 02:
Or at all.

[00:42:06] Speaker 05:
Yes, Your Honor.

[00:42:07] Speaker 05:
When it says can't limit claim scope, that is going beyond simply saying you don't need an equalizer.

[00:42:12] Speaker 03:
But if we do it without, does it mean it isn't required?

[00:42:17] Speaker 05:
Well, that's the first sentence that Judge Stark was pointing out.

[00:42:20] Speaker 03:
But the second sentence, which is that we do it without, doesn't undermine the fact that it isn't required.

[00:42:26] Speaker 05:
Well, I think the most reasonable reading of that second sentence in the last whole paragraph from 347, the appendix, is that we are making an argument about claim scope.

[00:42:37] Speaker 05:
We're making an argument that claim scope has been limited, which is a disclaimer.

[00:42:41] Speaker 02:
The problem for me is I don't see your argument prevailing.

[00:42:45] Speaker 02:
Your argument is that the interference controller itself doesn't have an equalizer.

[00:42:50] Speaker 02:
That's not what was in the prior art that you were trying to avoid.

[00:42:54] Speaker 02:
What was in the prior art that you were trying to avoid was a separate equalizer apart from the interference controller, preceding the input to the interference controller.

[00:43:03] Speaker 02:
So I don't see how the disclaimer you've argued for on appeal comports with what I understand through columns three and four, this patent was achieving an advantage over in the prior art.

[00:43:15] Speaker 05:
Your honor, correctly point out that in column four, line 63 through 65, we do have a disclaimer language that is not just saying, you know, using an equalizer exactly as used in this one example here.

[00:43:28] Speaker 02:
The other concept is... Yes, but we have to read the patent as a whole to figure out what the clear non-mistakable disclaimer is.

[00:43:33] Speaker 02:
We can't take one sentence out of context.

[00:43:37] Speaker 02:
And all through paragraph three, what you're talking about are the disadvantages of having a separate equalizer as a predicate before the input

[00:43:44] Speaker 02:
the interference controller.

[00:43:45] Speaker 02:
And this entire pattern makes it clear that equalizers and the interference controllers are two separate things.

[00:43:53] Speaker 02:
So, I mean, I'm just not persuaded by your desire to say this sentence should absolutely require a claim construction related to an interference controller.

[00:44:03] Speaker 02:
I mean, that's kind of what I come down to.

[00:44:04] Speaker 02:
I think there is a disclaimer in columns three and four, but I don't think it's the one that you're asking for.

[00:44:10] Speaker 05:
Guess the other point would raise is the other language we side to the fact that it's generally You know talking about equalizations isn't related to complexity and this is part of the focus of the improvement of the invention for late There are no other pending matters, I'm sure matters could arise depending on the outcome of this Okay, I think