[00:00:00] Speaker 03: I'd like to begin today by thanking Judge Cechy, who comes to us from the District of New Jersey, who's going to be sitting by designation on today's cases. [00:00:10] Speaker 00: Thank you. [00:00:11] Speaker 03: So our first case for argument is 23-1-221. [00:00:13] Speaker 03: I don't even know how to pronounce this. [00:00:18] Speaker 03: Help. [00:00:21] Speaker 03: Again? [00:00:22] Speaker 04: Royal Phillips, Your Honor. [00:00:23] Speaker 03: Royal Phillips. [00:00:24] Speaker 03: I can say that versus Quektel Wireless. [00:00:28] Speaker 03: Mr. Beck, please proceed. [00:00:33] Speaker 04: Thank you, Your Honor. [00:00:35] Speaker 04: Good morning. [00:00:35] Speaker 04: May it please the Court? [00:00:37] Speaker 04: Board's unpatentability findings, based on the black reference, should be vacated because they're based on errors in claim construction. [00:00:46] Speaker 04: In particular, the Board failed to give weight to the terms as they are used in the context of the claims. [00:00:54] Speaker 04: particularly when read in the context and the teachings of the patent specification. [00:00:59] Speaker 04: There's, I think, two issues related to that, and they both deal with timing elements. [00:01:05] Speaker 04: The first is whether each of the operations recited. [00:01:11] Speaker 04: And to back up, I'm going to refer to claim 23, which the parties have agreed is being exemplary. [00:01:20] Speaker 04: Independent claim 23 recites. [00:01:24] Speaker 04: four elements in sequence that are at issue in the appeal. [00:01:29] Speaker 04: The first issue is whether the predetermined time period in which a data block is transmitted over a channel requires, when read in the context of the claim, that the subsequent operations, particularly elements three and four, all occur within the predetermined time period. [00:01:52] Speaker 04: The board found that there was no restriction either as to the order of operation or the actual required decreasing in data transmit power followed by increasing of data transmit power. [00:02:09] Speaker 01: Just the indications had to be within the predetermined period, but the action on those indications couldn't. [00:02:17] Speaker 04: Yeah, and to put a finer point, that's correct, Your Honor, but put a finer point on it, the board [00:02:22] Speaker 04: found that only the indication recited in element four had to be performed in the predetermined time period. [00:02:36] Speaker 04: The second issue really comes down to the meaning of what in response to the indication means. [00:02:44] Speaker 04: According to the board, if there is an indication [00:02:51] Speaker 04: reduction in channel quality as reciting claim in element three, or an indication of a increase in channel quality as reciting element four, the resulting decrease in data transmit power and increase in data transmit power could happen at any time whatsoever. [00:03:12] Speaker 04: So based on Quachtel's argument, it's merely a causal requirement. [00:03:18] Speaker 04: It could be any time after. [00:03:20] Speaker 04: And it could be any time after, including the next frame or multiple frames later, which is actually what Quachtel relied on in mapping the claim elements to the prior art. [00:03:36] Speaker 04: And we submit that the claims, when read in light of the specification as they must be, [00:03:46] Speaker 04: That just is contrary to how a person of ordinary skill would understand the sequence required by the claims. [00:03:55] Speaker 04: I'll briefly touch on what I call the order of operation issue and how it ties into the claim language. [00:04:03] Speaker 04: So the first element requires transmitting over a channel in a predetermined time period a data block. [00:04:13] Speaker 04: So it calls out the requirement of a channel and the data block. [00:04:19] Speaker 04: All being done, this transmission is all over this predetermined time period. [00:04:24] Speaker 04: And the board equated that with a frame. [00:04:30] Speaker 04: So that a frame in these technical standards that govern wireless communication has a predetermined interval in which a data block is set. [00:04:41] Speaker 00: I have a question about predetermined time. [00:04:43] Speaker 00: Is predetermined time defined anywhere in the patent? [00:04:47] Speaker 04: Yes, Your Honor. [00:04:48] Speaker 04: I think the claim itself defines it as the time period in which a data block comprising information symbols and parity check symbols is transmitted. [00:04:58] Speaker 04: And that's echoed in the specification as well in column three. [00:05:05] Speaker 04: This is appendix 73, column three, line 48. [00:05:09] Speaker 00: Is it just something that is to be determined as sequential, or is there an actual amount of time associated with that? [00:05:17] Speaker 04: There's a specific amount of time associated with the transmission of the frame. [00:05:21] Speaker 04: For example, in the prior art that Pachtel relied on, the CDMA 2000 standard defines 26.66 milliseconds. [00:05:31] Speaker 04: And that's what Pachtel repeatedly mapped the predetermined time period to. [00:05:35] Speaker 04: the specifications drawn to a different standard that has a different time period, but they're predefined time periods. [00:05:44] Speaker 04: That's why they're predetermined. [00:05:48] Speaker 04: The subsequent steps follow and act on that data block that's being transmitted. [00:05:55] Speaker 04: So the second element, there are TPC commands that indicate either a reduction or an increase in channel quality. [00:06:05] Speaker 04: This relates to what's called closed loop power control. [00:06:10] Speaker 04: So there's feedback. [00:06:11] Speaker 01: And so where do you get from the language that all of the other steps have to act on that data block? [00:06:19] Speaker 04: It's the reference. [00:06:21] Speaker 04: Like for example, Your Honor, in elements three and four, both refer to the indication of a reduction in channel quality. [00:06:31] Speaker 04: And that's referring to the channel we're studying in element one. [00:06:35] Speaker 04: And the actual operation is, first, decreasing the data transmit power, and in element four, increasing the data transmit power. [00:06:50] Speaker 04: And so data there is referring to the prior recitation of the data block. [00:06:58] Speaker 04: So for those reasons, we think the claims do support an order of operation. [00:07:04] Speaker 04: And it's reinforced by the specification. [00:07:07] Speaker 04: The second issue deals with in response to. [00:07:11] Speaker 04: So according to the board, as I mentioned previously, in response to can happen the resulting first decrease in power and then increase in power can happen at any time whatsoever. [00:07:25] Speaker 04: And that's completely contrary to what the specification describes. [00:07:31] Speaker 04: There's not a single embodiment that supports construction in either respect. [00:07:37] Speaker 04: And every embodiment supports Phillips construction as to both issues. [00:07:42] Speaker 01: And just to be clear, you haven't suggested, or in any event, all the embodiments [00:07:50] Speaker 01: are described as mere embodiments, right? [00:07:53] Speaker 01: We don't have a case with that kind of. [00:07:57] Speaker 01: The present convention requires kind of language. [00:08:01] Speaker 04: Your Honor, I think we do, at least implicitly. [00:08:05] Speaker 01: This is the in accordance with the invention? [00:08:10] Speaker 04: Yeah, and it's more than that. [00:08:11] Speaker 04: It's relative to the description of Figure 4, which I think really captures the invention. [00:08:17] Speaker 04: And I'm referring to the description [00:08:20] Speaker 04: at the Joint Appendix 73, column 4, lines 10 to 25. [00:08:27] Speaker 04: If you can bear with me, I'll go through this paragraph. [00:08:33] Speaker 04: But just to get directly to your question, Your Honor, the second sentence describing this up. [00:08:40] Speaker 03: What line number? [00:08:41] Speaker 03: Your column 4, what line number? [00:08:43] Speaker 04: Starting at line 10, Your Honor. [00:08:48] Speaker 04: It starts with while the data block is being transmitted. [00:08:51] Speaker 04: So it's put in the context of a data block transmission. [00:08:56] Speaker 04: The quality of the first channel varies, as illustrated in Fig 2. [00:09:00] Speaker 04: Fig 2 illustrates a conventional process where there's channel quality variations. [00:09:09] Speaker 04: And normally, as shown in Fig 3, if channel quality goes up, then [00:09:16] Speaker 04: You get a TPC command, same turn down to power. [00:09:19] Speaker 04: The goal is to maintain a target power level. [00:09:24] Speaker 04: You don't want it too high, which can unnecessarily affect battery consumption. [00:09:32] Speaker 03: But even if this paragraph really does stand for the operation exactly as you've explained, I'm not sure I see how it [00:09:43] Speaker 03: is really responsive to just Toronto's question because it doesn't say the present invention is. [00:09:49] Speaker 03: Column four in the portion you're talking about is describing figure five. [00:09:53] Speaker 03: Figure five expressly says this illustrates various scenarios in accordance with the invention. [00:09:59] Speaker 03: In accordance with the invention isn't the same thing as the present invention requires. [00:10:04] Speaker 03: Many different embodiments could all be in accordance with the invention. [00:10:09] Speaker 04: Understood, Your Honor. [00:10:11] Speaker 04: I think here there's two points. [00:10:12] Speaker 04: We're relying on the description of Figure 4, which I think just shows the tracks what is in both independent claims. [00:10:22] Speaker 04: And it contrasts the conventional process and says, don't do the conventional process, where before you would increase power, we're going to decrease power. [00:10:37] Speaker 04: and do the reverse to try to recover from that unconventional process. [00:10:42] Speaker 04: And it says, if the quality of the first channel 160 degrades to an extent determined by the first criteria, the control means instead of, as in known schemes, increasing the transmit power, I'm skipping ahead, according to the invention, decreases the transmit power, the data, to a level P1. [00:11:05] Speaker 01: In this description, what is the predetermined period? [00:11:12] Speaker 04: It's the period for transmission of the data block. [00:11:16] Speaker 01: Well, this is talking about figure 2 and figure 4, both in the paragraph. [00:11:22] Speaker 01: So if you're looking just at those two figures, figure 2 doesn't just as [00:11:30] Speaker 01: a time axis without markings. [00:11:33] Speaker 01: Figure 4 at least has T1 through T6. [00:11:38] Speaker 01: Is one of those marked the edge of the predetermined period? [00:11:42] Speaker 04: So two things. [00:11:43] Speaker 04: First, the reference to the data block, which is defined as the equivalent to the predetermined time period. [00:11:50] Speaker 04: Secondly, figure 4, which is illustrating the operation of the invention, that figure 4 and [00:11:58] Speaker 04: is corresponding to the timing in Fig 2. [00:12:04] Speaker 04: And then when the description of Fig 5 is presented, it shows channel quality. [00:12:11] Speaker 04: That is channel quality as in Fig 2. [00:12:15] Speaker 04: And the time periods that run within the time period from 0 to t sub f, which is the time period for a frame in Fig 5G, [00:12:24] Speaker 01: I see. [00:12:25] Speaker 01: So everything in figure four is viewed as within a single time period, a predetermined time period. [00:12:32] Speaker 04: That's correct. [00:12:34] Speaker 04: And importantly, again, going back to this description of figure four, relative to this response in response to element of the claim, it says when the control means determines that the channel quality has subsequently increased to an extent determined by a second criterion [00:12:54] Speaker 04: The control means increases the transmit power of the data. [00:12:59] Speaker 04: So the description's clear as to timing. [00:13:02] Speaker 04: And this is illustrated, again, in Fig 4 and in Fig 5G. [00:13:07] Speaker 00: Well, you know what? [00:13:08] Speaker 00: If you look at 5G, is that actually the inverse where it's depicting transmit power decreasing that follows power increases? [00:13:18] Speaker 00: It looks like it's the reverse of the figure before it. [00:13:21] Speaker 04: It's showing the channel quality, your honor, as in Fig 2. [00:13:25] Speaker 04: So channel quality is going up, and then it goes down. [00:13:29] Speaker 04: And then as explained in reference to this drawing, at time period T1, as shown in Fig 4, normally when you hit this power level P2, the problem would be signals degrading, you might go over P2. [00:13:46] Speaker 04: And the inventors, rather than just keeping it at P2, which is continuing to swim upstream, it says, let's just drop the power. [00:13:55] Speaker 04: We'll drop it down to P1. [00:13:57] Speaker 04: That's illustrated in Fig 4 and Fig 3. [00:13:59] Speaker 00: Well, I believe the experts, Dr. Ackle. [00:14:01] Speaker 00: testified about this, and he indicated that it was not actually following decrease when you need to decrease, increase when you need to increase. [00:14:10] Speaker 00: But it was the inverse of that. [00:14:11] Speaker 00: Do you have any response for that? [00:14:13] Speaker 04: I do, Your Honor. [00:14:14] Speaker 04: First of all, I don't think relied on that testimony, and there's a reason for it. [00:14:18] Speaker 04: Dr. Ackle kind of cherry-picked to look at T2, that that's where you do the increase, and that precedes T3, where you do another decrease. [00:14:31] Speaker 04: The relevant description shows that every single increase is preceded by [00:14:41] Speaker 04: an unconventional decrease. [00:14:43] Speaker 04: So T1 precedes T2. [00:14:46] Speaker 04: T3 precedes T4. [00:14:48] Speaker 03: You've used all your time, including your rebuttal time. [00:14:50] Speaker 03: You're almost out of it, but I want to ask one last question and then I'll restore your rebuttal time. [00:14:54] Speaker 03: But my question is, I don't think that he, I could be wrong, but I don't think Mr. Courtney is going to get up and dispute with you that the figures and the description of those figures show these events occurring in a predetermined time period. [00:15:07] Speaker 03: I didn't understand them to point to the spec and say, no, look, there's an embodiment that isn't within the predetermined time period. [00:15:13] Speaker 03: What I understood them to argue, though, is that the claims just don't require that. [00:15:18] Speaker 03: It is true that these embodiments articulate at functioning this way. [00:15:23] Speaker 03: But the claims themselves require only indications occurring during the predetermined time period. [00:15:29] Speaker 03: And the increasing or decreasing has to be in response to those indications [00:15:33] Speaker 03: but could occur outside of the title. [00:15:35] Speaker 03: I think that's his argument, as I understand it. [00:15:37] Speaker 03: So how do you refute that? [00:15:39] Speaker 04: Briefly, it's contrary to how a person with an ordinary skill understands closed-loop power control. [00:15:46] Speaker 04: You have to respond when the indication's received. [00:15:49] Speaker 04: That's what the specification's saying, when it's received. [00:15:52] Speaker 03: Even though there's a place for the spec, I think it's column one, but I don't remember where, where it says tracking might not be perfect. [00:15:58] Speaker 03: And I think what that is indicating [00:15:59] Speaker 03: It might not always respond exactly when we receive it. [00:16:02] Speaker 04: I think what they're saying there, Your Honor, is there's a delay in signal path propagation and processing. [00:16:08] Speaker 04: But that is still going to, once it's processed, you respond. [00:16:14] Speaker 04: If you don't, if you wait until another frame, you can get additional signals, additional TPC commands. [00:16:20] Speaker 04: And then you're not tracking. [00:16:23] Speaker 04: You're not following the feedback you get. [00:16:25] Speaker 04: And that is inefficient, for the reasons we described in our summary. [00:16:29] Speaker 03: We'll restore your rebuttal time. [00:16:31] Speaker 03: Let's hear from Mr. Courtney. [00:16:32] Speaker 04: Thank you, Your Honor. [00:16:43] Speaker 02: Thank you, Chief Judge Moore. [00:16:44] Speaker 02: Rob Courtney from Fish & Richardson for Quektel. [00:16:48] Speaker 02: I think you have aptly characterized our argument. [00:16:52] Speaker 02: There's the specification, which certainly in many places does describe signal transmission of the data block within a predetermined time period. [00:16:59] Speaker 02: That's there. [00:17:01] Speaker 02: But the claims simply don't recite this. [00:17:03] Speaker 02: This is not an issue. [00:17:04] Speaker 02: And again, I don't hear my colleague representing Phillips, are you, otherwise, where [00:17:09] Speaker 02: The board has taken a claim and brought it out of, put the preferred embodiment out of scope or done something like that, right? [00:17:16] Speaker 02: Everyone agrees the embodiments are covered by the claims as construed by the board. [00:17:20] Speaker 02: The issue is whether Phillips, when he wrote these claims, included sufficient narrowing to claim only what was in the specification and not claim broader. [00:17:29] Speaker 02: And we think the record here, particularly the claims themselves, shows broad claiming. [00:17:35] Speaker 02: There's three themes I would like to hit on, surplusage, [00:17:39] Speaker 02: grammar, and guidance. [00:17:40] Speaker 02: I think the surplusage point is pretty straightforward. [00:17:44] Speaker 02: Dr. Lanning testified in deposition that were someone to strike the words predetermined time period from limitation 23.4, his analysis would be unaffected. [00:17:57] Speaker 02: And that is the essence of surplusage. [00:17:59] Speaker 02: And this court, consistent with many other courts interpreting instruments of law, has heavily criticized interpretations that [00:18:08] Speaker 02: render otherwise operative claim language surplusage and generally gives preference to interpretations that don't suffer that problem. [00:18:16] Speaker 02: And the board's interpretation here doesn't suffer that problem. [00:18:21] Speaker 02: It says, just as Chief Judge Moore described, that the indication must be within the predetermined time period, even if other elements of the claim. [00:18:30] Speaker 02: They might occur during the predetermined time period, but they don't have to occur during the predetermined time period. [00:18:35] Speaker 02: As to the discussion of the figures in the text that we just heard, Judge Taranto, my colleague directed you to Figure 5 and your discussion of Figure 4 and how it relates, it's notable that Figure 4 doesn't disclose the predetermined time period. [00:18:52] Speaker 02: does it, the predetermined time period throughout the patent. [00:18:54] Speaker 01: Well, except that the discussion in the bottom of column three onto column four starts with figure five, which then turns to the wave forms in figure four. [00:19:11] Speaker 01: The T1, T2, T3, T4, T5, T6 are all lined up at the bottom of figure 5, as this is 5G, identically with figure 4. [00:19:21] Speaker 02: So I think there's something to note here, though, which is that the predetermined time period is TF. [00:19:26] Speaker 02: And we're being told this predetermined time period is so critical to the claim, you can't understand the invention without it. [00:19:33] Speaker 02: And then figure 4 doesn't depict TF. [00:19:36] Speaker 02: TF is not of interest in figure 4. [00:19:38] Speaker 02: And figure 4 is. [00:19:40] Speaker 02: I think the parties generally understand that it's depicting this idea of rather than just keep increasing the power foreverless channel quality to grades, there will be a point at which we decrease rather than increase this channel quality to grades. [00:19:55] Speaker 01: This is not going to be a terribly well-formed question, so I hope you try to get at what you infer I'm trying to get at. [00:20:04] Speaker 01: So a significant part, I think, of your opposite numbers argument is that [00:20:09] Speaker 01: when you start with the first paragraph of Clint 23, the data block transmission is supposed to occur in a predetermined time period. [00:20:23] Speaker 01: And I guess one way that I understand the argument is that [00:20:30] Speaker 01: If you don't have all of what is going on in the rest of the claim within that same predetermined time period, you're kind of making nonsense out of the inclusion of that predetermined time period from the very outset of the claim, nonsense to a skilled artisan. [00:20:50] Speaker 01: So how does this? [00:20:53] Speaker 01: makes sense if you're thinking about how an artisan reads this and says, oh, I see what the invention is here if pieces of it are outside what the claim basically starts with, this predetermined time period. [00:21:08] Speaker 02: So I think on this issue, the claims really are instructive, right? [00:21:13] Speaker 02: And they describe there's a data block and a predetermined time period. [00:21:18] Speaker 02: As a matter of background, there was a lot of dispute below as to whether a predetermined time period could include two frames or just one. [00:21:24] Speaker 02: The board expressly didn't reach it. [00:21:26] Speaker 02: So I just want to lay that platform. [00:21:30] Speaker 02: But they are different concepts. [00:21:31] Speaker 00: So they determined this is all happening within one frame? [00:21:35] Speaker 02: They determined that Quectel had a variety of argument that was based on a single frame, and because the board [00:21:42] Speaker 02: found that that argument was sufficient to demonstrate unpatentability. [00:21:45] Speaker 02: It need go no further into that edge case. [00:21:47] Speaker 02: Well, what if? [00:21:48] Speaker 01: So the board didn't actually find that a predetermined period was a frame, as it could be a frame. [00:21:54] Speaker 01: And once it could be a frame, the prior art taught that. [00:21:57] Speaker 02: That's correct, Your Honor. [00:21:59] Speaker 02: However, the frame or predetermined time period to keep the claim language and the data block are different qualitative concepts. [00:22:06] Speaker 02: And actually, the claims kind of contemplate. [00:22:09] Speaker 02: Your goal is to transmit the data block [00:22:12] Speaker 02: within a single predetermined time period. [00:22:14] Speaker 02: But sometimes you might not. [00:22:16] Speaker 02: And I noted claim four. [00:22:19] Speaker 02: It's a dependent claim. [00:22:22] Speaker 02: And it says we're depending from previous claims where the resumption proceeds from the point of suspension. [00:22:29] Speaker 02: So there's a suspension and a resumption. [00:22:32] Speaker 02: And the block is truncated if the predetermined time period expires. [00:22:35] Speaker 02: So you might not get done. [00:22:37] Speaker 02: Now, it's a dependent claim. [00:22:41] Speaker 02: Here, we're going to truncate because it expired. [00:22:45] Speaker 02: The implication is that the independent is broader than that. [00:22:49] Speaker 02: Sometimes, the transmission of the data block might take multiple predetermined time periods. [00:22:54] Speaker 02: There isn't this strict cutoff that my counterpart is advocating. [00:23:01] Speaker 02: Our briefing directed the court to the Luminaire opinion. [00:23:04] Speaker 02: And I really do think it's instructive. [00:23:06] Speaker 02: Luminaire was a flameless candle. [00:23:09] Speaker 02: There were two disputed limitations. [00:23:11] Speaker 02: And this court analyzed and said the first, which had to do with this little plastic flame, it's kind of wiggling, right? [00:23:18] Speaker 02: The first limitation was it had to revolve around certain axes. [00:23:21] Speaker 02: And the court said, certainly it's embodiments that do that. [00:23:25] Speaker 02: But that doesn't seem to, we're not going to read that into this claim where it's not recited. [00:23:31] Speaker 02: The second was chaotic movement. [00:23:34] Speaker 02: And this court said, [00:23:35] Speaker 02: You read this specification, it really is clear that the invention works because of the chaotic movement. [00:23:41] Speaker 02: That is a theme that's returned to again and again and again within the specifications, part of the secret sauce. [00:23:48] Speaker 02: And so this court said the chaotic movement is a restriction on the claim. [00:23:53] Speaker 02: The movement along multiple axes is not. [00:23:56] Speaker 03: I think that's very instructive. [00:23:57] Speaker 03: I don't really understand your claim for argument, because you repeat it again. [00:24:00] Speaker 03: And did you make it in your brief? [00:24:02] Speaker 02: I did not. [00:24:03] Speaker 02: So this is where we're. [00:24:05] Speaker 02: Conversation is moving along. [00:24:07] Speaker 03: Conversation is moving along between who? [00:24:10] Speaker 02: Between the panel and the advocates. [00:24:12] Speaker 03: Did you bring up claim four? [00:24:13] Speaker 03: I don't remember being part of a conversation about claim four. [00:24:16] Speaker 03: I don't think conversation is moving along. [00:24:17] Speaker 03: I think you just brought up a new argument you didn't make in your brief. [00:24:20] Speaker 02: In that case, I did. [00:24:22] Speaker 03: OK. [00:24:22] Speaker 03: Well, why don't you try and explain it to me anyway, since I didn't have the benefit of having a briefing on it. [00:24:27] Speaker 02: Claim four says you've got a circumstance in which the predetermined time period is going to expire and we're going to truncate the data block. [00:24:36] Speaker 02: So that's very straightforward. [00:24:37] Speaker 02: That's a claimed embodiment. [00:24:39] Speaker 02: However, this is the dependent claim. [00:24:42] Speaker 02: And it suggests that the independent claim is broader, that the predetermined time period might expire. [00:24:47] Speaker 02: And we're going to keep going. [00:24:49] Speaker 02: We're not going to truncate. [00:24:53] Speaker 02: So to read otherwise, this claim has no substance. [00:24:55] Speaker 00: All right. [00:24:55] Speaker 00: If you're looking at the examples, though, there is caseload that says, [00:24:59] Speaker 00: you can consider them if they're going to shed light on the invention. [00:25:02] Speaker 00: And I believe here, Appellant is trying to do that. [00:25:05] Speaker 00: They're trying to say, look, here is our invention. [00:25:07] Speaker 00: This is logically how it proceeds. [00:25:09] Speaker 00: If we look at those examples, then will they assist us in shedding light on the intended invention? [00:25:15] Speaker 00: And would that be sufficient for us? [00:25:17] Speaker 02: I think certainly they assist the court as they assisted the board in understanding the invention. [00:25:22] Speaker 02: What I don't think the examples in the patent do is, [00:25:27] Speaker 02: authorize either the board or this court to rewrite the claim so that the predetermined time period becomes a hard limit, that not just the indicating has to happen during that, but the resume, [00:25:41] Speaker 02: Increase and decrease have to happen within that predetermined time period. [00:25:44] Speaker 02: That's a concept that Phillips could have included. [00:25:47] Speaker 02: It didn't. [00:25:47] Speaker 03: What about the order of operations? [00:25:52] Speaker 03: Do you dispute that these steps have to occur in the order they're articulated in Incline 23? [00:25:59] Speaker 02: So two answers. [00:26:01] Speaker 02: We do, and we don't understand how it matters to this case. [00:26:05] Speaker 03: That was going to be my next question, but you do dispute it. [00:26:07] Speaker 03: So how can you [00:26:08] Speaker 03: I don't understand. [00:26:09] Speaker 03: How can you decrease power before you have the indication you can't, right, or before you receive the transfer? [00:26:15] Speaker 03: The one is causing the other. [00:26:16] Speaker 03: Yeah, there's a cause and effect component to these elements. [00:26:20] Speaker 03: So how could they be reordered and this invention still work? [00:26:25] Speaker 03: I mean, I guess I'm not sure it matters to the claim construction, but I am sort of reading these and thinking they have to happen in order. [00:26:35] Speaker 02: Certainly. [00:26:36] Speaker 02: The claim is very clear that the increasing and decreasing of transmit power are caused by the indication. [00:26:42] Speaker 03: And isn't this whole invention about the decreasing and then the increasing in that order? [00:26:49] Speaker 02: That's the part where I think we depart the parties. [00:26:53] Speaker 02: The claim, certainly the one is recited before the other, but there's nothing in logic that says decreasing has to precede increasing or increasing has to precede decreasing. [00:27:06] Speaker 02: been given figures that show channel quality kind of moving in such a way that you would decrease before you increase, but it could be different. [00:27:14] Speaker 00: If you'd like to point out from the examples, where do you think that that's not shown? [00:27:19] Speaker 00: And you may have mentioned it before, but I'd like to take a look at it again. [00:27:22] Speaker 02: Yeah. [00:27:23] Speaker 02: So it's figure four. [00:27:27] Speaker 02: And I think we reproduced this in our brief. [00:27:29] Speaker 02: It's our Dr. Ackle kind of edited. [00:27:34] Speaker 02: Not edited. [00:27:35] Speaker 02: What's the word? [00:27:36] Speaker 02: Annotated. [00:27:38] Speaker 02: It's at appendix 2872. [00:27:40] Speaker 02: And he said, there's a lot of increases and a lot of decreases. [00:27:45] Speaker 02: The claim doesn't establish a relationship between increases and decreases. [00:27:49] Speaker 02: So you can find them in any order. [00:27:53] Speaker 00: So if you're looking at figure four, if you'd like to walk me through that and show me where that's not happening. [00:27:59] Speaker 02: I'm sorry, what's not happening? [00:28:01] Speaker 00: In terms of the decrease following a decrease and increase following an increase. [00:28:04] Speaker 00: You're saying that's not always happening. [00:28:07] Speaker 00: Where would that be demonstrated in figure four? [00:28:09] Speaker 02: So I want to make sure I'm answering the question. [00:28:13] Speaker 00: So if you have a quality issue in terms of that, and then you're going to decrease your power after it. [00:28:23] Speaker 00: And similarly, if you have a quality issue going upward, [00:28:28] Speaker 00: you would increase your transmit power going upward as well, correct? [00:28:33] Speaker 00: I believe that's what your adversary is arguing, correct? [00:28:40] Speaker 02: I am trying to answer the question. [00:28:41] Speaker 00: I'm sorry. [00:28:41] Speaker 00: OK, no worries. [00:28:43] Speaker 00: Why don't you do it this way? [00:28:44] Speaker 00: Why don't you explain to me from figure four, from the beginning of T1 through six? [00:28:53] Speaker 02: Sure. [00:28:53] Speaker 02: So as this is shown, [00:28:59] Speaker 02: There is a decrease in transmit power at T1. [00:29:02] Speaker 02: That is what is shown here. [00:29:05] Speaker 02: So there's no dispute that's shown. [00:29:07] Speaker 02: However, that only applies if we begin our analysis at 0. [00:29:11] Speaker 02: If we cover up the diagram and start a little bit to the right of T1, then the first act is the increase. [00:29:19] Speaker 02: That's the only point we're making. [00:29:21] Speaker 02: There's nothing in the claim that requires us to start our analysis. [00:29:25] Speaker 00: I guess let me ask it this way. [00:29:26] Speaker 00: Are all the examples in sync in that demonstration? [00:29:35] Speaker 00: Is there any figure that's an outlier that has a different demonstration? [00:29:41] Speaker 02: I think all figures exhibit this phenomenon. [00:29:44] Speaker 02: They all show the decrease first. [00:29:48] Speaker 02: But they all have the same characteristic, which you could have just started the analysis at a different place, started tracking at T1.5 instead of 0. [00:29:56] Speaker 02: And then you would see the increase. [00:29:58] Speaker 00: So then does the sequence coming from the figures match the language from the claims themselves? [00:30:09] Speaker 02: As drawn, it does. [00:30:11] Speaker 01: However, I suppose you could say that since [00:30:16] Speaker 01: The claim requires just one decrease and one increase. [00:30:23] Speaker 01: Figure 4 shows that just when you get past T2, from the beginning to T2, and one doesn't need to consider the entirety of figure 4, [00:30:34] Speaker 01: as an illustration, because that would be repeating what's in claim 23, doing it three times. [00:30:42] Speaker 02: I think that's right. [00:30:42] Speaker 02: I think as a litigator, I think on the infringement side, you would just need to show one increase and one decrease. [00:30:51] Speaker 02: And you've shown practice of the claim. [00:30:53] Speaker 02: And I think that's the disclosure that has been made here. [00:30:57] Speaker 01: Can I return to? [00:31:00] Speaker 01: This is always the danger of raising. [00:31:01] Speaker 01: You're raising something you haven't briefed. [00:31:03] Speaker 01: We don't get a chance to think about it before. [00:31:07] Speaker 01: Do I take it your point about claim four is that it implies that the entire data block in paragraph one of claim 23 doesn't have to be transmitted in this predetermined time period? [00:31:23] Speaker 01: You just have to be kind of in the process of trying to do that? [00:31:29] Speaker 02: I think Claim4 is suggesting, and we do discuss in our brief the suspension resumption, you know, that is something that's at issue. [00:31:35] Speaker 01: Right, those extreme increases indeed. [00:31:38] Speaker 01: Right. [00:31:38] Speaker 02: You know, I think this is suggesting that there isn't the kind of tight relationship between predetermined time period and data transmission that my colleague is proposing. [00:31:53] Speaker 02: I do have other arguments. [00:31:54] Speaker 02: I see I'm out of time. [00:31:56] Speaker 03: We're going to give him extra time. [00:31:58] Speaker 03: So if you want to take another minute or two and address your other argument, that's fine. [00:32:04] Speaker 02: Sure. [00:32:05] Speaker 02: First is a variation on the theme. [00:32:07] Speaker 02: When we return to classical plane construction, modifiers are supposed to appear next to the terms they modify. [00:32:12] Speaker 02: That's HTC. [00:32:14] Speaker 02: We don't see our colleagues from Phillips [00:32:18] Speaker 02: Disputing HTC, we actually don't see them responding to HTC. [00:32:21] Speaker 02: So this idea that in response to the indicator that it should actually be, I'm sorry. [00:32:32] Speaker 03: If I were to construe this the way the board did, as only the indication has to occur in the predetermined time and the increase or decrease could occur at some later period, why isn't Mr. Beckwright about, well, that would really make this invention not work properly because then you could have multiple transmissions come through that sort of overwrite and you wouldn't actually achieve the invention because you wouldn't have [00:33:00] Speaker 03: the decreasing and the increasing, which is the efficiency and the improvement of the invention. [00:33:05] Speaker 03: So if you don't limit it the way that they're suggesting, wouldn't you have a strong possibility of not having an invention that operates according to the claims? [00:33:21] Speaker 02: So I have two responses to that. [00:33:24] Speaker 02: that Phillips has kind of deprecated the idea that the causation requirement, the in response to requirement, they've kind of suggested that's not meaningful. [00:33:32] Speaker 02: We would contend it is meaningful. [00:33:34] Speaker 02: It is a causation requirement that one must lead to another. [00:33:38] Speaker 02: And so we would propose that that's where the necessary relationship comes from. [00:33:43] Speaker 02: And frankly, Phillips is the one that put it there. [00:33:45] Speaker 02: Phillips wrote these claims. [00:33:47] Speaker 02: The second is, we discussed this in our brief, this court has a history of saying we don't construe claims based on the purpose of the invention. [00:33:55] Speaker 02: We construe the claims as written, illuminated by the specification. [00:34:00] Speaker 01: It really does depend on just how unfunctional the evident advance is if you interpret the language in a particular way. [00:34:12] Speaker 02: And that's our understanding too. [00:34:15] Speaker 02: in this instance. [00:34:16] Speaker 02: But why is that? [00:34:17] Speaker 01: I mean, I guess, I mean, are you just saying that the real advance here is to say if there's a lot of noise, instead of what people usually do, yell louder, go quiet for a while until the noise goes down? [00:34:32] Speaker 02: I mean, maybe. [00:34:33] Speaker 02: I think that really is the invention here, I think, the alleged invention. [00:34:37] Speaker 02: I would also say below, the challenge was our prior art, [00:34:45] Speaker 02: had some things happening in one frame and some things happening in the very next frame. [00:34:49] Speaker 02: So we weren't talking about eons. [00:34:51] Speaker 02: We're talking about milliseconds. [00:34:53] Speaker 02: And we believe strongly that doing things in the next frame was consistent with this invention. [00:35:01] Speaker 02: Now, the board didn't need to reach that because it said the claim didn't actually require doing things in a single predetermined time period in the manner Phillips is proposing. [00:35:13] Speaker 02: If one reviews those aspects of our petition and our reply that weren't really discussed in much detail in the briefing, you'll see that really this is happening. [00:35:22] Speaker 02: That exact same, oh, channel quality has degraded, I'll go quiet, wait for things to cool off, then I'll come back later, really is present in the prior art. [00:35:31] Speaker 02: Some of it is happening in the very next frame. [00:35:35] Speaker 02: But the idea that this was, that that responsive requirement was not sufficient to establish an invention, we would dispute. [00:35:44] Speaker 02: And finally, Judge Tomano, I think you started questioning early on that. [00:35:48] Speaker 02: This patent includes those statements that these examples are only for example. [00:35:52] Speaker 02: They're not for restriction. [00:35:54] Speaker 02: We see it in a lot of patents. [00:35:56] Speaker 02: But this case illuminates that those statements have meaning. [00:35:59] Speaker 02: These claims are for the public. [00:36:02] Speaker 02: The public is supposed to understand what the invention is. [00:36:05] Speaker 02: And we think it's incongruous for a patentee to come in and say, yeah, we said not to read restrictions in from the examples. [00:36:14] Speaker 02: But we really do need a whole bunch of restrictions read into these claims, because otherwise, the claims that we wrote would be insufficient. [00:36:21] Speaker 00: You know what? [00:36:22] Speaker 00: I'd like to turn your attention, though, to Figure 6, if you could take a moment. [00:36:25] Speaker 02: Certainly. [00:36:27] Speaker 00: And Figure 6 appears to be an entire flow chart with the various steps involved, the sequences. [00:36:34] Speaker 00: And if you take a look at that step by step, does that not, in fact, [00:36:44] Speaker 00: marry the language that's coming off of Claim 23? [00:36:50] Speaker 02: Certainly it falls within the scope of Claim 23. [00:36:56] Speaker 02: I don't think anything about this, particularly because it is presented as an example and not a positive description. [00:37:03] Speaker 00: And I recognize that's an issue that we are dealing with, whether it's an example, whether it's something that's been referred to, and whether it shouldn't be wholly relied on. [00:37:12] Speaker 00: I understand that. [00:37:13] Speaker 00: But just taking a look at this particular figure, give me your best argument on this. [00:37:22] Speaker 00: Because my question really pertains to, [00:37:25] Speaker 00: How does this figure relate to claim 23? [00:37:28] Speaker 00: And would it not be sufficient to support the language that the appellant is presenting? [00:37:36] Speaker 02: I want to be responsive. [00:37:37] Speaker 02: I think the figure is what it is. [00:37:40] Speaker 02: I don't think its content is disputed. [00:37:42] Speaker 02: But if we had a claim that says, I claim a house that has four walls and a roof, and then the figure shows it's made of bricks, traditionally, that is not enough to say bricks are part of this claim. [00:37:54] Speaker 00: How do you read this figure, though? [00:37:57] Speaker 00: If you would take a look at it, what is the sequence on this figure? [00:38:01] Speaker 00: And would you be able to derive predetermined time by looking at this? [00:38:05] Speaker 02: Well, it recites TF. [00:38:07] Speaker 02: And the patent is pretty clear. [00:38:09] Speaker 02: That's the terminology that means F is where the predetermined time period ends. [00:38:15] Speaker 02: We don't know how many milliseconds or anything like that. [00:38:17] Speaker 02: But it is conceptually, certainly, TF is part of this, the predetermined time period. [00:38:21] Speaker 02: It's part of this figure. [00:38:24] Speaker 03: Okay, thank you, Mr. Courtney. [00:38:26] Speaker 03: Mr. Beck, who will restore your three minutes of rebuttal. [00:38:34] Speaker 04: Thank you, Your Honor. [00:38:35] Speaker 04: I'll start where we left off. [00:38:37] Speaker 04: Figure 6 does illustrate the claim, claim 23. [00:38:41] Speaker 04: It checks for whether you're within the predetermined time period twice. [00:38:47] Speaker 04: So there's a block that has a beginning and an end. [00:38:50] Speaker 04: It can't go beyond a piece of that. [00:38:53] Speaker 04: It says specifically, if you hit the endpoint, if you reach T sub F, on Appendix 75, Column A, Line 19, if time T sub F has been reached, flow proceeds to Block 580, where transmission of the data block ends. [00:39:11] Speaker 04: That's the end of the process. [00:39:13] Speaker 04: And that's consistent with Claim 23. [00:39:17] Speaker 04: Claim 23, again, I'll go back to the response and then first decrease, then increase. [00:39:26] Speaker 04: That captures what the whole description in the specification sets forth. [00:39:34] Speaker 04: It's response to the indication of an increase in channel quality. [00:39:38] Speaker 04: Channel quality is the channel over which [00:39:42] Speaker 04: data block is transmitted, and the result is increasing the data transmit power. [00:39:49] Speaker 04: That's referring to the data block, which again has a beginning and an end, just as shown in Fig 6. [00:39:56] Speaker 04: There is no example of a response to an indication having any meaningful delay. [00:40:04] Speaker 04: It's just not described. [00:40:05] Speaker 04: And the description of Fig 4 I mentioned before specifically says that when [00:40:13] Speaker 04: the indication happens, then you get the consequential action of first decreasing power, then increasing it. [00:40:25] Speaker 01: Do you have any on-the-fly response to claim four? [00:40:30] Speaker 04: Your Honor, I think truncation is not inconsistent. [00:40:34] Speaker 04: It just means you leave off. [00:40:37] Speaker 04: In some examples, you might. [00:40:40] Speaker 04: Suspend transmission for a time period so that you're not transmitting information at that point. [00:40:46] Speaker 04: So I think I think there's examples where you can You can leave off like some of the error correction code, but the block still has a beginning and end There's no suggestion you go past piece of that [00:40:59] Speaker 01: And you could have the noise decrease, quiet increase, and still run out of time within the data block and have to truncate. [00:41:12] Speaker 01: That is, all of the elements that you want to put in the predetermined period could still result in the claim for a situation. [00:41:21] Speaker 04: That's exactly right, Your Honor. [00:41:24] Speaker 04: What the invention's about is it's so noisy, why stay at this high level? [00:41:28] Speaker 04: Drop down the level. [00:41:29] Speaker 04: If it gets better, then go up. [00:41:31] Speaker 04: This is a response to the argument that T2 could be before T3. [00:41:37] Speaker 04: That's a tortured reading, and it's completely at odds with the description of the invention. [00:41:42] Speaker 04: That never can happen. [00:41:43] Speaker 04: There's no point that if conditions are improving, that you increase the signal. [00:41:50] Speaker 04: That means you're just wasting battery and you're creating interference with other devices. [00:41:55] Speaker 04: So you never do that. [00:41:56] Speaker 04: You decrease, hope it gets better, then increase. [00:42:01] Speaker 04: And that is the contrast with the prior art. [00:42:04] Speaker 04: And the claim language reflects it. [00:42:07] Speaker 03: Thank you, Mr. Beck. [00:42:08] Speaker 03: I thank both counsels. [00:42:09] Speaker 03: This case is taken under submission.