[00:00:00] Speaker 04:
The first case before the court is Core Wireless Licensing versus Apple, case number 152037.

[00:00:09] Speaker 04:
Before we call you up here and we begin, Judge Bryson has a question about a citation to the appendix that he wants to get cleared up before we use up any more time.

[00:00:20] Speaker 00:
Yeah, Mr. Mueller, I guess this pertains to your materials

[00:00:28] Speaker 00:
At pages 17 and 57 of your brief, you cite an excerpt from the inventor's discussion of the nature of the invention.

[00:00:46] Speaker 00:
And you cite to pages 2410 and 2411 of the appendix the first part

[00:00:52] Speaker 00:
of that quoted material does appear to be on 2410.

[00:00:59] Speaker 00:
But I couldn't find the second part starting, if you look at page 17, starting at line 10, the parameters required in MS down to line 15.

[00:01:11] Speaker 00:
I couldn't find it on 2410 or 2411.

[00:01:15] Speaker 00:
So I thought maybe there was a page like that.

[00:01:18] Speaker 00:
Maybe it's in your appendix, but not in mine.

[00:01:22] Speaker 00:
Access to your appendix.

[00:01:26] Speaker 00:
Be able to tell me whether that's in your appendix.

[00:01:31] Speaker 00:
See, 2411 has almost nothing on it.

[00:01:33] Speaker 00:
2410 has the beginning material that you've quoted from lines about line 7 through line 10, but not the rest.

[00:01:50] Speaker 00:
I'm assuming there's a page missing.

[00:01:52] Speaker 01:
I'm not sure right now.

[00:02:10] Speaker 01:
We're looking right now.

[00:02:12] Speaker 00:
Well, I tell you what.

[00:02:13] Speaker 00:
Maybe if you could provide us with that.

[00:02:16] Speaker 00:
Since it's quoted in such detail, I assume it exists.

[00:02:19] Speaker 00:
Absolutely.

[00:02:21] Speaker 00:
That would be very helpful.

[00:02:22] Speaker 04:
Thank you, Your Honor.

[00:02:26] Speaker 04:
OK.

[00:02:27] Speaker 04:
Mr. Padmanabhan?

[00:02:29] Speaker 04:
Padmanabhan.

[00:02:29] Speaker 04:
Is that right?

[00:02:30] Speaker 04:
Yep.

[00:02:31] Speaker 04:
Very close.

[00:02:32] Speaker 04:
OK.

[00:02:33] Speaker 04:
Very close.

[00:02:33] Speaker 03:
Thank you.

[00:02:33] Speaker 04:
That's very nice of you.

[00:02:35] Speaker 04:
I try really hard.

[00:02:38] Speaker 04:
I had a lot of jurors whose names I had to call out, and it was always difficult.

[00:02:44] Speaker 04:
But you want

[00:02:45] Speaker 04:
Three minutes for rebuttal?

[00:02:47] Speaker 03:
Yeah.

[00:02:48] Speaker 03:
That's fine, Your Honor.

[00:02:48] Speaker 04:
OK.

[00:02:49] Speaker 04:
OK.

[00:02:50] Speaker 04:
You may begin.

[00:02:51] Speaker 03:
Thank you, Your Honor.

[00:02:52] Speaker 03:
May it please the court.

[00:02:53] Speaker 03:
Your Honors, there are two points I will address.

[00:02:56] Speaker 03:
First, the district court impermissibly applied a new claim construction in evaluating core wireless's JMOL motion.

[00:03:06] Speaker 03:
And second, in denying core wireless's JMOL motion,

[00:03:12] Speaker 02:
Did the judge give any improper jury instruction?

[00:03:17] Speaker 02:
No, Your Honor.

[00:03:18] Speaker 02:
OK.

[00:03:20] Speaker 02:
Then isn't the district court judge's review properly limited to whether substantial evidence offered at trial, including the statements by Apple's experts, could support the jury's finding?

[00:03:33] Speaker 03:
That's true, Your Honor.

[00:03:34] Speaker 03:
But in the sole basis upon which the judge denied core wireless's GMO motion

[00:03:41] Speaker 03:
was based on a reading of the claim language, means for comparing, to require channel selection.

[00:03:47] Speaker 03:
And that is not a claim construction that was there prior to the trial.

[00:03:52] Speaker 03:
So at trial, the claim construction that was tried was one where for means for comparing, there was no channel selection required at the phone.

[00:04:01] Speaker 04:
What about the inclusion, though, of lines, column 6, lines 20 through 39 and column 7, lines 17 through 20?

[00:04:11] Speaker 04:
I mean, the district court expressly excluded those lines in the claim construction, right?

[00:04:17] Speaker 03:
They are included in the claim construction.

[00:04:19] Speaker 03:
But if you look at the claim construction record from down below, Apple made two very explicit attempts to read into the claim language for the structure of this claim term

[00:04:31] Speaker 03:
channel selection at the mobile phone.

[00:04:34] Speaker 03:
Apple first did it when it asked the district court to have language that suggested that the result of the comparison would go to a channel selection function at the mobile phone.

[00:04:46] Speaker 03:
And probably even more telling, Apple specifically then asked the district court judge to put in box 660 from figure 6, which is the algorithm performed by the control unit.

[00:04:58] Speaker 03:
for and that box 660 specifically calls for channel selection.

[00:05:03] Speaker 03:
And the district court refused Apple's attempt to do that and effectively rejected it.

[00:05:09] Speaker 03:
So an Apple never argued down below either line 17 to 20 from column 7 or the lines from lines 20 to 39 in column 6 required channel selection.

[00:05:21] Speaker 03:
And that language there does not require channel selection.

[00:05:24] Speaker 04:
Well, tell me why that's so.

[00:05:26] Speaker 04:
Because Apple asks for these lines to be included, and they do relate to the figure that seems to show channel selection.

[00:05:37] Speaker 03:
And, Your Honor, when you look at the figure itself, box 660 is the specific figure, a box that requires channel selection.

[00:05:45] Speaker 03:
If you look at the claim language itself, the function that everybody's agreed upon does not require channel selection.

[00:05:52] Speaker 03:
And that's why the district court judge

[00:05:53] Speaker 03:
kept out box 660 from the claim construction.

[00:05:58] Speaker 03:
And in that context, reading the language in column 7 or in column 6 would not suggest to anybody that there was going to be channel selection at the handset.

[00:06:08] Speaker 03:
Apple expressly made those arguments and lost.

[00:06:11] Speaker 03:
In that context, to try to now suggest that the language in column 7 or in column 6

[00:06:18] Speaker 03:
would now require channel selection as part of the structure would be wrong, and it would be an incorrect construction.

[00:06:23] Speaker 00:
Let me see, just a factual question.

[00:06:25] Speaker 00:
In the reference on column six, the lines, oh, it's about line 24.

[00:06:33] Speaker 00:
through 26.

[00:06:34] Speaker 00:
The references to the RLC layer, to the MAC layer, those are all both in the mobile station in this context, correct?

[00:06:44] Speaker 03:
Yes, your honor.

[00:06:45] Speaker 03:
Right.

[00:06:45] Speaker 00:
So all of that portion between 20 and 36 are all referencing things that happen in the mobile station.

[00:06:52] Speaker 03:
Yes, your honor.

[00:06:53] Speaker 00:
And then one other question.

[00:06:55] Speaker 00:
When you get over to column seven at lines 40 through 42, there's

[00:07:02] Speaker 00:
a fairly explicit statement, quite explicit actually, that the channel selection, channel is selected by the mobile station.

[00:07:12] Speaker 00:
And that's not, as I read that portion of the specification, that isn't talking about a particular embodiment, it seems to be talking about the invention as a whole.

[00:07:23] Speaker 00:
Why isn't that very helpful in telling us that this mobile station has to

[00:07:30] Speaker 03:
Do the channel selection and your honor the reason is one reason that none of those statements would apply and make this part of the structure for the means for comparing is fundamentally this Function that both parties agreed to does not require channel selection The function simply gets as far as saying you have to make this comparison as a basis for channel selection claim Function I mean and but the means is through the mobile station

[00:07:59] Speaker 03:
And the means is, but the means only has to go as far as saying you have to have the structure that actually does that comparison as a basis for channel selection, not that channel selection actually has to be done.

[00:08:11] Speaker 03:
Claim 18 specifically has the function, make the channel selection.

[00:08:16] Speaker 03:
So any structure that would be required for channel selection would be with claim 18, cannot be in the structure for claim 17, because the only structure that would be required would be the structure

[00:08:29] Speaker 03:
for making the comparison and as a basis for channel selection.

[00:08:33] Speaker 00:
Well, I suppose claim 18 can be explained on the ground that claim 17 doesn't require that the selection be done solely on the basis of the comparison.

[00:08:45] Speaker 00:
There can be other factors.

[00:08:46] Speaker 00:
But claim 17 allows other factors to be present, but not claim 18.

[00:08:53] Speaker 00:
So that wouldn't tell us that the mobile station is not doing the channel selection.

[00:08:58] Speaker 03:
But the plain language of claim 17, in particular the comparison stuff that we're talking about, the only structure required there is to take the parameters and make that comparison.

[00:09:09] Speaker 03:
It doesn't say anything more about what has to be done with that comparison.

[00:09:15] Speaker 03:
It's just that that comparison is done as a basis for channel selection.

[00:09:18] Speaker 03:
It never says then a channel must be selected.

[00:09:20] Speaker 04:
But that's why Judge Bryson's question is directly on point, which is that that's the differentiation between claim 17 and claim 18, is claim 18 is saying you use that information to make the comparison.

[00:09:34] Speaker 03:
Claim 18 is saying now make the channel selection itself.

[00:09:36] Speaker 03:
So the structure in claim 17 cannot incorporate structure that makes the channel selection.

[00:09:43] Speaker 04:
In other words... Is there a single embodiment, a figure or an embodiment described in the written description that shows the channel selection being made anywhere other than the mobile station?

[00:09:56] Speaker 03:
There's not a specific embodiment, but the spec itself suggests a request being made and the advantages of the invention as described can be gained simply by making that comparison and reducing the congestion.

[00:10:13] Speaker 03:
So the invention itself brought it.

[00:10:16] Speaker 04:
But it doesn't say that anywhere, does it?

[00:10:17] Speaker 04:
It doesn't say, well, you could do this at the base station.

[00:10:19] Speaker 04:
It doesn't even say that.

[00:10:22] Speaker 03:
It doesn't specifically.

[00:10:23] Speaker 03:
But it implies, because you can send the request back to the network, you can then have the decision be made at the network.

[00:10:30] Speaker 03:
Even Apple agrees that channel selection is simply making that request.

[00:10:35] Speaker 03:
And if you're making the request, one skilled would understand that the decision itself could be made at the network.

[00:10:41] Speaker 03:
But more importantly,

[00:10:42] Speaker 03:
Claim language itself, because it's just comparison, it's improper to read the structure to go beyond just comparing and to actually require channel selection.

[00:10:53] Speaker 03:
I mean, as fundamentally, that's true.

[00:10:56] Speaker 03:
And in the Wenger case, where you look at a claim where you have the independent claim and a dependent claim, and the dependent claim has a separate function, there's actually a presumption that it is different.

[00:11:09] Speaker 03:
And in this case, the selection, the very structure we're talking about,

[00:11:12] Speaker 03:
for performing channel selection would be done in claim 18, not in claim 17.

[00:11:19] Speaker 03:
Claim 17, the language is very precise to say you make the comparison, there's a reason you make the comparison, but that's the only structure then that's required.

[00:11:30] Speaker 00:
What do you say about the, and here I turn to the material that I was discussing with Mr. Mueller on page 17 of this brief in which the inventor is describing the invention.

[00:11:42] Speaker 00:
And it says that the MAC layer of the mobile device makes the decision between common and dedicated channel by using the information received.

[00:11:57] Speaker 00:
Isn't that a description, in the inventor's own words, of a system in which the mobile station is making that decision?

[00:12:06] Speaker 03:
And Your Honor, there could be an embodiment where the mobile station is making the decision.

[00:12:09] Speaker 00:
You're saying that's just all he's describing is an embodiment.

[00:12:13] Speaker 00:
That's not the language that's used.

[00:12:15] Speaker 00:
The language is more comprehensive than that.

[00:12:17] Speaker 00:
It seems to be describing the invention.

[00:12:20] Speaker 03:
I don't think so, Your Honor, because the invention itself, there's an advantage gained simply by performing the steps of Claim 17 and having a value now sent down to the phone so the mobile station can know when to even request a dedicated channel.

[00:12:36] Speaker 03:
That alone addresses the congestion issue.

[00:12:39] Speaker 03:
Yes, you can also then use it to go one step further and make the channel selection.

[00:12:44] Speaker 03:
But there's no reason to have the channel selection be made.

[00:12:48] Speaker 03:
The inventor's statements, in this case, there's no ambiguity as to what the claims say.

[00:12:53] Speaker 03:
No one's argued that.

[00:12:54] Speaker 03:
So the inventor's statements would be extrinsic evidence.

[00:12:56] Speaker 04:
But it is a means plus function claim.

[00:13:01] Speaker 04:
having a hard time understanding is if you concede to me that there is nothing in the written description that mentions any of this activity occurring at the base station, isn't that the end of the inquiry?

[00:13:13] Speaker 04:
You are limited to the precise function, the precise means described in the specification.

[00:13:21] Speaker 03:
And yes, Your Honor, we are.

[00:13:22] Speaker 03:
But the means that we're talking about here that apply to this claim language is just the means for comparing.

[00:13:30] Speaker 03:
We can't conflate means for comparing with means for channel selection.

[00:13:36] Speaker 00:
Well, but then it seems to me you're assuming, in a sense, assuming your conclusion, because you say that means for comparing for basis of channel selection does not include channel selection.

[00:13:51] Speaker 00:
Their argument is that it does include channel selection, and the natural understanding of

[00:13:56] Speaker 00:
means for comparing for basis of channel selection, in a sense, conflates the comparing and the selection in the same entity.

[00:14:04] Speaker 00:
And that if we agree with that, then your argument that all that's involved is comparison fails, right?

[00:14:13] Speaker 00:
No, I don't think so.

[00:14:14] Speaker 00:
Well, it would be if you agreed with that.

[00:14:17] Speaker 03:
And the main difference is they made this argument during claim construction and lost.

[00:14:25] Speaker 03:
So the district court, when they actually had the language that would require the structure to be including channel selection, and the box 660 is the best example of that is it's explicit.

[00:14:39] Speaker 03:
That's the algorithm.

[00:14:40] Speaker 03:
Even the judge says that's the algorithm.

[00:14:43] Speaker 03:
And those are the boxes that are going to be run by the control unit.

[00:14:46] Speaker 03:
The judge, during claim construction, stopped short and does not accept Apple's invitation to include box 660.

[00:14:55] Speaker 03:
So once you stop... That's exactly what you asked.

[00:14:59] Speaker 03:
And that's exactly what we asked.

[00:15:00] Speaker 03:
We only wanted box 650.

[00:15:03] Speaker 03:
And so the judge was very precise in saying that the structure only goes to 650, not 660.

[00:15:10] Speaker 03:
Then they've lost on the very point that we're all talking about, and then now to come back and say, yep, we've tried the case thinking that's what happened, and to justify it based on inclusion of

[00:15:21] Speaker 03:
column seven, line 17 to 20 is improper.

[00:15:25] Speaker 02:
In that context of that entire argument and entire record, it would be... So is the judge wrong when the opinion says, core wireless proposing for the claim construction control unit 803 described in 717 to 20 of the 143?

[00:15:39] Speaker 03:
No, he's not wrong.

[00:15:40] Speaker 03:
That was part of it.

[00:15:42] Speaker 03:
Core wireless also agreed with that citation, column seven, line 17 to 20.

[00:15:49] Speaker 03:
But if you look at that citation,

[00:15:51] Speaker 03:
and the advantageously language, there is no structure that that sentence actually doesn't apply to the compare limitation.

[00:15:58] Speaker 03:
It actually is, because we were arguing over this for both compare and means for sending, I think that's the only reason they're in both spots.

[00:16:07] Speaker 03:
But really, the main issue is when the district court had this issue right in front of it, should we have structure for channel selection, the district court agreed with core wireless and said no.

[00:16:20] Speaker 03:
And now to justify the JMOL, they didn't have any evidence other than to argue that channel selection had to be done at the phone.

[00:16:28] Speaker 03:
To affirm that and deny JMOL, the judge then changed that construction.

[00:16:34] Speaker 03:
The judge simply changed it to say channel selection is now has to be capable, the handset has to have the capability of channel selection.

[00:16:42] Speaker 03:
And that is simply a shift from a basic argument that both parties head to head fought about.

[00:16:48] Speaker 03:
It's not just a side show.

[00:16:50] Speaker 03:
That was the actual argument that Apple lost on.

[00:16:54] Speaker 03:
And that's the basis on which the entire case was tried.

[00:16:56] Speaker 03:
You can look at the trial record.

[00:16:58] Speaker 00:
Apple tried the whole case on the theory that the mobile station did have to have that capacity.

[00:17:06] Speaker 00:
There was at no point that I could see that you said, wait a minute, none of this evidence is permanent because it's contrary to the Clinton structure.

[00:17:15] Speaker 00:
Actually, we say it repeatedly, Your Honor.

[00:17:17] Speaker 00:
You said it at the rule of 50 point.

[00:17:18] Speaker 00:
You said that the evidence isn't sufficient.

[00:17:20] Speaker 00:
But I didn't see you standing up when their expert, Dr. Stark, went on and on about why it is that the mobile station here is required to be able to have this capacity, and Apple doesn't.

[00:17:33] Speaker 03:
And Your Honor, I believe we actually

[00:17:34] Speaker 03:
do say to the court a few times that it's not relevant evidence.

[00:17:38] Speaker 03:
We told the jury it's not relevant evidence because.

[00:17:41] Speaker 00:
Where did you tell the court?

[00:17:43] Speaker 00:
Other than the rule 50, which I saw.

[00:17:45] Speaker 00:
But that was all you cited in the brief.

[00:17:49] Speaker 03:
But we also told the jury specifically why it was not relevant.

[00:17:52] Speaker 03:
And the entire basis for this argument is what exactly happened at the claim construction.

[00:17:59] Speaker 03:
I mean, there's no other explanation for the judge not adopting 660

[00:18:04] Speaker 03:
Because if the judge believed that structure was required, he would have put in box 660 into the construction.

[00:18:10] Speaker 03:
Because that is the only structure, that's a very explicit inclusion to say channel selection must be done at the handset.

[00:18:18] Speaker 04:
Well wait, 660 though, I mean his whole point was that channel selection doesn't have

[00:18:24] Speaker 04:
to actually be done.

[00:18:25] Speaker 04:
It just has to be capable of being done.

[00:18:27] Speaker 04:
So he didn't put 660 in because he didn't want to require the fact of channel selection.

[00:18:34] Speaker 03:
But to be able to be capable of doing channel selection, you have to have the structure that does channel selection.

[00:18:41] Speaker 03:
Otherwise, there would be no capability.

[00:18:42] Speaker 03:
So that's too fine a distinction, in my view.

[00:18:46] Speaker 03:
You'd have to say either the structure's there to do channel selection or not.

[00:18:50] Speaker 03:
And what the judge did when he didn't include box 660 is made absolutely clear that structure is not present and doesn't need to be present for means for comparing.

[00:19:08] Speaker 04:
Okay, I'm sorry, you're way past your time.

[00:19:10] Speaker 04:
I let you go over, so I'm going to give an extra three minutes to you and we'll give you three minutes for your vote.

[00:19:17] Speaker 03:
Thank you, Your Honor.

[00:19:19] Speaker 04:
Sorry about that.

[00:19:28] Speaker 01:
May I proceed?

[00:19:28] Speaker 01:
Yes.

[00:19:29] Speaker 01:
May it please record my name is Joe Mueller with my partner Chip O'Neill.

[00:19:32] Speaker 01:
I represent Apple.

[00:19:36] Speaker 01:
If I might start with

[00:19:38] Speaker 01:
Judge Bryson's question on the invention disclosure record.

[00:19:41] Speaker 01:
And we're trying to find the page for the second portion of the parenthetical.

[00:19:44] Speaker 01:
If it's missing, we'll work with counsel to submit that missing page.

[00:19:47] Speaker 01:
But there is a portion of the joint appendix that speaks to a related issue, and the issue being what was actually conceived of by the inventor, Mr. B. Allen.

[00:19:57] Speaker 01:
There's the invention disclosure record, which is at least in part in the joint appendix.

[00:20:00] Speaker 01:
There's also the proposal that he made contemporaneous with the invention disclosure record,

[00:20:06] Speaker 01:
to the European Telecommunications Standards Institute.

[00:20:08] Speaker 01:
And this is joint appendix starting at page 2766.

[00:20:11] Speaker 01:
And I believe this addresses in part your question, Judge Bryson.

[00:20:15] Speaker 01:
On the first page of that submission to the European Telecommunications Standards Institute, there's a description of the current way that the cellular standard at issue operated at that time.

[00:20:27] Speaker 01:
And it describes how measurement reports were sent to the network.

[00:20:31] Speaker 01:
And in the words of Nokia and Mr. Villalon, the network

[00:20:36] Speaker 01:
can allocate capacity to the user equipment for uplink packet data transfer based on this report.

[00:20:43] Speaker 01:
But then it goes on to propose a change.

[00:20:46] Speaker 01:
And the change that's proposed by Nokia, by Mr. Villalon, was that the user equipment itself should be able to make the decision whether to send data packets on the Ratch, which is a common channel, or whether to request a DCH or dedicated channel.

[00:21:01] Speaker 01:
And this is, again, Joint Appendix, page 2766.

[00:21:04] Speaker 01:
The idea was for the cell phone, the user equipment, to make this decision.

[00:21:09] Speaker 01:
And that's carried through in the specification.

[00:21:12] Speaker 01:
It's carried through in the language of Claim 17.

[00:21:14] Speaker 01:
It's carried through in the only structure disclosed in the patent.

[00:21:18] Speaker 04:
Well, how do you explain the fact that the magistrate judge specifically left out 660 from the structure that you proposed?

[00:21:27] Speaker 01:
And you're not explaining the following way.

[00:21:29] Speaker 01:
We proposed, at Markman, multiple ways of expressing the same idea.

[00:21:34] Speaker 01:
Box 660 is one reference to that idea.

[00:21:36] Speaker 01:
Column 6, lines 20 through 39 are another way of describing that same idea.

[00:21:41] Speaker 01:
Column 7, lines 17 through 20 are yet another way of expressing the same idea.

[00:21:46] Speaker 01:
So we essentially express to the judge multiple ways of capturing this concept of the interwoven nature of channel selection with the language of the claim.

[00:21:54] Speaker 01:
Column 6, lines 20 through 39 refer to what is happening in Box 660.

[00:22:00] Speaker 01:
And you can see that from the context.

[00:22:02] Speaker 01:
If you look at Column 6,

[00:22:03] Speaker 00:
Oddly, it doesn't have the interim numbers between 40 and 80.

[00:22:09] Speaker 00:
That's exactly right.

[00:22:10] Speaker 00:
But you're saying that that has to be what it's talking about.

[00:22:12] Speaker 01:
That's exactly right.

[00:22:13] Speaker 01:
I was about to make the same point, that if you look at the paragraph just prior, it refers to box 640.

[00:22:18] Speaker 01:
And then the later one, 680.

[00:22:20] Speaker 01:
That's exactly right.

[00:22:20] Speaker 01:
And so those intermediate paragraphs are referring to what happens in 650 and 660.

[00:22:26] Speaker 01:
It refers to the channel selection process.

[00:22:28] Speaker 00:
And this paragraph is all about the mobile station.

[00:22:30] Speaker 00:
That's exactly right.

[00:22:31] Speaker 00:
I think we established that.

[00:22:33] Speaker 01:
That's correct.

[00:22:34] Speaker 01:
And not only did you establish that during your questions, but that's shown in Figure 2 of the patent, which is describing the prior art, but refers to the OSI model layers.

[00:22:43] Speaker 00:
Well, yes.

[00:22:44] Speaker 00:
But what struck me there is that the UTRAN seems to have the same

[00:22:51] Speaker 00:
MAC and RLC and RRC.

[00:22:53] Speaker 00:
So I was not completely confident that RLC and MAC refer just to the mobile station.

[00:23:00] Speaker 01:
That's correct.

[00:23:00] Speaker 01:
They're symmetrical, but it does show that the mobile has those layers in it.

[00:23:04] Speaker 01:
And when you read column six, it's clear that they're referring to the layers within the mobile.

[00:23:09] Speaker 00:
But figure two doesn't definitively tell us that.

[00:23:12] Speaker 01:
No, but what it tells us is that the mobile has those layers.

[00:23:15] Speaker 01:
That's right.

[00:23:15] Speaker 01:
And then column six clarifies that the particular algorithm being used in this

[00:23:20] Speaker 01:
only disclosed structure involves the steps occurring in the mobile.

[00:23:24] Speaker 01:
So column 6, lines 20 through 39 gives us the particular ways in which this decision is made.

[00:23:30] Speaker 01:
Column 7, lines 17 through 20 couldn't be clearer.

[00:23:33] Speaker 01:
It states explicitly that channel selection is advantageously performed in the control unit 803.

[00:23:39] Speaker 00:
Well, it could be clearer if it left the word advantageously out.

[00:23:44] Speaker 01:
There's a couple points to make about that, Your Honor.

[00:23:45] Speaker 01:
First of all, this is not a litigated issue below.

[00:23:48] Speaker 01:
The word advantageously is an argument that's being made for the first time later.

[00:23:55] Speaker 01:
But under any reading of that term, the evidence in the record would not support infringement.

[00:24:00] Speaker 01:
If it means advantageously and always, there's no infringement because the mobile device does not make the decision.

[00:24:07] Speaker 01:
If it means advantageously and sometimes,

[00:24:11] Speaker 01:
selects the channel.

[00:24:12] Speaker 01:
There's no infringement because the mobile device never makes the decision.

[00:24:15] Speaker 01:
And it could also mean advantageously occurs within the control unit.

[00:24:20] Speaker 01:
803 has to stay.

[00:24:21] Speaker 02:
But it seems throughout to consistently refer to an affirmative property of the invention, however it's used.

[00:24:29] Speaker 02:
That's exactly right.

[00:24:30] Speaker 01:
I mean, that's the common thread.

[00:24:32] Speaker 01:
That's exactly right, Your Honor.

[00:24:33] Speaker 01:
And Judge O'Malley, you asked if there's any embodiment in the patent that deals with the network making this decision.

[00:24:40] Speaker 01:
Not only is there no embodiment describing that, the only reference to the network making any sort of decision is a criticism of that.

[00:24:47] Speaker 01:
And that's in column three, beginning at line 20, where it describes the consumption of resources required to have the network make that decision, and how the purpose of the invention is to avoid that problem.

[00:25:02] Speaker 01:
So not only is there no embodiment disclosing a network side channel selection,

[00:25:06] Speaker 01:
The only suggestion or reference to that sort of operation is a critique event.

[00:25:11] Speaker 00:
You know, there's a fourth possibility of the leading advantageously, which you didn't refer to, which is that it's better if the mobile station can do it, but it isn't necessary.

[00:25:22] Speaker 00:
In which case, even if the mobile station can't do it at all, there's infringement.

[00:25:28] Speaker 01:
Well, you're under a couple things.

[00:25:29] Speaker 01:
One is, of course, this is a means plus function claim.

[00:25:32] Speaker 01:
And that sentence was referred to as part of the structure for the jury to consider in evaluating infringement.

[00:25:37] Speaker 00:
Is it your understanding or your theory of the case, then, I take it, is that when we say in the claim 17, means for comparing dot, dot, dot, four bases of channel selection, what that means is it encompasses both the comparison and the selection

[00:26:00] Speaker 00:
as necessary parts of the algorithm.

[00:26:03] Speaker 00:
That's the gist of your whole case.

[00:26:05] Speaker 01:
That's right, Your Honor.

[00:26:05] Speaker 01:
And there could be some theoretical distinction in the sense that there might be in the code somewhere a memorialization of the channel selection after the comparison is done.

[00:26:18] Speaker 01:
But what this claim explicitly requires is that the two be inextricably intertwined.

[00:26:23] Speaker 00:
The other side reads that same language to say for the basis of channel selection, but not necessarily a selection done by the mobile.

[00:26:31] Speaker 00:
It can be done by the system.

[00:26:32] Speaker 00:
It's just this unfortunate use of passive voice gets us into leaving out the noun that we need to decide who's doing the selection.

[00:26:41] Speaker 00:
And that runs throughout the patent.

[00:26:43] Speaker 00:
But they say, well, that's an indication that the selection can be done wherever.

[00:26:48] Speaker 01:
So I'd say a couple points, Your Honor.

[00:26:50] Speaker 01:
The first is, of course, again, this is means plus function, and the only disclosed structure involves the mobile unit itself making the decisions.

[00:26:57] Speaker 00:
But that depends on whether you're right in reading comparing for basis of selection to include the selection.

[00:27:04] Speaker 00:
Because if you're not right about that, then the means plus function structure only has to get you as far as comparison.

[00:27:11] Speaker 00:
It doesn't have to get you the selection.

[00:27:13] Speaker 01:
And we would say, Your Honor, it is appropriate to read in that way, because those words need to be given meaning for basis of said channel selection.

[00:27:18] Speaker 01:
But moreover, there's no evidence in the record about what the network does with this measurement report, which was the accused functionality.

[00:27:26] Speaker 01:
And what was accused in this case, and having tried the case, I can tell you that our arguments from before trial, at trial, and after trial were exactly the same.

[00:27:36] Speaker 01:
There's no shift in argument at any point.

[00:27:38] Speaker 01:
What they accused was an event for a measurement report, which is a type of measurement report generated by the cell phone and sent to the network.

[00:27:47] Speaker 01:
That is precisely the type of report that was described in the prior art, including at page 2766, in which the change proposal was made to Etsy and the background was referring to these measurement reports.

[00:27:59] Speaker 01:
This same measurement report was used in the accused phones, the accused functionality.

[00:28:04] Speaker 01:
And what it does is it sends a measurement report to the network, which could either ignore it or do something with it, including by reliance on other factors as well.

[00:28:13] Speaker 01:
We don't know.

[00:28:14] Speaker 01:
And there was no evidence put on by the plaintiff

[00:28:17] Speaker 01:
as to what the network side operators do with that event for a measurement report.

[00:28:22] Speaker 01:
So to answer your question, Judge Bryson, to the extent that the theory is this event for a measurement report is always used for channel selection, there's a failure of proof.

[00:28:32] Speaker 01:
That theory was never proven to the jury at trial.

[00:28:35] Speaker 01:
And we think you'd be wrong anyway as a matter of claim construction in that, in fact, the construction that Judge Love ordered, Judge Davis adopted, and Judge Gilstrap applied

[00:28:43] Speaker 01:
Required explicitly through 6 20 through 39 and 7 17 through 20 the channel selection occur in the mobile unit But even if that were wrong and that the network could make that this decision Even though the patents only discussion of that notion of the network deciding this is a criticism of it There's no proof of what the network actually does with the event for a measurement report

[00:29:05] Speaker 01:
So either we have a problem.

[00:29:06] Speaker 04:
There's a lot of discussion in the briefs about whether the judge had the authority to clarify its claim construction.

[00:29:14] Speaker 04:
But is that really even what occurred here?

[00:29:16] Speaker 04:
I mean, you've got a construction that sets out a specific structure.

[00:29:21] Speaker 04:
And I think this goes back to Judge Wallach's initial question.

[00:29:24] Speaker 04:
If the jury was charged with that construction and then the arguments were made about what that structure had to do, I don't know why there would be any need for clarification.

[00:29:35] Speaker 01:
General, we don't view the judges having clarified or changed the construction in any way.

[00:29:40] Speaker 01:
We argued at Markman for what I would describe as a belt and suspender approach to this notion of channel selection.

[00:29:46] Speaker 01:
And we asked the judge to adopt multiple ways of expressing the same idea.

[00:29:50] Speaker 01:
Box 660, the narrative that corresponds to Box 660, the judge did not adopt all of our references to that idea.

[00:29:57] Speaker 01:
But he did adopt two clear references to this notion of channel selection, 620 through 39,

[00:30:04] Speaker 01:
and 717 through 20.

[00:30:05] Speaker 01:
Both are clear.

[00:30:07] Speaker 01:
We argued that position to the jury.

[00:30:08] Speaker 01:
We took that position before trial in our submission of proposed findings of fact to the judge.

[00:30:14] Speaker 01:
And that is, I can find it right here.

[00:30:20] Speaker 01:
Well, I'll get to it in a moment.

[00:30:22] Speaker 01:
But we were clear before, during, and after trial that the intertwinement of channel selection into the required functionality of claim 17 and the fact that the accused products do not do that,

[00:30:32] Speaker 01:
was our defense, our basis for non-infringement.

[00:30:37] Speaker 01:
The judge post-trial pointed to precisely the same portions of the specification that Judge Love had adopted in his original Markman decision.

[00:30:47] Speaker 01:
Now, did he state explicitly in a sentence that was not included in Judge Love's order?

[00:30:54] Speaker 01:
He did, but he didn't change the construction.

[00:30:56] Speaker 01:
He was just articulating in words what the specification stated.

[00:31:00] Speaker 01:
and what Judge Love had adopted in the Markman decision.

[00:31:03] Speaker 01:
So there's no change.

[00:31:04] Speaker 01:
We had argued from the beginning to the end that there was an intertwinement in the claim of channel selection.

[00:31:09] Speaker 01:
Those words, either channel selection or selective channel, occur seven times in that claim.

[00:31:16] Speaker 01:
So the notion that we're importing channel selection post hoc is simply not true.

[00:31:22] Speaker 00:
Not channel selection, but channel selection by which instrument.

[00:31:25] Speaker 00:
That's the point on which there was some

[00:31:29] Speaker 00:
lack of, at least, if not lack of clarity, at least lack of explicitness in the claim construction.

[00:31:35] Speaker 01:
Well, Your Honor, Claim 17 states, the claim itself before the construction, the first three words are a mobile station, and then it goes on to use the words channel selection or selected channel seven times.

[00:31:46] Speaker 01:
Now you're right, Your Honor, it doesn't explicitly state verbatim.

[00:31:51] Speaker 01:
this mobile station selects the channel.

[00:31:53] Speaker 01:
But it's intertwined in every limitation in the claim.

[00:31:56] Speaker 01:
And there's not an indication in the claim or anywhere else in the specification that the network would be making that decision.

[00:32:02] Speaker 04:
What's your response to your friend on the other side who says that, no, if you read it that way, then claim 18 is meaningless?

[00:32:11] Speaker 01:
There's two responses, Your Honor.

[00:32:12] Speaker 01:
The first is that as a matter of law under the Latham case and others,

[00:32:18] Speaker 01:
The doctrine of claim differentiation cannot overcome the statutory command to construe means plus function claims in accordance with the disclosed structures.

[00:32:27] Speaker 01:
And there's no structure in this patent in which the network makes the decision.

[00:32:32] Speaker 01:
So we couldn't use claim differentiation to expand the scope of the claims beyond the disclosed structure within the four corners of the specification.

[00:32:39] Speaker 01:
That's the first response.

[00:32:41] Speaker 01:
The second response, Judge Bryson, you asked the question, could that claim be construed more narrowly

[00:32:46] Speaker 01:
to refer to a particular type of channel selection decision in which that is the only parameter being used to make the decision.

[00:32:52] Speaker 01:
And it could.

[00:32:53] Speaker 00:
The claim 18.

[00:32:54] Speaker 00:
And I noticed, for example, that the claim 17 refers to for basis of said channel selection, and 18 refers to on the basis of the result of the comparison.

[00:33:07] Speaker 00:
Now, that may just be a typo, but to the extent that they're using slightly different language, it suggests that the first is one

[00:33:15] Speaker 00:
many bases and the other is a specific basis that has to control the channel selection, i.e.

[00:33:22] Speaker 00:
the comparison.

[00:33:23] Speaker 01:
And I think you're correct, Ron, that there's a linguistic basis to read it more narrowly and in harmony with a broader reading of claim 17.

[00:33:31] Speaker 01:
But again, whether it can be read more broadly or not is a linguistic matter.

[00:33:34] Speaker 01:
These are both means plus function claims, 17 and 18, and there is no structure in this patent in which the network is making the decision.

[00:33:46] Speaker 00:
I'm sorry.

[00:33:48] Speaker 01:
If this patent is construed in accord with the only disclosed embodiment with the purpose of the invention, with the critique of network side decision making, there's no factual dispute that in the Apple devices, the mobile station never makes this decision.

[00:34:03] Speaker 01:
Sometimes it never makes that decision.

[00:34:06] Speaker 01:
And that's clear both in the testimony of Dr. Stark, it's also clear from the Qualcomm engineer who worked on the code

[00:34:14] Speaker 01:
that's accused in this case.

[00:34:15] Speaker 01:
The actual accused functionality is located within the baseband chip in these products.

[00:34:20] Speaker 01:
The baseband chips were supplied by vendors.

[00:34:23] Speaker 01:
And there's a jury verdict after hearing this testimony from the Qualcomm engineers by videotape, as well as the live testimony of Dr. Stark and the other witnesses, and the context about what happened at Etsy where the proposal was submitted by Mr. Villalon, the inventor.

[00:34:40] Speaker 01:
And it is an uncontested fact it was rejected by Etsy.

[00:34:44] Speaker 01:
So we have a situation where the notion or the idea of Mr. V. Allen was to migrate this decision from the network to the mobile.

[00:34:55] Speaker 01:
He proposed the idea to the European Telecommunications Standards Institute.

[00:34:58] Speaker 01:
They rejected the idea.

[00:35:00] Speaker 01:
The Qualcomm chips used the same approach that Etsy chose to use, the network side approach.

[00:35:06] Speaker 01:
The Qualcomm engineer described exactly how that works.

[00:35:08] Speaker 01:
And this is at joint appendix pages 1990 to 92.

[00:35:12] Speaker 01:
And as the engineer made clear, and as Dr. Stark corroborated, the mobile device never makes this decision.

[00:35:19] Speaker 01:
I'm sorry, Your Honor, please.

[00:35:21] Speaker 00:
You can finish.

[00:35:22] Speaker 01:
I was just going to say that the claim, each of the limitations are interwoven with channel selection, and that notion is divorced from the source code within the base friendships in the accused products.

[00:35:34] Speaker 00:
This strikes me as the kind of case, I guess, what is it, O2 micro type case in which

[00:35:41] Speaker 00:
There was, at minimum, a very different view that the two parties had of what the claim construction meant.

[00:35:48] Speaker 00:
And that became evident fairly early in the trial, it seemed to me, that you're taking a very different view of what the claim construction meant.

[00:35:56] Speaker 00:
That's the kind of situation in which we would expect somebody to say to the judge, we need a clarification.

[00:36:03] Speaker 00:
And that never happened.

[00:36:05] Speaker 00:
The closest anything came, it seemed to me, was at Rule 50 time.

[00:36:09] Speaker 00:
The core wireless said, we went on rule 50 and the judge just denied the rule 50.

[00:36:16] Speaker 00:
But I don't see any place, maybe there was, in which anybody said, whoa, stop the train.

[00:36:22] Speaker 00:
We're going down the wrong track here.

[00:36:25] Speaker 00:
Was there any place where an objection was made to Dr. Stark's testimony or Apple's presentation of a theory which would have been

[00:36:37] Speaker 00:
inadmissible as a theory under the plaintiff's reading of the claim construction.

[00:36:42] Speaker 01:
No.

[00:36:43] Speaker 00:
And there was no request for a refinement of the claim construction to elicit this particular distinction that ends up being so important to the outcome of the case.

[00:36:54] Speaker 01:
No.

[00:36:54] Speaker 01:
And there's two consequences.

[00:36:55] Speaker 01:
I'd say two reasons for that.

[00:36:57] Speaker 01:
One reason and one consequence.

[00:36:59] Speaker 01:
We understood the construction of the judge to require

[00:37:03] Speaker 01:
channel selection be part of this process as conducted by the mobile station.

[00:37:07] Speaker 01:
We understood that from the adoption of column six lines 20 through 39 and seven lines 17 through 20.

[00:37:13] Speaker 01:
And we repeatedly showed those portions of the judge's construction to the jury over and over again.

[00:37:18] Speaker 01:
And having been there, Your Honors, I can tell you we literally put the Markman order on a screen in front of the jury over and over.

[00:37:25] Speaker 01:
Without objection.

[00:37:25] Speaker 01:
Without objection.

[00:37:26] Speaker 01:
There was never an objection at any point during my opening statement, during the examination of Dr. Stark,

[00:37:32] Speaker 01:
during the closing argument, never a request for a clarification of the claim construction before it went to the jury.

[00:37:38] Speaker 01:
We had no ground to request a clarification because we understood it to be exactly what I'm telling you today.

[00:37:44] Speaker 01:
If they had thought that it were otherwise, that the reference of 17 through 20 and 6, 20 through 39, did not require a mobile side channel selection, it was incumbent upon them to tell the judge that before the jury was sent to deliberate.

[00:37:59] Speaker 01:
That never happened.

[00:38:01] Speaker 04:
OK, thank you.

[00:38:02] Speaker 01:
Thank you, Your Honor.

[00:38:19] Speaker 03:
Your Honor, I'm going to start with Claim 18 and Claim 17.

[00:38:23] Speaker 03:
Just in terms of that language, if you look at that language, the entire claim is about the mobile station.

[00:38:31] Speaker 03:
And the only thing required in claim 17 is a means for comparing.

[00:38:37] Speaker 03:
Claim 18 says, specifically, means for making that selection.

[00:38:42] Speaker 03:
And that difference in those claims under your Wenger case has to be respected.

[00:38:49] Speaker 03:
And you can't read structure in for a comparison function that would include the selection function.

[00:38:57] Speaker 03:
And that's simply what Apple is doing.

[00:39:00] Speaker 03:
they're making now, saying they had multiple attempts to try to get channel selection construed as part of the structure and means for comparing will not be supported by the record.

[00:39:10] Speaker 03:
The two attempts that they make, and it's very clear in the papers, are the two that I discussed before.

[00:39:16] Speaker 04:
Well, why didn't you object and say, Judge, they're ignoring the claim construction?

[00:39:20] Speaker 03:
Your Honor, I think we I apologize.

[00:39:22] Speaker 03:
I think the way I read the trial transcript is that it was irrelevant, and that's why the Rule 50 motion are

[00:39:30] Speaker 00:
But rule 50 doesn't go to relevance.

[00:39:32] Speaker 03:
No, but I mean, that's why we talked about it and said this doesn't matter to the claim.

[00:39:35] Speaker 00:
We didn't talk about it until you got to rule 50.

[00:39:38] Speaker 03:
And I think it's trial counsel.

[00:39:41] Speaker 03:
I'm sorry, trial counsel at the time made the decision on the ground that it was irrelevant and that was the better way to approach it.

[00:39:47] Speaker 03:
But I really, all along, there's never.

[00:39:50] Speaker 00:
One suspects in this situation, at least a reviewing court would suspect, that the reason neither side

[00:39:56] Speaker 00:
raised a ruckus about the claim construction is that either side necessarily really wanted to get an answer to the question of exactly what the claim construction meant.

[00:40:05] Speaker 00:
Because you might not have gotten an answer you wanted.

[00:40:08] Speaker 00:
And they might not have gotten the answer they wanted.

[00:40:10] Speaker 00:
So everybody was content to go along with the language of the claim construction, which gave both sides room to argue.

[00:40:16] Speaker 00:
But then when Rule 50 came, I mean, the JMO, you say, whoa, whoa, foul.

[00:40:23] Speaker 00:
But you didn't say foul earlier when they were predicating their whole case on a reading of the claim construction that was different from yours.

[00:40:31] Speaker 03:
Your Honor, when you read the claim construction record, and that's why I used Box 660, it cannot be clear what the judge is saying there.

[00:40:40] Speaker 03:
That they were not, he was not.

[00:40:41] Speaker 03:
So they were putting in admissible evidence.

[00:40:43] Speaker 03:
Why didn't you object?

[00:40:46] Speaker 03:
Your Honor, I mean, I think the trial counsel on the ground at the time felt

[00:40:51] Speaker 03:
that it was irrelevant, and he was going to just argue that it didn't matter to the judge and the jury.

[00:40:58] Speaker 03:
I think that's a decision he made.

[00:41:00] Speaker 03:
But it really is, if you look at the record, the point that they're making that column six and column seven language, you can search the entire claim construction briefing.

[00:41:14] Speaker 03:
They've never made the argument, Apple never made the argument that column six and column seven were another bite at the apple.

[00:41:21] Speaker 03:
to try to get channel selection as structure for means for comparison.

[00:41:27] Speaker 03:
And your case law makes it very clear that in this context where you have a function as claim 18, you should respect that distinction and not read in the structure that would be for claim 18 into claim 17.

[00:41:41] Speaker 03:
And finally, the advantages for this invention, you would realize just by doing claim 17 without ever doing channel selection at the handset.

[00:41:50] Speaker 03:
Thank you.

[00:41:51] Speaker 04:
All right we'll move to the next case.