[00:00:00] Speaker 01:
The first case for argument is 22-1125 XR Communications versus Error Solutions.

[00:00:07] Speaker 01:
Mr. Mirzai?

[00:00:10] Speaker 01:
Exactly, Your Honor.

[00:00:11] Speaker 01:
Welcome.

[00:00:11] Speaker 01:
Please proceed.

[00:00:12] Speaker 04:
Thank you.

[00:00:14] Speaker 04:
Good morning.

[00:00:16] Speaker 04:
May it please the Court?

[00:00:19] Speaker 04:
Reza Mirzai for XR Communications, the appellate in this case.

[00:00:23] Speaker 04:
Your Honors, the district court erred as a matter of law in construing the claim limitation search receiver logic as a means plus function term.

[00:00:31] Speaker 04:
It erred in misinterpreting and misapplying this court's post-Williamson precedent and holding, and I quote, a known class of structures cannot be sufficient under the Williamson standard.

[00:00:42] Speaker 04:
It then discounted all of the evidence in the case applying the correct standard and applied a novel one, namely,

[00:00:50] Speaker 04:
whether there was evidence that a posita would have known how the disputed term was actually capable of performing.

[00:00:57] Speaker 01:
Well, let me ask you.

[00:00:58] Speaker 01:
So this is about the legal standard.

[00:01:00] Speaker 01:
Don't our cases, including Williamson, require that the structure be capable of performing claim function?

[00:01:08] Speaker 01:
That, to me, it seems, is the standard that the district court applied.

[00:01:13] Speaker 01:
And it seems to me, and I want to hear if you think I'm wrong, that our cases certainly support

[00:01:20] Speaker 04:
standard?

[00:01:22] Speaker 04:
Williamson does not support that standard for the threshold question, Your Honor, of whether the term is construed as a means plus function term in the first place.

[00:01:34] Speaker 04:
Under Williamson and the post-Williamson case law, the court must look at whether the disputed term

[00:01:41] Speaker 04:
that is recited in the claim as performing the recited function, whether that disputed term is sufficiently structural to be known to a posita as a name for structure.

[00:01:54] Speaker 04:
And this court's post-Williamson precedent

[00:01:56] Speaker 04:
has held that known terms of art consistently, that known terms of art, as in this case, would be sufficiently structural, and that classes of structure are also sufficiently structural.

[00:02:09] Speaker 04:
And that has been consistently applied without exception on both of those items.

[00:02:14] Speaker 04:
Your Honor, this case has unrebutted evidence.

[00:02:17] Speaker 04:
Both sides agree?

[00:02:18] Speaker 03:
Before you move on to the evidence, could you help us, though, on the standard?

[00:02:21] Speaker 03:
It seems like you're confounding a number of different standards.

[00:02:25] Speaker 03:
It seems clear we've said that a class of structures as opposed to just a single structure could be sufficient, but only if it's sufficiently definite structure to be known to folks of skill in the art or sufficient to perform the recited function.

[00:02:44] Speaker 03:
Isn't that what we have said?

[00:02:47] Speaker 04:
I believe, Judge Stark, you're paraphrasing a quote from Williamson.

[00:02:53] Speaker 04:
But the quote was, as DIFAN has held post-Williamson, was not intended to mean that there should be an inquiry into whether there's evidence that a post-CEDA would know that the disputed term is capable of performing the recited function at the threshold question of whether it's a means plus function term.

[00:03:14] Speaker 04:
That's not the inquiry.

[00:03:15] Speaker 03:
Instead, in DIFAN... So at what point do you think DIFAN says we ask that question?

[00:03:21] Speaker 04:
Which question, Your Honor?

[00:03:22] Speaker 03:
Well, any of those questions.

[00:03:23] Speaker 03:
Let's take the one that Judge Froh started with, whether there's sufficient structure disclosed to perform the recited or claimed function.

[00:03:31] Speaker 03:
Where do we ask that question?

[00:03:34] Speaker 04:
You ask that question

[00:03:37] Speaker 04:
that the district court applied and that the defendants applied may be an enablement, if that, but not in... You're saying that question has nothing to do with our 112 paragraph 6 cases?

[00:03:49] Speaker 04:
No, Your Honor, I'm sorry.

[00:03:50] Speaker 04:
The actual standard articulated in Williamson, which is whether there's sufficient structure to perform the claimed function.

[00:04:00] Speaker 04:
the way that that's been inconsistently interpreted.

[00:04:02] Speaker 01:
Wait a minute, wait a minute.

[00:04:03] Speaker 01:
Before you leave that thought, I mean, unless somebody mistranscribed this quote, the quote in Williamson is paragraph six will apply if the challenger demonstrates that the claim term feels to quote, recite sufficiently definite structure or

[00:04:20] Speaker 01:
else recites function without reciting sufficient structure for performing that function.

[00:04:26] Speaker 01:
And in fact, Williamson wasn't the first to say that.

[00:04:29] Speaker 01:
They cite Watts, an earlier 2000 case for that.

[00:04:32] Speaker 01:
So Williamson says that.

[00:04:34] Speaker 01:
It says, and I understand this to be the legal standard that the Justice Court applied.

[00:04:40] Speaker 01:
It recites function without reciting sufficient structure for performing that function.

[00:04:46] Speaker 04:
Your Honor, Judge Prossi, you did correctly quote Williamson.

[00:04:50] Speaker 04:
Uh, the way that that, uh, has been interpreted consistently by this court is to determine whether the disputed term is sufficiently structural to be used by.

[00:05:02] Speaker 01:
Well, I don't know how you can say that.

[00:05:03] Speaker 01:
Your genera followed Williamson.

[00:05:05] Speaker 01:
It's a case that we's right, relied on extensively by the district court here.

[00:05:10] Speaker 01:
and they say exactly the same thing that I understood Williamson to have been saying.

[00:05:15] Speaker 01:
If it recites function without reciting sufficient structure for performing that function.

[00:05:20] Speaker 01:
And they cite Williamson for that.

[00:05:23] Speaker 01:
I mean, there may be other cases out there, and maybe Dystar is the one, Dyban may be the one, where it's not even an issue.

[00:05:32] Speaker 01:
I mean, there's absolutely zero structure.

[00:05:33] Speaker 01:
So nobody is arguing about whether it performs the claim function because there's just no structure.

[00:05:39] Speaker 01:
what the argument is in the case.

[00:05:41] Speaker 01:
So there can be, I would concede, maybe there are means plus function cases that don't require this functional connection.

[00:05:48] Speaker 01:
But those where the issue was raised, Williamson, Eugenera, Watts, this is what our court has said.

[00:05:55] Speaker 01:
Our court has said it amank.

[00:05:57] Speaker 04:
Yes, Your Honor.

[00:05:58] Speaker 04:
The quote is correct, and the district court did parrot that quote.

[00:06:02] Speaker 04:
But the district court misapplied that part of Williamson and all the post-Williamson cases.

[00:06:07] Speaker 01:
OK, so you say the standard is right.

[00:06:09] Speaker 01:
So the legal, as Judge Stark was saying, the legal standard is right, but it's been misapplied in that case.

[00:06:16] Speaker 01:
That's what your argument is?

[00:06:17] Speaker 04:
The district court correctly quoted from Williamson, but misapplied that standard.

[00:06:22] Speaker 04:
Yes, Judge Prost.

[00:06:23] Speaker 01:
So the standard is correct.

[00:06:25] Speaker 01:
You can see, do you have to disclose function without you need sufficient structure for performing the function, performing that function, right?

[00:06:37] Speaker 01:
That's the legal standard.

[00:06:38] Speaker 04:
I believe that's a correct quote from Williamson.

[00:06:40] Speaker 01:
Williamson is the legal standard.

[00:06:42] Speaker 01:
I'm asking you, is that the correct legal standard?

[00:06:44] Speaker 04:
Williamson is the correct legal standard, Your Honor.

[00:06:46] Speaker 01:
Thank you.

[00:06:46] Speaker 01:
OK.

[00:06:47] Speaker 01:
So we all agree that's the legal standard, sufficient structure for performing the claimed function.

[00:06:53] Speaker 01:
Explain to me how the district court misapplied.

[00:06:57] Speaker 01:
What we all agree is the correct legal standard.

[00:07:01] Speaker 04:
The way that that standard has been interpreted by DIFAN and many other cases is that the essential inquiry is, and I'm quoting from 28F41365, whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.

[00:07:19] Speaker 04:
full stop.

[00:07:20] Speaker 04:
And what the district court did- No, no, no.

[00:07:21] Speaker 01:
You're backtracking now.

[00:07:22] Speaker 01:
I thought we had agreed to the legal standard.

[00:07:25] Speaker 01:
If apt, it's a sufficient structure for performing that function.

[00:07:29] Speaker 01:
As I said, not every case needs to go that far, because in some cases the only argument is, is there any structure at all?

[00:07:37] Speaker 01:
And so there may be cases that you say that talks about whether there's any structure, because that's what the facts of the case were.

[00:07:44] Speaker 01:
But that doesn't diminish

[00:07:46] Speaker 01:
the import of the quote from Williamson adopted by E. Janera that doesn't diminish the quote.

[00:07:53] Speaker 01:
The subsequent cases couldn't overrule an en banc case.

[00:07:57] Speaker 04:
That's correct, Your Honor.

[00:07:58] Speaker 04:
But the quote does not apply what the district court did in this case to reach its conclusion.

[00:08:03] Speaker 01:
OK, so you're saying the district court did not apply the standard, did not say, we're looking at the sufficient structure for forming that function, and it's not there.

[00:08:13] Speaker 01:
You're saying he misapplied that?

[00:08:14] Speaker 04:
He quoted the case.

[00:08:15] Speaker 04:
The district court quoted the case correctly, but misapplied it.

[00:08:18] Speaker 04:
What the district court did instead is to seek evidence on a question that this court has never raised on the threshold question, namely,

[00:08:27] Speaker 04:
whether there is evidence that a posita would have known how the recited function

[00:08:33] Speaker 04:
is performed by the disputed structural term.

[00:08:37] Speaker 04:
That's a question that's never been asked by this court.

[00:08:39] Speaker 04:
Instead, what this court has asked at the threshold question is whether a posita... Let's assume, I'm not sure you're right, let's assume the district court did that.

[00:08:49] Speaker 03:
Are we stuck with that or can we review ourselves whether or not the record here meets the test that you've now admitted is the applicable test for determining if this is a means plus function claim?

[00:09:03] Speaker 04:
Thank you, Judge Stark.

[00:09:03] Speaker 04:
Of course, this court can take the record in this case and apply the law correctly to it.

[00:09:09] Speaker 04:
And there's only one determination under this court's precedent.

[00:09:14] Speaker 04:
And that is that it's not a means plus function term.

[00:09:17] Speaker 04:
And the reason, Your Honor, is there's never been a case like this one where both sides agree it's not a nonce term, search receiver logic.

[00:09:24] Speaker 04:
Both sides agree it's a term of art.

[00:09:26] Speaker 04:
In fact, it's found in communication dictionaries.

[00:09:29] Speaker 03:
What evidence do you have in the record that search receiver logic, that's our term, right?

[00:09:34] Speaker 03:
The whole term, search receiver logic?

[00:09:35] Speaker 04:
That's our term.

[00:09:36] Speaker 03:
What evidence is in the record that that has a known meaning or sufficiently imparts structure to perform the recited function?

[00:09:46] Speaker 04:
So we have, first of all, your evidence at, your honor, I'm sorry, at appendix 1526 and 1527.

[00:09:54] Speaker 04:
there are admissions that search receiver logic is not a nonce term.

[00:09:59] Speaker 04:
Then at appendix 1537 and 1538, the defendant's expert is admitting that search receiver is a known term of art.

[00:10:12] Speaker 04:
And in fact, Your Honors, at appendix.

[00:10:14] Speaker 03:
But not in the telecommunications field.

[00:10:16] Speaker 04:
There is, Your Honor.

[00:10:17] Speaker 04:
And in the telecommunications field.

[00:10:19] Speaker 03:
There's no admission from their expert that it's a known term of art.

[00:10:23] Speaker 03:
in the telecommunications field, is there?

[00:10:26] Speaker 03:
There's no admission of that.

[00:10:27] Speaker 04:
I don't believe so, but it's their burden.

[00:10:29] Speaker 04:
We provided evidence that of a dictionary definition in communications dictionary, and it's white, W-E-I-K.

[00:10:36] Speaker 04:
Is it a definition of search receiver logic?

[00:10:39] Speaker 04:
It's a definition of search receiver, and that is the term that qualifies a search receiver logic.

[00:10:45] Speaker 03:
And so search receiver... How is search receiver the same as search receiver logic when we're asking whether there's evidence

[00:10:53] Speaker 03:
as to what persons of skill and the art would understand.

[00:10:56] Speaker 04:
It's the structural term that qualifies search receiver logic and I think both sides... Qualifies as in modifies?

[00:11:02] Speaker 04:
Yes.

[00:11:04] Speaker 03:
Okay, but how does that get you to evidence that person of skill and the art know what search receiver logic is in the telecommunications field?

[00:11:12] Speaker 04:
Because the dictionary has a structural definition in the telecommunications field for search receiver.

[00:11:18] Speaker 04:
And search receiver logic, there can be no dispute that it's the logic within a search receiver.

[00:11:25] Speaker 04:
And that's how both sides applied that phrase.

[00:11:27] Speaker 04:
And this case is very different from... I don't understand what you said.

[00:11:30] Speaker 01:
That's how both sides applied that... The phrase, I'm sorry, Your Honor.

[00:11:35] Speaker 04:
That search receiver logic is the logic within a search receiver.

[00:11:40] Speaker 04:
And the search receiver is a highly structured.

[00:11:45] Speaker 00:
You're saying that logic is a non-sword.

[00:11:48] Speaker 04:
Logic isn't always a non-sword.

[00:11:49] Speaker 04:
I know this court held that it is in age and era.

[00:11:52] Speaker 04:
This case is very different.

[00:11:54] Speaker 04:
There's a highly structural qualifier, and this court has said you have to look at the entire phrase, and it's search receiver logic in this case.

[00:12:01] Speaker 04:
So just like techsec, where the term was digital logic means, where the presumption was actually flipped against the patent holder, this court said that digital logic is sufficiently structural to qualify the entire phrase as a structural term to avoid 112-6.

[00:12:18] Speaker 04:
the same in optimal.

[00:12:19] Speaker 00:
If that's the case, then how would a person of more ordinary skill in the art recognize that logic or that part of that structure as corresponding to the function in the claim?

[00:12:33] Speaker 04:
because the claim as written is search receiver logic for performing the recited function.

[00:12:39] Speaker 04:
So the question now is, is search receiver logic sufficiently structural?

[00:12:43] Speaker 04:
And we have a case here where there's unrebutted evidence that it's a known term of art, unrebutted evidence that it's in the communications dictionary, and that's white in the record.

[00:12:54] Speaker 04:
There's also unrebutted evidence that it's a known class of structure, search receiver logic, mind you.

[00:13:00] Speaker 04:
And so that unrebutted evidence

[00:13:02] Speaker 04:
according to Diefan and other cases, Your Honors, is conclusive.

[00:13:08] Speaker 04:
We don't believe there's ever been a case where there's unrebutted evidence.

[00:13:11] Speaker 04:
And it's not the patentee's burden, of course.

[00:13:13] Speaker 04:
But there's unrebutted evidence that search receiver logic is a known class of structures.

[00:13:18] Speaker 04:
And yet, the court went the other way and decided that it's a means-post-function term.

[00:13:24] Speaker 01:
OK.

[00:13:25] Speaker 01:
You're well into your rebuttals, so why don't we save that.

[00:13:27] Speaker 02:
Thank you, Your Honor.

[00:13:29] Speaker 02:
Good morning, Your Honors.

[00:13:31] Speaker 02:
May it please the Court?

[00:13:32] Speaker 02:
I'm Matt Yelmer through the Appellees here.

[00:13:35] Speaker 02:
And I believe the Court's questions, Your Honor's questions, hit at the direct issue in this case.

[00:13:42] Speaker 02:
The argument that my friend is making is effectively the same as any structure argument.

[00:13:48] Speaker 02:
They are suggesting that you can look at the term search receiver logic effectively in a vacuum and say, does this term

[00:13:55] Speaker 02:
impart any structure.

[00:13:56] Speaker 02:
Does it have any known structure?

[00:13:57] Speaker 02:
And if the answer is yes, then that's enough, and the 112-6 analysis is done.

[00:14:02] Speaker 02:
The presumption is not overcome.

[00:14:03] Speaker 02:
That is not the standard.

[00:14:04] Speaker 02:
In fact, that's the exact standard that was rejected.

[00:14:06] Speaker 01:
What about the cases he cites?

[00:14:08] Speaker 01:
I don't know if it's Dicester or another, Dipen or another one.

[00:14:11] Speaker 01:
I think his view of it is that, I don't want to put words in mouth, but that seemingly walked back the standard articulated.

[00:14:19] Speaker 01:
And William said, now we all know you can't walk back an amok opinion.

[00:14:23] Speaker 01:
It's a panel opinion.

[00:14:24] Speaker 01:
What about the other cases he cites, which don't reach the question of whether it's the claim function and just goes explicitly to whether there's structure at all?

[00:14:34] Speaker 02:
Yes, your honor.

[00:14:35] Speaker 02:
And I was actually involved in DIFAN and I'm very familiar with that one.

[00:14:37] Speaker 02:
In that case, the panel was of the view that the expert in that case admitted that off the shelf software was available, commercial off the shelf software was available to perform the claim functions.

[00:14:53] Speaker 02:
We may disagree with that finding, but the fact is that was the linchpin of the court's opinion in Daifan.

[00:14:59] Speaker 02:
So they never got to this issue.

[00:15:00] Speaker 02:
They basically said, well, code and it's code performing functions.

[00:15:04] Speaker 02:
And there the code was off the shelf available at the time of the invention.

[00:15:09] Speaker 02:
That's was the basis of that case.

[00:15:10] Speaker 02:
They also talk about VDPP, which is another panel decision.

[00:15:14] Speaker 02:
In that case, the defendant did not introduce any evidence to overcome the presumption.

[00:15:22] Speaker 02:
And in many of the cases that they cite, that is the issue.

[00:15:25] Speaker 02:
They're coming to the federal circuit without sufficient evidentiary support.

[00:15:29] Speaker 01:
Well, what about where your friend ended, which is that there's, according to him, I think, undisputed or unrefuted evidence in the record about a post CTA and also about this communications dictionary defined in this term.

[00:15:44] Speaker 02:
Yes, your honor.

[00:15:44] Speaker 02:
And the district court addressed all of those arguments and rejected those arguments.

[00:15:49] Speaker 02:
My friend and I disagree as to what is the evidence in this case.

[00:15:54] Speaker 02:
Our expert, Dr. Negus, never admitted that this was a term of art in the applicable field of art, which is wireless communications.

[00:16:01] Speaker 02:
The parties agree that wireless communications is the field of art and the expert- Did their witnesses say it was in this field of art or not?

[00:16:09] Speaker 02:
Well, their witness said that it was a known term and then described this class of structures that is different than the class of structures that they argued in their brief.

[00:16:18] Speaker 02:
And at the end of the day, the district court weighed the evidence of our expert's opinion and their expert's opinion and found that our expert was reliable and their expert was not.

[00:16:27] Speaker 02:
And the point was they had identified search receiver, not search receiver logic, but search receiver as a term that was used in global positioning systems.

[00:16:38] Speaker 02:
and used in the field of electronic warfare, they did not show any search receiver or search receiver logic that performed the function that's at issue here.

[00:16:47] Speaker 00:
What about the citation to the dictionaries?

[00:16:50] Speaker 00:
Does a description in a dictionary, for example, of this particular term render it a term of order?

[00:16:58] Speaker 02:
It doesn't, Your Honor.

[00:16:59] Speaker 02:
And the reason is if you look at that dictionary definition, which I think is on page 1570 of the appendix, and you look at how it's describing search receiver,

[00:17:07] Speaker 02:
It's got nothing to do with the function here, which is updating routing information.

[00:17:13] Speaker 02:
That dictionary is sort of consistent with the use of the term in the global positioning system world, where as a GPS device, it simply receives signals.

[00:17:24] Speaker 00:
I think they said that the dictionary defines search receiver, but not search receiver logic.

[00:17:30] Speaker 02:
That's correct, Your Honor.

[00:17:31] Speaker 00:
Does the term have to be that specific in order for it to be evidence?

[00:17:37] Speaker 02:
The way I'd answer that, Your Honor, is I think we need to look at the context of the claim.

[00:17:41] Speaker 02:
The fundamental question here is would a person of ordinary skill in the art in the applicable field, which here is wireless communication, would they look at the claim language and understand what is the structure that is being disclosed?

[00:17:53] Speaker 02:
Is their structure being disclosed to perform the claim function?

[00:17:56] Speaker 02:
And here, the search receiver definition that they refer to would not inform a person of ordinary skill as to what structure would perform the claim function.

[00:18:05] Speaker 02:
because the search receiver there is describing something completely different and for a different purpose.

[00:18:12] Speaker 02:
The question of whether it needs to also have the term logic, what I would say is the applicant here, the patentee here, chose search receiver logic.

[00:18:20] Speaker 02:
In the specification there's discussion of search receiver 164, there's no discussion of search receiver logic, and the applicant decided they wanted to use the term search receiver logic not just... What does logic, what does that term mean to you?

[00:18:32] Speaker 02:
Well, actually, your honor, in this case, logic is defined in the patent itself.

[00:18:39] Speaker 02:
In the terminology section, there's an explicit definition, and it means everything in the world, effectively.

[00:18:47] Speaker 02:
So at appendix 124, it defines logic as hardware, firmware, software, or any combination thereof that may be implemented to perform logical operations associated with a given task.

[00:19:02] Speaker 02:
Further, logic may include any supporting circuitry that may be required to complete a given task, including non-logical operations.

[00:19:09] Speaker 02:
And it goes on.

[00:19:10] Speaker 02:
The point is, they basically said logic is anything.

[00:19:13] Speaker 02:
And that certainly does not amount to sufficient structure for performing a plain function.

[00:19:17] Speaker 02:
It doesn't tell a person of ordinary skill in the art what is a definite structure that's going to perform the function of updating routing information.

[00:19:25] Speaker 03:
You said the district court went through all the arguments, and it does seem pretty thorough.

[00:19:29] Speaker 03:
But I do have a couple questions about that.

[00:19:33] Speaker 03:
Your friend on the other side argues that the district court failed to consider the opinion of their expert.

[00:19:39] Speaker 03:
It doesn't seem to be mentioned.

[00:19:42] Speaker 03:
Is that correct or incorrect?

[00:19:44] Speaker 02:
I think that's incorrect, Your Honor.

[00:19:47] Speaker 02:
There is certainly discussion of Dr. Bocha's opinion in here.

[00:19:55] Speaker 02:
And I'm looking at Appendix Pages 25 through, I think it's 29.

[00:20:02] Speaker 02:
Yeah, so actually on Appendix Page 30, there's reference to the Vojcic Declaration.

[00:20:10] Speaker 02:
And I don't know, sorry, but I don't have every single site to adhere to.

[00:20:13] Speaker 01:
What was your expert's name and what was your expert's name?

[00:20:17] Speaker 02:
My expert's name was Dr. Kevin Negus.

[00:20:20] Speaker 02:
And theirs was Branimir Vojcic, B-O-J-C-I-C.

[00:20:24] Speaker 02:
in the Votage Declaration and all these definitions that he's referring to are discussed at Appendix 30.

[00:20:30] Speaker 02:
And the district court actually considered both sides' experts' opinions and made a factual determination

[00:20:40] Speaker 02:
in assessment of the reliability of those two opinions, and he credited Dr. Negus's opinions and discredited Dr. Bochek.

[00:20:46] Speaker 03:
So at page 15 of their brief, they say that the district court made no reference to particularly paragraph 43 of the Bochek declaration where Dr. Bochek opines search receiver logic would be understood to be capable of updating the routing information based at least in part on the cross-correlated.

[00:21:06] Speaker 03:
signal.

[00:21:08] Speaker 03:
Is that a fair accusation of the district court overlooked that specific opinion of Dr. Vojcik?

[00:21:14] Speaker 02:
I don't think it's a fair characterization.

[00:21:17] Speaker 02:
I don't know if that particular paragraph is cited in the order, but I know that that paragraph is consistent in Vojcik's expert opinion.

[00:21:27] Speaker 02:
His declaration is consistent with other opinions he expressed elsewhere.

[00:21:31] Speaker 02:
I think it's paragraph 38 is another location where he

[00:21:35] Speaker 02:
offers a very similar opinion he starts off offers a high-level opinion goes through analysis and then concludes it later in the declaration and i think if uh... if you look at his declaration you'll see that in fact the same substance of that is found elsewhere the district court also says that eight twenty five

[00:21:53] Speaker 02:
uh... so-called known classes circuit structures cannot be sufficient under the williamson standard i think you've already knowledge that is an incorrect statement of the law isn't it well i i certainly can see the classes of structures in certain circumstances can be sufficient and here the court this reports wording might have been a little bit clear what i think the court was trying to convey is that

[00:22:16] Speaker 02:
the argument that appellant was making, that the search receiver logic was in fact a class of structures with sufficient structure in them.

[00:22:26] Speaker 02:
That is what he was rejecting.

[00:22:27] Speaker 02:
And I recognize that one could read this statement by the court differently, but I think if you look at the context, the sentences that precede that sentence and that fall after it, what he's really trying to say is they've come up with this class of structures.

[00:22:42] Speaker 02:
It's really,

[00:22:43] Speaker 02:
attorney argument that it's a class of structures but if we assume that it's a class of structures, it's not a class of structures that performs the functions that are at issue in the claim.

[00:22:52] Speaker 02:
And so we've shown that a person of ordinary school in the art wouldn't understand these quote unquote class of structures to be sufficient structure for the purpose of performing the claim function and that is the same outcome that the court reaches later in his opinion a couple pages back.

[00:23:10] Speaker 02:
I don't know if there's any questions with respect to what structure is actually found in the specification if you get to step two.

[00:23:17] Speaker 02:
I will say I think this is pretty well briefed.

[00:23:21] Speaker 02:
One of the primary issues though is whether figure 22 of the specification can in fact be

[00:23:30] Speaker 02:
associated structure, if you get to the second step of the 112-6 analysis.

[00:23:35] Speaker 02:
And our perspective, while we don't think we use the specific term, is that it cannot.

[00:23:39] Speaker 02:
And the reason it cannot is because of prosecution disclaimer.

[00:23:43] Speaker 02:
Prosecution disclaimer, in this case, results from arguments that were made to the Patent Trial and Appeal Board and to the Federal Circuit in a prior appeal, where the appellant argued

[00:23:56] Speaker 02:
the appellant here was the appellee there, that Figure 22 was not practiced by Claim 1, that the embodiment of Figure 22 may be found in other claims, but it's not found in Claim 1, and their statements were unequivocal and unambiguous, and we are entitled to rely on those.

[00:24:12] Speaker 02:
They disclaimed the application of Figure 22 to Claim 1.

[00:24:17] Speaker 02:
In their briefing, they make reference to the fact...

[00:24:21] Speaker 01:
What I took away from the district court's analysis was not dealing with this prosecution history stuff, but just straight up looking at the plain language.

[00:24:29] Speaker 02:
That is correct.

[00:24:30] Speaker 02:
The court did look at that.

[00:24:32] Speaker 02:
Yes, Your Honor.

[00:24:33] Speaker 02:
And that is the second reason why that is not sufficient structure, and certainly not clearly linked sufficient structure, or clearly linked structure where they're pulling parts of a figure out and saying, this part doesn't count, and this part does count.

[00:24:47] Speaker 02:
A person of learning skill in the art would not look at this and say,

[00:24:50] Speaker 02:
You said it doesn't count in its entirety, and now you're saying that parts of it count and other parts of it don't count.

[00:24:55] Speaker 00:
What's the standard that we apply to the district court's decision regarding the disclaimer?

[00:25:00] Speaker 00:
Is it clear?

[00:25:01] Speaker 02:
I don't know that it would be clear error because here the district court... Actually, I'm sorry, Your Honor.

[00:25:13] Speaker 02:
I don't know the answer to that question.

[00:25:14] Speaker 02:
I don't know if in that context the statement's made to the PTAB and to

[00:25:18] Speaker 02:
this court constitute intrinsic evidence in which case if they constitute extrinsic evidence then clear error standard might apply but I'm not sure that's the case here I think it would be a de novo or abuse of discretion standard I think if it's just based on intrinsic evidence it would be de novo right the only place we would use clear error here is with the court's underlying factual findings that led to its construction and there are several those related to the expert opinions in this case there's no other questions I have nothing else thank you

[00:25:47] Speaker 04:
Thank you very much, Your Honor.

[00:25:51] Speaker 04:
I just have a few quick points.

[00:25:53] Speaker 04:
So there is no dispute about how search receiver logic was interpreted to be the logic of the search receiver, and their expert admitted, and this is cited in our brief, that search receiver logic is narrower than logic.

[00:26:06] Speaker 04:
But let's even assume that a used search receiver means.

[00:26:09] Speaker 04:
There are several cases, including TechSec,

[00:26:11] Speaker 04:
and other cases where you look at the structural qualifier to determine whether the phrase is sufficiently structural.

[00:26:20] Speaker 04:
So let's assume that it's search receiver means.

[00:26:23] Speaker 04:
What we have here is a record like no other case.

[00:26:26] Speaker 04:
First, the district court itself, to correct something that my friend told you guys,

[00:26:31] Speaker 04:
The district court itself on Appendix 30 acknowledged that this is a known term of art.

[00:26:38] Speaker 04:
And this is at Appendix 30, acknowledged that their expert admitted it's a known term of art.

[00:26:43] Speaker 04:
The dictionary, to correct another statement by my friend, is that we rely on is a communications dictionary, not in some inapposite field.

[00:26:52] Speaker 04:
And it describes the search receiver in a way that is nearly identical to the way that the

[00:27:00] Speaker 00:
patent describes it, namely, a circuit for extracting and identifying information in an electromagnetic signal in the base band.

[00:27:18] Speaker 00:
Dr. Negus also notes that the terms search receiver and search receiver logic were not used to describe components within wireless networking products as evidenced by the terms not being mentioned in the IEE dictionary standard terms.

[00:27:34] Speaker 00:
It seems to me that on its face rebuts your argument.

[00:27:40] Speaker 04:
It is not, Your Honor.

[00:27:41] Speaker 04:
He looked at one dictionary and said it's not in this dictionary, the IEEE, and therefore it cannot be structural.

[00:27:47] Speaker 04:
We have a dictionary, a communications dictionary, and this is cited at JA 1471 with the dictionary added and attached.

[00:27:56] Speaker 04:
And it's the communications dictionary by Wyck.

[00:27:58] Speaker 04:
It's a receiver that can be tuned over a relatively wide frequency band in order to detect, identify, or measure electromagnetic signals.

[00:28:06] Speaker 03:
But that definition is in the record, too.

[00:28:08] Speaker 03:
But going to page 830, you told us the district court found that their expert admitted that you're right.

[00:28:14] Speaker 03:
Where is that on 830?

[00:28:16] Speaker 03:
Because it seems instead the district court rejected your position.

[00:28:19] Speaker 04:
Thank you, Judge Stark.

[00:28:21] Speaker 04:
What the district court acknowledged on 830 is that their expert said it's a known term of art.

[00:28:27] Speaker 04:
So this is a parenthetical on line 21 of page 30 acknowledging that search receiver

[00:28:34] Speaker 04:
receiver and search receiver were known terms of art.

[00:28:37] Speaker 03:
But explaining that what was known about search receiver, as I went into considerable detail in this declaration, was that the known search receiver of the time frame would not connote structure that would be capable of performing the recited function of the claim element.

[00:28:51] Speaker 03:
How is that an admission that favors you?

[00:28:54] Speaker 04:
Because the part that is relevant is that it's a known term of art.

[00:28:59] Speaker 03:
Why is the rest of it not relevant?

[00:29:02] Speaker 04:
Because it applies the wrong test.

[00:29:04] Speaker 04:
It misapplies Williamson for the proposition that you have to ask whether that structure

[00:29:11] Speaker 04:
can be capable of performing the recited function.

[00:29:15] Speaker 04:
And here, no court has ever asked that question, can it be capable and how is it capable?

[00:29:21] Speaker 04:
And you don't look at dictionaries to see if the dictionary also says that it performs the recited function.

[00:29:27] Speaker 04:
Also, Your Honor, we know that the actual known class of structures, opinion by our expert, was unrebutted because their expert and the district court did not think that the class of structures

[00:29:41] Speaker 04:
was sufficient.

[00:29:42] Speaker 04:
We know that that's one error.

[00:29:45] Speaker 04:
We have evidence showing it's a class of structures.

[00:29:48] Speaker 04:
They haven't rebutted it, because they applied a different test, the capable of and how test, which is not a question asked in step one.

[00:29:57] Speaker 04:
Finally, Your Honors.

[00:29:59] Speaker 01:
Quickly, because your time's expired.

[00:30:01] Speaker 04:
One final thought.

[00:30:02] Speaker 04:
The final thought is that even if this term is a means plus function, the court made several errors in the next step of the analysis to determine that it's a black box.

[00:30:13] Speaker 04:
The one that I'll note, the rest of them are brief, is that it ignored an explicit reference in the patent in the discussion of figure 22 back to figure 18.

[00:30:26] Speaker 04:
And there is no disclaimer here, because we did not disclaim the use of any part of Figure 22.

[00:30:32] Speaker 04:
But regardless, there is no doctrine that allows a court to ignore a reference in one embodiment in the description of it to supplement the knowledge of the description of another embodiment, which is Figure 18.

[00:30:48] Speaker 04:
And that's what the district court did.

[00:30:50] Speaker 04:
It ignored the reference in Figure 22 back to Figure 18.

[00:30:54] Speaker 04:
And this is not an issue of disclaimer.

[00:30:56] Speaker 04:
is just whether that reference in the description in that reference can be read in light of figure 18 together.

[00:31:04] Speaker 01:
Thank you.