[00:00:05] Speaker 02:
The first case for argument this morning is 151825, GPNE versus Apple.

[00:00:25] Speaker 02:
Mr. Nelson, whenever you're ready.

[00:00:31] Speaker 01:
May it please the court, and I have reserved five minutes for rebuttal.

[00:00:35] Speaker 01:
Yeah, we'll keep the clock starting at 5 to 15.

[00:00:38] Speaker 01:
The district court's fundamental error here was on the interpretation of the term no.

[00:00:48] Speaker 01:
It made two errors, either of which requires reversal here.

[00:00:54] Speaker 01:
First, over GPNE's objection, the district court used the word pager

[00:01:02] Speaker 01:
thereby leaving open a claim scope argument that allowed Apple to argue that a pager has legacy-type pager characteristics that are contradicted by the intrinsic evidence.

[00:01:14] Speaker 02:
But you didn't present any claim construction proposal that said, well, if you use the word pager, you have to put non-legacy before it?

[00:01:23] Speaker 01:
What we did do was, in our Markman brief, we said, Your Honor, if you use the word

[00:01:28] Speaker 01:
pager, it's going to beg the question, and it's going to create ambiguity.

[00:01:33] Speaker 01:
And that's on JA 510 of the record in our Markman brief.

[00:01:37] Speaker 01:
We specifically told the district court that the word pager would create an issue.

[00:01:42] Speaker 01:
And in fact, in our objections to the jury instruction.

[00:01:45] Speaker 02:
But back to that in Markman, when you advise the judge that this is going to create an issue,

[00:01:52] Speaker 02:
Did you propose any language in curative language?

[00:01:55] Speaker 02:
I mean, you had your initial plane construction proposal, but now we were playing off of a different chart.

[00:02:00] Speaker 02:
So did you propose any language to clarify pager so that it wouldn't lead to these ambiguities?

[00:02:05] Speaker 01:
Yes, Your Honor, from the hearing, and this is on JA 1577.

[00:02:08] Speaker 01:
So in our brief on 510, we said it's going to beg the question.

[00:02:12] Speaker 01:
At the hearing, now, Apple says that we conceded to the use of pager.

[00:02:16] Speaker 01:
That is absolutely not true.

[00:02:18] Speaker 01:
And on JA 1577, what we said is it would not be an issue using the word pager if pager is, quote, as broad as meaning contacting someone.

[00:02:29] Speaker 01:
And then we went on literally in the next sentence and said, but we think that our definition of node is preferable because it will not create ambiguity.

[00:02:38] Speaker 01:
That's exactly what we said at page 1577 of the transcript.

[00:02:41] Speaker 03:
Am I misremembering something?

[00:02:43] Speaker 03:
I thought the judge asked, did anybody think that the term pager needs to be construed?

[00:02:48] Speaker 03:
And nobody really spoke up at that moment.

[00:02:51] Speaker 01:
Look at pages 1570 through 1577 of the JA.

[00:02:54] Speaker 01:
That's how Apple characterizes it.

[00:02:56] Speaker 01:
That's just not true.

[00:02:58] Speaker 01:
We went in the district court at the Marklin hearing, asked the questions, and asked Apple's counsel the questions.

[00:03:05] Speaker 01:
And Apple was responding on a back and forth.

[00:03:07] Speaker 01:
And the district court said, isn't this just going to kick the can down the road in the district court's terminology?

[00:03:15] Speaker 01:
And Apple said no, because pager means more than just a pager, effectively.

[00:03:20] Speaker 01:
There's more to the claim than just a pager.

[00:03:22] Speaker 01:
And our council stated that, look, if you use pager, of course, if you say pager means just contacting someone, then that's not a problem.

[00:03:29] Speaker 01:
But we think our definition of node is better, devices that can transmit and receive information, is better.

[00:03:36] Speaker 01:
It captures the entire context of the patent.

[00:03:39] Speaker 01:
And that's exactly what we were afraid of.

[00:03:41] Speaker 01:
That's what we flagged to the district court in our Markman brief.

[00:03:45] Speaker 01:
That's what we continue to flag to the district court throughout the trial.

[00:03:48] Speaker 01:
So I don't think it's fair.

[00:03:49] Speaker 01:
I understand how Apple characterizes it.

[00:03:51] Speaker 01:
But it's not fair to say that the district court said, well, give me a definition of pager.

[00:03:58] Speaker 01:
And if we did, we did it anyway on 1577.

[00:04:01] Speaker 01:
But regardless, this court and the O2 decision and in others have clearly stated that once you objected the Markman hearing, and we did not just have the hearing but in the briefing, and point out the fact that there is an ambiguity, then we have made our objection.

[00:04:14] Speaker 01:
But we didn't just do that.

[00:04:16] Speaker 01:
If you go to the objections to the jury instruction, and this is J.A.

[00:04:21] Speaker 01:
26273 through 26277,

[00:04:25] Speaker 01:
We specifically stated that Apple's presentation, quotes, creates an O2 problem.

[00:04:31] Speaker 01:
We flagged to the district court, not just during the Markman, but throughout the trial, that there's an O2 problem.

[00:04:36] Speaker 01:
And then we said the curative way to deal with this issue is to give our construction of the term node, which is devices that can transmit and receive information, which captures the true scope and context of the patents.

[00:04:50] Speaker 01:
So that, I think, is why there is no waiver here.

[00:04:55] Speaker 01:
This is a term within a term.

[00:04:57] Speaker 01:
We did not want the term pager in the construction for this very reason.

[00:05:03] Speaker 01:
We did not want there to be an ambiguity.

[00:05:05] Speaker 01:
And in fact, it was a two-step move here.

[00:05:08] Speaker 01:
First, Apple proposes a construction that creates ambiguity by using the term pager.

[00:05:13] Speaker 01:
And then Apple, the district court, excuse me.

[00:05:16] Speaker 02:
Well, pager appears like 200 times in the specification.

[00:05:20] Speaker 02:
I mean, the district court didn't make up that term.

[00:05:24] Speaker 02:
It appears in the specification.

[00:05:26] Speaker 02:
In fact, in lieu of node, which only appears in the abstract, right?

[00:05:31] Speaker 01:
There is no doubt, and we have never argued anything other than the word pager appears in the specification.

[00:05:38] Speaker 01:
But it's not just pager in the abstract.

[00:05:41] Speaker 01:
No pun intended.

[00:05:42] Speaker 01:
It's pager as confined by the specification.

[00:05:48] Speaker 01:
And what the district court missed, I think,

[00:05:51] Speaker 01:
was that in the context of this particular patent, that a pager is not just a legacy pager.

[00:05:57] Speaker 01:
So, for example, it has features like, and this is all in Column 14, it has features like data compression and decompression.

[00:06:05] Speaker 01:
And Figure 8 has a pressure-sensitive keypad.

[00:06:08] Speaker 01:
It has all these features that just did not exist.

[00:06:10] Speaker 02:
And to use an analogy... If you had quite a lengthy trial, I presume you did, or you have the opportunity to,

[00:06:18] Speaker 02:
draw that up, either through your own witnesses or through cross-examination, right?

[00:06:22] Speaker 01:
We absolutely did, which is why there's a problem.

[00:06:25] Speaker 01:
The jury decided claim scope here.

[00:06:27] Speaker 01:
The entire battle at trial was on what does a pager mean?

[00:06:33] Speaker 01:
It wasn't whether the devices are pagers or not.

[00:06:36] Speaker 01:
It was, what does a pager mean?

[00:06:38] Speaker 01:
And by the way, the district court didn't even say, in the instructions, what does a pager mean in the context of the patent?

[00:06:44] Speaker 01:
That was over our objection.

[00:06:45] Speaker 01:
Didn't even say that.

[00:06:46] Speaker 01:
What is a pager?

[00:06:48] Speaker 01:
Use a plain and ordinary meaning at the time of the patent.

[00:06:51] Speaker 01:
And so we had both sides.

[00:06:53] Speaker 01:
We had Apple saying, for example, that a pager means that it has to be high power despite column 14 in the specification, which specifically talks about low power devices.

[00:07:05] Speaker 01:
We have Apple talking about how there can be, for example,

[00:07:10] Speaker 01:
the, the, the wattage.

[00:07:13] Speaker 02:
But let me ask you, in your proposed instruction, let's assume, let's take just the first part of it.

[00:07:18] Speaker 02:
If the district court had adopted the first sentence, all that says is you have to apply the plain and ordinary meaning after reading the entire patent and the file history.

[00:07:27] Speaker 02:
If the district court had accepted that and given that instruction to the jury, where would we be left?

[00:07:33] Speaker 02:
Is that any different?

[00:07:34] Speaker 02:
I mean, it would depend on everything that had gone down in trial in terms of describing

[00:07:38] Speaker 02:
what a pager is and the difference between a pager and a legacy pager, right?

[00:07:42] Speaker 01:
Two answers.

[00:07:42] Speaker 01:
Number one, yes, that alone would have made a difference, because Apple's presentation was man on the street type testimony.

[00:07:48] Speaker 01:
They asked their witnesses, is this a pager or is this not a pager, despite admittedly not having read the specification at all.

[00:07:56] Speaker 01:
But number two, and I think more importantly, our objection was not just on that in the jury instructions, our objection at the jury instructions and at Markman.

[00:08:04] Speaker 03:
Can I ask, it seems to me you had a couple of different objections.

[00:08:08] Speaker 03:
One is asking for baking in plain and ordinary meaning in the context of the specification of execution history.

[00:08:16] Speaker 03:
I'm a little puzzled about whether it would ever be

[00:08:21] Speaker 03:
permissible to give that to the jury.

[00:08:24] Speaker 03:
That's an express invitation to do a claim construction, as opposed to ordinary customary meaning, which is the meaning you all carry in your heads, and you're not doing any contextual.

[00:08:36] Speaker 03:
Is there precedent for giving that kind of instruction to the jury?

[00:08:40] Speaker 03:
Please do a claim construction analysis.

[00:08:42] Speaker 01:
Well, we are an uncharted.

[00:08:43] Speaker 01:
I don't think so, Your Honor, in the sense of... Okay.

[00:08:46] Speaker 03:
But I do want to guess.

[00:08:47] Speaker 03:
I get to the... But that's a problem for me on that proposal.

[00:08:50] Speaker 03:
The other thing that you proposed was to ask, I might forget whether you did this in the jury instruction, but you did this at some point.

[00:08:56] Speaker 03:
You said, Judge Koh, in your claim construction opinion, you said something about how a single device can actually operate on two different networks.

[00:09:07] Speaker 03:
Please put that in the instruction.

[00:09:10] Speaker 03:
As far as I know, those are the two specific things that you requested, other than please go back to our original claim construction proposal that doesn't use Pager at all.

[00:09:20] Speaker 03:
Do I have the state of the record right?

[00:09:21] Speaker 01:
That is correct.

[00:09:22] Speaker 01:
There were two parts and you accurately stated what we asked for in our jury instructions and I don't want to overlook your last point, which is we did ask to go back to our construction, which we think is the correct one.

[00:09:32] Speaker 01:
But yes, that is correct.

[00:09:36] Speaker 01:
Because of that, I mean, the problem is the trial became an issue about what is the exact scope of the word pager.

[00:09:43] Speaker 01:
Right.

[00:09:43] Speaker 03:
But if I have a problem with the proposal about telling the jury to analyze all of the intrinsic evidence wherever you find it, then I'm left to thinking about your other proposal about, which is very much focused on the operate independently, the network portion of the claim construct.

[00:10:03] Speaker 03:
Correct.

[00:10:03] Speaker 03:
So why is it not

[00:10:05] Speaker 03:
a, within a trial judge's pretty broad discretion here to conclude, look, the words that I gave operate independently, captures the point well enough.

[00:10:20] Speaker 03:
And you can argue about independence in that work, and I want to ask you about that, but just on the instructional point.

[00:10:26] Speaker 01:
Well, what I think it's still, that's still a claim scope to go to the jury because the issue still was,

[00:10:31] Speaker 01:
Can you have a device that does data?

[00:10:33] Speaker 01:
And what does operate independently mean?

[00:10:36] Speaker 01:
Which is not just applying it to the facts.

[00:10:38] Speaker 01:
It is clearly a question of claim scope based upon the evidence.

[00:10:41] Speaker 03:
Well, part of what the district judge had to conclude in deciding whether the original operate independently instruction was good enough on this point was whether Apple actually not only inched up to the line many times, but crossed the line and actually suggested something

[00:11:01] Speaker 03:
that was misleading on it.

[00:11:04] Speaker 03:
I'm not sure that it's beyond the trial judge's discretion, and she was actually sitting there in a way we weren't, to conclude that here, Apple never quite crossed that line.

[00:11:14] Speaker 01:
Well, I think that that's, look, at trial you had competing experts talking about this, including the operator independently, about what it means.

[00:11:22] Speaker 01:
What does it, can you share resources, despite the fact that, for example, Figure 1 and 3 showing the data network sharing resources with the telephone

[00:11:30] Speaker 01:
You had literally arguments on this term by looking at the Rule 131 declaration about this particular issue and operating independently.

[00:11:38] Speaker 01:
And that's why it was definitely even on that particular issue, claim scope, putting aside the issue, by the way, that of course we vehemently disagree with the fact that operating independently was in the term to begin with and made that objection clear as well.

[00:11:50] Speaker 01:
But even assuming that the district court was right on that threshold issue, that it still became an issue of open claim scope because the district court was allowing

[00:11:59] Speaker 01:
the jury to hear competing arguments.

[00:12:00] Speaker 01:
You had Apple's expert on one hand talking about the Rule 131 declaration, how that must mean that it's operating independently because this is on JA 657, it's the Rule 131 declaration.

[00:12:12] Speaker 01:
And then you had, starting at 657, and then you had our expert and our witness just talking about how the exact opposite was true, that in fact all it meant was that you pick up a call, or that you pick up a telephone with the state of the art, and this goes back to the patent itself and the specification,

[00:12:28] Speaker 01:
is we are effectively making the same arguments to the jury that we made at Markman about what does operate independently mean.

[00:12:35] Speaker 01:
And that is entirely inappropriate, even on the phrase operate independently.

[00:12:39] Speaker 01:
So that's why I think that even on operate independently, even assuming that you think it belongs in the construction, even though we think it does not, I mean, keep in mind, I know I'm running short on time, but I do want to get this point out on operate independently, that there is a separate claim element

[00:12:55] Speaker 01:
for the network, and that's the data network in the claim.

[00:12:59] Speaker 01:
What the District Court did here is it imported the limitation on network into the definition of the device of the node, which is entirely inappropriate.

[00:13:08] Speaker 01:
And so because of that, even if you assume that the District Court was correct on that point, it still left open the exact same claim arguments that both sides made about interpreting the prosecution history.

[00:13:20] Speaker 01:
And that's why, Judge Toronto, I think we are in a little bit of uncharted territory.

[00:13:23] Speaker 01:
where, of course, we have to say it's not just plain and ordinary meaning.

[00:13:26] Speaker 01:
It's plain and ordinary meaning in the context of the patent, because that's what was missing from all of this.

[00:13:32] Speaker 01:
So I'm happy to continue to take questions.

[00:13:34] Speaker 01:
I do want to reserve a little bit of my time to answer some of the questions.

[00:13:40] Speaker 03:
One question.

[00:13:41] Speaker 03:
There's a bit of discussion.

[00:13:43] Speaker 03:
I think it's at A42.

[00:13:47] Speaker 03:
one of the, in the main post trial opinion that refers to testimony by Dr. Wilson, which in turn refers to some back and forth in a re-exam about the difference between packet switch and circuit switch telephone networks.

[00:14:02] Speaker 03:
Is there anything in the patent that indicates that when it talks about telephones and telephone networks that it is limiting its

[00:14:15] Speaker 03:
characterization to the old circuit switch network as opposed to the, even like, I think by 1994, already on the scene packet switch telephone number?

[00:14:27] Speaker 01:
The answer, by the way, just, I will answer that, but you're wrong on the last point, which is there was only circuit switch in 1994.

[00:14:34] Speaker 01:
GSM was on the scene, and the telephone network, it was only, that was a key point, was that it was only circuit switch.

[00:14:39] Speaker 03:
Is there evidence on that, on that particular timing question?

[00:14:44] Speaker 01:
Yes, and I can get you a site in my rebuttal.

[00:14:48] Speaker 01:
But let me give you a couple sites in the transcript that just were the PTO.

[00:14:52] Speaker 01:
And this is a critical point.

[00:14:53] Speaker 01:
The Patent and Trademark Office used handheld computer art to satisfy the term the element no.

[00:15:02] Speaker 01:
Now, it found that the claims were still valid, both originally and in the re-exam, because of the other claim elements on the two-factor authentication.

[00:15:11] Speaker 01:
But at the transcript, not in the JA, but in the transcript at 1390 and 1391, there is testimony about how the word node, that the handheld computers were used, not just pagers, but handheld computers were used to satisfy the term node.

[00:15:28] Speaker 01:
And so, now, of course, and by the way, the Rule 131 declaration was filed to swear behind prior art that was a handheld computer.

[00:15:37] Speaker 01:
So in that sense, and I believe it was on GSM.

[00:15:41] Speaker 01:
I know there was GSM prior art that we got around because of this very issue.

[00:15:46] Speaker 01:
So now, to be clear, and I think what Apple is going to say, is that the district court, excuse me, the PTO rejected a packet switch, circuit switch distinction.

[00:15:57] Speaker 01:
But it did affirm the fact that node can be met by a handheld computer, number one.

[00:16:06] Speaker 01:
and not just a legacy pager.

[00:16:08] Speaker 01:
And number two, if you look at the context, both in column one, talking about the state of the art, which was generally one-way legacy pagers, and using the telephone to call back.

[00:16:18] Speaker 01:
And number two, if you look even at the rule 131 declaration, which talks about the passive device and how it was a passive device, and this was two-way data communication using, and it talks about switching in the actual rule 131 declaration.

[00:16:34] Speaker 01:
I think that's why we think it's clearly packet switches is what they're trying to get around, at a minimum, if it's not just picking up the phone and calling.

[00:16:43] Speaker 02:
Thank you.

[00:16:43] Speaker 02:
Thank you.

[00:16:44] Speaker 02:
We'll be still in your call.

[00:16:45] Speaker 02:
Thank you, Your Honor.

[00:16:52] Speaker 00:
Good morning.

[00:16:53] Speaker 00:
Good morning.

[00:16:55] Speaker 00:
May it please the Court, my name is Lauren Fletcher and I represent Apple.

[00:16:59] Speaker 00:
The key claim construction dispute here was whether the claim term node must be limited to pagers.

[00:17:04] Speaker 00:
The district court correctly construed the node as limited to pagers and provided 11 separate reasons supporting that construction.

[00:17:12] Speaker 00:
I'm happy to go through the intrinsic support for that, but counsel's argument focused more on the O2 micro issue, so I'd like to turn to that first.

[00:17:20] Speaker 03:
Here, the district.

[00:17:22] Speaker 03:
It's, I guess, related to the O2 micro issue.

[00:17:28] Speaker 03:
my understanding, even before the trial started, it's perfectly apparent that if you look at normal claim construction materials, using the word pager is a perfectly fine thing to do.

[00:17:40] Speaker 03:
It's all over the specification.

[00:17:43] Speaker 03:
It seems, on the other hand, as though that word is extremely likely to trigger misleading thoughts in the mind of a lay juror.

[00:17:55] Speaker 03:
What's the right

[00:17:57] Speaker 03:
approach to claim construction if both of those premises are true.

[00:18:02] Speaker 00:
So here I think Judge Coe took exactly the right approach.

[00:18:05] Speaker 00:
First, she viewed the claim construction dispute that was presented to her by the parties.

[00:18:10] Speaker 00:
And that primary dispute was whether nodes must be limited to pagers or not.

[00:18:15] Speaker 00:
At the Markman hearing, she asked if either party required or requested a further construction of the word pager.

[00:18:22] Speaker 00:
Apple said no.

[00:18:23] Speaker 00:
There's going to be a fact issue about whether Apple's iPhones and iPads operate

[00:18:27] Speaker 00:
on a telephone network or a paging network, but that's a fact issue.

[00:18:31] Speaker 00:
And GP&E never said, no, Your Honor, we think this is a claim construction dispute where you need to provide further guidance on the word pager.

[00:18:39] Speaker 00:
The one issue that did come up at the Markman hearing was whether the pagers would have to be limited to legacy pagers or not.

[00:18:45] Speaker 00:
And Judge Coat dealt with that issue.

[00:18:47] Speaker 00:
At the Markman hearing, she said, well, what about if I add in the requirement that these pagers have to be two-way pagers that offer two-way data communications?

[00:18:57] Speaker 00:
That resolves the issue of excluding the legacy pagers that were distinguished in the patent as prior art, the long-wave pagers that were in the prior art.

[00:19:04] Speaker 00:
So Judge Coe specifically put in the requirement of two-way data packet communications to show that this wasn't just an old legacy pager.

[00:19:14] Speaker 00:
She also added the requirement that, based on the intrinsic record and the inventor's own statements, that the pager has to work on a paging system that operates independently from the telephone network.

[00:19:25] Speaker 00:
So with that guidance, Judge Cove did present enough information for the jury then to be able to make a factual determination as to whether Apple's products operate as nodes.

[00:19:38] Speaker 00:
G-Panney's suggestion that the district court should have done more is both waived and wrong.

[00:19:44] Speaker 00:
First, the district court correctly found waiver.

[00:19:47] Speaker 00:
G-Panney made the strategic choice throughout this case to argue that the claim term node should not be limited to pagers at all.

[00:19:54] Speaker 00:
never asked the district court to provide further construction, despite several opportunities.

[00:20:00] Speaker 00:
For example, at the Markman hearing, which I just discussed, also at summary judgment.

[00:20:04] Speaker 00:
Apple moved for summary judgment of no infringement, and in opposing that motion, GPNE acknowledged that there was a factual dispute, and that there would be a factual dispute for trial as to whether Apple's products were pagers that operated on a paging network.

[00:20:19] Speaker 00:
That was at page 82758 of the appendix.

[00:20:24] Speaker 00:
GP&E won that motion and that's why we went to trial.

[00:20:27] Speaker 00:
During the trial, GP&E had plenty of opportunities to again raise this issue and say there's a claim construction dispute as to what the word pager means and we require further construction.

[00:20:37] Speaker 03:
I think in the first half of the argument I said my recollection of the record was that they made two requests that were pretty clearly

[00:20:49] Speaker 03:
formal requests for once the trial got started.

[00:20:53] Speaker 03:
One had to do with the operate independently and adding a couple of sentences from Judge Post's claim construction opinion and then the other was the plain and ordinary meeting in the context of the specification and prosecution history.

[00:21:11] Speaker 03:
Do you agree that those two requests at least were made?

[00:21:15] Speaker 00:
That's correct.

[00:21:16] Speaker 00:
And those are the two specific requests that were made.

[00:21:18] Speaker 00:
The GPND never said to Judge Coe, Your Honor, we'd like you to construe the word pager and provide more guidance on that.

[00:21:24] Speaker 00:
Instead, it was making different arguments.

[00:21:26] Speaker 00:
One was it wanted Judge Coe to instruct the jury that a device could be both a pager and a cell phone.

[00:21:32] Speaker 00:
But that's what the whole fact dispute was before the jury.

[00:21:36] Speaker 00:
The products we're talking about are Apple's iPhones and iPads.

[00:21:40] Speaker 00:
And we weren't saying that it's a cell phone.

[00:21:45] Speaker 00:
And our argument was that it can't meet the claim of a structure of node because it's a telephone that operates on a telephone network and that's different from a paging system.

[00:21:56] Speaker 00:
And everybody agreed, including GP&E's expert, that telephone networks and paging networks are two different things.

[00:22:02] Speaker 00:
So what Apple's presentation was at trial was explaining there are differences between paging networks and telephone networks and the reason Apple's products can't meet

[00:22:12] Speaker 00:
the claim construction of node is because when they're functioning on the GPRS and LTE networks, which were the only accused networks, that they're operating on a telephone system.

[00:22:24] Speaker 03:
So what actually was the factual issue at trial?

[00:22:29] Speaker 03:
If the claim construction required this and no more, namely that the accused, a device covered by the claim

[00:22:42] Speaker 03:
had to, as programmed, operate on a network that is a telephone network.

[00:22:49] Speaker 03:
What was the factual issue?

[00:22:50] Speaker 00:
So the primary factual issue was whether Apple's iPhones and iPads, when they're using the GPRS and LTE protocols, which are industry standards, whether they're communicating on paging systems or telephone networks.

[00:23:04] Speaker 00:
And GPNE's expert agreed these are two different types of networks.

[00:23:07] Speaker 00:
So Apple presented evidence showing that the GPRS and LTE protocols

[00:23:12] Speaker 00:
that are used by Apple's products are working on telephone networks.

[00:23:15] Speaker 00:
And they showed this by explaining that the systems use different frequencies, different protocols, different bandwidths, different power.

[00:23:23] Speaker 00:
And Apple showed that the networks were not independent.

[00:23:27] Speaker 00:
And GP&E's expert actually agreed with this.

[00:23:31] Speaker 00:
At trial, GP&E's expert agreed that the GSM is a telephone network.

[00:23:37] Speaker 00:
that the accused GPRS and LTE networks are built upon and share resources with that same GSM telephone network.

[00:23:46] Speaker 00:
And then GPNE's expert, Dr. Danon, admitted on cross-examination that the accused GPRS and LTE networks would, quote, fall down if the GSM telephone network were removed.

[00:23:58] Speaker 00:
That's because the accused networks are so interrelated and intertwined with the GSM telephone network

[00:24:05] Speaker 00:
that they don't operate independently.

[00:24:08] Speaker 00:
And Dr. Denon admitted that at page 828417.

[00:24:13] Speaker 00:
So even setting apart the issue of what is a pager, independent from that, GPNE agreed that the accused invention has to operate on a network that operates independently from the telephone network.

[00:24:27] Speaker 00:
That was what the inventor told the Patent Office was part of his invention.

[00:24:32] Speaker 00:
It's what's in the specification.

[00:24:34] Speaker 03:
I was, I guess, a little uncertain whether your brief makes the argument that all of this dispute about pager is immaterial because the evidence on the operate independently allows only one finding, namely, that these accused devices always operate on a network that is a telephone network.

[00:24:57] Speaker 03:
So it really doesn't matter what you call it.

[00:24:59] Speaker 00:
That's exactly right.

[00:25:00] Speaker 00:
And that's perhaps the simplest way to get to the heart of the issue here.

[00:25:04] Speaker 00:
is that the evidence was undisputed that the accused GPRS and LTE protocols can't work without the GSM telephone network.

[00:25:13] Speaker 00:
That they're intertwined with that and they would fall down if they didn't have the GSM telephone network.

[00:25:18] Speaker 00:
So regardless of whether something's called a pager or a paging system or not, the networks that are being used by the accused devices

[00:25:26] Speaker 00:
are not independent from a telephone network and everyone agreed that GSM is a telephone network.

[00:25:31] Speaker 02:
So does that get to the heart of what they were seeking in their proposed instruction?

[00:25:35] Speaker 02:
Because the concluding sentence in their proposed instructions says a pager could transmit certain communications on a paging system that operates independently while engaging in other types of communication on the telephone network.

[00:25:47] Speaker 00:
But what they never showed was that there was any communication that engaged on a paging system that's independent of the telephone network.

[00:25:54] Speaker 00:
The only accused functionality here were when the GPRS and LTE protocols are being used.

[00:26:00] Speaker 00:
And those protocols, as our expert Dr. Wilson testified and as GPNE's expert Dr. Dunan agreed, is interdependent and uses the GSM telephone network.

[00:26:13] Speaker 00:
So they, even though they

[00:26:15] Speaker 00:
wanted to be able to make the argument that a device could be both a pager and a cell phone.

[00:26:21] Speaker 00:
They never showed that, and they never had the evidence that showed that, particularly when we look at the operates independently requirement.

[00:26:27] Speaker 00:
Because GPD's own expert admitted on cross-examination that the GPRS and LTE networks would fall down without the telephone network component.

[00:26:36] Speaker 00:
So there's no reasonable jury could have found on this record that the accused protocols operate independently from telephone network.

[00:26:45] Speaker 03:
So we do think that is probably the simplest way to affirm the non-affringement judgment without having to even deal with... When I was looking at the pieces of the record that I looked at, it seemed interesting to me to... An aspect of the testimony seemed to turn on the difference between circuit switching and packet switching and whether

[00:27:10] Speaker 03:
the networks like GSM and the telephone described in the patent was one or the other.

[00:27:19] Speaker 03:
Can you explain that?

[00:27:21] Speaker 03:
I thought, for example, Dr. Dinan made a point about trying to distinguish the circuit and the packet switch network, and your Dr. Wilson referred to some re-exam prosecution history where the BTO maybe rejected that argument.

[00:27:38] Speaker 03:
the materials at least that I looked at left me uncertain about what was going on.

[00:27:43] Speaker 00:
That's right.

[00:27:43] Speaker 00:
Our view is that the packet switching versus circuit switching has nothing to do, that's not a way to define whether something is pager.

[00:27:50] Speaker 00:
But ultimately this turned into a fact dispute where we had competing expert testimony where Dr. Wilson for Apple provided characteristics of how pagers work and what paging systems are and contrasted those with telephones and telephone systems.

[00:28:03] Speaker 00:
And the patent is clear that it treats telephones and pagers

[00:28:07] Speaker 00:
telephone systems and paging networks differently.

[00:28:09] Speaker 03:
A part of my question was whether it's clear that the patent when it talks about telephone networks is talking about circuit switch.

[00:28:18] Speaker 00:
No, I don't think the patent says one way or the other.

[00:28:21] Speaker 00:
And at the time of the invention, mobile telephone devices were known, including GSM, which has a combination of circuit switching and packet switching technology.

[00:28:29] Speaker 00:
I don't think there's anything in the patent that says it was making a distinction between packet switching and circuit switching.

[00:28:35] Speaker 03:
And was that a point that, in reexamination, the examiner or the board or somebody made?

[00:28:41] Speaker 00:
During reexamination, that point that was raised by GP&A was dismissed as not relevant.

[00:28:48] Speaker 00:
And that's what Dr. Wilson referred to in the testimony at trial.

[00:28:52] Speaker 03:
But the actual reexam passages, as far as I know, are not in the appendix?

[00:28:56] Speaker 00:
I don't believe those are in the appendix.

[00:28:58] Speaker 00:
It's just Dr. Wilson's testimony about what they said.

[00:29:02] Speaker 00:
And so again, GPNE was able to present testimony from its expert on the fact issue of whether GPRS and LTE are operating as paging systems or telephone networks.

[00:29:15] Speaker 00:
It did make an argument about circuit switch versus packet switch and trying to support that.

[00:29:19] Speaker 03:
What was the point of various questions and answers of the sort?

[00:29:24] Speaker 03:
Has anybody ever called this iPhone a pager?

[00:29:27] Speaker 00:
Well, it's relevant because GPND is taking a technology that was described in 1994 in the first patent application and trying to apply it to modern technology that works in a completely different system.

[00:29:41] Speaker 00:
So for example, there were Etsy documents.

[00:29:43] Speaker 00:
Etsy is the body that does the standard setting for the GPRS and LTE protocols that are used by the accused products.

[00:29:51] Speaker 00:
But it also has a separate technical specification for a separate two-way paging system.

[00:29:56] Speaker 00:
So the point of some of these questions was to show that people of ordinary skill in the art, both back in 1994 at the time of the election convention, as well as today, view paging systems and telephone networks as different things, and everything can be categorized as either working on a paging network or a telephone network.

[00:30:14] Speaker 00:
Here, all of the evidence that Apple pointed to showed that GPRS and LTE protocols are working on a telephone network.

[00:30:21] Speaker 00:
And that's what Etsy documents and the questions about

[00:30:24] Speaker 00:
pagers versus telephones were designed to show that it's either this type of network or that type of network.

[00:30:31] Speaker 00:
Everything we've got shows that this is a telephone network.

[00:30:33] Speaker 00:
And again, dependent on the telephone network, especially when it comes to GSM, which GPNE conceded is a telephone network.

[00:30:42] Speaker 03:
There's no comparable concession about the LTE?

[00:30:46] Speaker 00:
This concession applied for both the GPRS and LTE programs.

[00:30:50] Speaker 03:
They both write on the GSM?

[00:30:52] Speaker 00:
Yes, and that's at page 28417 of the appendix that addressed both GPRS as well as LTE where Dr. DeNond said if you take GSM's resources, the entire US network will fall down and that was in the question referring to the LTE protocol.

[00:31:11] Speaker 00:
So he did make that admission for both accused protocols.

[00:31:17] Speaker 00:
So if there are no further questions,

[00:31:21] Speaker 00:
Apple requests that the court affirm the judgment about infringement.

[00:31:24] Speaker 00:
Thank you.

[00:31:30] Speaker 01:
Thank you, Your Honor.

[00:31:31] Speaker 01:
Judge Troino, I want to ask, excuse me, come back on a couple of points and give you a couple of record citations.

[00:31:37] Speaker 03:
I got nervous there for a minute.

[00:31:40] Speaker 01:
The first is the GSM packet versus switching.

[00:31:45] Speaker 01:
It's a circuit switch network.

[00:31:48] Speaker 01:
That's in the transcript, not in the JA, but it's in the transcript at 526, 527, where Dr. Danon testifies that it is a circuit switch network on the GSM.

[00:32:00] Speaker 01:
Dr. Danon also in the JA 627 and 628 talks about the handheld computer art that the PTO used to satisfy the term node, and also relevant

[00:32:13] Speaker 01:
is the file history of the parent application, again not in the JA, but relevant, is on the 7031716 file history at page 18 and 19 of the response to the final office action.

[00:32:28] Speaker 01:
There is a description of the interview between the examiner and the patentee about the distinction between node

[00:32:37] Speaker 01:
and pager and how node is more sophisticated because of and it's allowed by the written description because node captures a sophisticated device that includes in the specification pointing to things like in column three and column four that not just the pager but the pager computer which is in figures two and figures eight and then at the in columns three and four and then column nine and column ten

[00:33:05] Speaker 01:
talks about the pager computer, not just the pager, and that is in the file history of the parent application.

[00:33:11] Speaker 01:
And the parent application, I'm sorry, what was the number?

[00:33:14] Speaker 01:
7031716.

[00:33:15] Speaker 01:
And it's on the overall file history, it starts on page 36, and it's page 18 and 19 of the response to the office action.

[00:33:27] Speaker 01:
And then, of course, in JA 657,

[00:33:32] Speaker 01:
is when in the rule 131 declaration where they're specifically talking about telephone switching directly.

[00:33:39] Speaker 01:
And then in the transcript at page 1275, not today, but the transcript at 1275, there is testimony on Mobitex, which is the system that Blackberry used to use at the mobile data packet network.

[00:33:56] Speaker 01:
Not telephone, but it was a data packet network.

[00:34:00] Speaker 01:
And so that is the distinction that we're trying.

[00:34:02] Speaker 01:
We're talking about operating independently.

[00:34:04] Speaker 01:
We're talking about the data network that goes along with it, not the telephone.

[00:34:08] Speaker 01:
And talk in column one, talking about picking up the telephone and calling somebody back.

[00:34:12] Speaker 01:
That is a huge distinction, especially given the other claim element here, which is the data network.

[00:34:17] Speaker 01:
And importing operate independently into the definition of node does not make any sense given that other claim element.

[00:34:24] Speaker 01:
And I do want to come back to a couple points on this distinction between, on one hand,

[00:34:30] Speaker 01:
operate independently than the other pager and whether, even if you find that pager was wrong, you can affirm on operate independently.

[00:34:37] Speaker 01:
First, we don't think operate independently should be there.

[00:34:40] Speaker 01:
But even if you do, going back to the Abbott case, this dispute was clearly about what pager is was central to the trial.

[00:34:48] Speaker 01:
It was a general verdict here.

[00:34:49] Speaker 01:
You cannot separate out one for the other.

[00:34:51] Speaker 01:
And to say that, well, we're going to overlook one because the pager, just because of operate independently, ignores the central focus where you have

[00:35:00] Speaker 01:
Apple's non-infringement expert talking about things like low power and high power, saying that a pager must be high power that is, quote, implied by the claim construction.

[00:35:10] Speaker 01:
That's on J28965, despite the fact that in column 14 of the patent, you have clearly low power devices.

[00:35:20] Speaker 03:
Why isn't all of that essentially resolved by the concession

[00:35:27] Speaker 03:
that the GSM network is a telephone network.

[00:35:30] Speaker 03:
And if you add to that the evidence, which I'm not sure is disputed, that each of the accused devices, because they use LTE and the other one, require, these particular devices require the GSM network.

[00:35:46] Speaker 03:
Why doesn't that end the matter?

[00:35:48] Speaker 03:
However you characterize the network, whether it's power-based or protocol-based or whatever it is, there's a concession, GSM is that, a telephone

[00:35:56] Speaker 01:
GSM is clearly a telephone network, but it's, look, figure one and figure three show shared resources, okay?

[00:36:04] Speaker 01:
So the reason why the network would both fall down is because they share towers, right?

[00:36:08] Speaker 01:
It's not that the protocols are necessarily the same.

[00:36:11] Speaker 01:
It's because they share the same towers, and that's exactly what happens in figure one and figure three.

[00:36:15] Speaker 01:
So even assuming it operates independently should be in the definition of node, that still leaves open the claim scope

[00:36:21] Speaker 01:
of, well, it's different from what is in figures one and figure three, which is the sharing of the resources.

[00:36:28] Speaker 01:
So I don't think it's enough just to say that GSM by itself resolves the issue.

[00:36:32] Speaker 01:
I mean, look, you plug anything into the outlet and you're sharing the resource of the electricity.

[00:36:37] Speaker 01:
It doesn't matter that there's a, you know, that they share a tower in this particular circumstance.

[00:36:43] Speaker 01:
And the fact that it is a pager, I'll just close with, you know, I don't mean to do a Senator, you're no John Kennedy here,

[00:36:49] Speaker 01:
comparing it to the Alexander Graham Bell's patent, where Alexander Graham Bell used, it was improved telegraphy here.

[00:36:58] Speaker 01:
The overall context of this patent is not just a legacy pager, and the contrast that Apple made on the legacy pagers, for example, on the FTC calling it a one-way pager.

[00:37:09] Speaker 01:
It is the overall context that is a device that can decompress and compress data, that has graphics, that has a pressure-sensitive touchpad,

[00:37:18] Speaker 01:
that is a computer, which is why the PTO can correctly use that art.

[00:37:23] Speaker 01:
So thank you, Your Honor.

[00:37:24] Speaker 01:
I appreciate your time.

[00:37:25] Speaker 01:
We thank both sides and the case is submitted.