[00:00:00] Speaker 03:
The next case is number 24-2336, Lenscoe, versus Microsoft. Mr. Franco, when you're ready.

[00:00:09] Speaker 00:
Good morning, Your Honors. May it please the Court.

[00:00:15] Speaker 00:
This case should be vacated and remanded under O2 Micro because the Board failed to construe a critical claim term, distributed mobile architecture.

[00:00:27] Speaker 00:
In addition, the case should be reversed because of the error in the construction of communications information, which should be construed to require that the communications information identify the network that the target device is presently connected to. So I'll start with the distributed mobile architecture issue.

[00:00:51] Speaker 00:
Under O2 micro, the court has held that if there is a dispute over the meaning of a term, It is not sufficient to say that the term should be given its plain and ordinary meaning, and that's exactly what the Board did here.

[00:01:03] Speaker 04:
Has that opinion ever been applied to an IPR?

[00:01:07] Speaker 00:
It has.

[00:01:10] Speaker 00:
In the Homeland Housewares v. Whirlpool Corporation case, which is 865F3rd1372, this Court said that that applies equally to PTAB in deciding IPR decisions. It's necessary for this critical term to have been construed for this court to review the PTAP's finding, and it should be given de novo review.

[00:01:37] Speaker 00:
Now, here, what the board did was disagree with the construction proposed by LEMCO. That's in Appendix 10.

[00:01:51] Speaker 01:
Is this really a claim construction issue, or is this a Microsoft says we should just look at this as whether or not there's substantial evidence to support the conclusion that it's anticipated? Why are they wrong about that?

[00:02:05] Speaker 00:
Well, it is a claim.

[00:02:08] Speaker 01:
Why is it a de novo review here?

[00:02:10] Speaker 00:
Okay, so the term distributed mobile architecture was not construed. The board just said we're giving a plain and ordinary meeting, and it did not say what the plain and ordinary meeting was. LEMCO's proposed construction was that the network has to be one where routing functionality is distributed. Under that construction, there was no finding of anticipation, nor could there be. So applying to NOVA review, I mean, first you need to have a claim construction to review.

[00:02:41] Speaker 03:
Well, you proposed a very detailed claim construction, right?

[00:02:46] Speaker 00:
That's correct, Your Honor.

[00:02:46] Speaker 03:
And they rejected it.

[00:02:48] Speaker 00:
That is correct.

[00:02:49] Speaker 03:
And they said plain and ordinary meaning.

[00:02:50] Speaker 00:
That is also correct.

[00:02:51] Speaker 03:
That's claim construction.

[00:02:53] Speaker 00:
It is the beginning of a claim construction. Under O2 Micro, this court has held that when there is a dispositive dispute, or even any dispute, over what the term means... I understand what O2 Micro says, but...

[00:03:09] Speaker 03:
It sounds to me like you're suggesting O2 micro doesn't allow plain and ordinary meaning at all, which we haven't said. So here, the board was on notice there was a plain construction dispute. You had two different views of what it was.

[00:03:23] Speaker 00:
Yes.

[00:03:24] Speaker 03:
And it resolved it.

[00:03:25] Speaker 00:
It did not resolve.

[00:03:26] Speaker 03:
It did. It said plain and ordinary meaning. Distributed mobile architecture has a plain and ordinary meaning, and then it applied it to this case, and it found substantial evidence that this was anticipated. So it's a substantial evidence whether the disclosure has a distributed mobile architecture. Respectfully, under O2... I mean, we're not going to give you your claim. I mean, I suppose you could argue your detailed claim construction is what should have been adopted. The board rejected that.

[00:03:57] Speaker 03:
I don't see any legal error with that. Some of these terms aren't even remotely in the claim language. Distributed mobile architecture is a much broader term than what you want it to be.

[00:04:07] Speaker 00:
Your Honor, we're not asking for reversal on this issue. We're asking for a vacate and remand.

[00:04:15] Speaker 03:
What do you want the claim construction to be?

[00:04:18] Speaker 00:
The claim construction should address the fact that the mobile architecture is distributed, which has not been done.

[00:04:24] Speaker 03:
Okay, so you don't get what you ask the board for.

[00:04:30] Speaker 00:
that there has to be routing functionality that is distributed to the nodes if you take a step back and this is not the issue that we presented on appeal but if you take a step back what does that mean and why does it matter what is the claim construction you just proposed to me what does it mean and why does it matter The term distributed mobile architecture appears 14 times in Claim 1.

[00:05:02] Speaker 00:
It has to... Right.

[00:05:03] Speaker 03:
You just proposed a claim construction that said something has to be distributed. And the board found that the prior art reference had a distributed mobile architecture.

[00:05:17] Speaker 03:
Is there a lack of substantial evidence for the board's finding on that? Does the prior art reference have no distributed mobile architecture? No.

[00:05:25] Speaker 00:
The prior art reference does not have a distributed mobile architecture. To find that a reference has a distributed mobile architecture, it is necessary to define what a distributed mobile architecture is. And the board did not do that.

[00:05:38] Speaker 03:
They said... I know, but that's why I asked you to define it for me. And you just said something.

[00:05:42] Speaker 00:
Yes.

[00:05:43] Speaker 03:
Why is that not shown by Clorox?

[00:05:46] Speaker 03:
What you just said.

[00:05:48] Speaker 00:
Okay, so what I... Our proposed construction is that routing functionality has to be distributed, and Florae does not have distributed routing functionality. Florae is exactly the conventional architecture that this whole pattern is distinguishing from.

[00:06:08] Speaker 03:
The problem is you didn't write a specific claim that allowed communication between different devices on different servers. You wrote a very broad claim using distributed mobile architecture, which is a much broader term than what you tried to get construed as.

[00:06:30] Speaker 03:
Your Honor, I'm trying to... I know, but you didn't write it in your claim.

[00:06:35] Speaker 00:
I'm trying to answer your question. The claim requires a distributed mobile architecture gateway. It requires a distributed mobile architecture server. It requires a distributed mobile architecture register. That has to mean something.

[00:06:50] Speaker 02:
Every single one of these terms supports... Applying...

[00:06:56] Speaker 00:
Without saying what distributed mobile architecture actually means, there cannot be a determination that it's anticipated. The term appears 800 times in the patent. It's in the title. It's in the abstract. It means something.

[00:07:11] Speaker 00:
Every example in the patent talks about a network architecture where the routing is done at the lower level, not at the top of a hierarchy. The PTAB completely ignored that. If it says we reject your construction, therefore we're doing plain and ordinary meeting, under O2 Micro it has to say what that plain and ordinary meeting is because the parties disagreed about it. According to Microsoft, distributed mobile architecture is an architecture that's distributed.

[00:07:45] Speaker 00:
And they said that just means the network is in more than one place. That's literally every network that has ever existed since the beginning of time. If you just replace distributed mobile architecture with any network, that's what Microsoft proposed. But the PTAD didn't even agree with Microsoft. They just said we don't need to decide what it means because we reject the construction proposed by Lenko. They had to give some construction. Why? Because it's a significant term that defines what the invention is.

[00:08:18] Speaker 00:
Without giving a definition to the term, they cannot have meaningfully assessed if what the patent claims was disclosed in the prior art. That's the fundamental concept of O2 micro. How can...

[00:08:32] Speaker 00:
You know, there's an infringement case going on. We have to show that Microsoft meets the claims. And for them to show anticipation, they have to show that the claimed concept was shown in the prior art. The parties disagreed over what a distributed mobile architecture is. The first thing the PTAB needed to do was say... this is what it means, and then we could come to you and we could say we think the PTAB got it wrong.

[00:08:59] Speaker 01:
Can you talk a bit about communication information? I thought that's one of the terms that was at issue, and you talked mostly about distributed mobile architecture.

[00:09:09] Speaker 00:
Yes. So the plain language of the claim requires that the communications information identify the network that the target device can be contacted through.

[00:09:24] Speaker 00:
And that is a present tense requirement.

[00:09:27] Speaker 03:
Where in the claim language does it say it has to identify the network?

[00:09:33] Speaker 00:
It's the first step, which is the receiving step.

[00:09:36] Speaker 00:
And it helps if you have figure six of the patent in front of you, but if not, I'll paint a picture with words. There's a first distributed mobile architecture gateway, and there's a second distributed mobile architecture gateway. And The term is receiving at a first distributed mobile architecture gateway communications information for a communications network accessible by a second DMA gateway.

[00:10:08] Speaker 04:
Can I interrupt you for a minute?

[00:10:10] Speaker 00:
Yes.

[00:10:10] Speaker 04:
I agree with you that the claim requires what you're saying.

[00:10:14] Speaker 00:
Okay. Right? That's great.

[00:10:15] Speaker 04:
Because it's said in the claim expressly.

[00:10:18] Speaker 00:
Yes.

[00:10:19] Speaker 04:
Right?

[00:10:20] Speaker 04:
Why would I interpret... the claim language that's earlier in the claim to require this claim limitation. I don't really have to because it's right in the claim itself and the board compared the prior art reference to that claim limitation. It made a fact finding that the prior art taught that claim limitation. So I feel like with this issue in particular, by arguing your claim construction, you're turning something that's a factual dispute into a claim construction dispute, which a claim to construction is legal, factual, you know, whether a prior art reference teaches something as a fact question.

[00:11:00] Speaker 04:
And there's two different standards of review. So I feel like there's something tricky going on with your claim construction, to be honest with you. And I just want to be forthright and let you know that. and see what your response is. Because it's kind of weird to say, well, there's like five limitations that talk about the communication information, therefore I'm going to read all of those limitations into this claim, when it's really not necessary because those limitations stand alone in the claim themselves.

[00:11:24] Speaker 00:
Well, thank you. So there's two points I'd like to address in your question.

[00:11:29] Speaker 00:
The first is I agree with you that the plain language requires, and this was the part of the term I was about to get to, that the communications information indicates one or more devices accessible by the DMA server or the communications network. And the accessible is present tense. Now, the parties disagreed over that, and the PTAB found, in favor of Microsoft, incorrectly, that there was no requirement of present tense, that when the communications information is received, it has to identify the network that the target device is accessible by.

[00:12:09] Speaker 00:
In writing its decision, the PTAB applied the incorrect claim construction.

[00:12:14] Speaker 04:
What, communication information or that other limitation?

[00:12:18] Speaker 00:
Well, communications information. The communications information is defined in the receiving step. And the claim is a little bit confusing because it uses communication.

[00:12:27] Speaker 04:
But why aren't you arguing about the meaning of the receiving step?

[00:12:31] Speaker 00:
Well, we are.

[00:12:32] Speaker 04:
You're arguing about the meaning of communication information.

[00:12:36] Speaker 00:
Correct. Communications information is defined in the receiving step. I mean, the first step of the claim is the DMACC receives the communications information, and then it says, this is the definition of communications information, it says the communications information is indicates one or more devices, that's the target device, accessible by one of the DMA server or the legacy communications network. That is saying that when the whole process begins with receiving the communications information, and what is the job of the communications information?

[00:13:18] Speaker 00:
It's to tell you the network you can use to find the target device. Now, this goes back to the whole point of the DMA architecture, which is you have, in figure six, you have two separate DMA networks. Within each DMA network, the individual nodes know how to route the calls. The problem that the 988 patent addresses is what happens when there's someone in the first network who wants to talk to someone in the second network.

[00:13:48] Speaker 00:
And the solution is you have the DMA gateway that sits above the DMA network and knows, through this collection of communications information, where to go to find the target device. So the whole claimed invention here is you have – Two DMA gateways, each one is responsible for the DMA network that sits below it. And at the DMA gateway, you collect the communications information that says, if you're looking to talk to Bob, Bob is over in this other DMA network, and this is how you get to him.

[00:14:24] Speaker 00:
And that is a present tense term. And the board did not apply that claim construction, nor could it have, in finding that Florey anticipates.

[00:14:37] Speaker 00:
Have I answered your question? Okay.

[00:14:41] Speaker 03:
You've pretty much run through your rebuttal time. Do you want to save the rest of it?

[00:14:44] Speaker 00:
I'll save the rest. Thank you.

[00:15:03] Speaker 02:
May it please the Court, the Board's decision below should be affirmed because the specific disputes that Lemko is raising here are not really claim construction disputes. What Lemko is doing is piecing together different statements scattered throughout the record, including statements that are about the prior art and statements comparing the claims to the prior art.

[00:15:24] Speaker 03:
Did you hear what he said today was a definition of distributed mobile architecture? No.

[00:15:30] Speaker 02:
I did, Your Honor, and I'll jump straight to that because I do want to address that. That is a different construction than they argued below, and it's a different construction than they argued in their briefs here.

[00:15:40] Speaker 02:
And this is emblematic of the approach that LEMCO took to claim construction. It was constantly changing positions, but the – What I heard him articulate here today was that routing functionality has to be distributed, and if that's the construction, the board expressly addressed that. This is at Appendix 10. We agree with petitioner that patent owner's call routing and peer-to-peer constructions are incorrect. Patent owner does not persuasively argue why the claim should be rewritten to require distributed call routing functionality.

[00:16:12] Speaker 02:
So if that's the scope of distributed that they're fighting over, the board expressly addressed that.

[00:16:18] Speaker 03:
Because it's not in the claims in that specific way. Correct. It uses a much broader term, distributed mobile architecture.

[00:16:25] Speaker 02:
That's exactly right.

[00:16:26] Speaker 03:
What do you think? I mean, I know you just want to rely on plain and ordinary meaning, but if we had to rely on a construction of distributed mobile architecture, what is it?

[00:16:38] Speaker 04:
And you did have a definition of what the claim in ordinary meaning was. You said what that was, right?

[00:16:44] Speaker 02:
So there was a lot of discussion below about what the claim in ordinary meaning meant and how it applied to the claims. Ultimately, I think we agree with the board that it doesn't need a definition. And I think if you look at O2 Micro, O2 Micro says that courts do not have to define every single term. The obligation... of a court under o2 micro is to resolve the dispute as to claim scope and the board clearly did that here they expressly rejected the distributed call routing argument they expressly rejected the hierarchical argument that's at appendix 18 and 19. and so the aspects of the claim scope that lemco is raising here were addressed they were resolved at page a9 the board says what it thinks your plain and ordinary meaning of distributed is

[00:17:34] Speaker 04:
Are you saying that that is not correct?

[00:17:37] Speaker 02:
Sorry, which page are you talking about?

[00:17:38] Speaker 04:
It's on page A9 at the bottom. It says, the petitioner describes the plain meaning of distributed as something that is part of a broader network or intended to be part of a broader network. Are you still maintaining that position?

[00:17:52] Speaker 02:
Or is that not an accurate depiction of your... No, we said that, and the board addressed that. The board, what...

[00:18:00] Speaker 02:
What the board ultimately did is say that it didn't need to provide a specific definition of distributed, and it went on to apply it.

[00:18:06] Speaker 04:
I'm just asking what your view of it is. Is this consistent with what your view of distributed is?

[00:18:13] Speaker 02:
Your Honor, so yes, we said that below, and that is what distributed in the abstract means, that there is substantially more discussion when you actually get into analyzing the floor reference as to how floor discloses these elements, and we provided a specific mapping to floor's figure.

[00:18:34] Speaker 02:
of which elements were the distributed mobile architecture gateway, which ones were the distributed mobile architecture server. So the statement we made there, we set it below, we stand by it, but the analysis for how the Florae reference actually anticipated the claims is substantially more detailed, and distributors used to describe the distributed mobile architecture gateway, the distributed mobile architecture server. And so it's not just distributed alone that is dispositive of the dispute. It's the full analysis that the board did and that we did below showing how Flora's components map to each of the claim terms.

[00:19:09] Speaker 02:
And that full analysis is what supports the board's findings under the substantial evidence standard, which is really the standard that applies to these disputes.

[00:19:20] Speaker 01:
Are you still arguing waiver of the issue with respect to construction on the communication information? Or are you not arguing that?

[00:19:31] Speaker 02:
Yes, we are. So on communication information, LEMCO on appeal is now advancing two requirements. One is a timing requirement that the device has to be accessible by the DMA gateway to when the communication information is received. And then the second argument is that the communication information has to indicate the communications network itself in the communication information. Neither of those were presented as claim constructions or as questions of claim scope below.

[00:20:02] Speaker 01:
If you look at appendix... Didn't they, though, make it pretty clear what their position was?

[00:20:07] Speaker 02:
I don't think they did. If you look at Appendix 311 and 312, and this is where LEMCO points to in the record below in response to our waiver argument, if you look at the requirement to identify the communications network, I'll start with that one, the only place that's referenced anywhere on these pages is near the bottom of page 311. They said, there is nothing in a PPP context that identifies any network accessible by a second gateway. And so PDP context is referring to the Florae prior art.

[00:20:37] Speaker 02:
That's a statement about the Florae prior art. And then if you continue to the next page, to the end of this section, where they tie this argument back to the claim language, the claim language they point to on Appendix 312 is that Florae does not disclose receiving a communication at the first DMA gateway online. for a target device indicated by the communication information to be served by the second gateway. That is not the basis of the claim construction argument that they're making here. They claim here on appeal that the reason the communications information has to identify the network is because of the phrase for a communications network in the first limitation of the claim.

[00:21:15] Speaker 02:
That's not the limitation they were arguing. They were arguing the third limitation of the claim about identifying the target device. And so this is the problem, uh, with their argument, and this is why there's a waiver, they never presented this question as a question of claim scope. Instead, what they did is they described the Flore prior art as part of making other arguments that Flore did not disclose other elements of the claim. And that does not preserve a claim construction issue for appeal. And the argument with respect to the first part of their construction for communication information, that it be accessible at the time of that the communication information sent, it's exactly the same thing.

[00:21:57] Speaker 02:
If you look at Appendix 312, where they're making those statements, they're making them in the context of describing Florez prior art.

[00:22:03] Speaker 04:
One of the issues I'm having with your argument on waiver is that we have held that you can raise new arguments in support of a proposed claim construction. In other words, where they're finding support for their claim construction in the intrinsic evidence or extrinsic evidence, probably more intrinsic evidence, can be further supported on appeal um but they can't propose a new claim construction so i'm having a hard time where page a311 says what they think the challenge claims require communication that does something why that's i'm just letting you know that but you have a position even if we don't find waiver right

[00:22:46] Speaker 02:
I do, and I just want to make one comment. So on Appendix 311, where you say the challenge claims require, so they do have that. That's their very first paragraph on 311. And if you look at the four things that are listed there, it doesn't include either of the requirements they're advancing on appeal. There's nothing about timing, and there's nothing about identifying the communications network itself.

[00:23:06] Speaker 02:
Now, to address your question, though, about our position, so with respect to whether the communications information has to identify the communications network, nothing in the claim language requires that. If you look at the claim language, all it says is that you receive communications information for a communications network. That doesn't mean that the name of the communications information has to be a part of the communications information itself. And in fact, if you look at figure 12 of the patent, so this is appendix...

[00:23:45] Speaker 02:
73 and this is what lemco points to when they're identifying the support for communication information in the patent all you see just lows and figure 12 are the names of dma servers and dma gateways there's three dma gateways three dma servers those are all identified those are identifying the devices serving the network but they're not identifying the networks 620 and 640, which is what LEMCO claims are the DMA networks, if you look back at figure 6.

[00:24:15] Speaker 02:
There's no identification of any network there. And so we think that the plain claim language doesn't impose this additional requirement, and we think the specification is likewise consistent, but there's no requirement to identify the communication network. Now, the second part of their construction is the timing and timing. If you look at the plain claim language, there is a sequence of steps, and LEMCO acknowledges in their reply brief that claim one of the 988 patent imposes an order, and the actual communication that has to be routed by the second DMA gateway is the very last step.

[00:24:47] Speaker 02:
So in that step, the device has to be accessible by the DMA gateway. It does not have to be accessible at the time the communications information is received in the first step. And further support can be found if you look at the third limitation of claim one, which says receiving a communication at the first DMA gateway for a target device indicated by the communications information to be served by the second DMA gateway. So indicated is past tense. That's referring to when you received the communications information. But then the language describing the content says to be served.

[00:25:21] Speaker 02:
So when you received it, it was an indication that it is to be served in the future. And so the structure of the claims, the plain language of the claims, supports that the device only needs to be accessible when the call is received in the final step. And the other aspect that I'll point to and support is back to Figure 6 of the patent, which is Appendix 67.

[00:25:49] Speaker 02:
If you look at figure 6, there's a dashed line 660, and this is describing a scenario, a handover scenario. A 1DMA server is moving from 1DMA gateway to another. And this is exactly the sort of thing that the Florae prior art reference is addressing. It's addressing handover from 1DMA. 3G to 4G networks, but it's the same concept. The patent acknowledges that servers will move between gateways, and it also acknowledges that individual devices will move between servers.

[00:26:20] Speaker 02:
That's what the HLR and the VLR, if you look back at figure 12, that's what those are. Those are registers of which devices are at home and which devices are visitors, meaning they're roaming to a new DMA server. So the concept that devices are moving and that you have to be able to handle this handover from one DMA server to another or one DMA gateway to another is fully supported in the patent specification. And so Lemco is basing this argument on the supposed purpose of the patent, that it only addresses finding devices right now at this moment, and that's just not true.

[00:26:55] Speaker 02:
The patent also addresses the fact that devices are moving in the network, and you have to be able to have processes to hand over responsibility for a particular device from one server to another or from one gateway to another.

[00:27:25] Speaker 03:
Anything further?

[00:27:27] Speaker 02:
No, if there are no further questions.

[00:27:28] Speaker 03:
Thank you. Thank you, Your Honor. I appreciate that.

[00:27:42] Speaker 00:
First point I'd like to make is that the timing requirement was fully disclosed below. At Appendix 31 and 32, the Board acknowledged the exact argument we're presenting for claim construction and rejected it. They said, petitioner also contends that patent owner argues a nonexistent claim limitation that the identified device must be accessible by a DMA server at the time the communications information is received.

[00:28:14] Speaker 00:
So that's exactly how we're saying that the term should be construed now on appeal.

[00:28:21] Speaker 00:
And then I'll also cite our brief to the PTAB, Appendix 379, where we say that Petitioners belatedly argue that the claims do not require that the identified device must be accessible by a DMA server at the time the communications information is received. Petitioner's new theory is directly contradicted by the plain language of the claim. So there was no waiver. That issue was fully presented.

[00:28:50] Speaker 00:
We're not presenting a new construction with respect to distributed mobile architecture either, and I'll refer the court to Appendix 8 and 10 and 13 and 14, which clearly states that the routing functionality and the information needed to route has to be distributed to the lower-level nodes in the architecture.

[00:29:12] Speaker 00:
It is not sufficient for the board to say plain and ordinary meaning. It has to construe the term. It's obligated to resolve the dispute. It has to say what a distributed mobile architecture is. It means something. Only when that term is defined can it be determined if it's disclosed in a prior art reference. And my final point I'd like to refer to – My friend talked about this example at 1134 to 52 in the 988 patent, which is talking about the scenario where a distributed mobile architecture server is reassigned from one gateway to another gateway.

[00:29:53] Speaker 00:
That is not talking about tracking the location of a target device as it moves from network serve by one gateway to another gateway. It is not talking about using communications information to track where devices are located. There's not a single example anywhere in the patent that talks about prospective... You're way out of time.

[00:30:18] Speaker 03:
Thank you.