[00:00:00] Speaker 02:
For today's last argument, appeal number 23-1058, Smart Sky Networks versus GoGo Business Aviation.

[00:00:09] Speaker 01:
May it please the court.

[00:00:11] Speaker 01:
Smart Sky filed this appeal to stop the irreparable harm that GoGo's infringement is causing to Smart Sky.

[00:00:17] Speaker 01:
The district court made multiple legal and factual errors

[00:00:21] Speaker 01:
and finding that Smart's guide failed to show likelihood of success on the merits and irreparable harm.

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The merits issues are dominated by questions of claim construction, which this court reviews with no deference to the lower court's findings.

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Regarding irreparable- These are preliminary constructions, tentative constructions being done at this preliminary injunction phase.

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As I understand our case law, we don't require a true Markman-style definitive claim construction by the district court to decide a preliminary injunction.

[00:00:53] Speaker 02:
Is that right?

[00:00:54] Speaker 01:
That's correct, Your Honor.

[00:00:55] Speaker 01:
The constructions at the court

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uh, performs at the preliminary injunction stage are not, uh, and don't necessarily need to be, uh, conclusive and those can change later in the case.

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However, they still, uh, are, are subject to review by this court and in compliance with standard doctrines behind construction.

[00:01:14] Speaker 02:
Uh, has there been a Markman hearing yet?

[00:01:16] Speaker 01:
No, your honor.

[00:01:17] Speaker 01:
Okay.

[00:01:18] Speaker 01:
All right, go ahead.

[00:01:20] Speaker 01:
Regarding irreparable harm, the district court made factual errors and disregarded multiple facts that this court has repeatedly found

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establish irreparable harm.

[00:01:29] Speaker 01:
In my limited time today, I'd like to focus with respect to the merits on two issues.

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First, the district court's improper narrowing of the 947 and 417 patent claims to only cover soft handoffs and excluding hard handoffs.

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And second, with respect to the 717 patent, the district court's narrowing of those claims to require a first base station that employs solely unlicensed spectrum and a second base station that employs solely licensed spectrum.

[00:01:57] Speaker 01:
Regarding irreparable harm, I'd like to focus on the district court's errors with respect to the imminence of the harm that SmartSky is facing, price erosion, reputational harm, and whether the harm is quantifiable.

[00:02:12] Speaker 01:
Turning first to the 947 and 417 patents, the district court's construction narrowing those claims to only soft handoffs is inconsistent with multiple embodiments in the specification.

[00:02:23] Speaker 01:
Specification explains that... Take you out of order.

[00:02:25] Speaker 00:
I apologize for that.

[00:02:26] Speaker 00:
Did SmartSky's expert admit that any loss sales would be quantifiable through trial?

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Do you agree?

[00:02:33] Speaker 01:
I do not agree, Your Honor.

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That is on appendix pages 295 and 296.

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And then he further expounded on it in a second rebuttal declaration at appendix 8112 through 8121, where

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Mr. Cook, SmartSky's economic expert, said the majority of these damages are not quantifiable at trial.

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And he explained the reason for that and said there's actually multiple reasons.

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First, there are a number of customers where it's unknown that may be waiting until to decide now that they have two options, whereas SmartSky would be the only option if it weren't for GoGo's 5G in terms of upgrading to their

[00:03:22] Speaker 01:
to the improved performance of the ATG network.

[00:03:27] Speaker 02:
What about at 6922-23, where the question went, you agree that a portion of SmartSky's lost sales and lost profits can in fact be quantified as damages throughout the time of trial?

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Answer, yes, I indicate that specifically in my declaration.

[00:03:45] Speaker 01:
Yes, it's a portion of it, a portion.

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You can always count sales and multiply the number of units sold by revenue per unit.

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However, there's a time component to this as well, as what Mr. Cook explained, where he said,

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even if there's an infringement found and there's a permanent injunction at the end of the trial.

[00:04:05] Speaker 02:
I guess, you know, it says here the specific portion that you agree is quantifiable is lost sales and service revenue through the date of trial, correct?

[00:04:14] Speaker 02:
Answer, yes.

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So it seems like he's saying lost sales and service revenue is quantifiable through the date of trial.

[00:04:28] Speaker 01:
Well, in a declaration that he submitted after that deposition, and this is on Appendix 8116, he explains that even during this interim period through trial, there's an unknown number of customers that may be holding out and determining which one they're going to decide on, as well as customers that have selected GoGo in this interim period that may have selected SmartSky if it weren't for the option of GoGo 5G.

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And when that decision would have been made is indeterminable.

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And the time factor is a key component here because there's not just the equipment revenue, there's the monthly subscription revenue.

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So when those customers sign up for Smart Sky, that affects the total revenue.

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And that's the part that's indeterminable and that Mr. Cook explained in his declaration.

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Do you have a trial date yet?

[00:05:19] Speaker 01:
It is in 2025.

[00:05:22] Speaker 01:
I believe it's spring or summer of 2025.

[00:05:26] Speaker 01:
Turning back to the 947 and 417 patents, the district court's construction is inconsistent with multiple embodiments in the specification.

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The specification explains that there are two standards that can be used, the 802.16 standard and the LTE standard.

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And the specification explains that the data communications link is maintained continuous and uninterrupted using those standards.

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Smart Sky's technical expert, Dr. Goldberg, explained that both of those standards require hard handoffs.

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So the district court's construction limiting the claims to only soft handoffs is inconsistent with multiple embodiments.

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The same is true for the dependent claims.

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The district court's construction violates claim differentiation because claim four recites that the data communications link is maintained continuous and uninterrupted.

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according to LTE.

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The claim says maintained, continuous and uninterrupted in time.

[00:06:25] Speaker 02:
I'm just wondering what work do you think the phrase in time is doing in the claim?

[00:06:29] Speaker 01:
Your Honor, I think it's focusing on the

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data communications link generally, which Dr. Goldberg, Smart Guys Technical Expert, explains, includes multiple layers, and we're not focusing just on the physical layer.

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So I'm not sure I have a definitive answer to your question on what specifically in time means, but the... To me it suggests it's not

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it is forcing a certain understanding of the continuity of the link to not be referencing what a user might be experiencing, but something more on a technical level as to whether, is there any point in time that the link is not interrupted?

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The question then is, are we talking about the physical layer or the data communications link?

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Now, GOGO's position is focusing on the physical layer.

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And that's the difference between a soft handoff and a hard handoff.

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But the claim is written more broadly and focused on the data communications link, which encompasses multiple layers.

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And I know you're saying 802.16 encompasses using hard handoffs, right?

[00:07:45] Speaker 02:
Yes, sir.

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And not only the other side.

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makes reference to something in column three of the 9477, which talks about how there might be technology adaptations to achieve connectivity with an aircraft in flight.

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And then column nine, the lower half of it, starting at line 41, seems to be talking about a modified version of 802.16.

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will include extra protocols and code that are not part of 802.16 in order to have an effective communication continuous and uninterrupted in time with aircraft at jet speed.

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So I guess what I'm wondering is, is the specification itself contemplating what's

[00:08:38] Speaker 02:
that the use of 802.16 in WiMAX is not necessarily the normal default version of it, but it's going to need to be some kind of modified version of it with new protocols and code added in in order to make this thing work with communication with a moving jet plane.

[00:09:00] Speaker 01:
80216E standard is a very large standard.

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It has many options that can be used or not used, but as Dr. Goldberg explained, and he pointed to multiple references in the appendix, it's page 9136 where it says hard handoffs are required.

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And so while there are many options that could be used when implementing 802.16, the hard handoffs are a requirement.

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And so these other portions of the specification that reference other adaptations that may be made, our position is that it still doesn't change the fact that hard handoffs are required in the standard.

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And that's how one of ordinary skill in the art would understand the specification.

[00:09:47] Speaker 01:
The second issue I'd like to move on to on the merits is the district court's improper narrowing of the claims to solely using unlicensed spectrum in one base station and solely using licensed spectrum in the other base station.

[00:10:07] Speaker 01:
The district court, the only justifications provided were that the plain language of the claim requires the word solely to be inserted.

[00:10:14] Speaker 02:
I'm just curious, were this claim one in the 717 path?

[00:10:18] Speaker 02:
What would you say is the point of novelty in this claim?

[00:10:22] Speaker 01:
Well, it's a combination, Your Honor.

[00:10:24] Speaker 02:
Because other than the first base station employing unlicensed spectrum and the second base station employing licensed spectrum, everything else in this claim looks pretty basic about two base stations communicating with an aircraft and then doing a handover between the two base stations.

[00:10:46] Speaker 02:
as you move from one coverage area to the other.

[00:10:50] Speaker 02:
And then anything that looks potentially distinctive is the idea of one base station using license spectrum and the other station using unlicensed spectrum.

[00:11:01] Speaker 02:
Am I missing something about this claim?

[00:11:04] Speaker 01:
Yes, Your Honor.

[00:11:04] Speaker 01:
The difference is that in the prior art, the base stations oriented their radiation patterns up in the upward direction.

[00:11:13] Speaker 01:
So in this claim, the difference is

[00:11:15] Speaker 01:
you orient the pit radiation pattern toward the horizon.

[00:11:18] Speaker 01:
The reason this is significant is because you have a plane that is located further away from the base station.

[00:11:25] Speaker 01:
So by orienting it toward the horizon, the plane can communicate with a base station that is more distant.

[00:11:30] Speaker 01:
And the reason that's significant is because you can use unlicensed spectrum because unlicensed communications that are going on below the aircraft are not going to be a problem because the aircraft is not looking down.

[00:11:42] Speaker 01:
It's looking out toward the horizon.

[00:11:44] Speaker 01:
And so that's the key

[00:11:45] Speaker 01:
The key benefit is that you can use unlicensed spectrum as opposed to licensed spectrum.

[00:11:51] Speaker 02:
So if we go with your construction of these two limitations, does that mean these limitations are really doing no work in the claim?

[00:12:02] Speaker 02:
Because the first base station can employ unlicensed or licensed spectrum, and the second base station can employ licensed or unlicensed.

[00:12:11] Speaker 01:
No, Your Honor.

[00:12:12] Speaker 01:
The first base station still must employ unlicensed spectrum.

[00:12:16] Speaker 01:
So if there's a base station that employs only licensed spectrum, that cannot read on the first base station.

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And the opposite is true for the second base station.

[00:12:24] Speaker 01:
It has to employ at least licensed spectrum.

[00:12:27] Speaker 01:
So any base station that employs only unlicensed spectrum would not meet that limitation.

[00:12:30] Speaker 01:
So there still is a distinction there.

[00:12:33] Speaker 01:
It doesn't require both base stations to use both licensed and unlicensed, but it does cover that scenario.

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And that's our position on the construction of those terms.

[00:12:45] Speaker 00:
Two questions before you may want to save some rebuttal time.

[00:12:48] Speaker 00:
Do you agree that Advance L5 is not infringing?

[00:12:52] Speaker 01:
Advance L5 is a necessary component to the infringing, the accused product, the GoGo 5G.

[00:13:00] Speaker 01:
And GoGo has said repeatedly,

[00:13:04] Speaker 01:
that the Avance L5, the reason that its sales are so good is because of that upgradability option to GoGo 5G.

[00:13:15] Speaker 01:
So our position is that it is a component of the infringing product, yes.

[00:13:20] Speaker 00:
And has this GoGo 5G network been released?

[00:13:23] Speaker 00:
Let me just make sure I understand exactly where we stand.

[00:13:26] Speaker 01:
Yes, thank you, Your Honor.

[00:13:26] Speaker 01:
I was going to get to that point.

[00:13:28] Speaker 01:
That's an error that the district court made, is found that the harm to SmartSky is not imminent because the 5G network has not yet been released.

[00:13:37] Speaker 01:
But whether customers have actually started using it or not, which they haven't, that's expected later this year, is not the relevant question.

[00:13:45] Speaker 01:
The question is, there are sales that have been made in their latest SEC files.

[00:13:50] Speaker 00:
Did you just answer my question, though?

[00:13:51] Speaker 00:
Has it been released?

[00:13:52] Speaker 01:
Can you start there?

[00:13:54] Speaker 01:
Customers are not actively using it yet.

[00:13:57] Speaker 01:
The network is complete.

[00:13:59] Speaker 01:
There is a delay in the chip set that goes on the plane.

[00:14:03] Speaker 01:
So customers are not actually using it yet.

[00:14:06] Speaker 00:
That means it's not been released?

[00:14:07] Speaker 00:
I feel like I'm struggling here.

[00:14:09] Speaker 01:
I'm starting to understand the word released.

[00:14:12] Speaker 01:
It's not being actively used by customers yet, but they are selling subscriptions and installing them.

[00:14:18] Speaker 02:
Because they don't have the chipset needed yet.

[00:14:21] Speaker 02:
Right?

[00:14:22] Speaker 01:
Correct.

[00:14:22] Speaker 01:
There's a delay.

[00:14:23] Speaker 02:
And so there's nobody anywhere that you know that today can actually do all the steps of any of these claims.

[00:14:35] Speaker 02:
Is that right?

[00:14:36] Speaker 01:
Well, Gogo is offering to sell and has sold the system that performs these steps.

[00:14:43] Speaker 01:
So that's the act of infringement.

[00:14:44] Speaker 01:
And because those customers, once they sign up with the average lifespan of 17 years, those customers are now gone for essentially two decades.

[00:14:53] Speaker 01:
And so that's the key point of the irreparable harm, that those customers are now off the table, regardless of whether they're actually using the 5G network yet or not.

[00:15:03] Speaker 02:
Okay, we'll restore some amount of time.

[00:15:08] Speaker 02:
Thank you.

[00:15:11] Speaker 03:
May it please the court, Nathaniel Love for Gogo.

[00:15:24] Speaker 03:
I'd like to actually start with

[00:15:26] Speaker 03:
the statements about irreparable harm at the beginning of counsel's discussion.

[00:15:31] Speaker 03:
The holdout theory that was articulated, counsel referenced timing as to certain customer purchases.

[00:15:37] Speaker 03:
To be clear, the court is absolutely correct that Mr. Cook conceded that for lost sales and service revenues up to the time of trial, that is quantifiable and something they could attempt to recover as damages.

[00:15:48] Speaker 03:
The holdout theory that's articulated came only in his reply declaration.

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It wasn't part of the motion.

[00:15:53] Speaker 03:
It wasn't a theory of irreparable harm that was articulated as a basis to grant this extraordinary relief.

[00:15:59] Speaker 03:
So it can be dismissed for that reason alone.

[00:16:01] Speaker 03:
But it's also entirely based on speculation that the idea was

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Even if they prevailed at trial and there were a permanent injunction, some customers might be slow to switch and they were uncertain as to the timing of what that might be.

[00:16:14] Speaker 03:
And that is something that is far off in time and the kind of speculative harm that this court has not found sufficient to support this relief.

[00:16:22] Speaker 03:
With that, I'll turn to the question on the 947 and 417 patents and the continuous and uninterrupted in time.

[00:16:30] Speaker 03:
I want to step back to make sure it's clear how we even get to a claim construction question.

[00:16:35] Speaker 03:
SmartSky's motion articulated a theory that make before break soft handovers were what was covered by these claims, and that Gogo infringed because Gogo's system would use that type of handover.

[00:16:49] Speaker 03:
That was their motion.

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That assumption about Gogo's system, as it turns out, was wrong, and so Gogo pointed out in his opposition that Gogo would not perform make before break handovers.

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And so with that, they have to carry a burden of proof showing the likelihood of success on the merits, and they didn't do it.

[00:17:05] Speaker 03:
This claim construction issue only arises because in reply they took a very different view of the claims and said well actually we cover all kinds of

[00:17:14] Speaker 03:
make before break, and these hard handoffs, the break before make.

[00:17:18] Speaker 03:
And the district court entertained that argument.

[00:17:21] Speaker 03:
The district court did entertain that argument, and that's why it reached it.

[00:17:24] Speaker 02:
But of course, this- So you're not arguing some kind of waiver or forfeiture to us, are you?

[00:17:28] Speaker 03:
I'm not, your honor.

[00:17:29] Speaker 03:
I'm simply saying that the failure of the motion itself to carry their burden of proof would be a reason for this court to affirm, because it can do so on any basis of the record, without actually reaching the claim construction question.

[00:17:40] Speaker 02:
But I'm happy to- People already passed on this, so.

[00:17:42] Speaker 02:
We are where we are.

[00:17:43] Speaker 03:
Certainly, and happy to reach it, Your Honor.

[00:17:45] Speaker 03:
So as far as the claim construction that the District Court reached, you're right that it's preliminary, and it's based on the record that was provided in this fashion where it was raised for the first time only in the second half of the briefing.

[00:17:57] Speaker 03:
The key really is what the inventor said and how the inventor characterized their invention, and that's something a counsel didn't address.

[00:18:04] Speaker 03:
That's the intrinsic evidence that's really most persuasive.

[00:18:07] Speaker 03:
The claim language itself, as you recognize, continuous,

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uninterrupted in time certainly suggests no interruption.

[00:18:14] Speaker 03:
But then you go and look at the declaration that the inventor put in, which is at Appendix 6801, characterizing what was actually conceived and how what he conceived accomplished continuous and uninterrupted in time.

[00:18:28] Speaker 03:
And at 6802, there's actually a claim chart that the inventor provided.

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And there's a claim chart linking continuous and uninterrupted in time to two exhibits that he attached.

[00:18:40] Speaker 03:
So in the chart at 6802, corresponding to continuous and uninterrupted in time, he references a letter, the sixth paragraph of exhibit A, which describes a seamless handoff from one tower to the next, responsive to the plane being connected to two towers at the same time.

[00:18:56] Speaker 03:
So that simultaneous connection of a plane between two towers, that's a soft handoff.

[00:19:02] Speaker 03:
He goes on in his claim chart to say, Exhibit B shows adjacent stations in simultaneous communication with the same plane.

[00:19:09] Speaker 03:
The coverage areas overlap, so the seamless handoff occurs as the plane travels between them.

[00:19:15] Speaker 03:
And the letter and the figure that are being referenced in this declaration are at 6808.

[00:19:19] Speaker 03:
That's the letter that says every plane is connected to two pencil beams, allowing for a seamless handoff from one tower to the next.

[00:19:28] Speaker 02:
And the figure... Where are you right now?

[00:19:30] Speaker 03:
I am, I apologize if I'm moving too quickly, Your Honor.

[00:19:33] Speaker 03:
So 6802 is the claim chart, and the claim chart references in Exhibit A, which is found at 6808.

[00:19:39] Speaker 03:
The claim chart points the reader to the sixth paragraph, which is the second to last paragraph of Exhibit A. And in the middle of that paragraph, the inventor writes, also note, every plane is connected

[00:19:54] Speaker 03:
to two pencil beams, allowing for a seamless handoff from one tower to the next.

[00:19:59] Speaker 03:
So that's the soft handoff.

[00:20:02] Speaker 03:
And then exhibit B, there is a figure, and it's found at 6810.

[00:20:08] Speaker 03:
There's a slightly clearer picture at 6838, and it's just an image that shows, consistent with the description,

[00:20:16] Speaker 03:
that there are simultaneous connections between a plane and two towers.

[00:20:20] Speaker 03:
So there is no point in time where the aircraft is not connected to at least one tower.

[00:20:28] Speaker 03:
That's the intrinsic evidence that really bears on the construction of this.

[00:20:31] Speaker 03:
Everything else they're pointing to is largely extrinsic evidence.

[00:20:35] Speaker 03:
The only argument they make based on the patent is about these standards, about 802.16 and about LTE.

[00:20:42] Speaker 03:
And as the court, Judge Chen, you rightly recognized, the specification contemplates that those standards may need to be modified, including in column nine, as you highlighted, possibly with respect to this claim limitation.

[00:20:55] Speaker 02:
You didn't refer to column nine in your brief.

[00:20:57] Speaker 02:
I'm just curious why you didn't.

[00:21:00] Speaker 03:
What we did refer to, Your Honor, is Appendix 41 and 42, those earlier columns which mentioned modifications.

[00:21:06] Speaker 03:
You're right, column nine was not actually cited in our brief.

[00:21:09] Speaker 03:
I'd have to go back and check to see if it was in the district court papers.

[00:21:12] Speaker 03:
But the point that's made on Appendix 41 to 42, I believe that's columns two and three, is that the standards may need to be modified.

[00:21:22] Speaker 03:
There's nothing in the specification that discusses handover in these standards at all.

[00:21:27] Speaker 03:
As counsel conceded, these technical standards are thousands, potentially, of pages of documents covering all aspects of the standard.

[00:21:35] Speaker 03:
And there's nothing in the patent that specifically highlights, of course, we will accomplish handover in exactly the same way with no modification.

[00:21:42] Speaker 03:
There's nothing like that at all.

[00:21:44] Speaker 02:
But we all agree 608.12 covers hard handoffs.

[00:21:50] Speaker 03:
So the standard as described, there's not a debate over whether the LTE standard or the 802.16 standard describes hard hand-offs.

[00:21:59] Speaker 03:
The question is whether by mentioning that the invention can be implemented in the setting of those standards, also mentioning that the standards may need to be modified in order to do so without explaining what modifications might be necessary,

[00:22:14] Speaker 03:
that somehow creates an exclusion of embodiments or a claim differentiation problem.

[00:22:19] Speaker 03:
And it doesn't because there's nothing said in the patents about whether or not the modifications would include or not include a need to modify the handover procedures.

[00:22:28] Speaker 03:
And certainly that vagueness can't overcome the very clear statements that the inventor made about how continuous and uninterrupted in time would be accomplished in his inventions.

[00:22:42] Speaker 03:
I'd like to move to the 717 if there are no more questions on continuous uninterrupted.

[00:22:47] Speaker 03:
So to the point about the point of novelty, the articulation just now was that the orienting antennas toward the horizon was the point of novelty.

[00:22:59] Speaker 03:
That particular issue didn't come up in the briefing, but if you look at appendix 4673, the prosecution history of one of the other patents, there's a prior reference

[00:23:10] Speaker 03:
with disclosing that same claim limitation.

[00:23:12] Speaker 03:
And so if that's the point of novelty, that's found in the prior art.

[00:23:16] Speaker 03:
But to your questions, Judge Chen, under the interpretation of this patent that they're articulating at this stage, these limitations about the licensed spectrum and unlicensed spectrum as used between the two base stations really don't do anything.

[00:23:29] Speaker 03:
They don't serve any purpose.

[00:23:32] Speaker 03:
This has been a moving target as to what actually their interpretation of these claims is.

[00:23:38] Speaker 02:
Initially, their view seemed to be... Well, normally, if the limitations that a base station employs licensed spectrum, that limitation doesn't necessarily now all of a sudden exclude the ability for that base station to employ unlicensed spectrum, does it?

[00:23:55] Speaker 03:
In isolation, Your Honor, I agree, but it's not an isolation.

[00:24:00] Speaker 02:
The limitation just... We know that that base station must, among possible other things, use licensed

[00:24:08] Speaker 03:
That's correct.

[00:24:09] Speaker 03:
In the context of reading the claim, the claim says there's a first base station using unlicensed, there's a second base station using licensed, and then it goes on further to describe an interaction between those systems.

[00:24:20] Speaker 03:
An aircraft travels from the coverage area of one to the coverage area of the second, and there's a handover between them.

[00:24:26] Speaker 03:
And in the context of reading that, what the district court understood the claim to mean

[00:24:31] Speaker 03:
and what a person of ordinary skill reading the claim would understand is, you're talking about a handover between the unlicensed spectrum, and the first base station is using, to the licensed spectrum, so a cross network or cross spectrum handover.

[00:24:45] Speaker 03:
The articulation of infringement in the motion, and in the expert declaration that accompanied it, was that GoGo's network would operate in that way, and there would be these cross network handovers.

[00:24:56] Speaker 03:
Again, that's an assumption that turned out to be wrong,

[00:24:59] Speaker 03:
And so they shifted to a new theory of what these claims might mean in their reply brief in the district court.

[00:25:04] Speaker 03:
So we're reaching this claim construction issue in the same way that we did in the other ones.

[00:25:08] Speaker 02:
In Gogo's 5G network, are those base stations capable of doing a handover between an unlicensed spectrum and a licensed spectrum?

[00:25:21] Speaker 03:
No.

[00:25:22] Speaker 03:
There is a declaration from Mr. Liu, who is Gogo's engineer.

[00:25:26] Speaker 02:
I'm not asking whether

[00:25:28] Speaker 02:
It's intended to be used that way.

[00:25:30] Speaker 02:
I'm just wondering, structurally, as configured, are they even capable of it?

[00:25:39] Speaker 03:
I think that question is... Honestly, I'm not quite certain I can answer that question, certainly not based on this record.

[00:25:46] Speaker 03:
The way the base stations are set up and what Mr. Liu is describing, there are no such cross-network handovers.

[00:25:53] Speaker 03:
The systems in GoGo's 5G network, as Mr. Liu describes them, are effectively operating in parallel.

[00:26:01] Speaker 03:
And so as the plane is traveling across the country, there is a radio that can communicate with the base stations on the ground, which operate in licensed spectrum.

[00:26:10] Speaker 03:
And there is a separate radio on the plane that can communicate with the base stations on the ground that are using

[00:26:16] Speaker 03:
forget if I started with licensed or unlicensed, the other type of spectrum.

[00:26:20] Speaker 03:
When it travels between these coverage areas, each of those radios, as necessary, engages in handovers solely on the slice of spectrum that they're using with the base stations that use that spectrum.

[00:26:32] Speaker 03:
There's never any crossing over between those radios.

[00:26:35] Speaker 03:
They simply change over when they need to as they travel between the coverage areas.

[00:26:42] Speaker 03:
effectively computers and software on the plane that then are deciding with respect to network traffic coming from the aircraft to the ground which of those networks to use based on what the conditions are and what speeds are currently being supported.

[00:26:54] Speaker 03:
That's how the system operates.

[00:26:56] Speaker 03:
It just does not operate in the way that's described in the claims.

[00:26:59] Speaker 03:
It doesn't operate the way they articulated in their motion and that's why the district court found they failed to carry their burden of proof.

[00:27:11] Speaker 00:
In order for you to prevail

[00:27:12] Speaker 00:
we just have to agree on district courts take on either irreparable harm or likelihood of success, is that right?

[00:27:19] Speaker 03:
That's correct, Your Honor, yes.

[00:27:20] Speaker 03:
Either one would be a basis to affirm.

[00:27:22] Speaker 03:
So even if there were questions about the preliminary planning constructions, as I've argued, there's actually no need to reach them, but there's certainly not in or because you can affirm irreparable harm alone.

[00:27:32] Speaker 03:
So if there are no further questions about any of these issues, we'd rest on our briefs on the remaining points.

[00:27:37] Speaker 03:
Okay, thank you.

[00:27:40] Speaker 02:
Let's hear

[00:27:41] Speaker 02:
from the appellant for two minutes.

[00:27:43] Speaker 01:
Thank you, Your Honor.

[00:27:44] Speaker 01:
May it please the Court?

[00:27:45] Speaker 01:
I'd like to address a couple of points here.

[00:27:47] Speaker 01:
First, with respect to the prosecution history, where the inventor submitted a declaration showing soft handoffs as an example of the continuous and uninterrupted limitation.

[00:27:58] Speaker 01:
As we explained in our briefs, that's not the clear disavowal that Gogo was arguing for here.

[00:28:04] Speaker 01:
He submitted a declaration showing an example of a continuous and uninterrupted

[00:28:09] Speaker 01:
data communications link.

[00:28:11] Speaker 01:
And the examiner had cited a prior art reference that showed a soft handoff.

[00:28:17] Speaker 01:
And so that's why the inventor submitted a declaration showing that, too.

[00:28:20] Speaker 01:
That doesn't mean that the data communications link is limited only to soft handoffs.

[00:28:25] Speaker 01:
It's one example.

[00:28:26] Speaker 01:
And so that's why it's not a limiting disclaimer or disavow, which is a very high burden, is not met here.

[00:28:33] Speaker 01:
Secondly, with respect to irreparable harm,

[00:28:37] Speaker 01:
And whether Mr. Cook conceded that sales are quantifiable, Mr. Cook also explained that there's other non-quantifiable issues here of irreparable harm, such as price erosion and reputational harm.

[00:28:51] Speaker 01:
And the district court found that with respect to price erosion, that Smart Guys' arguments were merely conclusory and submitted no economic analysis.

[00:29:00] Speaker 01:
And that's a clear factual error.

[00:29:02] Speaker 01:
Mr. Stone, Smart Guys' president, in his deposition,

[00:29:06] Speaker 01:
noted eight different customers that have cited GoGo's 5G network as a reason why SmartSky needs to lower its price.

[00:29:13] Speaker 01:
That's direct evidence of price erosion.

[00:29:15] Speaker 01:
Mr. Cook also provided an analysis of price erosion at appendix 302 and 03 and 8125 to 8127 explaining the price erosion.

[00:29:24] Speaker 02:
I thought there was something in the record that SmartSky set its prices for its system before

[00:29:33] Speaker 02:
Gogo came out with its 5G system and was really trying to under-price Gogo's 4G system.

[00:29:40] Speaker 01:
Well, I see I'm running out of my rebuttal time, Your Honor, if I can answer the question.

[00:29:44] Speaker 01:
So in the 4G system, the prior system you referenced, that there was included within that was this Advanced L5.

[00:29:53] Speaker 01:
And Mr. Stone explained that.

[00:29:54] Speaker 01:
So it's a necessary component of the 5G.

[00:29:56] Speaker 01:
And so it's all connected in that the 5G capability and the upgrade capability to 5G that's provided by this Advanced L5 component was a factor in the pricing.

[00:30:08] Speaker 01:
And so, again, Mr. Stone explained that multiple customers have pointed to the 5G option as a reason why Smart Sky needs to lower its price in order to secure customers.

[00:30:21] Speaker 01:
Thank you very much.

[00:30:22] Speaker 01:
Thank you.

[00:30:22] Speaker 02:
I thank both counsel and cases submitted.

[00:30:26] Speaker 02:
That concludes today's arguments.