[00:00:00] Speaker 01:
The next case for argument is 16-1-0-1-3, Cox Communications versus Sprint Communication Company.

[00:00:57] Speaker 01:
think we're all set.

[00:00:59] Speaker 01:
Mr. Jakes, good morning.

[00:01:00] Speaker 03:
Good morning.

[00:01:01] Speaker 03:
May it please the court.

[00:01:03] Speaker 03:
The term processing system that is used in the method claims at issue here defines the claim scope with reasonable certainty.

[00:01:12] Speaker 03:
That's all that's required.

[00:01:14] Speaker 03:
Nothing more is required under 112 paragraph B, Nautilus, or any other authority.

[00:01:20] Speaker 03:
The district court somehow got on the wrong track here and mistakenly thought that since processing system

[00:01:27] Speaker 03:
was also described functionally by the various functions it performs, the claims were facially invalid under Nautilus.

[00:01:37] Speaker 03:
There's no dispute here that the processing system is a type of computer.

[00:01:42] Speaker 03:
It's a special type of computer that's described in the specification.

[00:01:46] Speaker 03:
It has to process the signaling to assist in call control in a telecommunications network, so it has a particular purpose.

[00:01:54] Speaker 01:
Can I, can I just stop?

[00:01:55] Speaker 01:
I'm sorry.

[00:01:56] Speaker 01:
But just kind of going back to exactly where you started, one of the things that's more difficult for me in this case is I think you said the processing system describes the invention with reasonable certainty.

[00:02:10] Speaker 01:
Right.

[00:02:10] Speaker 01:
The reason I'm having a hard time absorbing this and maybe other indefiniteness cases is because the processing system doesn't seem that central to the whole invention in this case.

[00:02:21] Speaker 03:
It is not.

[00:02:22] Speaker 01:
And so when you pick one term and you put all the weight of reasonable certainty of the entire invention on that one term, it gets you down a very difficult road.

[00:02:35] Speaker 01:
So if you understand what I'm saying, could you kind of speak to that?

[00:02:38] Speaker 03:
I do, Your Honor.

[00:02:39] Speaker 03:
And I actually think that's one of the problems here, one of the things that steered Judge Robinson down the wrong track.

[00:02:47] Speaker 03:
The processing system as a thing,

[00:02:50] Speaker 03:
as a specialized computer that performs these functions.

[00:02:54] Speaker 03:
There's nothing new about that.

[00:02:56] Speaker 03:
It's described in the specification as a tandem CLX computer or a spark station.

[00:03:05] Speaker 03:
These were existing things in the prior art, so there's no argument that the processing system by itself somehow distinguishes over the prior art.

[00:03:14] Speaker 03:
It's in the context of this network, the functions that are performed in these method claims

[00:03:21] Speaker 03:
that are what are new.

[00:03:22] Speaker 03:
And so focusing on processing system is really where I think part of the problem was.

[00:03:28] Speaker 01:
But does somehow the ambiguity to the extent one exists in terms of precisely what you're talking about a processing system, does that lend to arguments that you're trying to get more than you actually claimed and that there's no notice function served by this because somebody can come up with some

[00:03:47] Speaker 01:
new way to do all this and you'll claim it because we're ambiguous, there's ambiguity as to the reaches of the processing system.

[00:03:55] Speaker 03:
I don't think there's ambiguity.

[00:03:56] Speaker 03:
I think there's breadth.

[00:03:58] Speaker 03:
And there is no doubt that the term processing system can cover a lot of things.

[00:04:03] Speaker 03:
But the claims are not that broad.

[00:04:06] Speaker 03:
It's not any processing system in any configuration.

[00:04:10] Speaker 03:
There are specific method steps that are recited that have to be performed and these are method claims.

[00:04:16] Speaker 03:
So

[00:04:17] Speaker 03:
including a processing system or saying that that's part of the environment, that the processing system executes these functions, there's really not a problem with breadth.

[00:04:27] Speaker 03:
And a general purpose computer that performs these functions could meet these claims.

[00:04:35] Speaker 03:
And nothing more than that is required.

[00:04:37] Speaker 03:
We don't have to have more specific structure for the processing system to say,

[00:04:44] Speaker 03:
It has to have a memory, it has to have a CPU, it has to have all these things, because it's a well-understood concept of what a processing system is, and more importantly, these are method claims.

[00:04:57] Speaker 03:
The method steps are recited, so the focus is not on the process.

[00:05:00] Speaker 04:
They're not all method claims.

[00:05:02] Speaker 04:
There are a few claims in some of them.

[00:05:04] Speaker 04:
I guess we're talking about six patents here, and if you go through the six, there are some claims that are not method claims.

[00:05:10] Speaker 04:
Do you think we should look at those differently from the method claims?

[00:05:14] Speaker 04:
Much of the argument, some of the argument, is directed to the fact that these are method claims, and I'm just wondering how that applies to the ones that aren't.

[00:05:22] Speaker 03:
The claims that are at issue are all method claims.

[00:05:25] Speaker 03:
Really?

[00:05:25] Speaker 04:
Are we talking about method claims that are actually at issue?

[00:05:29] Speaker 04:
Or I thought that we were talking about all six of the patents.

[00:05:33] Speaker 03:
Well, the court found that the claims that were asserted, which were all method claims.

[00:05:39] Speaker 04:
Okay, only method claims were asserted?

[00:05:41] Speaker 04:
That's right.

[00:05:42] Speaker 04:
Okay.

[00:05:43] Speaker 03:
And your honor knows?

[00:05:45] Speaker 03:
The claims can be claimed in different ways.

[00:05:48] Speaker 03:
They can cover the system.

[00:05:49] Speaker 03:
They can cover the apparatus, but we're focused here on the method claims.

[00:05:52] Speaker 04:
That's all that's before the... That's right.

[00:05:55] Speaker 04:
That was before the district.

[00:05:56] Speaker 04:
Okay.

[00:05:56] Speaker 03:
Right.

[00:05:57] Speaker 03:
And the specification shows how this system fits into the network.

[00:06:03] Speaker 03:
There are figures that show it.

[00:06:04] Speaker 03:
There are flow charts.

[00:06:06] Speaker 03:
And the district court here somehow thought it was proper to ignore all the functions recited in the claims, as well as in the specification.

[00:06:16] Speaker 03:
and disregard any evidence because it wasn't structural.

[00:06:21] Speaker 03:
This court's guidance, for example, in the Nautilus III case, tells us that describing things in terms of function can be very informative.

[00:06:29] Speaker 03:
So discarding all that description of the function was clearly improper.

[00:06:34] Speaker 01:
Well, I don't know when Williamson was decided in connection with how this case went down, but certainly the suggestion is that Williamson

[00:06:45] Speaker 01:
broaden to at least some extent the ability to have means plus function.

[00:06:50] Speaker 01:
Yes, it did.

[00:06:51] Speaker 01:
So let's assume, it's a little confusing to me in the record, I agree with you, whether or not, I mean, kind of going back and forth on means plus function, but why would this not be properly construed as a means plus function point?

[00:07:05] Speaker 03:
Well, there are two reasons.

[00:07:07] Speaker 03:
First of all, even after Williamson, there is a presumption, and the use of the term processing system does not presume to invoke

[00:07:16] Speaker 03:
a system that processes, right?

[00:07:19] Speaker 03:
That's right.

[00:07:20] Speaker 03:
And it's not, it doesn't use the word means, and it's not something that invokes that.

[00:07:25] Speaker 03:
Second, and probably more importantly, both parties agree this is not a means plus function term.

[00:07:31] Speaker 03:
And that must mean that there is a recognized structure that it corresponds to.

[00:07:35] Speaker 03:
So Cox is not taking the position that this 112F applies.

[00:07:43] Speaker 03:
There's been no development of that, there's been no discussion of that.

[00:07:46] Speaker 03:
And as I said earlier, there's a general agreement that some type of computer has to be used for this processing system, and that's a well-recognized structure.

[00:08:00] Speaker 03:
There are other cases, like personalized media we've cited.

[00:08:03] Speaker 03:
A digital detector, that's a device that acts to detect digital signal information.

[00:08:08] Speaker 03:
Not really any different than what we have here.

[00:08:11] Speaker 03:
The Hillrom case that involved a data link, a link that carries data in a wired or wireless fashion

[00:08:16] Speaker 03:
The court said, any link over which data is transferred.

[00:08:20] Speaker 03:
That's broad, but it's not indefinite.

[00:08:25] Speaker 03:
And there's nothing wrong with defining a term by its function.

[00:08:28] Speaker 03:
The court here, it focuses on the physical structures, is really the wrong test.

[00:08:33] Speaker 03:
Nautilus looks for reasonable certainty.

[00:08:36] Speaker 03:
And a processing system that can execute these steps in the method is all that's required.

[00:08:43] Speaker 03:
The court made some additional errors.

[00:08:46] Speaker 04:
Chief Judge's earlier question that she began with, again, the claims really seem to treat processing system not as something that has some discrete structural features.

[00:09:09] Speaker 04:
As you seem to be suggesting, you're emphasizing that these are, we know they're computers and so forth, but it rather seems to be almost

[00:09:17] Speaker 04:
for lack of a better term, a black box that happens to be the locus of the various steps that are performed.

[00:09:25] Speaker 04:
But it struck me that there's no real requirement that the processing system have any particular structural features the way the claims are read.

[00:09:37] Speaker 04:
The claims could have left out the term processing system, could they not?

[00:09:41] Speaker 03:
I don't think so.

[00:09:43] Speaker 04:
Maybe you can help me on that then.

[00:09:46] Speaker 03:
Well, for one reason it wouldn't have been left out is we would have ended up with perhaps just a series of method claims that could be performed by a human, and that certainly would be a problem.

[00:09:59] Speaker 03:
And so it has to be performed by a processing system.

[00:10:02] Speaker 03:
We don't want to get into the whole pencil and paper.

[00:10:05] Speaker 04:
I doubt that a human could have performed all these steps.

[00:10:07] Speaker 03:
But it's very conventional for computer-implemented methods to recite, implemented on a computer,

[00:10:15] Speaker 03:
in this case, a processing system.

[00:10:17] Speaker 04:
Well, suppose then, to take a step back from my earlier question, that you substitute the word computer for the word processing system.

[00:10:27] Speaker 04:
Right.

[00:10:27] Speaker 04:
It wouldn't make any difference in the scope of the claims, would it?

[00:10:30] Speaker 03:
No, it shouldn't, no, because that's an understood structure.

[00:10:33] Speaker 04:
I mean, what we're leaving out, of course, is the programming, the special programming of the computer.

[00:10:39] Speaker 04:
But I think what I hear you say is that

[00:10:43] Speaker 04:
That's not what is carrying the weight of the claims.

[00:10:47] Speaker 04:
The weight of the claims is carried by the various method steps such as receiving, processing, to select a network code, generating a control message, transferring, receiving, and transferring.

[00:11:04] Speaker 03:
That's right.

[00:11:04] Speaker 04:
As opposed to the algorithm, focusing on the algorithm that's doing all this.

[00:11:10] Speaker 03:
In one sense, there is an algorithm.

[00:11:12] Speaker 04:
Well, it has to be, but these are describing the steps.

[00:11:16] Speaker 04:
And your argument, I take it, is that no more is really required.

[00:11:19] Speaker 03:
No more is required.

[00:11:20] Speaker 03:
That's right.

[00:11:21] Speaker 03:
Because these steps are what make up the method that is claimed.

[00:11:25] Speaker 03:
And the processing system, it's more than a black box because there is a lot more description in the specification, including identifying a particular piece of hardware that would work as well as

[00:11:38] Speaker 03:
the internal structure, including the interface, the translator, processor, memory.

[00:11:44] Speaker 03:
But that's the level of specificity that it's needed, because these are focused on the method claims.

[00:11:50] Speaker 03:
And the processing system, as we've said, is not the focus of the invention.

[00:11:54] Speaker 04:
Now, the two structures that are specifically called out, the Tandem and SPARC method, those are, as I understand it, not

[00:12:08] Speaker 04:
specially designated, but rather more in the nature of general purpose computers, are they not?

[00:12:14] Speaker 03:
They are.

[00:12:15] Speaker 03:
They have a particular role in telecommunications networks.

[00:12:18] Speaker 03:
They're specifically suited to that type of processing.

[00:12:22] Speaker 04:
But this is pre-loading the algorithm that performs these particular steps, I take it.

[00:12:29] Speaker 03:
Well, there will have to be some software involved, but as you say, the processing system is not the focus, it's the method steps.

[00:12:37] Speaker 03:
And this is not a means clause.

[00:12:40] Speaker 03:
So it doesn't say a processing system for doing a particular function.

[00:12:45] Speaker 03:
We're not into the compliance mechanism case where there were specific functions recited that you needed an algorithm for.

[00:12:52] Speaker 03:
So all of that under 112F, the algorithm, that's not required here.

[00:12:56] Speaker 01:
Can I just ask you a quick process claim?

[00:12:58] Speaker 01:
Because there's a case pending in Kansas, right?

[00:13:01] Speaker 01:
That's right.

[00:13:02] Speaker 01:
And that's been stayed.

[00:13:03] Speaker 01:
That has been stayed, yes.

[00:13:04] Speaker 01:
And then were there other

[00:13:06] Speaker 03:
were there validity challenges left where were you in connection with well the two judge robinson's here i guess i want to tell where uh... what is what what is the standing of this case leaving aside this indefinite the case is proceeding on other patents they're also involved in the case and judge robinson entered a judgment under rule fifty four b s to these six patents but the case is continuing and will go to trial on the rest of the parents and are there other validity challenges

[00:13:36] Speaker 03:
I believe there are, but those were not resolved in view of the court's entering judgment on this one particular ground.

[00:13:45] Speaker 03:
Now, there is the other related case where Judge Robinson, in a similar patent, found the exact opposite of which she did in this case, finding that... This is the one that you submitted as a... That's right, that's right.

[00:13:58] Speaker 03:
And based on the same evidence, the same declarations, found there was a well-understood meaning.

[00:14:03] Speaker 03:
112F did not apply.

[00:14:05] Speaker 03:
and adopted the construction that we have proposed for processing systems.

[00:14:09] Speaker 03:
That case is not going forward.

[00:14:11] Speaker 03:
That case is.

[00:14:12] Speaker 03:
It's a different case.

[00:14:14] Speaker 03:
That's yet another case on a different pattern.

[00:14:18] Speaker 01:
All right.

[00:14:19] Speaker 01:
Thank you.

[00:14:19] Speaker 01:
Why don't we serve the rest of your rebuttal on here from Mr. Brody.

[00:14:24] Speaker 02:
Thank you, Your Honor.

[00:14:29] Speaker 02:
Mr. Jakes stole my introduction and I think I can

[00:14:33] Speaker 02:
skip directly to the questions that the court posed to him, because I think they framed the issue exactly.

[00:14:41] Speaker 02:
As I understand what Mr. Jakes said, it sprints position that the processing system limitation contemplates a general purpose computer, that it has no other definition, no other limitation on the claims, that if you simply, to use your question Judge Bryson, substituted the words a computer in these claims, they would read

[00:15:03] Speaker 02:
exactly the same.

[00:15:06] Speaker 02:
But it was also Mr. Jake's statement and acknowledgement, as indeed was acknowledged below in response to Judge Robinson's direct question, that the computer in this case has to be specially programmed because the claims call out very specific functions and they claim that combination of functions to be inventive and to be implemented by an inventive device.

[00:15:31] Speaker 02:
The patent, for example, the 932 patent at A352 of the appendix, recites that, aside from the CCP, these elements of large networks are familiar to one skilled in the art.

[00:15:51] Speaker 02:
In other words, the CCP, which again as Sprint and Cox both agree, is the example of a processing system, was the point of departure.

[00:16:01] Speaker 02:
for this patent, it was the point of novelty in the system.

[00:16:05] Speaker 02:
Likewise, at page A357 of the appendix, and I cite here the 932 patent specifications are common for four of them and the other two are very similar and that's all spelled out in the briefing.

[00:16:24] Speaker 02:
But at page A357, column 20 beginning at line 47,

[00:16:29] Speaker 02:
The present invention represents a fundamental and powerful departure from present telecommunications technologies.

[00:16:36] Speaker 02:
By separating the communications path from the communication control, the CCP, the processing system, can utilize different networks and network devices.

[00:16:45] Speaker 02:
And it goes on to explain why that's a good thing.

[00:16:48] Speaker 02:
So the point is that precisely the point of these claims that calls out the

[00:16:57] Speaker 02:
What is described as precisely the innovation of the invention is, by counsel's admission, nothing more than a general purpose computer, even though, as counsel also admits, NS Print has repeatedly said below, and as the patent plainly discloses, that device needs to be specially programmed.

[00:17:16] Speaker 02:
Now, if the claim said a means for performing this function, it doesn't, and I understand that.

[00:17:23] Speaker 02:
If it said a means for performing this function,

[00:17:26] Speaker 02:
And if what was included in the specification was nothing more than the phrase, a processing system, or a general purpose computer, there would be no question about the invalidity of these claims.

[00:17:37] Speaker 01:
But I guess maybe I'm unclear on what point we're making.

[00:17:40] Speaker 01:
Because the specifications provide figures showing components of the CCP and the CCM.

[00:17:47] Speaker 01:
And there are flow charts, shows the degrees of processing.

[00:17:51] Speaker 01:
And there's lots of information.

[00:17:54] Speaker 01:
How is that?

[00:17:55] Speaker 01:
Why is that not enough?

[00:17:57] Speaker 01:
That would be enough to show a person of reasonable art with some reasonable, person of ordinary skills, reasonable certainty.

[00:18:05] Speaker 02:
There are two answers to that question, Your Honor.

[00:18:07] Speaker 02:
The first is, that was the argument we made below.

[00:18:10] Speaker 02:
We said either this is indefinite and invalid, or it's a 112f limitation, and it has to be construed in light of the specification.

[00:18:19] Speaker 04:
Did you make the argument that it was 112f?

[00:18:22] Speaker 04:
Yes.

[00:18:24] Speaker 04:
My understanding, well, I think you have a dispute then with Mr. Jakes, because he's taken the position that this was not raised by the other party.

[00:18:34] Speaker 02:
That is not true.

[00:18:37] Speaker 02:
That is, the briefs below are in the appendix.

[00:18:40] Speaker 02:
And there were two arguments made.

[00:18:43] Speaker 02:
One was the phrase itself is meaningless.

[00:18:48] Speaker 02:
And the second was, you might be able to save it under 112F by looking to the specification.

[00:18:55] Speaker 02:
And we argued that.

[00:18:56] Speaker 02:
And we argued that the specification disclosure was insufficient.

[00:18:59] Speaker 02:
And that's another long story.

[00:19:02] Speaker 02:
But Sprint's position below was, we're not taking that route.

[00:19:05] Speaker 02:
We're abandoning our 112F safe harbor.

[00:19:09] Speaker 02:
They said, we're going to stand on the plain meaning of that phrase.

[00:19:15] Speaker 02:
The problem is that they can't get a broader scope of claim by putting processing system in the claim itself than they would by putting it in the specification.

[00:19:27] Speaker 02:
The second problem with that issue, Your Honor, is that sprints is implicit in the first thing I said.

[00:19:36] Speaker 02:
Namely, the reason why the specification might matter and might define the scope of the term

[00:19:43] Speaker 02:
is if you construed the term to be limited to what is in the specification.

[00:19:49] Speaker 02:
In other words, if processing system were construed to be the CCP, which is what's in the specification, that would be a completely different case.

[00:19:58] Speaker 02:
I think it would still be inadequate here.

[00:20:00] Speaker 02:
There's a long discussion below about why the specification simply describes more and more functionality but never gets to the algorithm that you need, but that would

[00:20:12] Speaker 02:
that would not solve the problem.

[00:20:14] Speaker 02:
What they want to do is have their cake and eat it too.

[00:20:18] Speaker 02:
They want to say processing system means any computer, but you know what that means because we've got all of this description in the specification, but don't limit the claims in that way.

[00:20:30] Speaker 02:
They can't have it both ways.

[00:20:32] Speaker 02:
Either processing system means something in particular, which is the CCP, and then you have to evaluate it.

[00:20:39] Speaker 02:
under all the 112F standards, then you have to ask all those questions.

[00:20:43] Speaker 02:
Then you've got a very different system, because the whole point was to come up with an innovative processing device that would let them achieve the things that they wanted to.

[00:20:55] Speaker 02:
Or, I forgot where I started out, but they can't both have the breadth of a general purpose computer, supported by the specifications

[00:21:05] Speaker 02:
and refuse to accept the limitations that the specifications encompass.

[00:21:10] Speaker 02:
The whole point of 112.

[00:21:13] Speaker 01:
Leaving aside the whole indefiniteness inquiry, if we're just dealing with the claim construction question, so processing system is not going to be defined in the abstract, in normal Markman proceedings.

[00:21:24] Speaker 01:
It's going to be defined by how it's addressed and explained in the specification.

[00:21:30] Speaker 01:
So I don't understand what your worry is that they're going to get to claim

[00:21:36] Speaker 01:
the, you know, everything in the universe outside of the specification when that's how, you know, take us again.

[00:21:43] Speaker 01:
I'm, I'm, I'm consumed with the indefiniteness stuff, but if you just do a pure claim construction, the claim construction is good, is going to be, the claim is going to be construed in light of the specification.

[00:21:52] Speaker 01:
And so it's been going to be confined to what it's consistent.

[00:21:56] Speaker 02:
Right.

[00:21:56] Speaker 02:
But that's exactly what they're saying.

[00:21:58] Speaker 02:
They don't want you to do.

[00:22:00] Speaker 01:
They want you to, they asked Judge, first of all, that's... Well, I don't know, we're not at claim, I mean, she said she couldn't construe it.

[00:22:07] Speaker 02:
No, no, she said, because this is what happened, she said they asked her not to construe it.

[00:22:12] Speaker 02:
She said, I could look at this under World 12 Act.

[00:22:14] Speaker 01:
Well, you know Judge Robinson, I know Judge Robinson, just because they told her to do something or they asked her to do something, didn't confine her on the lease.

[00:22:22] Speaker 01:
Absolutely.

[00:22:25] Speaker 01:
She's persuaded by our court hypothetically that this isn't an indefiniteness problem, and you have to go on to construe the claims.

[00:22:34] Speaker 01:
I don't understand.

[00:22:35] Speaker 01:
So because they say something, she's going to construe the claims to cover any computer, no matter what, and not look at the spec to see how that's constrained?

[00:22:46] Speaker 02:
Again, there are two things.

[00:22:47] Speaker 02:
First, they do have a waiver problem on that point, because we posed that issue to them.

[00:22:54] Speaker 02:
We said, explain.

[00:22:55] Speaker 01:
We think the claim.

[00:22:56] Speaker 01:
Well, I can't deal with it.

[00:22:58] Speaker 01:
I mean, the waiver issue hasn't been presented to us.

[00:23:00] Speaker 01:
If there's a waiver argument there, Judge Robinson will be confident to deal with that.

[00:23:04] Speaker 01:
So I don't know how we can deal with a waiver argument.

[00:23:07] Speaker 02:
Well, with due respect, I think you can, because it's in Judge Robinson's opinion that the 112 argument was waived.

[00:23:15] Speaker 02:
She made that holding.

[00:23:18] Speaker 02:
And second, it wasn't preserved on appeal, because their briefs

[00:23:22] Speaker 02:
at least a dozen times say that they are not relying on 112F.

[00:23:26] Speaker 02:
I'm not talking about 112F.

[00:23:28] Speaker 02:
I'm talking about normal claim construction.

[00:23:30] Speaker 02:
So then we come to normal claim construction.

[00:23:33] Speaker 02:
And again, I think there are two issues.

[00:23:38] Speaker 02:
The first is that nobody has advocated that position.

[00:23:44] Speaker 02:
There is no record below to suggest that position.

[00:23:46] Speaker 02:
The judge didn't consider that position.

[00:23:49] Speaker 02:
It simply has never been on the table.

[00:23:52] Speaker 02:
make three issues.

[00:23:53] Speaker 02:
The second point is that at this point, their position about what the specification says and what the claim means, what its common meaning is, is that it's a general purpose computer.

[00:24:11] Speaker 02:
In fact, we agree with them because that's what the specifications disclose.

[00:24:16] Speaker 02:
They disclose a tandem

[00:24:18] Speaker 02:
The Tandem computer and the Spark computers, with due respect to Mr. Jakes, are not telecommunications computers.

[00:24:24] Speaker 02:
They're simply workstations.

[00:24:26] Speaker 02:
And you have to specialize, program them specially in order to make them able to function for this purpose.

[00:24:34] Speaker 02:
I think Your Honor can certainly remand and ask Judge Robinson to consider the limitation in that light.

[00:24:42] Speaker 02:
But I think then the question becomes,

[00:24:48] Speaker 02:
Sprint's going to have to go before her and say, in essence, you know all that stuff we told you about how the phrase has this breadth?

[00:24:57] Speaker 02:
All that was hooey, because now we're going to take a completely different position.

[00:25:03] Speaker 02:
That's just not what they argued.

[00:25:07] Speaker 02:
Below, we made specifically the point that even when you do that analysis, you still don't get to a structure, because the patent is

[00:25:17] Speaker 02:
This was an early patent in a sequence of patents.

[00:25:20] Speaker 02:
It was the first.

[00:25:22] Speaker 02:
And what happened was Sprint had what they thought was a great idea about how they could organize networks.

[00:25:28] Speaker 02:
And they wrote this patent to capture that idea.

[00:25:32] Speaker 02:
There are a sequence of patents that they issued as that idea got worked out.

[00:25:36] Speaker 02:
And some of the other patents in this case are, in fact, much more definite about what the processing system was and how it actually operates and what the algorithms are.

[00:25:46] Speaker 02:
Those patents actually do disclose structure and actually claim structure.

[00:25:52] Speaker 02:
The argument you're asking Judge Robinson to consider is exactly the argument that was posed to her in which she, that is to say, the question of whether the specification actually has any content for the structure, in which Sprint said, we're not taking that position below, in which they have said repeatedly here they're not taking that position.

[00:26:16] Speaker 02:
and which she, for that reason, did not reach.

[00:26:21] Speaker 02:
So it's not an issue that's preserved for appeal, with due respect.

[00:26:26] Speaker 02:
At the end of the day, our position, I think, is pretty simple, especially in light of the positions that Mr. Jakes took.

[00:26:34] Speaker 02:
Everybody seems to agree that what processing system means is nothing more than a general purpose computer.

[00:26:42] Speaker 02:
Everybody seems to agree that the patent describes

[00:26:45] Speaker 02:
a very specific type of telecommunications network and a very specific device at the center of that network.

[00:26:57] Speaker 02:
The claim cannot be unlimited under those circumstances.

[00:27:03] Speaker 02:
And that's exactly what they're proposing.

[00:27:06] Speaker 04:
If the processing system simply means a computer, the same question that

[00:27:14] Speaker 04:
I was discussing with Mr. Jakes, then why, if you substitute computer for processing system everywhere in, let's say, the claim one of the three, five, six, one pen, where's the indefiniteness?

[00:27:31] Speaker 04:
Well, the indefiniteness is... We know what a computer is, and the other elements of that claim are all just method steps.

[00:27:40] Speaker 04:
Sure.

[00:27:41] Speaker 04:
I mean, I can see you might make an argument for lack of enablement,

[00:27:44] Speaker 04:
But where's the indefiniteness?

[00:27:46] Speaker 02:
Well, let me post you a slight counterfactual or counter-hypothetical if I could and then come back to your... Okay, but make sure you come back to my question.

[00:27:55] Speaker 02:
I will.

[00:27:56] Speaker 02:
Okay.

[00:27:57] Speaker 02:
So the counter-hypothetical would be suppose the claim set A means we're doing each of these things.

[00:28:02] Speaker 02:
Everybody knows what that dictates.

[00:28:05] Speaker 02:
You go to the specification.

[00:28:08] Speaker 02:
And suppose if you go to the specification, all it says is,

[00:28:11] Speaker 02:
use a computer to do it.

[00:28:13] Speaker 02:
And you don't have structure.

[00:28:14] Speaker 02:
We all know that that's... You don't have any structure.

[00:28:17] Speaker 02:
So then the question is, does a claim which has the same limitation as that counter-hypothetical I posed explicit in the claim language, is it better than it would be if it had used the means phrase?

[00:28:33] Speaker 02:
Right?

[00:28:33] Speaker 02:
So if you move the computer phrase up into the claim, why does that make it more definite than it would otherwise be?

[00:28:39] Speaker 02:
Well, if the

[00:28:41] Speaker 04:
All the water that's being carried by this claim, as I read it, seems to suggest that the water is being carried by the steps and not by the processing system itself or the computer.

[00:28:56] Speaker 04:
That's just the locus at which the steps are being performed.

[00:29:02] Speaker 04:
It seems to me you could have left the words processing system out of, just again, to take claim one of the 3561, and you would have had a perfectly

[00:29:11] Speaker 04:
definite claim.

[00:29:12] Speaker 04:
You might have had other problems, other validity problems, but I don't think you'd have indefiniteness, would you?

[00:29:20] Speaker 04:
To get back to my first question, either stick computer in there or leave the processing system altogether.

[00:29:26] Speaker 04:
And so it reads, receiving a signaling message, selecting the network code, generating the control system, transferring the control message, receiving the user communication, and transferring the user communication.

[00:29:40] Speaker 04:
There's no indefiniteness there, is there?

[00:29:45] Speaker 02:
Actually, I think there probably would be, but the issue would turn around.

[00:29:49] Speaker 04:
What would the nature of that indefiniteness be?

[00:29:52] Speaker 02:
Well, for example, it's some of the issues that Mr. Jakes raised.

[00:29:55] Speaker 02:
What would receiving mean if it's met with respect to a particular type of device?

[00:30:00] Speaker 02:
I mean, how would you understand each of those functional limitations?

[00:30:06] Speaker 02:
What I think can be said here is,

[00:30:11] Speaker 02:
Again, a couple of things.

[00:30:13] Speaker 02:
First, the passages I shared with the court actually put the weight of the invention in the device itself.

[00:30:22] Speaker 02:
That's what the specification is about.

[00:30:25] Speaker 02:
That's what it says is the invention.

[00:30:27] Speaker 02:
The fundamental and powerful departure, in the words of the patent, is the CCP.

[00:30:33] Speaker 02:
Second, the claim isn't or the invention isn't simply doing a sequence of steps.

[00:30:42] Speaker 02:
The invention is actually as described in the specification.

[00:30:46] Speaker 02:
The invention is figuring out a way to, those steps were always performed, but they were performed in the devices that actually made up part of the, they call the path for the telecommunication.

[00:30:59] Speaker 02:
And the patents are about separating that functionality from the path, so it's got a sort of a separate flow.

[00:31:07] Speaker 02:
This is all summarized in the briefs.

[00:31:11] Speaker 02:
The reason why that makes a difference is because in order to separate that functionality, you have to have a new device outside of the control path to perform the functions that are claimed.

[00:31:26] Speaker 02:
And the fact of the matter is you could certainly have a patent on that device.

[00:31:33] Speaker 02:
And in fact, Sprint thought it was innovative.

[00:31:35] Speaker 02:
And they asked for one.

[00:31:37] Speaker 02:
They could have limited it to the CCP, but they didn't.

[00:31:41] Speaker 02:
And they could have claimed it as simply a method claim.

[00:31:47] Speaker 02:
We don't know about that.

[00:31:47] Speaker 02:
To be honest, I haven't really thought it through.

[00:31:50] Speaker 02:
But instead, what they want to do is use a limitation that they admit has essentially no constraints, that where they admit there is no disclosure or claiming, at least, of structure that captures that point of innovation.

[00:32:08] Speaker 02:
and which therefore does exactly what the cases cited again by Sprint in their briefing say is impermissible, making the very point of novelty a functionally claimed device.

[00:32:27] Speaker 02:
If module is a nonce word, and if device is a nonce word, and if computer, general purpose computer,

[00:32:39] Speaker 02:
as disclosed from the specification is insufficient structure to limit a claim, then how can using the same phrase in the claim itself fare any better?

[00:32:50] Speaker 02:
That's why we think that this claim is unlimited and indefinite, and why we would ask you to affirm the opinion below.

[00:32:57] Speaker 02:
Thank you.

[00:32:58] Speaker ?:
Thank you.

[00:33:06] Speaker 01:
We'll give you four minutes, Mr. Jakes.

[00:33:09] Speaker 01:
Thank you.

[00:33:12] Speaker 03:
There's no doubt for this invention to work.

[00:33:14] Speaker 03:
There has to be a specially programmed computer.

[00:33:17] Speaker 03:
But these claims are not directed to a specially programmed computer.

[00:33:21] Speaker 03:
They are method claims.

[00:33:22] Speaker 03:
They do claim a processing system as the environment in which this method operates.

[00:33:28] Speaker 03:
But the claims are not directed to a specially programmed computer.

[00:33:33] Speaker 03:
Council says you could rewrite these claims as a means clause.

[00:33:37] Speaker 03:
processing system as a means.

[00:33:39] Speaker 03:
Means for doing what?

[00:33:41] Speaker 03:
The rest of the method steps?

[00:33:42] Speaker 03:
Then all you're doing is simply converting method claims into means claims and applying 112F.

[00:33:48] Speaker 03:
We already know by this Court's precedent that we don't apply 112F to method claims unless they are recited as a particular step four.

[00:33:57] Speaker 03:
That would just change everything with respect to method claims.

[00:34:01] Speaker 03:
As to whether or not 112F was raised below, the District Court

[00:34:06] Speaker 03:
on A-20 and the footnote said the parties agree that the means plus function format of 112F and corresponding arguments do not apply to this case.

[00:34:16] Speaker 03:
That's what the court said.

[00:34:18] Speaker 03:
I don't believe that Cox has raised a 112F argument.

[00:34:21] Speaker 03:
They rely on 112F cases by analogy, and they keep saying that you have to look to these cases.

[00:34:27] Speaker 03:
But if we were going to do the 112F analysis, we'd have to look at processing system and say, okay, what's the function that it's performing?

[00:34:35] Speaker 03:
in the claim.

[00:34:36] Speaker 03:
Is it all the method steps?

[00:34:38] Speaker 03:
Well, that doesn't make any sense.

[00:34:40] Speaker 03:
But then we would have to look at what the corresponding structure is, whether there's an algorithm.

[00:34:45] Speaker 03:
There's an algorithm.

[00:34:46] Speaker 03:
There's lots of disclosure in this patent, but we've never done that because it's not necessary.

[00:34:52] Speaker 03:
We did propose a construction for a processing system as well, and that's also on A20 in the court's opinion.

[00:35:01] Speaker 03:
Sprint's proposed construction is a

[00:35:06] Speaker 03:
a system that processes signaling to a system called control.

[00:35:10] Speaker 03:
That's what we propose, and that's, we think, sufficiently definite, that that's all that you need for here.

[00:35:17] Speaker 03:
And ultimately, if 112F applies, which we don't think it does, that's not an argument for indefiniteness.

[00:35:27] Speaker 03:
These arguments really don't go to that.

[00:35:29] Speaker 03:
We would have to look at what the corresponding structure is and do claim construction

[00:35:34] Speaker 03:
They said it was not 112F.

[00:35:36] Speaker 03:
We haven't done that.

[00:35:37] Speaker 03:
And we don't need to do that now.

[00:35:38] Speaker 04:
Well, it would ultimately be indefinite if the court would both apply 112F and then say that there is a computer, but there's no indication of sufficient algorithm to constitute structure.

[00:35:52] Speaker 03:
I guess that falls into the answer.

[00:35:54] Speaker 03:
But we haven't even gotten to that point yet.

[00:35:55] Speaker 03:
There's lots of disclosure in the patent that would undermine that.

[00:36:00] Speaker 03:
What do you think?

[00:36:04] Speaker 04:
should be done with the trial court's finding based on the evidence.

[00:36:11] Speaker 04:
This is at page 10 of her opinion, addendum 19, that there is no established meaning in the art for the disputed limitation.

[00:36:20] Speaker 03:
That's a tough one to deal with because, first of all, Judge Robinson found the opposite in her later opinion on the very same evidence.

[00:36:28] Speaker 04:
But then all that means is she was right at least once.

[00:36:33] Speaker 04:
She may have been right here.

[00:36:34] Speaker 04:
What do you say to that?

[00:36:37] Speaker 03:
Her finding on that in this case shouldn't be given deference.

[00:36:42] Speaker 03:
We've described why it's wrong.

[00:36:44] Speaker 03:
We rely on our expert's declaration, but it's tainted by the court's other errors.

[00:36:50] Speaker 03:
The court assumed that definiteness required some type of explicit structural finding that she disregarded all the functional evidence.

[00:37:00] Speaker 03:
So starting with that, that infected it.

[00:37:03] Speaker 03:
The court evaluated this processing system in a vacuum, not looking at the particular claims.

[00:37:09] Speaker 03:
She relied on a computing dictionary instead of a telecommunications dictionary.

[00:37:14] Speaker 03:
The court cited, looked at these references and said they were extrinsic evidence.

[00:37:20] Speaker 03:
They're really intrinsic evidence.

[00:37:21] Speaker 03:
So all those errors affect that finding.

[00:37:24] Speaker 03:
And given that this could be a computer, which has an understood meaning

[00:37:32] Speaker 03:
the court's finding that there is no understood meaning is wrong.

[00:37:38] Speaker 00:
Thank you.

[00:37:39] Speaker 00:
Just one question.

[00:37:39] Speaker 00:
Was it resolved in a district court, their concern obviously is that when you get to infringement, that if you have a sufficiently broad claim construction that ends it.

[00:37:54] Speaker 00:
Was it resolved with Judge Robinson that the debate about whether it should be limited to the call manager

[00:38:02] Speaker 00:
or the other issues that they apparently believe would avoid infringement.

[00:38:09] Speaker 00:
Are those questions still open in your view?

[00:38:12] Speaker 03:
I don't believe so.

[00:38:14] Speaker 03:
No, I believe that we've offered the construction that would be an alternative construction, but there's no need to construe the claims in that narrow fashion.

[00:38:25] Speaker 03:
Cox has agreed that 112F doesn't apply and never put forward

[00:38:30] Speaker 03:
that they would be limited to what's in the specification.

[00:38:33] Speaker 00:
Thank you.

[00:38:35] Speaker 01:
The parties in the case are submitted.