[00:00:03] Speaker 03:
The next case for argument is 16-2105, one e-Way versus IPC.

[00:01:16] Speaker 03:
I think we're ready whenever you are, sir.

[00:01:34] Speaker 05:
Good morning, Your Honors.

[00:01:40] Speaker 05:
May it please the Court, my name is Doug Muehlhauser, representing the Appellant 1E way.

[00:01:46] Speaker 05:
This is an appeal from an ITC ruling on summary determination concerning indefiniteness.

[00:01:51] Speaker 05:
The ALJ erred in concluding that the claim term virtually free from interference is indefinite.

[00:01:58] Speaker 03:
Is it your position that there's a difference between free from interference and virtually free from interference?

[00:02:05] Speaker 05:
Yes.

[00:02:05] Speaker 05:
There's a difference.

[00:02:06] Speaker 05:
Those are different claim terms.

[00:02:08] Speaker 05:
They mean different things.

[00:02:10] Speaker 03:
So we're compelled to construe those terms differently, right?

[00:02:14] Speaker 03:
I believe so.

[00:02:15] Speaker 00:
Are we compelled to construe free from interference today?

[00:02:18] Speaker 05:
No, we're not.

[00:02:19] Speaker 05:
The claim term is not at issue.

[00:02:21] Speaker 05:
The assertive claims recite the claim term virtually free from interference, not simply free from interference.

[00:02:28] Speaker 03:
But the specification here never refers to the term virtually free, but it does refer to the term free.

[00:02:37] Speaker 03:
So if we were in a claim construction mode trying to construe the term in the claim virtually free,

[00:02:44] Speaker 03:
it's incumbent upon us to look at the spec to see what informs our construction of that term, right?

[00:02:50] Speaker 03:
And we would necessarily at least look at the references to free from interference to try to inform our analysis of what virtually means.

[00:03:00] Speaker 03:
Isn't that, I mean, this isn't one side or the other.

[00:03:02] Speaker 03:
This is just trying to see what the analytical framework for what we're doing is.

[00:03:06] Speaker 03:
Sure.

[00:03:07] Speaker 05:
I believe I understand the question.

[00:03:08] Speaker 05:
And first I would say that the specification never refers to free from interference or virtually free.

[00:03:14] Speaker 05:
What it refers to is without interference.

[00:03:18] Speaker 05:
And there's been some argument about how that should be regarded in the specification.

[00:03:23] Speaker 05:
And we feel very strongly, Winnie Ray feels very strongly that without interference should allow for some amount of interference.

[00:03:31] Speaker 05:
And the reason is because there's a passage in the specification that specifically states that a user of the invention, I think headphone 50 is the item, can enjoy private listening,

[00:03:43] Speaker 05:
through the invention without interference.

[00:03:46] Speaker 05:
The very next sentence in the specification in this instance says that greater user separation could be possible if we applied a fuzzy logic technique.

[00:03:57] Speaker 00:
And so if we had- We have in column three that you're referring to, like around line 30.

[00:04:02] Speaker 05:
I just want to know which part you're referring to.

[00:04:05] Speaker 00:
That's right.

[00:04:05] Speaker 05:
I'll find the precise passage in just a second.

[00:04:20] Speaker 05:
So at Joint Appendix 102, we're looking at column 3 of the 258 patent.

[00:04:30] Speaker 05:
And specifically, I believe it is lines 28 through 35.

[00:04:35] Speaker 05:
There's a discussion, as I mentioned, indicating that the headphone user can enjoy private listening without interference from any other receiver headphone users.

[00:04:48] Speaker 05:
even when operated in a shared space.

[00:04:50] Speaker 05:
And the very next sentence in this paragraph, the only other sentence, says the fuzzy logic detection technique used in the receiver 50 could provide greater user separation through optimizing code division in the headphone receiver.

[00:05:03] Speaker 05:
And so if without interference we're regarded as meaning zero interference or completely free from interference, there'd be no way to have greater user separation.

[00:05:12] Speaker 03:
So let me see if I understand.

[00:05:13] Speaker 03:
When we're looking at this patent, you're saying there are at least three

[00:05:20] Speaker 03:
different kind of levels of degree here, right?

[00:05:24] Speaker 03:
There's zero interference, there's free from interference, and then there's virtually free from interference.

[00:05:32] Speaker 05:
I'm not sure those terms are used explicitly in the specification, but I think those gradations that you just mentioned are worth considering in terms of the analysis and the case.

[00:05:43] Speaker 03:
Well, I thought that's what, I mean, don't you have a chart prominently viewed in your analysis here, which is called the interference diagram?

[00:05:49] Speaker 03:
That's correct.

[00:05:50] Speaker 03:
That's from your brief.

[00:05:51] Speaker 03:
And that's what you set out, at least four categories are written here.

[00:05:57] Speaker 03:
I guess, I don't know, maybe there's something in between, which is zero interference, free from interference, undetectable, virtually free from interference, and then way at the end.

[00:06:08] Speaker 03:
greater interference.

[00:06:09] Speaker 03:
So I'm not making this up on my own.

[00:06:12] Speaker 05:
I'm taking this from what you... The intent of that chart was to indicate that when the applicant during prosecution of a parent application made a distinction over the prior art and characterized his inventions as where interference is virtually eliminated and then provided some guidance, e.g.

[00:06:33] Speaker 05:
where eavesdropping cannot occur, that distinction over the prior art

[00:06:38] Speaker 05:
simultaneously distinguished the claim term virtually free from interference.

[00:06:42] Speaker 05:
It also distinguished free from interference.

[00:06:45] Speaker 05:
And neither of those are as small as zero interference.

[00:06:49] Speaker 05:
And so that was the point.

[00:06:51] Speaker 03:
And the term, though, that we're looking at here, because we're focusing on the intrinsic record, namely the specification, specification then says without interference.

[00:07:01] Speaker 03:
So are you saying, looking at your chart here on the interference diagram, where does the reference in the specification, the only reference to interference with something going with it, is without interference, where does that fall along this continuum from zero to greater?

[00:07:19] Speaker 05:
It falls at virtually free from interference because it allows for interference beyond free from interference, beyond zero interference.

[00:07:28] Speaker 03:
I don't understand.

[00:07:29] Speaker 03:
But you say free from interference is something different than zero interference.

[00:07:34] Speaker 05:
Yes.

[00:07:35] Speaker 05:
We're not construing free from interference in this case.

[00:07:39] Speaker 05:
We're not construing.

[00:07:39] Speaker 03:
Well, I don't know whether I would say we're compelled to do that.

[00:07:43] Speaker 03:
But it would be helpful if we're trying to inform what virtually free from interference is.

[00:07:47] Speaker 03:
And the term in the specification is without interference.

[00:07:54] Speaker 03:
So again, tell me again what without interference is your view that without interference

[00:07:59] Speaker 03:
is virtually free from interference and not free from interference?

[00:08:04] Speaker 05:
I would say we need to focus on the specification exactly as you're doing, exactly as we need to do.

[00:08:10] Speaker 05:
There's a passage that talks about CDMA, which is critical technology and wireless communications.

[00:08:15] Speaker 03:
Can you just go back to my talking about this interference diagram that you've created?

[00:08:20] Speaker 05:
Sure.

[00:08:21] Speaker 05:
The interference diagram is focusing on

[00:08:25] Speaker 05:
the applicant's distinction over the prior arc that was done in the prosecution of a related parent application, where the applicant provided baseline guidance associated with his description of his inventions, where interference is virtually eliminated.

[00:08:40] Speaker 03:
Okay, and that's the EG, and that's where you get the eavesdropping cannot occur, right?

[00:08:46] Speaker 05:
Correct.

[00:08:47] Speaker 05:
We believe that there's grammatical identity between where interference is virtually eliminated and virtually free from interference,

[00:08:54] Speaker 05:
I don't think that's a contested point here.

[00:08:55] Speaker 03:
I don't know.

[00:08:55] Speaker 03:
Grammatically, what is that?

[00:08:57] Speaker 05:
Grammatically, meaning the terms mean the same thing.

[00:09:00] Speaker 05:
Because, and we know that because?

[00:09:01] Speaker 05:
Where interference is virtually eliminated and virtually free from interference.

[00:09:06] Speaker 03:
Oh, okay, okay.

[00:09:07] Speaker 03:
I get that.

[00:09:07] Speaker 03:
I get that.

[00:09:08] Speaker 03:
What about the EG though?

[00:09:10] Speaker 03:
The EG.

[00:09:11] Speaker 03:
Which is normally, and we've got cases that support this, there's a difference between IE and EG.

[00:09:18] Speaker 03:
So is it your view that that language and the prosecution history is

[00:09:22] Speaker 03:
your client was acting as lexicographer there?

[00:09:25] Speaker 05:
I don't think that's providing an explicit definition.

[00:09:28] Speaker 05:
We wouldn't take that position, but what we would say is that the applicant is clearly indicating baseline guidance for determining when interference is virtually eliminated.

[00:09:41] Speaker 03:
I understand.

[00:09:42] Speaker 03:
I'm sorry to keep, but the time is short and I know I've cut off Judge Wallach, so I'm trying to make sure he gets his...

[00:09:50] Speaker 03:
You keep saying that, and you say that in your brief.

[00:09:52] Speaker 03:
You use the term baseline.

[00:09:54] Speaker 03:
But am I wrong?

[00:09:56] Speaker 03:
I mean, there's a baseline, but that just gives you one end of the spectrum.

[00:10:01] Speaker 03:
It doesn't tell you about the other end of the spectrum.

[00:10:04] Speaker 03:
So I'm not sure whether or not we agree with you that there's a baseline set somewhere, whether that informs the limitations, because that gives you one end, but not the other.

[00:10:15] Speaker 03:
And that's the problem we're dealing with in terms of trying to construe the claim here, right?

[00:10:20] Speaker 05:
Our position is that when somebody... Well, just say it right.

[00:10:24] Speaker 03:
I mean, you kind of shook your head halfway, sideways.

[00:10:27] Speaker 05:
Not to disagree, but I would say that when a person of ordinary skill in wireless communications assesses where eavesdropping cannot occur, that has significant meaning, particularly in a CDMA system where we have coded transmissions that keep

[00:10:45] Speaker 05:
other transmissions that aren't coded, separated.

[00:10:48] Speaker 03:
But that assumes that it's not a baseline, but it defines the entire scope.

[00:10:52] Speaker 03:
And you agree that an example of it doesn't mean that that is everything about it, and that defines the entire parameter of the term, right?

[00:11:03] Speaker 03:
E.g.

[00:11:04] Speaker 03:
means here's an example.

[00:11:05] Speaker 03:
It may give you a baseline, if that's the term you want to use, but it doesn't give you the line at the other end, right?

[00:11:14] Speaker 05:
When you say an example of it, our belief is that the EG in this case is providing a condition that indicates when interference is virtually eliminated.

[00:11:24] Speaker 03:
But is it the only condition?

[00:11:26] Speaker 03:
This is an example of one of the conditions where it's virtually eliminated.

[00:11:31] Speaker 03:
But the example of one of the conditions in which it's virtually eliminated does not inform whether there are other conditions and what those conditions are, correct?

[00:11:43] Speaker 05:
I would say this is one condition that's identified in the intrinsic evidence.

[00:11:47] Speaker 05:
It's not the only one, and it's one, and it's important, and I think it provides, we believe it provides reasonable certainty to a person of ordinary skill in the art.

[00:11:54] Speaker 05:
Judge Wallach.

[00:11:55] Speaker 02:
You raised CDMA technology.

[00:11:58] Speaker 02:
Yes.

[00:11:59] Speaker 02:
I'm looking at page 31 of your blue brief where you have a series of bullets saying what a posita would understand based on prior evidence, and it refers to

[00:12:13] Speaker 02:
for example, eavesdropping and jamming of military radios, resistance to eavesdropping and interference.

[00:12:25] Speaker 02:
And so my question is, how would this support a posita understanding interference and eavesdropping to be one and the same?

[00:12:38] Speaker 05:
Our position is not that interference and eavesdropping are one and the same.

[00:12:41] Speaker 05:
Our position is that eavesdropping

[00:12:43] Speaker 05:
When it cannot occur, that is an indication of when interference is virtually eliminated.

[00:12:49] Speaker 05:
And the bullets that I think that you're looking at come directly from extrinsic references that we provided in the record.

[00:12:57] Speaker 05:
They're very clear, and they're consistent among them.

[00:13:00] Speaker 05:
When they identify CDMA as a technology that was developed to prevent eavesdropping, they discuss CDMA as well known to reduce interference and prevent eavesdropping.

[00:13:11] Speaker 05:
And when I say eavesdropping, they're using the word again and again and again.

[00:13:15] Speaker 05:
So we believe that the extrinsic evidence is confirming of the intrinsic evidence that a person of ordinary skill in the wireless communications art would well understand eavesdropping, what it means, how it's prevented in the context of using a CGMA system.

[00:13:32] Speaker 03:
Eavesdropping is never in the claims here.

[00:13:34] Speaker 03:
It's not in the spec.

[00:13:37] Speaker 03:
I mean, what I'm looking for is whether one skilled in the art would have said,

[00:13:41] Speaker 03:
that an expert would have said that one skilled in the art would have understood virtually free from interference to mean this.

[00:13:50] Speaker 00:
I'm sorry to interrupt, but what about your specifications reference to private listening?

[00:13:58] Speaker 00:
Does that at all, I'm just adding on to Chief Judge Pro's question, which is would that, does that relate to the virtually free from interference term

[00:14:09] Speaker 00:
and the idea of no eavesdropping when it talks repetitively about how you want private listening on these headphones so that someone else who's in that general area who also has a set of headphones is privately listening to something else that they still maintain their ability to privately listen to their music.

[00:14:30] Speaker 05:
Sure.

[00:14:31] Speaker 05:
I think I understand the question, and I would answer it like this.

[00:14:35] Speaker 05:
During prosecution of the related parent application in this case,

[00:14:40] Speaker 05:
There were claims that were prosecuted and that were allowed that include the term virtually free from interference and free from interference, and also recite private listening.

[00:14:50] Speaker 05:
And so our view is that the term private listening is consistent with both virtually free from interference.

[00:14:57] Speaker 05:
You can have private listening when your system is virtually free from interference or when it's free from interference.

[00:15:03] Speaker 05:
And that sort of goes back to the interference chart that we put together.

[00:15:07] Speaker 05:
When you say that eavesdropping cannot occur

[00:15:10] Speaker 05:
where you have private listening, that is possible whether you have virtually free from interference or free from interference.

[00:15:19] Speaker 05:
There's not a distinction there in terms of being able to have private listening.

[00:15:23] Speaker 02:
So you're saying if I can get a nice clean picture on my Sony TV, nobody can listen in on it?

[00:15:30] Speaker 05:
If you're using the CDMA technology and you have coded transmissions that are coded specifically for that TV so that it ignores everything that's not coded for it

[00:15:39] Speaker 05:
That's correct.

[00:15:40] Speaker 03:
So what's the difference between eavesdropping and private listening?

[00:15:48] Speaker 05:
I think that the unifying concern here is, are you keeping user transmission separate in an environment where you have multiple transmissions occurring in frequencies in the same spectrum?

[00:16:00] Speaker 05:
If you're keeping them separate, eavesdropping cannot occur, and you can have private listening.

[00:16:05] Speaker 00:
In other words, eavesdropping and private listening are the same thing?

[00:16:10] Speaker 05:
I'm not going to say that they're the same thing, but when eavesdropping cannot occur, and when you have private listening, can both result, and they can be, they're both true at the same time.

[00:16:22] Speaker 05:
If you're keeping user transmissions separate using coded transmissions.

[00:16:26] Speaker 03:
But they're different.

[00:16:27] Speaker 03:
So they're both a consequence of whatever we're talking about, but I thought you said a few minutes ago that they were different.

[00:16:34] Speaker 03:
Maybe I misheard.

[00:16:35] Speaker 05:
That private listening and eavesdropping not occurring are different.

[00:16:40] Speaker 05:
I would say it another way.

[00:16:41] Speaker 03:
Well, is that not occurring that they're different?

[00:16:44] Speaker 03:
Private listening and free from eavesdropping are different situations.

[00:16:49] Speaker 03:
I mean, there may be some overlap between the two, but they're two different concepts.

[00:16:54] Speaker 05:
I think on the record, what I can tell you is that both can coexist, private listening and no eavesdropping, when you're keeping user transmissions from multiple wireless devices separate from each other.

[00:17:10] Speaker 05:
person in the environment can have private listening apart from every other listener.

[00:17:15] Speaker 00:
Your specification says the wireless digital audio music system provides private listening without interference from other users or wireless devices.

[00:17:26] Speaker 00:
I don't see how that doesn't then equate private listening to the definition that's provided in the prosecution history that talks about having no eavesdropping.

[00:17:38] Speaker 00:
So how are they not the same?

[00:17:42] Speaker 05:
All I can tell you is that the record shows that they operate the same way.

[00:17:46] Speaker 05:
Private listening and no eavesdropping can coexist at the same time when you're using CDMA to code transmissions and keep them separate.

[00:17:54] Speaker 05:
Each user can have private listening and be free from eavesdropping.

[00:17:58] Speaker 05:
If there are differences, I'm not sure what they are on the record.

[00:18:02] Speaker 05:
I see that I'm past my time.

[00:18:03] Speaker 05:
Yeah, I appreciate that.

[00:18:04] Speaker 03:
Thank you.

[00:18:05] Speaker 03:
I will restore two minutes of rebuttal on the other side.

[00:18:13] Speaker 03:
OK, we've got two persons on this side.

[00:18:17] Speaker 03:
Miss Valentine, you're representing the ITC.

[00:18:19] Speaker 03:
Yes, Your Honor.

[00:18:20] Speaker 01:
Good morning.

[00:18:21] Speaker 01:
May it please the court.

[00:18:23] Speaker 01:
As the court has recognized, the specification says without interference, without.

[00:18:28] Speaker 01:
There's no wiggle room given there for what virtually might mean.

[00:18:32] Speaker 01:
And Appellant's entire claim argument is based upon the prosecution history of the 885 patent.

[00:18:38] Speaker 00:
Aren't they also relying on the fact that words like virtually and substantially are ubiquitous terms used in patent claims to give some wiggle room?

[00:18:48] Speaker 01:
Well, yes, Your Honor.

[00:18:48] Speaker 01:
The problem is we don't know how much wiggle room is given.

[00:18:51] Speaker 00:
Why do you need to know how much wiggle room there is if the prosecution history says exactly what virtually free from interference means?

[00:18:57] Speaker 00:
Why do you need to know what free from interference means?

[00:19:00] Speaker 01:
Well, that goes to the point I was about to make, Your Honor, is the prosecution history doesn't say what virtually free from interference means.

[00:19:06] Speaker 01:
It says what free from interference means.

[00:19:08] Speaker 01:
The statement of prosecution history appellants rely on was made with respect to claims that recited free from interference.

[00:19:14] Speaker 00:
But there were other claims that were pending at the time that had already been allowed, and those had the virtually free from interference language in them, right?

[00:19:20] Speaker 03:
Yes, Your Honor, but those claims were never rejected over the reference.

[00:19:23] Speaker 03:
Can you accept the purposes of argument that we're not buying your argument that that language is completely irrelevant and not relevant to our analysis here?

[00:19:33] Speaker 03:
So why don't you accept that as a predicate?

[00:19:35] Speaker 03:
So then let's assume that language can be used to construe terms that have virtually free from interference.

[00:19:43] Speaker 03:
Are there other deficiencies in terms of reliance on that intrinsic evidence in the prosecution history?

[00:19:50] Speaker 01:
Well, Your Honor, I think the problem is we still don't know, and the judge made this point, that we don't know really what eavesdropping would mean in the context.

[00:20:03] Speaker 01:
As the court noted, eavesdropping is not discussed in the specification.

[00:20:09] Speaker 00:
Why doesn't it mean the same thing as not having to hear somebody else's music and being able to hear your own?

[00:20:13] Speaker 01:
Well, the problem, so the specification at columns A102, column 3,

[00:20:19] Speaker 01:
lines 13 through 16 to say that there are other types of interference that may be at play here.

[00:20:25] Speaker 01:
There's the audio interference that may be from other... I'm sorry.

[00:20:29] Speaker 03:
Are you looking at column three of the 258 patent?

[00:20:31] Speaker 01:
Yes, Your Honor.

[00:20:32] Speaker 01:
So column three, the line says... Let's see.

[00:20:35] Speaker 01:
So starting at line nine, receiver code generator may contain same unique wireless transmission of a signal code word that was transmitted by audio transmitter 20

[00:20:48] Speaker 01:
and specific to a particular user.

[00:20:50] Speaker 01:
So that's typically the CDMA situation where the receiver of the headphones won't understand the code sent by the transmitter, or any transmitter, but only its own transmitter.

[00:21:01] Speaker 01:
But it also says, other code words from wireless digital, I'm sorry, I meant to start there, other code words from wireless digital audio system 10 may appear as noise to the audio receiver.

[00:21:11] Speaker 01:
Then it says, this may also be true for other device transmitted wireless signals operating in the wireless digital audio spectrum.

[00:21:18] Speaker 01:
Those device transmit signals aren't necessarily from the audio devices at issue here.

[00:21:23] Speaker 01:
They could be from other types of systems that are transmitted in that same spectrum.

[00:21:29] Speaker 01:
In which case, what does eavesdropping mean?

[00:21:31] Speaker 01:
How do you, when you don't have audio signals, how would eavesdropping even occur?

[00:21:35] Speaker 00:
I couldn't want to, on a modern day scale, look at the specification and the repeated reference to

[00:21:40] Speaker 00:
you know, without interference, private listening without interference, understand that what we're talking about with the invention is headphones.

[00:21:48] Speaker 00:
What we're talking about with no eavesdropping is that somebody else isn't going to hear your music even though they're using headphones in the same frequency band in the same room as you.

[00:21:58] Speaker 01:
Well, Your Honor, then I would say the problem is this specification exists for all the patents in this family, the exact same specification.

[00:22:06] Speaker 01:
So this exact same specification must support

[00:22:09] Speaker 01:
There are claims that recite private listening, there are claims that recite free from interference, and there are claims that recite virtually free from interference.

[00:22:16] Speaker 01:
The only claim that seems to be direct, the claims, arguably, that are directly supported by the specification are private listening, perhaps, and free from interference.

[00:22:25] Speaker 01:
The judge, as the ALJ found this case, without interference, does not mean, this says nothing about virtually free from interference.

[00:22:32] Speaker 00:
Why are we talking about terms that aren't in the claims that are before us?

[00:22:35] Speaker 00:
I mean, I understood that the claims that are asserted in this case

[00:22:40] Speaker 00:
and that the ITC addressed have the virtually free from interference language.

[00:22:45] Speaker 00:
Court found them indefinite.

[00:22:47] Speaker 00:
There's a prosecution history statement here that pretty much defines what those words mean, and yet we keep on talking about other words that aren't even in the claims that are before us.

[00:22:56] Speaker 00:
Why are we talking about what those words mean if the words that are in the claims at issue were defined in the prosecution history?

[00:23:03] Speaker 00:
Why does it matter that I might not know what that word means compared to free from interference, which isn't even in the claims?

[00:23:09] Speaker 01:
Well, Your Honor, and that goes back to the point, which I guess the court may or may not accept, that the statement was not made with respect to the term virtually free from interference.

[00:23:19] Speaker 01:
And that was the basis of the judge's finding.

[00:23:24] Speaker 01:
Therefore, the definition was then stretched simply because the word virtually happened to appear in the discussion.

[00:23:33] Speaker 01:
But that claim had been withdrawn at the time the statement was made.

[00:23:38] Speaker 01:
So the judge said, OK, well, this statement says what free from interference means.

[00:23:43] Speaker 01:
And in the prosecution history of 885, both of those claim terms were an issue.

[00:23:48] Speaker 01:
But it does not tell us what virtually free from interference means.

[00:23:51] Speaker 01:
And as you may note, the appellants did not rely on the prosecution history of the 285 patent or even the 391 patent to make this argument, because there's simply nothing in those.

[00:24:01] Speaker 00:
You're saying because it's the parent, it's some other

[00:24:04] Speaker 00:
related prosecution history.

[00:24:06] Speaker 00:
We shouldn't give it as much weight.

[00:24:08] Speaker 01:
No, Your Honor.

[00:24:08] Speaker 01:
It's simply that the term that the statement was made with respect to is not the term that's at issue in this patent.

[00:24:15] Speaker 01:
And I appreciate the court's... Why not?

[00:24:18] Speaker 00:
I'm sorry.

[00:24:19] Speaker 00:
I understand.

[00:24:20] Speaker 00:
You're saying based on your argument that because the legend in that prosecution history was directed to claims that don't say virtually free, that we should understand that the only thing that was being discussed was free from interference, even though

[00:24:34] Speaker 00:
the express language said virtually free.

[00:24:36] Speaker 01:
Yes, and it's not simply the legend, Your Honor.

[00:24:38] Speaker 01:
The claim 17, which was an issue in the 885 when the statement was made, was actually written in that document as being withdrawn at the time.

[00:24:48] Speaker 01:
So the appellant would have had the commission speculate as to what the statement was being made with reference to, which claims when the prosecution history seemed fairly clear,

[00:25:01] Speaker 01:
that the statement was made with respect to claims that recited virtually free from interference and the claims that recited free from interference when the statement was made with respect to this over trying to overcome the Lavelle reference have been withdrawn and the commission didn't feel comfortable making that leap.

[00:25:17] Speaker 00:
The thing is is that I could appreciate your argument probably much more had it been saying Lavelle does not teach a relationship where interference is eliminated.

[00:25:28] Speaker 00:
I mean it says is virtually eliminated

[00:25:31] Speaker 00:
And then the next sentence talks about, therefore, the claims are allowable.

[00:25:36] Speaker 00:
But it's almost as if they're saying Lavelle doesn't even teach this much, and our claims require even more than that.

[00:25:42] Speaker 00:
And so therefore, the prior art doesn't satisfy our claims.

[00:25:46] Speaker 00:
I just don't see how, especially when there were these other claims that were at issue, that the court wouldn't understand what virtually eliminated means when it says right there.

[00:26:01] Speaker 01:
I think another problem, Your Honor, is that there's a problem that runs throughout this prosecution history, especially the 885 where both patents were at issue.

[00:26:10] Speaker 01:
The examiner nor the applicant really make a difference between what virtually free mean.

[00:26:16] Speaker 01:
They use the terms somewhat interchangeably.

[00:26:19] Speaker 01:
All of the rejections that the examiner states are with respect to free from interference.

[00:26:24] Speaker 01:
And then they sort of tack on virtually free.

[00:26:26] Speaker 01:
So the commission looked and saw that the claims that were cited virtually free from interference had been withdrawn and said it makes sense to then apply it to the claims that were at issue.

[00:26:38] Speaker 01:
And then the judge found that the specification then supports giving a definition to free from interference.

[00:26:46] Speaker 01:
It says private listening without interference.

[00:26:48] Speaker 01:
And there's simply no way to draw an objective boundary of what virtually means beyond the statement of prosecution history, which the judge found didn't even apply to the terms that was an issue.

[00:27:00] Speaker 01:
I see my time has expired.

[00:27:01] Speaker 01:
Thank you.

[00:27:10] Speaker 04:
Mr. Flock.

[00:27:11] Speaker 04:
May it please the court, John Flock for Sony on behalf of the interviewees.

[00:27:18] Speaker 04:
My client asked me when we were accused of infringement, what does this term mean?

[00:27:23] Speaker 04:
And we discussed that this court set forward criteria for terms of degree, objective boundaries, reasonable certainty.

[00:27:31] Speaker 04:
We looked in the specification.

[00:27:33] Speaker 04:
And what we see in the specification is simply the term virtually free.

[00:27:38] Speaker 04:
Anything about virtually doesn't exist in this patent specification.

[00:27:41] Speaker 00:
Do you agree that virtually has a plain meaning?

[00:27:44] Speaker 00:
The word.

[00:27:45] Speaker 04:
I agree.

[00:27:45] Speaker 04:
It has a plain meaning.

[00:27:47] Speaker 04:
The issue is,

[00:27:48] Speaker 04:
Does it have a meaning when it modifies a technical term, interference, when you are the person with the ordinary skill and the art trying to build a device, and knowing what's within the scope of the device, what's outside the scope of the device?

[00:28:02] Speaker 00:
Was it your position that without interference was clear?

[00:28:08] Speaker 04:
It's our position, Your Honor, that virtually without interference, there is no way to figure out the separation.

[00:28:17] Speaker 04:
We did not ultimately resolve the issue of what free from interference meant.

[00:28:22] Speaker 04:
And it is something that we have discussed is when something is without interference, free from interference, can there be any interference at all?

[00:28:31] Speaker 04:
And we did discuss that issue.

[00:28:33] Speaker 04:
But we didn't have to resolve that in the context of this, because it is a modifier.

[00:28:39] Speaker 04:
The claim term does not say free from interference.

[00:28:41] Speaker 04:
It says virtually free.

[00:28:42] Speaker 00:
It says substantially free.

[00:28:45] Speaker 00:
That's a term that you as a patent attorney, I guess, are familiar with.

[00:28:49] Speaker 04:
Yes.

[00:28:49] Speaker 04:
We're familiar with both those terms.

[00:28:51] Speaker 04:
I think it would not make a difference.

[00:28:53] Speaker 04:
Because if I'm a designer, how do I know how virtually free it has to be?

[00:29:00] Speaker 04:
The specification has to give you some guidance.

[00:29:03] Speaker 04:
The intrinsic evidence has to give you guidance.

[00:29:05] Speaker 00:
What about the prosecution history?

[00:29:06] Speaker 04:
I completely agree.

[00:29:07] Speaker 04:
The prosecution history certainly can.

[00:29:09] Speaker 04:
I'm not aware of any case from this court

[00:29:12] Speaker 04:
where simply something from the prosecution that's not connected back to some examples, some description, something in the specification that gives you the hook back is enough to give this reasonable certainty of what that would mean.

[00:29:29] Speaker 02:
Can we start with a baseline and say that something is without interference if there's no source of interference?

[00:29:40] Speaker 04:
I would agree with that, Ron.

[00:29:42] Speaker 02:
So then you have that baseline and if a source of interference appears and yet the status remains exactly the same, then it is without interference.

[00:29:55] Speaker 02:
You see what I'm saying?

[00:29:56] Speaker 04:
Yes, Your Honor.

[00:29:56] Speaker 02:
So you can define free from interference or without interference as being exactly the same as the same reception, the same standards, whatever they are, as the status when

[00:30:10] Speaker 02:
there's no source of interference.

[00:30:12] Speaker 02:
So there you go.

[00:30:14] Speaker 02:
As far as all the way over to without interference, virtually has to mean something else.

[00:30:20] Speaker 04:
Yes.

[00:30:20] Speaker 04:
And so, Your Honor, that example of without interference with is hypothetical when you're on some alien planet and so far away from any other transmitter.

[00:30:30] Speaker 02:
Right.

[00:30:30] Speaker 02:
There's no radiation.

[00:30:32] Speaker 04:
So yes.

[00:30:32] Speaker 04:
In that case, it clearly means 909.

[00:30:35] Speaker 04:
Right.

[00:30:38] Speaker 04:
These patents are directed to operating in the real world.

[00:30:41] Speaker 04:
And so in the real world, there are all kinds of signals.

[00:30:44] Speaker 02:
So nothing is ever without interference?

[00:30:47] Speaker 04:
Nothing is ever without signals that could be interfering.

[00:30:51] Speaker 04:
And what the inventions are is intended to address is a way of dealing with all these conflicting signals to separate out the one you want to get.

[00:31:01] Speaker 04:
And it's a well-known thing in CDMA, not invented by this patentee.

[00:31:06] Speaker 04:
that you can have these user codes that help you and say, hey, this is my transmitter.

[00:31:11] Speaker 04:
There's my headphone.

[00:31:12] Speaker 04:
I get to listen to my audio.

[00:31:15] Speaker 04:
The difficulty here is that we have your example.

[00:31:24] Speaker 04:
Then there is free from interference or without interference in the real world where things are happening.

[00:31:30] Speaker 04:
And then I've got to go somewhere else.

[00:31:32] Speaker 04:
I've got to figure out what's virtually free from interference.

[00:31:34] Speaker 00:
What about the fact that the claim is talking about, it's not just saying free from interference.

[00:31:39] Speaker 00:
It's saying, or virtually free from interference.

[00:31:42] Speaker 00:
It's saying, virtually free from interference from device transmitted signal nulls operating in the wireless headphone spectrum.

[00:31:50] Speaker 00:
And the claim itself is directed to headphones, and the patent talks about how you want to have private listening.

[00:31:58] Speaker 00:
Why doesn't that tell you that interference is talking about

[00:32:02] Speaker 00:
not having eavesdropping or having private listening.

[00:32:05] Speaker 04:
Because, rather, there's some other fact here.

[00:32:07] Speaker 04:
And one of them is that the patent says it operates in a certain band.

[00:32:11] Speaker 04:
And that's shown in column two, line two, 357, 285, appendix 101.

[00:32:20] Speaker 04:
And what it says is here is an exemplary band in which we operate.

[00:32:23] Speaker 04:
It's known as the Industrial, Scientific, and Medical Band.

[00:32:28] Speaker 04:
In that band, there's finding a fact

[00:32:30] Speaker 00:
What are you, I'm sorry, which, can you tell me, I'm on the page you're on and I'm in the column, but could you tell me the lines?

[00:32:37] Speaker 04:
Uh, 55 through 57.

[00:32:38] Speaker 00:
Thank you.

[00:32:40] Speaker 04:
And so that, that is a well-known band.

[00:32:42] Speaker 04:
It has a lot of stuff in like cordless phones.

[00:32:45] Speaker 04:
It has microwave ovens and that information comes from a finding of fact that was uncontested.

[00:32:52] Speaker 04:
Um, and it's at appendix 74 that it includes devices such as those things, cordless phones, wifi devices.

[00:33:01] Speaker 04:
And Wi-Fi devices might be my computer, your computer, sending emails, browsing for information about the weather and whether it's going to be a blizzard tomorrow.

[00:33:12] Speaker 04:
Those are not audio signals.

[00:33:14] Speaker 04:
Those are electrical signals that can cause interference.

[00:33:17] Speaker 00:
I hear what you're saying, but what about the reference to private listening without interference?

[00:33:21] Speaker 00:
So you're not concerned about emails.

[00:33:24] Speaker 00:
You're concerned about making sure that the user of the headphone has private listening.

[00:33:28] Speaker 00:
I'm looking at line 65 of the same quote.

[00:33:30] Speaker 04:
No, and I understand the runner.

[00:33:32] Speaker 04:
But the interference can come from other kinds of devices that are not audio devices.

[00:33:37] Speaker 04:
It can come from when you are sending over the same frequency band.

[00:33:41] Speaker 00:
I think you're not hearing my question.

[00:33:43] Speaker 00:
My question is why wouldn't it just be the audio signals given that this is an audio system?

[00:33:50] Speaker 00:
Because an audio system... No, I understand technically, but I'm talking about the meaning of the word when you're saying virtually free from interference.

[00:34:00] Speaker 00:
Why wouldn't one of ordinary scale in the art, with the references to private listening and the specification and the references to no eavesdropping in the prosecution history, then understand what we're talking about with interference here is the ability to not have to hear what somebody else is hearing on their wireless headphones set?

[00:34:20] Speaker 04:
So I understand that not hearing someone else's conversation would be one of the intended benefits of this invention.

[00:34:30] Speaker 04:
But the invention is described in some technical terms in order to make the device.

[00:34:34] Speaker 04:
And that he also deals with these other kinds of devices.

[00:34:37] Speaker 02:
What we would call static.

[00:34:39] Speaker 04:
Yes, or noise.

[00:34:40] Speaker 04:
And specifically references that in the same patent, column three, line 12 through 18.

[00:34:49] Speaker 04:
And the first part of that says, hey, there can be noise from the code words that come from my invention, the transmitter,

[00:34:58] Speaker 04:
to the headset, if someone else has got one, there could be noise from those signals.

[00:35:02] Speaker 04:
And then it goes on to say, this may also be true for other device transmitted wireless signals operating in that spectrum.

[00:35:10] Speaker 04:
It doesn't say audio devices.

[00:35:13] Speaker 04:
It says other devices.

[00:35:15] Speaker 04:
And we know from the finding the fact that there are other devices that are not audio devices.

[00:35:20] Speaker 04:
So one of ordinary skill in the art, seeing all of this intrinsic evidence, the specification, would have no reason

[00:35:28] Speaker 04:
to limit this to eavesdropping.

[00:35:31] Speaker 04:
Another point I want to make is one of ordinary skill in the art note, eavesdropping simply means not having undesired artifacts from other signals.

[00:35:40] Speaker 04:
That is something actually that appellant submitted to the patent office, and it's in our brief at page 23, note 5, that in prosecution, they told the patent office it's well known

[00:35:56] Speaker 04:
by those of ordinary skill in the art that interference means avoiding producing undesired artifacts.

[00:36:04] Speaker 02:
Was there any discussion anywhere that virtually might mean the same as noticeably?

[00:36:10] Speaker 02:
That is?

[00:36:11] Speaker 02:
No, Your Honor.

[00:36:11] Speaker 04:
Okay.

[00:36:12] Speaker 04:
There's no discussion.

[00:36:15] Speaker 04:
I understand the point you're making.

[00:36:16] Speaker 04:
That is a point that is trying to be made by appellant.

[00:36:19] Speaker 04:
They're trying to actually, they're reading words in and they're putting stuff, trying to put stuff in the

[00:36:25] Speaker 04:
specification that wasn't there.

[00:36:26] Speaker 04:
This, like, chart, the interference diagram, that's not in the specification.

[00:36:31] Speaker 04:
One of ordinary skill in the order, I believe, would have a very difficult time coming up with that.

[00:36:37] Speaker 04:
It's a tortured, post-hoc kind of reasoning.

[00:36:40] Speaker 03:
OK.

[00:36:40] Speaker 03:
You've exceeded your time.

[00:36:42] Speaker 03:
Thank you.

[00:36:42] Speaker 03:
Thank you, Ronald.

[00:36:51] Speaker 03:
We'll give you three minutes because the other side preceded their time.

[00:36:54] Speaker 03:
I appreciate that.

[00:36:55] Speaker 03:
Thank you.

[00:36:56] Speaker 05:
I'd like to cover one part of the intrinsic evidence that I didn't mention previously.

[00:37:04] Speaker 05:
And that's where the patent examiner, during prosecution of a related child application in this case, demonstrated his own understanding of the claim term virtually free from interference.

[00:37:18] Speaker 05:
And I would invite the panel

[00:37:19] Speaker 05:
to look at joint appendix 15962, and there the patent examiner is using, applying the claim term virtually free from interference.

[00:37:43] Speaker 05:
He uses it three times, puts it in quotes each time, and then even defined the term.

[00:37:50] Speaker 05:
He described the use of coded transmissions in CDMA.

[00:37:55] Speaker 05:
He described how the coding of the transmissions facilitates the separation of other transmissions from the user's separation.

[00:38:04] Speaker 05:
And then he wrote IE, virtually free from interference.

[00:38:11] Speaker 05:
As this court held in the recent Sonics case, and we made that case of record under Rule 28J here,

[00:38:17] Speaker 05:
A patent examiner's demonstrated understanding of a claim term provides evidence that a skilled artisan would understand the claim term.

[00:38:27] Speaker 05:
So nothing better shows that it was error here for the ALJ to deem the intrinsic evidence in this case irrelevant.

[00:38:35] Speaker 00:
Now, didn't the ALJ look at this and say, in addition to it being irrelevant, say something along the lines of, but this doesn't even

[00:38:44] Speaker 00:
equate virtually free from interference to eavesdropping, right?

[00:38:48] Speaker 00:
And wasn't sure how those two related.

[00:38:50] Speaker 05:
I'm not sure that the ALJ did that.

[00:38:53] Speaker 05:
I'm not sure that he even treated this passage that we're citing to here.

[00:38:57] Speaker 05:
I'm not sure that he even did.

[00:38:59] Speaker 00:
I'm really misremembering and thinking of the red brief.

[00:39:01] Speaker 00:
But in any event, how do you respond to that argument?

[00:39:05] Speaker 00:
I mean, how does this relate to eavesdropping?

[00:39:08] Speaker 05:
It's, again, fully consistent with a situation where eavesdropping cannot occur

[00:39:13] Speaker 03:
because the examiner is recognizing that... Can I just ask you to just... Can you use a word other than consistent with?

[00:39:19] Speaker 03:
Because that's the term you used in your briefs and that really didn't inform me.

[00:39:23] Speaker 03:
I mean something that's a difference between something being the same as or something being consistent with is a term that has a lot of wiggle room.

[00:39:31] Speaker 03:
And I, you know, I don't want to get involved in another term into this dispute.

[00:39:35] Speaker 03:
Could you use something other... Explain what you mean by consistent with?

[00:39:38] Speaker 05:
Yes.

[00:39:39] Speaker 05:
A person of ordinary skill.

[00:39:41] Speaker 05:
Virtually free from difference.

[00:39:44] Speaker 05:
A person of ordinary skill in this art, wireless communications, familiar with CDMA, would understand that when you're able to keep user transmissions separate from each other using coded transmissions as the examiner recognized, i.e.

[00:40:03] Speaker 05:
virtually free from interference, that that prevents eavesdropping.

[00:40:06] Speaker 05:
And that's why CDMA is well understood and well known to prevent eavesdropping.

[00:40:11] Speaker 05:
That's the reason.

[00:40:14] Speaker 05:
Thank you.