[00:00:03] Speaker 01:
Good morning, ladies and gentlemen.

[00:00:05] Speaker 01:
We have a number of cases up for today.

[00:00:10] Speaker 01:
We have a case from appeal from a jury verdict out of the District of Delaware.

[00:00:16] Speaker 01:
We have an appeal from a transfer of an action that started as an appeal from interference proceeding was filed in the Northern District of California and ultimately transferred to this court.

[00:00:31] Speaker 01:
We have an appeal from the Court of Veterans Affairs and an appeal from the trial and appeal board arising out of a reexamination decision.

[00:00:41] Speaker 01:
We also have two related cases appealing from decisions of the Merit System Protection Board, the last two being submitted on the briefs.

[00:00:51] Speaker 01:
The first case up today is case number 15, 1992, Comcast IP Holdings versus Sprint Communications Company and Mr.

[00:01:02] Speaker 01:
Re-appel?

[00:01:03] Speaker 04:
Yes, Your Honor.

[00:01:04] Speaker 01:
Did I pronounce that correctly?

[00:01:05] Speaker 01:
You want three minutes for rebuttal?

[00:01:07] Speaker 01:
Yes, Your Honor.

[00:01:07] Speaker 01:
OK.

[00:01:08] Speaker 01:
All right, you may begin.

[00:01:14] Speaker 04:
May it please the Court.

[00:01:15] Speaker 04:
SPRINT has raised the following four errors, which I would like to discuss today.

[00:01:22] Speaker 04:
First, the district court erred when it construed the term switched telecommunication system in the 008 patent.

[00:01:31] Speaker 04:
in such a way that it allowed Comcast to argue that packet-based systems are included in the definition of switched telecommunication systems.

[00:01:42] Speaker 04:
As the specification in the 008 itself indicated, packet-based systems are fundamentally different than switched telecommunication systems because switched telecommunication systems require a predetermined channel over which a call flows

[00:01:58] Speaker 04:
while the hallmark of a packet-based system is that they do not have predetermined channels.

[00:02:05] Speaker 01:
Well, isn't the point of the claim construction that it's not an either-or proposition, that you can have a hybrid, essentially?

[00:02:16] Speaker 04:
Not for the definition of switched telecommunication system.

[00:02:19] Speaker 04:
If you look at column one of the specification in the 008,

[00:02:24] Speaker 04:
The inventor draws a distinction between switched telecommunication system and communication system and explicitly separates out datagram or packet-based systems from being a part of switched telecommunication systems.

[00:02:43] Speaker 01:
Again, it isn't the...

[00:02:45] Speaker 01:
I'm not sure you answered my question, but I thought that what was happening there is they separate out package systems that are entirely package systems.

[00:03:00] Speaker 01:
In other words, is there such a thing as a hybrid?

[00:03:03] Speaker 04:
I believe there could be a hybrid because it was listed in the specification as specifically not being part of what was part of the invention of the 008.

[00:03:13] Speaker 04:
The specification talks about how the

[00:03:15] Speaker 04:
the computer-based or the packet-based system has to be logically separate from the switched telecommunication system.

[00:03:23] Speaker 04:
What the construction that the court imposed, by including elements, by allowing elements of a packet-based system to be included in the definition of a switched telecommunication system, it then

[00:03:40] Speaker 04:
undercut the claim language in claims 1, 13, and 27.

[00:03:45] Speaker 03:
What prevents a telecommunication system from having both switches and the datagram-based elements?

[00:03:53] Speaker 04:
But nothing prevents it.

[00:03:55] Speaker 04:
A telecommunication system can have both elements.

[00:03:59] Speaker 04:
However, the patent here does not cover an invention

[00:04:04] Speaker 04:
for both elements.

[00:04:05] Speaker 04:
The patent here covers an invention in which you can use internet addressing information.

[00:04:12] Speaker 04:
In this case, it was domain name system information to get the address information.

[00:04:17] Speaker 04:
But the patent claims and the specifications specifically require that that call go from a calling party all the way to a call destination.

[00:04:27] Speaker 04:
It can't dip into the packet-based system.

[00:04:34] Speaker 04:
The patent does not set up a system in which the packet-based system carries the call.

[00:04:39] Speaker 04:
Only the switched telecommunication system can carry the call.

[00:04:43] Speaker 02:
I guess the district court read it differently, right?

[00:04:45] Speaker 02:
And said that when it talked about a switched telecommunication system, the patent was simply requiring you need switches.

[00:04:54] Speaker 02:
And a communication system doesn't necessarily need switches.

[00:04:57] Speaker 02:
And so in that sense, that's why a communication system

[00:05:02] Speaker 02:
defined and expressed in the spec is something that is a broader concept than switch telecommunication system.

[00:05:09] Speaker 02:
It is.

[00:05:09] Speaker 02:
And then the other side points out that the definition provided in column one uses the term comprising.

[00:05:18] Speaker 02:
Switch telecommunication system comprising switches in a bearer channel better bearer network.

[00:05:26] Speaker 04:
And the specification does, your honor, use the term comprising, but you can include an element

[00:05:32] Speaker 04:
after the comprising that undercuts it.

[00:05:35] Speaker 04:
Let me use an analogy.

[00:05:36] Speaker 04:
You can't have a term vegetarian sandwich comprising bread, cheese, and lettuce, and then come and say a sandwich that has meat in it is part of that, because meat completely undercuts that.

[00:05:50] Speaker 04:
That's exactly what's happening here.

[00:05:51] Speaker 02:
I think I'd agree with you on that, on your analogy, but here in the patent, the whole thrust of the patent, the illustrations, they're all about this

[00:06:02] Speaker 02:
combination, some merger and intermixing of telecommunication systems and the internet in order to transmit calls using IP addresses.

[00:06:13] Speaker 02:
So the whole character of the patent is about some mixing and matching.

[00:06:20] Speaker 04:
It is, but what it's actually doing is it's using the addressing information from the internet system.

[00:06:28] Speaker 04:
to then transmit the call.

[00:06:30] Speaker 04:
And this is what the claims, the claim language itself, for example, if you look at claim one, to go from a calling party to a call destination through the switch telecommunications system.

[00:06:41] Speaker 01:
So is your argument that you can't have a hybrid for this patent dependent upon your argument about what a call destination is?

[00:06:51] Speaker 04:
So no, it is not contingent.

[00:06:54] Speaker 01:
You've now twice used that as your explanation as to why this can't be a hybrid.

[00:07:00] Speaker 04:
Maybe I'm misunderstanding the court's question then.

[00:07:03] Speaker 01:
Well, you're saying it can't be a hybrid in this

[00:07:06] Speaker 01:
patent because your call destination has to be the end user.

[00:07:10] Speaker 01:
So I'm saying, is your argument that the call destination has to be the end user, is that necessary to your argument that this can't be a hybrid?

[00:07:18] Speaker 04:
It is not, Your Honor.

[00:07:19] Speaker 04:
Sprint's position is not contingent that a call destination has to be the end user.

[00:07:25] Speaker 04:
The issue here is not a call destination versus the call destination.

[00:07:31] Speaker 04:
The issue here, which is a result of the claim construction,

[00:07:35] Speaker 04:
that it can't be the issue of a call destination versus no call destination.

[00:07:40] Speaker 04:
What Comcast was able to do based on the claim construction was take that and then have calls go from a calling party to any point along the way in the call path.

[00:07:54] Speaker 04:
And this rendered the term meaningless as the district court recognized and tried to correct the opposed verdict by giving a claim construction or call destination afterwards.

[00:08:05] Speaker 01:
Well, I mean, that's your position.

[00:08:07] Speaker 01:
I mean, your friend on the other side is going to argue that, no, all that the district court did was to say that this, in fact, was the claim of construction all along, and that it is not simply a situation where it's any point along the system.

[00:08:25] Speaker 04:
But on the call destination point, Your Honor, their expert and the evidence they put on was it is any point where a call is routed to.

[00:08:35] Speaker 04:
So that is any point along the call path, because that's what happens with a call.

[00:08:39] Speaker 04:
It gets routed to this point, and it gets routed to this point, and then it gets routed to this point.

[00:08:43] Speaker 04:
So it is any single point, any point along the call path.

[00:08:48] Speaker 04:
And that's why I rendered it meaningless.

[00:08:49] Speaker 04:
If every single point along a call path is a call destination, then there is no call destination.

[00:08:54] Speaker 01:
Well, if it's going to be rerouted, it's a destination for rerouting, right?

[00:09:00] Speaker 04:
But I'm not sure there's any rerouting here.

[00:09:02] Speaker 04:
The call is going from.

[00:09:04] Speaker 04:
One point all the way eventually is going to reach a calling party, hopefully.

[00:09:09] Speaker 04:
But the calling party, our position is not contingent upon the calling party having to be the call destination.

[00:09:17] Speaker 04:
But what happened with the construction here in this case, and which allowed Comcast to argue, is that Sprint was found to infringe based on calls that went from a calling party to a box in the middle of Sprint's network.

[00:09:31] Speaker 04:
And that's what happened here.

[00:09:33] Speaker 04:
And that was allowed by the claim construction on switched telecommunication systems, because then they could argue that those calls did not have to go over a traditional switched telecommunication system, but they could have them going over a packet-based system.

[00:09:51] Speaker 04:
I think maybe the way to think about this is Comcast proposed, and the court accepted that A is a switched telecommunication system.

[00:10:03] Speaker 04:
B is a datagram system.

[00:10:05] Speaker 04:
It says B is not A. And that's what the court agreed.

[00:10:09] Speaker 04:
What Sprint proposed, because they could see what was going to happen, is that A is a telecommunication system.

[00:10:16] Speaker 04:
And B cannot be part of A. And that's what Sprint proposed, because they saw that that's what we're going to try to do.

[00:10:25] Speaker 04:
And that undercuts the claim language and the specification of what was being done here.

[00:10:30] Speaker 04:
Because now, the effect of this is immense.

[00:10:33] Speaker 04:
A patent that was originally covering sending calls over a switch telecommunication system, a traditional system, using internet addressing, now covers any telecommunication system that uses any internet addressing anywhere.

[00:10:51] Speaker 04:
And it now covers almost all telecommunication systems.

[00:10:54] Speaker 04:
And that's what's happening here.

[00:10:56] Speaker 04:
This patent now claims goes over the entire breadth.

[00:11:02] Speaker 03:
Can you address a prejudgment interest issue?

[00:11:06] Speaker 04:
I can, Your Honor.

[00:11:07] Speaker 04:
Let me get to that.

[00:11:09] Speaker 04:
The question on the prejudgment interest, the question is clear.

[00:11:15] Speaker 04:
Can Comcast recover prejudgment interest for a period of time when two of the three patents at issue did not exist?

[00:11:26] Speaker 03:
Let me see if I understand some of the procedures correctly.

[00:11:32] Speaker 03:
The parties agreed that there would be a single hypothetical negotiation.

[00:11:37] Speaker 04:
For the purpose of your question, I will say yes.

[00:11:41] Speaker 03:
OK.

[00:11:41] Speaker 03:
And then the parties also agreed that any award by the jury would be based on a lump sum basis.

[00:11:47] Speaker 04:
That is correct.

[00:11:49] Speaker 04:
That is correct.

[00:11:50] Speaker 03:
So why did you agree to that?

[00:11:52] Speaker 03:
I mean, I think that those two, your participation in that really battles against your argument today.

[00:12:00] Speaker 04:
And I can understand why the court feels that way.

[00:12:04] Speaker 04:
The Comcast position, which the district court agreed to, is that it relies on the hypothetical negotiation and the book of wisdom.

[00:12:13] Speaker 04:
And that's what they're basing on.

[00:12:14] Speaker 04:
But the hypothetical negotiation and the book of wisdom are judicial constructs.

[00:12:20] Speaker 04:
They are tools used to approximate the damages that occur from infringement.

[00:12:26] Speaker 04:
But as judicial constructs, they cannot trump

[00:12:29] Speaker 04:
and that's Trump with a small t. They cannot trump the statutory requirement that a patent t cannot collect damages.

[00:12:38] Speaker 01:
But even if we accept the proposition that there's a difference between the damages calculation and the prejudgment interest calculation, where you have agreed that the damages for the 916 would be reflected in a 2006 hypothetical negotiation and a lump sum royalty

[00:12:57] Speaker 01:
Why isn't it appropriate for the trial court to award prejudgment interest for the 916 all the way back to that point in time?

[00:13:06] Speaker 04:
We do not object to that.

[00:13:08] Speaker 04:
The 916 is the original patent that it issued.

[00:13:11] Speaker 01:
Right.

[00:13:11] Speaker 01:
So you're just objecting to the fact that he referred to those other two patents in the order, because the reality is he could have awarded the exact same amount on the 916.

[00:13:22] Speaker 01:
In fact, would have had to have.

[00:13:24] Speaker 04:
Except that the evidence at trial

[00:13:26] Speaker 04:
The Comcast saw $16.5 million.

[00:13:30] Speaker 04:
That $15 million of that was attributable to the 008 patent, which didn't exist.

[00:13:35] Speaker 01:
Well, the jury obviously didn't accept Comcast's apportionment argument.

[00:13:38] Speaker 01:
Instead, the jury awarded $7.5.

[00:13:41] Speaker 04:
We don't know if the jury accepted the apportionment argument.

[00:13:44] Speaker 01:
Of course we don't know what the jury did, because you guys agreed to a lump sum.

[00:13:48] Speaker 01:
figure, and you didn't ask for any kind of special interrogatories about the apportionment.

[00:13:56] Speaker 01:
So we can't get into that.

[00:13:59] Speaker 01:
All we know is that for the 916, there was a lump sum amount, putting aside the other two patents.

[00:14:09] Speaker 04:
But we don't know what the lump sum amount was for the 916.

[00:14:14] Speaker 04:
We know that all three patents

[00:14:16] Speaker 04:
that using the tools, the judicial constructs, the book of wisdom, and the hypothetical negotiation, they came up with an approximation of what the damages would be.

[00:14:25] Speaker 04:
Those damages were awarded after.

[00:14:27] Speaker 04:
They're based on a construct based before.

[00:14:30] Speaker 04:
But now what Comcast has come back and said is we want prejudgment interest in all three of these.

[00:14:36] Speaker 04:
This is what the group one case stands for.

[00:14:39] Speaker 04:
In the group one case,

[00:14:41] Speaker 04:
The court said you can't collect pre-judgment interest on a patent that has expired.

[00:14:52] Speaker 04:
And that's exactly what they're trying to do.

[00:14:54] Speaker 04:
They're trying to collect pre-judgment interest on a patent before it existed.

[00:14:58] Speaker 04:
I see that I'm well into my rebuttal.

[00:15:00] Speaker 01:
Yes, you are.

[00:15:00] Speaker 01:
We'll give you three minutes.

[00:15:02] Speaker 01:
Three minutes.

[00:15:03] Speaker 01:
And we'll give the other side an extra two minutes, if necessary.

[00:15:07] Speaker 01:
That's not inviting you to use it, just saying you've got it.

[00:15:10] Speaker 00:
I appreciate the boundaries, Your Honor.

[00:15:12] Speaker 00:
Good morning and may it please the Court.

[00:15:15] Speaker 00:
Matthew Lear of Davis Polk for Comcast.

[00:15:17] Speaker 00:
I'm going to deviate from my prepared remarks and get right to two observations that Judge O'Malley and Judge Chen made with respect to switched telecommunication network.

[00:15:27] Speaker 00:
It's crystal clear in the specification that a switched telecommunication network is distinct from a communications system.

[00:15:36] Speaker 00:
And a communications system is

[00:15:39] Speaker 00:
can be a datagram entirely based system.

[00:15:42] Speaker 00:
I think that was your point, Judge O'Malley.

[00:15:45] Speaker 00:
And you asked the question, why can't a switch telecommunication system be a hybrid?

[00:15:49] Speaker 00:
It can't.

[00:15:50] Speaker 00:
That's precisely what this patent is about.

[00:15:53] Speaker 00:
And Judge Chen, you asked the question, isn't that the whole intent of this patent?

[00:15:58] Speaker 00:
If you have basically a switch telecommunication system end to end, you're sort of undermining the entire point of this patent, which is to merge

[00:16:08] Speaker 00:
internet technology with existing switch telecommunications networks.

[00:16:12] Speaker 02:
I guess the other side would say, well, what the real intent is, is to use aspects of the internet computer network to help along a switch telecommunications system.

[00:16:23] Speaker 02:
That's purely something like a PTSD.

[00:16:26] Speaker 00:
Your Honor, I actually see it differently based on their appeal papers.

[00:16:30] Speaker 00:
What they argue in their appeal is that a switch telecommunications system has to be a predetermined bearer channel

[00:16:37] Speaker 00:
from end to end.

[00:16:40] Speaker 00:
They didn't argue that below.

[00:16:43] Speaker 00:
And the way I understand that is that they're allowing for no interconnection between a packet-based system and a switch telecommunications network.

[00:16:54] Speaker 00:
Your Honor noted that the express definition that was partially agreed to by the parties says that a switch telecommunication network comprises

[00:17:05] Speaker 00:
switches etc etc which of course means under bedrock federal circuit law that it can comprise other things and then the question becomes what other things?

[00:17:16] Speaker 00:
We say in our brief that figure 15 shows the interconnection between a switch telecommunication network and a packet based system.

[00:17:26] Speaker 02:
What are we supposed to take from other places in the spec?

[00:17:29] Speaker 02:
I mean you're the side

[00:17:31] Speaker 02:
cited to them about how a computer network is distinct from a telecommunication system.

[00:17:36] Speaker 02:
Well, as we pointed out... They're almost saying, essentially saying, computer network does not equal a telecommunication system.

[00:17:44] Speaker 00:
Your Honor, in the section that you're referring to, which is in the summary of the invention, what that's saying is that these URI determining computers are distinct from a switched telecommunication system, but that just goes to

[00:17:58] Speaker 00:
setting up a call, it doesn't say whether you can't have a datagram-based system somewhere along the way in the path of a call.

[00:18:08] Speaker 00:
So we don't believe there's any disparagement or disavowal of the hybrid system that Judge O'Malley posited at the beginning.

[00:18:16] Speaker 00:
The other place they cite, Your Honor, is in the background of the invention, where they talk about these daisy chain systems that existed prior to the low inventions.

[00:18:26] Speaker 00:
And our point there is what Mr. Lowe and his co-inventors said is these old daisy chain things, they're different from what we're doing here.

[00:18:35] Speaker 00:
And it's not a disavowal.

[00:18:39] Speaker 00:
It's exactly the opposite.

[00:18:40] Speaker 00:
It's saying, let's try to merge the new internet technologies with old PSTN technologies.

[00:18:47] Speaker 00:
And we believe figure 15 demonstrates that conclusively.

[00:18:53] Speaker 00:
Let me turn to call destination, unless your honors have any other questions about switch telecommunication system.

[00:19:00] Speaker 02:
The other side in their great brief pointed out that your reference to PLMNs as, you know, allegedly using some database system isn't persuasive because that SS7 is just being used for text messaging and not voice calls.

[00:19:21] Speaker 00:
I have to say, Your Honor, that's not my favorite reference for us to support our view.

[00:19:26] Speaker 00:
I mean, there is an argument that SMS is in the broad definition of a call.

[00:19:31] Speaker 02:
I was wondering if, did column two refers to the SS7 protocol too, as well?

[00:19:38] Speaker 02:
I was wondering if you had any understanding of what column two was talking about when it talks about the SS7 protocol for inter-exchange call control signaling.

[00:19:49] Speaker 00:
I'll get out over my technological skis quickly.

[00:19:53] Speaker 00:
My understanding, Your Honor, is the SS7 is simply a switching mechanism that is utilized to interconnect the systems.

[00:20:00] Speaker 00:
And I don't know that it says anything specifically about what a switched telecommunication system is within the meaning of the patent.

[00:20:10] Speaker 01:
How do you respond to your friend on the other side when he says that really what you're saying is that it can be anything that's not a pure

[00:20:20] Speaker 01:
data system, and if there's even any access to switches, that you would cover it.

[00:20:30] Speaker 00:
I think that's probably accurate, Your Honor.

[00:20:32] Speaker 00:
I mean, the definition of switch telecommunication system basically says, if you have switches, a switch system that is used to initiate a call through a bare channel, that's a switch telecommunication system.

[00:20:46] Speaker 00:
The use of the word comprising and the express definition and the specification

[00:20:50] Speaker 00:
suggest that there can be other elements.

[00:20:54] Speaker 01:
I should pick up on Mr. Riappel's vegetarian- His point is that the switch has to actually bear the signal to the call destination, right?

[00:21:02] Speaker 01:
I believe that's right, Your Honor.

[00:21:05] Speaker 01:
All right.

[00:21:06] Speaker 01:
But in your proposal, it doesn't.

[00:21:08] Speaker 01:
It just has to be somehow involved?

[00:21:11] Speaker 00:
In the actual claim language, it's initiating a call or setting up a call.

[00:21:18] Speaker 00:
So when you're talking about the switch telecommunication system in the context of the claims, it's talking about initiating a call in 1 and 13 and setting up a call in claim 27.

[00:21:29] Speaker 00:
It doesn't say anything about what may happen somewhere down the path of the call as the bearer traffic actually traverses whatever network you're on.

[00:21:40] Speaker 00:
I did want to take up Mr. Riopel's vegetarian analogy, and I think I'm with you Judge Chen.

[00:21:46] Speaker 00:
The analogy is fine, but it doesn't apply here.

[00:21:49] Speaker 00:
What they're basically doing is, to quote one of my former partners, is putting the rabbit in the hat.

[00:21:54] Speaker 00:
They say that a switched telecommunications system has to be a predetermined, bearer channel end-to-end.

[00:22:02] Speaker 00:
And because it's that, therefore, it can't include anything else.

[00:22:07] Speaker 00:
It's only if you accept their new definition of what a switch telecommunication system is that you can basically obliterate the word comprising from the express definition and specification and that just doesn't make any sense.

[00:22:20] Speaker 03:
Was your argument ever that any waypoint along the call path constitutes a call destination?

[00:22:26] Speaker 00:
Your Honor, most definitely not.

[00:22:29] Speaker 00:
They cite in their brief, well I should say, they quote in their briefs a number of times

[00:22:34] Speaker 00:
any point along the way, any point along the path, any point along the route.

[00:22:40] Speaker 00:
The two things that are in the record for the court to look at are the testimony of our expert, Dr. Berger, who testified that it is a place that the system routes the call to, which by definition means there's an IP address that is generated by this DNS signaling that routes the call to a specific destination.

[00:23:03] Speaker 00:
One case it's the SBC, the Session Border Controller, and another it's the Media Gateway Controller, and another it's a convergence server that ultimately generates a MAC address.

[00:23:14] Speaker 00:
And those are routed to locations.

[00:23:18] Speaker 00:
It's actually captured in the record, and I can probably find a site.

[00:23:22] Speaker 00:
In my closing argument, I made the following analogy.

[00:23:25] Speaker 00:
The analogy is, if you're flying from Philadelphia

[00:23:29] Speaker 00:
to Anchorage, Alaska, you're going to have, and you check your bags in, they're going to ask you, is this your final destination when it shows you're going to O'Hare?

[00:23:37] Speaker 00:
Because nobody flies directly.

[00:23:38] Speaker 00:
You have multiple legs.

[00:23:39] Speaker 03:
So in your view, if you have a router that routes the call, is that a call destination at that point?

[00:23:46] Speaker 00:
So the touchstone, Your Honor, is, is there DNS signaling that is used

[00:23:53] Speaker 00:
to create an address that routes the call.

[00:23:56] Speaker 00:
So as long as DNS signaling is used at some point before the routing, yes, the call destination is where it is routed to.

[00:24:07] Speaker 00:
So the counter example to their position, I think, is if I'm flying from Philadelphia to Boston, I only have one destination.

[00:24:14] Speaker 00:
That's not to say that when I'm flying over Connecticut, that's a call destination.

[00:24:18] Speaker 00:
Of course, it's not a call destination.

[00:24:20] Speaker 00:
And we never argued that.

[00:24:21] Speaker 00:
What we argued was it's a place that it's routed.

[00:24:24] Speaker 03:
Is call destination the point to which the call is routed to?

[00:24:28] Speaker 03:
Or is the call destination the point at which the call is routed?

[00:24:35] Speaker 00:
I'm not sure, I forgive you.

[00:24:36] Speaker 03:
Well, you have a path, you have a router, and it sends it to a different destination.

[00:24:40] Speaker 03:
Is this a call destination?

[00:24:42] Speaker 03:
or is it here where the routers sit?

[00:24:44] Speaker 00:
It's the place it is routed to, Your Honor, is our position.

[00:24:47] Speaker 01:
Well, in some ways, in some instances, it can be both.

[00:24:50] Speaker 00:
It could be both, yes.

[00:24:50] Speaker 01:
Because once you route it to a destination under your theory, that it needs to be then rerouted again.

[00:24:57] Speaker 00:
Yes, yes, yes.

[00:24:58] Speaker 03:
And so their argument is... Why aren't those waypoints as opposed to... I mean, it seems to me that call destination, the call ends at some point.

[00:25:08] Speaker 03:
And regardless of

[00:25:09] Speaker 03:
the different routes that the call takes.

[00:25:11] Speaker 03:
Why isn't that endpoint the call destination?

[00:25:14] Speaker 00:
It could be among the call destinations, Your Honor.

[00:25:17] Speaker 00:
But again, these claims are drawn to initiating or setting up a call.

[00:25:22] Speaker 00:
And the testimony at trial was that when you ping a session border controller and route it there, that is a call destination.

[00:25:35] Speaker 00:
When this patent was on re-examination,

[00:25:40] Speaker 00:
They took the position that an intermediate device, an iNet phone server, disclosed in an RFC, and this is in the record we cite to it, was a call destination.

[00:25:52] Speaker 00:
Of course it was, and we didn't dispute that.

[00:25:55] Speaker 00:
And the Patent Office accepted that.

[00:25:57] Speaker 00:
The other testimony in the record was that in their own documentation, when they referred to a session border controller, they call it a destination.

[00:26:07] Speaker 00:
And our basic point was, look folks, because it was ordinary meaning that we put to the jury.

[00:26:13] Speaker 00:
In the context of a network, network people understand intermediate routed to locations as destinations.

[00:26:20] Speaker 00:
There are IP destination addresses that get them there.

[00:26:23] Speaker 00:
And that is Mr. Neme, who they refer to as a Comcast witness, but was really a Sprint fellow.

[00:26:30] Speaker 00:
He called this destination, he called a

[00:26:36] Speaker 00:
Air rave 2, a call destination.

[00:26:38] Speaker 00:
Of course it's a call destination.

[00:26:40] Speaker 00:
So we don't feel it went to trial on ordinary meaning.

[00:26:46] Speaker 00:
There was ample evidence in the record for the jury to accept Comcast's position, which was never any point along the path.

[00:26:53] Speaker 00:
That was never our position.

[00:26:56] Speaker 00:
Let me turn to parsing.

[00:26:59] Speaker 00:
Actually, let me turn first to.

[00:27:01] Speaker 02:
Could you turn to parsing right now?

[00:27:03] Speaker 00:
Oh, sure.

[00:27:03] Speaker 00:
Yes, sir.

[00:27:04] Speaker 02:
You know, your side obviously said a bunch of things to convince the patent examiner to let the patent go.

[00:27:15] Speaker 02:
And some of those things that your side was saying was that parsing is not translating, parsing is not mapping, et cetera.

[00:27:27] Speaker 02:
And then the examiner accepted those statements.

[00:27:30] Speaker 02:
So what am I supposed to do with that?

[00:27:32] Speaker 00:
Your Honor, I respectfully disagree with the characterization of what we said to the patent office.

[00:27:38] Speaker 00:
During the re-examination, Sprint was arguing that the references that are discussed in the re-examination proceeding, which are not of record, inherently disclosed parsing.

[00:27:52] Speaker 00:
So it was an inherency argument.

[00:27:55] Speaker 00:
And what our experts said with respect to translating, mapping,

[00:28:00] Speaker 00:
lookup tables and predetermined destinations was in the references that they were citing, which again are not on record here so we can't examine them, did not inherently disclose parsing.

[00:28:13] Speaker 00:
So I think that the way, Your Honor, respectfully I disagree, I think the way that Your Honor characterized it is broader than what our expert was saying during the re-examination.

[00:28:21] Speaker 02:
There aren't quotes in the prosecution history saying that

[00:28:25] Speaker 02:
Parsing is not the same thing as translating?

[00:28:28] Speaker 02:
Parsing is not the same thing as mapping?

[00:28:30] Speaker 00:
Your Honor, I confess that it was not the most artful expression.

[00:28:34] Speaker 00:
But I think if you look at the totality of the record in the re-examination proceeding, Dr. Haas went on to say, it does not inherently disclose parsing.

[00:28:44] Speaker 00:
And one can think of many examples where you have translating that doesn't include the specific definition of parsing that the parties agreed to.

[00:28:55] Speaker 00:
in this case.

[00:28:57] Speaker 00:
The same is true for, let me step back.

[00:28:59] Speaker 00:
I mean, what we're talking about is what people now refer to as enum.

[00:29:04] Speaker 00:
It kind of became synonymous with what the low patents taught on this during trial.

[00:29:09] Speaker 00:
And enum, and this is the testimony that they point to, teaches something about mapping.

[00:29:16] Speaker 00:
It teaches that some people think it is referring to mapping.

[00:29:20] Speaker 00:
Patton is very precise in saying that what we're talking about is parsing.

[00:29:24] Speaker 00:
And it's a very specific, I would say, sub-universe of other methods to correlate one thing to another.

[00:29:33] Speaker 01:
So how does Enum relate to mapping, for instance?

[00:29:37] Speaker 01:
I beg your pardon?

[00:29:38] Speaker 01:
So how does Enum relate to mapping, for instance?

[00:29:41] Speaker 00:
Well, the testimony in the record was from Mr. Neme that he said at a very high, this is the testimony they point to.

[00:29:48] Speaker 00:
He said that at a very high level, ENUM is essentially a mapping technology.

[00:29:55] Speaker 00:
And at the most macro level, Your Honor, I think what they're really saying is you're mapping, you're taking a telephone number, and you're in some way correlating it with a domain name.

[00:30:09] Speaker 00:
You could do that many, many, many different ways.

[00:30:11] Speaker 00:
And what the patent calls for is parsing to do that.

[00:30:15] Speaker 00:
And so what our position is,

[00:30:18] Speaker 00:
Mapping can be this giant universe of things, the subset of which is parsing, which is what the patent claims require.

[00:30:24] Speaker 01:
And so explain parsing to me.

[00:30:27] Speaker 00:
So parsing in this particular case, and I think this isn't disputed, you take a telephone number.

[00:30:33] Speaker 00:
You take out all the intermediate dashes, et cetera.

[00:30:37] Speaker 00:
You reverse it.

[00:30:39] Speaker 00:
You put dots in between the numbers.

[00:30:41] Speaker 00:
And then you append ARPA 164.

[00:30:44] Speaker 00:
And that creates a domain.

[00:30:45] Speaker 02:
You're describing the defendants.

[00:30:47] Speaker 02:
product, right?

[00:30:49] Speaker 00:
Correct, you're right.

[00:30:51] Speaker 00:
You mean parsing in the patent.

[00:30:52] Speaker 00:
So in the patent, all it really says, it gives a couple of examples of using telephone numbers to do this.

[00:30:59] Speaker 00:
And what they basically say in the patent is you can use a deterministic algorithm to do this parsing.

[00:31:07] Speaker 00:
And I think a point that Dr. Berger made is if

[00:31:12] Speaker 00:
According to a grammar, it's not like what we think of in the English language.

[00:31:15] Speaker 00:
It's basically a deterministic set of rules.

[00:31:18] Speaker 00:
That's what's required.

[00:31:19] Speaker 00:
And I don't think that's, frankly, disputed.

[00:31:22] Speaker 00:
It's not the method of parsing that's at issue.

[00:31:24] Speaker 00:
It's whether Sprint can get additional negative limitations read into the claims.

[00:31:30] Speaker 00:
Did I answer your question sufficiently, Your Honor?

[00:31:34] Speaker 00:
So let me briefly move on to prejudgment interest.

[00:31:37] Speaker 00:
Judge Raina, you put your finger right on the issue.

[00:31:40] Speaker 00:
They agreed to a lump sum, and they agreed to a 2006 hypothetical negotiation.

[00:31:46] Speaker 00:
That's what was put to the jury.

[00:31:48] Speaker 00:
We have no idea.

[00:31:49] Speaker 00:
We can speculate, but we have no idea.

[00:31:51] Speaker 02:
Just curious, does that necessarily mean that the payout would occur in 2006?

[00:31:59] Speaker 02:
When you have a negotiation in 2006, that the jury verdict is $7.5 million.

[00:32:06] Speaker 00:
Your Honor, I don't know that I've ever actually thought about when the actual dollars would exchange hands, but yes, I think it would be, the payout would be in 2006.

[00:32:13] Speaker 00:
Because it's a lump sum forward.

[00:32:16] Speaker 00:
Because it's a lump sum.

[00:32:18] Speaker 00:
Yes, Your Honor, precisely.

[00:32:19] Speaker 00:
So the two things that Judge Raina, you pointed out, those basically set up the framework.

[00:32:24] Speaker 00:
And the cases are clear.

[00:32:26] Speaker 00:
On the damages side, that the book of wisdom says you can look forward, take account of future events, and you're entitled to get damages based on

[00:32:35] Speaker 00:
not as of yet issued patents.

[00:32:38] Speaker 00:
So the question for the court is, and I believe this is one of first impression, is whether you can get prejudgment interest for that same period.

[00:32:46] Speaker 00:
The case that Mr. Riapel referred to and that was cited in their reply brief for the first time, this group one case, if you actually look at that case, what ended up happening there was the only patent that lived on appeal

[00:33:03] Speaker 00:
had been invalid for a period of time for failure to pay maintenance fees.

[00:33:08] Speaker 00:
And the district court said, well, you don't get prejudgment interest for this.

[00:33:11] Speaker 00:
You're just about out of time.

[00:33:13] Speaker 00:
Dead period.

[00:33:13] Speaker 00:
OK.

[00:33:15] Speaker 00:
The point is, if you look at the opinion, it's clear that what they were really saying is, because you delayed in curing this deficiency, that we're not awarding prejudgment interest.

[00:33:25] Speaker 00:
It doesn't stand for the proposition that you would not be entitled to it at all.

[00:33:28] Speaker 00:
Thank you, honors.

[00:33:35] Speaker 04:
Judge O'Malley, you asked a question about parsing and mapping.

[00:33:41] Speaker 04:
The accused system that Sprint uses is called ENUM.

[00:33:46] Speaker 04:
ENUM stands for E.164 Number Mapping.

[00:33:50] Speaker 04:
It is a mapping system, the accused in here.

[00:33:54] Speaker 04:
Also, let me address one other issue on the parsing, Judge Chen, going to the specific statements.

[00:34:01] Speaker 04:
One thing I don't think we emphasize enough in our briefs,

[00:34:06] Speaker 04:
For example, the PTO initially rejected the 046 patent because the PTO said parsing is any predetermined association.

[00:34:17] Speaker 04:
And if you look at the record at A2531, Comcast responded to this definition of parsing

[00:34:24] Speaker 04:
And it's important to note that Comcast's response is in a section entitled Meaning of the Term Parsing.

[00:34:33] Speaker 04:
That's the section.

[00:34:34] Speaker 04:
They are defining parsing in order to get these patents passed re-examination.

[00:34:40] Speaker 04:
And they said to the PTO, you are incorrect.

[00:34:44] Speaker 04:
And their quote is inconsistent with how one of ordinary skill in the art would understand the term parsing.

[00:34:51] Speaker 04:
That is a clear and unequivocal statement

[00:34:53] Speaker 04:
made to the PTO so they could get parsing.

[00:34:57] Speaker 04:
They said it was not a predetermined association.

[00:35:00] Speaker 01:
Well, they said that it's not inherently disclosed by those other types of associational mechanisms, right?

[00:35:10] Speaker 04:
I believe the quote that they used in the section entitled Meaning of the Term Parsing was inconsistent with how one ordinary skill in the art would understand the term parsing.

[00:35:21] Speaker 02:
And then they came up with the definition, process of analyzing a string according to a set of rules of grammar, right?

[00:35:30] Speaker 04:
That's right.

[00:35:30] Speaker 04:
That's the affirmative statement.

[00:35:31] Speaker 04:
And both parties agreed below that's the affirmative statement.

[00:35:35] Speaker 04:
I'm going under false colors here.

[00:35:38] Speaker 02:
Right.

[00:35:38] Speaker 02:
And then what gets a little messy and nebulous is trying to figure out, OK, well, what

[00:35:44] Speaker 02:
What does translating really mean, and what does mapping really mean?

[00:35:49] Speaker 02:
And so how would Judge Andrews even instruct the jury in terms of trying to figure out what more needs to be said beyond the affirmative definition to cabin in and define

[00:36:06] Speaker 04:
But I think if he accepted Sprint's proposed construction, which tracked the very language that Comcast used before the PTA.

[00:36:13] Speaker 04:
This wasn't language we made up.

[00:36:14] Speaker 04:
We tracked Comcast's language.

[00:36:19] Speaker 04:
I think if he had done that, because what it allowed Comcast to do is say parsing is not predetermined association.

[00:36:27] Speaker 04:
Parsing is not mapping.

[00:36:28] Speaker 04:
Parsing is not translating.

[00:36:30] Speaker 04:
and then come into the court, the court rules that we don't get to put on evidence about that, because they ruled out our claim construction.

[00:36:39] Speaker 04:
And so then they argue to the jury, this system, which is translating for a predetermined association, infringes.

[00:36:48] Speaker 01:
Well, the problem is that you wanted the court to have these negative limitations with no qualification.

[00:36:55] Speaker 01:
I mean, frankly, had you asked the court to say,

[00:36:59] Speaker 01:
It's not mapping without more detail.

[00:37:02] Speaker 01:
Or it's not mapping without additional sets of rules of grammar or use of additional sets of rules of grammar.

[00:37:09] Speaker 01:
But you didn't ask for that.

[00:37:10] Speaker 01:
You asked for blanket exclusions.

[00:37:14] Speaker 01:
And the trial court said there's no basis for those blanket exclusions.

[00:37:20] Speaker 04:
The affirmative definition that the court used was part of our proposal.

[00:37:24] Speaker 04:
Actually, it was not part of Comcast.

[00:37:26] Speaker 04:
No, but they agreed with it.

[00:37:27] Speaker 04:
They agreed with it at the argument.

[00:37:31] Speaker 01:
All we were asking... With their proposal, the word grammar wasn't in it, but the set of rules was exactly the same.

[00:37:38] Speaker 04:
Right.

[00:37:38] Speaker 04:
The language we were trying to do to stay true to what Comcast had said to the PTO was we used their language.

[00:37:46] Speaker 04:
We believe that the proper thing to do is this is the language Comcast used before the PTO to get past the prior art problems.

[00:37:55] Speaker 04:
that same language should be used here now that they're trying to claim infringement.

[00:37:59] Speaker 01:
OK.

[00:37:59] Speaker 01:
Before you sit down, let me just, on call destination, you never asked for a construction of call destination, right?

[00:38:05] Speaker 01:
No.

[00:38:05] Speaker 01:
Both parties.

[00:38:05] Speaker 01:
You agreed that it should go to the jury with ordinary meaning.

[00:38:08] Speaker 01:
Ordinary meaning.

[00:38:09] Speaker 01:
So what you're asking us to say is that no reasonable juror, in light of all the testimony of Proffert, could ever conclude that call destination was anything other than the endpoint.

[00:38:20] Speaker 04:
No, Your Honor.

[00:38:21] Speaker 04:
No.

[00:38:22] Speaker 04:
This is, again, this is not an issue of

[00:38:24] Speaker 04:
We're saying that it's a destination versus the destination.

[00:38:29] Speaker 04:
This is an issue of a destination versus no destination.

[00:38:34] Speaker 04:
They have rendered the claim the term meaningless.

[00:38:37] Speaker 01:
But you're still asking us to say that no reasonable juror could possibly have found that these interim points were called destinations.

[00:38:47] Speaker 01:
That's the only way you can win on this point, because you didn't ask for a construction of the claim.

[00:38:52] Speaker 04:
That is not our position.

[00:38:54] Speaker 01:
It becomes a factual determination as to what a call destination is.

[00:38:58] Speaker 04:
Our position is that the term has been rendered meaningless.

[00:39:02] Speaker 04:
If it goes to the jury and they have to apply an ordinary meaning, they can apply a different meaning, but they have to apply some meaning.

[00:39:10] Speaker 02:
They can't render the term meaningless.

[00:39:12] Speaker 02:
What if the meaning is location determined by using domain name signaling and maybe not every point along the way?

[00:39:23] Speaker 02:
is a location that is determined by domain name signaling.

[00:39:28] Speaker 04:
That might be possible.

[00:39:29] Speaker 04:
That, of course, construction was never presented to the jury.

[00:39:33] Speaker 01:
No, but I mean.

[00:39:34] Speaker 01:
But there's evidence that was presented to the jury describing it that way.

[00:39:39] Speaker 04:
However, there was no evidence presented to the jury that distinguished points along the way that were call destinations from points along the way that were not call destinations.

[00:39:51] Speaker 04:
And that's why the court,

[00:39:53] Speaker 01:
When the court tried to... I really let you go way too far.

[00:39:57] Speaker 01:
Since I cut him off, I need to cut you off.

[00:40:00] Speaker 01:
Thank you.

[00:40:00] Speaker 04:
OK.

[00:40:00] Speaker 04:
Thank you.