[00:00:00] Speaker 04:
Our final case for argument is 22-2020, one e-Way versus Apple.

[00:00:06] Speaker 04:
Please proceed.

[00:00:08] Speaker 01:
May it please the court.

[00:00:09] Speaker 01:
My name is Doug Muehlhauser, representing the appellant one e-Way.

[00:00:13] Speaker 01:
And one e-Way is here to address reversible error committed by the district court in interpreting the stipulated construction between the parties.

[00:00:24] Speaker 01:
In claim construction proceedings below, one e-Way and Apple stipulated that

[00:00:28] Speaker 01:
The construction of the term unique user code means a fixed code bit sequence specifically associated with one user of the devices, where the S is in parentheses.

[00:00:42] Speaker 01:
On motion for summary judgment, the district court interpreted the stipulated construction by adding additional narrowing requirements, namely that the unique user code must be tied to the identity of the user, and that the unique user code must be created

[00:00:57] Speaker 01:
based on providing identity information such as a username, password.

[00:01:03] Speaker 00:
Wasn't that decided by the ALJ and then agreed to?

[00:01:06] Speaker 00:
That it means user and not device?

[00:01:13] Speaker 01:
The ALJ's understanding throughout the claim construction process before the ITC was that the device has always had the code.

[00:01:24] Speaker 01:
He understood that from the very beginning all the way through the second day and up to the time that he released his order on claim construction.

[00:01:32] Speaker 01:
And he explained that the unique user code is associated with the user, not merely the devices.

[00:01:40] Speaker 01:
That was his understanding.

[00:01:42] Speaker 01:
The narrowing limitations were never added to the construction by the ALJ, never added before the ITC.

[00:01:51] Speaker 01:
This was only done before the district court.

[00:01:53] Speaker 01:
on summary judgment.

[00:01:54] Speaker 00:
The patent emphasizes user all over.

[00:02:00] Speaker 01:
That's right, but the patent more importantly emphasizes that it's the devices, the transmitter and the receiver of the audio system that are required to use the unique user code to distinguish transmissions of other devices nearby, operating nearby, so that the devices using the unique user code can provide

[00:02:23] Speaker 01:
private listening and address the needs of the individual user, which is to enjoy a private channel.

[00:02:32] Speaker 02:
Wouldn't it have been easy for the patent owner to draft claims that said a unique device code, but instead they drafted different claims that say unique user code?

[00:02:51] Speaker 02:
It seems to me, in thinking about this issue, even if it were close, the plain language is a user code, not a device code.

[00:03:00] Speaker 01:
In the specification, we find that the inventor was focusing on the needs of an individual user.

[00:03:08] Speaker 01:
An individual user that was using a portable audio source and needed to have private listening because there would be other devices operating nearby.

[00:03:16] Speaker 01:
So the devices were for an individual user.

[00:03:21] Speaker 01:
And we can see that from the background of the patent, where it's talking about portable audio devices that were already in the art, like portable cassette tape players, for example, where they used, at that point, they used conventional cables attached to a headphone so that the user would have a private listening experience, hear his or her own music free from interference because of the cable.

[00:03:46] Speaker 01:
It was allowing only the user's channel to come through, but it was for the user.

[00:03:50] Speaker 02:
I hear what you're saying, but that doesn't change my view, to be honest with you, because the thing is that even if in hindsight there was a wish to use device instead of user, the claim uses, the claim refers to a user, unique user code, not a unique device code.

[00:04:10] Speaker 02:
And I can understand that there could be some hindsight wish, that I wish I would have used something different, but with public notice,

[00:04:20] Speaker 02:
behind claims.

[00:04:21] Speaker 02:
You want to make sure that the public sees the claim terms and understands what they mean and that the specification distinguishes between a device and a user.

[00:04:29] Speaker 02:
Why shouldn't we affirm the interpretation and say that when we're talking about unique user code, it's for the user, not a device?

[00:04:39] Speaker 01:
Well, I guess first off I would say the narrowing limitations added by the district court go far beyond that.

[00:04:47] Speaker 01:
They try to tie the unique user code to the identity of the user when that never comes up anywhere in the intrinsic record.

[00:04:53] Speaker 01:
No discussions about identity.

[00:04:55] Speaker 01:
I guess I would also add that it's- How is that different?

[00:04:59] Speaker 02:
Well, let's say I have a user code that's for me.

[00:05:01] Speaker 02:
I'm assigned number 10.

[00:05:04] Speaker 02:
But why is it wrong with adding identity to that?

[00:05:09] Speaker 02:
That way you know my identity is carousel and it's number 10.

[00:05:14] Speaker 02:
That's my user code.

[00:05:15] Speaker 01:
I would say a proper interpretation must find support in the intrinsic record.

[00:05:19] Speaker 01:
That would not.

[00:05:21] Speaker 00:
You have to use a username and a password.

[00:05:25] Speaker 00:
That certainly is identity.

[00:05:28] Speaker 01:
But that never comes up in the patent specification.

[00:05:31] Speaker 01:
It never comes up anywhere in the intrinsic record.

[00:05:33] Speaker 00:
But how about the prosecution?

[00:05:38] Speaker 00:
Generically, your client conceded the point to avoid the shots reference.

[00:05:45] Speaker 00:
by saying that that is the device code, and hence what you were claiming was the user code.

[00:05:52] Speaker 01:
Well, I think to be clear, looking at that prosecution history where the statement about the SHOTS codes was made by the applicant, before that statement was made, in a paragraph before that statement was made, the applicant made abundantly clear that the unique user code is used in the devices.

[00:06:12] Speaker 01:
Number one, the transmitter has a code generator,

[00:06:15] Speaker 01:
that creates the unique user code.

[00:06:17] Speaker 01:
That's in the device.

[00:06:17] Speaker 04:
OK, so the statement is made on 942 of the appendix.

[00:06:23] Speaker 04:
That's where the prosecution history is.

[00:06:24] Speaker 04:
So why don't you turn to page 942, which is, I think, what Judge Laurie is referring to, and tell us why he isn't correct.

[00:06:33] Speaker 04:
Because I'll quote from page 942, as such, the Schatz code may be properly deemed a device code as opposed to a user code, as in the present invention.

[00:06:43] Speaker 04:
That's a pretty strong piece of

[00:06:45] Speaker 04:
intrinsic evidence?

[00:06:47] Speaker 01:
Well, what you need to understand, and I think it's clear from the prosecution history and the applicant's statement, is in the paragraph before that, the applicant has already made clear that the codes, the unique codes of the invention, are assigned to the devices.

[00:07:03] Speaker 01:
Made that abundantly clear in that paragraph.

[00:07:05] Speaker 02:
What about versus claims one, four, and six require a code generator that generates and modulates a user code that creates a unique hop pattern for each individual user?

[00:07:15] Speaker 02:
It doesn't say for each device, it says for each user.

[00:07:18] Speaker 01:
That's right, but it's the code generator and the transmitter that's creating the unique user code.

[00:07:23] Speaker 01:
It's for the individual user, absolutely.

[00:07:25] Speaker 01:
It's for the needs of the individual user to distinguish his or her transmissions from other devices operating nearby.

[00:07:33] Speaker 01:
But the devices have the codes.

[00:07:36] Speaker 01:
The codes are assigned to the devices.

[00:07:38] Speaker 01:
It goes on to say in the paragraph on 941 in the appendix, the unique pseudo noise

[00:07:45] Speaker 01:
PN code that is long enough and has low cross-correlation properties so that the hop pattern is unique for each individual user.

[00:07:52] Speaker 01:
The importance of the hop pattern is so that the transmitter and the receiver can agree when to listen to the right frequency, to find the transmissions and piece them together to put together the audio representation for the user.

[00:08:05] Speaker 01:
But the devices have the code.

[00:08:07] Speaker 01:
Yes, the code is assigned to the devices.

[00:08:09] Speaker 01:
That's already established before you ever get to the statement about shots.

[00:08:13] Speaker 01:
And so that's why when you really are looking at what was the distinction over the shots prior art, it was based on usage scenarios.

[00:08:20] Speaker 01:
Looking at that, at the sentence, the codes are, I'm looking on appendix 942, by the way, the first full paragraph, these codes are assigned to specific devices for a single household, not individual users.

[00:08:35] Speaker 01:
And I can point out that at least five times in Apple's opposition brief, they used an ellipsis to just

[00:08:43] Speaker 01:
omit the usage scenario assigned to specific devices for a single household, not individual users.

[00:08:49] Speaker 01:
But what Applicant has already established in the prior paragraph and the paragraph that follows the statement about the SHOTS codes is that the devices have already been assigned the codes.

[00:08:59] Speaker 01:
And so by the time you're looking at the statement here, the codes are assigned to specific devices for a single household, not individual users, it's that specific usage scenario that matters.

[00:09:09] Speaker 01:
The codes are assigned in the SHOTS context

[00:09:14] Speaker 01:
to specific devices for a single household.

[00:09:17] Speaker 01:
In the invention context, the codes are assigned to devices for an individual user.

[00:09:22] Speaker 00:
Counsel, these are expired patents.

[00:09:25] Speaker 00:
I'm sorry, Your Honor, I didn't... These are expired patents, correct?

[00:09:30] Speaker 01:
At the time that the lawsuit was brought, the patents had another... They're expired now.

[00:09:34] Speaker 01:
They're expired today, yes.

[00:09:35] Speaker 00:
Is there other litigation going on other than against Apple?

[00:09:39] Speaker 01:
No, there's not.

[00:09:40] Speaker 01:
This is the only case that's going on under the patents.

[00:09:45] Speaker 01:
So just to wrap up this point, I'd like to follow on in the same paragraph where the statement about the Shots codes is made.

[00:09:52] Speaker 01:
Immediately after, the applicant says, there's no mention in Shots that the PN code must support individual users operating within the same space.

[00:10:02] Speaker 01:
That's a clear indication that the code must support individual users, but the code is assigned to the devices to do that.

[00:10:09] Speaker 01:
In the very next sentence, by contrast,

[00:10:12] Speaker 01:
The present invention addresses the interference between individual users and each PM code and its hopping sequence is generated to address the needs of individuals.

[00:10:20] Speaker 01:
So there's no disclaimer of all device codes.

[00:10:25] Speaker 01:
It's made clear that the devices of the invention are assigned to the codes and it's the purpose, it's the usage scenario that matters and the distinction over shots.

[00:10:37] Speaker 01:
Applicant goes on in the same prosecution history action

[00:10:41] Speaker 01:
to indicate that later, and I'm on Appendix 946 now, Schatz does not design his system to function with multiple users in the same space.

[00:10:52] Speaker 01:
In fact, he teaches away from the use of independent stereos.

[00:10:55] Speaker 01:
And so again, to function with multiple users means you need to have this code that can suppress the interference from other devices that are operating nearby.

[00:11:06] Speaker 01:
And then finally, I'll just point to

[00:11:10] Speaker 01:
The interview summary where the applicant continues the same line of distinction over Schatz.

[00:11:15] Speaker 01:
This is Appendix 9, 88.

[00:11:17] Speaker 01:
I'm looking at the very bottom of the page where the applicant says during the interview on June 13, 2006, among other things, applicant also explained to the examiners that unlike Schatz's invention, the applicant's invention is designed to suppress self-interference.

[00:11:38] Speaker 01:
So it's the

[00:11:40] Speaker 01:
Usage scenario.

[00:11:42] Speaker 01:
In shots, the codes were assigned to devices.

[00:11:45] Speaker 01:
In the invention, codes are assigned to the devices.

[00:11:48] Speaker 01:
What matters for distinction purposes is what was the scenario?

[00:11:52] Speaker 01:
Why were the codes assigned?

[00:11:54] Speaker 01:
In shots, it's for a single household.

[00:11:57] Speaker 01:
With the invention, they're assigned to provide private listening to the user, to support the user in an environment where multiple devices are operating and transmitting.

[00:12:06] Speaker 01:
Those signals need to be suppressed in order for the user to enjoy private listening.

[00:12:13] Speaker 01:
So we feel like, very strongly, the district court erred in finding a disclaimer here.

[00:12:19] Speaker 01:
Certainly, there were no statements made during prosecution to the effect of- Can I answer?

[00:12:25] Speaker 02:
I don't think a disclaimer is required, right?

[00:12:27] Speaker 02:
I mean, in other words, in for claim interpretation under Phillips standard, which applies here,

[00:12:36] Speaker 02:
It's not required that the prosecution history provide disclaimer or lexicography of a particular term in order for it to be relevant to claim construction, right?

[00:12:48] Speaker 02:
So even if the district court's use of the word disclaimer was wrong, if we still thought the prosecution history supported the district court's construction, that would be sufficient, right?

[00:13:00] Speaker 01:
I would agree with you.

[00:13:02] Speaker 01:
But again, there are no statements made during that prosecution history

[00:13:06] Speaker 01:
anywhere in connection with shots, where the applicant made a statement that its invention is somehow... Whereas invention, there was no discussion in the prosecution history about tying identity to a user code.

[00:13:27] Speaker 01:
That a user code must be tied to the identity of the user.

[00:13:29] Speaker 01:
It never came up one way or the other.

[00:13:31] Speaker 01:
It was just silent about that.

[00:13:33] Speaker 01:
So I don't think that there's anything in that prosecution history that should affect the court's decision here about whether the district court's adding of these narrowing limitations was error.

[00:13:43] Speaker 01:
It just never came up.

[00:13:44] Speaker 01:
It's not in the specification.

[00:13:45] Speaker 01:
It's nowhere in the intrinsic record.

[00:13:48] Speaker 04:
The counsel would like to save the remaining time for rebuttal.

[00:13:52] Speaker 01:
Yes, I'll save the remainder for rebuttal.

[00:13:54] Speaker 03:
Ms.

[00:13:54] Speaker 03:
Keefe.

[00:13:56] Speaker 03:
Good morning, Your Honors.

[00:13:57] Speaker 03:
If it please the court, Heidi Keefe for Apple, and with me is Dina Chen.

[00:14:02] Speaker 03:
Your honors, I think you asked exactly the right question.

[00:14:05] Speaker 03:
The fact is that the claims themselves use the word user, not device.

[00:14:10] Speaker 03:
The stipulated construction, the plain language of that construction, is fixed code, bit sequence, specifically associated with one user of a device.

[00:14:22] Speaker 03:
That was repeated.

[00:14:23] Speaker 03:
That was found by the ALJ.

[00:14:25] Speaker 03:
And the ALJ down below found it based on the fact that the file history confirmed, as we've been discussing,

[00:14:32] Speaker 03:
that, in fact, device codes were disclaimed.

[00:14:37] Speaker 03:
And even to your honor's point which stole whether or not there's a full disclaimer, absolutely, it's informative that the invention must be about a user code, not a device code.

[00:14:49] Speaker 03:
That is then confirmed in the IPR file history in which the PTAB said, I see that the plain meaning here requires a user code, not a device code.

[00:15:02] Speaker 03:
I think the only question I heard was that... Can I ask another question?

[00:15:04] Speaker 02:
Please.

[00:15:05] Speaker 02:
We're talking about a stipulation here.

[00:15:06] Speaker 02:
That's right.

[00:15:07] Speaker 02:
Stipulated claim construction.

[00:15:08] Speaker 02:
Since the claim construction itself can't be challenged, we're looking at an interpretation of an interpretation, right?

[00:15:14] Speaker 02:
Isn't that what the... I think one of these challenges to an interpretation of an interpretation.

[00:15:20] Speaker 03:
I do think that they are challenging an interpretation of an inter... Sorry, an interpretation of a stipulation, and I think that is what they are challenging, yes.

[00:15:29] Speaker 03:
We know from cases like My Mail and Unwired Planet that you look to the plain meaning first of the stipulation.

[00:15:35] Speaker 03:
And the plain meaning of the stipulation here is it is fixed code specifically associated with one user of a device, not with one device.

[00:15:46] Speaker 03:
the interpretation read out the word user so that now it was fixed code specifically associated with a device, first, that would be rewriting the stipulation completely.

[00:15:56] Speaker 03:
And that's certainly not.

[00:15:57] Speaker 02:
But I think my point helps your argument in that once there is a stipulation and parties can't challenge that stipulation on appeal, that makes it even more difficult to show that the claim shouldn't be interpreted as it was interpreted here.

[00:16:13] Speaker 03:
That's exactly right, Your Honor.

[00:16:14] Speaker 03:
And if I understand your question,

[00:16:16] Speaker 03:
That does help our argument, absolutely.

[00:16:19] Speaker 03:
And that's exactly like what happened in the Unwired Planet case.

[00:16:22] Speaker 03:
In Unwired Planet there was a distinction between broadband and narrowband, and the argument on appeal was

[00:16:30] Speaker 03:
Well, I understand that the thing that we challenge for summary judgment may be agreed to be broadband, but now I'm going to interpret that to be narrow because it's only a part of the broadband.

[00:16:39] Speaker 03:
And the Federal Circuit here said, yes, but you can't change what the word broadband is that's in the plain meaning of the stipulated construction.

[00:16:47] Speaker 03:
And I think that applies directly here as well.

[00:16:50] Speaker 00:
Counsel, what about the sentence in 942 that says, these codes are assigned to specific devices for a single household

[00:16:59] Speaker 00:
Not individual users.

[00:17:02] Speaker 03:
Well, again, your honor, that's distinguishing with shots reference.

[00:17:05] Speaker 03:
That's exactly what he's saying.

[00:17:07] Speaker 03:
The invention is not, he goes on right after that to say what the invention is, is assigning it to individual users, not to devices.

[00:17:17] Speaker 03:
And so what shots was with shots was saying, Hey, these are device codes, not individual users.

[00:17:25] Speaker 03:
As opposed to the invention here.

[00:17:27] Speaker 03:
which is the exact phrasing, as opposed to a user code in the present invention.

[00:17:33] Speaker 03:
So that language directly supports the construction that we've always understood, that the ALJ understood, that the district court understood, and that the patent office understood.

[00:17:43] Speaker 00:
And how much does the specification help you?

[00:17:47] Speaker 03:
I think the specification helps us greatly, Your Honor.

[00:17:49] Speaker 03:
In fact, one of the parts of the specification that I think is the most helpful is at column two of the 047 patent,

[00:17:57] Speaker 03:
lines 5 through 9, the wireless digital audio music system provides private listening without interference from other users or wireless devices and without the use of conventional cables.

[00:18:13] Speaker 03:
So the specification

[00:18:14] Speaker 03:
tells us that the patent owner at the time knew the difference between users and devices.

[00:18:19] Speaker 03:
And in fact, those are completely two separate terms.

[00:18:22] Speaker 03:
And they chose to have their codes associated with users, not devices.

[00:18:28] Speaker 03:
And it makes sense, because Bluetooth, which was prior art at the time, was device specific, not user specific.

[00:18:35] Speaker 00:
How about line 66, column 2?

[00:18:39] Speaker 03:
I believe that also assists us.

[00:18:41] Speaker 03:
So there, what we have is

[00:18:43] Speaker 03:
The unique user code generated is specifically associated with one wireless digital audio system user.

[00:18:52] Speaker 03:
And it is the only code recognized by the battery powered headphone receiver operated by a particular user.

[00:18:58] Speaker 03:
So specifically the specification is telling us that the code has to be associated with a user, not a device.

[00:19:06] Speaker 03:
The reason the device comes up, it says that that's the only code the device recognizes is that user-specific code.

[00:19:15] Speaker 03:
And so it absolutely helps and supports everything absolutely.

[00:19:20] Speaker 03:
Unless Your Honor's had any other questions, I believe I've addressed everything that was raised by my learned colleague.

[00:19:25] Speaker 04:
Does this patent explain how that user code is generated or be created so that it will be communicated?

[00:19:33] Speaker 03:
No, Your Honor.

[00:19:34] Speaker 03:
In fact, the specification

[00:19:36] Speaker 03:
And while the whole specification is silent as to how that code is generated, simply that the code is generated and then sent.

[00:19:45] Speaker 03:
And that was specifically also found by the district court down below.

[00:19:51] Speaker 04:
So what we don't have is sort of

[00:19:55] Speaker 04:
What would be helpful is if you had examples in the spec, for example, like a user generating their own code or a user coming up with a specific sequence that would represent them and be inserted.

[00:20:08] Speaker 04:
You don't have something like that.

[00:20:09] Speaker 03:
We don't have anything like that, Your Honor, but nor do we have anything to the contrary.

[00:20:12] Speaker 03:
Nor do we have anything that says specifically that it's limited to or linked to anything else.

[00:20:18] Speaker 03:
Instead, it just says that the unique user code is generated.

[00:20:23] Speaker 04:
We don't know one way or the other how that can be, so it is not so limited.

[00:20:38] Speaker 03:
And that's all we know.

[00:20:41] Speaker 03:
There is a code generator within the system.

[00:20:44] Speaker 03:
that code generator is used to generate the code.

[00:20:46] Speaker 03:
It does not tell you how that code is generated.

[00:20:48] Speaker 03:
It doesn't limit it in any way.

[00:20:50] Speaker 03:
But we know that the code that is generated has to be unique to a user from the plain language of the claim, the plain language of the specification, and the plain language of the file history.

[00:21:02] Speaker 04:
Does that mean that theoretically, I'm a unique user?

[00:21:05] Speaker 04:
I could have multiple devices that would have access

[00:21:09] Speaker 04:
to this listening content because they all share my user code?

[00:21:17] Speaker 03:
So that hypothetical is not addressed in the specification, Your Honor.

[00:21:20] Speaker 03:
But I don't believe so.

[00:21:22] Speaker 03:
And the reason I don't believe so is because in the specification, you have the code generator of the device generating the unique user code.

[00:21:31] Speaker 03:
But what matters here, though, is not whether or not

[00:21:35] Speaker 03:
It can also be associated with an individual device, but the code must be associated with an individual user.

[00:21:41] Speaker 03:
That's what the claim requires.

[00:21:43] Speaker 03:
That's what the construction requires.

[00:21:44] Speaker 04:
But then the suggestion there is, even though I'm a unique user, I couldn't replicate and have that code be the code that's used on multiple devices?

[00:21:56] Speaker 03:
I'm trying to follow, Your Honor.

[00:21:57] Speaker 03:
I'm sorry.

[00:21:58] Speaker 04:
So a unique user code would imply that I have a code, like a password, that I could use on multiple devices to gain access.

[00:22:06] Speaker 04:
A unique device code would be I have a device and it has a code, and only that device of mine can gain access, but not my other devices.

[00:22:16] Speaker 03:
That's potentially true, Your Honor.

[00:22:17] Speaker 03:
However, the way that the specification describes it, it says that the code generator generates the unique user code.

[00:22:25] Speaker 03:
So it's not necessarily just something like your password.

[00:22:29] Speaker 03:
It could be something, hypothetically, it could generate the numbers four, five, six, seven, and associate it with you.

[00:22:38] Speaker 04:
From that language, if there's a co-generator generating it, then it isn't specific to me or my characteristics so much as it is specific to a particular device.

[00:22:48] Speaker 04:
That's my concern.

[00:22:49] Speaker 03:
But that concern, your honor, is dealt with specifically in the file history where they say, that's not who we are.

[00:22:55] Speaker 03:
We are not something that is limited solely to the device or that is linked to the device.

[00:23:00] Speaker 03:
We are different from that, because that's what Shots had.

[00:23:03] Speaker 03:
Shots was a system that specifically generated its codes based on the device that it was talking to.

[00:23:08] Speaker 03:
So I'll speak with speaker one on one code, speaker two on another code.

[00:23:12] Speaker 04:
What does this household versus individual user's line even mean?

[00:23:15] Speaker 04:
I don't understand that sentence.

[00:23:17] Speaker 03:
So I think all that they're meaning there is what Schatz was contemplating was that you would have within a household, for example, a stereo that had multiple speakers.

[00:23:26] Speaker 03:
And so within that household, the stereo had multiple speakers.

[00:23:29] Speaker 03:
And what they're distinguishing around, that stereo, by the way, then had individual device codes from the stereo to each speaker.

[00:23:37] Speaker 03:
And what the patent owner was saying here is,

[00:23:40] Speaker 03:
That's one-to-many.

[00:23:42] Speaker 03:
Those are device codes, because they're specific to the device.

[00:23:45] Speaker 03:
That's different from us, because there may be one-to-many or one-to-one here, but they are user-specific, not device-specific.

[00:23:52] Speaker 03:
And that's why we have the very clear sentence, as such, the Schatz code may be properly deemed a device code as opposed to a user code as in the president mentioned.

[00:24:05] Speaker 04:
I understand.

[00:24:05] Speaker 04:
And this language strongly supports you on its face.

[00:24:10] Speaker 04:
The only thing I'm struggling with is I don't understand how this patent generates a user code as I would think of a user code.

[00:24:17] Speaker 04:
I don't know what it means.

[00:24:19] Speaker 04:
I don't understand this language about what is a device code versus a user code because what you read to me from column two suggests that it's a code generator within a device that's going to generate a unique code.

[00:24:32] Speaker 04:
That code is going to be unique to that device.

[00:24:34] Speaker 04:
It actually doesn't have anything to do with the individual.

[00:24:36] Speaker 03:
Well, but they continue to say throughout the specification, they constantly distinguish the device from a user.

[00:24:41] Speaker 03:
We go back up.

[00:24:42] Speaker 04:
Where in the specification do they distinguish the device from the user?

[00:24:44] Speaker 04:
The only place I found it was the prosecution history.

[00:24:46] Speaker 03:
For example, also at column two, lines five through nine, we see the wireless digital audio music system provides private listening without interference from other users or devices.

[00:24:59] Speaker 03:
And so right there, the specification is saying a user is different.

[00:25:03] Speaker 04:
You went a little fast.

[00:25:04] Speaker 04:
Where, column two, where?

[00:25:06] Speaker 03:
Column two, lines five.

[00:25:08] Speaker 03:
This is in the 047, if you want me to.

[00:25:10] Speaker 04:
Is it the same as the 627?

[00:25:12] Speaker 03:
They're off by about three lines, I think, Your Honor, because of some reference.

[00:25:16] Speaker 04:
I'll try and go up or down, then.

[00:25:17] Speaker 03:
Go ahead.

[00:25:17] Speaker 04:
I have 627 in front of me.

[00:25:19] Speaker 03:
Oh, so 627, let me just get that for you, Your Honor.

[00:25:22] Speaker 03:
627, the same quote starts at line 10, at the end of line 10.

[00:25:27] Speaker 03:
OK.

[00:25:27] Speaker 03:
The wireless digital audio music system provides private listening without interference from other users, and then the seminal

[00:25:35] Speaker 03:
or wireless devices and without the use of conventional cable connections.

[00:25:40] Speaker 03:
And so the patent owner and the specification is telling us that users are different from devices.

[00:25:48] Speaker 03:
They go on through the remainder of that column concluding at the bottom of the column telling us that the unique user code has to be generated and it is a user code and we hear that over and over.

[00:26:02] Speaker 04:
Is that the only place, I haven't done a word search, is that column two about line 10ish the only place where they talk about devices as opposed to users?

[00:26:13] Speaker 03:
No, no, Your Honor.

[00:26:14] Speaker 04:
They don't really talk about devices in column one, but it's not sort of contrasted with users or in a sentence.

[00:26:20] Speaker 03:
So column two, Your Honor, is the only place that I saw where there was an absolute

[00:26:24] Speaker 03:
distinction between user or device.

[00:26:27] Speaker 03:
But throughout the remainder of the specification, they talk about users as being humans.

[00:26:33] Speaker 03:
And I don't think that's not disputed here.

[00:26:36] Speaker 03:
In fact, page eight of the blue brief says that a user is a human.

[00:26:40] Speaker 03:
They talk about humans wearing headphones.

[00:26:42] Speaker 03:
That's certainly what humans do.

[00:26:43] Speaker 03:
And they talk about the devices as being the device that holds the transmitter.

[00:26:49] Speaker 03:
So there's multiple discussions of devices.

[00:26:52] Speaker 03:
We see in column 1, for example, audio players.

[00:26:55] Speaker 03:
This is at lines 57 through 58.

[00:27:01] Speaker 03:
Music audio player devices, i.e.

[00:27:03] Speaker 03:
the previously mentioned music device to allow encoded.

[00:27:07] Speaker 00:
Column 3 helps you too, doesn't it?

[00:27:09] Speaker 03:
Absolutely it does, Your Honor.

[00:27:11] Speaker 00:
At line 23, specific to a particular user?

[00:27:15] Speaker 03:
That's absolutely correct, Your Honor.

[00:27:17] Speaker 03:
And that's actually- Line 31?

[00:27:19] Speaker 03:
Correct, Your Honor.

[00:27:20] Speaker 03:
And the line, the one that's even more important about line 23 that Your Honor is pointing to, is that's the specific portion of the specification cited by the applicant at the time that there was support for a specific user in the file history at that time.

[00:27:40] Speaker 04:
OK.

[00:27:41] Speaker 04:
Thank you, Ms.

[00:27:41] Speaker 04:
Keyes.

[00:27:42] Speaker 03:
I appreciate it, Your Honors.

[00:27:43] Speaker 03:
Thank you very much.

[00:27:46] Speaker 04:
You'll help her.

[00:27:47] Speaker 04:
You have some rebuttal time.

[00:27:49] Speaker 01:
Thank you, Your Honors.

[00:27:51] Speaker 01:
So I guess I'd like to just point out that we mentioned in our briefing that there are numerous instances where applicant use the term users, but plainly refer to devices in that use.

[00:28:05] Speaker 01:
And I won't go into every single one of them, but I can point out that we've identified these in our reply brief at page 22 and also in our... How can we interpret patents or contracts

[00:28:17] Speaker 00:
Would we say one word plainly means something different?

[00:28:21] Speaker 01:
Well, I think when you understand the context of the invention where the devices use the unique user code without question to distinguish transmissions to provide private listening for a user, that's why it's a user code, because the user is enjoying the benefit of that code.

[00:28:40] Speaker 01:
But when you understand that, it becomes a matter of convenience to just use less words

[00:28:45] Speaker 01:
when you're talking about interference from a source, interference from other users.

[00:28:49] Speaker 00:
Patents are written specifically.

[00:28:52] Speaker 00:
Section 112 users particularly point out and claim.

[00:28:57] Speaker 00:
Patents are not vague documents.

[00:29:00] Speaker 01:
I understand.

[00:29:00] Speaker 01:
I will only add that when you talk about, for example, a statement that says, interference from other users, we know that there's no dispute on this record

[00:29:12] Speaker 01:
that humans are incapable of generating transmissions in the high kilohertz range, the megahertz range, or the gigahertz range.

[00:29:19] Speaker 01:
And so it really isn't, it's not really, you wouldn't understand with common sense that interference is coming from a user.

[00:29:27] Speaker 01:
It really is the devices that you're talking about.

[00:29:30] Speaker 01:
We submit that that's clear when you read the uses, the many uses that applicant made of user in several instances.

[00:29:38] Speaker 01:
So that's one point.

[00:29:39] Speaker 01:
And then secondly, I'd like to point out that

[00:29:42] Speaker 01:
You know, Apple's placing a lot of emphasis on the use of the word user, as if simply using the word user, you can import some meaning.

[00:29:50] Speaker 01:
Well, that must bring with it identity information that must be associated.

[00:29:57] Speaker 01:
We must account for that here.

[00:29:58] Speaker 01:
When we talk about a user, yes, we're assigning the code.

[00:30:01] Speaker 01:
We're assigning the code to an identity of a user.

[00:30:05] Speaker 00:
Or the code must follow a particular... One of the parties here is Apple.

[00:30:09] Speaker 00:
You're almost saying,

[00:30:11] Speaker 00:
We have not apples, but oranges.

[00:30:16] Speaker 01:
Well, I think that's fair.

[00:30:19] Speaker 01:
When we think about user, it's simply not a gateway to import all of these narrowing limitations, just simply because you've used the term user.

[00:30:29] Speaker 01:
Apple has indicated in its brief it's not really supporting the narrowing limitations that the district court added in its interpretation.

[00:30:35] Speaker 01:
But Apple is saying that it does think that the unique user code should be

[00:30:39] Speaker 01:
should contain or reflect identity information about a user.

[00:30:42] Speaker 01:
It should follow a user.

[00:30:43] Speaker 01:
The code should change in the device when it changes hands from one human to another.

[00:30:48] Speaker 01:
Or the code, somehow it can't be user agnostic just because of the word user.

[00:30:54] Speaker 01:
It really doesn't follow.

[00:30:55] Speaker 01:
It's not in the intrinsic record anywhere.

[00:30:58] Speaker 04:
Well, Counsel, we're well beyond our time.

[00:31:00] Speaker 04:
So I thank you, Counsel, for taking another submission.