[00:00:00] Speaker 05:
766 we land versus Erickson Mr.. Powers you may proceed and There are a lot of issues here, so I don't think we'll keep the time balance for both parties But I don't think that you need to be worried about your eight seven split Thank You honor May it please the court.

[00:00:21] Speaker 06:
I'd like to begin if I may with the claim construction issue regarding bandwidth

[00:00:27] Speaker 06:
The district court's construction, which incorporated a temporal limitation, was error for two reasons.

[00:00:34] Speaker 06:
The first is that it's inconsistent with the specification.

[00:00:38] Speaker 06:
And the second is that it would exclude the commercial embodiment of this patent, the WIMAC standard.

[00:00:43] Speaker 06:
I'd like to begin with the specification.

[00:00:46] Speaker 06:
The specification talks about bandwidth from two different perspectives.

[00:00:51] Speaker 06:
And the claim construction must encompass them both.

[00:00:55] Speaker 06:
It must be consistent between the two.

[00:00:57] Speaker 06:
One perspective is from the base station's perspective when it is allocating bandwidth.

[00:01:03] Speaker 06:
And one perspective is from the phone's or subscriber unit's perspective, where it is requesting bandwidth.

[00:01:10] Speaker 06:
It is undisputed, I believe, that from the subscriber unit, the phone's perspective, when it requests bandwidth, it does so without a request for something that is temporal in the specification.

[00:01:23] Speaker 06:
It requests it by bytes, more specifically,

[00:01:27] Speaker 06:
What it does is to report to the base station the number of bytes it has in its uplink cube.

[00:01:35] Speaker 06:
And that is in the specifications what is determined to be a bandwidth request.

[00:01:44] Speaker 06:
There are three parts of the specification to which I would direct your honors regarding the phones or subscriber units perspective regarding bandwidth.

[00:01:53] Speaker 06:
The first is figure 11.

[00:01:56] Speaker 06:
expressly refers to as part of the flowchart, unused bytes in the current allocation.

[00:02:02] Speaker 05:
Do you need to succeed on your construction of bandwidth to prevail on your arguments about why the summary judgment related to infringement should be reversed?

[00:02:13] Speaker 06:
No.

[00:02:14] Speaker 06:
All you need is a genuine issue.

[00:02:16] Speaker 06:
There are three genuine issues regarding infringement even under the erroneous construction, and I'm happy to jump to that if Your Honors would like to.

[00:02:24] Speaker 04:
Do you maybe have any questions for them?

[00:02:27] Speaker 04:
You might want to jump to that.

[00:02:30] Speaker 06:
The three disputes of fact regarding the erroneous construction are first, the question of whether the BSR that is sent in the accused device is a quote unquote request.

[00:02:42] Speaker 06:
The argument that is made here is a semantic one, that it's called a report, not a request.

[00:02:48] Speaker 06:
There is, I think, no fair dispute

[00:02:52] Speaker 06:
that in the context of this system, the accused system, the report is considered to be a request by the base station.

[00:03:00] Speaker 06:
As Professor Min explained, the entire purpose of the BSR is to tell the base station how many bytes are in the uplink queue for the phone.

[00:03:09] Speaker 06:
The phone has a certain number of bytes that it needs to send up to the base station, and that is exactly what the base station is interpreting it to be.

[00:03:17] Speaker 06:
This is the amount of bytes needed to be sent up

[00:03:22] Speaker 06:
And the base station understands it needs to allocate bandwidth sufficient to transfer those bytes.

[00:03:28] Speaker 06:
That is the entire purpose.

[00:03:29] Speaker 06:
The semantic argument that is made, I think, is a fallacy.

[00:03:34] Speaker 06:
As the example that we gave below is if my wife calls me at the end of the day and says, we're out of milk, that is technically a report, not a request.

[00:03:44] Speaker 06:
But I understand it to be.

[00:03:47] Speaker 06:
And it is certainly intended to be a request that I bring milk on the way home.

[00:03:51] Speaker 06:
Oh, no, it's not.

[00:03:52] Speaker 06:
It's intended to be an order.

[00:03:55] Speaker 06:
Even stronger than a request.

[00:03:58] Speaker 06:
And the context here is even stronger than that.

[00:04:02] Speaker 06:
Because the context here is that this BSR, the thing that Erickson claims is not a request because it's called a report, is typically sent only after a scheduling request has been sent.

[00:04:16] Speaker 06:
The scheduling request is the one bit message that the phone sends to the base station, which Erickson, by the way, concedes as a request, because it's called one, saying, I need bandwidth to send you a request.

[00:04:28] Speaker 06:
That is the entire purpose of the one bit scheduling request, so that the base station knows that what it's going to be getting in the next period is a request for bandwidth in the form of a BSR.

[00:04:40] Speaker 06:
And the base station expressly allocates bandwidth for that BSR to come up

[00:04:44] Speaker 06:
because in response to the scheduling request, it knows that the phone needs to send data to the base station.

[00:04:51] Speaker 02:
I'm a little confused with your argument on bandwidth not having a time component and then your argument that this is a request, because it seems to me that they're somewhat inconsistent, meaning in your blue brief you argue that this

[00:05:06] Speaker 02:
This BSR says it's a request because you're saying I need this data and I need it in the next available time frame.

[00:05:14] Speaker 02:
So doesn't that automatically lead you to the conclusion that there must be a time component to bandwidth?

[00:05:20] Speaker 06:
One is a claim construction question and one is an infringement question.

[00:05:23] Speaker 02:
Well, I get that.

[00:05:24] Speaker 02:
There has to be some consistency here.

[00:05:27] Speaker 06:
No.

[00:05:29] Speaker 06:
One has to work with the other.

[00:05:30] Speaker 06:
But as a matter of claim construction, the term bandwidth does not itself have a temporal component.

[00:05:36] Speaker 06:
inherently everything we do in life is done in a period of time or over time.

[00:05:40] Speaker 06:
That's true.

[00:05:41] Speaker 06:
But that doesn't mean that the term bandwidth must have within it embedded a temporal limitation.

[00:05:48] Speaker 06:
It is of course true that bandwidth is allocated over time.

[00:05:53] Speaker 06:
And it is of course true that the data on the phone is sent over time.

[00:05:57] Speaker 06:
That doesn't mean that the term bandwidth has as part of its definition a temporal limitation.

[00:06:03] Speaker 06:
That's the point on claim construction.

[00:06:04] Speaker 06:
with regard to infringement, and these are, I think, totally consistent, with regard to infringement, the point is that even if you look at what the BSR is saying and what the base station understands it to be, according to Professor Min, it is asking for that bandwidth to be sent in the next TTI, which is the time interval.

[00:06:24] Speaker 06:
So even if there were a temporal limitation, that's how the base station understands the BSR to be requesting, which is that bandwidth sufficient to send

[00:06:34] Speaker 06:
that data in the uplink queue in the next TTI.

[00:06:38] Speaker 06:
So they're consistent in the sense that temporal limitation isn't required, but if it were, it would be satisfied by that TTI portion.

[00:06:47] Speaker 06:
The second point that I wanted to make regarding this request issue, which is the first dispute of fact on infringement, is that if the semantics matter, and I don't believe they do,

[00:07:02] Speaker 06:
What matters is how the base station in this context understands the BSR.

[00:07:07] Speaker 06:
And it understands it exactly the same way as the milk analogy.

[00:07:11] Speaker 06:
It understands it to be a request, particularly in the context of having received the one bit scheduling request.

[00:07:17] Speaker 01:
Let me give you a gripe about your citation of Min.

[00:07:20] Speaker 01:
And it's a gripe, but it ticked me off enough to say it.

[00:07:24] Speaker 01:
In your blueberry, I'm going to read you my note.

[00:07:30] Speaker 01:
Further, Wieland's expert Professor Min explained that the dedicated channel, not RACH, is used in handover.

[00:07:36] Speaker 01:
A2747 at paragraph 253, A7248-49 at paragraph 257-258.

[00:07:46] Speaker 01:
Note to my clerk, no, dash, not there.

[00:07:49] Speaker 01:
And then, clerk's initials, can you find this?

[00:07:53] Speaker 01:
Paragraph numbers are not in MINS, starting at those pages that you cited.

[00:07:57] Speaker 01:
And then note, because I looked through the record, found it at 3182 at SEEK.

[00:08:05] Speaker 01:
I shouldn't have to do that.

[00:08:06] Speaker 06:
You're right.

[00:08:07] Speaker 06:
I apologize.

[00:08:09] Speaker 01:
Go ahead.

[00:08:10] Speaker 02:
Going back to where you were, you say that MINS says that it's clear that BSR requires the bandwidth to be delivered in the next TTI.

[00:08:23] Speaker 02:
What other than his testimony do you have to support that proposition?

[00:08:29] Speaker 06:
That's in the portions that he's citing, and let me show you what that is.

[00:08:37] Speaker 06:
And Your Honor's addressing, just so we're clear, this is the second dispute of fact we've moved to now.

[00:08:41] Speaker 06:
The first dispute of fact is the semantic one regarding what's a request.

[00:08:45] Speaker 06:
The second is, if there's a temporal limitation, is it satisfied by this next TTI

[00:08:52] Speaker 06:
finding that Professor Min gives.

[00:08:54] Speaker 06:
So this is the second dispute of fact.

[00:08:58] Speaker 06:
And so Professor Min is talking about, well, the main dispute, the main portion, I think, Your Honor, would be what's called the RRM algorithm.

[00:09:15] Speaker 06:
And the RRM algorithm is Erickson's proprietary algorithm.

[00:09:23] Speaker 06:
A record citation for that is A2475, A2512.

[00:09:28] Speaker 06:
Those are two examples of places that are the actual algorithm as opposed to Professor Min's analysis of it.

[00:09:37] Speaker 06:
And what Professor Min did was examine that algorithm, and I'll just note for your honors that Erickson has designated that highly, highly confidential, and that will constrain my ability to discuss its details here, just as it constrained

[00:09:52] Speaker 06:
the redactions that you saw on Professor Min's report.

[00:09:56] Speaker 06:
But that is all driven by Erickson's designation of confidentiality.

[00:10:00] Speaker 06:
And what Professor Min analyzed was that section of their RRM, which is how they, as I say, their proprietary algorithm by which they decide how the base station is going to interact with the phone.

[00:10:18] Speaker 06:
And so I think the concise answer to your honor's question is,

[00:10:22] Speaker 06:
That's the primary source material which he used.

[00:10:30] Speaker 06:
So with regard to the first questionnaire request, I only wanted to make one more point regarding this semantic issue of whether the report is in fact a request in context.

[00:10:42] Speaker 06:
And that is that that's a good example of how their construction and the district court's application of that construction

[00:10:51] Speaker 06:
is inconsistent with the YMAX standard to which this patent was directed.

[00:10:58] Speaker 06:
It's not limited to YMAX, of course, but it was directed to YMAX.

[00:11:02] Speaker 06:
And there is no dispute on this record that YMAX is covered by the two bandwidth patents.

[00:11:08] Speaker 06:
That was done by their expert proctor.

[00:11:11] Speaker 06:
And yet the report in YMAX is advice.

[00:11:15] Speaker 06:
It's not a request that says, give me a particular bandwidth section according to the following time.

[00:11:20] Speaker 06:
It is in the same format as the accused format.

[00:11:25] Speaker 06:
So it is irreconcilably inconsistent for Erickson to claim both that Ymax is covered and that their instantiation is not covered because the format of the request is the same.

[00:11:40] Speaker 06:
So the second, on the second issue with regard to this time interval question, even if there is such a limitation, is there a dispute of fact?

[00:11:50] Speaker 06:
We've covered Professor Min's report, which I think by itself raises a question of fact.

[00:11:55] Speaker 06:
But Erickson's response, I think, is interesting.

[00:11:59] Speaker 06:
Erickson's principal response is, and this is relied upon by the district court as well, is that the phone's request for data, the phone's statement to the base station that says, I have x bytes of data in my uplink queue that need to go to you, that that is only one of several inputs

[00:12:19] Speaker 06:
that the base station uses to decide how much bandwidth actually to allocate to the phone.

[00:12:25] Speaker 06:
And that's true, but irrelevant.

[00:12:27] Speaker 06:
The claim itself says that the way this works is the phone tells the base station, I need to send you X bytes.

[00:12:34] Speaker 06:
The base station, of course, has many competing phones competing for its bandwidth.

[00:12:38] Speaker 06:
It has to decide how much bandwidth it can allocate to each phone.

[00:12:42] Speaker 06:
And it may do so by the type of transmission, whether it's time sensitive or not or whatever.

[00:12:49] Speaker 06:
And the base station, based on those criteria, then allocates to the phone a certain amount of bandwidth.

[00:12:54] Speaker 06:
It may be the full amount of bandwidth that the phone requested.

[00:12:57] Speaker 06:
It may not be, depending on the other competing demands of that base station at that time.

[00:13:02] Speaker 06:
But that's not relevant to the claim.

[00:13:04] Speaker 06:
The claim specifically just says you're identifying the requested bandwidth.

[00:13:08] Speaker 06:
It doesn't speak to, and there's certainly no requirement, that the bandwidth that's requested be exactly the bandwidth that's allocated.

[00:13:17] Speaker 06:
And in fact, the claim itself

[00:13:19] Speaker 06:
specifically is inconsistent with that assumption.

[00:13:22] Speaker 05:
Do you want to address your anticipation argument at all?

[00:13:24] Speaker 06:
I definitely do, Your Honor.

[00:13:26] Speaker 05:
Because generous with time has its limits.

[00:13:28] Speaker 05:
So.

[00:13:29] Speaker 06:
Let me just then identify the third dispute on infringement, which is doctrine of equivalence.

[00:13:34] Speaker 06:
Professor Minn at A2665 laid out a function-way result analysis, which I think is unimpeached at this point.

[00:13:43] Speaker 06:
And that by itself raises a question of fact with regard to doctrine of equivalence.

[00:13:46] Speaker 02:
And the district has never addressed that.

[00:13:48] Speaker 06:
True.

[00:13:49] Speaker 06:
It essentially just disregarded, did not address it on the merits at all.

[00:13:53] Speaker 06:
That is true.

[00:13:55] Speaker 06:
But there are two independent disputes of fact with regard to literal infringement as well.

[00:14:01] Speaker 02:
With regard to anticipation... In anticipation, let me start you off.

[00:14:06] Speaker 02:
So I'm having a hard time understanding how a new base station establishes a dedicated channel with a mobile device before the two units have been synchronized.

[00:14:19] Speaker 06:
Let me go to that.

[00:14:24] Speaker 02:
If something doesn't go over the random access channel, then how do you get to synchronization?

[00:14:31] Speaker 06:
Well, synchronization is a different thing than being able to send a message on a dedicated channel.

[00:14:37] Speaker 06:
And the GSN spec itself makes that clear, and Moly makes that clear.

[00:14:42] Speaker 06:
That's at 2424.

[00:14:43] Speaker 02:
Synchronization occurs because messages are transmitted over the random access channel, right?

[00:14:50] Speaker 06:
That is true.

[00:14:51] Speaker 06:
Synchronization occurs after.

[00:14:53] Speaker 06:
After?

[00:14:56] Speaker 06:
Yes.

[00:14:57] Speaker 02:
Right.

[00:14:58] Speaker 02:
So you have, in other words, you have the handover message,

[00:15:02] Speaker 02:
that has to occur for an asynchronous handover.

[00:15:06] Speaker 02:
Yes.

[00:15:06] Speaker 02:
And then you have the physical information data sent back to the mobile device.

[00:15:11] Speaker 02:
Exactly.

[00:15:12] Speaker 02:
Okay, so how is that first handover message not on a random access channel?

[00:15:18] Speaker 06:
What Muli and the JSM standard itself make clear is that you do not need synchronization in order to send that first access burst over the dedicated channel.

[00:15:30] Speaker 02:
They make it clear that you don't need it if you're already pre-synchronized.

[00:15:34] Speaker 06:
No, I disagree.

[00:15:36] Speaker 02:
That's it.

[00:15:36] Speaker 02:
And you're relying only on that one sentence?

[00:15:39] Speaker 02:
No.

[00:15:39] Speaker 06:
No, no.

[00:15:40] Speaker 06:
There's actually several places where that's true, Your Honor.

[00:15:43] Speaker 06:
A2409.

[00:15:46] Speaker 02:
Put aside, Willie.

[00:15:47] Speaker 02:
Tell me, in your own words, how synchronization occurs if there has to be communication before you can have synchronization, including the return of the physical message.

[00:16:00] Speaker 02:
that has to be occurring over a random access channel, right?

[00:16:03] Speaker 06:
No.

[00:16:04] Speaker 06:
What happens, well, there's two parts to the question.

[00:16:07] Speaker 06:
Let me answer.

[00:16:07] Speaker 06:
The part that's relevant, I think, to the claim is, is it possible for that first handover reference message to be sent on a dedicated channel without synchronization having occurred first?

[00:16:22] Speaker 02:
Your expert says repeatedly that it's not.

[00:16:25] Speaker 02:
No, I think... Should we go to it?

[00:16:29] Speaker 02:
This isn't even a close call, I don't think, in terms of what your expert says.

[00:16:32] Speaker 02:
You might try to back off of it.

[00:16:34] Speaker 02:
But he says repeatedly that you have to have synchronization first before you can get on a dedicated channel.

[00:16:39] Speaker 06:
He doesn't say that as to the handover reference.

[00:16:42] Speaker 06:
There's absolutely nothing that says that as to a handover reference.

[00:16:46] Speaker 06:
And if you look at A2424,

[00:16:48] Speaker 02:
says if it's for the synchronous handover, then it's easier.

[00:16:51] Speaker 02:
Clearly, you know, you haven't lost your synchronization.

[00:16:53] Speaker 02:
But if it's asynchronous, then you obtain the synchronization first, and then you can use it on a dedicated channel.

[00:16:59] Speaker 06:
But not, he's not talking about there about a handover reference.

[00:17:01] Speaker 06:
There's nothing that says he has a handover reference.

[00:17:03] Speaker 06:
And if you look at A2424, which is the actual standard that Mooli is purporting to describe, it lays out how it works for synchronous and how it works for asynchronous.

[00:17:14] Speaker 02:
But for asynchronous, it says, assuming you've already established the channel.

[00:17:21] Speaker 02:
That's true, but it doesn't say you need to... It says exactly after having switched to the assigned channels.

[00:17:26] Speaker 02:
So how do you get to the point of switching to the assigned channels if your expert says you can't switch to those channels until you have synchronization?

[00:17:32] Speaker 06:
The expert said, there are portions, I believe, I agree with you, where the expert said something that could fairly be interpreted that way.

[00:17:38] Speaker 06:
He also said the opposite several places.

[00:17:41] Speaker 06:
At best, that's a credibility issue.

[00:17:42] Speaker 02:
I don't find anywhere that he said the opposite, and you don't cite to anything where he says the opposite.

[00:17:46] Speaker 02:
You just say, well, maybe it's ambiguous, but you never cite to where he says the opposite.

[00:17:50] Speaker 06:
I think it is ambiguous, and the exact opposite is where he says it is always sent on a dedicated channel, and he never says it's sent on a random access channel.

[00:18:00] Speaker 06:
He says that seven times.

[00:18:02] Speaker ?:
OK.

[00:18:04] Speaker 06:
He says that seven times, and that's squarely inconsistent.

[00:18:07] Speaker 02:
As in what seven?

[00:18:08] Speaker 06:
that in asynchronous and in both modes, the handover reference is only sent on a dedicated channel and moving.

[00:18:16] Speaker 02:
Well, he says if it's asynchronous, then you have to obtain the synchronization, and then you can use it afterward.

[00:18:22] Speaker 02:
That's for data.

[00:18:23] Speaker 02:
And then so the question is, so to the extent it's referring to access first being on a dedicated channel, it's either in a synchronous scenario or in a scenario where the synchronization takes place prior to that access first being sent on the dedicated channel.

[00:18:35] Speaker 02:
And he says, yes, that's right.

[00:18:37] Speaker 06:
And one of the portions that you're pointing to, I don't know if it's that one, was talking about a hypothetical that was set out by Erickson's counsel, where he was asking him to assume a set of facts that isn't true.

[00:18:48] Speaker 02:
Well, there's no hypothetical here that he's asking him to assume a set of facts.

[00:18:53] Speaker 06:
There isn't some of them.

[00:18:55] Speaker 06:
But in any event, it is squarely inconsistent with Professor Min's repeated statements that says, in synchronous and asynchronous, it is always set on a dedicated channel.

[00:19:04] Speaker 06:
And it's inconsistent with Mooling.

[00:19:06] Speaker 06:
It's called a handshake, I believe.

[00:19:08] Speaker 06:
Handshake, handover, exactly.

[00:19:09] Speaker 06:
So the question is not, yes, of course you need synchronization to occur before data is sent, but you do not need it before that handshake signal is sent.

[00:19:18] Speaker 06:
And A2424 explains how you do that in asynchronous, which is in synchronous, you only send it, I believe, four or five times.

[00:19:27] Speaker 06:
In asynchronous, you send it continuously.

[00:19:30] Speaker 06:
And that's over the dedicated shell.

[00:19:35] Speaker 02:
He's, I'm sorry, Dr. Min is quoting from Moley.

[00:19:39] Speaker 02:
He says, the mobile station is forbidden to transmit the data which is on a dedicated channel until the new timing is, new timing advance.

[00:19:46] Speaker 02:
In other words, the synchronization is initiated.

[00:19:49] Speaker 06:
The data, exactly.

[00:19:50] Speaker 06:
That's not the handshakes and that's the data.

[00:19:54] Speaker 06:
The sequence is handover reference sent on dedicated channel, then synchronization, then data.

[00:20:03] Speaker 06:
That's clear in MULI.

[00:20:04] Speaker 06:
It's clear in the GSM standard.

[00:20:06] Speaker 06:
And that's what, in other places, Professor Min testified about.

[00:20:10] Speaker 02:
What about the figure 6.3 of MULI, where it shows that the handover reference, that there is an initial sending of the reference before the physical data, physical information goes back.

[00:20:29] Speaker 06:
That's the physical data again.

[00:20:30] Speaker 06:
Yes, exactly.

[00:20:31] Speaker 02:
So there's a handover access first.

[00:20:33] Speaker 02:
Yes.

[00:20:34] Speaker 02:
And that handover access can't be on the dedicated channel, because until you have the physical information sent back, you can't have synchronization.

[00:20:41] Speaker 06:
It is on a dedicated channel.

[00:20:42] Speaker 06:
That's what Booley and GSM tell us on the pages that I've cited for you.

[00:20:47] Speaker 06:
2409, 2424.

[00:20:54] Speaker 06:
That's exactly what Professor Mintz said elsewhere as well.

[00:20:58] Speaker 06:
And the fact that, and one of the points I wanted to make is that on this issue,

[00:21:04] Speaker 06:
the district court improperly resolved credibility disputes, both of them, against Wylan in summary judgment.

[00:21:11] Speaker 06:
He relied explicitly, in his opinion, on their expert, Mr. Lanning.

[00:21:16] Speaker 02:
Well, no, no.

[00:21:17] Speaker 02:
He actually relied on your expert, because he said... Both.

[00:21:20] Speaker 02:
Well, I'm crediting what Dr. Min says, and Dr. Min says in no uncertain terms that synchronization has to occur first.

[00:21:29] Speaker 06:
I would put it differently.

[00:21:30] Speaker 06:
I think that what he's relying upon is a portion of Professor Mint's testimony, which is, as read, inconsistent with all of the rest of his testimony and his report.

[00:21:41] Speaker 06:
And at best, that raises a credibility issue that cannot be resolved at summary judgment.

[00:21:48] Speaker 02:
Notes.

[00:21:50] Speaker 02:
I understand that there has to be an issue of fact, but it's got to be a genuine issue of fact.

[00:21:54] Speaker 02:
It's got to be a real issue of fact.

[00:21:55] Speaker 02:
And if your expert walks away from the very argument you're making, both in terms of what he says Mooli teaches and what he says has to occur, then how do you have a genuine issue of fact?

[00:22:06] Speaker 01:
I think your core is that paragraph for which I was searching, because I thought it was important.

[00:22:12] Speaker 01:
That's 257 in a men's affidavit.

[00:22:16] Speaker 06:
Exactly.

[00:22:17] Speaker 06:
Where he says,

[00:22:18] Speaker 06:
The handover reference disclosed by Moody is included in the handover access message, which is sent on a dedicated channel, not a random access channel.

[00:22:27] Speaker 06:
But he then talks about it in asynchronous, synchronous, et cetera.

[00:22:32] Speaker 06:
It's not that Professor Min walked away from his opinion, not at all.

[00:22:36] Speaker 06:
What they rely upon is one stray comment or a couple of stray comments in a long deposition against 10 other comments in the same deposition that are inconsistent with it.

[00:22:46] Speaker 06:
and 10 other statements in his declaration that are inconsistent with it.

[00:22:49] Speaker 02:
And that creates, at most, a credibility question that can't be resolved in summary judgment.

[00:23:00] Speaker 02:
.37 figure, handover access occurs first, then physical information goes back.

[00:23:05] Speaker 02:
That's the only way you can get synchronization.

[00:23:07] Speaker 02:
So how can that first handover access be on a dedicated channel?

[00:23:11] Speaker 06:
Because you can set it on a dedicated channel before synchronization.

[00:23:14] Speaker 06:
That's what A2424 tells us.

[00:23:17] Speaker 06:
And 2409.

[00:23:19] Speaker 06:
And Professor Menn elsewhere.

[00:23:21] Speaker 02:
Okay, so all the references in Mouli that say you can't and all

[00:23:26] Speaker 02:
Professor Min's testimony that say you can't.

[00:23:28] Speaker 02:
Well, there's actually... It just goes to assume that those are all wrong.

[00:23:31] Speaker 06:
No, if we talk about Mooley, there is no statement in Mooley that says in asynchronous, the handover reference is sent over the wrench.

[00:23:43] Speaker 06:
There are zero statements to that effect, zero.

[00:23:46] Speaker 06:
There is one very clear statement in Mooley that says in both synchronous and asynchronous, it's sent on a dedicated channel.

[00:23:52] Speaker 02:
That one statement is not clear.

[00:23:55] Speaker 02:
I mean, even you argued that you should at least find it to be ambiguous.

[00:24:00] Speaker 02:
That's what you said to the judge at summary judgment.

[00:24:03] Speaker 02:
That's not clear.

[00:24:04] Speaker 02:
I think that statement is clear.

[00:24:05] Speaker 02:
Aren't there plenty of other places in Moley where it specifically says that you can't be on a dedicated channel until you are synchronized?

[00:24:14] Speaker 06:
Not for a handover reference.

[00:24:15] Speaker 06:
There's not a single statement to that effect.

[00:24:17] Speaker 06:
not a single statement to that effect with regard to handover reference, and the single statement in Moley is squarely clear.

[00:24:23] Speaker 06:
It says in both synchronous and asynchronous, it is sent on a dedicated channel.

[00:24:28] Speaker 06:
That is unambiguous, and I think that's sufficient to find summary judgment of no anticipation.

[00:24:34] Speaker 05:
Okay, Mr. Powers, I think it's time for us to move on.

[00:24:38] Speaker 05:
Let's hear from Mr. Clement.

[00:24:40] Speaker 05:
Mr.. I think that if I'm right we're at about 23 minutes for mr.. Powers at this point So why don't we put 25 minutes on the clock for mr.. Clement if he needs them?

[00:24:52] Speaker 05:
And we'll make certain that you have some rebuttal time depending on how much time is spent on the mfl Issue that you raise, okay?

[00:25:02] Speaker 00:
Thank you your honors and may it please the court

[00:25:05] Speaker 00:
The district court correctly determined that the 437 patent was invalid and that the bandwidth patents were not infringed.

[00:25:12] Speaker 00:
Indeed, the district court's only error was in badly misreading and indeed overreading this court's earlier decision about the scope of the PICRA, the agreement, the settlement agreement between the parties.

[00:25:23] Speaker 00:
The district court read this court's decision as holding that as long as patents asserted here by Weiland,

[00:25:30] Speaker 00:
required after the PICRA was entered.

[00:25:32] Speaker 05:
But you're starting with your MFL issue.

[00:25:34] Speaker 00:
Yes.

[00:25:34] Speaker 00:
I mean, I'll start anywhere you want me to.

[00:25:36] Speaker 00:
That's where I plan to start.

[00:25:38] Speaker 00:
But I'm happy to start anywhere you want me to.

[00:25:41] Speaker 02:
Even assuming that you're right, that we were limiting our decision to the triggering mechanism, there's still a lot left to analyze, correct, with respect to that MFL provision?

[00:25:55] Speaker 00:
I think that's right.

[00:25:56] Speaker 00:
I mean, I think that what's left to analyze can still be resolved in our favor, because I think they're legal questions.

[00:26:03] Speaker 00:
But on this issue, of course, we had summary judgment granted against us based on this legal conclusion that the triggering patents and the asserted patents were the same.

[00:26:13] Speaker 00:
And that's just wrong, I think.

[00:26:16] Speaker 00:
I mean, obviously, I can't tell this panel what this panel meant in its earlier decision.

[00:26:21] Speaker 00:
I can just read it.

[00:26:23] Speaker 00:
And it's a decision about a clause, and the clause

[00:26:26] Speaker 00:
when it talks about patents, only talks about the triggering patents.

[00:26:30] Speaker 00:
And there was a separate dispute between the parties in the first case about if the clause is triggered, what's the scope of the license that's granted?

[00:26:39] Speaker 00:
And the way I read this court's decision is that you hold that a triggering patent has to be a pre-agreement patent and that all the other issues that the parties were briefing for you, you don't need to decide.

[00:26:52] Speaker 02:
OK.

[00:26:52] Speaker 02:
Assuming that's true, there would be

[00:26:55] Speaker 02:
three possible scenarios then in terms of how the MFL provision would work.

[00:26:59] Speaker 02:
You say it just opens up everything to any product that Erickson ever would make, right?

[00:27:06] Speaker 02:
That's your view.

[00:27:06] Speaker 05:
Can you stop?

[00:27:07] Speaker 05:
You are being very distracting right now.

[00:27:09] Speaker 05:
I can't follow this exchange.

[00:27:11] Speaker 02:
Go ahead.

[00:27:12] Speaker 02:
OK, right.

[00:27:13] Speaker 02:
That's your view, is that assuming it's triggered, all bets are off, that Erickson can do anything that Bel Air would be allowed to do.

[00:27:23] Speaker 00:
Ultimately, right.

[00:27:23] Speaker 00:
I mean, I wouldn't put it in terms of all bets being off.

[00:27:25] Speaker 00:
I would turn in terms of exactly what 7.1 says, which is once you're triggered, then there's a right on behalf of my client to get a non-exclusive license.

[00:27:36] Speaker 00:
And it covers the products, LME products.

[00:27:39] Speaker 00:
And that's a defined term in the agreement.

[00:27:41] Speaker 05:
But why does it cover the products as to the relevant patent that triggered the provision?

[00:27:46] Speaker 05:
That's the part I'm not following.

[00:27:47] Speaker 05:
Why does it cover the products?

[00:27:49] Speaker 05:
I've got the language here, and I'm a plain language kind of gal, so I should be your friend in this case.

[00:27:53] Speaker 05:
Except that I don't see that in the plain language.

[00:27:56] Speaker 05:
What I see is with reference to the patents, it covers the products.

[00:28:01] Speaker 00:
With all due respect, Your Honor, I think you're reading those words into

[00:28:06] Speaker 00:
the scope part of 7.1.

[00:28:07] Speaker 00:
7.1 says once the triggering provision is satisfied.

[00:28:14] Speaker 05:
Where does it say anything about triggering provision?

[00:28:15] Speaker 05:
I see it as a single provision.

[00:28:17] Speaker 05:
I don't see it as two provisions, one for triggering and then a subsequent provision for application.

[00:28:22] Speaker 05:
I see a single provision.

[00:28:24] Speaker 05:
So where in this provision does it have this two-step process that you're suggesting?

[00:28:29] Speaker 05:
How is it that I read this as a two-step process?

[00:28:31] Speaker 05:
In fact, the entire thing you're pointing to is a single sentence.

[00:28:35] Speaker 05:
It's not even two sentences.

[00:28:37] Speaker 05:
It's not just one provision.

[00:28:38] Speaker 05:
It's one sentence.

[00:28:39] Speaker 00:
Sure, but there's a comma.

[00:28:41] Speaker 00:
There's a lot of commas.

[00:28:42] Speaker 00:
Well, I know, but there's everything that precedes the comma is what I would read as, I'll call it the triggering clause.

[00:28:48] Speaker 05:
Which comma, given that there are 10 or 12 of them?

[00:28:49] Speaker 00:
No, the first comma, at least as I've transcribed it in my notes.

[00:28:53] Speaker 00:
Before the first comma, it says, in the event that Weiland owns or controls

[00:28:58] Speaker 00:
the licensing of patents not already addressed under the agreement and which are infringed or alleged to be infringed by UMTS slash HISPA products, comma.

[00:29:08] Speaker 00:
So I view that as the triggering clause.

[00:29:11] Speaker 00:
And my friends on the other side don't even have an argument in this round of briefing that the triggering clause isn't satisfied by the 759 patent that they asserted against UMTS, HISPA products.

[00:29:25] Speaker 00:
So we're at the comma.

[00:29:27] Speaker 00:
We're empowered.

[00:29:28] Speaker 05:
With regard to the 759 patent, we definitely have to keep going.

[00:29:31] Speaker 00:
But with all due respect, Your Honor, you would have to read those words in after the reference to products.

[00:29:38] Speaker 00:
Because after the comma, it then says, Weiland hereby agrees that at any time during the term of this agreement, at LME's request, comma, Weiland will grant to LME and its affiliates a non-exclusive license to make, import, et cetera, et cetera, LME products, including UMTS HISPA products,

[00:29:58] Speaker 00:
So just stop there for a second.

[00:29:59] Speaker 00:
It doesn't say, with respect to the triggering patent.

[00:30:02] Speaker 05:
Well, that's the only thing they can actually give.

[00:30:05] Speaker 05:
They can't actually give a license to make, except under what?

[00:30:09] Speaker 05:
Under what can they give a license to make?

[00:30:11] Speaker 05:
Because I don't have the right to allow you to make.

[00:30:13] Speaker 05:
Maybe you need FDA approval.

[00:30:14] Speaker 05:
Maybe there are 100 other companies with patents on your product.

[00:30:18] Speaker 05:
I can't give you a license to make.

[00:30:20] Speaker 05:
All I can give you is what I have.

[00:30:22] Speaker 05:
And the only thing this sentence is talking about is particular patents that I have.

[00:30:27] Speaker 00:
With respect, Your Honor, first of all, I mean, I want to get back to this point.

[00:30:32] Speaker 00:
But first of all, I think that would basically read this provision to be almost meaningless.

[00:30:36] Speaker 00:
But second of all, it's- Why?

[00:30:37] Speaker 01:
I think this sounds like an argument that was made last time.

[00:30:40] Speaker 00:
It wasn't, Your Honor.

[00:30:41] Speaker 00:
You didn't get to this provision.

[00:30:43] Speaker 00:
It was made.

[00:30:45] Speaker 00:
Yeah, it was made.

[00:30:46] Speaker 00:
And it was one of the arguments that you didn't reach.

[00:30:48] Speaker 00:
And I don't- I know that.

[00:30:50] Speaker 00:
OK.

[00:30:50] Speaker 00:
But it was made by both parties.

[00:30:52] Speaker 00:
And I think we overwhelmingly have the better argument based on the text of this provision.

[00:30:57] Speaker 00:
And with respect to your question more broadly, Judge Moore, I think, sure, they don't have a right to grant us a license to make, irrespective of other federal laws, what they have is- Or irrespective of other people's patents or- Right, right, but they have a- What they have here, and in this sentence, it says, in the event that WeLand owns or controls the licensing of patents not already addressed.

[00:31:22] Speaker 05:
And we have interpreted that language as being limited to patents it owns at the time.

[00:31:28] Speaker 00:
which the 759 patent is, and they don't dispute, so we have the trigger, Your Honor, and what they have a license to grant is a green light to make the patent, the product, with respect to all the patents they own.

[00:31:40] Speaker 05:
No, where does it say that?

[00:31:41] Speaker 05:
Where does it say that?

[00:31:43] Speaker 00:
It doesn't, Your Honor, but it doesn't say... You would like to read that language into this product.

[00:31:46] Speaker 05:
That language is not there.

[00:31:48] Speaker 00:
With all due respect, Your Honor, I don't need to read that in, and you need to read in, my friend needs to read in, with respect to

[00:31:55] Speaker 00:
the triggering patent.

[00:31:56] Speaker 00:
And that's not in there.

[00:31:57] Speaker 05:
It says products.

[00:31:58] Speaker 05:
It's a single sentence, Mr. Clement.

[00:32:01] Speaker 05:
It's one sentence.

[00:32:02] Speaker 05:
And that one sentence begins by talking about patents that they already own.

[00:32:06] Speaker 05:
Whether you agree with it or not, that's where we are based on our president.

[00:32:10] Speaker 05:
Take no issue with that, Your Honor.

[00:32:11] Speaker 05:
The second half of the sentence then says, and then we'll give you a license.

[00:32:15] Speaker 00:
For products, to make products.

[00:32:17] Speaker 00:
It doesn't say

[00:32:18] Speaker 00:
to make products notwithstanding that patent.

[00:32:20] Speaker 05:
But we both agree that they can't give a license to make products.

[00:32:24] Speaker 05:
The license is to make products under something.

[00:32:26] Speaker 05:
And the only something that's discussed in this sentence is the patents that they already own.

[00:32:33] Speaker 05:
We can't give you a license to make.

[00:32:34] Speaker 05:
Don't you agree it's absurd for me to say you have a license to make something in patent law?

[00:32:39] Speaker 05:
No, I don't think it's absurd at all, Your Honor, and if you're talking about somebody... Wait, how can I give you a license to make something?

[00:32:45] Speaker 05:
There could be other people that have patents on it.

[00:32:47] Speaker 05:
I can't insulate you from infringement of other patents.

[00:32:49] Speaker 00:
Absolutely, Your Honor, but if you have a whole basket of patents back there and you give me a license to make products, I would understand that to say,

[00:32:58] Speaker 00:
You're standing down not just to one patent, but to the whole basket of patents you have back there.

[00:33:02] Speaker 05:
The whole basket of patents I currently own.

[00:33:04] Speaker 05:
Exactly.

[00:33:05] Speaker 05:
That is what this says.

[00:33:07] Speaker 00:
Well, now you're reading a different condition and a different argument that they're making and a different argument than the district court's making.

[00:33:13] Speaker 00:
He's making the argument.

[00:33:15] Speaker 00:
He made the argument, the assumption that this only applies to the very trigger patent.

[00:33:20] Speaker 00:
Now, if you're saying that it applies to only

[00:33:24] Speaker 00:
The whole basket of patents, but only the basket of pre-existing patents, that's an argument that they haven't made, and I don't see how you can read that in.

[00:33:33] Speaker 00:
I mean, now you're reading kind of language in with a caveat.

[00:33:37] Speaker 00:
Whereas, I mean, this is a clause that refers to a defined term in the agreement.

[00:33:43] Speaker 00:
The defined term in the agreement, LME products, is a defined term, and it means

[00:33:47] Speaker 00:
Our products.

[00:33:48] Speaker 02:
It's broad.

[00:33:49] Speaker 02:
Your products.

[00:33:49] Speaker 02:
But let me ask you a question.

[00:33:51] Speaker 02:
Are there LME products that could have just a component of the compliant products?

[00:34:03] Speaker 02:
In other words, could that just be a component?

[00:34:07] Speaker 00:
It could be a component, but if you wanted to limit it just to that component, you'd need some restrictive language.

[00:34:12] Speaker 02:
Well, that's what I'm wondering, because speaking of commas, there's one missing in the phrase that you want to point us to that says LME products including, and then it talks about the compliant products.

[00:34:24] Speaker 02:
And so the question is, is that reference meant to say,

[00:34:30] Speaker 02:
that it's not, quote, including this other kind of products, but it's your products that happen to include compliant components?

[00:34:39] Speaker 00:
Well, I don't think so.

[00:34:41] Speaker 00:
I mean, I see the point you're making.

[00:34:42] Speaker 00:
But I think that, you know, here and, you know, I think in other places in the agreement, but I'd have to go back and look at the whole agreement.

[00:34:50] Speaker 00:
I think when it's referring to LME products, including UMTS HISPA products,

[00:34:55] Speaker 00:
I don't think that that including is like a modifier of the LME products.

[00:35:01] Speaker 00:
And I think that would defeat, in context, the distinction.

[00:35:05] Speaker 00:
Because another way of putting it is, I think the way you're reading it, it would effectively read out LME products including.

[00:35:12] Speaker 00:
Because nobody's going to think that we're going to get a license to something.

[00:35:18] Speaker 00:
We're the referent, I think.

[00:35:19] Speaker 00:
So it's clearly got to be LME that we're talking about.

[00:35:23] Speaker 00:
So I think when it's saying LME products including,

[00:35:25] Speaker 00:
UMTS HISPA products.

[00:35:28] Speaker 00:
That's a definitive way of trying to say that it's all the products.

[00:35:32] Speaker 00:
It's not just these products.

[00:35:33] Speaker 05:
Mr. Clement, I need a point of clarification.

[00:35:35] Speaker 05:
When you stood up, you said, this is important because summary judgment was granted against us on this point.

[00:35:42] Speaker 05:
I want to ask you to clarify procedurally, because I understood you to be appealing the district court's denial of your request for summary judgment on this point.

[00:35:51] Speaker 05:
But I didn't see a grant of summary judgment against you on this point.

[00:35:56] Speaker 05:
And I've asked my clerk to look, and he can't find it either.

[00:35:59] Speaker 05:
So what am I missing?

[00:36:00] Speaker 00:
What you're missing is that, and there can be some confusion on this, because we raised this both as a defense and as a counterclaim.

[00:36:08] Speaker 00:
And so when the district court issued his original opinion,

[00:36:12] Speaker 00:
He clearly rejected this as a defense.

[00:36:14] Speaker 05:
Wait, but you said your exact words were grant of summary judgment against us in this case.

[00:36:19] Speaker 00:
Exactly.

[00:36:20] Speaker 00:
So is there a grant of summary judgment against you?

[00:36:21] Speaker 00:
Yes, on the counterclaims.

[00:36:23] Speaker 00:
On the counterclaims.

[00:36:23] Speaker 00:
And there was some ambiguity the way he dealt with it in the first opinion.

[00:36:26] Speaker 00:
So we went back and asked him to clarify.

[00:36:28] Speaker 00:
He had a clarifying opinion where he ruled against us on summary judgment on our counterclaims.

[00:36:34] Speaker 00:
And so there's your answer.

[00:36:36] Speaker 00:
We amended our notice of appeal to take that up as well.

[00:36:39] Speaker 00:
So I don't think there's any

[00:36:40] Speaker 00:
ambiguity as to the procedural procedures as it comes out.

[00:36:43] Speaker 02:
So as I understand it, you're saying that the scope of the license that they could and should afford you is the scope of the license that's outlined in the Bell Air license.

[00:36:56] Speaker 00:
Yeah.

[00:36:56] Speaker 00:
And to put it just in colloquial terms, it's a portfolio license.

[00:37:01] Speaker 00:
And if you go back to the beginning on this, when my client first found out that its lawyers were being used

[00:37:09] Speaker 00:
to sort of develop the case both against it and against the products more broadly.

[00:37:13] Speaker 00:
I mean, they had a very negative reaction to that.

[00:37:15] Speaker 00:
These were their lawyers that they'd spent.

[00:37:16] Speaker 02:
Yeah, we got it.

[00:37:18] Speaker 00:
OK, OK, OK.

[00:37:18] Speaker 00:
But my only point, other than to give you a little windup for this, was to make the point that our initial offer was we want a portfolio license.

[00:37:28] Speaker 00:
Their initial law.

[00:37:29] Speaker 02:
Everything else in this Hall of Grieve.

[00:37:31] Speaker 02:
And I mean, Section 2 says we notify you with respect to just these compliant patents.

[00:37:37] Speaker 02:
And then you've got the damages provision that, you know, the non-suit provision, which we said is limited to the We Land compliant patents.

[00:37:45] Speaker 02:
And then you've got the damages provision that is limited to non-We Land compliant patents.

[00:37:52] Speaker 02:
So all throughout, we're talking about

[00:37:54] Speaker 02:
those products that are covered by the standards, right?

[00:38:01] Speaker 00:
Well, I think there are places, I mean, there are places where it talks about those, and when it does, it uses the defined terms, UMTS, HISPA products.

[00:38:09] Speaker 00:
There are times when it uses the LME products more broadly, which is why that's also a defined term.

[00:38:15] Speaker 00:
So I don't think you can say the whole agreement is just about UMTS, HISPA products.

[00:38:19] Speaker 00:
I think what I would say, though, where I was going with this is just to say, I don't think it's

[00:38:24] Speaker 00:
all that anomalous that this provision is drafted in a way that says, look, if you start asserting your other pre-existing patents against this technology, what we want is effectively, we want the blanket license that we wanted in the first place.

[00:38:41] Speaker 05:
But that's not what you're asking for.

[00:38:42] Speaker 05:
That's not what you're asking us to do.

[00:38:44] Speaker 05:
These patents at issue are not their other pre-existing patents.

[00:38:50] Speaker 05:
These patents at issue are later acquired patents, aren't they, factually?

[00:38:54] Speaker 05:
Am I understanding the facts right?

[00:38:55] Speaker 00:
Sure.

[00:38:56] Speaker 00:
But at the time of the original agreement, we were looking for a license, a portfolio license, of exactly the scope we're asking for you today and exactly the scope that they gave to Bel Air.

[00:39:11] Speaker 00:
And so we're not asking you something today that we didn't ask for in the beginning.

[00:39:18] Speaker 00:
And as you would expect, when one party comes in and says, we really want these McCool lawyers, we'll lay off you with these four patents.

[00:39:26] Speaker 00:
And we come back and say, that's not nearly good enough.

[00:39:29] Speaker 00:
If you want our lawyers, who were on record as basically saying, if we couldn't come to agreement, they were walking away from Weiland.

[00:39:36] Speaker 00:
So we were in the driver's seat in the negotiations.

[00:39:39] Speaker 00:
We said we want the whole thing.

[00:39:41] Speaker 00:
We want a portfolio license that would cover everything.

[00:39:44] Speaker 00:
And where the parties negotiated to,

[00:39:48] Speaker 00:
is an arrangement that I think in the context of that makes perfect sense, which is, all right, we're not sure what's in the basket of currently existing patents.

[00:39:55] Speaker 00:
But if it turns out that you're going to assert those against UMTS HISPA products, then here's the deal.

[00:40:00] Speaker 00:
We're going to basically get the license, the portfolio license we were asking for.

[00:40:05] Speaker 00:
And we will give you, Weiland, an advantage that we wouldn't have if we were just negotiating this right now in a blank slate, which is we'll let you essentially pick the terms.

[00:40:17] Speaker 00:
So they didn't have to go out and make this license with Bel Air.

[00:40:22] Speaker 00:
And if I were advising them in light of this agreement, I would have probably said don't do that.

[00:40:26] Speaker 00:
Make it a per product license or something so you don't run into this problem.

[00:40:29] Speaker 05:
If you were advising them, you would have written the agreement a lot more clearly.

[00:40:33] Speaker 00:
I think that's true as a general matter, Your Honor.

[00:40:35] Speaker 00:
I'm not sure I would have written this particular provision that much differently.

[00:40:39] Speaker 00:
At least if what I was trying to accomplish is what I'm saying they were trying to accomplish.

[00:40:43] Speaker 00:
Again, with all... Really?

[00:40:45] Speaker 05:
After this oral argument, you wouldn't have written this provision differently even now at this point in our discussion?

[00:40:50] Speaker 00:
Really?

[00:40:50] Speaker 00:
Well, I mean, sure.

[00:40:51] Speaker 00:
I mean, look, but here's the point, Your Honor.

[00:40:53] Speaker 00:
You would have at least put another comma in there.

[00:40:55] Speaker 00:
Sure, I'd add a comma to address Judge O'Malley.

[00:40:58] Speaker 00:
I mean, look, what you're saying is, with the benefit of hindsight, based on this oral argument, sure.

[00:41:01] Speaker 00:
But what I'd be doing is I would be adding words that, with all due respect, I think would be superfluous.

[00:41:08] Speaker 05:
Because when I have a license for products...

[00:41:11] Speaker 05:
Don't you think, and it says including UMTS HSPA products, don't you think that means, under this agreement, all LME products?

[00:41:21] Speaker 05:
Right?

[00:41:21] Speaker 05:
All of them.

[00:41:22] Speaker 05:
Every single product.

[00:41:24] Speaker 00:
Correct?

[00:41:24] Speaker 00:
And I think that because it's a defined term.

[00:41:26] Speaker 00:
Sure.

[00:41:26] Speaker 05:
It's not a fair reading.

[00:41:27] Speaker 00:
Right.

[00:41:27] Speaker 00:
Sure.

[00:41:28] Speaker 00:
No, it's more than a fair reading.

[00:41:29] Speaker 00:
It's a defined term.

[00:41:30] Speaker 05:
OK, but so your view is that the first half, which is the triggering event, which says triggered if it turns out there might be a patent

[00:41:39] Speaker 05:
that could infringe a UMTS slash HSPA product.

[00:41:45] Speaker 05:
So there could be a triggering event because Wieland has a patent that infringes this one subset of LME products.

[00:41:53] Speaker 05:
Your view is then Erickson has a license for every other LME product it makes, even if it does not contain UMTS HSPA technology.

[00:42:04] Speaker 05:
that they could start making dishwashers.

[00:42:07] Speaker 05:
And if Wheelian has a patent on a dishwasher, and some triggering event occurs in a bizarre universe, you've got a most favored license now on the dishwasher.

[00:42:17] Speaker 00:
Right?

[00:42:17] Speaker 00:
Sure.

[00:42:17] Speaker 00:
That's your argument.

[00:42:19] Speaker 05:
Just to make sure I understand the logical consequences of what you're asking for.

[00:42:22] Speaker 00:
Absolutely, Your Honor.

[00:42:24] Speaker 00:
But you know what?

[00:42:24] Speaker 00:
If Bel Air's got a dishwasher, and there are no dishwasher patents, but if they have a dishwasher, they get to do it, and they get to do it all with a license.

[00:42:32] Speaker 00:
for $300,000 Canadian.

[00:42:34] Speaker 05:
Even though that has nothing to do with the UMTS type products.

[00:42:37] Speaker 00:
Absolutely.

[00:42:38] Speaker 00:
But keep in mind, your honor.

[00:42:40] Speaker 05:
Everything we land ever develops technology in or obtains a patent for in the future, Erickson gets a free pass on all of it if they license it to anyone else.

[00:42:48] Speaker 00:
It's not a free pass.

[00:42:49] Speaker 00:
It's a pass on the terms that they decide for themselves based on their negotiation with another disinterested party.

[00:42:56] Speaker 00:
And with respect, before you think that that's like too much to ask,

[00:43:00] Speaker 00:
Think about the dynamic of the negotiation here.

[00:43:02] Speaker 05:
Well, the dynamic of negotiation at best gets you ambiguity, which gets you back into a parole evidence scenario for the contract.

[00:43:10] Speaker 05:
Because I'm certainly not going to sit here and evaluate the context of the negotiation.

[00:43:15] Speaker 05:
That's not part of contract interpretation for me.

[00:43:18] Speaker 00:
OK, but I guess the reason I think it's maybe relevant to you right now is just, as I understand this colloquy, curitably to my side,

[00:43:28] Speaker 00:
I think what it's saying is, yeah, you might have a point on the plain language, but that just seems like they've just given away the store.

[00:43:34] Speaker 00:
And that seems crazy to me.

[00:43:35] Speaker 00:
And I'm just telling you, and if you need to send this back to the judge for him to get more depositions on this, that's a better result than where I'm sitting right now.

[00:43:43] Speaker 00:
But the reality is, that's not a crazy result given the bargaining power my client had.

[00:43:49] Speaker 00:
And specifically, they were concerned about exactly this.

[00:43:52] Speaker 01:
They were concerned.

[00:43:53] Speaker 01:
You're taking us back to the first year of law school and arguing against the existence of a contract of adhesion.

[00:43:58] Speaker 00:
It's not a contract of adhesion.

[00:44:01] Speaker 00:
Think about it this way, Your Honor.

[00:44:02] Speaker 00:
I mean, I just don't think it would be a contract of adhesion or even a particularly bad deal if they'd given the blanket license, which we were asking for.

[00:44:10] Speaker 01:
I made a comment 15 minutes ago about prior arguments, because it seems to me there's a considerable amount of discussion to be had about other aspects of this case.

[00:44:22] Speaker 01:
And we're down to 535, and we're still on the most favored question.

[00:44:28] Speaker 00:
Well, I'm happy to move on, and I take the hint to do just that, so I will.

[00:44:32] Speaker 00:
But I would say that we lost our counterclaim definitively.

[00:44:35] Speaker 00:
And if I take the import of your question, we should at least get a remand so we can get into the parole evidence in front of the district court judge, who I think was clearly over-reading and misreading this court's decision.

[00:44:44] Speaker 01:
But let me then take you to- So let's get into your red break, because I have it right, as I did with your opposing counsel.

[00:44:51] Speaker 01:
And that is on-

[00:44:55] Speaker 01:
page 54, your footnote 11, in which you reference the argument that Weiland makes attacking your expert.

[00:45:08] Speaker 01:
And it's about the moving of portions of a chart around.

[00:45:14] Speaker 01:
Yes, Your Honor.

[00:45:17] Speaker 01:
Okay.

[00:45:17] Speaker 01:
And what gripes me about that is

[00:45:20] Speaker 01:
It says, the reference simply explains that the acronym AB means access first to keep piece of information.

[00:45:25] Speaker 01:
You just slough it off.

[00:45:27] Speaker 01:
And I went and looked carefully at it.

[00:45:30] Speaker 01:
And yeah, you could say that.

[00:45:33] Speaker 01:
But you can't say that without acknowledging that what the expert did was modify evidence.

[00:45:40] Speaker 01:
And if you had come in and said to me, yeah, he modified evidence.

[00:45:44] Speaker 01:
It really didn't harm anybody.

[00:45:48] Speaker 01:
It was an attempt to make it clear.

[00:45:50] Speaker 01:
And that's all he was trying to do.

[00:45:52] Speaker 01:
I might well have bought it.

[00:45:53] Speaker 01:
But what I didn't like was that footnote that says, oh, that's all this was.

[00:45:59] Speaker 01:
Because I thought it was misleading.

[00:46:01] Speaker 01:
And so that's why I'm raising it with you.

[00:46:02] Speaker 00:
Well, I certainly take the criticism.

[00:46:05] Speaker 00:
And we certainly weren't trying to do anything that the expert wasn't trying to do.

[00:46:11] Speaker 00:
No, no, I take the criticism.

[00:46:14] Speaker 00:
I won't say anything more than that.

[00:46:15] Speaker 00:
I think what I would say more broadly about, and I guess I'll start with the infringement issues.

[00:46:21] Speaker 00:
I mean, I think the logical place to start would be with claim construction.

[00:46:26] Speaker 00:
And I think that the district court got this exactly right.

[00:46:28] Speaker 00:
It's the same thing.

[00:46:29] Speaker 05:
But we didn't want to hear claim construction from him.

[00:46:30] Speaker 05:
And since you have three minutes left, it doesn't make any sense for you to waste any of it on that.

[00:46:34] Speaker 00:
All right.

[00:46:35] Speaker 00:
I mean, I'm instructed by this court's cases to start with claim construction.

[00:46:39] Speaker 00:
But once you construct it in the way that the district court did,

[00:46:42] Speaker 00:
then I think this becomes a very straightforward case.

[00:46:44] Speaker 00:
Because what we have is a buffer status report.

[00:46:49] Speaker 00:
It's not a request, and the difference is not just semantics.

[00:46:52] Speaker 00:
Because at the broader level here, you have one technology that tries to do some of the allocation decisions with the handset.

[00:46:59] Speaker 00:
You have our technology where that decision is being done by the base station.

[00:47:04] Speaker 00:
And the difference gets to the whole difference, actually, between a report and a request.

[00:47:07] Speaker 00:
And it gets to whether or not what's being requested is bandwidth.

[00:47:10] Speaker 00:
and it gets to whether you can identify it in the request.

[00:47:14] Speaker 00:
And I don't think you can do any of those things.

[00:47:17] Speaker 00:
And the reason I think I'll start with report versus request.

[00:47:20] Speaker 00:
If I got a process where ultimately somebody else is going to make a decision based on an input, what I'm looking for is a report of that input.

[00:47:30] Speaker 00:
And that's what the buffer status report does.

[00:47:33] Speaker 00:
And the thing that makes the milk sort of analogy work

[00:47:37] Speaker 00:
is because he's assumed that his family's got unlimited resources to buy the milk.

[00:47:42] Speaker 00:
If they were resource constrained, as all of these systems are, and somebody said, I'm out of milk, then that would develop a process about whether you could afford the milk, whether you're also out of eggs, whether you really can just respond in that one-to-one basis.

[00:47:57] Speaker 00:
And that's the fundamental difference between these technologies.

[00:48:00] Speaker 00:
Those decisions are being made by the base station in the accused products, in the LTE standards.

[00:48:07] Speaker 00:
And that's why it is just a report.

[00:48:09] Speaker 00:
And it's not a request.

[00:48:10] Speaker 00:
And what it's a report of is bytes.

[00:48:13] Speaker 00:
And those bytes are just individual pieces of data.

[00:48:16] Speaker 00:
They're not data transmission resources.

[00:48:19] Speaker 00:
And they're certainly not data transmissions.

[00:48:22] Speaker 02:
Go ahead.

[00:48:23] Speaker 02:
Go ahead.

[00:48:24] Speaker 02:
What is the point of the reference to the bytes if it's not to request bandwidth?

[00:48:32] Speaker 00:
It's starting a process.

[00:48:36] Speaker 00:
It's reason.

[00:48:36] Speaker 00:
I'm not saying it's irrelevant to a request, but it's not a request.

[00:48:39] Speaker 00:
It's a report.

[00:48:41] Speaker 00:
And I think that gets to this difference between if you have a product that basically is doing the calculation about exactly what it needs and when it should get, you make a request.

[00:48:51] Speaker 00:
If you are giving an input to the decision maker who's going to decide it based on a multi-factor algorithm, what you give it is a report.

[00:48:59] Speaker 00:
And obviously, you get the buffer status report even when you have zero.

[00:49:04] Speaker 00:
And that seems like a report, but it sure doesn't seem like a request.

[00:49:09] Speaker 00:
And you can twist yourself in knots to say, well, it's a request for zero bytes of data, but I don't think that really gets it done.

[00:49:14] Speaker 00:
I think it just shows what you have here is a report.

[00:49:17] Speaker 00:
And it's also, as I said, if you say engineers who do this start out by setting up a protocol.

[00:49:24] Speaker 01:
And initially what they want to do is set up a handshake protocol or a handoff protocol or whatever you care to call it.

[00:49:32] Speaker 01:
And it's different than transmitting data.

[00:49:37] Speaker 00:
Well, I mean, you know, that may be more relevant to the invalidity theory than it is to this particular question.

[00:49:45] Speaker 00:
But as to this particular question, you know, what they ask for, what that patent covers is something where you identify in the bandwidth of request

[00:49:54] Speaker 00:
the amount of data requested.

[00:49:56] Speaker 00:
And that's just not how the buffer status report works.

[00:49:59] Speaker 00:
That work is done by the base station.

[00:50:02] Speaker 00:
At best, you could say that the base station derives its ultimate allocation from the information in the buffer status report.

[00:50:09] Speaker 00:
But identify in and derive from are very different concepts.

[00:50:13] Speaker 00:
And they map onto the fundamental different concepts between the two pieces of technology, the two approaches to this.

[00:50:21] Speaker 00:
And I realize I've got about 26 of this.

[00:50:23] Speaker 02:
Oh, I have no time left.

[00:50:24] Speaker 02:
What do we do with the fact that there is expert testimony that says that this is tantamount to our request, whether it's under literal infringement or doctrine of equivalence?

[00:50:37] Speaker 02:
And our question has to be, could any reasonable jury conclude that this is effectively a request?

[00:50:47] Speaker 00:
And I mean, I think the answer is no.

[00:50:49] Speaker 00:
I think, as one of you put it before, the standard is,

[00:50:52] Speaker 00:
Is there a genuine dispute of material fact?

[00:50:54] Speaker 00:
And the fact that you can get an expert to say something conclusory is not, I don't think, enough to create a genuine issue of material fact.

[00:51:04] Speaker 00:
And I think on this particular point, I mean, we basically, on this issue, we have three different theories, any one of which is sufficient for us to win.

[00:51:12] Speaker 05:
But suppose I call a restaurant and I say, I have seven people.

[00:51:18] Speaker 05:
Do you have room for seven people in your restaurant?

[00:51:21] Speaker 05:
That's like what's going on here.

[00:51:22] Speaker 05:
Not exactly because I say I have this much bandwidth.

[00:51:27] Speaker 05:
I understand the nuances of the technology, trust me.

[00:51:31] Speaker 05:
But what if I call a restaurant and I said, I have seven people.

[00:51:34] Speaker 05:
Do you have room for seven?

[00:51:36] Speaker 05:
Isn't that a request for a reservation?

[00:51:40] Speaker 05:
Or close enough that maybe I don't decide it because it's a question of fact.

[00:51:44] Speaker 00:
Well, the way I hear your hypothetical question

[00:51:49] Speaker 00:
It first has a report and then has a request.

[00:51:53] Speaker 05:
But if you just... You know, I call the restaurant and say, I have seven people.

[00:51:57] Speaker 00:
That's a report.

[00:51:59] Speaker 00:
And then you say, do you have room for us?

[00:52:01] Speaker 00:
That's a request.

[00:52:04] Speaker 00:
And I mean, I don't mean to be pedantic about it, but that's the fundamental difference between a report and a request.

[00:52:10] Speaker 00:
And it maps onto the technology.

[00:52:12] Speaker 00:
Because if I'm just looking for an input from somebody, I ask them for a report.

[00:52:17] Speaker 01:
Sorry, so the call says,

[00:52:19] Speaker 01:
I'd like to come over with seven people.

[00:52:23] Speaker 01:
That's a report too.

[00:52:25] Speaker 00:
It is.

[00:52:26] Speaker 00:
And I think, you know, and I'd have to know, well, when and why.

[00:52:33] Speaker 00:
I mean, you know, and maybe if I'm a restaurant, I don't have to ask why, but I at least have to ask when.

[00:52:38] Speaker 00:
And that's, again, I think it maps onto the differences in the technology.

[00:52:41] Speaker 00:
If you're expecting the handset to do the work, you want to request, because they've already done the work.

[00:52:47] Speaker 00:
If you want the base station to do the work based on an algorithm and a bunch of other factors, then you make it a report.

[00:52:53] Speaker 00:
And that's what it is.

[00:52:54] Speaker 00:
But I don't want to get completely.

[00:52:55] Speaker 02:
I'm sure Mr. Powers is going to argue what he did in his reply brief, which is that you're misunderstanding the claims, because the claims actually do talk about the base station doing the work.

[00:53:06] Speaker 00:
Well, I don't know that that's what he'll say, but maybe he will.

[00:53:09] Speaker 05:
OK, so my law clerk just gave me an excellent hypo.

[00:53:11] Speaker 05:
The restaurant one was mine to take credit for.

[00:53:13] Speaker 05:
But he just corrected me and said that he could make my hypo a little better and more on point.

[00:53:18] Speaker 05:
So let me give it a try.

[00:53:20] Speaker 05:
You call and tell the restaurant.

[00:53:23] Speaker 05:
I call and I say, I have people.

[00:53:25] Speaker 05:
I don't tell them how many, because that's what happens here.

[00:53:28] Speaker 05:
You've got a pinging.

[00:53:29] Speaker 05:
And then the restaurant says, how many?

[00:53:32] Speaker 05:
You say, seven.

[00:53:33] Speaker 05:
And that's what happens here.

[00:53:33] Speaker 05:
You've got a back and forth.

[00:53:34] Speaker 05:
They ping.

[00:53:35] Speaker 05:
Oh, tells me, oh, this is how much bandwidth I want.

[00:53:38] Speaker 05:
You say seven.

[00:53:39] Speaker 05:
The restaurant says, here's a block for seven people to eat in tonight if you'd like to come.

[00:53:44] Speaker 05:
Doesn't that feel like your transmissions have amounted to a request?

[00:53:47] Speaker 05:
Because that actually, better than mine, actually corresponds to the back and forth that goes on here between the two recipients.

[00:53:56] Speaker 05:
So doesn't that sound like a request?

[00:53:58] Speaker 00:
No.

[00:53:58] Speaker 00:
I mean, it sounds like a report.

[00:54:00] Speaker 00:
And it seems like you expect the restaurant to figure out.

[00:54:04] Speaker 00:
They'll look at their resources, but they'll also look at who else is requesting.

[00:54:08] Speaker 00:
They'll also look at a variety of other factors.

[00:54:11] Speaker 00:
And then maybe they'll tell you, yeah, you can come.

[00:54:13] Speaker 00:
Or maybe they'll tell you, we can come at 9, but not at 7.

[00:54:16] Speaker 00:
Which does get back to the idea that you just have to have the time component to this, or it doesn't make any sense.

[00:54:26] Speaker 00:
If I ask you how many cars can be on a highway, if you don't tell me during an hour, during a day, during a week, it's a meaningless question.

[00:54:34] Speaker 05:
I actually thought you meant at the same time.

[00:54:36] Speaker 05:
Go ahead.

[00:54:38] Speaker 05:
I didn't actually see a time component in your particular question, but I get it.

[00:54:43] Speaker 00:
Yeah, well, I mean, I think the answer would depend on whether it's in a specific time or whether it's in an hour or 10 minutes or a day.

[00:54:53] Speaker 00:
If you ask how many cars can you have on the Beltway, I mean, you might think just at one time.

[00:54:57] Speaker 00:
You might think, well, at rush hour for an hour.

[00:54:59] Speaker 00:
So it seems to be that time component is inherent.

[00:55:01] Speaker 05:
Can you jump over to anticipation for just a couple minutes?

[00:55:04] Speaker 05:
Because we're so far over, and I'm begging on the indulgence of my colleagues to hear you out.

[00:55:09] Speaker 01:
I'm waiting to hear about how many angels can dance on the head of a pen.

[00:55:13] Speaker 00:
It depends at what time interval you're on.

[00:55:15] Speaker 00:
So on the anticipation issue, I mean, I think Judge O'Malley has essentially put her finger on at least an aspect of this, which is, look, the district court judge essentially is asking the question,

[00:55:29] Speaker 00:
what would a position, a person skilled in the art, a practitioner skilled in the art, take from Mooley on this question of whether or not when you have an asynchronous handover, whether you can do it, whether you do it on the Ratch or whether you do it on a dedicated channel.

[00:55:42] Speaker 00:
And everybody in front of them, our expert, Min, and the two other later patents, all of them say, you do it on a Ratch.

[00:55:50] Speaker 00:
And when pressed, they tell them,

[00:55:52] Speaker 00:
You do it on a ratchet?

[00:55:53] Speaker 05:
Because there's no other way to do it, because- Mooley doesn't actually say that, though, right?

[00:55:58] Speaker 05:
Mooley never says you send the hand signal on a ratchet.

[00:56:03] Speaker 00:
Regrettably not in any one sentence.

[00:56:05] Speaker 00:
But I think the district court had this right.

[00:56:06] Speaker 00:
When you read the entirety of Mooley, when you understand that he's basically saying that access bursts go on the ratchet, and then he later says, OK, well, you have asynchronous and you have synchronous.

[00:56:20] Speaker 00:
And then there's one kind of access verse that goes on a dedicated channel.

[00:56:25] Speaker 00:
I think he's clearly referring there to the synchronous.

[00:56:28] Speaker 00:
He's clearly excluding

[00:56:30] Speaker 00:
I mean, I wish it were clear, but he's excluding the asynchronous.

[00:56:34] Speaker 02:
The trial court pointed to page 372 of Moley.

[00:56:37] Speaker 02:
And I know that your friend on the other side says that wasn't fair because you didn't argue it.

[00:56:44] Speaker 02:
But it's still in the reference.

[00:56:45] Speaker 02:
And it says the RIL-3, our channel request message sent on the rash is very short indeed.

[00:56:51] Speaker 02:
Its useful signaling information consists of just eight bits.

[00:56:55] Speaker 02:
How is that not saying that it's sent on the rash?

[00:56:58] Speaker 00:
I think that's maybe one place where it is.

[00:57:01] Speaker 00:
But I guess the way I've read Moley, anyways, is that if you read all of the various references, he either makes a nonsense statement at 410 that they think is so critical, or although it's a little imprecise, it makes perfect sense, which is the way this works is that you essentially can't use a dedicated channel until you synchronize.

[00:57:25] Speaker 00:
And so the general rule is that access first

[00:57:29] Speaker 00:
go on the random access channel.

[00:57:31] Speaker 00:
And there's essentially one exception to that.

[00:57:33] Speaker 00:
And that's when you've pre-synchronized.

[00:57:35] Speaker 00:
And in that circumstance, you don't have to have the access bursts on the Ratch.

[00:57:40] Speaker 00:
You can send them on the dedicated channel.

[00:57:43] Speaker 00:
But in every other circumstance, if you try to do it on the dedicated channel, it's going to get you exactly what you're trying to avoid here, which is you're trying to avoid drop calls and confusion of people being on the same channel

[00:57:54] Speaker 00:
And the way you avoid those collisions is you have a special channel that deals with the situations where you're not synchronized.

[00:58:00] Speaker 00:
And that's the RACH.

[00:58:02] Speaker 00:
And that is what you need to use for the asynchronous handle.

[00:58:07] Speaker 00:
And that's why when Min is pressed on this in his deposition and he's cross-examined, he does say repeatedly, and once it's in response to a hypothetical, but it's a fair hypothetical, and other times it's just flat out.

[00:58:20] Speaker 00:
There's just no way to do it.

[00:58:22] Speaker 00:
You need to have the synchronization

[00:58:24] Speaker 00:
before you can use a dedicated channel.

[00:58:27] Speaker 02:
In looking at the GSM, I understand that you say that we're supposed to be looking at Muli, and so the underlying thing that Muli is supposed to be talking about isn't really apposite.

[00:58:39] Speaker 02:
It's still relevant, because if we're trying to figure out what Lully's saying, we ought to be looking at the underlying document that it's saying something about.

[00:58:49] Speaker 02:
So Mr. Powers relies on this 3.4.4.2.2 non-synchronized cell case.

[00:58:58] Speaker 02:
And he says that in that instance, it says that you're on a dedicated channel.

[00:59:06] Speaker 02:
Now, I pushed him on what does the first clause mean, but can you explain to me how you would get to a dedicated channel if you're not synchronized?

[00:59:16] Speaker 00:
I can't, Your Honor, and I don't think anybody can, which I think is exactly why MIN basically concedes as much, that you can't.

[00:59:24] Speaker 00:
You need to have synchronization before you can use the dedicated channel.

[00:59:27] Speaker 02:
And so what is the GSN saying there?

[00:59:30] Speaker 00:
Well, that particular specification, I mean, I think there's some ambiguity in that specification, to be perfectly honest.

[00:59:39] Speaker 00:
Because if I'm thinking about the same place, it says on the main DCCH, but then it says that it's doing it in random mode and does not follow the basic format.

[00:59:51] Speaker 00:
So I don't know if that's just a different way to sort of talk about a ratchet.

[00:59:57] Speaker 00:
The reality of Muli is what Muli's trying to describe is not every spec in the GSM.

[01:00:02] Speaker 00:
He's trying to describe GSM the way it's actually been implemented.

[01:00:06] Speaker 00:
And so I think if you have some ambiguity in the GSM spec, and one of them, and there are thousands of them, you get a little ambiguity there, I don't think that's enough to make

[01:00:16] Speaker 00:
Mooley not anticipatory.

[01:00:18] Speaker 05:
And after all- Well, you don't just have ambiguity in the GSM spec.

[01:00:21] Speaker 05:
You also have ambiguity in Mooley itself, because that one sentence says in both.

[01:00:25] Speaker 05:
And it clearly is referencing synchronous and asynchronous.

[01:00:27] Speaker 05:
I don't know why it says it.

[01:00:29] Speaker 05:
It may be technically inaccurate or wrong.

[01:00:31] Speaker 05:
But I'm just a little nervous that I'm not the one to make that decision, that maybe a fact finder ought to make it with a thorough vetting of the issue.

[01:00:40] Speaker 00:
Two basic responses.

[01:00:42] Speaker 05:
One is... Because you basically admitted it's like ambiguity squared.

[01:00:45] Speaker 05:
We've got ambiguity in the underlying document.

[01:00:47] Speaker 05:
Now you think I should rely on all the deposition testimony, even their expert, which indicates that that sentence can't really mean what it says it means, because if it does, it's sort of inconsistent with the technology and how it operates.

[01:01:01] Speaker 05:
And I understand all those facts.

[01:01:03] Speaker 05:
But then there is a reference to this GSM stuff on 2424.

[01:01:07] Speaker 05:
And this, you've just admitted, also has what appears to be some ambiguity vis-a-vis what you'd like to see happen in this case.

[01:01:14] Speaker 05:
So I'm a little nervous about the extent of the ambiguity on a fact question.

[01:01:18] Speaker 00:
Yeah, and here's the thing, Your Honor.

[01:01:19] Speaker 00:
First of all, I mean, certainly I don't think, and I didn't hear you saying, but just to be clear, I don't think that this is unambiguous in the way that my friend wants to have it say.

[01:01:28] Speaker 00:
And when it says this message,

[01:01:30] Speaker 00:
is the only case where short access bursaries are used on a dedicated channel.

[01:01:33] Speaker 00:
I don't think he's clearly covering both in an unambiguous way.

[01:01:37] Speaker 00:
And then I think, as the district court did, if you read Moley as a whole, what makes sense is anytime you use this, you can have an unclear antecedent, and it's got to be in synchronous handover.

[01:01:48] Speaker 00:
But more to the point, here's what I think is not ambiguous.

[01:01:51] Speaker 00:
And here's the reality that the district court is facing, which he's facing this conundrum that it doesn't seem like there's any way that you can have

[01:01:59] Speaker 00:
an access burst over a dedicated channel before synchronization.

[01:02:03] Speaker 00:
He sees that.

[01:02:04] Speaker 00:
And then he sees our experts say that.

[01:02:07] Speaker 00:
He sees Min can see that.

[01:02:09] Speaker 00:
And then he looks at these two patents.

[01:02:11] Speaker 00:
And one of them referring to Muli specifically says, yeah, in asynchronous handover, the handover comes on the ranch.

[01:02:18] Speaker 00:
And the other one, although it doesn't reference Muli specifically in describing GSM, says exactly the same thing.

[01:02:24] Speaker 00:
So he's got four people skilled in the art who are all saying the same thing.

[01:02:27] Speaker 00:
He's got nobody on the other side of that

[01:02:29] Speaker 00:
And that seems to me a pretty good definition of the absence of a genuine dispute of a material issue of fact.

[01:02:36] Speaker 00:
And I've taxed your patience long enough.

[01:02:38] Speaker 00:
That's great.

[01:02:39] Speaker 05:
Thank you, Mr. Clement.

[01:02:41] Speaker 05:
Mr. Powers, why don't we just do five minutes of rebuttal.

[01:02:53] Speaker 06:
I'd like to begin with Muly, if I may.

[01:02:58] Speaker 06:
The standard is clear and convincing evidence.

[01:03:02] Speaker 06:
And Mr. Clement just said he wished it were clear.

[01:03:05] Speaker 06:
Moley never says once that in asynchronous or synchronous, the handover message is sent on the roach.

[01:03:13] Speaker 06:
Never says it.

[01:03:14] Speaker 06:
Says quite clearly in both, it's sent on a dedicated channel.

[01:03:18] Speaker 02:
Well, you complained about the trial court relying on portions of the reference that you all didn't focus on, but the reference says what it says.

[01:03:28] Speaker 02:
And frankly, the district court's allowed to read the entirety of the reference.

[01:03:31] Speaker 06:
Of course.

[01:03:32] Speaker 06:
My point is that the district court did that without the benefit of any expert testimony or help and was speculating about what it meant.

[01:03:37] Speaker 02:
But when you say it never says it, it says it right there.

[01:03:40] Speaker 06:
No, it doesn't.

[01:03:41] Speaker 06:
With respect, Your Honor, there's three things I'd like to direct you to that I think are squarely inconsistent with that and say exactly what we're saying.

[01:03:48] Speaker 06:
The first is A2409.

[01:03:49] Speaker 06:
A249 says in the case of synchronous handover, the mobile station first sends a few access bursts and then starts normal transmission by applying the computed timing advance.

[01:04:03] Speaker 05:
If the handover is an asynchronous one... Can you say this is an A2409?

[01:04:08] Speaker 05:
I can't find what you're reading.

[01:04:10] Speaker 05:
It's not long.

[01:04:10] Speaker 05:
Are you on the right page?

[01:04:13] Speaker 05:
I don't think so.

[01:04:14] Speaker 05:
This is what A2409 looks like.

[01:04:16] Speaker 05:
It's got a giant diagram at the top.

[01:04:18] Speaker 03:
Where are you?

[01:04:22] Speaker 06:
Okay.

[01:04:23] Speaker 06:
Okay, there you go.

[01:04:25] Speaker 06:
All right, go ahead.

[01:04:29] Speaker 06:
If, and then continuing, if the handover is an asynchronous one, the mobile station continues to send access bursts until it has received the actual timing advance to apply.

[01:04:43] Speaker 06:
The question then, so that establishes that the handover reference is sent before the timing sequences are provided.

[01:04:50] Speaker 06:
And so then the question is, for that handover, in synchronous or asynchronous, is it being sent in a dedicated or a RACH?

[01:04:58] Speaker 06:
That's provided also in A2409.

[01:05:01] Speaker 06:
In both cases of synchronous and asynchronous, the access message only contains an 8-bit handover reference.

[01:05:08] Speaker 06:
This message is the only case where short access bursts are used on a dedicated channel.

[01:05:13] Speaker 06:
It's not just one sentence.

[01:05:14] Speaker 06:
It's saying explicitly that's how it works.

[01:05:17] Speaker 02:
But that's it, though.

[01:05:17] Speaker 02:
That's all you have, right?

[01:05:19] Speaker 02:
No, no, no.

[01:05:20] Speaker 02:
You're expert, and the expert on the other side, and I disagree with whether or not the court could even look to others in the field.

[01:05:30] Speaker 02:
But everybody interpreted this to say that to get to the dedicated channel, you've got to use the random access channel.

[01:05:36] Speaker 06:
With respect, I disagree, Your Honor.

[01:05:39] Speaker 06:
So A to 2399.

[01:05:41] Speaker 06:
A2399 and A2409 have two figures that lay out how you establish a channel and when the timing sequences apply.

[01:05:52] Speaker 06:
There are two figures that should be read together and those two figures lay out a process, a complicated one admittedly, but those two figures lay out and make quite clear that the handover occurs before the timing sequences.

[01:06:05] Speaker 06:
The timing sequences are on 2409

[01:06:07] Speaker 06:
And the handover is being done on 2399.

[01:06:09] Speaker 02:
But you just admitted to me before that 6.37 shows that the handover has to occur before the physical information is sent back and before the dedicated channel is set up.

[01:06:20] Speaker 06:
No, I don't agree with that.

[01:06:22] Speaker 06:
I did not agree with that and do not.

[01:06:25] Speaker 06:
This is what 2399 and 2409 mean.

[01:06:30] Speaker 06:
That figure is not to the contrary.

[01:06:31] Speaker 02:
Can you cite to me any expert testimony or anything other than your view that there's some ambiguity in Moley that shows me how physically it would be possible to set up a dedicated channel in an asynchronous panel without having had some exchange first?

[01:06:53] Speaker 06:
The details of that are not, as I understand it in the record, but the conclusion is

[01:06:58] Speaker 02:
The conclusion squarely is that you're doing... Do the details of that exist anywhere?

[01:07:04] Speaker 02:
Why aren't they in the record?

[01:07:06] Speaker 06:
Well, they are in the record in this sense.

[01:07:09] Speaker 02:
The notion that you would be asking us to send something back just because you think there's a few sentences in a prior reference that you think are confusing, when you know full well that it's physically not possible... I disagree with that it's physically not possible.

[01:07:24] Speaker 06:
A2399 and A2409 tell you how it's possible.

[01:07:27] Speaker 06:
That lays out

[01:07:28] Speaker 06:
the sequence of events that makes it work.

[01:07:30] Speaker 06:
And it's not a confusing aspect of MULI.

[01:07:33] Speaker 06:
It's an unambiguous statement in MULI.

[01:07:35] Speaker 06:
They're set on a dedicated channel in both.

[01:07:38] Speaker 06:
That's what is said.

[01:07:40] Speaker 06:
That is not confusing.

[01:07:42] Speaker 06:
And to say it is clear and convincing that that clear statement in MULI is wrong as a matter of law, I think that turns summary judgment law and anticipation law on its head.

[01:07:54] Speaker 06:
With respect then, I'd like to turn, and the GSM spec.

[01:07:57] Speaker 05:
I can give you one minute on MFL, but you're way out of time.

[01:08:00] Speaker 05:
So one minute if you want to talk about Mr. Clement's MFL argument.

[01:08:04] Speaker 06:
I do.

[01:08:06] Speaker 06:
The purpose of that provision was well established in our prior argument, in your honor's opinion.

[01:08:11] Speaker 06:
It's not a land grab, gotcha.

[01:08:13] Speaker 06:
It was a failsafe provision that says, we were talking about four patents.

[01:08:16] Speaker 06:
We think those are the only four patents that are relevant.

[01:08:19] Speaker 02:
Yeah, but here's the problem.

[01:08:20] Speaker 02:
The Texas court said that it can't be triggered.

[01:08:25] Speaker 02:
The MFL provision can't be triggered by an after-required patent.

[01:08:30] Speaker 03:
True.

[01:08:31] Speaker 02:
And the Florida court said, yeah, it can.

[01:08:35] Speaker 02:
All the rest of the stuff I figured out as it relates to what the provisions mean.

[01:08:40] Speaker 03:
True.

[01:08:41] Speaker 02:
We affirmed the Texas court, reversed the Florida court on the threshold question, and did not reach the follow-up question.

[01:08:49] Speaker 02:
So how is it that you can say we did anything other than decide what triggers the MFL provision?

[01:08:56] Speaker 06:
I'm certainly not in a position to tell your honors what you were deciding.

[01:09:00] Speaker 06:
I was merely reading the language, as the district court did.

[01:09:03] Speaker 06:
But we're past that now.

[01:09:04] Speaker 06:
You've said you didn't reach it.

[01:09:05] Speaker 06:
So now I'm arguing not that you previously decided.

[01:09:07] Speaker 02:
Well, I'm saying that I'm arguing to you that I think that there's pretty good language that says we didn't reach it.

[01:09:12] Speaker 02:
I don't know what my colleagues think about that.

[01:09:14] Speaker 06:
With respect, a fair reading of it could go the other way, but we're past that.

[01:09:19] Speaker 06:
I'm obviously taking your other statement that you didn't decide it.

[01:09:23] Speaker 06:
But the rationale of your decision clearly decides the same question.

[01:09:28] Speaker 06:
So for example, the main argument made by Erickson is the products language.

[01:09:32] Speaker 06:
That is exactly the same argument that they made with regard to the covenant not to sue.

[01:09:37] Speaker 06:
And Your Honors rejected that because for the same reason that it should be rejected here, which is it's clearly related only to the patents, the four patents.

[01:09:45] Speaker 06:
The only point of this clause, and that was, I think, very clear, the only point of this clause that we're talking about, the in the any event clause, is that if we're wrong that those four are the only four, if there was a fifth that should have been included in the four, because this

[01:10:01] Speaker 06:
licensing agreement was really about those four patents to give them rights to those.

[01:10:05] Speaker 06:
If we're wrong about that, and there's a fifth, you're going to get the rights to the fifth, too.

[01:10:09] Speaker 06:
That's what the purpose of this clause was.

[01:10:13] Speaker 05:
And with regard to the... I understand you say that's the purpose of the clause, but why don't you focus on the language of the clause?

[01:10:21] Speaker 05:
Because if we're going to be getting into the purpose of the clause, according to Matt Powers, I feel like I would need parole evidence to decide that.

[01:10:28] Speaker 06:
You didn't need parole evidence in the first case,

[01:10:31] Speaker 06:
to decide exactly the same question on the covenant not to sue.

[01:10:34] Speaker 06:
It was the same argument.

[01:10:35] Speaker 06:
Products was being used.

[01:10:37] Speaker 06:
They made exactly the same argument to you there that they made to you here.

[01:10:41] Speaker 06:
And you did reach that issue on the covenant not to sue for exactly the same reason that you should reach it here.

[01:10:47] Speaker 06:
And it's exactly the same reason, Judge Moore, that you articulated, which is it's a single clause.

[01:10:52] Speaker 06:
It's one sentence.

[01:10:53] Speaker 06:
You can't read them as if it were two sentences, one totally divorced from the other.

[01:10:58] Speaker 06:
and read as a single clause, the same argument that your honors used to decide the first question.

[01:11:04] Speaker 06:
You didn't send it back, you decided it.

[01:11:06] Speaker 06:
That same argument applies here with equal force.

[01:11:09] Speaker 06:
Exactly the same reasoning, exactly the same result.

[01:11:12] Speaker 02:
You've got three separate clauses.

[01:11:13] Speaker 02:
The one, as we said, was limited to those four Wayland patents.

[01:11:17] Speaker 02:
Then you've got the damages clause that talks about all the other patents that clearly claim the compliant products.

[01:11:25] Speaker 02:
That was the clause that was designed to be...

[01:11:27] Speaker 02:
another clause.

[01:11:30] Speaker 02:
And you've asserted an entirely different patent against someone else as it relates to compliant products.

[01:11:37] Speaker 02:
And you say in your brief, you argue that, well, maybe what we're talking about in this clause is that you could have some products that aren't compliant that would still violate that patent.

[01:11:55] Speaker 02:
And that's what we're giving them

[01:11:58] Speaker 02:
a license to.

[01:11:59] Speaker 02:
That's what we would give them the most favored license to.

[01:12:02] Speaker 06:
What we're giving them is if we were wrong about the four.

[01:12:06] Speaker 06:
Because everybody thought there was just four that were relevant, and that's what this part of the agreement was designed to be, other than damages.

[01:12:13] Speaker 06:
And damages was narrow, and yours have construed that and understood it.

[01:12:16] Speaker 02:
Well, damages was much broader, because it talked about any other patent.

[01:12:19] Speaker 06:
It's broader as to patents, narrower as to relief.

[01:12:23] Speaker 06:
And all this clause was doing is saying, if we were wrong about the four,

[01:12:27] Speaker 06:
And a fifth pops up.

[01:12:29] Speaker 06:
We're going to treat it as if it was one of the four.

[01:12:32] Speaker 06:
That was what this clause was about.

[01:12:33] Speaker 02:
So why do we have LME products broadly listed as opposed to simply those that are compliant?

[01:12:41] Speaker 06:
Same reason you did in the covenant not to sue.

[01:12:44] Speaker 06:
And same result based on the same reasoning.

[01:12:47] Speaker 06:
They had the same language there.

[01:12:49] Speaker 06:
I was products based as well.

[01:12:51] Speaker 05:
OK, well, let's just assume I don't remember what you're talking about regarding the covenant not to sue, because I've had 5,000 cases between then and now.

[01:12:58] Speaker 05:
So why don't you tell me what the same reason is that ought to be persuasive to us?

[01:13:02] Speaker 06:
Exactly the same reason that Your Honor was using in your colloquy with Mr. Clement, which is it's a patent-based grant.

[01:13:09] Speaker 06:
And the only discussion of patents that's relevant is proceeding in the same sentence.

[01:13:15] Speaker 06:
And you have to read it as a whole.

[01:13:18] Speaker 06:
Separate it and read it divorced from the context of the part that came before and reading it as a whole as your honors did in why land one The same result on this clause on this sentence should be in the same result as in the covenant not to sue which has the same issue So the rationale is the same well

[01:13:38] Speaker 05:
So your view is that only the patents that trigger the clause are the ones that get licensed for LME products, right?

[01:13:46] Speaker 06:
Yes.

[01:13:47] Speaker 06:
That's the in the event.

[01:13:48] Speaker 06:
In the event is if we find that there's one that isn't that we left off, that's what you get.

[01:13:55] Speaker 06:
That's what the in the event is referring to.

[01:13:57] Speaker 06:
And your honors did construe that.

[01:14:00] Speaker 06:
Because that would then be the other patent.

[01:14:01] Speaker 02:
That was not known at the time, but that meant

[01:14:04] Speaker 02:
We weren't just talking about the four patents.

[01:14:06] Speaker 02:
We were also talking about the ones that were referenced in the damages provision.

[01:14:10] Speaker 06:
No, this is in the event that there's another one that could be asserted against the same product, which are the four.

[01:14:15] Speaker 02:
Why didn't you give such a broad license to Bel Air?

[01:14:18] Speaker 02:
Why didn't you just give Bel Air the license on the patent that you asserted?

[01:14:21] Speaker 06:
I can't speak to that.

[01:14:22] Speaker 06:
It was a very small Canadian company, and the circumstances were obviously quite different.

[01:14:28] Speaker 06:
So it was an inconsequential, meaningless company, and they did a deal that

[01:14:33] Speaker 02:
It wasn't very well thought out, apparently.

[01:14:36] Speaker 06:
I can't speak to that.

[01:14:37] Speaker 05:
OK.

[01:14:39] Speaker 05:
Are you OK, Ken?

[01:14:41] Speaker 05:
OK.

[01:14:41] Speaker 05:
Mr. Clement, is there anything you'd like to say?

[01:14:43] Speaker 05:
Obviously, the entity to the MFL cross-appeal issue.

[01:14:50] Speaker 05:
We gave him five minutes.

[01:14:51] Speaker 05:
If you want five minutes, you can have that, too.

[01:14:54] Speaker 00:
Yeah.

[01:14:54] Speaker 00:
We'll see if I need it.

[01:14:55] Speaker 00:
But I mean, limiting myself to the cross-appeal rebuttal

[01:15:00] Speaker 00:
I think I'll really focus on the one argument he made, which is that you've already decided this in the context of the non-assert provision.

[01:15:08] Speaker 00:
And I think that's wrong for a couple of reasons.

[01:15:10] Speaker 00:
I mean, first of all, and I've gone back and reread that opinion.

[01:15:13] Speaker 00:
And as I understand the non-assert argument, first of all, the text is different.

[01:15:19] Speaker 00:
And in that context, one of the problems that Erickson's argument had is that if you accepted our argument about products there, it would tend to read the damages provision as a nullity.

[01:15:30] Speaker 00:
And if anything, the polarity on that is reversed now.

[01:15:35] Speaker 00:
Because I'm just not sure that the damages provision would have much force if you accepted his reasoning.

[01:15:43] Speaker 00:
I also don't think that the provision would have much force.

[01:15:47] Speaker 00:
And I'll get to that in a second.

[01:15:48] Speaker 00:
But I do want to say, so first of all, the context is different.

[01:15:51] Speaker 00:
Because in the non-assert context, if you accepted Erickson's reading of products, you'd create another problem in interpreting the agreement as a whole.

[01:15:59] Speaker 00:
And that's just not present here at all.

[01:16:01] Speaker 00:
So it's not the same reasoning second time around.

[01:16:03] Speaker 00:
The second thing is the language isn't even the same.

[01:16:06] Speaker 00:
And again, one of the problems I think in Erickson's argument the first time around, and I guess it's easier for me to say that because I wasn't here the first time around, is the language is different.

[01:16:15] Speaker 00:
And in the middle of section 3.1, which is the non-assert provision, there's a reference to LME products or components thereof, infringe any Weiland patents.

[01:16:27] Speaker 00:
And that's one instance where when you're talking about the products and you want to tie them to specific patents, you add language that does that.

[01:16:36] Speaker 00:
And you just don't have the same language when you get to the critical provision here, the MFL, where it talks about products unmodified.

[01:16:45] Speaker 00:
But it's worse for them than it's just unmodified.

[01:16:48] Speaker 00:
It's in capital letters for a reason.

[01:16:50] Speaker 00:
All the references to capital letters are to define terms.

[01:16:53] Speaker 00:
If you go to the definition, LME products means

[01:16:57] Speaker 00:
what it sounds like it means.

[01:16:58] Speaker 00:
It means LME products.

[01:17:00] Speaker 00:
And their principal protection against giving us a portfolio license based on this triggering patent is their ability to control the terms that they negotiate with any other party.

[01:17:13] Speaker 05:
And at the point that they've given... But you realize, even when you keep using this term portfolio license, that to people of skill in the art, a portfolio license is a license to all patents related to this portfolio, i.e.

[01:17:27] Speaker 05:
this technology, like a standard or something.

[01:17:31] Speaker 05:
But the way you've suggested this clause should be read is actually... Remember the dishwasher discussion?

[01:17:38] Speaker 05:
Your idea of a portfolio doesn't comport with your proposed interpretation of this clause, because a portfolio is understood to be a portfolio of patents related to a particular technology.

[01:17:50] Speaker 05:
But you've said, I need to read this clause so broadly, that if there is a triggering patent, then there are unrelated patents pertaining to dishwashers.

[01:17:59] Speaker 05:
You also get a most favored license treatment for those too.

[01:18:03] Speaker 05:
Those wouldn't be in the same portfolio.

[01:18:04] Speaker 05:
The dishwasher patents could not possibly be in this portfolio in the way that normal people would understand that term.

[01:18:11] Speaker 05:
At least, I don't think so.

[01:18:13] Speaker 05:
That's why I'm having trouble with your argument, because it creates such a broad, incredibly broad reading for this.

[01:18:24] Speaker 00:
Judge Moore, we're not in the dishwasher business.

[01:18:26] Speaker 00:
Bel Air's not in the dishwasher business.

[01:18:28] Speaker 00:
So in the context

[01:18:29] Speaker 00:
The portfolio licenses comport with both ways.

[01:18:32] Speaker 05:
The Wheelands got lots and lots of patents, right?

[01:18:35] Speaker 00:
It does.

[01:18:36] Speaker 05:
In lots of different space.

[01:18:37] Speaker 00:
Well, I think they're principally in this space, but I could be wrong about that.

[01:18:41] Speaker 00:
But the point is, we're not asking for something that they haven't given somebody.

[01:18:45] Speaker 00:
We're asking for what they gave Bel Air.

[01:18:49] Speaker 00:
And in that context, I mean, again, I'm not quite sure at the end of the day, and your question almost sort of sounds like in the absurdity canon, that they just couldn't possibly have given a license this broadly.

[01:19:00] Speaker 00:
But they have.

[01:19:01] Speaker 00:
I mean, we're not asking for anything they haven't given Bel Air.

[01:19:04] Speaker 05:
So it's not... To be clear, it's not that the contract is written in a way to be absurd because it's so broad.

[01:19:13] Speaker 05:
It's whether I should use the first half of the sentence to modify the second half of the sentence.

[01:19:19] Speaker 05:
You say no.

[01:19:20] Speaker 05:
You want me to treat them like

[01:19:22] Speaker 05:
two different countries and he says the second half of the sentence is limited to what's at issue in the first half of the sentence and so to be fair I don't think it's in the absurdity camp I think it's in the camp of does a single sentence track all the way through or is it really two distinct things and and and and fair enough but if I have a sentence that says if patents comma then products

[01:19:50] Speaker 00:
I don't think you read patents through to limit products to only those products that include that patent.

[01:19:57] Speaker 00:
And if you look at the agreement as a whole, there are other places where they talk about products involving the Weiland patents by meaning the four.

[01:20:05] Speaker 00:
And just to finish on this, my friend Mr. Powers talks about whether this fifth patent could arise as if it's a hypothetical.

[01:20:12] Speaker 00:
It did.

[01:20:13] Speaker 00:
They don't concede that there's a trigger based on a preexisting patent.

[01:20:16] Speaker 00:
And so it's just a matter of interpreting

[01:20:18] Speaker 00:
That language, and when it incorporates a defined term that's a broad term, and then they give the same thing to Bel Air, it seems like that's what we're entitled to.

[01:20:26] Speaker 00:
Thank you, Your Honors.

[01:20:27] Speaker 05:
OK.

[01:20:27] Speaker 05:
I thank both counsels.

[01:20:28] Speaker 05:
The argument was very helpful.

[01:20:30] Speaker 05:
It's a complicated case.

[01:20:32] Speaker 05:
Thank you for being so well prepared.

[01:20:36] Speaker 05:
That concludes our argument.

[01:20:47] Speaker 03:
The honorable court is adjourned from day to day.