[00:00:46] Speaker 02: Next case is Weiland, USA versus Apple, Incorporated, 2015-12-56, Mississippi Coast. [00:00:59] Speaker 02: When you're ready. [00:01:10] Speaker 04: may please report of Robert Cody for a plaintiff for Appellant Weiland. [00:01:17] Speaker 04: There were two errors committed by the district court below. [00:01:20] Speaker 04: One in construing the term UL connection in connection with the 640 patent. [00:01:26] Speaker 04: And the other error by the district court in construing the number of specified connections required by the claims of the 040 patent. [00:01:37] Speaker 04: I'll start with the UL connection. [00:01:39] Speaker 04: But first I'd like to make clear to the court that the 640 patent is a different patent from the 040 patent. [00:01:48] Speaker 04: While the 640 patent deals with uplink connections to a base station, the 040 patent deals with end user connections. [00:01:57] Speaker 04: And that's important because the court [00:02:00] Speaker 04: below seem to have conflated the two patents and treated them as one when they have different specs. [00:02:04] Speaker 03: The Markman briefing seemed to suggest that from your side that the two patents were directed to the same basic invention. [00:02:12] Speaker 04: No, they're actually distinct. [00:02:14] Speaker 04: They serve the purpose of maximizing and efficiently using bandwidth to get data up to a base station so you can connect to the world. [00:02:24] Speaker 04: But they come at it in two different ways. [00:02:27] Speaker 04: The 640 deals with [00:02:30] Speaker 04: Uplink connections like UPS trucks, FedEx trucks, they're going to take data from a radio unit that speaks the language of a wireless network. [00:02:38] Speaker 03: And when you use the term radio unit, I just want to be clear because it seems to be getting used different ways in these apps. [00:02:46] Speaker 03: You're talking about the cell phone, right? [00:02:48] Speaker 04: I'm talking about the communications chip that sits in the phone that takes data from the application process or video, voice, [00:02:57] Speaker 04: It's the device that wants to connect to the outside world for you and me and it uses a communications chip that sits in the phone that is what the claims will call either a subscriber radio unit or the term CP is also used in the patent. [00:03:11] Speaker 04: And there are actually two embodiments taught in these patents. [00:03:16] Speaker 04: One is I can sit this radio unit or CP out in front of a number of devices or [00:03:23] Speaker 04: I can put that CPE or radio unit into, as an ASIC or a chip, into a handset. [00:03:28] Speaker 04: We're talking about the 040, the UL connections patent? [00:03:33] Speaker 04: Actually, in general, I'm talking about wireless networks taught by both patents. [00:03:38] Speaker 04: But it's important to know that in both cases, we're trying to optimize the use of the bandwidth up to the base station. [00:03:44] Speaker 04: In the case of the 640, it's about how to efficiently allocate bandwidth to these UL connections from the radio unit to the base station. [00:03:52] Speaker 04: In the case of the 040, I'm going to put the data going up to the base station into a truck called a PDU, and the data coming from the end user application processor is going to be in the form of an SDU. [00:04:08] Speaker 04: So that invention is about how to pack the end user SDUs efficiently into a PDU truck at the radio unit to take the data on one or more UL connections [00:04:20] Speaker 04: which is what the 640 is focused on up to the base station. [00:04:23] Speaker 04: So really, they're looking at different points, these two patents, in the process of getting data from an end user up to a base station. [00:04:31] Speaker 02: Mr. Cohen, isn't your argument a clamped instruction with respect to the 640 patent? [00:04:38] Speaker 02: Wasn't it waived as having been brought late? [00:04:43] Speaker 04: That's the argument. [00:04:44] Speaker 04: But actually, the district court below considered the construction of a UL connection that we've offered, which is a connection from the radio unit up to the base station, not a connection from the radio unit to the end user. [00:04:59] Speaker 02: He still rejected it. [00:05:01] Speaker 04: The court did, but it was a position. [00:05:03] Speaker 02: It held that the issue of the argument was correct way, right? [00:05:10] Speaker 04: No, the court did not hold that it was waived. [00:05:12] Speaker 04: In fact, the court went ahead and considered the argument. [00:05:16] Speaker 04: If you go to the summary judgment order at JA-4, line 26 to JA-5, line 1, the court, I'm quoting from the decision, with respect to the 640, the court has reviewed the newly produced evidence. [00:05:32] Speaker 04: Again, notwithstanding the waiver argument raised by Apple below, [00:05:36] Speaker 04: and finds it does not demonstrate the construction of UL connections is clearly erroneous. [00:05:41] Speaker 04: So the court did consider the issue below, did not find a waiver, and so we have a position that was considered but was unsuccessful. [00:05:49] Speaker 04: So under the law of trading and other authority [00:05:52] Speaker 04: from this court, there will be a waiver. [00:05:54] Speaker 03: The judge also went through the factors of considerations for whether to entertain a new argument at the motion for reconsideration stage. [00:06:05] Speaker 03: And the judge found that these arguments for a new claim construction did not meet any of those factors. [00:06:14] Speaker 04: I think in connection with the 040, the court had that discussion, but with respect to the 640, it said it did actually consider the newly provided evidence. [00:06:23] Speaker 04: So there is a distinction drawn between the two. [00:06:26] Speaker 04: And Apple has said that we presented a new infringement theory by this new construction. [00:06:34] Speaker 04: We actually have not. [00:06:36] Speaker 04: We have always taken the position, always, that the [00:06:40] Speaker 04: UL connections are not the user connections from the processor that pumps out data to the radio unit, the communications chip, but from the radio unit up to the base station always. [00:06:50] Speaker 04: And those connections are actually called radio bearers. [00:06:53] Speaker 04: We point to a data radio bearer that's a UL connection for your data from the radio unit to the base station and a control radio bearer or signaling radio bearer. [00:07:02] Speaker 04: We've always pointed to those and to drive home that point, [00:07:06] Speaker 04: I think it's important to recognize that even Apple understood that that was our theory and it has not changed. [00:07:12] Speaker 04: If we go to Apple's summary judgment brief, its opening brief, it's JA136, lines 13 to 16, YLAN's infringement theory focuses on the transmission of data from the accused products to the cellular network in the uplink direction, i.e. [00:07:32] Speaker 04: from the mobile device radio unit [00:07:35] Speaker 04: to the base station. [00:07:36] Speaker 04: So they understood all along we were focusing our infringement theory on the UL connection, the uplink connection from the radio unit to the base station. [00:07:46] Speaker 00: Did you give an appendix site for that? [00:07:49] Speaker 04: Yes, that's JA136. [00:07:52] Speaker 04: It's Apple's opening brief, lines 13 to 16. [00:07:55] Speaker 04: There are two others that are pretty poignant. [00:07:58] Speaker 04: In Apple's summary judgment reply brief at JA5500, [00:08:04] Speaker 04: Line seven to eight, Apple states, under Weiland's infringement theory, the signaling radio bearer and the data radio bearer satisfy the claimed UL connections. [00:08:16] Speaker 04: Again, the uplink connections to the base station have always been our theory. [00:08:20] Speaker 04: When the court's construction came down, it required that they originate from an end user. [00:08:26] Speaker 04: We then extended back the origin for the UL connections that start in the radio [00:08:32] Speaker 04: unit up to the base station, we said they extend back and get their data from the end user. [00:08:37] Speaker 04: And the court said, no, you have to show a connection that begins at the end user processor, the application processor in your phone, and ends at the radio unit. [00:08:45] Speaker 04: And if you can't show two connections there, you lose. [00:08:48] Speaker 02: Let me ask you about the 0407. [00:08:51] Speaker 02: Is it the issue whether specified connection is multiple or not? [00:08:58] Speaker 04: The issue is whether or not the claims require [00:09:03] Speaker 04: two or more specified connections. [00:09:06] Speaker 02: And doesn't the specification at column four, line 40, indicate multiple connections, which means two or more? [00:09:18] Speaker 04: Line 40, column four? [00:09:19] Speaker 02: Yeah, column four. [00:09:23] Speaker 04: So that's one embodiment you're on? [00:09:25] Speaker 04: And in that embodiment? [00:09:27] Speaker 02: But if that embodiment is there, the claim must encompass it. [00:09:33] Speaker 04: The claim encompasses multiple specified connections as well as a single specified connection. [00:09:40] Speaker 04: It's important to recognize that on reconsideration before the district court, the court found that there are two embodiments disclosed in the 040PAT. [00:09:49] Speaker 04: One, where the CP or radio unit or node sits out ahead of multiple specified connections, or an alternative where it's a chip, an ASIC, that sits inside the phone and serves one specified connection. [00:10:02] Speaker 04: And the second thing that's important to recognize is what's the invention we're talking about. [00:10:06] Speaker 04: We're talking about how to efficiently pack SDUs from an end user at the radio unit into a PDU so that the truck is as full as it can be, efficiently full, up to the base station. [00:10:20] Speaker 04: Whether I am practicing that invention for one end user, one specified connection, or multiple specified connections doesn't [00:10:30] Speaker 04: matter because I'm still practicing the invention and that's why the court acknowledged that you can have two embodiments. [00:10:36] Speaker 04: I can have a CP radio unit node whatever the term is you want to call that depends on the claim. [00:10:42] Speaker 04: serving the needs of multiple end users. [00:10:44] Speaker 04: In each case it will take data from each one, pack the users data into PDU and send it up to the base station. [00:10:51] Speaker 00: It will prioritize the connections and that's where it seems to me is the weak spot in your argument with respect to the 040 is the prioritizing requirement of the limitations. [00:11:03] Speaker 00: Could you address that? [00:11:04] Speaker 00: Yes. [00:11:05] Speaker 00: Your argument, and I understand it, is that well, [00:11:07] Speaker 00: there's prioritization not vis-a-vis one connection in another, but can be prioritization within a single connection between the control data of the control signals and the data. [00:11:19] Speaker 00: Is that right? [00:11:20] Speaker 00: And that's your argument? [00:11:21] Speaker 04: Correct. [00:11:21] Speaker 04: So if you go to page 33 of our opening brief, you will find that we refer to portions from the 040 patents in the intrinsic record [00:11:35] Speaker 04: that make clear that the patentee does not intend that the prioritization necessarily [00:11:44] Speaker 04: relative to another specified connection, another end user connection, it could be relative to control connections that take control data up to the base station. [00:11:53] Speaker 00: And again, the invention... Why would you not actually say that? [00:11:56] Speaker 00: I'm having trouble seeing... Yes, so... I read the text of what you cite on 33 and it's not clear to me that that's talking about prioritization of the connections. [00:12:10] Speaker 00: How do I get from where you've got to where you need to go? [00:12:15] Speaker 04: Right, so when you look at the claim, it talks about allocating bandwidth to the specified connection, thus connection, that's why we say one, based on the priority of the connection. [00:12:28] Speaker 04: And this is the issue, the priority of the connection. [00:12:31] Speaker 04: The claim does not say anything about what that priority has to be relative to. [00:12:35] Speaker 00: Well, but the priority of a connection is a priority vis-a-vis what? [00:12:39] Speaker 00: I mean, you would say this is first priority or second priority, second as opposed to another connection. [00:12:46] Speaker 00: That's the natural reading. [00:12:47] Speaker 00: Why is that not the right reading? [00:12:50] Speaker 04: I think that's correct, Your Honor, but I think it's important to recognize on page 33, when they talk about the control connections, [00:12:59] Speaker 04: The priority is based on quality of service, QoS priority. [00:13:04] Speaker 04: The patent's all about that. [00:13:07] Speaker 04: One connection has to have a certain bit rate that's higher than another connection, quality of service. [00:13:12] Speaker 04: So when they talk about the control connections here on page 33 of our brief, where I quote from the 040 patent, you'll see the connections [00:13:22] Speaker 04: The two connections are used to allow differentiated levels of QoS to be applied to different connections carrying management traffic. [00:13:30] Speaker 04: So it's talking about the control connections, the management traffic [00:13:34] Speaker 04: having differential levels of quality of service, just like the data connections would. [00:13:40] Speaker 04: And in fact, in the accused products, control connections get infinite priority, meaning when there's data in the management traffic data in the control connection queue to go up to the base station, that always goes first. [00:13:54] Speaker 02: It gets first priority over specified time. [00:13:58] Speaker 02: Do you wish to continue or save it? [00:14:00] Speaker 04: I will save two minutes, please. [00:14:04] Speaker 02: Mr. Scorsese. [00:14:08] Speaker 01: Can I please record Mark Scorsese for grapple? [00:14:11] Speaker 00: If you don't mind jumping right in, could you address that point of the 0401st? [00:14:20] Speaker 00: You understand the argument that your opposing counsel is making is predicated on the, well, [00:14:28] Speaker 00: Actually, I guess it's the incorporated by reference provisional application that is cited at page 33 of their brief. [00:14:35] Speaker 00: What's your answer to this argument on prioritization? [00:14:38] Speaker 01: Sure. [00:14:39] Speaker 01: The incorporated by reference provisional application refers to the YMAX standard, one of the IEEE standards out there. [00:14:44] Speaker 01: That information was not included in the specification at all, and it doesn't really relate to a separate control channel being used. [00:14:53] Speaker 00: The material cited on 33 of his brief was not incorporated by reference in the patent. [00:14:59] Speaker 00: It was in the provisional. [00:15:01] Speaker 01: In the provisional, but it wasn't in the specification of the O4O patent. [00:15:05] Speaker 00: Well, but the provisional was incorporated by the patent. [00:15:08] Speaker 01: Yes, Your Honor. [00:15:09] Speaker 01: So in theory, it's part of the disclosure. [00:15:13] Speaker 01: It's part of the specification, in effect. [00:15:15] Speaker 01: In effect. [00:15:16] Speaker 01: OK. [00:15:16] Speaker 00: But I thought you started out saying it wasn't in the specification. [00:15:19] Speaker 00: It is, in effect, in the specification, right? [00:15:21] Speaker 01: It was incorporated by reference in the provisional. [00:15:24] Speaker 01: The provisional is incorporated by reference in the specification, so you're right, it is in the specification. [00:15:28] Speaker 01: I apologize for that. [00:15:30] Speaker 02: The answer should have been yes right from the beginning. [00:15:32] Speaker 00: Yes, Your Honor. [00:15:33] Speaker 00: Okay. [00:15:33] Speaker 00: Now, why is it not helpful to your opposing counsel's position on that? [00:15:38] Speaker 01: That's not part of this invention at all. [00:15:41] Speaker 01: That talks about the YMAX standard and prioritizing control information with respect to data. [00:15:48] Speaker 01: It doesn't talk about a separate control connection that's prioritized via data connection. [00:15:54] Speaker 01: The O4O patent only talks about data connections, and it talks about prioritizing between them. [00:16:00] Speaker 01: The natural reading of priority, as Your Honor indicated, is favoring one over another. [00:16:05] Speaker 01: And here, in order to favor one connection over another, you have to have multiple connections. [00:16:11] Speaker 01: There's no discussion in the O4O patent about controlled connections, other than this incorporation by reference of the WiMEX standard. [00:16:19] Speaker 01: And that, I believe, Your Honor, only talked about control information that could be incorporated within the data. [00:16:25] Speaker 02: And what about the waiver on the other patent? [00:16:29] Speaker 02: And if we don't find waiver, how about the merits? [00:16:33] Speaker 01: So, Your Honor, just to clarify a couple things, in all due respect to Mr. Cody, Weiland never argued that the connections were between the [00:16:42] Speaker 01: wireless communication radio unit and the base station until the summary judgment order was entered by the court for non infringement. [00:16:50] Speaker 01: So this is a new argument. [00:16:52] Speaker 01: And that's sort of clear from looking at the Markman briefs. [00:16:54] Speaker 01: It's clear from looking at the arguments on Markman. [00:16:57] Speaker 01: But the court went ahead and said nonetheless. [00:16:59] Speaker 01: The court said, nonetheless, it didn't believe in the merits. [00:17:03] Speaker 01: And in that regard, it's very similar to the Golden Bridge decision that this court issued. [00:17:07] Speaker 01: In Golden Bridge, there was a motion for reconsideration. [00:17:10] Speaker 01: The judge there said it was waived. [00:17:13] Speaker 01: But this court's Golden Bridge decision references the fact that the judge also denied it on the merits of the argument. [00:17:19] Speaker 00: But that happens frequently. [00:17:21] Speaker 00: It's often the case that a district judge will say, [00:17:23] Speaker 00: I think this issue has been waived. [00:17:25] Speaker 00: But in case the Court of Appeals should disagree with me, and I don't want to get this case back, I'll tell you what I would have done had I not found waiver. [00:17:32] Speaker 00: And then the court decides what the court would have done. [00:17:35] Speaker 00: In that situation, typically we regard that as the first question is, was he right in saying it was waived? [00:17:41] Speaker 00: And we conclude it was right. [00:17:42] Speaker 00: And that's the Golden Bridge case. [00:17:43] Speaker 00: This seems to me to be different in that what the court said was, this came late. [00:17:49] Speaker 00: Nevertheless, [00:17:51] Speaker 00: Without saying I'm finding waiver, I'm predicating my decision at part, at least, on waiver. [00:17:56] Speaker 00: Nevertheless, I'm going to go ahead and address the merits and then finally address the merits. [00:18:01] Speaker 00: Why is that not different from Golden Bridge? [00:18:03] Speaker 00: And why is that not a situation in which we can't rely on a finding of waiver made by the district court? [00:18:09] Speaker 00: We would have to be making a finding of waiver in the first instance. [00:18:13] Speaker 00: Which typically, when a court [00:18:15] Speaker 00: finds that there wasn't waiver, the Court of Appeals is reluctant to say, well, ah, no, no, there was. [00:18:22] Speaker 01: Well, I think in this instance, the court did indicate this was the first time Weiland had braved the argument, then went on to consider it. [00:18:28] Speaker 00: Yeah, but that's not the same thing as saying that I conclude, therefore, that it was waived. [00:18:32] Speaker 00: And that sentence doesn't appear in the court's decision, as I'm reading. [00:18:36] Speaker 00: That is correct, Your Honor. [00:18:37] Speaker 01: But obviously, the most important consideration is the merits consideration, as Your Honor pointed out. [00:18:42] Speaker 01: And I think here it's clear that what we're talking about is a system that has two main components. [00:18:47] Speaker 01: One, it negotiates bandwidth with the base station. [00:18:50] Speaker 01: Once it receives that bandwidth, it allocates it to its user connections. [00:18:53] Speaker 01: And I think the court's construction of UL connections is perfectly in line with the specification, the whole point of this invention. [00:19:02] Speaker 01: And I think that's why their argument fails. [00:19:06] Speaker 01: Here, the point of the specification over and over again is that the users are going to have varying bandwidth demands. [00:19:13] Speaker 01: And in this case, we're talking about sort of an intermediary system. [00:19:17] Speaker 01: an intermediary device that negotiates bandwidth to users. [00:19:20] Speaker 01: Those users could be individuals with a telephone. [00:19:23] Speaker 01: They could be somebody with a laptop. [00:19:25] Speaker 01: They're all eventually needing to get up to the base station. [00:19:28] Speaker 03: So they're making various bandwidth requests and those various bandwidth requests. [00:19:33] Speaker 03: have different priority levels attached to them? [00:19:37] Speaker 03: Is that right? [00:19:37] Speaker 03: Is that what this QoS feature is? [00:19:41] Speaker 01: Yes, so they have various quality of service. [00:19:42] Speaker 01: So for example, a telephone call would have to have continuous bandwidth in order to avoid glitches in the call, whereas an email message or surf in the internet is referred to in the patent as bursty because it can have bursts of data that it needs but it doesn't need a constant data rate. [00:19:58] Speaker 01: Those are the different qualities of service that this intermediary device is negotiating with the different users. [00:20:05] Speaker 01: So the patent talks about the intermediary device getting bandwidth and then figuring out whether to use the bandwidth in the way it had originally intended when it requested it or to use the bandwidth in a different way depending on sort of changed parameters from its various user connections. [00:20:21] Speaker 03: That is to say maybe some more recent data requests came in with a higher urgent priority? [00:20:26] Speaker 01: Exactly right. [00:20:27] Speaker 01: Exactly right. [00:20:28] Speaker 01: And that's the point of the invention is that you have this intermediary device [00:20:31] Speaker 01: that it works as sort of a clearinghouse that requests bandwidth from the base station and allocates it to its various user connections. [00:20:38] Speaker 00: It seems to me perhaps your biggest challenge on this part of the case is the language on claim [00:20:48] Speaker 00: I'm sorry, column one, which defines or at least explains that uplink transmissions are transmissions from the subscriber unit to the base station. [00:21:00] Speaker 00: So the word uplink, at least in that context, is from the CPE to the base station. [00:21:08] Speaker 00: And that's consistent with figure, I guess, [00:21:12] Speaker 00: Yes, Figure 10, which has connections between the CPE and the base station. [00:21:20] Speaker 00: Why isn't that pretty good evidence that that's what's meant by uplink in the phrase uplink connection? [00:21:27] Speaker 01: And you're right, Your Honor, that does appear to be difficult language. [00:21:30] Speaker 01: The issue here really is twofold. [00:21:33] Speaker 01: One, we're talking about uplink transmissions, and this section is talking about the background of the invention. [00:21:39] Speaker 01: It's talking about the priority. [00:21:40] Speaker 01: It's using subscriber unit in a different way than we're using subscriber unit within the claim. [00:21:45] Speaker 03: I was getting confused about that. [00:21:46] Speaker 03: I was wondering about this term, wireless radio subscriber unit. [00:21:51] Speaker 03: I mean, to me, when I first read the claim, it sounded like, oh, we're talking about the cell phone. [00:21:56] Speaker 03: And then only after a while did I figure out [00:21:59] Speaker 03: Okay, they're using a term that I would have thought meant the end user cell phone, and they're really talking about something that's an intermediary. [00:22:06] Speaker 03: Now maybe the intermediary is in the cell phone, as they argue, but nevertheless, it's some in-between device. [00:22:13] Speaker 01: Right, yeah, and the term wireless subscriber radio unit was actually construed by the court, and that construction has not been... Well, when I looked up earlier on column one, I see something like... [00:22:25] Speaker 03: Starting at line 36, the key objective of these wireless communication systems is to provide communication channels on demand between [00:22:34] Speaker 03: plurality of subscriber units and their respective base versions in order to connect a subscriber unit user with the fixed network infrastructure. [00:22:44] Speaker 03: So to me, when it's talking about a subscriber unit user, at least at this point in the patent, before it introduces the concept of a CTE, I thought they were talking about subscriber unit being the actual [00:22:59] Speaker 03: the actual end user. [00:23:00] Speaker 01: Right, and that's what they were talking about in the prior art. [00:23:02] Speaker 01: The subscriber unit was a user on, I believe it says one example of a user on a cell phone, for example, is a subscriber unit. [00:23:09] Speaker 03: And then when it talks about transmissions from the subscriber unit to the base station are commonly referred to as uplink transmission. [00:23:16] Speaker 03: Right. [00:23:16] Speaker 03: I mean, when you use the phrase commonly referred to, it's like the background knowledge in this area [00:23:22] Speaker 03: an uplink is not between an intermediary and a base station. [00:23:26] Speaker 03: The uplink is all the way from the beginning point where the data request is coming from, i.e. [00:23:32] Speaker 03: the cell phone user and the base station. [00:23:34] Speaker 03: That's an uplink. [00:23:35] Speaker 01: And that was the prior art system, was the cell phone user to the base station, that's the uplink direction. [00:23:40] Speaker 00: But the invention was... But that wouldn't be consistent then with, I take it, the construction that the trial court gave, which was the connection, the uplink connection is the connection between [00:23:51] Speaker 00: the user and the subscriber radio unit, not counting the further distance to the base station, right? [00:23:59] Speaker 00: Well, we have a new subscriber radio unit now, so essentially instead of the old... Right, but either way, regardless of what you regard the subscriber radio unit, it's meaning the quartz construction did not get you all the way to the base station. [00:24:12] Speaker 01: Right, the quartz construction was talking about the UL connections because it was focused on the connections that were going to be prioritized. [00:24:20] Speaker 01: The core concern, UL connections. [00:24:24] Speaker 01: To mean the connections between the... Between the users and users and the subscriber radiating. [00:24:35] Speaker 00: But not any part of the connection between the subscriber radiating and the base station. [00:24:40] Speaker 01: When the patent talks about uplink transmissions, it's talking about transmissions going from the subscriber unit to the base station in that direction. [00:24:47] Speaker 01: Here the court construed UL connections as an uplink connection between the wireless subscriber radio unit and its users. [00:24:54] Speaker 01: Because the idea behind the patent is you get bandwidth from the base station and you prioritize these connections. [00:24:59] Speaker 01: Those connections are uplink connections. [00:25:02] Speaker 01: They may not be the complete uplink path, but they're certainly uplink connections that need to be prioritized by this invention. [00:25:09] Speaker 01: Where the confusion comes in is the parties in a... The confusion seems to come in from the Patent Claims Act. [00:25:16] Speaker 03: where they're using terms in different ways. [00:25:20] Speaker 03: Now they want to use the term uplink in the context of something that's going on between the intermediary and the base station, whereas uplink, your position is, it's the other half. [00:25:32] Speaker 03: It's not B to C, it's A to B, from the end user to the intermediary. [00:25:38] Speaker 03: That's correct. [00:25:39] Speaker 03: I mean, we're at a loss that we're not going to be able to use the traditional understanding of uplink [00:25:46] Speaker 03: when it comes to this particular chosen drafted term, uplink connections. [00:25:52] Speaker 01: And that's correct, Your Honor, and I think that that confusion is throughout the patent. [00:25:55] Speaker 01: The patent never uses the term, for example, UL connections. [00:25:58] Speaker 01: What counsel pointed to in column one was uplink trans... You mean in specs, it doesn't plan. [00:26:04] Speaker 01: Exactly right, that's the aspect. [00:26:05] Speaker 01: And claim one uses two terms, wireless communication radio unit and wireless subscriber radio unit to mean the same thing. [00:26:15] Speaker 01: So the wireless communication radio unit and the wireless subscriber radio unit are this intermediary device. [00:26:21] Speaker 01: council in its briefs calls all of those subscriber units, which again is I think confusing because the subscriber unit term relates to sort of a piece of prior art and what both parties have done by using the term subscriber unit as shorthand for this I think have added to the confusion there. [00:26:43] Speaker 00: So what is the very best evidence [00:26:45] Speaker 00: intrinsic evidence, what is the best piece of intrinsic evidence that supports your construction of UL connection as being between the end user and the subscriber radio unit? [00:26:59] Speaker 01: Well, I would point the court to the patent at column four. [00:27:06] Speaker 01: This is in the joint appendix at 57, and we're looking at page 74. [00:27:15] Speaker 01: It talks about at line 34, the CPE being responsible for distributing the allocated uplink bandwidth in the manner that accommodates the services provided by the CPE. [00:27:27] Speaker 01: So the CPE is connected to a number of services. [00:27:30] Speaker 00: And uplink bandwidth is the bandwidth between the CPE and the base station, right? [00:27:35] Speaker 00: It's the bandwidth grant, yes, between the CPE and Baystage. [00:27:41] Speaker 01: Right, and then the CPE is allocating that bandwidth to its various services. [00:27:50] Speaker 01: says the CPE advantageously determines which services to give bandwidth to and which services must wait for subsequent bandwidth. [00:27:57] Speaker 01: So the CPE is allocating that bandwidth to its various services. [00:28:00] Speaker 00: And that's the bandwidth between the CPE and the base station. [00:28:03] Speaker 00: Right. [00:28:03] Speaker 00: So we're still talking about CPE to base station. [00:28:05] Speaker 00: We aren't talking about CPE to end users, right? [00:28:10] Speaker 01: We're talking about bandwidth that's given to the connections that the CPE has to its [00:28:15] Speaker 00: Right, the data that's queued up right there at the CPE. [00:28:19] Speaker 00: But we're not, so far we're not talking about anything happening as far as I can see between the CPE and the end users, right? [00:28:26] Speaker 01: We're talking about, yes, we're talking about giving that bandwidth to the various connections. [00:28:31] Speaker 00: So I'm not seeing why that passage tells me that uplink connections refers not to the portion between the CPE and the base station, but rather the portion between the CPE and the end users. [00:28:44] Speaker 01: Well, because there's no way to give priorities to those various services, to those various users, without considering those connections that you have to the users. [00:28:55] Speaker 01: I think if I could point the court to Figure 10. [00:29:00] Speaker 01: Figure 10 was a diagram that the council highlighted in their briefs. [00:29:04] Speaker 01: But this shows multiple connections between the CPE and its users, and it shows a single connection between the CPE and the base station. [00:29:14] Speaker 00: I see the multiple connections between the CPE and the base station being connection N, connection K, and connection N, K, and I guess it's N is the other one. [00:29:30] Speaker 00: CPE higher layers, CPE Mac, those aren't end users, right? [00:29:35] Speaker 01: I know my time is up. [00:29:36] Speaker 01: May I have additional time to answer the question? [00:29:40] Speaker 01: So this is a timing diagram, and it shows a sequence of messages that happen in the system. [00:29:47] Speaker 01: By following the timing diagram, what you see here are the multiple connections coming into the CPE that are data connections. [00:29:53] Speaker 01: And that data is being sent to the base station in a serial fashion based on the allocation of [00:30:00] Speaker 01: priority to the connection. [00:30:02] Speaker 01: So if you start at the top of the diagram you'll see reading from the right to the left data on connection N is coming into the CPE and that data is being sent up to the base station. [00:30:14] Speaker 01: Then the CPE gets data on connection K so it gets data from a second user connection. [00:30:20] Speaker 01: At that point it needs additional bandwidth and so it needs to make a bandwidth request. [00:30:26] Speaker 01: It sends a POMI bit, it sets a bit in the data that's being sent that it received on connection N, and it gets bandwidth back from the base station. [00:30:36] Speaker 00: I understand that... Then it sends its data... But that's all activity that goes on between the CPE and the base station. [00:30:43] Speaker 01: Well, the data comes in on the connections N and K to the CPE. [00:30:48] Speaker 00: Prior to getting to the point at which the CPE has the data and is getting ready to send it upstream, [00:30:55] Speaker 00: that something has to happen. [00:30:56] Speaker 00: But that's not what this diagram is concerned with, as far as I can see. [00:31:00] Speaker 00: This figure is concerned with what happens once the data is sitting in the CPE and is ready to be transferred to the base station. [00:31:07] Speaker 00: Isn't that right? [00:31:08] Speaker 01: Well, the data comes into the CPE on various data connections. [00:31:12] Speaker 01: Then the data that comes in on those connections is sent up to the base station. [00:31:16] Speaker 00: Right, and somebody inputs the data into the machine, and this figure has nothing to do with who's inputting it and how it gets inputted. [00:31:26] Speaker 00: This has to do with what happens between the CPE and the base station. [00:31:30] Speaker 00: It seems to me I'm not seeing anything else. [00:31:31] Speaker 01: So this shows data being input to the CPE on two connections, and that's the whole point of the invention, is prioritizing amongst those connections. [00:31:39] Speaker 02: Thank you, Mr. Skauzy. [00:31:41] Speaker 02: Mr. Cote has a couple of minutes. [00:31:45] Speaker 03: Can we do a textual treatment of the claim from 640? [00:31:51] Speaker 03: I mean, the claim at a certain point talks about uplink bandwidth, uplink bandwidth branch, right? [00:31:59] Speaker 03: Correct. [00:32:00] Speaker 03: And everybody agrees that refers to the pathway between the wireless radio subscriber unit and the base station. [00:32:08] Speaker 03: Correct. [00:32:08] Speaker 03: Right? [00:32:09] Speaker 03: And then there's this term uplink connections, also used in the claim. [00:32:14] Speaker 03: Why wouldn't that necessarily be something else other than the uplink bandwidth? [00:32:22] Speaker 04: The uplink bandwidth is essentially a frame that you're given by the base station to put your data in as the CPU. [00:32:30] Speaker 04: and then you send that data on the uplink connection. [00:32:33] Speaker 04: So uplink bandwidth is the frame that you're given to send your data in at the CPU. [00:32:38] Speaker 04: It can be small or big depending on how much data you need as a CPU. [00:32:42] Speaker 04: You pack your data in and you send it on the uplink connection to the base station. [00:32:49] Speaker 04: The spec is, for example, if we go to JA79, which is column 13, lines 16 to 18. [00:33:06] Speaker 03: part of the uplink bandwidth rather than something that's different from the uplink bandwidth? [00:33:11] Speaker 04: The uplink bandwidth basically is the allocation of, it's the frame of data. [00:33:18] Speaker 04: Alright, let's go to the specifications. [00:33:20] Speaker 04: So if you go to column 13, lines 16 to 18, you see it states the CPE, the radio unit, will then begin transmitting data to the base station over the uplink, which we now know is defined as between, the connection between the radio unit [00:33:35] Speaker 04: and the base station. [00:33:37] Speaker 00: It would be easier if the word connection had shown up at that point. [00:33:40] Speaker 04: Well, it's expressly defined in the patent and I can take you through a larger list. [00:33:44] Speaker 00: Our point is that connection is not. [00:33:48] Speaker 04: Transmission is but connection is not but they're synonymous to one of skill in the art. [00:33:53] Speaker 03: Well, we don't we don't know that So yeah, I mean this is a patent that's very carefully drafted Okay, so your these are terms that are not classic terms of art These are terms that are being drafted for a specific purpose a purpose that we're struggling to glean and [00:34:11] Speaker 04: So probably the, you know, just to drive home the point, at these line items, it's talking about transmitting the data over the uplink using the bandwidth that's been allocated. [00:34:21] Speaker 04: If you go to claim five of the six furrow, you'll see the UL connections are connections that are established at the radio unit. [00:34:31] Speaker 03: Right. [00:34:32] Speaker 03: It could be a connection between the radio subscriber radio unit and the end user. [00:34:39] Speaker 04: Well, not in the context of the patent. [00:34:40] Speaker 04: The patent never speaks about an end-user connection. [00:34:43] Speaker 04: You will not find it anywhere in the patent. [00:34:46] Speaker 04: Never mention of an end-user connection. [00:34:48] Speaker 04: The entire patent, even figure 10... It's true, though. [00:34:50] Speaker 03: In order to have a true uplink, you have to have a transmission pathway all the way from the end-user phone up to the base station, right? [00:35:02] Speaker 03: And so there's going to have to be... That includes the [00:35:06] Speaker 03: the piece from the end user application through the intermediary and then up to the base station. [00:35:13] Speaker 04: Well, it's the same concept. [00:35:14] Speaker 04: That's the answer to yes, right? [00:35:18] Speaker 03: No. [00:35:19] Speaker 04: In the context of the patent note, in the ordinary sense, yes. [00:35:22] Speaker 04: If I go to deliver a package or bring it to FedEx, they put it on the plain and send it. [00:35:25] Speaker 03: Okay, so now we're looking at this claim and we're trying to figure out what is being accomplished here. [00:35:30] Speaker 03: The entire purpose of this is for end users to be able to make data requests and get the bandwidth from the base stations in order to do that. [00:35:41] Speaker 03: And also those data requests have various priority levels. [00:35:44] Speaker 03: That's QOS. [00:35:46] Speaker 03: And so now for the highest QOS, the highest priority level data request demand, those data requests need pathways to be Johnny on the spot. [00:35:57] Speaker 03: And then there's another ranking where there's a medium level of priority, and then there's probably something below that that's more lower priority. [00:36:05] Speaker 04: So if you look at the claim, it talks in the last element of maintaining a plurality of Qs. [00:36:10] Speaker 04: Those are the payloads. [00:36:11] Speaker 04: They sit in the radio unit. [00:36:13] Speaker 04: Data comes from end users. [00:36:16] Speaker 04: Not necessarily, just like your package goes to the FedEx store to get on the plane. [00:36:21] Speaker 04: But the uplink connection and the uplink bandwidth are about the service. [00:36:26] Speaker 04: But that chip, that communication chip provides, it is a service provider for the carrier. [00:36:31] Speaker 03: They put it in the phone and it gets data. [00:36:35] Speaker 03: When we look at the claim, it talks about UL connections with similar QoS. [00:36:41] Speaker 03: Each queue for data, each data queue pertaining to one or more UL connections with similar QoS. [00:36:49] Speaker 03: So that means necessarily a UL connection must have an associated QoS. [00:36:55] Speaker 03: Priority. [00:36:57] Speaker 03: So I don't understand how your understanding of UL connections being between the intermediary and the base station. [00:37:07] Speaker 03: How do all those various connections have a QoS? [00:37:12] Speaker 04: It's simple. [00:37:14] Speaker 04: The one queue can be for video data. [00:37:17] Speaker 04: Another queue in the radio unit can be for voice data, phone service. [00:37:21] Speaker 04: A third queue will be for control data, traffic management. [00:37:24] Speaker 04: They sit and they get data from wherever it comes from. [00:37:27] Speaker 04: The patent doesn't speak anywhere about where it comes from, the kind of connection. [00:37:31] Speaker 04: It speaks about providing a service, a chip or a standalone device that talks the language of the carrier network that will take data from wherever it gets it, put it in its queues. [00:37:40] Speaker 04: Each queue will be a service. [00:37:42] Speaker 04: It will be a service having a certain bitrate priority, quality of service it needs to provide, just like you could think of one queue as an overnight delivery and another as... We're talking about your understanding of UL connections. [00:37:54] Speaker 03: No, the patents. [00:37:55] Speaker 03: Okay, the patents. [00:37:56] Speaker 03: I'm going to just say yours for now. [00:37:58] Speaker 03: Your understanding of UL connections. [00:38:02] Speaker 03: is between the base and the wireless subscriber radio unit. [00:38:06] Speaker 03: So therefore, in order for the claim language to fit in your theory, each of those pathways, connections between the intermediary and the base station, has an associated QoS. [00:38:21] Speaker 03: So does that mean, I should envision in my mind there's one connection pathway for video, there's one connection pathway for text. [00:38:35] Speaker 03: The problem I have with that is that priority levels, you want the video to go first, always. [00:38:48] Speaker 03: You want to use whatever pathways that are available between the intermediary and the base station in order to get all those high priority [00:38:56] Speaker 03: data streams up to the base station first, then whatever comes next, maybe email, then those medium priority level data transmissions go next and so on and so forth. [00:39:09] Speaker 03: I don't understand why you would have one pipeline that's devoted just to high QoS and then a separate pipeline going simultaneously for a medium priority level QoS. [00:39:25] Speaker 04: In the way it works, there's a single physical connect channel, wireless channel. [00:39:31] Speaker 04: And you get a frame. [00:39:32] Speaker 04: You can think of it like a truck. [00:39:33] Speaker 04: It'll have a certain size to it. [00:39:35] Speaker 04: And then, depending on the priority, the CP or radio unit will pack the video data in first. [00:39:41] Speaker 04: And if there's still room in the truck, it will pack the next queue, which might be voice data in the truck. [00:39:47] Speaker 04: And so, it creates these logical uplink connections? [00:39:50] Speaker 04: Is that referred to? [00:39:51] Speaker 03: No, that's what I don't understand. [00:39:52] Speaker 03: According to the claim, each UL connection must have an associated QoS. [00:40:00] Speaker 03: Well, it does because... Each data queue pertaining to one or more UL connections with similar QoS. [00:40:06] Speaker 04: So the uplink connections are basically referred to in the patent as... If you go to figure... [00:40:16] Speaker 04: two of the patent. [00:40:20] Speaker 04: You actually get a frame, what's called an uplink frame. [00:40:25] Speaker 04: And those are physical slots where you put data. [00:40:29] Speaker 04: And each one, in each connection, or each two, gets a portion of that uplink frame. [00:40:38] Speaker 04: It's considered an uplink, this uplink frame has a collection of uplink connections. [00:40:45] Speaker 04: Each connection is associated with a different cue or quality of service.