[00:00:19] Speaker 03:
The last case to argument is 151425, ruckus wireless versus innovative wireless solution.

[00:00:27] Speaker 03:
Everybody settle?

[00:00:28] Speaker 03:
Okay, Mr. Baker, whenever you're ready.

[00:00:38] Speaker 02:
May it please the court?

[00:00:40] Speaker 02:
There's no dispute here that the ordinary meaning of the claim terms, communications path and bidirectional communications path, are broad enough to encompass wireless communications paths.

[00:00:52] Speaker 03:
But that doesn't mean that that's their definition, right?

[00:00:56] Speaker 03:
There's no real definition.

[00:00:57] Speaker 03:
There's no definition in the context of plain and ordinary meaning.

[00:01:01] Speaker 02:
There is no express definition provided in the patent, but the ordinary meaning of the term is one starting place for analyzing what the proper claim construction is.

[00:01:12] Speaker 02:
So no one here, neither the appellees have never argued that the ordinary meaning of communications path is somehow narrower or limited only to wired or two wired connections.

[00:01:26] Speaker 02:
Rather what they argue is that based on statements in the specification that constitutes a vowel, the claim should be narrowed.

[00:01:33] Speaker 02:
And so, starting with that understanding that the ordinary meaning is broad enough to encompass a wireless path, the court would next look to see whether there's any disavowal in the specification.

[00:01:46] Speaker 02:
And here there is none.

[00:01:47] Speaker 02:
There's no clear disavowal of claim scope, either in the specification or in the file history.

[00:01:52] Speaker 02:
In particular, there are no expressions of manifest exclusion or restriction, which is what's required by a long line of this court's case study.

[00:02:00] Speaker 04:
The specification is just run through with the term wire in it, and nowhere does it say anything about wireless.

[00:02:08] Speaker 02:
That is true, Your Honor, and that's true of numerous cases where this Court has held that even if every embodiment uses the same term or discloses the same feature, that that's not enough to constitute a disavowal or to limit the claims to require that feature.

[00:02:25] Speaker 02:
It's only where there is some further language, some statement that the present invention is or includes this feature, or where there's an argument that the prior art is criticized or distinguished on the basis of a feature, or there's some other type of manifest exclusion or restriction.

[00:02:44] Speaker 02:
In those cases, the court has held that the claim term is limited to something narrower than its ordinary meaning.

[00:02:51] Speaker 02:
But none of those situations apply here.

[00:02:54] Speaker 02:
And in fact, to the contrary, there's a number of indications in the specification that the term communications path is intended to be broader than a two-wire telephone subscriber line.

[00:03:08] Speaker 03:
Yes, Your Honor, to encompass any type of communications path.

[00:03:12] Speaker 02:
Well, I think there's three primary indications in the specification, Your Honor, that the term communications path is not limited to a two-wire communications path.

[00:03:24] Speaker 02:
The first is in the claims themselves.

[00:03:27] Speaker 02:
As we've explained in the briefs, many of the claims are drafted in terms of a communications path.

[00:03:33] Speaker 02:
Other claims are drafted in terms of a two-wire telephone line, and that strongly suggests and indicates that the patentees intended those terms to have different meanings.

[00:03:43] Speaker 02:
And when they intended to claim a two-wire line, they did that.

[00:03:46] Speaker 02:
Why did they claim Waros?

[00:03:49] Speaker 02:
Well, Your Honor, I don't know why they didn't.

[00:03:53] Speaker 02:
There's no specific disclosure of wireless in the specification.

[00:03:59] Speaker 02:
But under this court's case law, that's not determinative.

[00:04:02] Speaker 02:
The question is whether there's any disavowal.

[00:04:04] Speaker 04:
You have to show us why we should find wireless within communications paths, or rather, communications paths includes wireless communications.

[00:04:14] Speaker 04:
But as you've noted, and I think you agree that the specification repeatedly refers to wires.

[00:04:23] Speaker 04:
I mean, two-strand twisted wires, but it doesn't to wireless.

[00:04:28] Speaker 04:
What is it about this patent that tells us, instructs us, that we should include wireless communication within communication patents?

[00:04:40] Speaker 02:
Yes, Your Honor.

[00:04:41] Speaker 02:
And you're correct that all the embodiments do talk about particular types of wire connections, particularly two-wire telephone subscriber lines.

[00:04:50] Speaker 02:
And that is the preferred embodiment.

[00:04:53] Speaker 02:
That's what the inventors were working on in their jobs.

[00:04:56] Speaker 02:
But that doesn't circumscribe the scope of their invention.

[00:05:00] Speaker 02:
And in particular, there's language in the specification.

[00:05:02] Speaker 04:
You've got to give us a reason for us to expand the obvious scope of the invention.

[00:05:07] Speaker 04:
So when the specification is instructing us

[00:05:10] Speaker 04:
The claims instruct us, and now you want something that's not in the specification of the claims, show us where do you get that.

[00:05:18] Speaker 02:
Well, one place, Your Honor, is that the specification explains that the two-wire telephone line is a typical type of communications path, which strongly indicates that the inventors understood that the term communications path was not limited to a two-wire telephone line, that that was just a typical type of communications path.

[00:05:41] Speaker 02:
Similarly, the summary of the invention section discusses a number of different embodiments.

[00:05:47] Speaker 02:
Several of those embodiments repeatedly talk about a communications path without limiting it or even referring to a two-wire telephone line.

[00:05:55] Speaker 02:
Let me just give you the slides of the two sections I'm talking about.

[00:05:59] Speaker 02:
The part where it talks about the communications path and that the two-wire telephone line is typical of a communications path is in column two, line 33 of the patent.

[00:06:14] Speaker 02:
It says, the connotation's path typically being constituted by a telephone line.

[00:06:19] Speaker 02:
And then it goes on, it says, a simple form of such a communications path is a serial link comprising modem communications via a conventional two-wire telephone line.

[00:06:30] Speaker 02:
So it refers to that as a simple form of such a communications path.

[00:06:33] Speaker 02:
So both of those sentences in the spec strongly suggest that the inventors are not using those terms synonymously, that a communications path is not the same thing and it's not limited to a two-wire line.

[00:06:48] Speaker 02:
And the other sections we were talking about, in the summary of the invention, starts on column 4, line 37, to column 5, line 21, where it talks about the invention, it talks about the communications path repeatedly.

[00:07:02] Speaker 02:
without any reference to limiting it to a two-wire telephone line.

[00:07:07] Speaker 02:
And so that also suggests that the inventors understood that their invention was not limited.

[00:07:14] Speaker 03:
Well, all these samples, everything you're saying talks about the reverse, which is why this isn't necessarily a thousand percent being a telephone wire.

[00:07:23] Speaker 03:
But nothing you're pointed to gives any indication that we're talking about wireless here in the pet.

[00:07:29] Speaker 02:
That is correct, Your Honor, and I guess it's a question of what's the appropriate doctrinal approach where a patentee uses a broad term, communications path, their embodiments that are disclosed are narrower, but there's no express disavowal or exclusion of wireless communication networks.

[00:07:49] Speaker 02:
And the case law, and there are a number of cases such as Thorner and Hill-Rom, say that unless you have an exclusion, you get the ordinary meaning.

[00:07:59] Speaker 02:
And in fact, I'd like to talk a little about the Hill-Rom case, because the facts are very similar.

[00:08:03] Speaker 04:
Let's look at the test.

[00:08:04] Speaker 04:
Isn't the test where the person of ordinary skill will recognize that the protocol could also be applied in a wireless context?

[00:08:14] Speaker 04:
And so we're looking at this person, right, skill and order.

[00:08:21] Speaker 04:
They're looking at the specification, the claims.

[00:08:24] Speaker 04:
What is it there that would instruct the artisan that this protocol can be used in the wireless context?

[00:08:34] Speaker 02:
What is there is the problem that's being solved is the

[00:08:40] Speaker 02:
inability to communicate over particular mediums that are unsuitable for Ethernet or CSMA-CD type of communication and that is well known and true of a wireless communications network that is not suitable for Ethernet communication.

[00:08:58] Speaker 04:
So the TAN resolves the collision protocol with respect to a land network spread over a large distance.

[00:09:08] Speaker 04:
But that doesn't say anything about the wireless context.

[00:09:14] Speaker 02:
That's one example.

[00:09:15] Speaker 02:
We have a very long wired connection.

[00:09:17] Speaker 02:
That's one situation in which the Ethernet will not work and in which the invention can be used to allow communication over that kind of a medium.

[00:09:27] Speaker 02:
But that's not the only kind of medium where that problem arises.

[00:09:30] Speaker 02:
The same problem arises with a wireless communications medium where you can't use an ethernet because... And how is the specification, how's the patent enabled?

[00:09:41] Speaker 03:
A wireless communication, a wireless...

[00:09:44] Speaker 02:
Well, Your Honor, we view that as a separate issue.

[00:09:47] Speaker 02:
And in fact, that's what a number of cases like, I believe it's Hill-Rom, that issue came up.

[00:09:51] Speaker 02:
And the court said enablement is a separate question.

[00:09:53] Speaker 02:
That's a validity question.

[00:09:54] Speaker 02:
And in construing the claims, we do not consider it.

[00:09:58] Speaker 03:
But you're telling us here, whether it's the context of claim construction or whatever context, you're telling us that the specification makes no reference whatsoever to anything above wireless, right?

[00:10:11] Speaker 02:
Some of the prior art that's cited in the patent is wireless prior art.

[00:10:18] Speaker 02:
So I don't think I would say there's nothing whatsoever.

[00:10:20] Speaker 02:
I would say the disclosed embodiments do not use a wireless connection, but certainly some of the prior art that's disclosed are wireless prior art.

[00:10:28] Speaker 04:
If you feel wrong, the same issue came up and the same question was asked.

[00:10:32] Speaker 04:
Where in the record, even the entire record, not just the patent,

[00:10:37] Speaker 04:
Is there any connection made to wireless communication?

[00:10:42] Speaker 04:
And in Hill-Rom, they were able to point out that references by an expert to infrared communication.

[00:10:48] Speaker 04:
And on that basis, the court decided that, well, there is something there with respect to a wireless communication, even though it's an infrared communication.

[00:10:57] Speaker 04:
But that's why we're asking you, what is it here that references to a wireless communication so that we have something to hang your hat on?

[00:11:06] Speaker 02:
Your Honor, respectfully, I read the Hill Round Case slightly differently, which is that the majority there did not rely on any disclosure of wireless in the specification.

[00:11:19] Speaker 02:
They relied on a lack of any kind of disavowal or disclaimer of the ordinary meaning.

[00:11:24] Speaker 02:
And they did mention that there was a reference to a prior art wireless

[00:11:30] Speaker 02:
system, but that was not in the context of any disclosure of any embodiments of the invention.

[00:11:38] Speaker 02:
My reading of that case is that was not a basis for the majority's decision for why data links should be construed to include wireless, even though the only disclosed embodiment in that case used a wired connection.

[00:11:51] Speaker 02:
There was no disclosure in that case of using wireless for the invention.

[00:11:55] Speaker 00:
And therefore, this case, present before the court, is very similar in numerous respects to the Hiram case.

[00:12:09] Speaker 00:
at a plain and ordinary meeting level would include wired and wireless?

[00:12:13] Speaker 02:
No, there's no dispute about that, Your Honor.

[00:12:15] Speaker 02:
The FLE has never contested that, and there was no testimony or evidence to suggest that communications path was somehow narrower or limited to wired connections in its ordinary meaning.

[00:12:29] Speaker 00:
And does this case come to us just on the intrinsic record, and therefore we should apply de novo review?

[00:12:35] Speaker 02:
That's correct, Your Honor.

[00:12:36] Speaker 02:
The court relied only on its review of the intrinsic evidence and focused and latched onto one particular preferred embodiment and used that as the basis for its construction.

[00:12:46] Speaker 02:
So it is subject to de novo review.

[00:12:48] Speaker 03:
Is it fair to say, I mean, I'm just a little

[00:12:52] Speaker 03:
I mean, you are correct.

[00:12:55] Speaker 03:
I understand what you're saying about our case law.

[00:12:57] Speaker 03:
If you had the clear plain meaning and then you need a disavowal.

[00:13:03] Speaker 03:
It seems to me this case may be a little different because as you said, and you said in your brief, you call this the broadest plain meaning.

[00:13:11] Speaker 03:
But isn't the plain meaning of communications past this kind of generic term dependent on the context of which it's found?

[00:13:21] Speaker 02:
Well, it's really in the context of telecommunications, but even within that context, communications paths include both wired and wireless communications paths.

[00:13:30] Speaker 03:
It could include, it might include, but it doesn't necessarily include both, right?

[00:13:35] Speaker 02:
Well, that's correct, but there's nothing in these patterns that says it does not include wireless.

[00:13:42] Speaker 02:
And in fact, as I mentioned, there's a number of indications, including the claims and the dependent claims, which specifically narrow the independent claim to say communications path and narrow them and say we're in the communications path is a two-wire telephone line.

[00:13:57] Speaker 02:
So the claims themselves confirm that communications path was intended to have a broader meaning and not to be limited to a wired connection.

[00:14:07] Speaker 03:
Okay.

[00:14:07] Speaker 03:
Why don't we go to the other side?

[00:14:08] Speaker 03:
Thank you, Your Honor.

[00:14:10] Speaker 03:
Thank you.

[00:14:24] Speaker 05:
May I please record, I'd like to start where your question left off, Chief Judge Frost.

[00:14:31] Speaker 05:
Claiming an ordinary meeting with respect to communications path can be something different depending on the context in which that term is used.

[00:14:38] Speaker 05:
And our goal here is not to broaden or limit the claim.

[00:14:41] Speaker 05:
But to consider what does that claim term mean in the context in which it's used.

[00:14:45] Speaker 03:
But didn't the district court conclude, I mean it was a little unclear on what he said because he did cite the plain and ordinary meaning and sort of the generic paragraph about the case.

[00:14:57] Speaker 05:
He does and he starts with the plain and ordinary meaning and then quickly goes to the analysis of whether disavowal or lexicography applies here.

[00:15:04] Speaker 05:
And he eventually gets to the conclusion that we have a case of disavowal.

[00:15:08] Speaker 05:
And that finding is well supported by the specification here.

[00:15:12] Speaker 03:
I'd like to direct your attention to... Can you first, before you get there, talk about the final point your friend made, which was the kind of claim differentiation argument that the other claims specifically call out, wired, and therefore we should consider this particular claim more broadly.

[00:15:27] Speaker 05:
Sure.

[00:15:27] Speaker 05:
With respect to the claim differentiation argument,

[00:15:29] Speaker 05:
They make a number of claims directed at a series of dependent claims, and with respect to each of those dependent claims, there's more at issue than the fact that you're simply adding the limitation that the communication path is a two-wire path.

[00:15:41] Speaker 03:
Yeah, but aren't principles of statutory construction and construing claims that if you call it out and differentiate it in one context, the suggestion is that the use of the term in the other context is broader?

[00:15:54] Speaker 05:
First of all, there is a presumption of claim differentiation, but that presumption can be overcome whenever the specification is sufficiently clear to support the construction that is used by the court, number one.

[00:16:03] Speaker 05:
And then number two, when we look at the court's actual construction, he uses the term twisted pair wiring.

[00:16:09] Speaker 05:
And if you turn to the patent specification, the inventors here at column 9 at lines 45 through 51 draw a distinction between a telephone subscriber line, which they use somewhat interchangeably in the patent with a two-wire line, and twisted pair wiring.

[00:16:30] Speaker 05:
And they say that basically the line 12, which is the wired line here, is a telephone subscriber line.

[00:16:39] Speaker 05:
in accordance with this new protocol, but it would be understood that the protocol can be used by any twisted pair wiring, which is too long to permit conventional 10-base-T or similar LAN interconnections.

[00:16:51] Speaker 05:
The idea here is that they're starting with a concept that it's a two-wired telephone subscriber line, but actually then stepping back and saying that it actually would apply to any twisted pair wiring.

[00:17:01] Speaker 05:
And earlier we heard Mr. Baker talk about some others.

[00:17:04] Speaker 04:
Is that part of the claim construction number challenge below?

[00:17:08] Speaker 05:
That was part of the construction.

[00:17:10] Speaker 05:
That is the basis for Judge Yackel's construction.

[00:17:13] Speaker 04:
Too long to permit conventional tin-based tea or similar man in a production?

[00:17:18] Speaker 05:
Yes, Your Honor.

[00:17:20] Speaker 04:
But that part wasn't challenged.

[00:17:22] Speaker 04:
It's not before us on appeal, correct?

[00:17:26] Speaker 05:
It's not really directed.

[00:17:28] Speaker 05:
I guess what they're challenging is whether we should be using a plain and ordinary meeting without any further guidance, or should we be using Judge Akles' construction here.

[00:17:36] Speaker 04:
I'm asking because I wonder what does that part of fake construction do if we were to find in favor of the appellant and reverse?

[00:17:45] Speaker 04:
And I wonder how that would affect the infringement issue.

[00:17:49] Speaker 05:
Sure.

[00:17:52] Speaker 05:
The stipulation of non-infringement here

[00:17:56] Speaker 05:
focuses on that aspect when it refers to the fact of 802.11 Wi-Fi.

[00:18:01] Speaker 05:
That's what they're accusing.

[00:18:02] Speaker 05:
They're accusing 802.11 Wi-Fi.

[00:18:04] Speaker 05:
And 802.11 Wi-Fi uses a wireless communication technology over short ranges.

[00:18:11] Speaker 05:
It's exactly within the range of 100 meters or less that is used by Ethernet wired LANs that the patent is trying to get around.

[00:18:19] Speaker 05:
The problem is you can't use these wired connections over longer distances because you can't detect when there's collisions.

[00:18:25] Speaker 05:
So they developed a new technology based on collision avoidance where one modem controls the other modem.

[00:18:31] Speaker 05:
And so if your question is can you affirm based on the affirming the court's construction that includes the long distance aspect of the claim limitation, I would say yes you can based on the fact that the stipulation itself refers to

[00:18:48] Speaker 05:
the fact that they're accusing this short distance wireless technology that is not intended for long distances.

[00:18:56] Speaker 05:
I think that answers your question.

[00:18:59] Speaker 00:
The district court went on though using that part of the specification to say we're not limited to telephone subscriber lines.

[00:19:07] Speaker 00:
We also broaden it out a little bit to these two wire lines.

[00:19:10] Speaker 00:
But then he went on to say, at least as I read it,

[00:19:13] Speaker 00:
And therefore, we don't reach wireless.

[00:19:16] Speaker 00:
Did he make that last leap?

[00:19:17] Speaker 00:
And if so, how's that consistent with this court's precedent?

[00:19:21] Speaker 05:
What he does is he confirms that the wired transmission medium is a core feature of this technology.

[00:19:29] Speaker 05:
He does that.

[00:19:32] Speaker 05:
page 820 of the appendix.

[00:19:35] Speaker 05:
He says, the repeated reference to two-wire lines and telephone lines emphasizes that the inventor was focused on this transmission medium as the core of the new technology.

[00:19:44] Speaker 00:
Is that a case law from this court, though, that what a core feature is or what an inventor is focused on doesn't limit the scope of the claim?

[00:19:53] Speaker 05:
Actually, I would disagree with that, Your Honor, respectfully.

[00:19:55] Speaker 05:
When we look even at the case of Hill-Rom, which is relied on by the appellant here,

[00:19:59] Speaker 05:
The court there says there is no magic words, and we looked at the specification to figure out whether the subject limitation is important, is necessary, is essential, and it cites a whole series of cases that stand for that proposition.

[00:20:13] Speaker 00:
Where does this patent say that wires are necessary or essential to this invention?

[00:20:20] Speaker 05:
at column 4, lines 8 to 10, it states, advantageously, the communication path comprises two-wire telephone subscriber line, and the modem's communicating along that line.

[00:20:33] Speaker 05:
Whether you want to call that lexicography, you want to call it a disarval, it makes clear that what we're talking about here is a communication path that is wired.

[00:20:42] Speaker 05:
And then if we take a step back and look at column 1, line 6 to 10, it's the introductory paragraph of this entire patent.

[00:20:48] Speaker 05:
It says, this invention

[00:20:51] Speaker 05:
relates to information that work in access, and is particularly concerned with, it then describes the modems communicating, and I quote, via two-wire lines such as telephone subscriber lines.

[00:21:04] Speaker 05:
Those two instances in the specification make clear that what we're talking about here is a patent intervention where the two-wire subscriber line is a core feature, and then it almost definitionally

[00:21:16] Speaker 05:
identifies that the communication path is a two-wire telephone subscriber line.

[00:21:22] Speaker 05:
By comparison, the appellants are relying on some other sections of the specification, particularly in column two that they referred to a little while ago about communication paths typically being constituted by a telephone line.

[00:21:37] Speaker 05:
That paragraph is describing the prior art

[00:21:40] Speaker 05:
and what type of wired lines were being used to connect these networks.

[00:21:44] Speaker 05:
It starts with a discussion of those wired lines typically being telephone lines.

[00:21:48] Speaker 05:
There's no suggestion that that somehow opens up the communication path to a wireless embodiment.

[00:21:53] Speaker 05:
It then immediately follows with the next

[00:21:56] Speaker 05:
excerpt that they rely on and says a simple form of such a communication path referring to the telephone line that was just mentioned in the sentence immediately before that is a serial link comprising modem communications via conventional two-wire telephone line.

[00:22:10] Speaker 05:
So it's saying this is what we typically use, but what else could be used?

[00:22:14] Speaker 05:
It then describes other prior art references, all of which are wired.

[00:22:18] Speaker 05:
It describes using different protocols, point-to-point protocol and serial link internet protocol along a telephone wire.

[00:22:26] Speaker 05:
It refers to ISDN telephone lines.

[00:22:29] Speaker 05:
That's at column 2, lines 62 to 65.

[00:22:34] Speaker 05:
It then goes on to describe coax cables and hybrid fiber coax cables at column 3, lines 17 to 19.

[00:22:45] Speaker 05:
So again,

[00:22:46] Speaker 05:
The sole focus of this is on the various wired lines that existed and how they're going to select from one of those lines to use their Ethernet frame collision avoidance protocol that was designed for this wireless implementation.

[00:23:00] Speaker 00:
All of that may be true, but where in your reputation or where in these patents are the words or expressions of restriction or manifest exclusion?

[00:23:08] Speaker 05:
And I don't believe that's the current status of the case law.

[00:23:11] Speaker 05:
In Hill-Rom, the court said there need not be magic words.

[00:23:15] Speaker 05:
That's exactly what the appellants are arguing is, look, you've got to have these words of exclusion.

[00:23:20] Speaker 05:
To have a disavowal, you don't need to rise to the level of words of exclusion if you make sufficiently clear that the limitation at issue is essential, important, or necessary to the claimed invention.

[00:23:31] Speaker 00:
And you get that from Hill-Rom.

[00:23:33] Speaker 05:
Yes.

[00:23:34] Speaker 05:
Whether you look at Hill-Rom or you look at Edward Life Sciences before that, the courts say we are going to focus on what aspects of the invention are described as important, as necessary, as essential, and then we need to look at the claims and make sure the scope of the claims is aligned with the scope of the specification.

[00:23:53] Speaker 00:
Do you find in these patents any disparagement of its use with wireless technology?

[00:23:59] Speaker 05:
There is no express disparagement.

[00:24:01] Speaker 05:
What there is is a clear indication that this protocol that they came up with, which is the other core element of their technology, was designed for use with a wired line.

[00:24:12] Speaker 05:
There's all kinds of discussion in the patent starting in the very first column just south of line 45, 46.

[00:24:20] Speaker 05:
It's talking about the open systems interconnection and describes the various layers of communication going down to the physical layer at layer one.

[00:24:29] Speaker 05:
And then it explains why in a wired context, because of propagation delays, we can only use the Ethernet technology to

[00:24:38] Speaker 05:
permit communication less than 100 meters typically and that we need to figure out a way to permit that communication over longer distances using these wired lines and then it describes the protocol that they have come up with where they, because they have a point to point communication protocol, they allow one modem to have absolute control over the other modem.

[00:24:58] Speaker 05:
Again this is all designed around the wired line which is one of the core technologies at issue here.

[00:25:05] Speaker 05:
unless your honors have other questions.

[00:25:07] Speaker 00:
Do you agree that the standard of review is de novo and that this is based on only intrinsic evidence?

[00:25:12] Speaker 05:
We do.

[00:25:13] Speaker 05:
With respect to this particular term, the court did not focus on extrinsic evidence.

[00:25:34] Speaker 02:
I'd like to respond to the arguments of counsel generally in the same order that they were raised.

[00:25:39] Speaker 02:
Your Honor, you first asked about claim differentiation.

[00:25:42] Speaker 02:
Counsel argued that there's more distinctions and therefore claim differentiation doesn't apply.

[00:25:48] Speaker 02:
But at least with respect to claims 6, 21, and 27 of the 473 patent, that's the only difference.

[00:25:55] Speaker 02:
those claims say we're in the communications path is a two-wire telephone line.

[00:26:00] Speaker 02:
And so if that were already part of a media communications path, those claims would be entirely superfluous.

[00:26:06] Speaker 02:
Jadrena, you asked about whether the district court's construction is on appeal here, and it is.

[00:26:12] Speaker 02:
We have challenged the entirety of the district court's construction.

[00:26:16] Speaker 02:
We've explained why it improperly limits it to a particular preferred embodiment, and we believe that the term should be construed according to its ordinary meaning.

[00:26:25] Speaker 02:
In fact, in this case, it doesn't need any affirmative or explicit construction.

[00:26:31] Speaker 04:
uh... greebony addresses though, doesn't it?

[00:26:34] Speaker 04:
I mean in your argument here before us it's only limited to communications to path.

[00:26:40] Speaker 04:
and not the remainder of the construction.

[00:26:43] Speaker 02:
Well, it's the entirety of it that we challenge in our briefs.

[00:26:47] Speaker 02:
I'm focusing today on the argument as to why the two-wire part of it is wrong, but certainly the rest of it I think is clearly wrong, the part about too long to allow... I brought it up because I'm having a hard time seeing how if you win today, you'll win tomorrow.

[00:27:04] Speaker 04:
on infringement if you haven't challenged the entire claim, claim construction.

[00:27:09] Speaker 02:
Okay, well I believe we have challenged the entire claim construction and if it is not clear in our brief I would like to make that clear now that we are challenging the entirety of the construction.

[00:27:18] Speaker 02:
I did also want to respond to counsel's argument

[00:27:21] Speaker 02:
that the district court concluded that the wired implementation is a core feature.

[00:27:27] Speaker 02:
There is no statement, as your own pointed out, there is no statement that wired is important, necessary, or essential.

[00:27:33] Speaker 02:
And Hill-Rom, contrary to what counsel is saying, Hill-Rom says, asks of some language in the specification suggesting that the wired connection is important, essential, and necessary with the present invention.

[00:27:44] Speaker 02:
There is no basis to narrow the plain and ordinary meaning of the term data link to one type of data link.

[00:27:53] Speaker 02:
One last point.

[00:27:57] Speaker 02:
Council pointed to a couple of sentences from the specification, one talking about it advantageously, one talking about the term particularly, and then talking about the wired connection.

[00:28:08] Speaker 02:
Both of those are just talking about the preferred embodiment.

[00:28:11] Speaker 02:
Aventagiously just means preferentially preferred.

[00:28:14] Speaker 02:
That's the preferred embodiment is a two-wire connection.

[00:28:16] Speaker 02:
And particularly just means especially.

[00:28:18] Speaker 02:
They're especially concerned with two wire lines because that's their preferred embodiment.

[00:28:22] Speaker 02:
That's not the scope of communications.

[00:28:25] Speaker 03:
Thank you.

[00:28:26] Speaker 03:
We thank both counsels.

[00:28:27] Speaker 03:
The case is submitted.

[00:28:28] Speaker 03:
That concludes all the statements for this morning.

[00:28:32] Speaker 01:
All rise.