[00:00:00] Speaker 00: you're one five dash eleven ninety atlantic thank you medical uh... uh... uh... [00:00:31] Speaker 03: Thank you, and good morning again, Your Honor, and may it please the Court. [00:00:35] Speaker 03: So this is the point where we get to the question of the refinement that the District Court issued to its earlier claim construction on the establishing, particularly the transmitting limitation. [00:00:44] Speaker 03: And again, I want to start with Figure 3, and this is going to be page A38 in the St. [00:00:49] Speaker 03: Jude appendix. [00:01:04] Speaker 00: Before you get started, can I ask you to clarify something? [00:01:09] Speaker 00: Because your claim construction argument to me, as between the two different briefs, which both do address this establishing, has been, I think, a little bit of a moving target for me. [00:01:25] Speaker 00: And I want to make sure I understand what your argument is on establishing. [00:01:31] Speaker 00: And in particular, [00:01:32] Speaker 00: here's one thing I want you to look at because this kind of resonated with me, but then I thought it wasn't, and I thought you might actually prevail on this, but it wasn't actually the way I thought that you explained your claim construction. [00:01:46] Speaker 00: It was the way the red brief did. [00:01:47] Speaker 00: So I want to actually ask you to open the red brief for me and look on page nine and tell me, is this an accurate articulation of your claim construction? [00:02:04] Speaker 00: It's about after number three, when these quotes come in about what the two different constructions appear to be and it says, I quote, in advance and then let's see that tallis size of the entire communication cycle as St. [00:02:22] Speaker 00: Jude contended. [00:02:24] Speaker 00: So they're saying everything has to go in advance of the whole communication cycle, which trust me, I get your argument about figure three completely. [00:02:32] Speaker 00: And you have alternatively argued something different, which I like, but it doesn't feel like what's in your blueberries, necessarily. [00:02:39] Speaker 00: So I want to be sure. [00:02:40] Speaker 00: But it's clearly what they think your argument is. [00:02:41] Speaker 03: I'm sorry, Your Honor. [00:02:42] Speaker 03: Could you identify the particular language you're referring to? [00:02:45] Speaker 03: The part I like? [00:02:47] Speaker 03: Yeah, particularly that, Your Honor. [00:02:49] Speaker 03: But perhaps where you're asking if they've characterized it. [00:02:53] Speaker 00: Page nine, then when it says at that list contended, that part. [00:02:57] Speaker 00: Or in advance of the first interval, [00:03:00] Speaker 00: within the cycle during which remote is allowed to transmit to the hub parentheses as Atlas contended. [00:03:07] Speaker 00: See, why do I like that? [00:03:09] Speaker 00: I like that because it's not sort of willy-nilly, and it fits with figure three, and it does all your battery saving that you want. [00:03:17] Speaker 00: And I'm just trying to understand, is that your construction, as argued for on appeal as well, they certainly seem to think so in the red brief, but I kind of got a slightly different impression from the blue brief, that you might be going for something a little different. [00:03:30] Speaker 03: No, Your Honor, I think that is, if I hadn't made that clear in the prior argument, it's certainly what I intended to say. [00:03:35] Speaker 03: It's like flipping on and off a light switch. [00:03:37] Speaker 03: You do it when you want the lights to turn on, you turn them off and the lights are to turn off. [00:03:41] Speaker 00: So let's do this with reference now to Figure 3. [00:03:44] Speaker 00: So the in advance that the district court chose isn't really something we need to throw out the window, it's just the further specificity of the words in advance. [00:03:55] Speaker 00: that are what you're saying is wrong. [00:03:56] Speaker 00: It is in advance of something. [00:03:58] Speaker 00: That's right. [00:03:59] Speaker 00: It's just not in advance of the whole cycle. [00:04:01] Speaker 00: Instead, your argument would be it's in advance of the period that begins at 84, right? [00:04:06] Speaker 03: For the particular remote, yes, that's right. [00:04:08] Speaker 00: No, no. [00:04:08] Speaker 00: See, now that's where you're losing me, for the particular remote. [00:04:11] Speaker 00: Because here's the problem. [00:04:12] Speaker 00: If you don't, this is why I'm doing this, because I was a little nervous you were going to say that. [00:04:18] Speaker 00: Because I think, based on figure three, that what is articulated in my understanding of this [00:04:24] Speaker 00: is that everything with regard to each of the remotes is transmitted at least by the periods designated as 82. [00:04:33] Speaker 00: And that's the way in which you would effectuate all the battery savings that is a hallmark of the significance of this patent. [00:04:42] Speaker 00: Because if TXOP13 doesn't know what the cycle interval is for 1, 2, 3, 4 up to 12, it doesn't know it can turn off during all that time. [00:04:55] Speaker 00: you follow that yes you're right i think everything has to be that by the end of eighty-two and i don't think you win under that construction by the way so i'm just trying to understand whether or not that there are you really are you going to hold yourself to this each remote thing which means the expo p thirteen might not have any clue when it's supposed to turn on and off until it gets to twelve [00:05:21] Speaker 00: Do you see my problem? [00:05:22] Speaker 00: Because that doesn't realize any of the battery savings. [00:05:25] Speaker 03: I do, Your Honor. [00:05:25] Speaker 03: The only issue that I would raise again goes back to column 25 in the end flag message, which is the thing that tells the remote definitively when there's an end of a frame. [00:05:35] Speaker 03: Theoretically, you wouldn't need that if all the information were conveyed to each remote prior to interval 84. [00:05:41] Speaker 03: So there'd be no need for that. [00:05:43] Speaker 03: The remote would theoretically already know definitively when frames were ending. [00:05:47] Speaker 03: So that's my only hesitation in conceding outright that everything is sent to every remote before an interrelated order. [00:05:53] Speaker 04: What's the relationship between the TXOP interval and a frame? [00:05:57] Speaker 04: Can there be more than one frame in that interval? [00:06:00] Speaker 03: Frames are just an order of bits. [00:06:04] Speaker 03: Each one of these intervals has frames. [00:06:06] Speaker 04: A number of them? [00:06:07] Speaker 04: Yes. [00:06:08] Speaker 04: Right. [00:06:08] Speaker 04: So why would one, I take it your suggestion is, [00:06:13] Speaker 04: that the flag that says the packet is ending is somehow, and you get that at the end of the packet, is somehow inconsistent with a requirement that the overall time slot in which the remote can transmit 40,000 frames, to pick a number out of the hat, it doesn't have to know when that's coming to an end. [00:06:40] Speaker 04: I don't understand why [00:06:42] Speaker 04: why there should be that suggestion of an inconsistency. [00:06:47] Speaker 03: Because I think each of the frames, including the last one in the particular interval, would have the sending flag on it. [00:06:53] Speaker 04: Right, but the remote has a separate clock going that says, I've got the following number of milliseconds or something that I can use, and as many frames as I can get into that, I still want to know when each frame ends, but that's kind of an independent matter from when my microphone goes off. [00:07:16] Speaker 03: I take your point, Your Honor, that may very well be the way to reconcile that teaching with Judge Moore's proposal. [00:07:22] Speaker 00: But obviously the problem... Well, I thought my proposal was your proposal, just to be clear. [00:07:27] Speaker 00: Of course, your proposal I was taking from the red brief. [00:07:29] Speaker 00: So, you know, it's all fair. [00:07:33] Speaker 03: The one thing that is very clear, Your Honor, is that our biggest problem with the district court's construction is [00:07:38] Speaker 03: when all this information is to be transmitted. [00:07:41] Speaker 00: And your argument, I think that we all have it very well, is that figure three, you can't say in advance of the cycle because the whole thing is the cycle and if it's in advance of the cycle it's not even on figure three and figure three talks about the information of intervals and start and stop times being conveyed at 76 and actually repeated at 82 by the way, a lot of it. [00:08:01] Speaker 03: The one thing I expect to hear from St. [00:08:03] Speaker 03: Jude on this is that there was no indication below [00:08:06] Speaker 03: during oral argument, which is really the first time any of this came up, as to where the information is described and what information is transmitted, I would refer the court to column 13. [00:08:16] Speaker 03: And this is page A54 of the St. [00:08:20] Speaker 03: Jude appendix. [00:08:30] Speaker 03: Starting at line 23, the time for the overall communication cycle 70 [00:08:35] Speaker 03: along with specific interval allocations within the cycle 70 are broadcast by the hub 64 during the information interval 76 and 82 in the form of control information delivered in an information frame transmitted during the information interval 76. [00:08:52] Speaker 03: So that very clearly explains what's going on, at least in interval 76, which is all this length information that the court required be transmitted in advance of the communication cycle is actually sent according to the preferred embodiment during interval 76, which is the first interval of the communication cycle. [00:09:09] Speaker 04: So I took it that the driving force behind the district courts [00:09:14] Speaker 04: view of what in advance means here and I guess St. [00:09:21] Speaker 04: Jude's argument was the notion that all the remotes receivers would be asleep and not get this slot allotment information unless they have been given the information before the cycle. [00:09:36] Speaker 04: Can you respond to that? [00:09:37] Speaker 03: Yes, if we look at figure 16, this tells you how the remotes actually scan different channels looking for activity. [00:09:44] Speaker 03: This all is happening outside the communication cycle for Judge Raina's point earlier on. [00:09:51] Speaker 03: So this is how the remotes in the first instance see that there's activity going on. [00:09:55] Speaker 03: And if we look down to element 261 of figure 16, it says, wait to receive info frame. [00:10:03] Speaker 03: So now it is ready to participate in a communication cycle. [00:10:06] Speaker 03: But until this happens, there isn't a communication cycle. [00:10:09] Speaker 03: So the fact that the receivers may be on scanning the different channels for activity [00:10:13] Speaker 03: wouldn't be the receivers having, or wouldn't be the remotes having the receivers on at times other than when they are expecting to receive a frame. [00:10:20] Speaker 03: This wouldn't be part of the communication cycle. [00:10:23] Speaker 00: To clarify, can I clarify and ask a question, or ask a question to clarify, but does that mean that all of the remotes are on in terms of their receivers at the start of every communication cycle? [00:10:37] Speaker 03: Before it starts. [00:10:38] Speaker 00: Before it starts? [00:10:39] Speaker 03: Yes. [00:10:39] Speaker 03: So we have all of this going on up to wait to receive info frame. [00:10:44] Speaker 00: And is this only relevant for the first communication cycle? [00:10:47] Speaker 00: Because the idea is these things will repeat. [00:10:50] Speaker 03: We believe it's not limited to that. [00:10:52] Speaker 03: We believe that it could be for every single communication cycle. [00:10:55] Speaker 03: So in the case where there is a single remote and a single hub, the remote can be listening like this for activity from the hub before each communication cycle. [00:11:05] Speaker 03: And then when the communication cycle starts, the hub would define when each device is talking to the other, and therefore when the receivers and transmitters are on respectively. [00:11:14] Speaker 03: But so this shows what happens outside the communication cycle, which is how the remote know that the communication cycle is about to occur. [00:11:23] Speaker 01: But this wouldn't be part of it. [00:11:24] Speaker 01: Is there an instance where a communication cycle is initiated, but no request for response from a remote is made? [00:11:31] Speaker 01: I'm sorry, Your Honor? [00:11:33] Speaker 01: Can there be a situation where a communication cycle is initiated, but there's no request for any particular remote to respond? [00:11:42] Speaker 01: like standby, everybody's still standby. [00:11:46] Speaker 03: No, I think given the teaching that I read earlier about the response that the that the remotes give to any frame from the hub, there would have to at least be an acknowledgement that would be returned from the remotes to the hub that receive the information frame. [00:12:02] Speaker 03: So at the very least there'd be two-way communication to that extent. [00:12:05] Speaker 03: But it is possible in that circumstance that a TXOP may go unused [00:12:10] Speaker 03: because the remote has nothing to transmit. [00:12:13] Speaker 01: So if you have a communication cycle, then there must be at least one response from one of the remotes. [00:12:20] Speaker 03: Yes. [00:12:20] Speaker 03: We think that figure three makes it very clear, and the teachings of the patent, that if there is to be a communication cycle covered by the claims, there has to be two-way communication. [00:12:29] Speaker 03: There cannot be the hub just transmitting with nothing coming back. [00:12:33] Speaker 03: That wouldn't infringe, and it doesn't anticipate. [00:12:37] Speaker 04: Let me just see if I understand this or not. [00:12:41] Speaker 04: In your view, the communication cycles are not continuous in that the end of one is the same moment as the beginning of the next. [00:12:51] Speaker 04: There's a gap, and in that gap there can be information that allows the receiver to turn on and, as you say, scan for information from the hub. [00:13:06] Speaker 03: Yes, Your Honor, that's exactly correct. [00:13:08] Speaker 04: And is that what's going on in 88 Hub Beacon? [00:13:13] Speaker 03: No, the beacon frame does something else. [00:13:16] Speaker 03: According to the teachings of the patent, that helps the hub resolve potentially conflicting traffic with other communication groups. [00:13:23] Speaker 03: So what we have going on here, which isn't shown in Figure 3, but is shown in Figure 16, are these remotes unilaterally scanning channels to find activity. [00:13:32] Speaker 04: Where is the text associated with Figure 16 to indicate that this cycle is not continuous in the sense that I was just talking about? [00:13:45] Speaker 03: I don't think there is text associated with Figure 16 specifically about the cycle not being continuous. [00:13:51] Speaker 04: where if I look at figure 3 I think continuous cycle in that the end of cycle number 17 is coterminous with the beginning of cycle number 18 to pick numbers. [00:14:09] Speaker 03: Your honor, I am not familiar with any teaching in the 734 patent that says that. [00:14:13] Speaker 04: Is there something in the patent that contemplates otherwise? [00:14:21] Speaker 03: Figure 16, your honor. [00:14:22] Speaker 03: So we don't think there'd be any reason to have figure 16 if these cycles were continuous. [00:14:27] Speaker 04: And the column discussion of figure 16 is what? [00:14:32] Speaker 03: Yes, your honor. [00:14:32] Speaker 03: I'll find that in just a minute. [00:14:57] Speaker 03: If we start at column 40, line 35, there's a description of the Listen RF state. [00:15:10] Speaker 03: It talks about the communicator scans all usable frequency channels listening for the presence of a hub by listening to each of the predetermined usable frequencies. [00:15:24] Speaker 03: If a communication cycle were continuous, there'd never be the ability to add a remote, because there wouldn't be the opportunity for the remotes to scan these channels waiting for an information frame. [00:15:38] Speaker 03: That all has to happen before the transmission of the information frame, otherwise remotes can't join the group. [00:15:42] Speaker 03: And we know from the teachings of the 734 patent that that's possible. [00:15:49] Speaker 03: And I see that I've [00:15:50] Speaker 03: exhausted my time. [00:15:52] Speaker 00: Thank you Mr. Summerfield, Mr. Perry. [00:15:58] Speaker 02: Thank you Judge Moore. [00:15:59] Speaker 02: If I could start with that last point, Mr. Summerfield has misdescribed the invention. [00:16:05] Speaker 02: Judge Toronto, it's column 11, line 39 and 40, the communication cycle shown in figure three, which the hub establishes and which is repeated on a continuous basis as long as the hub is active. [00:16:20] Speaker 02: This absolutely is continuous repeating cycles that is disclosed throughout the invention. [00:16:27] Speaker 02: Columns 11, your honor, lines about 38 through 42 is what I just read. [00:16:34] Speaker 02: It discloses a continuous repeating cycle. [00:16:36] Speaker 02: Figure 3 is not an embodiment. [00:16:39] Speaker 02: Not a single claim in this patent reads on figure 3. [00:16:42] Speaker 02: Figure 3 is a snapshot. [00:16:43] Speaker 02: Every claim requires [00:16:45] Speaker 02: repeating communication cycles. [00:16:48] Speaker 02: The only break that is disclosed in this patent are two. [00:16:51] Speaker 02: The hub beacon, which does not happen every time, it happens at preset intervals, for example, every five seconds. [00:16:57] Speaker 02: And the entry of a new device into the network, which is what figure 16 shows. [00:17:01] Speaker 02: When a new device comes in, it turns its ears on, looks around, and tries to find a signal. [00:17:06] Speaker 02: That's disclosed in column 33 and column 40. [00:17:09] Speaker 02: That has nothing to do with what we're talking about today. [00:17:14] Speaker 02: What has to do with today, once the cycles have started, what is going on in that information frame? [00:17:19] Speaker 02: And Judge Moore, this goes to your question about what's being claimed. [00:17:22] Speaker 02: And I should make a point here. [00:17:24] Speaker 02: The previous appeal involved what was being transmitted from the remotes to the hub. [00:17:29] Speaker 02: This appeal involves what's being transmitted from the hub to the remote, so the receivers have to be listening. [00:17:35] Speaker 02: Judge Toronto, in response to another one of your questions, start column 28, line 62, 63. [00:17:40] Speaker 02: The remotes all have their RF modems active to receive each information frame, so all the remotes have to be turned on at the beginning of the information cycle. [00:17:50] Speaker 02: That's absolutely clear from this disclosure. [00:17:52] Speaker 02: I'm sorry, just give me the... Column 28, line 62 to 64, 63. [00:18:01] Speaker 02: All the remotes are on, they're all receiving. [00:18:04] Speaker 00: Now Judge Moore to go to your... But wait, but all the remotes are on in the information frame. [00:18:11] Speaker 00: Yes, so then we go to... The information frame, I understand to be part of the communication cycle. [00:18:17] Speaker 00: Am I wrong to think that? [00:18:18] Speaker 02: Absolutely not, Your Honor, but the question is what does it contain? [00:18:20] Speaker 02: And here we go to column 26 and 27, which discloses [00:18:26] Speaker 02: Mr. Summerfield's new favorite figure, figure 8, which he told you in the first appeal, was a disclosure of what's being transmitted. [00:18:34] Speaker 02: The body field 164, figure 8, of the information frame contains all the information needed by the remotes as shown in figure 3. [00:18:44] Speaker 02: That's on column 26 at the bottom there, line 61. [00:18:47] Speaker 00: I don't understand your point. [00:18:48] Speaker 00: You're going too fast and you need to... I apologize. [00:18:52] Speaker 00: Don't interrupt me. [00:18:53] Speaker 00: You're going too fast and you need to divorce from this argument any more characterizations which are not welcome about like his new favorite figure, his new this. [00:19:02] Speaker 00: Don't do that, Mr. Perry. [00:19:03] Speaker 00: You're better than that. [00:19:04] Speaker 00: Don't do it. [00:19:06] Speaker 00: Go ahead. [00:19:06] Speaker 00: Keep going. [00:19:07] Speaker 02: Figure 8, Your Honor, which we talked about this morning, has a body field 164. [00:19:12] Speaker 02: The disclosure at column 26 at the bottom, line 62 to 65. [00:19:17] Speaker 02: tells us what is in that information frame, which is also... What tells us what's in the body field of the information frame? [00:19:25] Speaker 02: The body field 164, which was figure 8 that we were talking about this morning. [00:19:28] Speaker 02: That was my point on tying it to figure 8. [00:19:34] Speaker 02: Then it goes on. [00:19:35] Speaker 02: The body field of an information frame includes a number of different fields. [00:19:39] Speaker 02: Now here's the key point. [00:19:40] Speaker 02: We go over to column 27. [00:19:43] Speaker 02: There is then a list [00:19:44] Speaker 02: Of 15 things that the information frame says, which is the information the remotes need, I would like to focus, Your Honors, on numbers four, five, and six, which are clustered around line 10 of column 27. [00:19:57] Speaker 02: Four, the number of BTIs, that stands for Basic Time Increments, which in this patent is defined in the preferred embodiment as four milliseconds. [00:20:08] Speaker 02: The number of BTIs in the present communication cycle. [00:20:12] Speaker 02: Five, the number of BTIs in the next communication cycle, and six, the number of BTIs in the communication cycle after the next communication cycle. [00:20:25] Speaker 02: So that if we look back to figure three, your honors, that information frame 76 is transmitting not only the duration of the current cycle, but also the next two cycles, which therefore gives the remotes the starting time of those next two cycles. [00:20:42] Speaker 02: That's the district court's claim construction that is clearly supported here in the specification. [00:20:51] Speaker 02: This has confirmed many other places. [00:20:56] Speaker 02: Continuing on column 27, at the bottom, about line 57. [00:21:00] Speaker 00: I guess I'm a little slow to follow you. [00:21:05] Speaker 00: So part of my problem with the district court construction [00:21:10] Speaker 00: is that it says in advance of the communication cycle and it seems to me this information is being conveyed during the communication cycle at least the very first iteration of the communication cycle because it's being conveyed in period 76 and in fact repeated in period 82 under figure 3. [00:21:33] Speaker 00: So when the district court says in advance of the communication cycle, that just feels too binary and wrong to me. [00:21:40] Speaker 00: You might be correct that information is communicated in advance of subsequent communication cycles, but the very first one [00:21:50] Speaker 00: clearly includes the information as part of the communication cycle. [00:21:55] Speaker 02: This may be where I went too fast. [00:21:56] Speaker 02: No, respectfully, because the very first cycle is what's disclosed in figure 16 and columns 33 and 40 as having an entirely separate mechanism. [00:22:07] Speaker 02: The new entry remote, the new entry device turns on its ears and puts itself in listenRF stage to try to find that first cycle. [00:22:15] Speaker 02: It is the cycles which are repeating throughout. [00:22:17] Speaker 02: The hub is broadcasting this information at the beginning of every cycle. [00:22:21] Speaker 00: Well, I didn't understand, and am I wrong, I didn't understand the RF listening state to be part of the communication cycle. [00:22:29] Speaker 00: I agree with that. [00:22:30] Speaker 00: I understood the RF listening state to be when the hub either A, first becomes active, [00:22:37] Speaker 00: Or B, when new remotes enter and are looking to sync with the hub. [00:22:44] Speaker 00: In either case, if that's not part of the communication cycle, I still don't understand how the conveying of start and stop times and intervals and time slots isn't what's being done in field 76. [00:22:57] Speaker 00: I mean, at least for figure three, it seems to be disclosed as what's being done. [00:23:00] Speaker 00: in field 76 of figure 3, and that seems to me to be clearly part of the communication cycle. [00:23:05] Speaker 00: Your Honor. [00:23:06] Speaker 00: This is where you're losing me. [00:23:08] Speaker 02: It absolutely is being conveyed in information frame 76 for the current cycle, for the next cycle, and for the second subsequent cycle. [00:23:19] Speaker 02: It's conveying the duration of three cycles in information frame 76. [00:23:23] Speaker 02: The reason this is important, after the initial join, after LISN RF, limitation E of the asserted claim. [00:23:31] Speaker 02: of all the clients for that matter, requires the remotes to power off their receivers. [00:23:35] Speaker 02: That's the invention, after all. [00:23:38] Speaker 02: What the disclosure says is that the prior art knew very well how to turn off transmitters, but it didn't know how to turn off receivers. [00:23:46] Speaker 02: This invention is devoted to turning off the receivers. [00:23:50] Speaker 02: So at some point during their cycle, the receiver turns off to conserve power. [00:23:55] Speaker 02: Then the question is, how does it know how to turn on again before the start of the next cycle? [00:24:01] Speaker 02: And that's where the district court's construction says it has to know before the cycle starts, because as I believe was discussed this morning, the remotes have to have their ears on. [00:24:11] Speaker 02: They have to be listening. [00:24:12] Speaker 02: They have to turn on at the start of the cycle. [00:24:14] Speaker 00: But are you saying 76 is not part of the communication cycle? [00:24:18] Speaker 00: Not at all, Your Honor. [00:24:18] Speaker 02: It's part of the communication cycle. [00:24:20] Speaker 00: But that's when the information's being sent. [00:24:22] Speaker 00: Absolutely. [00:24:23] Speaker 00: right to say the information has to be sent in advance of a communication cycle if the information is actually being sent after the start of the cycle. [00:24:30] Speaker 02: Your Honor, let me try it a different way. [00:24:31] Speaker 02: I apologize. [00:24:33] Speaker 02: If the hub sends the duration of this cycle, it is also sending, by definition, the start time of the next cycle, because the next cycle starts when this one ends. [00:24:46] Speaker 02: So in the district court's construction, which actually says information necessary to determine the starting time and duration, [00:24:52] Speaker 02: has to be transmitted. [00:24:53] Speaker 00: So wait, just to be clear, so do you think the way that this technology operates is that three cycles worth of turn on and turn off for your receivers are sent at a time and the receiver will never turn on or turn off or change at all, but rather that that initial information that's sent controls for each TXOP for three cycles. [00:25:18] Speaker 00: Is that what you're trying to convince me of? [00:25:19] Speaker 02: That, what you just described, would meet claim one. [00:25:22] Speaker 02: Most of the other claims have additional limitations, including cycle length adjustment, which is another feature of this invention that would need to be taken into account dynamically, which is why... Which is why it can't work the way you're describing, because... For the asserted claim, that's right. [00:25:42] Speaker 00: I'm not following you. [00:25:43] Speaker 00: I'm sorry. [00:25:44] Speaker 00: I'm not following you, and unless I'm wrong, I mean, figure three actually says T zero right at the top. [00:25:52] Speaker 00: which I assume why else would you say time with an arrow in a big line unless this is time zero beginning the communication cycle and then the arrow points. [00:26:01] Speaker 00: And the information comes after t zero. [00:26:03] Speaker 00: So I just don't understand how that can be reconciled with the district court's construction in advance of the cycle. [00:26:11] Speaker 02: Let me try it two different ways. [00:26:12] Speaker 00: And then one last question relevant to that. [00:26:15] Speaker 00: When it says at 86, TXOP request, I understand this to be remote and their ability to send requests to the hub to participate in the next communication cycle, like if they weren't part of this one, they can request to be in it, which means [00:26:29] Speaker 00: Oh, wait, time out. [00:26:30] Speaker 00: We got a new player in the field. [00:26:31] Speaker 00: We've got to expand our team. [00:26:32] Speaker 00: That means everybody gets a slightly different time. [00:26:35] Speaker 00: So this is an, even figure three contemplates every single cycle to be a dynamic cycle because there's always in every cycle the opportunity for new entrants, which could change the timing of everybody's future time slots. [00:26:48] Speaker 02: I agree with that Judge Moore, which is why it is absolutely critical that the remotes turn on at the beginning of the next cycle, the second cycle if you will. [00:26:57] Speaker 02: If we were in cycle one, [00:26:59] Speaker 02: At some point, all of the remotes shut down. [00:27:01] Speaker 02: That's limitation E. When do they turn on again? [00:27:05] Speaker 02: They have to know that before they turn off, because otherwise they can't turn on. [00:27:10] Speaker 02: That's the district force claim construction, that whether it's communicated as a clock time, which is claim 34, or a duration of the current cycle, and therefore because it's a repeating cycle, which is claim 14, either way, they have to know before they turn off when to turn on again. [00:27:25] Speaker 02: They can't be told, as Atlas's construction would have, [00:27:28] Speaker 02: Atlas would go to that time zero and then say, hey remotes, turn on, I have some information to send you about this cycle. [00:27:35] Speaker 02: They won't get that because they're turned off. [00:27:38] Speaker 04: Why doesn't information in cycle 13 about the end of the inbound portion [00:27:52] Speaker 04: Suffice to tell the remote turn on your receiver so that without saying anything about cycle 14, the receiver will be on to get the information when cycle 14 starts. [00:28:10] Speaker 02: So the disclosure here does not contemplate duplex transceivers. [00:28:14] Speaker 02: It contemplates either receiving or transmitting and it specifically discloses you can turn off one or the other or both. [00:28:20] Speaker 02: and the way inbound portion is described, the remotes are only transmitting, they're not receiving. [00:28:24] Speaker 02: It's not a two-way communication. [00:28:27] Speaker 02: Outbound portion is just the sounds of the hub is sending things to the remotes and they're receiving. [00:28:31] Speaker 04: I think, I wasn't clear and it may be because my head's not clear, but why can't the information in 76 and 82 in cycle 13 say [00:28:48] Speaker 04: your receiver should come on at 11 o'clock in cycle 13. [00:28:57] Speaker 04: And then it will be on at noon for cycle 14. [00:29:02] Speaker 04: And it doesn't have to have any information about cycle 14. [00:29:07] Speaker 02: Judge Toronto, that is the disclosure of 34. [00:29:10] Speaker 02: That would meet the district court's limitation. [00:29:12] Speaker 02: Construction would not meet Atlas's construction because that is conveying the start time in advance of [00:29:18] Speaker 02: cycle fourteen we agree i agree with what you just said during seventy six eighty two i think i admit maybe i've misread the district court's construction [00:29:29] Speaker 04: I thought that the district court's construction required that information about cycle 14 be sent to the remotes before cycle 14. [00:29:40] Speaker 02: For information necessary to determine the start time, which can either be a clock time to start, turn on at 11 o'clock. [00:29:48] Speaker 04: This is what I guess from the beginning of my thinking about this case has confused me. [00:29:54] Speaker 04: It seems to me that if in cycle 13 [00:29:58] Speaker 04: you say turn on at eleven o'clock you haven't said one word about when cycle fourteen starts we're not even presuming that it starts at noon or midnight at the top of the hour and i thought that what the district court required was that information be sent during [00:30:25] Speaker 04: before cycle 14 starts about cycle 14's start time. [00:30:30] Speaker 04: And that seems to me not necessary as long as the receiver is on at the beginning of cycle 14. [00:30:40] Speaker 04: But it doesn't have to know how to do that by reference to anything about the start time of cycle 14. [00:30:47] Speaker 02: So I agree with all of that. [00:30:49] Speaker 02: I believe that would meet the claim of instruction. [00:30:51] Speaker 02: The reason for that, by the way, is in columns 35 and 36. [00:30:55] Speaker 02: at the bottom, line 66 and on. [00:30:59] Speaker 02: It is necessary, this patent says, in describing, by the way, quote, the present invention, it is necessary for the remotes to recognize when to expect the beginning of the next communication cycle. [00:31:13] Speaker 02: It's column 35 at the bottom, about line 65 and the last little bit there, in order to power up the modems to receive the information frames at the beginning of each cycle. [00:31:24] Speaker 02: So that's the requirement to turn on. [00:31:26] Speaker 02: This is graphically displayed, Judge Toronto, in figure 19, to which the court referred earlier, which is, unlike for figure 16, figure 19 is a flow chart of the logic of figure 3, shows that the very last box, box 312, the remotes have to power down until the next cycle. [00:31:45] Speaker 02: And then at box 290 at the top, they have to activate the receiver for the info frame. [00:31:49] Speaker 02: They have to know when to do that. [00:31:51] Speaker 02: And all the district court's claim construction is saying, [00:31:54] Speaker 02: is that before we get to box 290, an information has to be sent to the remotes to tell them when to do that. [00:32:00] Speaker 02: Whether it's by clock time or by the duration of the previous cycle is irrelevant. [00:32:04] Speaker 02: Most of the disclosures go to describing the duration of the current cycle to establish the start time of the next cycle. [00:32:11] Speaker 02: That's in column 27 and elsewhere. [00:32:13] Speaker 02: But either way, the remotes have to know how to turn on. [00:32:17] Speaker 02: And the reason for that is if they are not told in advance of cycle 14 in the court's example, [00:32:22] Speaker 02: they won't turn on. [00:32:24] Speaker 02: And then the network won't work because the whole battery-saving feature on the receiver side is to turn off the receiver. [00:32:29] Speaker 02: Before they can turn off, they have to know when to turn on again. [00:32:34] Speaker 02: When to turn on again, as I said, is in the bottom of 28 and in 35, at the beginning of the next communication cycle. [00:32:40] Speaker 02: That's what's required. [00:32:42] Speaker 02: And so therefore, they must know before that point. [00:32:45] Speaker 02: And it doesn't matter when. [00:32:46] Speaker 02: And it's going to be communicated, Judge Morris, to come back to what we were discussing earlier, [00:32:52] Speaker 02: it has to be communicated during a communication cycle because this patent only discloses repeating communication cycles with two exceptions which are irrelevant here, the hub beacon and the active RF state, so that all information is communicated during a communication cycle. [00:33:08] Speaker 02: The only question is whether the reception information, the turn on your ears and listen information, can be communicated after the point at which the receiver needs to be turned on and to [00:33:20] Speaker 02: If I may beg the court's indulgence to return where this argument started with Mr. Summerfield and figure three, Atlas's construction, as we understand it and as we described in that page of our brief, is that the start time information can be put in any time during the outbound portion 72, any time between 12 o'clock and 7 o'clock. [00:33:43] Speaker 02: That is true with respect to the transmission intervals. [00:33:48] Speaker 02: It is certainly the case that if the receivers are listening, the hub can inform them about the transmission intervals that follow in the inbound portion. [00:33:56] Speaker 02: It is not true with respect to the reception period, which is what we're talking about here. [00:34:01] Speaker 02: And the district court, pages A23 and A24 of the claim construction order, separately construed the cycle information from the interval information, and Atlas didn't appeal that construction. [00:34:13] Speaker 02: So all this argument that the interval information has to be communicated before the cycle, we haven't argued that and the district court didn't require that. [00:34:21] Speaker 02: What does have to be communicated before the cycle is the start time of the next cycle so that the receivers know when to turn on. [00:34:30] Speaker 02: Otherwise, this network would not work. [00:34:32] Speaker 02: It would be inoperable. [00:34:34] Speaker 02: It would not be useful. [00:34:35] Speaker 02: It would be invalid. [00:34:37] Speaker 02: All of these claims would fail. [00:34:38] Speaker 02: the court certainly should not construe the patent in a way that would make the invention inoperable. [00:34:53] Speaker 00: Okay, thank you Mr. Perry. [00:34:56] Speaker 00: Mr. Summerfield, you have some rebuttal time. [00:35:06] Speaker 04: So can you start by addressing what I think you ended with and Mr. Perry began with, which is the relation between I think is it figure 16 and this question of whether the communication cycles are continuous. [00:35:21] Speaker 04: This is my understanding of it, that column 11 says the cycles are continuous. [00:35:29] Speaker 04: Figure 16 is about essentially a process that takes place before a remote gets into the cycle. [00:35:38] Speaker 04: Can you explain? [00:35:41] Speaker 03: As I said in my argument in chief, and I think to Judge Moore's question earlier, if that were true, then a new remote could never join the communication group. [00:35:50] Speaker 03: If they truly were continuous, i.e. [00:35:52] Speaker 03: that after the beacon frame, the information frame were transmitted, a new remote could never join. [00:35:57] Speaker 03: There wouldn't be an opportunity to do that. [00:36:00] Speaker 03: And we know from the teachings of the 734 patent that groups can change all the time. [00:36:05] Speaker 03: Pubs can be reconfigured as remote, etc. [00:36:08] Speaker 03: So if it's truly continuous, in other words, as soon as one ended, another began, no new remote could ever join. [00:36:15] Speaker 03: And we know that that is not the way this invention is supposed to work. [00:36:19] Speaker 03: I want to go to the claim construction because I think it's been oversimplified by St. [00:36:22] Speaker 03: Jude. [00:36:23] Speaker 03: What I heard St. [00:36:23] Speaker 03: Jude's counsel say is the only thing the district court required was at start time he communicated in advance. [00:36:29] Speaker 03: If we look at page A10, [00:36:31] Speaker 03: It's very clear what the district court was requiring was that the hub transmit to the remotes, quote, information necessary to know the starting time and duration of the communication cycle in advance of that communication cycle. [00:36:44] Speaker 03: Judge Toronto, to your point, that's not required to accomplish the goal of this invention. [00:36:49] Speaker 03: And it reads out the preferred embodiment where the control information is sent after the communication cycle starts. [00:36:56] Speaker 03: And that's the thing that St. [00:36:57] Speaker 03: Jude seems to ignore. [00:36:59] Speaker 00: Now, if we go to college... Can I make sure I understand the point that you're making here? [00:37:03] Speaker 00: The claim language says the hub transmitting information promotes to establish the communication cycle and a plurality of predetermined intervals. [00:37:13] Speaker 00: And what Mr. Perry stood here a minute ago and said is, look, we didn't appeal. [00:37:16] Speaker 00: Nobody appealed. [00:37:16] Speaker 00: We're not talking about the interval information. [00:37:18] Speaker 00: We're talking about only the start of the cycle. [00:37:20] Speaker 00: And am I understanding you to argue that the claim doesn't divorce the two? [00:37:25] Speaker 00: The claim tells you this transmission information [00:37:28] Speaker 00: is relating to the cycle and the intervals and so basically it's all together lock, stock and barrel and so it's not enough. [00:37:39] Speaker 03: By definition, Your Honor, the length of the constituent intervals defines the length of the communication cycle and certainly the district court didn't divorce the length from the start time in construing that length information, the duration, has to be transmitted in advance. [00:37:54] Speaker 03: So it isn't any longer a simple capability of telling the remotes, wake up now. [00:38:00] Speaker 03: That information about the duration has to be communicated in addition. [00:38:03] Speaker 03: That's the stuff that's in the information frame. [00:38:05] Speaker 03: It's communicated after the communication cycle starts. [00:38:09] Speaker 03: If we go to column 27 and we look at what St. [00:38:13] Speaker 03: Jude points out as the various components of the frame information, [00:38:20] Speaker 03: One of the things that is always communicated is the number of VTIs in the present communication cycle, notwithstanding whatever else may be communicated there. [00:38:29] Speaker 03: If we say, well, all these claims have to have that communication cycle and two more, that would be reading an embodiment from the specification into the claims. [00:38:38] Speaker 03: If we look at the claims themselves, and we look at claim 34, column 54, starting around line 27, [00:38:48] Speaker 03: That specifically requires that the hub transmits information about the instant communication cycle and the next one in the same information frame. [00:38:58] Speaker 03: So there are claims specifically directed to sending information about the communication cycle and the next one. [00:39:04] Speaker 04: Which claim is that? [00:39:04] Speaker 03: I'm sorry, it's claim 34, column 54 of the round line, I guess 28. [00:39:10] Speaker 03: the hub transmitting information to the remotes during a first communication cycle to establish the length of the first communication cycle and to establish the time for the beginning of the next subsequent second communication cycle. [00:39:24] Speaker 03: And then finally, your honors, if we look at claim 14, column 49, [00:39:29] Speaker 03: That particular claim allows for the hub to transmit a frame, quote, containing information describing the length of the communication cycle prior to the end of the communication cycle whose length is established. [00:39:42] Speaker 03: Meaning that that claim allows for transmitting all the way up to the end of the communication cycle [00:39:47] Speaker 03: certainly not requirement to be transmitted. [00:39:49] Speaker 00: As fun as this is, Mr. Summerfield, our time today is over, and I think we need to bring these cases to a close. [00:39:55] Speaker 03: Thank you for your indulgence, Your Honor. [00:39:56] Speaker 00: I thank all counsel. [00:39:58] Speaker 00: The argument was helpful.