[00:00:00] Speaker 03:
Last case for argument is 151754 IPCOM versus HTC Corporation.

[00:00:42] Speaker 02:
Good morning.

[00:00:45] Speaker 02:
This case deals with a handshaking subroutine to enable the mobile device to gain access to the communications network.

[00:00:56] Speaker 02:
It doesn't cover anything that happens on the communications network or the latch after permission to access the latch has been granted.

[00:01:07] Speaker 02:
The invention introduces an additional or alternative path

[00:01:11] Speaker 02:
to gain access to the ratchet that isn't present in the prior art.

[00:01:16] Speaker 02:
And the PTAB erred in misconstruing the claim limitation present in all the claims of right of access to include activity that occurs after access has been granted.

[00:01:29] Speaker 02:
Under the proper construction of right of access, the case should be reversed because the prior art only discloses a single path to access the ratchet.

[00:01:39] Speaker 02:
We have a second basis for reversal

[00:01:41] Speaker 02:
on Claim 26, construction upon the basis of.

[00:01:45] Speaker 02:
However, if the court agrees with our construction of right of access, you need not address that.

[00:01:51] Speaker 03:
On the right of access, okay, the board acknowledged that it's doing its farthest reasonable interpretation, and this is a re-exam, so nobody's disputing that they have the right to do that.

[00:02:01] Speaker 03:
So their analysis was the claims don't say whether the right of access includes, is limited to initial permission.

[00:02:10] Speaker 03:
and that it might include the ability to transmit messages over the network at any time, right?

[00:02:16] Speaker 03:
What's wrong with that?

[00:02:17] Speaker 03:
I mean, there is no limitation in the specifications, I can see.

[00:02:21] Speaker 02:
There is no limitation specifically to the word initial.

[00:02:25] Speaker 02:
However, when you read the claims in the context of the specification, the claims are limited to analysis of data that is transmitted over the BCCH 25, which is the control channel, and they stop

[00:02:40] Speaker 02:
prior to any type of authorization or at authorization to transmit over the RACH, which is 35.

[00:02:48] Speaker 03:
Don't they include the first request for access and also subsequent requests to transmit the messages over the network?

[00:02:57] Speaker 02:
They don't include subsequent requests to transmit over the network after access has been granted, and you can see that in the

[00:03:09] Speaker 02:
flow charts at 4A through 4C, they stop once access has been, either access is denied.

[00:03:16] Speaker 01:
When you say they don't include it, do you mean they don't expressly include it or they expressly state against it?

[00:03:25] Speaker 01:
When you look at... You have this broadest reasonable construction problem.

[00:03:28] Speaker 02:
Yes.

[00:03:30] Speaker 01:
And there's nothing that negatives

[00:03:34] Speaker 01:
the issue of whether it includes something after the initial transmission.

[00:03:39] Speaker 01:
Am I correct about that?

[00:03:42] Speaker 02:
I think the specification, the claims under broadest reasonable construction have to be read in light of the specification.

[00:03:49] Speaker 02:
And the specification is limiting the invention of the embodiments.

[00:03:55] Speaker 02:
Even though we're covering embodiment two, both of the embodiments are limited in the specification to this initial handshaking

[00:04:02] Speaker 03:
How do we know that, though?

[00:04:04] Speaker 03:
I mean, the claims refer, generally, it seems to me, to granting the right of access to the rash, or that they say that access to the rash is enabled and can be granted.

[00:04:15] Speaker 03:
So how is it so clear to you that we're just dealing with this initial access?

[00:04:20] Speaker 02:
Because when you walk through the flow charts, which track the limitations of the claims, the flow charts do not cover what may happen after grant of a right of access.

[00:04:32] Speaker 02:
and the sub-routine that is disclosed in the prior art occurs after grant of a right of access.

[00:04:40] Speaker 03:
But can you show me what's in the, just the description of the preferred embodiments or the summary of the invention, what we would look to to say that it's only the initial access and that it doesn't include the other stuff?

[00:04:54] Speaker 03:
What's the best thing to, that makes your point than any other one, anything that's in the specification?

[00:05:02] Speaker 02:
First of all, if you look at Figure 1 at A1069, Figure 1 shows that the base station 100 is transmitting over the BCCH to the first subscriber station.

[00:05:17] Speaker 02:
That's what's going on in the claims.

[00:05:20] Speaker 02:
Well, this is just one embodiment, right?

[00:05:23] Speaker 02:
This is the embodiment that's claimed.

[00:05:24] Speaker 02:
I can take you to the claims and show you where it's discussing that type of transmission.

[00:05:29] Speaker 03:
Well, I'm looking at the discussion in the specification of Column 3 about Figure 1.

[00:05:40] Speaker 02:
Column 3, Your Honor, which, where are you looking?

[00:05:45] Speaker 03:
Well, you were referring to Figure 1, and the description of Figure 1 in the specification appears at Column 3.

[00:05:51] Speaker 03:
As far as I can tell, you're wrong about that.

[00:05:52] Speaker 02:
No, that's correct.

[00:05:53] Speaker 02:
And Figure 1 covers a lot of different things, but when you read the claims,

[00:05:59] Speaker 02:
figure one, the part of figure one that the claims are addressing, which are further addressed in the flow charts for A through C, is this initial access.

[00:06:11] Speaker 02:
And that is disclosed starting at column eight, line six, the second exemplary embodiment.

[00:06:19] Speaker 02:
And starting at column eight, line 64, they walk through the flow charts about

[00:06:28] Speaker 02:
granting a right of access.

[00:06:31] Speaker 03:
Okay, so this is a second embodiment that has this.

[00:06:35] Speaker 03:
I mean, why would the board under the broadest reasonable interpretation be limited to what's expressed in those flowcharts in that second embodiment?

[00:06:47] Speaker 02:
Because the intrinsic evidence of the spec, and even under BRI, you have to consider that intrinsic evidence, discloses that

[00:06:56] Speaker 02:
both embodiments, first or second, even though the claims are explicitly limited to the second, both embodiments are only talking about the initial right of access after analyzing the data on the BCCH.

[00:07:11] Speaker 03:
I'm trying to find the claim language here.

[00:07:16] Speaker 03:
So there's nothing in the claim language.

[00:07:20] Speaker 03:
What is it in the claim language that guides you to saying that we're only talking about the initial

[00:07:26] Speaker 02:
So the telecommunications channel, let's look for example at... I was looking at claim six.

[00:07:42] Speaker 02:
Okay.

[00:07:44] Speaker 02:
Here we go.

[00:07:45] Speaker 02:
So the telecommunications channel at column 11 at line 29 transmits information signals to the subscriber's station.

[00:07:56] Speaker 02:
And those information signals have this bit pattern, which is 13 bits.

[00:08:03] Speaker 02:
You can relate that by going and looking at the numbers in the claims and back to the figures.

[00:08:10] Speaker 02:
The transmission is from the telecommunications channel network to the subscriber station, which means under figure one, that's a control signal that's being transmitted to the subscriber station saying, here is your

[00:08:26] Speaker 02:
Here is your information about what types of access you have.

[00:08:32] Speaker 02:
It's not a transmission over the RACH, which would be data or voice, and which uses a lot more power and a lot more resources.

[00:08:43] Speaker 02:
When you're transmitting over the BCCH, you're in what's called packet idle mode.

[00:08:50] Speaker 02:
And in packet idle mode, you're preserving resources, you're just analyzing the

[00:08:55] Speaker 02:
information coming to see what your rights are.

[00:08:58] Speaker 02:
Once access is granted, and this is disclosed in the prior art GSM reference, which also distinguishes between prior to a grant of access and a grant of access.

[00:09:10] Speaker 02:
Once access is granted, the mobile station enters packet transfer mode.

[00:09:18] Speaker 02:
In packet transfer mode, resources are allocated for it to attempt to transfer on the network.

[00:09:24] Speaker 02:
We're not talking about packet transfer mode.

[00:09:26] Speaker 02:
We're sitting in packet idle mode.

[00:09:29] Speaker 02:
And we're looking at the resources.

[00:09:31] Speaker 02:
And the difference is this describes two pathways to get onto the network to begin with.

[00:09:40] Speaker 02:
And they're alternative.

[00:09:41] Speaker 02:
You could go one or the other.

[00:09:43] Speaker 02:
Or they're additional.

[00:09:44] Speaker 02:
You can go one and then the other.

[00:09:46] Speaker 02:
But it allows for a volume control to be put on network congestion, which isn't available

[00:09:53] Speaker 02:
in the prior R26.

[00:09:58] Speaker 03:
Do you want to cover 26 briefly?

[00:10:01] Speaker 02:
Sure, Your Honor.

[00:10:01] Speaker 02:
Thank you.

[00:10:06] Speaker 02:
Claim 26 has the additional requirement for on the basis of and the PTAB interpreted on the basis of to be basically on the basis of anything.

[00:10:23] Speaker 02:
However, if you're going to analyze on the basis of, and you need to look first at the flow charts and look at column nine at 1076, line 62 through 67.

[00:10:43] Speaker 02:
Column nine says that at program point 285,

[00:10:50] Speaker 02:
on the basis of access channel bits.

[00:10:53] Speaker 02:
So here's what you're doing.

[00:10:56] Speaker 02:
The evaluation unit asks whether there's a user class.

[00:11:00] Speaker 02:
So first it's saying, hey, can I get on because I'm a member of a allowed class.

[00:11:06] Speaker 01:
What line number are you at?

[00:11:07] Speaker 02:
I'm so sorry.

[00:11:08] Speaker 02:
I'm at line 62 through 67.

[00:11:10] Speaker 02:
I'm sorry, Your Honor.

[00:11:12] Speaker 02:
Thank you.

[00:11:14] Speaker 02:
At program point 285, the basis, it says,

[00:11:18] Speaker 02:
on the basis of access channel bits, so that's the code language.

[00:11:23] Speaker 02:
It looks at the bit pattern, and it says, am I a member of a class?

[00:11:28] Speaker 02:
And then it says, if so, I go to 245, and 245 grants me access to the RACH, and it gives me resources to attempt to transmit.

[00:11:42] Speaker 02:
Then it says, if I'm not a member of this authorized class,

[00:11:47] Speaker 02:
I go to 210, and this is what's different from the prior R. If you go to 210, you get to attempt to access the RATCH using ATV analysis.

[00:12:01] Speaker 02:
Either you are able to get on using this analysis or the program exits.

[00:12:06] Speaker 02:
But nothing happens in this program or the claims do not cover and the spec does not identify what happens after access to the RATCH is granted.

[00:12:17] Speaker 02:
This is distinct from the prior art, the prior art GSM reference.

[00:12:26] Speaker 02:
Specifically, first, it too separates pre-access and post-access, but it also says at 7.1.2.1, once you've gained access, and you can only gain it based on access class query, not the alternative method we claim.

[00:12:46] Speaker 02:
But once access is allowed, then at 7.1.2.1, you leave packet idle mode and you attempt to transmit on the roch.

[00:13:01] Speaker 02:
This is not anything that we have covered because we never get to the point where you leave packet idle mode.

[00:13:13] Speaker 02:
In addition, this is different from, and I realize I'm in my rebuttal, be quick, this is different from the persistence control disclosed in the GSM because persistence control comes in again while you're in packet transmit mode.

[00:13:31] Speaker 02:
You've passed an access class barring test and access to persistence control only happens when you

[00:13:43] Speaker 02:
pass an access class test and then you fail on your initial attempt to transmit.

[00:13:50] Speaker 02:
We don't cover that.

[00:13:52] Speaker 02:
The closest distinction is we use an ATV comparison only when you fail the access class test, not when you pass it.

[00:14:04] Speaker 02:
I'll reserve the rest of my time, Your Honors.

[00:14:06] Speaker 02:
Thank you.

[00:14:18] Speaker 00:
Thank you.

[00:14:19] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:14:21] Speaker 00:
My name is Michael Edlon on behalf of HTC.

[00:14:23] Speaker 00:
I'd like to address the first point that IPCOM made about whether there's initial access somehow limited in the PAC specification.

[00:14:32] Speaker 00:
Not only is there no mention of initial anywhere, but that construction, Your Honor, is directly inconsistent with the teaching of the 751 patent.

[00:14:41] Speaker 00:
If you look at column 5, line 20, it says,

[00:14:46] Speaker 00:
Before each access to the RATCH by the first mobile station, the evaluation unit draws a random or pseudo-random number R and asks whether the random or pseudo-random number R is at least as great as the access threshold value.

[00:15:01] Speaker 00:
Only then is access to the RATCH allowed.

[00:15:05] Speaker 00:
So what they're saying is we're contemplating that there's going to be more than one access request that's going to be necessary, and this patent is not limited

[00:15:14] Speaker 00:
to the initial access request.

[00:15:17] Speaker 00:
The first thing that IB Commons said is this patent and this technology is directed to a handshaking routine.

[00:15:25] Speaker 00:
That came up for the first time in their reply brief.

[00:15:27] Speaker 00:
That's wrong.

[00:15:29] Speaker 00:
And it's important because there's a fundamental difference between what access is in cell phone technology and what handshaking is in cell phone technology.

[00:15:38] Speaker 00:
Handshaking means that the cell phone sends a request for something

[00:15:43] Speaker 00:
to the network and the network sends an acknowledgement back.

[00:15:46] Speaker 00:
That's the handshake.

[00:15:47] Speaker 00:
They agree.

[00:15:47] Speaker 00:
Nice to meet you.

[00:15:48] Speaker 00:
We're in agreement.

[00:15:50] Speaker 00:
That can't work when it comes to access because the cell phone doesn't allow the transmit anything until it makes a determination that it has a right of access.

[00:16:00] Speaker 00:
It has to do that on its own.

[00:16:02] Speaker 00:
How does it do that?

[00:16:03] Speaker 00:
It takes information that's broadcast from the network and then on its own it makes the determination as to whether or not it can make an access attempt.

[00:16:12] Speaker 00:
And then it tries.

[00:16:14] Speaker 00:
And it might fail.

[00:16:16] Speaker 00:
And if it fails, then it can't automatically try again.

[00:16:19] Speaker 00:
It's going to have to do some routine again to see if it has permission.

[00:16:23] Speaker 00:
Every time that the phone transmits on a shared common resource, it has to make a determination, am I allowed to do this?

[00:16:32] Speaker 00:
And that was what the board was saying.

[00:16:33] Speaker 00:
Whether it's the initial access or subsequent access,

[00:16:37] Speaker 00:
that's all part of access.

[00:16:39] Speaker 00:
And that's expressly contemplated by the 751 patent because they're saying before each access.

[00:16:45] Speaker 00:
And then later on, they have a part where they say, you know, for further relief we could talk about having a repetition counter or we could have some scheduling type of thing.

[00:16:56] Speaker 00:
Why?

[00:16:57] Speaker 00:
Because when the phone tries to transmit, it might not go through.

[00:17:00] Speaker 00:
It might not go through because the channel was overloaded.

[00:17:03] Speaker 00:
It might not go through because he was in a garage.

[00:17:06] Speaker 00:
And the signal never made it.

[00:17:08] Speaker 00:
The phone doesn't know why.

[00:17:09] Speaker 00:
All the phone knows is, shoot, I never got any response.

[00:17:14] Speaker 00:
I'm going to have to make a determination as to whether I can try to access again.

[00:17:18] Speaker 00:
That's all part of this access routine.

[00:17:23] Speaker 00:
OK.

[00:17:23] Speaker 00:
So in the claim destruction part, and IvyCon seems to be going back and forth between claim destruction

[00:17:30] Speaker 00:
and what should be reviewed under substantial evidence.

[00:17:35] Speaker 00:
So I want to make that clear.

[00:17:36] Speaker 00:
IPCOM first argues that, this is on their blue brief at page 39, the right of access means the threshold determination of whether a subscriber has permission to access the channel and attempt to transmit.

[00:17:50] Speaker 00:
And then, in their reply brief, they say, and this is at page 22, properly construed

[00:17:58] Speaker 00:
Right of access means a determination by the subscriber station whether it is permitted to access the channel.

[00:18:06] Speaker 00:
They took out the word threshold.

[00:18:08] Speaker 00:
They said threshold determination first, then they took it out.

[00:18:11] Speaker 00:
They took it out because it doesn't belong there.

[00:18:13] Speaker 00:
There's no threshold determination.

[00:18:15] Speaker 00:
What happens is every time the cell phone has to make a determination, once it determines that it can attempt to transmit, it will do so.

[00:18:24] Speaker 00:
And if it didn't work for some reason, then it has to go through another routine.

[00:18:29] Speaker 00:
Okay, so getting to some of the other issues that IBECOM raised.

[00:18:37] Speaker 00:
IBECOM has this theory that the patent is about preventing overload, whereas the GSM reference is about relieving overload, and that that's some distinction, which is never made in the patent.

[00:18:51] Speaker 00:
But I also want to note that it was not made by IBECOM to the board.

[00:18:56] Speaker 00:
In fact, they said the opposite.

[00:18:58] Speaker 00:
During re-examination, and this is at A3163, they said, the embodiments disclosed in the features claimed in Fisher, that's the name of the lead inventor of the Fisher patent, it's the 751 patent, the embodiments disclosed in the features claimed in the patent relate to reducing by way of a special access mechanism channel overload.

[00:19:22] Speaker 00:
Reducing doesn't mean preventing.

[00:19:24] Speaker 00:
And that's because this patent isn't about preventing.

[00:19:27] Speaker 00:
There's nothing in here that guarantees that you're going to prevent access from happening.

[00:19:33] Speaker 00:
In fact, it's quite the opposite.

[00:19:34] Speaker 00:
What the patent is showing is you try to get access by checking your class, whether you're one of the privileged class to get in.

[00:19:44] Speaker 00:
The network doesn't know how many people are trying to get in at a given moment who are all part of that class.

[00:19:49] Speaker 00:
So the network can't prevent it.

[00:19:51] Speaker 00:
All the network can do

[00:19:52] Speaker 00:
is control to try to reduce it.

[00:19:54] Speaker 00:
Well, it looks like we're getting a lot of requests from class one these days.

[00:19:58] Speaker 00:
This is too many for this minute.

[00:20:00] Speaker 00:
Let's start tampering it down.

[00:20:03] Speaker 00:
That will help control the traffic.

[00:20:05] Speaker 00:
But they don't know whether they're preventing it or relieving something that's already overloaded.

[00:20:11] Speaker 00:
And the cell phone definitely can't know that.

[00:20:14] Speaker 00:
All the cell phone knows is I made a determination that I can try.

[00:20:18] Speaker 00:
Now I'm going to try.

[00:20:20] Speaker 00:
And if I get something back from the network, great, I'm in business.

[00:20:24] Speaker 00:
And if I don't get something back from the network, then I have to figure out what I can do to try again.

[00:20:29] Speaker 00:
And that's what's taught in the GSM reference.

[00:20:33] Speaker 00:
In the GSM reference, what's happening is it first goes on by doing this access class test, okay?

[00:20:41] Speaker 00:
And then it tries to make an attempt.

[00:20:43] Speaker 00:
It has access, so it tries to make an attempt.

[00:20:45] Speaker 00:
If that attempt fails,

[00:20:47] Speaker 00:
Now, what's it going to do?

[00:20:49] Speaker 00:
It doesn't have to go back to the beginning.

[00:20:51] Speaker 00:
It just does the random number test, which is the exact same random number test that is disclosed in the 751 patent and claimed in the 751 patent.

[00:21:02] Speaker 00:
Your Honor, in the blue brief, it mentions over 29 times on 24 pages that a distinction between the 751 patent

[00:21:18] Speaker 00:
And the GSM reference is that the GSM reference has persistence control, whereas the patent is ATV, access threshold value.

[00:21:29] Speaker 00:
And they keep saying persistence control, because I would be happy to give you the list of every single place where they say it.

[00:21:34] Speaker 00:
But to cut to the chase, let's look at the one that's in their figure that they provide.

[00:21:39] Speaker 00:
I think it's on page 15.

[00:21:44] Speaker 00:
So if you turn to page 15 of the blue brief, you'll see

[00:21:47] Speaker 00:
a misrepresentative chart of what actually happens in the standard.

[00:21:53] Speaker 00:
And what they're showing here is that you go through the access class test, that they admit is the same.

[00:22:00] Speaker 00:
And then they have this gray line.

[00:22:02] Speaker 00:
And they say, ta-da, access granted.

[00:22:05] Speaker 00:
And then after that, then you make an attempt to transmit.

[00:22:08] Speaker 00:
And they say, if there's a failed transmission, just do persistence control.

[00:22:13] Speaker 00:
It's not just persistence control.

[00:22:15] Speaker 00:
If you look at the standard,

[00:22:17] Speaker 00:
And I direct your attention to A4340.

[00:22:20] Speaker 00:
There's no such thing as persistence control.

[00:22:26] Speaker 00:
At A4340, three quarters down the page, 7.1.2.1.1, this is the standard.

[00:22:34] Speaker 00:
And it says, access persistence control on PRATCH.

[00:22:39] Speaker 00:
This is access control on the random access channel.

[00:22:43] Speaker 00:
It's the very thing that is covered by the patent.

[00:22:46] Speaker 00:
And it's done the exact same way as the patent.

[00:22:49] Speaker 00:
You download a number, and then you generate a random number in your phone, and then you compare the two.

[00:22:55] Speaker 00:
And if you're greater than it, then you get to try to transmit a message.

[00:23:01] Speaker 00:
And if you lose, then you're going to have to wait for the next time they send out a number.

[00:23:06] Speaker 00:
And then you'll try again.

[00:23:07] Speaker 00:
And you never know when your random number is going to be big enough, which gets to the other problem.

[00:23:13] Speaker 00:
IPCOM argues that,

[00:23:15] Speaker 00:
The access persistence control is not about access.

[00:23:19] Speaker 00:
It's just about scheduling.

[00:23:21] Speaker 00:
And that's not access because you already had access.

[00:23:23] Speaker 00:
Yeah, you had access, but then you lost it because you tried a transmission and it failed.

[00:23:29] Speaker 00:
And so now you're trying again.

[00:23:30] Speaker 00:
You've got to get access again.

[00:23:32] Speaker 00:
It really is like the analogy of being at a deli counter.

[00:23:36] Speaker 00:
If I'm at the supermarket at the deli counter, I'm going to pick a number.

[00:23:39] Speaker 00:
And that's going to tell me when I get to order my turkey breast.

[00:23:43] Speaker 00:
And I'm not doing any test.

[00:23:45] Speaker 00:
It tells me, you're next.

[00:23:47] Speaker 00:
Or you're going to be two times from now.

[00:23:49] Speaker 00:
That's merely scheduling.

[00:23:51] Speaker 00:
There's no testing done.

[00:23:52] Speaker 00:
But in the standard, you don't just pick a number.

[00:23:55] Speaker 00:
It downloads a number.

[00:23:57] Speaker 00:
You compare it with a random number.

[00:23:59] Speaker 00:
And you perform that test.

[00:24:00] Speaker 00:
And until you pass that test, you don't get to transmit.

[00:24:04] Speaker 00:
That's access.

[00:24:07] Speaker 00:
Now, IPCOM talked about, well, there's a difference between

[00:24:11] Speaker 00:
In the standard, we're talking about a packet channel request, and then we're going to boost the power within the cell phone.

[00:24:18] Speaker 00:
None of that was raised before the board.

[00:24:21] Speaker 00:
And this issue about whether this is teaching constitutes access really should be reviewed for substantial evidence.

[00:24:28] Speaker 00:
This was already argued in front of the examiner.

[00:24:31] Speaker 00:
The examiner said it's access.

[00:24:33] Speaker 00:
It was then argued in front of the board.

[00:24:35] Speaker 00:
The board said it's access.

[00:24:37] Speaker 00:
And then they petitioned for rehearing.

[00:24:39] Speaker 00:
And then the board issued another decision and said, we're absolutely confident that there's no distinction between initial access and subsequent access.

[00:24:47] Speaker 00:
And what's taught here, they said, is exactly the same.

[00:24:53] Speaker 00:
Whether you want to call it access threshold value, which is what they say in the patent, or whether you want to call it access persistence control, which is what they say in the standard, it's not different just because the words are different.

[00:25:04] Speaker 00:
It's what's done.

[00:25:05] Speaker 00:
It's the exact same thing that's done.

[00:25:09] Speaker 00:
In the inter-parties re-example, I just want to read it.

[00:25:12] Speaker 00:
This is at A3060.

[00:25:15] Speaker 00:
This is where the examiner made this determination.

[00:25:20] Speaker 00:
The examiner said, additionally, the patent noter spends considerable time discussing so-called persistence control in the cited prior art.

[00:25:28] Speaker 00:
And then he puts in parentheses, it should be noted that access persistence control is merely another form of granting a right of access.

[00:25:36] Speaker 00:
The claim language does not define the timing or duration of the right of access grant.

[00:25:40] Speaker 00:
And then he says, the cited prior art states, as indicated above, a procedure for giving a right of access to a channel using the comparison between an access threshold value and a random number.

[00:25:52] Speaker 00:
This is what the claim requires.

[00:25:54] Speaker 00:
This is what the March 1998 GSM specification discloses.

[00:25:58] Speaker 00:
It is word for word the same.

[00:26:00] Speaker 00:
This issue was expressly considered by the examiner, and it was resolved.

[00:26:05] Speaker 00:
Moving on to the, on the basis of, the primary argument by IDCOM is that there's a distinction between the GSM reference and the 751 pattern, and that the GSM reference shows a linear pathway.

[00:26:22] Speaker 00:
You first have to pass the access class test, and then once you pass that, then you gotta pass this access persistence control, the random number test.

[00:26:31] Speaker 00:
Whereas, so, you gotta get both done.

[00:26:33] Speaker 00:
Whereas in the 751 patent, in the preferred embodiment of the disclosure, it's alternative.

[00:26:40] Speaker 00:
You first try the access class test.

[00:26:42] Speaker 00:
If that fails, OK, try the random number test.

[00:26:46] Speaker 00:
And if that gets you in, then you're OK.

[00:26:48] Speaker 00:
Then you can try to attempt a transmission.

[00:26:51] Speaker 00:
That's its distinction.

[00:26:53] Speaker 00:
We don't disagree that that is a distinction between the preferred embodiment and what the GSM reference teaches.

[00:26:59] Speaker 00:
What matters is whether that's relevant to the claim.

[00:27:02] Speaker 00:
And the claim language says, just on the basis of the access class bits, ask whether these access threshold value bits were transmitted to perform the random number test.

[00:27:17] Speaker 00:
On the basis of.

[00:27:19] Speaker 00:
So what does on the basis of mean?

[00:27:22] Speaker 00:
Well, I become argued in the reply brief that it means you had to have failed previously.

[00:27:28] Speaker 00:
That's not what, if you wanted to say you had to fail,

[00:27:31] Speaker 00:
put that in the claim.

[00:27:32] Speaker 00:
They added claim 26 during re-exam.

[00:27:35] Speaker 00:
They added it in the face of this priority.

[00:27:37] Speaker 00:
If they wanted to be clear, they should have been clear.

[00:27:40] Speaker 00:
What's interesting is that in their blue brief, they took a different position.

[00:27:46] Speaker 00:
They said, based on the plain meaning of that language, that asking depends on the information encoded in the access class data.

[00:27:56] Speaker 00:
It depends on what was provided.

[00:27:59] Speaker 00:
Throughout their briefing, they keep saying,

[00:28:01] Speaker 00:
Well, the board was wrong, because all the board said is, you first have to get access class data, and that's all that matters.

[00:28:08] Speaker 00:
And that can't be that.

[00:28:09] Speaker 00:
It has to be more than just getting it.

[00:28:11] Speaker 00:
It has to do something with it.

[00:28:13] Speaker 00:
Well, you do do something with it.

[00:28:15] Speaker 00:
What happens is, in the GSF standard, you first have to take a look at the access class bits that you got.

[00:28:23] Speaker 00:
You have to do a test.

[00:28:25] Speaker 00:
Did I win?

[00:28:26] Speaker 00:
If I win, then I go on to the next test.

[00:28:30] Speaker 00:
So it's on the basis of it.

[00:28:32] Speaker 00:
In the patent specification, it's the opposite.

[00:28:35] Speaker 00:
I take those access class bits.

[00:28:38] Speaker 00:
Did I win?

[00:28:39] Speaker 00:
No, I lost.

[00:28:41] Speaker 00:
OK, because I lost, I'm now going to do the access threshold value test.

[00:28:45] Speaker 00:
They're both on the basis of.

[00:28:46] Speaker 00:
They're both dependent from.

[00:28:48] Speaker 00:
They're just dependent from them in a different way.

[00:28:51] Speaker 00:
And if they wanted to claim that, they should have claimed that.

[00:28:56] Speaker 00:
Let me see if there's anything else to adjust here.

[00:29:05] Speaker 00:
I guess the one other thing is just getting to this point about going back to the initial access.

[00:29:11] Speaker 00:
Your time's almost up.

[00:29:13] Speaker 00:
All right.

[00:29:13] Speaker 00:
If there aren't any questions, I won't go into something else.

[00:29:17] Speaker 00:
Thank you.

[00:29:17] Speaker 01:
Thank you very much.

[00:29:18] Speaker 01:
Your mentioning Turkey at the deli has been very difficult for me because it's lunchtime.

[00:29:23] Speaker 00:
Yes.

[00:29:25] Speaker 01:
Fair enough, Judge Parker.

[00:29:33] Speaker 02:
Thank you, Your Honors.

[00:29:35] Speaker 02:
This case is going to turn on whether, read in light of the specification, the claims are limited to right of access and what happens before that.

[00:29:44] Speaker 02:
And we agree with what HTC said.

[00:29:48] Speaker 02:
The cell phone isn't allowed to transmit anything until access is granted.

[00:29:53] Speaker 02:
And we also agree with what HTC said, that substantial evidence controls interpretation of the GSM standard.

[00:30:01] Speaker 02:
The PTAB said, with respect to the GSM standard,

[00:30:04] Speaker 02:
and this is at A14, access is initially granted by class barring techniques.

[00:30:10] Speaker 02:
And then subsequent access, in the event of a collision, is determined by random number comparison.

[00:30:17] Speaker 02:
That's not what we have here.

[00:30:19] Speaker 02:
That's not what's claimed.

[00:30:22] Speaker 02:
Specifically, the method access would initially be barred before the ATV test would be

[00:30:31] Speaker 02:
accomplished in ours because the ATV test, regardless of whether it's the same as persistence control, is only run when the access class test fails.

[00:30:44] Speaker 02:
Looking to the before each access in column 10, line 20, that HTC pointed to, that is also not part of embodiment 2.

[00:30:55] Speaker 02:
And by reading the limitations of our claims,

[00:30:58] Speaker 02:
They are limited to embodiment two, which starts at column eight, line six.

[00:31:04] Speaker 02:
But even under the broadest reasonable interpretation, because we are specifically limited to this second embodiment, before each access does not apply.

[00:31:16] Speaker 02:
And finally, I see I'm short on time.

[00:31:18] Speaker 02:
Our repetition counter that HTC referenced at column 10, 24 through 38, that's a legal error of the board because

[00:31:27] Speaker 02:
They didn't read the plain language of the spec, which says that this repetition counter only happens if there is a collision and if they have to resend the message, not prior to sending the initial message.

[00:31:43] Speaker 02:
Thank you, Your Honors.

[00:31:46] Speaker 02:
Because this case covers activity that is pre-access to transmission on the channel, and it can do it again pre-access after it leaves that access granted mode,

[00:31:57] Speaker 02:
This case should be reversed.

[00:31:59] Speaker 02:
The prior art only has one path of access and ours has two.

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