[00:00:00] Speaker 02:
7-7 North Peak Wireless versus Recon Corporation.

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Thank you.

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Good morning.

[00:00:48] Speaker 01:
Good morning.

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May it please the court.

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My name is Christian Hurt and I'm here this morning on behalf of North Peak.

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The district court in this case aired when it improperly narrowed the register, storing, and means plus function terms in this case.

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I'd like to focus on the register and storing terms.

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and time permitting move on to the means plus function issues.

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Of course, I'm happy to answer any questions.

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Well, let me ask you a threshold logistical question, which is, am I correct in assuming that if we affirm on any of those terms, then the case is over?

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So there's two sets.

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Right.

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If the court affirms on register, the case is over.

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If the court affirms on storing, the case is over.

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Part of the register issue is this explicit register notion.

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Those are independent grounds.

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The means plus function issues, however, if there is a reversal on register and storing, should the court affirm on means plus function issues, there are still claims in the case.

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So the means plus function alone doesn't resolve the entire case.

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Is this patent expired?

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Yes, Your Honor.

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It expired right around the time

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suit was brought in 2009.

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In this case, it just stayed for a good six years.

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So it's been expired since that time.

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Are there continuation patents that might be impacted by any construction of the term register, or storing, or the means plus function limitations?

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I don't believe so.

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So there were two related patents in this suit.

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The 577 patent, that's the word we're talking about today, and the 058 patent.

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On the face of those patents, there is a continuation chain.

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But all of those patents have since expired.

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I believe all of them start with either a four or a five.

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I'm not aware of any other patents that would be affected.

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Thank you.

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So on the register issue, with regard to that term, the district court committed three errors, each of which flowed from the prosecution re-examination histories of this patent.

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The first is prosecution history disclaimer.

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The court incorrectly concluded that North Peak had disclaimed registers that were embodied in random access memory of RAM or buffers or regular memory.

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The second issue is the court carried that understanding of the term register into how it read the fourth edition of the Microsoft dictionary that North Peak cited as an example definition of register in the re-examination.

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And then third, the court added this explicit gloss on top of the registered term beyond North Peak's construction that these registers are just designated or specific portions of the memory.

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Am I right that the district court didn't, in its claim construction, necessarily exclude RAM and other memory, but it simply just adopted a version of the Microsoft dictionary definition?

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So the court resolved as a matter of law, as a matter of claim construction, that RAM, regular memory buffers, are excluded outside the scope of the claims.

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But in the formal jury charge that would have gone to the jury had this case proceeded, the court adopted the language from the Microsoft dictionary definition, the fourth edition, that North Peak cited as an example definition of a register in that secondary examination.

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But the issue was resolved as a matter of claim construction that that definition, as well as disclaiming statements the court found in the pre-examination history, really excluded RAM-based or memory buffer-based or regular memory-based registers.

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And so that issue was resolved as a matter of law.

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And the court's error on those

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two fronts was twofold.

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First, in the reexamination history, North Peak proposed the exact same definition to the patent office that it proposed to the district court.

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It designated a specific portion of memory.

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And the patent office actually adopted that definition.

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And the district court should have as well.

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We had evidence in the record that in 1988, when this patent was filed,

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those of ordinary skill in the art understood that a register was really just a device within a computer processor capable of retaining data.

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This is the 1988 IEEE dictionary that's at 442 in the appendix.

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Yes, Your Honor.

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Do you know who Mr. Mayberry is?

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I believe he was counsel for North Peak in the second re-examination.

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Because I'm just reading from the examiner's interview summary.

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where the examiner said Mr. Mayberry submitted that register cannot be any type of memory, hence storing information such as preamble or address in a regular memory would not anticipate claim convention, end quote.

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So did the examiner inaccurately understand Mr. Mayberry's position there?

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Two responses.

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The first is that this is the examiner's statement of what happened.

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And this occurs prior to North Peak's formal response in the office action.

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And in that response, North Peak proposed a definition of a specific or designated portion of memory.

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That's what a register is.

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And the reason that's important is to understand this sentence

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that hence storing information such as a preamble or address in a regular memory would not anticipate the claimed invention because regular memories, and this is all of the distinctions that were made on Dixon and Kahn and Messenger, is those general memories that are not designated or specific, those are not registers.

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But there's no exclusion of the type of way you construct memory, whether it's RAM or memory buffers or microprocessor memory.

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If that memory is sort of cordoned off, as if it's specific and designated for something, it can be a register.

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And the Dixon and Kahn references only disclose general packet buffers that are not designated or specific.

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If you look at the reference, they're undesignated.

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I guess the concern I have is, in the prosecution history, Mr. Mayberry or somebody else on behalf of Northbeek was arguing that these prior references, whether it's Kahn or Dixon,

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were disclosing outputting the data from memory.

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And those references don't disclose outputting it from a register.

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And so that's why the claim register is different from Kahn and Dixon.

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And so what I'm seeing here in the prosecution is categorization

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different places to store data by vocabulary.

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There's something called a memory, a RAM, and there's another thing called a register.

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And I see what you're arguing now is something a little more nuanced than what I see in the prosecution history.

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Well, I think first, and I believe this point is undisputed, that when you have the IEEE dictionary defining register,

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as just a device that's capable of retaining data, certainly in the broader term memory, a register can constitute memory.

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I think it's undisputed that a register certainly is at least a type of memory.

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So if Your Honor is reading the statement from the prosecution history that there's a distinguishment between

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registers in memory, that is improper because memory is sort of the genus and that would almost exclude a register from being a register.

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Right, but I guess what if the prosecution history was basically saying the prior art discloses a genus, the claim of invention is a species of the genus, and so there's the distinction from the prior art.

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Then I think the fairest reading of all that is that

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the claimed invention is excluding everything else in the genus except for the species.

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Well, and Judge Chen, that isn't what happened here because the proposed construction of register that Northpeak proposed, and this isn't just one that Northpeak proposed, the examiner adopted in the notice of allowance, makes a distinction between designated and specific versus undesignated.

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So the more apt analogy is no,

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The prior art references here disclose a different type of species, undesignated, nonspecific.

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And if your honor looks at the references, that's what Dixon and Kahn show is just one black box that holds everything.

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It doesn't tell you if that is cordoned off or the preamble, the address, and the data, and that that's what is not a register, but that a register is really any type of memory so long as it's designated or specific.

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And I think it would be a harder case for North Peak if the examiner didn't expressly adopt that construction in the notice of intent to issue the re-examination certificate and if North Peak did not propose that express construction to the patent office.

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If this were a situation where all we had was some of these statements that could be taken out of context, it's a harder case.

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But when looking at the re-examination record, the court has to look at the full record.

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And that full record shows that North Peak proposed a very specific construction, the same one we proposed in this lawsuit of just a designated portion of memory in a computer processor.

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That's what distinguished Dixon and Kahn.

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The examiner said that that's what distinguished the Dixon and Kahn references and the notice of intent to issue the re-examination certificate.

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And that's how, I think, one of ordinary skill would read that history.

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And the designated or specific language

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is that it's important.

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So there's this second issue where the registers need to be considered explicit, or as the court said, sort of dedicated, or as the defendants say, explicitly reserved and dedicated for only doing this one function on this one type of data for all time.

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However, the North Peak in the re-examination linked

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the designated or specific region of memory language to the earlier statements the examiner made about explicit registers.

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And that flows because we have three claim elements here, a preamble register, an address register, and a data register.

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And the specific or dedicated portion of memory language really captures what North Peak and the examiner understood the explicit language to refer to.

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Not that these registers had to be dedicated for all time, reserved for all time, and can only be used for one function, but that you just have a designated or specific portion of memory.

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And so the court, in rejecting our construction of explicit and in rejecting our construction of register, improperly added that gloss onto the claims.

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And that's shown in North Peak's response to the first office action specifically

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In the claim construction section that's on Appendix 685 and 686, in proposing the construction of a designated or specific region of memory, North Peak sites for support, the examiner's statement regarding explicit registers, and that's the paragraph that spans 685 and 686, I see them in my rebuttal time, and I didn't get to store in or means plus function elements unless the court has any

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questions, however, I'll reserve the balance.

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Thank you.

[00:13:35] Speaker 02:
Good morning, may it please the court.

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My name is Chad Campbell.

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I'm appearing for Intel, but speaking on behalf of the Minneapolis generally today.

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I think a little bit of context would help for the

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register points, and we agree with the other side that there are three constructions that Judge Ilston arrived at, any one of which would allow the panel to affirm across all of the asserted claims.

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That would be the definition of register, the construction of preamble address and data registers as being explicit, and then the construction about what it means to have a register store information.

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The patents did expire in 2008.

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A few months after Intel intervened, the patents were put into a re-examination because there were military pieces of prior art that involved spread spectrum systems where preamble address and data were assembled in memory and then transmitted along.

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The military applications involved very large packets in the thousands of bits.

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The packets that are described in the patent are as small as 76 bits.

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And so where the patent was teaching the idea of using registers, the prior art was teaching the idea of using memory, regular memory, where you can store a lot more information in order to send the packets.

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Our premise in our petitions was, because the accused products also use just memory,

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in order to assemble the packet pieces, this patent cannot both be infringed and remain valid.

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So we submitted our petitions.

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They were ex parte.

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There was back and forth with the patent office.

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And North Peak's decision to combat the patent, the prior art, was to double down on the definition of what a register is.

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The claims refer to registers, a preamble address and data register,

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And they argued that in the prior art, you didn't have that kind of explicit register structure.

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Judge Ilston's definition of register, or construction of register, is taken from the Microsoft computer dictionary definition that the North Peak patentees submitted during re-examination.

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A couple of observations about that dictionary definition compared to the IEEE

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dictionary definition.

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First, it is intrinsic in the sense that it was put into the record during re-examine in the middle of the case, and it is specific on this distinction between general or regular memory and what a register looks like inside of a microprocessor, which is what the patent discloses and seeks to claim.

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that the principal differences that the Microsoft dictionary points to and which were used by the patentee in order to overcome the prior art include that it's a small named region of high-speed memory and then critically that you reference it, that programs reference it by a name instead of by an address.

[00:17:20] Speaker 02:
In the

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in the file history when they got to talking about their specific reasons for why the prior art was different from what they were claiming, they did say that they proposed this construction that you needed a designated and specific region of memory, but in the very next sentence they go on to say, and that's consistent with the way a person of ordinary skill in the art would understand the definition,

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then see, for example, the Microsoft dictionary definition.

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So we have the patentee making an argument, and Judge Yelston agreed with this, that a person of skill reading this patent would understand or register to have those attributes, that it would be small and named, that a program would access it by the name instead of by an address.

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And that ended up being the way that they argued

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that these military systems which use general memory didn't satisfy the reach of the claim.

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I'd like to highlight, for example, the summary by the examiner of the argument.

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There are a couple of things to note about this argument summary.

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It is a little bit more specific than those summaries are sometimes, but it also notes that

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North Peak's lawyer, Mr. Maryberry, came with a fairly extensive set of slides.

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And they walked through the argument and this Microsoft dictionary definition.

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It's cited by the examiner here.

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He says, more specifically, the term register has been explained to have a specific.

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Is there a side to the record?

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Yes, I'm sorry.

[00:19:07] Speaker 02:
Appendix 934.

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More specifically, the term register has been explained to have a specific meaning

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which allegedly has not been taught by Dixon and Kahn.

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The term is commonly defined as a small named region of high speed memory located within a microprocessor.

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And then critically, the next sentence, accordingly, Mr. Mayberry submitted that register cannot be any type of memory, hence storing information such as preamble or address in a regular memory would not anticipate the claimed invention.

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When a preamble or an address or the data portion of a packet are in a regular memory, they have specific memory addresses.

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The computer needs to have those memory addresses in order to know where to go get them.

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But that wasn't the specific and designated portion of memory that North Peak was arguing about.

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They were arguing about the kinds of registers that you would see in a microprocessor where you have

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a name that a program can use to go get it instead of an address where you've got to go decode the address and go find where it is in the memory to pull it back.

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I'd like to turn if I could just briefly to the explicit register construction.

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Before you go there, the other side points out that

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I guess in the notice of allowance, the notice of intent to issue a re-exam certificate, NERC, the examiner used their preferred definition for a register to be a designated or specified region of memory.

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And so therefore, in their view, the examiner ultimately and all along adopted that broader

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more nebulous definition for register.

[00:21:13] Speaker 00:
What do you have to say about that?

[00:21:14] Speaker 02:
If we look at appendix 990 and 991, that is the portion of the examiner's explanation in the NERC, the examiner first describes their arguments and then in the examiner's response halfway down the page on appendix 990 says that she found the above arguments persuasive and then goes on to say

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that we're applying the ordinary and customary meaning as understood by a person of skill in the art at the time of the invention.

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Accordingly, the examiner has found Dixon does not teach the preamble register in accord with the interpretation recited on page 12 of the remarks filed on February 25, 2014.

[00:22:07] Speaker 02:
More specifically,

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Preamble register requires a designated or specific region of memory in a computer processor for storing and outputting a preamble.

[00:22:16] Speaker 02:
I believe that's the sentence my colleague is referring to.

[00:22:19] Speaker 02:
The very next sentence, furthermore, the Microsoft computer dictionary, fifth edition, that's a different edition than the one that they had cited in the papers, but the substance is the same, defines the term register as a set of bits of high-speed memory

[00:22:36] Speaker 02:
within a microprocessor or other electronic device used to hold data for a particular purpose.

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And here critically, each register in a central processing unit is referred to in assembly language programs by a name, such as AX, the register that contains the results of the arithmetic operations in an Intel 8086.

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So in the NERC, the examiner is repeating the understanding of what a real register is

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And that inside a microprocessor, those registers are small, they're named, is different from a regular memory like a RAM, a random access memory or a buffer where you need to have an address that's decoded first before the computer knows where to go and get it.

[00:23:21] Speaker 02:
So from beginning to end, from the interview to the submission to the NERC, we have this theme that register is a real register inside a microprocessor

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not a regular memory.

[00:23:37] Speaker 02:
Turning briefly to the requirement that the registers be explicit, North Peak and the original applicant both agreed with the idea that what is not only disclosed in but claimed by this patent requires an explicit memory structure where you've got a preamble register, a different

[00:24:04] Speaker 02:
address register and a different data register.

[00:24:10] Speaker 02:
Their proposed construction in the Martman phase of the case was simply not to use the word explicit at all.

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They did not have an alternate construction.

[00:24:21] Speaker 02:
The defendants proposed that we should include the word explicit not only because the claim language is set out that way but because the arguments that happened to the PTO

[00:24:35] Speaker 02:
required that you have explicit, excuse me, explicit registers.

[00:24:42] Speaker 02:
And I think that the debate here as I was reading the briefs again might have seemed a little bit confusing.

[00:24:51] Speaker 02:
I think it's actually easiest to understand what is going on and what's dividing the parties by looking at page 11 of the gray brief.

[00:25:03] Speaker 02:
After

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explaining their position with respect to why the word explicit should not be required at the bottom of the first paragraph on page 11 of the Gray brief.

[00:25:15] Speaker 02:
North Peak points out, of course, those portions of memory can overlap at different times and different portions of memory can serve as a register during storing and transmitting intervals.

[00:25:31] Speaker 02:
So in other words, what's going on and what they need to be able to do to have an infringement case is to be able to accuse a system like the prior art where you would have a buffer and for the first packet you might have particular regions or addresses of that buffer that would hold the individual packet pieces.

[00:25:54] Speaker 02:
Then the next packet comes in and maybe different lines of the memory

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would be holding those packet pieces.

[00:26:02] Speaker 02:
They would call at one snapshot in time the places that are holding the preamble for packet one, the preamble register.

[00:26:11] Speaker 02:
But at a different snapshot in time, where you've got the preamble in a different spot, they would say, well, now those lines of memory are the preamble register.

[00:26:22] Speaker 02:
That's exactly Kahn.

[00:26:24] Speaker 02:
That's exactly Dixon.

[00:26:26] Speaker 02:
You've got large memories where the packets are coming through.

[00:26:29] Speaker 02:
The pieces end up in different spots.

[00:26:32] Speaker 02:
And they said, no, that wasn't the invention.

[00:26:34] Speaker 02:
You need to have explicit registers, just like you see in Figure 2.

[00:26:40] Speaker 02:
The preamble always goes in the preamble register.

[00:26:44] Speaker 02:
The address goes in the address register.

[00:26:46] Speaker 02:
The data goes in the data register.

[00:26:49] Speaker 02:
The addressing architecture of the claims is explicit.

[00:26:54] Speaker 02:
When Judge Ilston asked in the Markman hearing

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asked counsel about this point.

[00:27:04] Speaker 02:
She said, those were the words that your client used, and counsel agreed.

[00:27:09] Speaker 02:
Yes, we're stuck with those words.

[00:27:10] Speaker 02:
We would submit that Judge Yelston got it right.

[00:27:14] Speaker 02:
The patentee argued to the PTO that you needed an explicit register structure with preamble address and data registers.

[00:27:23] Speaker 02:
Judge Yelston simply adopted that language, which was used in order to overcome the prior art

[00:27:29] Speaker 02:
We don't believe that error can be assigned there.

[00:27:33] Speaker 02:
I see that my time is just about to expire.

[00:27:35] Speaker 02:
If there aren't any other questions, I'll sit down.

[00:27:39] Speaker 02:
Thank you.

[00:27:45] Speaker 02:
Mr. Hurd, we have a few minutes.

[00:27:53] Speaker 01:
I'd like to start with the explicit register point because that's where

[00:27:58] Speaker 01:
Council for Intel left off.

[00:28:00] Speaker 01:
At the Markman hearing, the reason the Northpeaks lawyer, who was me, said we were stuck with that language is because it is in the prosecution history.

[00:28:09] Speaker 01:
The language stuck with it means it says what it says, not that we agreed that that language had the limitations that Intel was trying to seek.

[00:28:19] Speaker 01:
And there's two points that really show what Northpeak intended explicit registers to mean.

[00:28:26] Speaker 01:
The first is what I cited the court to in the response to the office action when North Peak expressly proposed its construction of register and linked the separate and distinct language to explicit.

[00:28:40] Speaker 01:
And later on in that office action when North Peak addressed Conn and mentioned in that response that Conn fails to disclose the explicit register structure in the claims, which have three claim elements.

[00:28:56] Speaker 01:
So that's the linkage.

[00:28:57] Speaker 01:
There are three claim elements.

[00:28:59] Speaker 01:
That's what explicit means.

[00:29:01] Speaker 01:
That requirement under this court's Gauss case and others that when you have separate elements, you've got to point to separate things.

[00:29:07] Speaker 01:
That's what the explicit language refers to.

[00:29:09] Speaker 01:
And it's captured in that separate or designated language that North Peak proposed.

[00:29:15] Speaker 01:
On the point that the registers, if they switch locations, would be just like Kahn and Dixon, that's incorrect.

[00:29:25] Speaker 01:
Con and Dixon just have black box memories that don't really disclose exactly where the preamble data and address are.

[00:29:34] Speaker 01:
And I would note that we're talking about two sets of claims here, apparatus claims and method claims.

[00:29:40] Speaker 01:
And for method claims to be infringed, that method just has to be performed once.

[00:29:45] Speaker 01:
So if you have a preamble register, a data register, an address register, and that meets the claims for that one transmission interval,

[00:29:53] Speaker 01:
That's an infringement.

[00:29:54] Speaker 01:
And it's going to be a separate question the next time the process is performed to look at those designated or specific portions of memory.

[00:30:02] Speaker 01:
So reading that explicit reserve for all time limitation on the claims conflicts with the fact that 13 and 14 are method claims that only need to be performed one time to infringement.

[00:30:15] Speaker 01:
Quickly on the Microsoft definition, I know I'm out of time.

[00:30:19] Speaker 01:
This court's case law requires clear and unambiguous disclaimer.

[00:30:23] Speaker 01:
There's no mention of disclaiming memories accessed by address in any of the Microsoft definitions.

[00:30:30] Speaker 01:
All there is is that just it's a high speed region of memory.

[00:30:34] Speaker 01:
And the fact that the examiner used the 1995 definition, which is broader, and more importantly, cited North Peak's exact construction as the reason why Dixon did not anticipate those claims.

[00:30:46] Speaker 01:
The construction North Peak proposed earlier, which undisputedly does not exclude RAM regular memory

[00:30:52] Speaker 01:
That shows that the district court here should enter that exact same construction and it aired when it did.

[00:30:57] Speaker 01:
Unless the court has any further questions.

[00:31:01] Speaker 00:
Thank you.