[00:00:02] Speaker 02:
Our first case today is 2015-1071, Atlas versus Medtronic.

[00:00:09] Speaker 02:
Mr. Summerfield.

[00:00:12] Speaker 02:
Thank you, Your Honor.

[00:00:16] Speaker 01:
May it please the court.

[00:00:18] Speaker 01:
I'm going to be addressing two issues in this appeal.

[00:00:21] Speaker 01:
The first is claim construction is pertained to the infringement issue, and the second is claim construction is pertained to the validity issue.

[00:00:28] Speaker 01:
I'll save the second argument for the model.

[00:00:31] Speaker 01:
The question on infringement has to do with the judge's construction of the establishing and transmitting terms of the 734 patent.

[00:00:41] Speaker 01:
More specifically, what does the hub have to establish and when does that information have to be sent to the remotes?

[00:00:50] Speaker 05:
I'm not sure whether you said this in your brief in this case or in the companion case.

[00:00:56] Speaker 05:
I think at the page 21 of your brief in the companion case, at least, you seem to accept, and the question is, do you accept, the notion that information about the slot allotment, which is my shorthand for what's supposed to happen around the clock in the cycle, has to be sent out

[00:01:17] Speaker 05:
before 6 o'clock, before the remote transmission slots begin?

[00:01:23] Speaker 01:
The transmission information does, Your Honor.

[00:01:25] Speaker 01:
There's another question, however, as to whether the length of the communication cycle needs to be communicated at that time as well.

[00:01:31] Speaker 01:
In other words, when to let the remotes know to turn off their transmitters.

[00:01:36] Speaker 01:
So certainly to allow the remotes to turn on their receivers when they are supposed to, that information has to be communicated beforehand.

[00:01:44] Speaker 02:
before what and before they are before they actually uh... received information from the hub during the communication with reference to figure three would you pull out your figure three yes your honor that's where i was going so would you agree and what precise information would you agree the hub have to transmit

[00:02:10] Speaker 02:
It seems to me it would have to transmit, for example, interval time during what would be up until the end of what's numbered 82.

[00:02:23] Speaker 02:
Because if it doesn't transmit start times and interval times, then for example, in this example, TXOP1 wouldn't know that it should turn on, although it's already turned on because it's receiving something from the hub.

[00:02:37] Speaker 02:
But it wouldn't necessarily know it can go ahead and transmit.

[00:02:40] Speaker 02:
But most importantly to this patent, it seems TXOP2 ought to know at the start of TXOP1 that it can go ahead and shut down everything, transmission and reception and save battery.

[00:02:51] Speaker 02:
And so it seems that up until number 82, not only does start time need to be conveyed, but interval time or TXOP2 doesn't know to power down everything.

[00:03:06] Speaker 02:
when TXOP-1 is available.

[00:03:09] Speaker 02:
Does that make sense?

[00:03:10] Speaker 01:
It does, Your Honor, and as a matter of fact, that's correct for the multiple remote scenario.

[00:03:16] Speaker 01:
The TXOP-2, in other words, remote number two, has to know when to turn on its receiver, or its transmitter rather, so it has to know how long TXOP is going to be transmitting for.

[00:03:27] Speaker 01:
The problem was that in the companion case, what the district court found was that all this information has to be transmitted before the communication cycle even begins.

[00:03:35] Speaker 05:
Right, but we can get to that in the companion case.

[00:03:37] Speaker 05:
In this case, there's no dispute, you don't make a dispute, that as long as all this information has to be transmitted before seven o'clock on figure three, there's no infringement.

[00:03:51] Speaker 01:
At least the start times for the transmission opportunities, Your Honor.

[00:03:54] Speaker 01:
However, the end of a frame can be transmitted after that point.

[00:03:58] Speaker 01:
And that is actually taught specifically in the patent.

[00:04:02] Speaker 02:
If we go to column 25, line 55... So wait, I just want to make sure I understand the pieces of information that you're delineating between in terms of what you're agreeing needs to be transmitted by, say, seven o'clock on this diagram.

[00:04:17] Speaker 02:
The start time and the interval

[00:04:19] Speaker 02:
for each of the remotes would both have to be transmitted prior to the TXOP1 beginning.

[00:04:27] Speaker 01:
Yes, Your Honor.

[00:04:28] Speaker 02:
The question is... The interval, though.

[00:04:29] Speaker 02:
Because without the interval, you can't know to power off because you won't know when your turn is going to come.

[00:04:34] Speaker 01:
That's right, Your Honor.

[00:04:35] Speaker 01:
But the question then becomes, do both of those pieces of information have to be transmitted at the same time before 7 o'clock on the clock?

[00:04:42] Speaker 01:
In other words, do you have to tell a particular remote

[00:04:45] Speaker 01:
This is going to be your start time and this is going to be your end time at the same time as opposed to waiting until sometime later, say for example at the end of the transmission opportunity to tell the remote, we are now done.

[00:04:59] Speaker 01:
And that's why I want to refer the court to column 25, line 55.

[00:05:02] Speaker 01:
It says an ending flag 166.

[00:05:06] Speaker 02:
Go a little slower.

[00:05:07] Speaker 02:
Hold on.

[00:05:07] Speaker 02:
I've got to find it.

[00:05:08] Speaker 01:
I'm sorry.

[00:05:09] Speaker 01:
Column 25.

[00:05:10] Speaker 01:
A126 in the Medtronic appendix, Your Honor.

[00:05:15] Speaker 01:
going to come twenty-five line fifty-five at ending flag one sixty-six follow the body one sixty-four the frame one fifty-two and similar to the starting flag one sixty the ending flag one sixty-six is unique that pattern that provides unambiguous identification of the end of the frame one fifty-two

[00:05:34] Speaker 01:
So that's basically saying that that flag is what indicates the end of the frame, not information that the remote had been transmitted to it at some point earlier than that.

[00:05:43] Speaker 01:
So the only point I'm making is that contrary to what the district court found, one need not send the start and end information to the remotes at the same time.

[00:05:53] Speaker 02:
is there just to be clear any disclosure in this patent you'd like to point me to where an embodiment doesn't send them together.

[00:06:01] Speaker 02:
I'm not saying that's required.

[00:06:02] Speaker 02:
I just want to know is there anything in the patent?

[00:06:05] Speaker 01:
Yes, the one I just read, Your Honor, the end flag is the thing that tells the remote that a frame is over.

[00:06:10] Speaker 02:
But here is there any evidence that this end flag is being sent separate from the rest of the transmission information?

[00:06:19] Speaker 01:
Yes, it's at the end of the frame.

[00:06:21] Speaker 01:
So there would be a beginning flag at the beginning of the frame and an end frame at the end of the frame.

[00:06:26] Speaker 03:
What figure is this?

[00:06:27] Speaker 01:
I'm sorry, this I believe is figure 8.

[00:06:35] Speaker 01:
So if we look at figure 8, the starting flag is element 160 and the ending flag is element 166.

[00:06:44] Speaker 02:
You know isn't this a single transmission?

[00:06:47] Speaker 02:
Isn't that what figure 8 is?

[00:06:48] Speaker 02:
Starter flag, header, body, ending flag.

[00:06:50] Speaker 02:
That seems to me to be one transmission.

[00:06:52] Speaker 01:
It's part of the same frame, Your Honor, but they are not.

[00:06:54] Speaker 02:
So the frame or the same transmission?

[00:06:56] Speaker 05:
The same frame, Your Honor.

[00:06:57] Speaker 05:
This is frame 152 that appears in the sequence of frames in figure 7?

[00:07:01] Speaker 01:
That's correct.

[00:07:02] Speaker 01:
So technically they're not sent at the same time because they are in different header positions of the frame.

[00:07:07] Speaker 01:
But they are part of the same frame.

[00:07:09] Speaker 01:
The only point is the district court

[00:07:11] Speaker 01:
Construction seems to require that both be sent at the same time.

[00:07:14] Speaker 01:
Technically that doesn't happen in frame 152.

[00:07:22] Speaker 01:
But just to be clear, from our standpoint, from Atlas's standpoint, the problematic part of the plan construction does indeed come in the companion case, where the information has to be sent before the communication cycle commences.

[00:07:37] Speaker 01:
We think there is plenty of

[00:07:38] Speaker 02:
Well, we're going to have more time to revisit all of this in the next case, but this is your only chance to talk about the anticipation.

[00:07:44] Speaker 02:
So could I ask you to move to that?

[00:07:47] Speaker 01:
Your Honor, I was going to reserve that for a bottle time, but I'm happy to do it now.

[00:07:51] Speaker 03:
You should do it now.

[00:07:52] Speaker 01:
Yes.

[00:08:01] Speaker 01:
So the question here is whether each really means each.

[00:08:06] Speaker 01:
and whether may can be read into the limitation in question regarding what has to happen in each communication cycle.

[00:08:13] Speaker 01:
The district court, we believe, properly found that the plain language of the claim requires that there be a transmission from the hub to the remotes and from at least one remote to the hub in each communication cycle.

[00:08:27] Speaker 02:
Why do you say at least one remote?

[00:08:30] Speaker 02:
I don't understand why you're not defending the district court's construction.

[00:08:34] Speaker 02:
You have

[00:08:36] Speaker 02:
come up here and propose a different construction than what the district court did.

[00:08:39] Speaker 02:
I assume it's because of other cases, and not this one, because Medtronic's only got one remote.

[00:08:44] Speaker 02:
So the district court's construction can't affect your infringement assessment of Medtronic, so I assume it's the strategic reason based on different cases.

[00:08:52] Speaker 01:
No, Your Honor.

[00:08:52] Speaker 01:
It actually has to do with what the patent teaches about transmission opportunities.

[00:08:55] Speaker 01:
Very clearly, the patent also teaches that there can be intervals where the remote, a remote,

[00:09:01] Speaker 01:
doesn't have to avail itself of its transmission opportunity, and therefore the remote wouldn't transmit.

[00:09:07] Speaker 01:
So we believe that all the claim actually requires is that a single remote transmit to the hub.

[00:09:12] Speaker 02:
Why couldn't there be a communication cycle in which none of the remotes have anything to say?

[00:09:19] Speaker 01:
Well, that wouldn't infringe, Your Honor.

[00:09:20] Speaker 01:
That's the point.

[00:09:21] Speaker 01:
We don't think it would infringe, and we don't think that anything that allowed that, like naderogen in this case, would anticipate.

[00:09:26] Speaker 01:
So if there are communication cycles where no remote transmits to the hub, as in the case of Nataraja, that wouldn't be anticipatory because of the limitation that says each communication cycle in which the hub transmits frames to the remotes and the remotes transmit frames to the hub.

[00:09:42] Speaker 02:
No, but it doesn't say each communication cycle.

[00:09:45] Speaker 02:
It says the hub establishing repeating communication cycles, each of which has intervals during which the hub and remotes

[00:09:55] Speaker 02:
transmit and receive frames.

[00:09:58] Speaker 02:
If you get the benefit of somebody has to send something in that plain language, why doesn't each one of them have to send something?

[00:10:06] Speaker 02:
Because what I'm having trouble with is reconciling your proposed construction.

[00:10:11] Speaker 02:
I understand the district court's construction and I can see how it reconciles with the plain language.

[00:10:15] Speaker 02:
I don't understand how your construction reconciles with the plain language.

[00:10:19] Speaker 02:
I understand that you want to preserve this transmission opportunity and some people don't transmit during them and I see that that is covered in many other claims like claim 17 and claim 6.

[00:10:29] Speaker 02:
I mean I see that present that there may be a cycle where there's no transmission and in fact then the hubs can reallocate time based on lack of transmission and I see that present in other claims.

[00:10:39] Speaker 02:
I don't see any of that present in this claim and so I'm wondering why, how

[00:10:45] Speaker 02:
Your proposed construction reconciles with this very precise language, each of which has intervals during which the hub and remote transmit and receive frames.

[00:10:57] Speaker 01:
Well, we contend, Your Honor, that that construction will require languages as all remotes transmit frames, and that's not what it says.

[00:11:04] Speaker 01:
And Claim 17, which depends from Claim 14, has those two limitations in it.

[00:11:10] Speaker 01:
It has each communication cycle language that we're talking about, and it also has

[00:11:15] Speaker 01:
the permitted language that you just referred to.

[00:11:18] Speaker 01:
So, if the limitation in claim 14 actually required that all remotes transmit frames, the notion of a transmission opportunity would become pretty much superfluous.

[00:11:30] Speaker 02:
Especially given- Okay, that's a good point, and I didn't notice that before.

[00:11:34] Speaker 02:
So, claim 14 has the identical language to claim 21 with regard to this element.

[00:11:40] Speaker 02:
And then came 17, which depends on 15, which depends on 14.

[00:11:44] Speaker 02:
further delineates by indicating that the hub can adjust the length of communication for, does it actually expressly say people cannot transmit?

[00:11:58] Speaker 01:
Certainly the allocation would include a situation where the hub prevents or doesn't allocate time to a particular remote, yes.

[00:12:06] Speaker 01:
But the way the patent explains transmission opportunities throughout, it says that it's

[00:12:11] Speaker 02:
So that's why we believe that the proper construction... Oh, it absolutely does, transmission opportunities throughout, but that transmission opportunity is not used in 21.

[00:12:23] Speaker 01:
That's true, Your Honor, but we have to construe the same limitation consistently from claim to claim to claim.

[00:12:29] Speaker 01:
So claim 14, if in claim 14 that limitation is problematic, given the addition of what language is in claim 17,

[00:12:37] Speaker 01:
then we can alter the construction claim twenty-one to be different than it is in claim fourteen.

[00:12:45] Speaker 02:
Okay, so if I agree with what you're saying now, the one thing I'm struggling with

[00:12:51] Speaker 02:
is why does at least one of them have to send something?

[00:12:55] Speaker 02:
Where is the evidence of that?

[00:12:57] Speaker 01:
Because the language doesn't say may here the way it does.

[00:13:00] Speaker 01:
For example, later on in claims, we stick with claim 14, there's language of allowance there.

[00:13:07] Speaker 01:
So for example, around line 50, the interval is being one when the hub is allowed to transmit frames to the remotes.

[00:13:13] Speaker 02:
The same language as in 21, the hub transmits a plurality.

[00:13:17] Speaker 02:
The word allow appears three or four different times.

[00:13:19] Speaker 01:
Yes, we could look at claim 21 too.

[00:13:21] Speaker 01:
The point is these are all limitations that the claims have in common.

[00:13:25] Speaker 01:
So the point is in the same claim, we have language that talks about when things are allowed to happen.

[00:13:30] Speaker 01:
That language isn't in the establishing limitation as far as each communication cycle language is concerned.

[00:13:36] Speaker 01:
So the maxim is that if a patentee uses language in one place and doesn't use it in another, you assume that where it's not used, it doesn't apply.

[00:13:44] Speaker 01:
So that's why we read this language as not being permissive, that there has to be a frame transmitted from a remote to the hub.

[00:13:53] Speaker 05:
Can I just clarify one thing?

[00:13:55] Speaker 05:
Do you read the district court as having

[00:13:58] Speaker 05:
adopted a different construction on this point from yours?

[00:14:01] Speaker 01:
It's possible.

[00:14:02] Speaker 01:
Yes, we do.

[00:14:03] Speaker 05:
Because of what language?

[00:14:05] Speaker 01:
Because of the language it says the remotes.

[00:14:07] Speaker 05:
So that infers... So does the claim language.

[00:14:09] Speaker 05:
That's just mimicking the claim language.

[00:14:11] Speaker 05:
How do we know whether the district court meant by that phrase what you mean by it or whether it means all remotes?

[00:14:21] Speaker 01:
I take your point, Judge Taranto.

[00:14:22] Speaker 01:
It may very well be that what the district court had in mind was a single remote.

[00:14:26] Speaker 01:
for the same reason that we believe that that's what this language means on its face.

[00:14:29] Speaker 05:
And later in the claim, there is a transition from the remotes to the remote.

[00:14:36] Speaker 05:
Doesn't that suggest that kind of imprecision in the use of language in some of these claim elements?

[00:14:47] Speaker 05:
It seems to me on the face of this particular claim language,

[00:14:51] Speaker 05:
I put aside the one that I just referred to, the one about powering off.

[00:14:54] Speaker 05:
It goes from plural to singular without breathing in between.

[00:15:00] Speaker 05:
There is on its face language in this one about intervals and nobody would say that in each of the intervals, not each cycle, but each of the intervals, all the things that follow the language, namely the hub.

[00:15:16] Speaker 05:
There's the hub, there's the remotes, there's the

[00:15:18] Speaker 05:
receiving, there's the transmitting, and even remote has plural inside it.

[00:15:23] Speaker 05:
Nobody would say that in each interval, all of the four at least combinations have to occur, right?

[00:15:29] Speaker 05:
So there must be some working out of a distribution of these plurals over the verbs and over the separate subjects, none of which seems to me to be a matter of playing on its face language.

[00:15:42] Speaker 05:
And as soon as you get out of the plain language, everything else in the patent screens these are allowance opportunities, not mandatory ones.

[00:15:51] Speaker 01:
Well, Your Honor, there are examples that show mandatory transmissions from the remotes to the hub.

[00:15:56] Speaker 04:
The control things.

[00:15:57] Speaker 04:
But it doesn't say mandatory.

[00:15:58] Speaker 04:
That doesn't mean the control thing.

[00:16:00] Speaker 04:
That doesn't say mandatory.

[00:16:01] Speaker 04:
It says they're optional.

[00:16:02] Speaker 01:
No, Your Honor.

[00:16:03] Speaker 01:
There are passages that talk about particular communications from the remotes to the hub that the remotes do in particular instances.

[00:16:10] Speaker 01:
And it's not discretionary.

[00:16:13] Speaker 01:
I can take the court through that.

[00:16:14] Speaker 01:
I see that I'm into my rebuttal time.

[00:16:16] Speaker 01:
I'm happy to wait until then to do it.

[00:16:20] Speaker 06:
okay why don't we hear from strokeman thank you just more man please report

[00:16:34] Speaker 06:
I'd like to respond to Atlas's arguments on non-infringement and then turn to the issue of invalidity where the court should order the judgment of anticipation be found but at a minimum Medtronic should be entitled to a remand on obviousness.

[00:16:48] Speaker 05:
Would you mind starting with the anticipation since if you prevail on that we don't need to reach non-infringement here.

[00:16:53] Speaker 06:
I would be happy to Judge Tronter.

[00:16:56] Speaker 06:
So on anticipation

[00:16:59] Speaker 06:
and on obviousness.

[00:17:01] Speaker 06:
There are three separate reasons that the court should reverse the judgment.

[00:17:06] Speaker 06:
The prior art anticipates, because all of the elements are met, even if having a remote transmit each cycle is mandatory.

[00:17:14] Speaker 06:
And the reason for that is that the prior art discloses systems where remotes, in fact, transmitted each cycle.

[00:17:20] Speaker 06:
So this ends up being akin to Upshur-Smith.

[00:17:22] Speaker 05:
Second, the argument that... And that would be a factual question, which the district court didn't reach, that we would have to reach for the first time on our own, right?

[00:17:29] Speaker 06:
So Judge Toronto, I don't think that there was any dispute that the only difference between the non-private references... I agree.

[00:17:36] Speaker 05:
There's no dispute that if you're right about the claim construction of this point, the thing is anticipated.

[00:17:45] Speaker 06:
Absolutely right, Judge Toronto.

[00:17:46] Speaker 06:
I think also they conceded below, this is at A2621, in Atlas's expert report, the quote, without the establishment of communication cycles, each of which having

[00:17:57] Speaker 06:
at least one interval in which there will be transmissions of at least one frame from a remote to a hub, the invention would be indistinguishable.

[00:18:04] Speaker 06:
So absolutely, if the court reverses on the claim construction issue, we're entitled to judgment on anticipation.

[00:18:11] Speaker 02:
Then just focus on the claim construction issue, please.

[00:18:14] Speaker 06:
I'd be happy to judge more.

[00:18:20] Speaker 00:
So under the claim, do the remotes determine whether to turn on or not independently?

[00:18:33] Speaker 06:
under the claim, the remotes determine whether to turn their transmitters or receivers on or off based on the information that they receive from the hub.

[00:18:44] Speaker 00:
I think that goes principally to the... I guess what I'm getting at is I don't see anything in the claim of specification that makes it mandatory that a remote turn on during any particular communication cycle.

[00:18:58] Speaker 06:
That's absolutely right, Judge Raina.

[00:19:00] Speaker 00:
There's nothing in either the claim or... It could be that they decide, all of them decide.

[00:19:05] Speaker 00:
There can be a communication cycle where none of the remotes turn on.

[00:19:09] Speaker 06:
No, that's right.

[00:19:10] Speaker 06:
In fact, this sort of gets to... I mean, not to turn to the Upshirt Smith argument.

[00:19:14] Speaker 06:
I'm going to stay on the claim construction argument, but the one thing that they pointed to to try to distinguish the prior art

[00:19:19] Speaker 06:
from the President's invention was to say our expert had conceded that in the prior it was possible that the remotes would not transmit.

[00:19:28] Speaker 06:
And what he testified, this is at A1573, is quote, add in with most communication systems

[00:19:34] Speaker 06:
If there's no data to send by any of the remotes, then the remotes wouldn't request data and that would be one of the states of the system.

[00:19:41] Speaker 06:
And that's exactly what we think that this claim goes to and this invention goes to.

[00:19:46] Speaker 06:
The invention is absolutely agnostic as to whether or not the remotes in fact have information to transmit.

[00:19:52] Speaker 06:
They don't care.

[00:19:53] Speaker 06:
This is about a Wi-Fi networking patent.

[00:19:55] Speaker 06:
setting up ways for laptops and other devices to communicate with each other.

[00:20:00] Speaker 05:
Unless the district court or your opponent here is right about this one claim element.

[00:20:06] Speaker 05:
We're not here to construe what the patent is about.

[00:20:10] Speaker 05:
Of course not.

[00:20:11] Speaker 05:
We're working on this claim language which is informed in its meaning by all of the rest but it seems to me for the last five minutes at least I have been trying to get you to talk about the claim language and you're talking about everything else.

[00:20:24] Speaker 06:
Well, let me talk directly about it because the claim language that they refer to is the language at column 50, this is at A138, column 50, line 50, 54, the hub establishing repeating communication cycles, each of which has intervals during which the hub and the remotes transmit and receive frames.

[00:20:47] Speaker 06:
And the way that they're reading this,

[00:20:49] Speaker 02:
I think... Forget about the way they're reading it.

[00:20:50] Speaker 02:
How about the way the district court read it?

[00:20:52] Speaker 06:
Well, I'm not sure Judge Moore that there's actually a difference between the way they're reading it and the way that the district court... There is a difference.

[00:20:58] Speaker 02:
The district court said basically every remote has to transmit and receive frames in every interval, period.

[00:21:07] Speaker 06:
Well, and Judge Moore, I don't think that you can reconcile that either with the language that appears later in the claim

[00:21:13] Speaker 06:
or with every single embodiment of the invention and the repeated references in the specification about the fact that remote may choose not to transmit.

[00:21:23] Speaker 06:
So if you look further in the claim.

[00:21:26] Speaker 02:
I understand that there are absolutely examples in the specification where remotes are not transmitting.

[00:21:34] Speaker 02:
And in fact, there are claims that expressly cover that set of circumstances.

[00:21:39] Speaker 02:
There are a bunch of claims here.

[00:21:41] Speaker 02:
that talk about transmission opportunities, as opposed to transmitting and receiving, which is what this claim does.

[00:21:48] Speaker 02:
Certainly, all of those embodiments that you're disclosing, which allow for non-transmission during certain intervals by certain remotes, are absolutely covered by other claims of this patent.

[00:21:58] Speaker 02:
There's no question about that.

[00:22:00] Speaker 06:
Judge Moore, I think that all of the claims go to transmission opportunities.

[00:22:06] Speaker 02:
I mean, isn't it a basic tenet of statutory and therefore claim construction, statutory interpretation and claim construction, that if different words are used in different sections of the same document, we should presume that those different words were intentional.

[00:22:21] Speaker 02:
And throughout, there are a number of claims here that instead of saying each of which the remotes transmit and receive, they say transmission opportunity.

[00:22:32] Speaker 02:
Look at claim 17.

[00:22:33] Speaker 02:
Transmission opportunity is identically substituted.

[00:22:36] Speaker 02:
So in some spaces you have transmission opportunity and in other spaces you say the remotes transmit and receive frames.

[00:22:43] Speaker 02:
Boom!

[00:22:45] Speaker 02:
Seems like a pretty clear distinction in the choice of language.

[00:22:50] Speaker 06:
So Judge Moore, I think this is a situation akin to world-class technologies where the presumption of different scope is overcome by

[00:23:02] Speaker 06:
what's in the written description itself.

[00:23:04] Speaker 06:
I mean every single one of these claims makes reference to whether you want to use the term transmission opportunities.

[00:23:12] Speaker 02:
Not every single one.

[00:23:13] Speaker 02:
Where is the word transmission opportunities in claim 21?

[00:23:17] Speaker 02:
You said every single claim uses the term transmission opportunity.

[00:23:21] Speaker 06:
I did not say that, Judge Miller.

[00:23:22] Speaker 06:
What I was saying was that every single claim uses words that get at the same idea as transmission opportunities.

[00:23:29] Speaker 06:
And the point that I've been trying to get to is to say, if you look at line 60 of column 50, it says the intervals being ones when the hub is allowed to transmit frames to the remote and when the remotes are allowed to transmit frames to the hub.

[00:23:45] Speaker 06:
And that's the language of permissiveness.

[00:23:48] Speaker 02:
No, that is the language of defining the time interval.

[00:23:51] Speaker 02:
And that's what's being done in that limitation.

[00:23:53] Speaker 02:
There are two things you need to know.

[00:23:55] Speaker 02:
You need to know when you are allowed to transmit something and when you are not allowed to transmit something.

[00:24:02] Speaker 02:
is what that particular element goes to, the predeterminable intervals.

[00:24:06] Speaker 02:
And it's explaining the nature of the predeterminable interval.

[00:24:10] Speaker 02:
From this time to this time, you're allowed to transmit and receive.

[00:24:14] Speaker 06:
So Judge Moore, I agree that that's what the purpose of that language is, is to have an interval in which the remotes know that they can transmit.

[00:24:24] Speaker 06:
But that gets to the idea, this is when you are allowed to transmit.

[00:24:28] Speaker 06:
It doesn't mean that you have to transmit.

[00:24:30] Speaker 06:
And if the thought was,

[00:24:32] Speaker 06:
Well, there must be some transmission from a remote or every remote.

[00:24:36] Speaker 06:
And of course, their position is that it only needs to be one remote, a random remote.

[00:24:40] Speaker 06:
You could have 10 remotes.

[00:24:41] Speaker 06:
It might be the first one.

[00:24:42] Speaker 06:
It might be the 10th one.

[00:24:43] Speaker 06:
They don't know.

[00:24:43] Speaker 06:
They don't care why.

[00:24:44] Speaker 06:
And you can only know that it infringed after the fact.

[00:24:47] Speaker 06:
But if any one of these claims, much less all of them except for claim 17, we're making it mandatory that at least one... What do you mean if every one of these claims?

[00:24:59] Speaker 02:
The only claim we're focused on is claim 21.

[00:25:01] Speaker 06:
And if that language is different... Well, I understand that a little more, but the language that we're talking about appears in all the claims.

[00:25:07] Speaker 02:
The language we're talking about appears in...

[00:25:10] Speaker 06:
The hub establishes repeating communication cycles, each of which has intervals during which the hub and the remotes transmit and receive frames.

[00:25:19] Speaker 06:
That's the language that they hang their hat on to say therefore the remotes or at least a remote must transmit.

[00:25:25] Speaker 02:
But the district court says therefore each remote must transmit and receive.

[00:25:30] Speaker 02:
So focus on the construction of the district court because that's what's on appeal.

[00:25:33] Speaker 02:
And what's not on appeal is the construction they're advocating.

[00:25:37] Speaker 02:
So tell me why the district court construction is wrong.

[00:25:39] Speaker 06:
For starters, if the district court's construction was right, you'd expect to find at least one embodiment in the patent.

[00:25:46] Speaker 06:
in which it was mandatory that all the remotes actually transmit.

[00:25:50] Speaker 06:
And there's not a single embodiment that discloses that.

[00:25:54] Speaker 05:
In fact, quite the opposite.

[00:25:55] Speaker 05:
What about the control frame?

[00:25:58] Speaker 05:
Embodiment, if that's the right term that was referred to, is that figure 18?

[00:26:04] Speaker 06:
I think that's figure 18.

[00:26:06] Speaker 06:
Judge Tarantso, I think if you look at A131, column 35, lines 6 to 11, it discusses this.

[00:26:12] Speaker 06:
And what it discusses is that a remote may leave its TXOP unused or may send a control frame.

[00:26:21] Speaker 06:
So it's entirely... Column 35 where?

[00:26:24] Speaker 06:
I'm sorry, Column 35, starting around Line 6 through Line 11.

[00:26:35] Speaker 06:
And specifically, if you start at line nine, in the absence of any frames awaiting transmission, the remote 66 may leave its TXOP unused or may send a control frame.

[00:26:48] Speaker 06:
And Judge Moore, I understand that the term TXOP or transmission opportunity, those words don't appear in every single claim.

[00:26:55] Speaker 06:
But every single embodiment talks about transmission opportunities.

[00:26:58] Speaker 06:
That's what the intervals are.

[00:27:00] Speaker 06:
Because the way this whole thing works is by assigning different intervals.

[00:27:04] Speaker 05:
I asked you the question I think in specific response to what I thought was your assertion that there is no embodiment in which the remotes were speaking in each cycle and the point of my question was isn't this at least an embodiment in which

[00:27:26] Speaker 05:
In fact, all of the remotes, let alone some, were speaking in each cycle.

[00:27:31] Speaker 06:
My point, Judge Taranto, was that there's no embodiment in which it says that all of the remotes or even any of the remotes must speak each cycle.

[00:27:40] Speaker 05:
And the reason that I say that is because... Well, you wouldn't expect... I'm sorry.

[00:27:43] Speaker 05:
You wouldn't expect an embodiment to be one that...

[00:27:49] Speaker 05:
wires something, they're describing one token of the type that they're claiming.

[00:27:56] Speaker 06:
Well, Judge Toronto, I guess to put it simply, if the patent contemplated that in the overwhelming majority of the claims, there must be a transmission in every cycle from one or more of the remotes or all of the remotes, you would think that there would be something here that would say that the remotes

[00:28:18] Speaker 06:
month at least send the control frame.

[00:28:20] Speaker 06:
And they don't talk that way.

[00:28:22] Speaker 06:
They talk about it being permissive.

[00:28:23] Speaker 06:
You may use your opportunity, you may leave your opportunity entirely unused.

[00:28:28] Speaker 06:
Or you may send a control frame, as opposed to saying if you don't have anything to transmit, then you must transmit a control frame.

[00:28:37] Speaker 06:
And you would expect that there would be some discussion saying why you must submit a control frame.

[00:28:42] Speaker 06:
And frankly, the idea of making each of the remotes transmit a control frame is really inconsistent with the core features of the invention itself, which is namely not only A, to provide transmission opportunities so that they don't talk over each other,

[00:28:59] Speaker 06:
but also to achieve battery power savings.

[00:29:02] Speaker 06:
And if you're going to say that in the overwhelming majority of the claims,

[00:29:06] Speaker 06:
that you're going to say that you have remotes that must transmit each cycle, that means that even though they have nothing to convey, even though they have no substantive information to convey, they're going to have to turn on, use battery power, waste battery power in order to just send a control frame.

[00:29:22] Speaker 06:
And so I think for the point that you made earlier was that at most this language is ambiguous.

[00:29:28] Speaker 06:
It's certainly not clear when you read

[00:29:30] Speaker 06:
The language that everyone's pointing to, when the hubs and the remotes transmit and receive frames, that is mandatory as opposed to being permissive.

[00:29:39] Speaker 06:
There's every reason to read it as being permissive when you look at the language of allowance further in the same claim, and you look at the specification writ large.

[00:29:47] Speaker 05:
Would you point about defeating the battery saving, quite central purpose,

[00:30:00] Speaker 05:
How would that point apply to, I guess it's figure 19, not 18, the figure 19 embodiment in which in every cycle, every remote sends something, whether it's a control frame or data?

[00:30:23] Speaker 05:
Well, I'm looking at... Wouldn't that defeat the battery saving purpose?

[00:30:31] Speaker 06:
But I think there's a difference between the remote selectively electing to transmit actual data, to transmit information, or selecting for whatever reason to transmit a control frame, versus having a system in which the hub makes it mandatory, where the claims make it mandatory in order to be an infringing system, for every single one of the remotes to transmit every single time.

[00:30:57] Speaker 06:
And I don't read anything.

[00:30:59] Speaker 05:
I mean, it could still have its

[00:31:00] Speaker 05:
transmitter in sleep mode except for the tiny piece of time that is needed to send the control.

[00:31:09] Speaker 06:
Absolutely, Judge Frantzman.

[00:31:10] Speaker 06:
So I'm not here saying that it would totally defeat the battery-saving purposes.

[00:31:14] Speaker 06:
I'm just saying that it's somewhat anomalous when you have what is at best ambiguous language to read it as being mandatory, not only in light of the fact that every single reference to this in the specification refers to opportunities, but also when you look at the

[00:31:29] Speaker 06:
purpose of the invention, which is battery savings, there's no question that that's going to be wasting battery power.

[00:31:37] Speaker 00:
On figure three, so we have this communication cycle.

[00:31:40] Speaker 00:
We've got the outbound portion, the inbound portion, the remote devices operate during the inbound portion.

[00:31:47] Speaker 00:
If all of the devices elect not to turn on, either because they have that type of independent, let's call it judgment, or they're not mandated to do it,

[00:31:58] Speaker 00:
Then why is there a communication cycle to begin with?

[00:32:01] Speaker 00:
Why would there be a communication cycle if there's no communication or if it defeats figure three where there's no inbound information?

[00:32:10] Speaker 06:
So Judge Raina, what figure three, and I think figure three sort of captures it well, what it identifies is that you have transmission opportunity.

[00:32:19] Speaker 00:
And it may be that in a particular cycle... So when you have a situation where all of the remotes say elect opportunity not to transmit, why is there a communication cycle to begin with?

[00:32:33] Speaker 00:
Is it a communication cycle?

[00:32:34] Speaker 00:
Does that imply that there's going to be an inbound information?

[00:32:39] Speaker 06:
Judge Rana, no, I think that what it implies is that there's going to be an opportunity for inbound information.

[00:32:45] Speaker 06:
That every single one of the remotes will have the opportunity to transmit.

[00:32:49] Speaker 06:
And just like you might imagine having a classroom where every student in the class is given five minutes to be able to ask a question.

[00:32:57] Speaker 06:
And that will be the cycle.

[00:32:59] Speaker 06:
And the students in their allotted opportunity don't have a question to ask.

[00:33:04] Speaker 06:
So they don't ask one.

[00:33:05] Speaker 06:
So their time passes.

[00:33:06] Speaker 06:
The next person's time passes.

[00:33:07] Speaker 06:
And maybe none of them have a question.

[00:33:09] Speaker 06:
And then you go around the cycle again.

[00:33:11] Speaker 06:
So I think it's the opportunities that make it a cycle.

[00:33:14] Speaker 00:
It's the intervals, whether or not the remote... So suppose you and I are going to have a discussion, and we call that a communication cycle.

[00:33:22] Speaker 00:
I speak, you speak.

[00:33:23] Speaker 00:
I speak, you speak.

[00:33:25] Speaker 00:
You elect not to speak during a particular communication cycle.

[00:33:29] Speaker 00:
Why would I speak?

[00:33:31] Speaker 00:
If I'm not going to ask you a question to begin with that would require you to respond, then why would we call that a communication cycle?

[00:33:40] Speaker 06:
Well, Judge Raina, this may be where analogies start to break down.

[00:33:44] Speaker 06:
The purpose of this is to provide opportunities for devices and a Wi-Fi network to be able to talk to each other and not talk over each other.

[00:33:51] Speaker 06:
And that presupposes that they actually have data to transmit.

[00:33:55] Speaker 06:
And so the point of having the cycle is to have a predictable, anticipated opportunity for the device to be able to transmit.

[00:34:02] Speaker 06:
If it has no information, then it's not surprising that it wouldn't actually transmit anything.

[00:34:07] Speaker 06:
But that doesn't mean that you didn't have the cycle, even if it didn't have information that it didn't have to convey.

[00:34:14] Speaker 05:
So this language, I guess, would be something like

[00:34:19] Speaker 05:
a phrase that said, the trial has periods in which the prosecution and the defendants put on and cross-examine witnesses.

[00:34:26] Speaker 05:
That would perfectly well cover a situation in which no defendant chooses to put on witnesses.

[00:34:32] Speaker 06:
Absolutely, Judge Taranto.

[00:34:34] Speaker 05:
That's right, there is a time... Or the classroom example.

[00:34:38] Speaker 05:
Every day has periods in which the teacher and the students can ask and answer questions.

[00:34:44] Speaker 05:
That covers a situation in which no student

[00:34:46] Speaker 05:
speaks up in any given class.

[00:34:48] Speaker 05:
That's exactly right.

[00:34:49] Speaker 05:
Yes, just trying to.

[00:34:50] Speaker 02:
OK, Mr. Quinn, you're three minutes beyond your time.

[00:34:53] Speaker 02:
I'm going to give Mr. Summerfield, and he went over his time too, but not quite as much.

[00:34:58] Speaker 02:
Mr. Summerfield, I'll give you two minutes for rebuttal.

[00:35:01] Speaker 02:
Mr. Quinn, I'll give you two minutes left on your rebuttal, limited to the rebuttal material for your cross field.

[00:35:06] Speaker 06:
Thank you, Judge Moore.

[00:35:22] Speaker 01:
The patent very clearly has examples where mandatory frames are sent from the remotes to the hub.

[00:35:28] Speaker 01:
If we look at figure 3, HA104, there's interval 86, which is TXOP request.

[00:35:36] Speaker 01:
If we go to column 29, line 16, it says each remote in the group requests a TXOP allocation from the hub when that remote becomes active or enters the communication space of the hub.

[00:35:49] Speaker 01:
So if there is a remote to communicate with, and if

[00:35:52] Speaker 01:
per Judge Raina's question, there is a communication cycle.

[00:35:55] Speaker 01:
That TXOP request is going to be made.

[00:35:57] Speaker 01:
There's nothing permissive about it.

[00:35:59] Speaker 05:
But I mean, the way you just described it, and I'm not remembering the details, but what's consistent with the way you just described it, this is the morning I'm checking in.

[00:36:10] Speaker 05:
You only have to do that once.

[00:36:14] Speaker 05:
I want an allocation.

[00:36:15] Speaker 05:
You're not asking for an allocation in every bloody cycle.

[00:36:19] Speaker 01:
I think that's actually what this is saying.

[00:36:22] Speaker 05:
What column?

[00:36:24] Speaker 01:
Column 29, line 16.

[00:36:32] Speaker 05:
And would the next sentence help?

[00:36:34] Speaker 05:
When that remote becomes active.

[00:36:36] Speaker 01:
Or enters the communication space to the hub.

[00:36:39] Speaker 01:
Each remote must obtain a TXOP allocation prior to engaging in data communication over the RF network.

[00:36:45] Speaker 01:
There'd be no reason to have it just do that the first time, Your Honor.

[00:36:48] Speaker 01:
The point is, for each communication cycle, there has to be a TXOP allocation request.

[00:36:53] Speaker 01:
If it just happened the first time, it wouldn't work.

[00:36:56] Speaker 01:
Because how would the hub know to allocate time to that remote in subsequent communication cycles?

[00:37:03] Speaker 03:
Until it signs off.

[00:37:05] Speaker 03:
I'm sorry, Your Honor?

[00:37:06] Speaker 03:
Until it signs off.

[00:37:07] Speaker 01:
But there's no teaching of that in this particular passage, Your Honor.

[00:37:10] Speaker 01:
But besides that, that's not the only example.

[00:37:12] Speaker 01:
If we go to column 23 and we go to line 12, it says the ending frame number field 180 is used in frames 152 sent from remote 66 to hub 64 to acknowledge a successful reception of a contiguous block of sequenced frames from the hub 64.

[00:37:30] Speaker 01:
So when the information frame is sent out, this response is sent by the remotes.

[00:37:36] Speaker 01:
So that is mandatory.

[00:37:37] Speaker 01:
That is not permissive.

[00:37:38] Speaker 01:
Finally, as far as what the issues are on this appeal, the summary judgment motion below was ours.

[00:37:44] Speaker 01:
And we moved for summary judgment of no anticipation because of the admissions we got from their expert.

[00:37:49] Speaker 01:
that a limitation was missing.

[00:37:51] Speaker 01:
We thought that was the only one where there wasn't a question of fact, which is why we only moved on that issue.

[00:37:56] Speaker 01:
That is somehow now morphed into a concession, that if we lose on this issue, anticipation is done.

[00:38:02] Speaker 01:
We don't agree.

[00:38:02] Speaker 02:
Can I be clear about one thing?

[00:38:04] Speaker 02:
Because I had to track this back to the record, and it wasn't easy to find.

[00:38:07] Speaker 02:
But it does appear they also moved for summary judgment of anticipation, which was denied.

[00:38:13] Speaker 01:
It was actually dismissed because it was untimely.

[00:38:15] Speaker 01:
So the court dismissed the motion, didn't have a ruling on it.

[00:38:18] Speaker 01:
They filed the motion as a cross-motion after the deadline for summary judgment.

[00:38:22] Speaker 01:
So the court didn't reach the question of their motion for anticipation.

[00:38:28] Speaker 05:
What about their cross-motion?

[00:38:29] Speaker 01:
That was dismissed, Your Honors, untimely.

[00:38:33] Speaker 05:
Are those two separate things that you were describing a motion on their part and a cross-motion?

[00:38:37] Speaker 01:
No, the motion was ours.

[00:38:39] Speaker 01:
We filed a motion of no anticipation.

[00:38:41] Speaker 05:
Just clarify.

[00:38:43] Speaker 05:
Just them.

[00:38:44] Speaker 05:
I thought you said they made a motion for summary judgment of

[00:38:48] Speaker 05:
of anticipation, the judge said, untimely, go away.

[00:38:51] Speaker 01:
That's correct.

[00:38:52] Speaker 05:
Then you moved for some, not then, but.

[00:38:54] Speaker 05:
We moved first.

[00:38:55] Speaker 05:
OK.

[00:38:56] Speaker 05:
And then you referred to something called a cross motion.

[00:38:58] Speaker 01:
Their motion was actually a cross motion.

[00:39:00] Speaker 05:
Oh, it's the same thing.

[00:39:01] Speaker 05:
You're just doing it using two different words at the same time.

[00:39:03] Speaker 01:
Yes, Your Honor.

[00:39:04] Speaker 01:
As opposed to simply filing an opposition, they cross moved and opposed.

[00:39:08] Speaker 02:
So let me be really clear.

[00:39:10] Speaker 02:
Your argument then, which Mr. Aquin will address as soon as he stands up, just so that we're all clear on the procedure,

[00:39:15] Speaker 02:
that it would be procedurally improper for us to ever enter judgment in their favor.

[00:39:21] Speaker 02:
The best they can get out of us is a vacated remand because the lower court refused to entertain their summary judgment motion of anticipation on the grounds that it was untimely.

[00:39:33] Speaker 01:
Is that right?

[00:39:34] Speaker 01:
The way I would say it, Judge Moore, is that I think what their position should be is that the court below improperly entered summary judgment of no anticipation.

[00:39:45] Speaker 02:
Yeah, but that would only get them a vacay.

[00:39:48] Speaker 02:
That would get them a reversal of that summary judgment.

[00:39:50] Speaker 02:
What it can't ever get them is institution of a judgment

[00:39:54] Speaker 02:
of anticipation, which is what they've asked for in their brief.

[00:39:57] Speaker 02:
I kept wondering why they, this is why I went back and researched, I kept wondering why they asked for reversal and interjudgment of anticipation, or at least give us a vacate, when nobody was claiming there was a fact question here.

[00:40:09] Speaker 02:
And so I kept not understanding why, and I kept going back and looking, and I did find a summary judgment motion, and I guess I stopped too quick, because I thought that summary judgment motion was then decided upon by the district court, but here's what you're saying.

[00:40:23] Speaker 01:
No, Your Honor, it was a cross motion, it was untimely.

[00:40:24] Speaker 01:
and dismissed on procedural grounds.

[00:40:26] Speaker 01:
The judge never reached the merits of their cross-motion and we certainly didn't intend to imply that somehow this was the only issue on anticipation.

[00:40:35] Speaker 01:
It's the only one we thought there was no fact issue and therefore proper for summary judgment.

[00:40:40] Speaker 01:
based on their expert's admissions, which is why we moved on that sole ground.

[00:40:44] Speaker 05:
So this is this motion at 2233.

[00:40:45] Speaker 05:
Is that the same thing?

[00:40:47] Speaker 05:
They're opposing yours and cross moving for theirs in the same document.

[00:40:50] Speaker 05:
That's correct, Your Honor.

[00:40:51] Speaker 02:
And that's the thing where the district court said, your cross motion, I'm not going to entertain, because it's untimely.

[00:40:57] Speaker 05:
Where did the district court say that?

[00:40:58] Speaker 05:
Do we have that document?

[00:40:59] Speaker 01:
I don't know that that's actually in the record, Your Honor, because frankly- You don't know if it's in the appendix, but it's got to be in the record below, right?

[00:41:07] Speaker 01:
Yes, it's certainly on the docket sheet.

[00:41:09] Speaker 01:
uh... evidently a dissimilar for lack of time yes and that'll be clear if we pull the docket and if not if we ask parties you'll be able to provide it to us absolutely thank you

[00:41:28] Speaker 06:
So Judge Moore, let me start with that issue.

[00:41:31] Speaker 06:
Candidly, I was not aware if the district court had separately, procedurally dismissed it.

[00:41:38] Speaker 06:
My understanding was the district court reached the merits in deciding both issues.

[00:41:42] Speaker 06:
So let us look into that and confirm.

[00:41:45] Speaker 06:
And certainly, if it's in fact the case that it was dismissed on timeliness grounds or procedural grounds, then that would mean that the proper result here would be a vacature as opposed to the entry of judgment.

[00:41:56] Speaker 06:
My understanding was that the only issue

[00:41:58] Speaker 02:
that was in dispute between either of the parties with respect to... I like the very candid way, with my colleagues' agreement, if they will agree, can the two of you send us, do your research and send us maybe by close of business tomorrow a letter limited to one page, single-spaced, that will

[00:42:20] Speaker 02:
explain just these issues possibly collaboratively.

[00:42:24] Speaker 02:
If it can't be done collaboratively you can each have a one page letter and then the attached order that talks about the basis

[00:42:31] Speaker 02:
upon which the district court resolved the cross-motion.

[00:42:35] Speaker 02:
Of course.

[00:42:35] Speaker 02:
Understand?

[00:42:36] Speaker 02:
And I understand the court's not looking for advocacy.

[00:42:38] Speaker 02:
Toronto, any problems with that?

[00:42:40] Speaker 06:
I understand the court's not looking for advocacy.

[00:42:41] Speaker 06:
You just want to understand procedurally what happened.

[00:42:43] Speaker 06:
And that's exactly what we'll do.

[00:42:45] Speaker 02:
The reason that we had argued.

[00:42:47] Speaker 02:
But you can feel free to say, and therefore, we revised our request to the extent that we had asked for reversal.

[00:42:52] Speaker 02:
We now understand it to be procedurally improper.

[00:42:54] Speaker 02:
And we ask for vacancy.

[00:42:55] Speaker 06:
And if that's the case, we will clarify.

[00:42:56] Speaker 02:
You can make that clarification in your letter.

[00:42:59] Speaker 06:
We will make that clarification.

[00:43:02] Speaker 06:
Judge Moore, the reason though that we were arguing that we should be entitled to, in the alternative, to a remand on the issue of anticipation or at least the issue of obviousness is because

[00:43:15] Speaker 06:
If you turn to our alternative argument, not the claim construction argument, but the Upstair Smith argument, we think that that would entitle us to judgment as a matter of law.

[00:43:26] Speaker 06:
But at a minimum, there would be fact issues as to what the prior art and fact disclosed.

[00:43:33] Speaker 06:
And that's the reason that we were arguing that in the alternative, we at least ought to be entitled to a remand.

[00:43:38] Speaker 06:
If the court has further questions about the claim construction issue that we've been talking about, I'm happy to take those.

[00:43:44] Speaker 06:
Otherwise, I'll yield back the balance.

[00:43:46] Speaker 02:
Thank you, Mr. Aucoin.

[00:43:47] Speaker 02:
Thank you very much.

[00:43:48] Speaker 02:
I thank both counsels.

[00:43:49] Speaker 02:
Thank you, Judge.

[00:43:49] Speaker 02:
This case is taken under submission.