[00:00:06] Speaker 04: The last case for argument is 16-2439, 11 Engineering versus Microsoft. [00:00:47] Speaker 04: So let me just tell you at the outset that this has more to do with Mr. Thornburg, but we should have it all straight. [00:00:53] Speaker 04: There's a cross appeal in this case on indefiniteness, and you've sliced and diced your time to reflect a cross appeal. [00:01:01] Speaker 04: It's the panel's consideration that this issue, because it was raised as an affirmative defense and not as a counterclaim, was really better or appropriately an alternative basis for affirmance rather than a cross appeal. [00:01:14] Speaker 04: So given that consideration, I don't think it [00:01:17] Speaker 04: matters much, but we're going to keep your time as the 15 minutes and you're free to raise your alternative defense in that time frame. [00:01:25] Speaker 04: But there won't be a back and forth on the cross field. [00:01:29] Speaker 04: You understand? [00:01:31] Speaker 04: All right. [00:01:31] Speaker 04: Mr. Hong, whenever you're ready. [00:01:35] Speaker 03: That's your thought. [00:01:35] Speaker 03: We never get to you. [00:01:43] Speaker 01: Well, may it please the court, Brian Non for plaintiff's appellants, 11 Engineering Inc. [00:01:48] Speaker 01: at 11 Engineering Game Control. [00:01:50] Speaker 01: Your honors, the district court's construction of turn off is erroneous and should be reversed because cutting all power to the radio transducer is erroneous for three reasons. [00:02:00] Speaker 01: One, it's merely the district court's personal connotation of the term turning off. [00:02:04] Speaker 01: Two, it renders the invention inoperable. [00:02:07] Speaker 01: And three, it's contrary to the intrinsic and extrinsic record. [00:02:12] Speaker 01: The issue here really is whether turning off the radio transceivers necessarily requires cutting all of the power. [00:02:18] Speaker 01: Again, the claim dimension does not require and will not work if you cut all of the power to the radio transceivers. [00:02:25] Speaker 01: If you look at the district court's non-random opinion, turning off is meaning a state of no power is erroneous because it's merely based on the court's personal connotation. [00:02:36] Speaker 03: That sort of troubles me that you would use that phrasing. [00:02:39] Speaker 03: I mean, the reality is that at some point, [00:02:42] Speaker 03: Language is language, and judges who are reviewing claim constructions have got to give language its plain and ordinary meaning if on its face it has a plain and ordinary meaning. [00:02:53] Speaker 03: I mean, so to begin with the proposition that turning off is different than turning down, I don't think means that he's being somehow flipped in his approach to this. [00:03:06] Speaker 01: I understand, Your Honor. [00:03:07] Speaker 01: I guess our concern is looking specifically [00:03:10] Speaker 01: specifically at the memorandum of opinion, when he finds this amendment from power down to turn off a somehow surrendering subject matter, and the memorandum of opinion says, well, power down might imply one or more settings between on and off, and cites nothing for that statement, and then says, well, turning off more strongly connotes a state of no power, and also cites nothing for that statement, then, you know, we're- Well, turning off means turning off. [00:03:35] Speaker 04: There's no reference of turning off in the specification right. [00:03:39] Speaker 04: So there's no indication that the patentee has not drawn us to any indication that turning off means something other than turning off, right? [00:03:50] Speaker 01: Correct, Your Honor. [00:03:51] Speaker 04: And the fact that in the prosecution history, even though there's no information about what exactly was done or why, we construe statutes around here quite frequently, too. [00:04:03] Speaker 04: And they had one term, and they changed it to another term that at least [00:04:09] Speaker 04: connotes or strongly suggests that there's a difference between the two terms, because why would one go through unnecessary exercise in changing those? [00:04:18] Speaker 04: So if that's where we left, and just you mentioned the inoperability, but I think there's a serious factual dispute between the parties and the experts as to the inoperability. [00:04:30] Speaker 04: So we can debate that or not, but you might want to look at the bigger picture of where your strength is [00:04:35] Speaker 04: in suggesting that turning off means something other than what the district court said. [00:04:41] Speaker 01: Yes, Your Honor. [00:04:41] Speaker 01: I guess to your first point there, that turn off does not appear in the specification. [00:04:45] Speaker 01: That's what I was saying, correct to. [00:04:47] Speaker 01: But I think there are indications in the specification as to what turn off means. [00:04:53] Speaker 01: Low power consumption is an expressed characteristic of the invention in the abstract, as well as column 12, lines 44 to 52. [00:05:02] Speaker 01: Adjusting power levels is also expressly taught. [00:05:06] Speaker 01: This is column 9, line 66, and column 10, line 5, and column 10, line 17. [00:05:13] Speaker 00: Is that with respect to the transceiver? [00:05:15] Speaker 00: That is with... In terms of this powering down, turning off notion, or I thought it was about something else. [00:05:26] Speaker 01: It is with respect to turning off, because [00:05:29] Speaker 01: That portion of the specification is with respect to polar response packets. [00:05:34] Speaker 01: And when you look at the flame language here, it's using synchronous time domain multiplexing to turn off the radio transceiver. [00:05:40] Speaker 01: And synchronous time domain multiplexing involves using polar response packets. [00:05:45] Speaker 01: Those polar response packets at those portions of the specification include information about adjusting power levels. [00:05:52] Speaker 01: So it's using those polar response packets. [00:05:55] Speaker 00: Maybe I'm misremembering. [00:05:57] Speaker 00: I thought the discussion about power [00:06:00] Speaker 00: in the specification was really focused on when you're transmitting data and not when you're not transmitting data and then according to the claim you want to somehow turn off the transceiver. [00:06:17] Speaker 00: Do you understand the distinction I'm making? [00:06:19] Speaker 01: I do and I understand that's the argument that Microsoft has made but Microsoft is pointing to the very same portions of the specification that a lot of engineering is and we see nothing in those [00:06:30] Speaker 01: those particular portions of the specification that limit the power level adjustment. [00:06:35] Speaker 03: Where do you say in the spec that this different power levels does relate to the transceivers? [00:06:46] Speaker 03: You're just saying it doesn't say it doesn't so that you don't have to say that it does? [00:06:51] Speaker 01: We're saying that it [00:06:52] Speaker 01: It does expressly relate to both the receiver and the transmitter in that portion of the spectrum, talking about the bottom of column 9 into the top of column 10. [00:07:03] Speaker 01: And I think the question was whether or not this power level adjustment is limited to actually when the receivers are receiving or transmitting, or is it also a power level adjustment for some time in between? [00:07:15] Speaker 01: And we see nothing in this portion of the specification [00:07:19] Speaker 01: that limits that power level adjustment solely to the receiving and transmitting. [00:07:24] Speaker 01: And it does, turning back to the claim language, speak specifically to using synchronous time-domain multiplexing to turn off the transceiver. [00:07:33] Speaker 01: And these pull and response packets are specifically towards using synchronous time-domain multiplexing. [00:07:49] Speaker 01: So again, when we look at the district court's opinion as relying on this amendment from power down to turn off, I understand Judge Proas was saying, well, how would we explain that you would make such an amendment? [00:08:07] Speaker 01: And first of all, I think it's important to look at there that the amendment from power down to turn off was part of a wholesale rewrite of the claim. [00:08:14] Speaker 01: So it wasn't apparent that these particular words were changed for any apparent reason. [00:08:19] Speaker 01: There's certainly no support in that amendment that would call it down. [00:08:23] Speaker 03: Are you saying it's meaningless though? [00:08:26] Speaker 03: We are saying... You know, even if we accept the proposition that there's not a clear and unmistakable disclaimer, I mean, it is an amendment of language which would at least indicate that there's a difference between the two. [00:08:40] Speaker 01: We don't agree, Your Honor, and there's a very good reason for that. [00:08:45] Speaker 01: And that is if you look at the arguments that were made in support of both amendments, there's a regular amendment, and then from power down to turn off, the turn off language showed up in a supplemental amendment. [00:08:58] Speaker 01: And looking at when that supplemental amendment was made on Appendix Page 594, the applicant said, well, in view of the revised new claims, [00:09:09] Speaker 01: and the arguments presented in the Amendment of February 2003. [00:09:13] Speaker 01: So it's relying on its new claim language and on the very same arguments it made for the First Amendment. [00:09:19] Speaker 01: And so if we look at those arguments, wouldn't those arguments change if the claim language meant something different? [00:09:27] Speaker 01: We think it would. [00:09:28] Speaker 01: And instead, the very same arguments are made. [00:09:29] Speaker 04: Why would you change language if it is not meant to be a distinction? [00:09:34] Speaker 01: It's a little bit difficult to tell from the record. [00:09:37] Speaker 04: Oh, can't we make certain assumptions when language changes, as Judge O'Malley said, not in terms of what it necessarily means, because we don't have much on that, at least in that section of the prosecution history, but at least that there's a distinction between the two terms. [00:09:53] Speaker 01: I think if we cannot and make the standard of reaching the standard of a clear and unmistakable disavowal here, and that's what the case is saying, when we look at the district court's opinion. [00:10:04] Speaker 04: Well, no, that clear and unmistakable [00:10:07] Speaker 04: comes up when you start with the assumption that there's a plain and ordinary meaning to the claim term and then you're trying to curb that or cabin that or do whatever. [00:10:15] Speaker 04: So you might need a clear, but here turning off at least the better meaning one could say is it means turning off, right? [00:10:27] Speaker 00: Cutting off power. [00:10:28] Speaker 00: I guess another way to ask the question is can you explain why the patent attorney [00:10:36] Speaker 00: chose to delete, power down, and in exchange for that deletion, add in turning off. [00:10:46] Speaker 00: What do you think was in the patent drafter's mind when he did that? [00:10:52] Speaker 01: If you look at the claim as a whole in that amendment, I guess it aligns in two ways. [00:10:59] Speaker 01: First of all, [00:11:00] Speaker 01: Looking at the entire claim language there, or the structure of the claim, the original claim 19 was very unconventional looking. [00:11:08] Speaker 01: And I think every claim element started with the word where. [00:11:11] Speaker 01: Where the transceivers do this, and where this does this. [00:11:14] Speaker 01: It looked a little bit strange to me. [00:11:15] Speaker 01: And so there wasn't this rewrite of the kind of structure of the claim. [00:11:20] Speaker 01: But then when we look at the arguments, particularly on appendix page 582, those arguments say, [00:11:29] Speaker 01: that the invention conserves power, that it achieves low power consumption, and those very same arguments are made in support of both forms of the language, then I think the only indication that we have, the only express indication from the record, is that they don't have a meaningful difference. [00:11:47] Speaker 00: So I guess your best answer is the patent drafter changed it, but there's really no reason why he did it. [00:11:55] Speaker 00: We have no real clue why he did that. [00:11:59] Speaker 00: We don't. [00:12:01] Speaker 03: You'd agree, would you not, that this particular claim is about power level changes when no data is being received, right? [00:12:19] Speaker 01: That's correct. [00:12:20] Speaker 01: I think it's using synchronous time domain multiplexing to turn off when the transceivers are not receiving or transmitting data. [00:12:29] Speaker 03: Okay, so your column 9 and column 10 citation to us, in that section, what it is talking about is power level information being transmitted in a packet. [00:12:43] Speaker 03: So by definition, it is a circumstance in which information is being transmitted. [00:12:49] Speaker 03: So isn't that separate and apart from what this claim is all about? [00:12:56] Speaker 01: It's correct that that information isn't contained in a packet that is being transmitted, but the information is being sent to the receiving transceiver in order to tell that receiving transmitter what kinds of transmission and receiving power levels to use. [00:13:13] Speaker 01: And so there's nothing in that portion of the spec to tell that actually says or limits that dynamic power level adjustment [00:13:25] Speaker 01: to what that receiving transceiver does to when it's receiving it. [00:13:29] Speaker 01: All right. [00:13:29] Speaker 03: Well, then is there any portion of the spec that affirmatively supports your position that powering down is what we should understand for purposes of this claim where information is not being transmitted? [00:13:47] Speaker 01: Well, we think the overall expressed characteristic of the invention and the abstract [00:13:52] Speaker 01: The low power consumption is an expressed characteristic in column 12, lines 44 through 52. [00:14:02] Speaker 01: These power level adjustments from column nine, line 66 through column 10, line five, column 10, line 17 through 23, as well as there is a section on perceived strength signal indicator at column six, lines one through 15. [00:14:22] Speaker 01: And this also talks about power level adjustment. [00:14:26] Speaker 01: We're citing these here at the appellate level because the district court found that there was no express support in the specifications for some interim lower power consumption or for some interim setting between on and off. [00:14:43] Speaker 01: And we disagree that the patent expressly teaches low power consumption. [00:14:51] Speaker 01: I see, unless there's any further questions, I'm well into my rebuttal time. [00:14:55] Speaker 01: Thank you. [00:15:09] Speaker 05: May it please support, I'm John Dornberg from Microsoft. [00:15:13] Speaker 05: I would like to address briefly the reasons why off really does mean off in this case. [00:15:19] Speaker 05: And then I would like to respond to a couple of the new arguments that 11 put in their reply. [00:15:24] Speaker 05: And then I would like to turn briefly to the alternate ground to affirm. [00:15:31] Speaker 03: But you would agree, before we get to that last point, that if we were to agree with you on the claim of construction, that your indefinite argument would be moot. [00:15:43] Speaker 05: If the court affirms the judgment of non-infringement, we would agree that [00:15:48] Speaker 05: Anything about validity would not be necessary to that judgment. [00:15:51] Speaker 03: Well, it would be moot, because there was no declaratory judgment action file. [00:15:57] Speaker 05: This court has gone both ways, but we would agree that that's within this court's discretion, yes. [00:16:03] Speaker 05: OK. [00:16:09] Speaker 05: So off means off. [00:16:11] Speaker 05: That's the ordinary meaning. [00:16:12] Speaker 05: It's what off doesn't mean reduce power as 11 urged as their claim construction. [00:16:19] Speaker 05: This is clear from that they knew how to say down rather than off during the prosecution. [00:16:26] Speaker 05: It's a lot like the Board of Regents of Texas case where the claim language was changed from said to each, to simple small words like down and off. [00:16:38] Speaker 05: The meaning in that case was found to be important. [00:16:41] Speaker 05: And the meaning here should also be found to be important. [00:16:43] Speaker 04: Does it matter? [00:16:44] Speaker 04: Their argument is that it's inoperable under this. [00:16:49] Speaker 04: Now, I know your position is that that's not correct. [00:16:52] Speaker 04: And you can tell us why that's not correct. [00:16:54] Speaker 04: But if it were, would that matter? [00:16:56] Speaker 04: Would that be dispositive? [00:16:58] Speaker 05: It would put a heavy burden on us if it were inoperable. [00:17:03] Speaker 05: There are cases like Chef America saying that if the claim is clear, [00:17:07] Speaker 05: too bad if it's broken, but it's a high burden and not one that we think we need to shoulder because we think that their arguments for why it's inoperative are both wrong and also waived. [00:17:20] Speaker 05: Their main new argument in their reply for why the turning off, if you really mean off, would break synchronous time domain multiplexing is because they say, well, that would turn off the clock. [00:17:34] Speaker 05: And then how would you know whenever to turn it back on? [00:17:36] Speaker 05: And there's really three problems with that position. [00:17:39] Speaker 05: One is that it's a new position in their reply. [00:17:42] Speaker 05: So not only was it not critical to this report, it wasn't even in their opening brief. [00:17:47] Speaker 05: So we've never had a chance to respond to it. [00:17:49] Speaker 05: There's no record. [00:17:51] Speaker 05: But beyond that, it's just attorney argument. [00:17:53] Speaker 05: It's not what the patent says. [00:17:55] Speaker 05: It's not what the prosecution history says. [00:17:56] Speaker 05: It's not even what their expert declaration said. [00:17:59] Speaker 05: If you go back and look in the appendix at page 492 to 93, [00:18:04] Speaker 05: That's where their expert talks about this claim construction. [00:18:07] Speaker 05: And he says, sure, he prefers their claim construction. [00:18:09] Speaker 05: But he never actually says the words, and by the way, if you adopt Microsoft's construction, it breaks the invention. [00:18:16] Speaker 05: He doesn't say that. [00:18:17] Speaker 05: You can imagine that 11 pushed him as hard as they could have to get him to say as much as he would. [00:18:21] Speaker 05: And he never says it's inoperative. [00:18:25] Speaker 03: But the specific thing about it. [00:18:26] Speaker 03: Even if it's not inoperative, the expert did testify that the whole point here was [00:18:33] Speaker 03: saving power consumption, that you didn't have to turn it off to accomplish that. [00:18:39] Speaker 05: There are a lot of ways to save power, that's true. [00:18:41] Speaker 05: But the specific way that's specifically recited in this claim is you save power by turning off when you're not using the transmitter. [00:18:49] Speaker 05: So you're not turning it off all the time, obviously. [00:18:51] Speaker 05: You're using power when you're transmitting. [00:18:53] Speaker 05: But this claim specifically says, when you're not using it, when you're not transmitting, when you're not receiving, turn it off. [00:18:59] Speaker 05: It's like turn off the lights when you leave the room. [00:19:01] Speaker 05: That's basically what this claims us. [00:19:02] Speaker 05: And yes, there's other ways to save power. [00:19:05] Speaker 05: But this is the way that they chose to claim. [00:19:08] Speaker 00: What about the television example or a clock radio? [00:19:11] Speaker 00: If I turn off my clock radio or turn off my TV, there's still power running to the TV. [00:19:18] Speaker 00: There's still power running to the clock radio. [00:19:22] Speaker 05: And Your Honor, that's an example that 11 put in their brief that's also not considered by the experts and not in the record. [00:19:27] Speaker 05: But I would submit that when you turn off your TV, that you in fact have turned off the screen. [00:19:34] Speaker 05: You've turned off the part of the TV that receives TV signals from the air or from the cable. [00:19:40] Speaker 05: And so you've turned it off as much as you as the consumer can turn it off. [00:19:44] Speaker 05: Yes, we all know as users of televisions that the parts of the TV that are still on, most notably the front panel, has to still be on because it can receive your next remote control. [00:19:56] Speaker 05: command. [00:19:57] Speaker 05: You can push the on button. [00:19:59] Speaker 00: So some part of the TV did have to be on in order to receive... So haven't I lowered the power consumption but not completely cut off power to the TV? [00:20:09] Speaker 05: And that's why we have to be really careful about what this claim says gets turned off. [00:20:13] Speaker 05: It doesn't say the whole device gets turned off. [00:20:16] Speaker 05: It doesn't say that the game console gets turned off. [00:20:18] Speaker 05: It doesn't even say that the entire [00:20:22] Speaker 05: RF module gets turned off. [00:20:24] Speaker 05: What it says is the radio transceiver gets turned off. [00:20:27] Speaker 05: And so that's very narrow and very specific. [00:20:30] Speaker 05: And so to an engineer in this field, they would understand that that specific thing is the component that is getting turned off, not the entire device. [00:20:38] Speaker 00: And so- The entire transceiver is, and everything that's inside the transceiver. [00:20:42] Speaker 05: Yes. [00:20:43] Speaker 05: But the transceiver is just the radio. [00:20:44] Speaker 00: It's the- Doesn't the transceiver include, I don't know, an RF module and then some kind of processor or something like that? [00:20:52] Speaker 05: So I think it's the other way around in the specification. [00:20:55] Speaker 05: The RF module is the larger unit. [00:20:57] Speaker 05: It's 22 and 24 in the spec. [00:21:00] Speaker 05: And the claim says that part of the RF module is Figure 10. [00:21:05] Speaker 05: So combining Figure 1 and Figure 10, we would find that there is an RF module that includes a lot of circuitry. [00:21:12] Speaker 05: Within that RF module is Figure 10, which Microsoft argued the Figure 10 is the radio transceiver. [00:21:20] Speaker 05: The district court found that maybe not all the stuff in Figure 10 is necessarily part of a radio transceiver. [00:21:26] Speaker 05: There may be other circuits in there. [00:21:28] Speaker 05: And 11 argued that to the district court. [00:21:32] Speaker 05: And for example, if you look at Appendix 472, 11 specifically argued to the district court that not all of the components of Figure 10 are part of a radio transceiver. [00:21:45] Speaker 05: And the district court agreed, and you can see that at Appendix 15. [00:21:49] Speaker 05: And so the district court found that a radio transducer is just circuitry for sending and receiving. [00:21:53] Speaker 05: And so maybe it's not all a figure of 10. [00:21:56] Speaker 05: And certainly, it doesn't have to be the circuit that turns the radio on and off. [00:22:01] Speaker 05: And so this is the main reason why they're wrong on the inoperability is that the thing that turns the radio on and off doesn't have to be the radio itself. [00:22:11] Speaker 05: So you don't turn off the switch. [00:22:13] Speaker 05: You just turn off the radio. [00:22:15] Speaker 05: And then the timer can be running in the switch that turns the radio back on at the right time. [00:22:20] Speaker 00: When it comes to claim construction principles, do you think there's a one size fits all rubric in the sense that, okay, we see some disputed language or disputed term in a claim, and now before we do anything, we have to look at the words in the claim themselves, look maybe at the other claims, look at the specification, look at the prosecution history, and then conclude after drawing from all those intrinsic sources, [00:22:49] Speaker 00: can we arrive at a clear meaning of the claim? [00:22:52] Speaker 00: Or there are other instances where there's words in a claim and they seem pretty basic and so maybe you just start from a premise of there's a very commonly understood well-established default meaning and now we need to go look through the spec, prosecution history, etc. [00:23:14] Speaker 00: to see if there's anything in those sources that displace that [00:23:19] Speaker 00: common default meaning? [00:23:21] Speaker 00: Is there a one size fits all or are there certain circumstances where you do one and certain circumstances where you do the other? [00:23:28] Speaker 00: What's your understanding? [00:23:29] Speaker 05: So my understanding is that there are actually, I think, two lines of cases right now in this court that tend to emphasize the read the entire intrinsic record to come to a meeting. [00:23:40] Speaker 05: And then there's some other cases saying you can start from ordinary meaning. [00:23:43] Speaker 05: And unless there's a clear disavowal, you go with the ordinary meaning. [00:23:47] Speaker 05: I think there's both types of cases. [00:23:49] Speaker 05: I think Phillips tells us that we should start with the entire intrinsic record, that you can't divorce the claims from the entire intrinsic record. [00:23:59] Speaker 05: And so even if you don't have a disavowal, and we're not arguing that there is a disavowal here or needs to be. [00:24:07] Speaker 05: If we were arguing that off means on, well, then we'd better have a disavowal. [00:24:11] Speaker 05: But since we're saying off means off, we think that you do need to read the entire spec. [00:24:17] Speaker 05: You need to read the entire prosecution and come to a conclusion about what the intrinsic record means as a whole. [00:24:22] Speaker 05: And we think that's exactly what Judge Stark did here in addition to looking at the ordinary meaning of a word like off that everyone really does understand. [00:24:32] Speaker 05: It's like said and each and on and off. [00:24:35] Speaker 05: These are common words that it's really hard in English to change their meaning without something that would be really super clear in the intrinsic record. [00:24:45] Speaker 05: So the answer to your honor's question is I think their case is going both ways. [00:24:49] Speaker 05: But I think in this case, the two methodologies are congruent and reach the same conclusion that if you start with off means off and then look at the intrinsic record to see if it confirms it, the answer is yes. [00:24:59] Speaker 05: If you start with the intrinsic record and see that they change down to off, well, if you start in that direction, you reach the same result. [00:25:09] Speaker 00: When you start with off means off, do you think that [00:25:13] Speaker 00: basically means you're starting with extrinsic evidence because you know you look at a dictionary and you know it confirms and in further elaboration what inside your head off means and so now you've run to a dictionary definition first and then after that go consult the intrinsic evidence and is that therefore then a backwards kind of analysis? [00:25:39] Speaker 05: No, Your Honor, I don't think you should start with dictionaries. [00:25:42] Speaker 05: I think Philip's pretty clearly said we should not do that. [00:25:48] Speaker 05: But nonetheless, what the panel mentioned during counsel's earlier argument is that even without running to dictionaries, as speakers of this language, we do come to claim language with an understanding of what the words mean. [00:26:05] Speaker 05: And the court has that understanding. [00:26:08] Speaker 05: And there's nothing wrong with that. [00:26:09] Speaker 05: We can't start pretending like we don't speak English. [00:26:13] Speaker 05: But it's not to say that dictionaries are paramount. [00:26:16] Speaker 05: We're not advocating that we go back to that era at all, that you have to read the entire record and come to a judgment as to what this word means. [00:26:29] Speaker 05: So just briefly to return to the specification questions that the panel raised, [00:26:35] Speaker 05: We agree very strongly that the quotations in columns 9 to 10 and 5 to 6, that 11 cites, are talking about changing power levels during transmit and receive. [00:26:50] Speaker 05: That's apparent from the language itself. [00:26:52] Speaker 05: For example, column 6 says, dynamically adjust power levels of transmitting devices. [00:27:01] Speaker 05: That's at about line 9. [00:27:03] Speaker 05: Column 10 says transmit and receive power levels at about line four. [00:27:09] Speaker 05: So, you know, the specification is certainly never, ever suggesting that when the devices are not transmitting and not receiving, that, you know, off means something other than off. [00:27:23] Speaker 05: There's not no hint of that at all in the specification. [00:27:27] Speaker 05: We also want to respond to 11's reply argument where they said the district court got it wrong that the specification doesn't disclose multiple power levels. [00:27:37] Speaker 05: That's not at all what Judge Stark said. [00:27:39] Speaker 05: If you look at Appendix 14, he simply said there was no intrinsic support for the idea that turning off means lower power consumption. [00:27:47] Speaker 05: He never says one way or the other whether there's lower power consumption for other purposes. [00:27:53] Speaker 05: He just says that there's nothing in the spec that says turn off means that. [00:27:57] Speaker 00: Well, he says, whereas power down might imply one or more interim settings between on and off. [00:28:03] Speaker 00: Yes. [00:28:04] Speaker 00: OK. [00:28:04] Speaker 05: Yes. [00:28:05] Speaker 05: And then he goes on to say that there's nothing in the record. [00:28:12] Speaker 05: So this is appendix 14 about line four. [00:28:18] Speaker 05: The record is devoid of intrinsic evidence to support the view that a person of ordinary skill in the art would have understood the claims to be using the words saving power by [00:28:27] Speaker 05: emphasized turning off to include methods of saving power other than simply shutting it off. [00:28:32] Speaker 05: So that's what he said. [00:28:34] Speaker 05: He doesn't make any finding that the specification doesn't talk about reducing power during transmission. [00:28:39] Speaker 05: He doesn't talk about that. [00:28:46] Speaker 05: So he didn't make that mistake. [00:28:52] Speaker 05: Very briefly on the cross appeal, which is the ultimate ground to affirm. [00:28:57] Speaker 05: Again, if the court affirms non-infringement, then this can be considered moot. [00:29:05] Speaker 05: But the main point that we would want to emphasize is that 11 added these performance limitations at appendix 568, used them specifically to distinguish prior art at appendix 582. [00:29:20] Speaker 05: And it's notable at that appendix 582, they say that the Savota prior art didn't have the low latency, so the performance limitation. [00:29:31] Speaker 05: They say that what they really meant was, well, he didn't have frequency hopping or synchronous time domain multiplexing, the other limitations. [00:29:40] Speaker 05: But that's not what they said. [00:29:42] Speaker 05: At appendix 582, what they say is that he didn't have latency. [00:29:46] Speaker 05: They don't say anything about frequency hopping or synchronous TDM. [00:29:50] Speaker 05: And then the low latency was again specifically recited by the examiner at Appendix 602 in his reasons for allows. [00:30:02] Speaker 05: And so we do think that this was a material limitation and should not be in the alternative have been found to be irrelevant. [00:30:13] Speaker ?: Thank you. [00:30:13] Speaker ?: Thank you. [00:30:25] Speaker 01: If I could turn quickly to the very last issue that Microsoft argued with respect to the arguments made on the next page of 582, we think the applicant did very specifically refer to the frequency hopping and time domain multiplexing limitations there because if you look at the top of page 582, it says [00:30:44] Speaker 01: the ability to reduce system latency. [00:30:47] Speaker 01: It wasn't just the system latency. [00:30:48] Speaker 01: And then the applicant referred to claim 19, lines 25 through 69. [00:30:53] Speaker 01: If you look at claim 19 at lines 25 through 69, you find the frequency hopping and time domain multiplexing limitations. [00:31:01] Speaker 01: Those are at appendix page 574 to 576. [00:31:06] Speaker 01: If you go on to the next paragraph, it distinguishes Bowdoin, because the invention has means for achieving low latency. [00:31:14] Speaker 01: And the next paragraph distinguishes sabota for having means for achieving low latency. [00:31:20] Speaker 01: So it's not just the low latency itself. [00:31:21] Speaker 01: It's actually the means for achieving it. [00:31:23] Speaker 01: And here, you have A plus B equals C. A plus B is frequency hopping and time domain multiplexing. [00:31:30] Speaker 01: C is just merely the result. [00:31:34] Speaker 01: I'd like to address a couple other. [00:31:36] Speaker 00: Would the result be the lack of any need to retransmit data packets? [00:31:43] Speaker 00: And then it's really the consequence of no longer having to retransmit data packets that leads to avoiding latency problems or minimizing latency problems. [00:31:55] Speaker 01: That's correct, grounder. [00:31:56] Speaker 01: I think earlier in that same claim element that says avoiding the need to retransmit packets, receiving the first packet intact and avoiding the need to retransmit. [00:32:08] Speaker 01: So we think that's an objective measure of when you have [00:32:12] Speaker 01: low latency, and the result, which is just saying what the result or value of the invention is, is the whereby clause. [00:32:23] Speaker 01: I see my time is running out. [00:32:25] Speaker 01: Do you have any more questions? [00:32:27] Speaker 01: No. [00:32:27] Speaker 01: Thank you. [00:32:28] Speaker 04: Thank you. [00:32:28] Speaker 04: We thank both sides and the case is submitted. [00:32:32] Speaker ?: That concludes our proceedings. [00:32:34] Speaker 02: All rise. [00:32:37] Speaker 02: The Honorable Court is adjourned for tomorrow morning. [00:32:40] Speaker 02: It's an o'clock AM.