[00:00:43] Speaker 05:
We will hear argument next in number 161729 Rembrandt Wireless versus Samsung Electronics.

[00:00:54] Speaker 05:
As soon as everybody's settled, why don't you come up and begin.

[00:01:24] Speaker 02:
May it please the court?

[00:01:26] Speaker 02:
The first and primary, I submit, issue in this case is the issue of claim construction.

[00:01:32] Speaker 02:
The relevant claim term is different types of modulation methods.

[00:01:37] Speaker 02:
The court construed that to mean different types of families with an IE

[00:01:53] Speaker 02:
phrase following it that I'll talk about.

[00:01:56] Speaker 02:
The Samsung proposed construction is that they are modulation methods, which are incompatible.

[00:02:02] Speaker 02:
As to why first the court was wrong, this was a statement 14 years after filing.

[00:02:10] Speaker 02:
Not that that's controlling, but it was a statement that the court characterized as lexicography under cases like in Ray Paulson,

[00:02:19] Speaker 02:
Lexicography to be effective must define a term with reasonable clarity, deliberateness, and precision.

[00:02:26] Speaker 02:
And I submit that didn't happen here.

[00:02:28] Speaker 02:
The proof that it didn't happen here.

[00:02:30] Speaker 05:
Can I ask, it seems to me that there are a number of different kinds of things that might go under the heading of lexicography, which maybe have different standards.

[00:02:41] Speaker 05:
One is when the claim language does have a independently clear ordinary meaning or a

[00:02:49] Speaker 05:
specification, defined meaning, and then you need a particularly clear form of lexicography, call it redefinition, to overcome that.

[00:03:00] Speaker 05:
When you add claim language or change the claim language and that claim language presents a real question of what it means, then you might call drawing on the prosecution history and statements in it lexicography, but it seems to me you're not drawing on it with this extra high burden of

[00:03:18] Speaker 05:
super clear.

[00:03:20] Speaker 05:
And don't we have the latter situation?

[00:03:24] Speaker 05:
They've changed the language in some of the claims to not just say different methods, but different types of methods.

[00:03:30] Speaker 05:
And they then explained why they were doing that.

[00:03:33] Speaker 02:
Well, the problem with that is it didn't clarify anything under any standard.

[00:03:38] Speaker 02:
It substituted a word which has no occurrence whatsoever in the specification or claims.

[00:03:46] Speaker 02:
Uh, it was not clear.

[00:03:47] Speaker 02:
The fact that it was not clear became evident.

[00:03:50] Speaker 02:
You don't have an indefiniteness challenge.

[00:03:52] Speaker 02:
We're not saying that it's indefiniteness.

[00:03:54] Speaker 02:
I think we're, we're saying it's the wrong construction.

[00:03:56] Speaker 02:
And I'll say why I believe the other one is right at a moment, but what it did was that it enabled Rembrandt to come in and argue to the jury a further meaning as if inserting limitations into the claims that it has to be, uh, modulation methods, which are, uh, entirely non overlapping.

[00:04:15] Speaker 02:
There's nothing like that in the specification.

[00:04:18] Speaker 02:
And in fact, the specification teaches that the methods can be overlapping because it discloses examples that are overlapping.

[00:04:26] Speaker 02:
They're all phased in the specification.

[00:04:28] Speaker 02:
So that if that definition were correct, it would read effectively most of the examples given out.

[00:04:34] Speaker 02:
There's also the overlap.

[00:04:36] Speaker 01:
Aren't you allowed to, though, during prosecution, amend your claims to only claim certain parts?

[00:04:42] Speaker 01:
of the scope of the specification?

[00:04:45] Speaker 02:
I would submit that that has to be something that's clearly done.

[00:04:48] Speaker 02:
That would be a disclaimer.

[00:04:49] Speaker 02:
The court didn't find disclaimer.

[00:04:52] Speaker 02:
There's some argument back and forth in the briefs about disclaimer, but then the disclaimer cases say that a disclaimer has to be clear, unmistakable, words of manifest exclusion or restriction.

[00:05:05] Speaker 01:
Well, going back to Judge Toronto's point, the situation we have here is where certain language was added to the claims.

[00:05:12] Speaker 01:
And at the exact same time, that language was given meaning in the comments given to the patent office.

[00:05:19] Speaker 01:
And so under cases like phytronics, which say that you can be a lexicographer in the prosecution history, why would that not be a definition of the claim term?

[00:05:31] Speaker 02:
Again, because the definition has to be reasonably clear.

[00:05:36] Speaker 02:
precise, deliberate.

[00:05:38] Speaker 02:
It doesn't address what the patent talks about at all, which repeatedly is incompatibility.

[00:05:45] Speaker 02:
Incompatibility is the purpose of the patent.

[00:05:48] Speaker 02:
It's described ultimately as one of the objects.

[00:05:52] Speaker 02:
It's mentioned seven, eight, nine times earlier in the spec.

[00:05:55] Speaker 04:
When we go to the remarks section in the Office Action Response, what more should the applicant have said that would

[00:06:05] Speaker 04:
satisfy you that they were being very clear about their intentions of what it means to be a different type of modulation?

[00:06:13] Speaker 02:
Well, I submit if they were going to have that be definitional... Assuming this isn't good enough, what would make it good enough?

[00:06:21] Speaker 02:
If that were going to be definitional, they should have explained what they later argued, which is that families don't have any overlapping characteristics.

[00:06:31] Speaker 02:
is not explained.

[00:06:32] Speaker 02:
It's inconsistent with claims in the patent.

[00:06:34] Speaker 02:
Claims 26 and 43 specifically are a situation where the different modulation methods both can include phase.

[00:06:42] Speaker 02:
So that it's further inconsistent with the claims as well as examples that are given in the patent.

[00:06:49] Speaker 02:
It doesn't address the purpose of the invention.

[00:06:51] Speaker 02:
And the specification itself makes clear what different modulation methods are over and over again.

[00:06:59] Speaker 02:
It makes clear that they're incompatible.

[00:07:01] Speaker 05:
Am I remembering correctly that once the claim construction was adopted, at that time, there was no talk of the notion of no overlapping characteristics being used to modulate.

[00:07:14] Speaker 05:
That came up in the trial under the heading of applying

[00:07:20] Speaker 05:
the already adopted claim construction, and you didn't at any point then say, we need a new claim construction.

[00:07:28] Speaker 02:
Your honor, it came up first in the context of infringement testimony, having nothing to do with whether the prior art satisfied any definition.

[00:07:37] Speaker 05:
But the claim really ought to have the same meaning for both infringement and validity, right?

[00:07:42] Speaker 02:
It should.

[00:07:44] Speaker 02:
If I can address that, the way that it was utilized, the infringement expert, Dr. Morrow,

[00:07:49] Speaker 02:
testified that the accused Bluetooth products used modulation methods, which were non-overlapping and therefore in different families.

[00:08:02] Speaker 02:
We have no problem with that.

[00:08:04] Speaker 02:
We didn't mean the new construction.

[00:08:05] Speaker 02:
It's a non sequitur to conclude from that, as is now in the briefs, that the prior art, because it has overlapping methods, can't be in different families.

[00:08:16] Speaker 02:
They still can be in different families.

[00:08:18] Speaker 02:
And the witness testified, Dr. Goodman, for Samsung, that they are in different families.

[00:08:24] Speaker 02:
We had no reason to ask for further construction at that point because we didn't know that then, at the end of the trial and in the briefing, the further argument would be made that different families can only have non-overlapping characteristics.

[00:08:38] Speaker 02:
The testimony by Dr. Morrow on infringement has got nothing to do with whether or not the modulation methods in the prior art boar patent, which are overlapping, still can be in different families.

[00:08:50] Speaker 02:
And in fact, Dr. Goodman testified without contradiction that they are.

[00:08:54] Speaker 02:
He testified that they're in different families, explained why they're in different families.

[00:08:59] Speaker 02:
He wasn't cross-examined about that.

[00:09:01] Speaker 02:
And no witness got up to testify for Rembrandt, which is very significant here,

[00:09:05] Speaker 02:
It sets this case apart from cases like Apple versus Samsung.

[00:09:09] Speaker 02:
No witness got up, no evidence was put in on behalf of Rembrandt on any of the five propositions they raised in their brief.

[00:09:16] Speaker 02:
They didn't put in evidence to say that BOR doesn't work because it doesn't have non-overlapping methods and therefore fails the construction.

[00:09:25] Speaker 02:
And on the other things they raised, secondary considerations, there's no nexus, they didn't put any evidence of nexus in.

[00:09:32] Speaker 02:
on the suiac referencing just suggesting that you should have the address in the header uh... doctor goodman testified about that they didn't put in any evidence they didn't cross examine him about it all they asked him is whether or not it was cited to the patent office which was there's no contrary evidence in the record on the issue of uh... bore and reversion dr goodman talk talk testified about how reversion is disclosed inbore for purposes of the two claims in the five eighty patent and he also

[00:10:02] Speaker 02:
relied on the boar patent, which of course itself extensively describes that, particularly in column seven.

[00:10:08] Speaker 02:
That was uncontradicted.

[00:10:10] Speaker 02:
There's no counter testimony or evidence from Rembrandt.

[00:10:12] Speaker 02:
They didn't put on a witness.

[00:10:14] Speaker 02:
And finally, the last point that they raised, the upender teachaway, which may sound like there's fact issues, but upender says what it says.

[00:10:23] Speaker 02:
The witness for Samsung explained that upender is not a reference which

[00:10:29] Speaker 02:
criticizes, says it's an inferior option, like in the in-ray mooted case.

[00:10:35] Speaker 02:
This is a substantial evidence review, though, right?

[00:10:37] Speaker 04:
You have evidence.

[00:10:39] Speaker 04:
Your expert says one thing.

[00:10:41] Speaker 04:
The other side has an expert that says another thing.

[00:10:44] Speaker 04:
They don't.

[00:10:44] Speaker 04:
Upender does, at a couple different places, say some negative things about the polling embodiment.

[00:10:54] Speaker 02:
Well, actually, what Upender says at appendix page

[00:10:58] Speaker 02:
A 2428 is that polling is one of the more popular protocols for embedded systems because of its simplicity and determinacy.

[00:11:07] Speaker 02:
And then it says at the end, in the summary, this article's discussion of the special considerations in media access protocol strengths and weaknesses should allow you to select the best protocol to match your needs.

[00:11:19] Speaker 02:
That is not criticism.

[00:11:20] Speaker 02:
It's not discrediting.

[00:11:22] Speaker 02:
It's not calling a natural born killer from Satan.

[00:11:27] Speaker 02:
like in the Allergan case.

[00:11:29] Speaker 02:
And I submit under this court's precedent as a matter of law, it can't be a teacher right.

[00:11:33] Speaker 04:
It also says unacceptable.

[00:11:34] Speaker 04:
It also says poor efficiency.

[00:11:36] Speaker 04:
And those were the things that the other side's expert was pointing to.

[00:11:40] Speaker 04:
So it's possible to infer that the jury read those references describing polling by upender and took that into account in trying to figure out whether a polling embodiment would be something that

[00:11:55] Speaker 04:
one skill in the art would use.

[00:11:57] Speaker 02:
I don't think that's appropriate in this case, Your Honor.

[00:11:59] Speaker 02:
I submit that under this court's precedent, that would not be substantial evidence to support the verdict because this court has said that references in a teach away context with that kind of language, talking about options, pluses and minuses that don't call something inferior, don't criticize, discredit or otherwise,

[00:12:19] Speaker 02:
or otherwise discourage investigation.

[00:12:21] Speaker 02:
Upender says try them all, consider them all.

[00:12:24] Speaker 02:
I would say as a matter of law, this court's precedents say that can't be a teachaway and therefore it can't be substantial evidence to support the jury's verdict.

[00:12:33] Speaker 02:
Could you get to the marking issue?

[00:12:34] Speaker 02:
That's the novel legal issue that we have to wrestle with.

[00:12:39] Speaker 02:
It is.

[00:12:39] Speaker 02:
If I could just say one thing first, Your Honor, because I know at least two of Your Honors were involved in the Avid case having to do with harmless error.

[00:12:48] Speaker 02:
And if there's a moment, I would like to address later why the construction would not be harmless error because of the reason I mentioned under the AVID standard.

[00:12:58] Speaker 02:
None of the other issues raised by Rembrandt is supported by substantial evidence from Rembrandt because they didn't put on a case with witnesses or evidence that would support the points in their brief.

[00:13:09] Speaker 05:
And the liability question you, at least in this brief a couple of times, I think I checked.

[00:13:16] Speaker 05:
referred to a new trial request, as well as substantial, as well as the Jamolal and you made both motions on the liability side of the first trial.

[00:13:26] Speaker 02:
Yes.

[00:13:27] Speaker 02:
And I submit that AVID supports both a new trial because all of the evidence doesn't support the other bases on which the judgment could be affirmed of non-obviousness.

[00:13:39] Speaker 02:
But even more of that, all of the evidence on these issues is the evidence from Samsung going the other way.

[00:13:46] Speaker 02:
There is no evidence to support any of the points raised by Rembrandt.

[00:13:50] Speaker 02:
And therefore, under the footnote in AVID, this would be an appropriate case like Calcar versus Honda, where you should reverse the instruction and actually find that the prima facie case is unrebutted.

[00:14:04] Speaker 02:
The prima facie case of Samsung is unrebutted.

[00:14:07] Speaker 02:
There was a need to rebut like in Novo Nordisk.

[00:14:10] Speaker 02:
None of that was done by Rembrandt.

[00:14:12] Speaker 02:
They didn't put on a case.

[00:14:14] Speaker 02:
This is an appropriate case to reverse and find out.

[00:14:17] Speaker 01:
Now, Marking.

[00:14:18] Speaker 01:
I would like to ask you just a preliminary question.

[00:14:21] Speaker 01:
If we were to reverse on the issue of disclaimer and marking, would that require a remand for a factual determination of whether the licensee practiced claim 40?

[00:14:38] Speaker 02:
Your Honor, no, because this is a situation where the court below on the summary judgment motion found, and this is in the decision on summary judgment, that, quote, plaintiff concedes zone sold unmarked products that implement the 802.11 standard as they relate the claim 40.

[00:15:00] Speaker 02:
That's part of the decision.

[00:15:02] Speaker 02:
It was never contested by Rembrandt.

[00:15:04] Speaker 02:
I know that there's some stuff in the brief now.

[00:15:06] Speaker 05:
Does that mean?

[00:15:07] Speaker 05:
That language would have been crystal clear for current purposes if it had said they don't contest that the Joan product is covered by claim 40.

[00:15:22] Speaker 05:
What is this business about?

[00:15:25] Speaker 05:
The Wi-Fi standard as it relates to claim 40.

[00:15:29] Speaker 02:
I submit, Your Honor, it is saying that.

[00:15:33] Speaker 02:
Plaintiff can see zoned sold products as they relate to Claim 40.

[00:15:37] Speaker 02:
That may be awkward language.

[00:15:39] Speaker 05:
But they practice the Wi-Fi standard.

[00:15:41] Speaker 02:
Well, as it relates to Claim 40.

[00:15:44] Speaker 02:
I believe that that is

[00:15:45] Speaker 02:
The court saying there's no fact issue that claim 40 was used in products marketed by zone and the court goes on to the issue of law.

[00:15:55] Speaker 02:
I don't think that despite the language, I think that's clear.

[00:15:57] Speaker 04:
The problem with that sentence is it cites to the plaintiff's opposition at page one.

[00:16:04] Speaker 04:
And then when you go look at the opposition at page one, at A3940, I don't see anything remotely looking like concession that

[00:16:15] Speaker 04:
this standard is practicing Claim 40.

[00:16:21] Speaker 02:
I don't know what else to say, Your Honor, except for the fact that the judge made findings in connection with the summary judgment decision that we have to live with.

[00:16:30] Speaker 02:
The court found, I submit this language says, the court found that Claim 40 is used.

[00:16:35] Speaker 01:
But didn't at trial then later there was evidence going the other way suggesting that it was not being used, right?

[00:16:42] Speaker 02:
uh... no because no there wasn't your honor because because of the summary judgment motion we were not allowed to put in any evidence on claim forty.

[00:16:50] Speaker 01:
I understand but I think your adversary tried to put in evidence on it and whether zone practiced claim forty.

[00:16:56] Speaker 01:
I'm not saying that you were required to do so.

[00:16:59] Speaker 01:
I'm saying I think your adversary put in evidence saying that zone did not practice claim forty.

[00:17:05] Speaker 01:
I don't have that in mind.

[00:17:06] Speaker 01:
I thought that was cited in the brief.

[00:17:07] Speaker 05:
They had two of their witnesses, Wood and somebody else who made

[00:17:12] Speaker 05:
statements that none of Joan's products practiced the patents without limitation to claim.

[00:17:21] Speaker 05:
And then in the JMO, the oral JMO, rule 50A colloquy, they said no evidence.

[00:17:28] Speaker 05:
And you said that we don't even think this is here because you took care of it on summary judgment.

[00:17:32] Speaker 05:
And Judge Gilstrap said, well, in light of that... It's preserved, effectively.

[00:17:36] Speaker 05:
Well, he didn't say it was preserved.

[00:17:38] Speaker 02:
But he understood that we intended to appeal that.

[00:17:40] Speaker 02:
I submit, Your Honor, that the summary judgment motion is what we have to deal with.

[00:17:44] Speaker 02:
That's what addressed claim 40.

[00:17:46] Speaker 02:
The motion was decided against us.

[00:17:49] Speaker 02:
I think we would have gotten ourselves in a lot of hot water if we had tried to pursue claim 40 in the trial.

[00:17:55] Speaker 05:
Just to be clear, you didn't actually ask to put on evidence about

[00:18:01] Speaker 05:
Joan and claim 40 and get told, what are you doing?

[00:18:05] Speaker 05:
This is settled.

[00:18:06] Speaker 02:
I don't remember anything like that.

[00:18:09] Speaker 02:
And frankly, Your Honor, I would have considered that inappropriate to do in light of the summary judgment motion.

[00:18:14] Speaker 02:
That ruling had been made.

[00:18:15] Speaker 02:
We didn't like it, but we needed to live with it.

[00:18:18] Speaker 02:
So we told the court we intended to appeal that ruling.

[00:18:23] Speaker 02:
We considered it to be a ruling on an issue of law, which the magistrate's decision is.

[00:18:28] Speaker 02:
It's a ruling of law.

[00:18:29] Speaker 02:
He decides.

[00:18:30] Speaker 02:
that it's appropriate to withdraw the claim and that that removes the marking problem.

[00:18:37] Speaker 02:
And we think that that's what the issue, perhaps a novel issue, for this court is.

[00:18:42] Speaker 02:
Whether a disclaimer like that, which it's perfectly OK if the patentee disclaims for the purpose of its own self-interest, it's a different matter if you disclaim a claim to take rights away from the public.

[00:18:57] Speaker 02:
I don't think you can disclaim a claim and avoid an inequitable conduct charge.

[00:19:01] Speaker 02:
That's Carney and Trecker.

[00:19:02] Speaker 02:
I don't think you can disclaim a claim and avoid counterclaims.

[00:19:06] Speaker 05:
Trying to think about how to interpret the marking statute for this disclaimer situation, I keep trying to think of the scenario in which the absence of a marking

[00:19:23] Speaker 05:
of a, is generate some kind of reliance interest of any sort that, to which disclaimer would or would not be relevant.

[00:19:37] Speaker 05:
Explain why when there has later been a disclaimer, the public is harmed by the absence of marking at the earlier time that should have occurred.

[00:19:51] Speaker 05:
even though that claim's not asserted, even though the claim's been disclaimed in a way that the marking statute is designed to get at.

[00:19:59] Speaker 02:
I believe, Your Honor, that the marking statute is designed to give the public a right due to the failure of the patentee to advise the public in the way demanded.

[00:20:11] Speaker 02:
The public owns that right by virtue of the statute and to enable all who violate the marking statute

[00:20:19] Speaker 02:
to eradicate the policy of the marking statute by eight days before trial, putting in a disclaimer makes a mockery out of the marking statute.

[00:20:27] Speaker 05:
And that's even as to products quite, quite different from the product that should have been marked that wasn't because the different claims of the patent can cover quite different things.

[00:20:42] Speaker 02:
I submit that's what the statute calls for.

[00:20:45] Speaker 02:
And if Congress thought that something different should be accomplished,

[00:20:49] Speaker 02:
They should have written a different statute.

[00:20:50] Speaker 02:
I think the statute requires that.

[00:20:52] Speaker 02:
The public in any forum is entitled to rely on it.

[00:20:57] Speaker 02:
And like trying to eradicate inequitable conduct, six years after not marking and eight days before trial, it would make a mockery of the statute to allow a disclaimer to do that.

[00:21:08] Speaker 05:
I don't think we have this, but if I remember right, exhibit 10 of Weinstein's expert report

[00:21:19] Speaker 05:
It sets out all of the Samsung sales at issue that generated the ultimate damages figure.

[00:21:27] Speaker 05:
Do we, if there was a marketing problem and if I realized you might have different views about this, um, one took the attributed five and a half cents or so per unit figure and just multiplied it by the pre March 15th, 2013 number of sales and subtracted that out.

[00:21:46] Speaker 05:
That would cure.

[00:21:48] Speaker 05:
the marking problem here, right?

[00:21:53] Speaker 02:
If I follow your honor... There were the what?

[00:21:56] Speaker 05:
290 million sales here, right?

[00:21:58] Speaker 05:
And the attributed and the $5.7 million in damages, and you can figure that it's about 5.4 cents per unit.

[00:22:07] Speaker 05:
And if the record said there were 47 million units sold before March 15, 2013, which is I think when the complaint was filed,

[00:22:14] Speaker 05:
then you'd multiply those two things, subtract it out, and the marking issue would be over.

[00:22:19] Speaker 02:
I believe, as I'm following you, Your Honor, I think that's right.

[00:22:22] Speaker 02:
The idea would be to take the marking sales from the appropriate period, apply the determined royalty to that.

[00:22:30] Speaker 02:
That's the amount of money that's attributable to the missed marking, subtract that out.

[00:22:35] Speaker 02:
But for the other problems with damages, which I would love to have some time to address.

[00:22:40] Speaker 01:
I wanted to ask you.

[00:22:42] Speaker 01:
I saw maybe a suggestion that at some point claim 40 had been asserted against your client in this litigation.

[00:22:49] Speaker 01:
Am I wrong about that?

[00:22:51] Speaker 02:
It had been asserted.

[00:22:52] Speaker 02:
It was in the case.

[00:22:53] Speaker 02:
They pulled it out eight days before trial.

[00:22:56] Speaker 02:
That's part of the problem of this is the idea that this could persist as a violation of the statute until eight days before trial.

[00:23:04] Speaker 02:
And then with a piece of paper, don't pay attention to that.

[00:23:07] Speaker 02:
It's gone.

[00:23:08] Speaker 04:
There's a second lurking issue with the marking question that I don't think the district court reached.

[00:23:15] Speaker 04:
The district court issued its summary judgment order, denial based on disclaimer.

[00:23:21] Speaker 04:
But then there's also this, should the effect of the failure to mark be devoted to just a claim or a claim by claim basis or should it be a full patent wide basis?

[00:23:34] Speaker 04:
I know

[00:23:35] Speaker 04:
the other side made that argument that it ought to be claim by claim, your side... We believe it affects the patent.

[00:23:44] Speaker 04:
It affects the whole patent.

[00:23:45] Speaker 04:
Again, by analogy to... But the district court didn't rule on that, and so it's unclear to me whether that issue would need to go back.

[00:23:59] Speaker 02:
Probably I don't believe the district court having done what he did needed to reach that because the ruling that he made took the whole marking issue out of the case.

[00:24:09] Speaker 02:
And therefore the extent of the impact and remedy didn't need to be addressed.

[00:24:16] Speaker 02:
So if you find, as we submit you should, that there was a marking violation not cured by disclaimer,

[00:24:22] Speaker 02:
It would need to go back.

[00:24:23] Speaker 02:
It would also need to be determined what the monetary impact of that is and how you calculate that in relation to the patent claim.

[00:24:30] Speaker 05:
And if I remember right, there's at least in one area some precedent, maybe you can clarify, that distinguishes claims within a patent for marking purposes and what's asserted.

[00:24:45] Speaker 05:
I'm thinking of Hanson and Crown packaging, where method claims are ordinarily not

[00:24:52] Speaker 05:
don't generate a marking requirement, but they do if there are system claims in the same patent.

[00:24:59] Speaker 05:
But Hanson and Crown packaging, I think, say something like, but only the method claims are asserted here, so we don't need to worry about marking.

[00:25:09] Speaker 05:
That's a way of saying,

[00:25:11] Speaker 05:
maybe you do look inside a single patent sometimes for marking purposes to distinguish claims.

[00:25:17] Speaker 02:
Well certainly I think you have to do that to see what was asserted, whether the asserted claims are product claims that would invoke the requirement or method claims that might not.

[00:25:26] Speaker 02:
I remember precedent like that.

[00:25:29] Speaker 02:
I can't quote what it says, but I know there's precedent of that kind.

[00:25:33] Speaker 01:
So your point

[00:25:34] Speaker 01:
as I understand it, is that in situations like that, that's a situation where the marketing statute doesn't even apply because all the claims asserted were directed to method claims.

[00:25:43] Speaker 02:
No, I'm not sure about that because I think the same kinds of cases that Your Honor is referring to talk about situations when there is a mix of method and apparatus claims.

[00:25:55] Speaker 02:
And I can't tell you as I stand here what the impact in those cases is of the mix of claims.

[00:26:02] Speaker 02:
I just don't have that in mind.

[00:26:05] Speaker 02:
So I just thank you, Your Honor.

[00:26:07] Speaker 02:
We obviously have serious damages issues.

[00:26:09] Speaker 02:
I'll leave that for the briefing.

[00:26:13] Speaker 05:
We will restore, at least for current purposes, three minutes.

[00:26:18] Speaker 05:
Thank you.

[00:26:18] Speaker 05:
I appreciate that.

[00:26:26] Speaker 03:
Mr. Heim?

[00:26:27] Speaker 03:
May it please the Court?

[00:26:29] Speaker 03:
There was substantial evidence to support the jury's verdict in this case on both the issues of non-obviousness and on damages.

[00:26:37] Speaker 03:
With respect to the non-obviousness issue, there were four separate bases that distinguished the primary reference for that were central to the case.

[00:26:47] Speaker 05:
And just to be clear, there was a general verdict only on, so we don't know which bases the jury adopted so that, for example, if

[00:26:59] Speaker 05:
The claim construction were set aside.

[00:27:04] Speaker 05:
We couldn't just affirm because the jury might have latched onto that particular basis in deciding what board did or didn't teach and not the other basis.

[00:27:18] Speaker 03:
That's exactly correct, Your Honor.

[00:27:20] Speaker 03:
We have what Apple versus Samsung referred to as a black box verdict.

[00:27:26] Speaker 03:
We have a general verdict on the issue of obviousness.

[00:27:29] Speaker 03:
in our favor.

[00:27:31] Speaker 03:
So under the recent in-bank ruling, we presume all facts in our favor.

[00:27:37] Speaker 03:
And there were facts, substantial evidence to support four different outcomes that would have resulted in non-obviousness of these claims.

[00:27:46] Speaker 03:
The first one that applied to all the claims was the master slave issue.

[00:27:50] Speaker 03:
The principal reference for did not have a master slave, although their expert at one point in time actually suggested

[00:27:57] Speaker 03:
that it did, and he lost all credibility, quite frankly, in the case.

[00:28:03] Speaker 03:
He took the position at 1615, 1651, 1653, and at 1695 that Boer was actually a master-slave system.

[00:28:14] Speaker 03:
He was then crossed on that very issue, and he conceded that it wasn't.

[00:28:18] Speaker 03:
At 1651 through 1654, he acknowledged that it was a CSMA slash CA protocol that was used to control access to the network.

[00:28:29] Speaker 03:
The reference he relied on for his motivation was the upender reference.

[00:28:33] Speaker 03:
Upender teaches a way, and it undermines the motivation to combine and it teaches a way in ways that are very clear.

[00:28:41] Speaker 05:
It says... As a doctrinal point, am I right that those are actually two different things?

[00:28:48] Speaker 05:
That is, a jury could find, I don't see enough here to persuade me that

[00:28:58] Speaker 05:
there's a motivation to combine without really asking a teaching away question.

[00:29:02] Speaker 05:
That teaching away is about the evidentiary basis for upsetting and otherwise compelled inference of a motivation to combine.

[00:29:13] Speaker 03:
I agree completely, Your Honor.

[00:29:14] Speaker 03:
They are two different issues and the jury was instructed on those two different issues in this case.

[00:29:20] Speaker 03:
And the teachings of Upender impact both of those.

[00:29:24] Speaker 03:
What Upender says is that

[00:29:26] Speaker 03:
master slave is unacceptable.

[00:29:29] Speaker 03:
If that's not discouraging, if that's not a disparagement, I don't know what is.

[00:29:33] Speaker 03:
It says it's inefficient.

[00:29:34] Speaker 05:
What he quoted from Allergan is worse than that.

[00:29:38] Speaker 03:
Well, let's look at the Apple Samsung case.

[00:29:41] Speaker 03:
Let's look at the Spectralytics case.

[00:29:43] Speaker 03:
There are other cases that are in this same sort of situation.

[00:29:47] Speaker 03:
But we have it's unacceptable, it's inefficient, it is

[00:29:55] Speaker 03:
inflexible in advanced situations, and that appears at 2429, the first two, 2433 at the third.

[00:30:02] Speaker 03:
There is a table at 2434 that actually compares the master slave or polling with the CSMA slash CA.

[00:30:12] Speaker 03:
CSMA CA, which is what Bohr uses, has got an up arrow.

[00:30:18] Speaker 03:
It's good in every single category.

[00:30:20] Speaker 03:
The polling has

[00:30:23] Speaker 03:
I think two good up arrows, but it also has three down arrows, which means poor.

[00:30:27] Speaker 03:
So in addition to the other disparagements that we see in the document itself, there's additional things that are shown in the table about prioritization, about robustness, things like that that clearly teach away.

[00:30:40] Speaker 03:
And in addition to that, we have the credibility issue that really is central in this case with respect to Dr. Goodman.

[00:30:47] Speaker 03:
on his testimony on these very points, especially on the master slave, but really on everything that concerns Bohr.

[00:30:54] Speaker 03:
He was not a credible witness.

[00:30:56] Speaker 03:
That's issue number one.

[00:30:57] Speaker 03:
Issue number two, different types.

[00:30:59] Speaker 03:
There was substantial evidence on that point.

[00:31:02] Speaker 03:
Dr. Morrow testified that there are three ways to vary the characteristics of a carrier wave for modulation purposes.

[00:31:11] Speaker 03:
He said you can vary the amplitude, the frequency, and the phase.

[00:31:15] Speaker 03:
Dr. Goodman, on cross, admitted

[00:31:18] Speaker 03:
at 1655 through 56, that all of the modulation techniques used in Bohr used phase shift keying.

[00:31:27] Speaker 03:
He never wants, and nor does Bohr show, any modulation of amplitude or frequency.

[00:31:33] Speaker 03:
It modulates phase.

[00:31:34] Speaker 03:
So of the categories that Dr. Morrow identified, it is clear that the only one that is modified is phase in the Bohr reference.

[00:31:44] Speaker 03:
In addition, Dr. Morrow

[00:31:45] Speaker 03:
offered the testimony that counsel referenced, which is that, and he did this as part of his infringement test, and it's at 1083, he said that the way I determine whether or not modulation techniques are in different families is I look to see if there's any overlap.

[00:32:05] Speaker 03:
In this case, for my infringement case, there was no overlap.

[00:32:08] Speaker 03:
It was phase modulation, frequency modulation.

[00:32:11] Speaker 03:
It was reasonable for the jury to infer from that test that he used that the same test would apply with respect to differences between the prior art.

[00:32:22] Speaker 03:
Can you just step back for a minute?

[00:32:24] Speaker 05:
Did I hear you talk about what Goodman said about Borg?

[00:32:27] Speaker 03:
I'm sorry.

[00:32:30] Speaker 03:
I did talk about what Goodman said about Borg previously.

[00:32:33] Speaker 03:
Right.

[00:32:33] Speaker 05:
I realize I was stepping seven steps back.

[00:32:36] Speaker 05:
What was the citations for that?

[00:32:40] Speaker 03:
It's 1655 through 56.

[00:32:44] Speaker 03:
And Dr. Goodman is asked on cross-examination about the modulation techniques he identifies in Bohr.

[00:32:53] Speaker 03:
And he concedes that the first one that operates at 1 megabit per second does phase shift keying, PSK.

[00:33:01] Speaker 03:
He admitted that the 2 megabit per second also does phase shift keying

[00:33:07] Speaker 03:
which is a form of phase modulation.

[00:33:09] Speaker 03:
And then he admitted that the 5 megabit per second and the 8 megabit per second also included phase shift keying.

[00:33:19] Speaker 03:
And he never testified that they do any sort of amplitude modulation or frequency modulation.

[00:33:24] Speaker 03:
There was testimony when you put it together with what Dr. Morrow said that clearly is substantial evidence supporting the jury's verdict in this case.

[00:33:33] Speaker 05:
He didn't unpack what's in quadrature

[00:33:37] Speaker 05:
explain how that works more generally?

[00:33:41] Speaker 03:
He did during the direct examination he talked about the different modulation techniques in PPM slash DQPSK and he offered that that was a different modulation type than the PSK but he also conceded that both of them use PSK and with respect to PPM he offered that there was a fourth way

[00:34:06] Speaker 03:
to modulate information onto a carrier wave that was inconsistent with the testimony that was offered by Dr. Morrow.

[00:34:14] Speaker 03:
So there was a factual dispute between the experts on what it took to satisfy the court's claim construction on the first and second modulation methods.

[00:34:24] Speaker 03:
And there's a construction on that that appears at 121 through 136 of the record.

[00:34:30] Speaker 03:
Are there more than three families, amplitude, frequency,

[00:34:34] Speaker 03:
Phase?

[00:34:35] Speaker 03:
Your Honor, with respect to different types, if we're talking about different types, the comparison that Dr. Morrow used was to take a look at the first modulation technique and see whether or not there was an overlap.

[00:34:48] Speaker 03:
And in the example given, in the definition, in the prosecution history, you have on the one hand FSK, and then you have QAM, which is a combination of both amplitude modulation and phase modulation.

[00:35:02] Speaker 03:
And because there was no overlap,

[00:35:04] Speaker 03:
Dr. Morrow said, clearly, they're in different families, right?

[00:35:08] Speaker 03:
There's no overlap here.

[00:35:09] Speaker 03:
That's a way, as part of my infringement test, I can tell that there's no overlap.

[00:35:14] Speaker 03:
And so he did that for the FSK, and he did that for the PSK that appeared in their devices, that's used in their techniques.

[00:35:24] Speaker 03:
And so to answer your honor's question, there might be different ways to characterize the families.

[00:35:29] Speaker 03:
But what you're looking for at the end of the day, according to Dr. Morrow's testimony, is whether or not

[00:35:34] Speaker 03:
there is an overlap or not, and if there is an overlap, then it's not in different families, according to his testimony.

[00:35:41] Speaker 03:
If we could, I'll talk just briefly about the claim construction.

[00:35:45] Speaker 03:
The claim construction was based, and there's a very good discussion in the order at 137, I believe through 144, talking about the claim construction, and it was legally correct.

[00:35:58] Speaker 03:
It was based upon a definitional statement that was made during the prosecution and

[00:36:04] Speaker 03:
There's been a lot of suggestion that there was something sinister about what happened, but if you take a step back and look, you can see that there's a rejection that occurred at 2165 with respect to some of the claims, and an objection that occurred as to some of the claims, not claim one.

[00:36:24] Speaker 03:
If you look at 2171, you can see that it's the Syriac reference that's actually used.

[00:36:30] Speaker 03:
That's part of the discussion that's being used in the rejection.

[00:36:34] Speaker 03:
And in response, there's an amendment that occurs to claim one even though it was allowed.

[00:36:39] Speaker 03:
And it's clear when you connect the dots together that the applicant was doing the smart thing.

[00:36:45] Speaker 03:
They were trying to distance themselves from the celiac reference, which used both frequency modulation and OFDM modulation.

[00:36:53] Speaker 03:
And so they put in the different types language along with that statement

[00:36:57] Speaker 03:
to make it very clear, to make it crystal clear what they were referring to, which is different families of modulation.

[00:37:03] Speaker 01:
So that prior reference that they were distinguishing, according to you, was both types of modulation relied on frequency.

[00:37:12] Speaker 03:
That's correct, Your Honor.

[00:37:13] Speaker 03:
And you can see that in the abstract of that patent at 2436.

[00:37:19] Speaker 03:
There was also argument about reversion with respect to reversion

[00:37:25] Speaker 03:
Samsung just didn't put on a clear and convincing case.

[00:37:29] Speaker 03:
Their testimony was ambiguous.

[00:37:30] Speaker 03:
It was conclusory.

[00:37:32] Speaker 03:
It literally was about one question, didn't refer to any of the passages that are found in the Boer reference for support for that.

[00:37:41] Speaker 03:
In their appeal briefs, they now want to cite to other passages, but that was not before the jury.

[00:37:47] Speaker 03:
And what they want to do is supplement their presentation to the jury by saying, you can just look at these other passages in Boer.

[00:37:54] Speaker 03:
Even if you look at them, if you take a hard look, it still does not do the reversion that's required in the claims.

[00:38:00] Speaker 03:
With respect to SUIAC, it's clearly a hindsight reconstruction with respect to claim 21 of the 228.

[00:38:07] Speaker 03:
They're literally taking limitations and saying, where is this found in the prior art?

[00:38:12] Speaker 03:
Where is this found in the prior art?

[00:38:13] Speaker 03:
That was their entire invalidity presentation.

[00:38:17] Speaker 03:
They never explained why it would have been obvious to put together all three different teachings, which are Bohr, Upender, and Siewiek.

[00:38:24] Speaker 03:
They never mentioned them once in the context of Claim 21.

[00:38:28] Speaker 03:
If I could turn just to the marking issues quickly.

[00:38:33] Speaker 01:
I wanted to ask you, before you start, what kind of argument were you trying to raise on your brief on page 67 and the last page?

[00:38:42] Speaker 01:
Is that going to the claim by claim versus patent?

[00:38:46] Speaker 01:
Distinction.

[00:38:50] Speaker 03:
I'm sorry.

[00:38:50] Speaker 03:
Let me take a look real quick.

[00:38:55] Speaker 03:
It really does.

[00:38:56] Speaker 03:
It goes to that, and it also explains really the context that we're dealing with here.

[00:39:01] Speaker 03:
If we can just take a step back, their position was that claim 40 was much broader than any other claim in the case, so broad that it extended beyond our infringement accusations in this case.

[00:39:15] Speaker 03:
which were focused on enhanced data rate and Bluetooth.

[00:39:18] Speaker 03:
And it was their position that claim 40 was so broad that it covered Wi-Fi, 802.11G Wi-Fi products.

[00:39:27] Speaker 03:
And so that was their position and their summary judgment motion.

[00:39:31] Speaker 03:
We responded by saying, well, we have disclaimed that claim because it had been the subject of an IPR.

[00:39:39] Speaker 03:
And so we dropped it.

[00:39:40] Speaker 03:
We dropped about five claims at that same point in time

[00:39:43] Speaker 03:
And it was just before trial, but it was also because the IPR had been granted with respect to that claim, and it had been denied with respect to the claims we proceeded on.

[00:39:52] Speaker 03:
That's how we picked those claims to go to trial.

[00:39:54] Speaker 03:
The IPR was denied on all three of those claims.

[00:39:56] Speaker 03:
You had originally asserted Claim 40 in this case.

[00:40:00] Speaker 03:
Claim 40 was originally asserted in this case, and it was dropped.

[00:40:03] Speaker 03:
Correct.

[00:40:06] Speaker 03:
So they filed a motion for summary judgment.

[00:40:08] Speaker 03:
The magistrate judge, what he said is that

[00:40:12] Speaker 03:
You, as the movement, have not proven to me that you are entitled to judgment as a matter of law.

[00:40:18] Speaker 05:
But Judge Gilstrap's language in adopting it goes further than that.

[00:40:23] Speaker 03:
It does go somewhat further.

[00:40:24] Speaker 03:
But if you look at his result, he is just adopting and he is just denying their motion.

[00:40:28] Speaker 03:
There's nothing in there to suggest that he was granting summary judgment in our favor.

[00:40:33] Speaker 03:
Both parties proceed to trial.

[00:40:35] Speaker 03:
Both of them think it's a live issue in the case.

[00:40:38] Speaker 03:
We put on evidence.

[00:40:39] Speaker 04:
When you say both parties believe

[00:40:42] Speaker 04:
It was a live issue in the case.

[00:40:45] Speaker 04:
Are you saying claim 40 was a live issue in the case?

[00:40:48] Speaker 04:
I mean, all the other claims, yes, that was a live issue in the case.

[00:40:52] Speaker 03:
But claim 40 as well?

[00:40:54] Speaker 03:
Your Honor, we thought marking was a live issue in the case.

[00:40:57] Speaker 03:
They had an expert report that Dr. Goodman was going to talk about marking.

[00:41:04] Speaker 03:
He didn't offer any evidence at trial.

[00:41:06] Speaker 05:
Was he going to say that claims other than claim 40 covered

[00:41:11] Speaker 05:
licensed products?

[00:41:12] Speaker 05:
Your honor, I don't remember for sure.

[00:41:14] Speaker 05:
If he was, then that really doesn't establish anything.

[00:41:17] Speaker 05:
I mean, what they said when at the 50A oral discussion of Jamol was whatever else was once going to be here in the trial, claim 40 was never going to be here because you said they cannot, we cannot rely on marking

[00:41:38] Speaker 05:
of failure to mark a product covered by Claim 40 because it's been disclaimed.

[00:41:43] Speaker 05:
So of course we didn't put on any evidence on that.

[00:41:46] Speaker 03:
The truth is, I don't remember for sure, but it would have had to have been Claim 40 because there are so many distinctions relative to the other claims.

[00:41:53] Speaker 03:
There's master-slave.

[00:41:55] Speaker 03:
There are different types of language that did not appear in Claim 40.

[00:41:59] Speaker 03:
And so there are so many other distinctions in the other claims.

[00:42:02] Speaker 03:
I have to assume that it was.

[00:42:04] Speaker 01:
Nonetheless, given the legal ruling on disclaimer,

[00:42:08] Speaker 01:
that there was no chance of proving marking because claim 40 had been disclaimed.

[00:42:14] Speaker 01:
How could it be expected that evidence would be put in?

[00:42:18] Speaker 01:
Wouldn't it be futile to put in evidence on whether the licensee is practicing claim 40?

[00:42:25] Speaker 03:
I don't believe so, Your Honor.

[00:42:26] Speaker 03:
We offered evidence from our witness that said that we didn't believe that there was a marking obligation with respect to zone, and it wasn't specific to claim 40.

[00:42:36] Speaker 03:
They put on testimony.

[00:42:37] Speaker 03:
through two witnesses through deposition, Mr. Wood at 1730, who says, we did not include a marking provision in the agreement.

[00:42:46] Speaker 03:
However, we didn't believe that they had any products that were covered by our products.

[00:42:49] Speaker 03:
They put on testimony from another witness.

[00:42:52] Speaker 01:
What about the legal?

[00:42:53] Speaker 01:
There's a legal decision by the court that claim 40 for marking doesn't matter because claim 40 was disclaimed.

[00:43:00] Speaker 01:
That's a legal conclusion.

[00:43:02] Speaker 03:
It is, Your Honor, if summary judgment was granted in our favor.

[00:43:06] Speaker 03:
And I don't believe that the judge here granted summary judgment in our favor.

[00:43:10] Speaker 03:
I think that this was a live issue that went to trial.

[00:43:12] Speaker 01:
Legal determinations can be made in denials of summary judgment, and those issues can be appealed so long as it's a legal issue.

[00:43:20] Speaker 01:
Our court has held that.

[00:43:22] Speaker 03:
It has in the claim construction contest, absolutely, Your Honor.

[00:43:25] Speaker 03:
I don't know if it's gone beyond that, really.

[00:43:27] Speaker 03:
I mean, the general rule in the Midwest-Baco case is you don't get to apply the denial of a summary judgment.

[00:43:34] Speaker 03:
I mean, that's what this court has said.

[00:43:36] Speaker 03:
That's what the Supreme Court has said.

[00:43:38] Speaker 04:
I want you to eventually get back to your red brief, page 67, the follow-up to Judge Stoll's earlier question.

[00:43:45] Speaker 04:
But I just want to clarify something.

[00:43:47] Speaker 04:
The other side said that you conceded and the judge found below that

[00:43:56] Speaker 03:
zone was practicing claim forty do you agree with that because i didn't see you in your red brief challenge that when they brought that up in their blueprint we we did not put on evidence during the summary judgment phase that there was any distinction between claim forty and uh... the eight oh two point eleven g products we we did not offer any evidence of the summer judgment days we did contend that there was a factual dispute on the claim by claim issue which is what judge uh...

[00:44:25] Speaker 03:
magistrate judge said in footnote four or seven of his opinion that if in fact I were to adopt this approach that there's still a fact question that would arise as to whether or not this claim is distinct from the other claims or not.

[00:44:42] Speaker 03:
And so that's what happened at the summary judgment phase.

[00:44:46] Speaker 03:
We did not offer affirmative testimony trying to show that claim 40 was not met.

[00:44:53] Speaker 03:
I don't think they put on evidence at trial because

[00:44:56] Speaker 03:
They didn't want their witness subject to cross-examination that there were additional products that Samsung sold that infringed.

[00:45:03] Speaker 03:
I mean, I think that's what happened here.

[00:45:04] Speaker 04:
I'm just trying to figure out that if we disagreed with Judge Gilstrap on his ruling on disclaimer, is it your view that the question of whether or not Zones Products Practice Claim 40 needs to be sent back and findings made by the judge or

[00:45:26] Speaker 04:
Do you agree with the other side that you don't dispute that, in fact, Zones products do practice claim 40?

[00:45:34] Speaker 03:
I think to the extent that there's a live dispute, it would be on the claim by claim issue.

[00:45:39] Speaker 03:
I think that would be the live dispute.

[00:45:41] Speaker 05:
Which you did not present in your red brief as an alternative ground in support of Judge Gilstrap's ruling, even though he didn't rely on that ground.

[00:45:54] Speaker 05:
That's correct, Your Honor.

[00:45:56] Speaker 05:
And the question that I asked, assuming that marking is ultimately a problem here, is there information in the record?

[00:46:07] Speaker 05:
I sort of assume there is, because you know how many, what's it, 290 million units were sold and multiplied by something.

[00:46:15] Speaker 05:
You have the dates of those sales, and so you can figure out how many of them were pre-March 15, 2013?

[00:46:20] Speaker 03:
Yes, Your Honor.

[00:46:22] Speaker 03:
It's a pure accounting function.

[00:46:24] Speaker 03:
that the court could do or the district court judge could do?

[00:46:27] Speaker 05:
Well, I don't think we can do it because we don't actually have exhibit 10 of the Weinstein, which I think is the document, because that's under seal and therefore not available under PACER.

[00:46:37] Speaker 05:
I suppose we can get it, but I don't think we're going to do that.

[00:46:41] Speaker 03:
I see my time is up unless there's any other questions.

[00:46:44] Speaker 03:
Thank you very much.

[00:46:51] Speaker 05:
Mr. Jenner.

[00:46:52] Speaker 02:
Your honor, a few things.

[00:46:54] Speaker 02:
First of all, I'd like to remove this comparison again to what I took to the Apple Samsung, the recent Ampang decision where substantial findings or evidence is presumed.

[00:47:07] Speaker 02:
There was a witness in that case who testified.

[00:47:11] Speaker 02:
Cockburn was his name on behalf of Apple, who was in very substantial part a basis for finding substantial evidence to support the proponent.

[00:47:21] Speaker 02:
There's no witness in this case.

[00:47:23] Speaker 02:
They did not put on an invalidity case.

[00:47:26] Speaker 02:
All they claim to have is what they think Upender shows and what they think they got from Goodman, who they choose to characterize as not credible.

[00:47:36] Speaker 02:
Upender does not say that polling is unacceptable or inefficient.

[00:47:42] Speaker 02:
It characterizes it as a choice.

[00:47:45] Speaker 02:
I read one quote from it about simplicity and determinacy.

[00:47:49] Speaker 02:
Another place it says it's ideal for a centralized data acquisition system where peer-to-peer communication and global prioritization are not required.

[00:47:58] Speaker 02:
There is no statement in here that is a teachaway as to upender.

[00:48:03] Speaker 02:
And to find that upender is a teachaway as a fact would be inconsistent with the cases from this court that I referred to earlier.

[00:48:15] Speaker 02:
So we're back as far as claim construction is concerned.

[00:48:19] Speaker 02:
If the claim construction is wrong because it doesn't address the incompatibility issue, which should have been addressed, then I believe again, under this court's AVID decision, there's an absence of evidence that would otherwise support the jury verdict, substantial evidence.

[00:48:34] Speaker 02:
There's no evidence that would support the jury verdict.

[00:48:36] Speaker 02:
And the case needs to go back on claim construction at minimum.

[00:48:40] Speaker 02:
And I think all the evidence is the other way.

[00:48:43] Speaker 02:
Goodman did testify about reversion.

[00:48:47] Speaker 02:
Council doesn't refer to many other pages of testimony that we referred to in our brief and the reference itself clearly teaches reversion.

[00:48:55] Speaker 02:
As far as SUEAC is concerned, there was testimony about SUEAC disclosing the address limitation by Goodman and why it would be desirable to make the combination because of power savings.

[00:49:08] Speaker 02:
So all of the other issues that are raised

[00:49:11] Speaker 02:
The evidence is solely the evidence proffered by Samsung through Goodman and the documents.

[00:49:16] Speaker 02:
There was no contrary case presented.

[00:49:19] Speaker 02:
It comes back to the claim construction, whether the right construction, because of what the patent specification teaches, is that different methods means incompatible methods.

[00:49:29] Speaker 02:
You'll find that repeatedly throughout the patent, particularly in column one and column two, where it talks about the problem to be addressed and solved.

[00:49:38] Speaker 02:
That's what the whole point of the patent is.

[00:49:40] Speaker 02:
And this whole business that came up and counsel referred to it again about the need for incompatibility, total incompatibility, that's not in the construction at all.

[00:49:51] Speaker 02:
That's something that counsel's brief made up after trial based on the testimony given by Morrow on infringement, not on validity.

[00:49:59] Speaker 02:
He never touched the Boer prior art reference.

[00:50:02] Speaker 02:
So that all of the testimony about incompatible methods, testimony, all the argument about incompatible methods

[00:50:09] Speaker 02:
is a construct based on irrelevant infringement testimony and then synthesized at the end of the brief into the meaning of the family claim construction when there's nothing in the record that supports incompatible methods and the judge himself didn't go there.

[00:50:27] Speaker 02:
Well, you know how to keep a sentence going for a long time.

[00:50:29] Speaker 02:
I think I need to call it quits.

[00:50:30] Speaker 02:
I'm trying to hope the court won't cut me off, but that's what I wanted to get to the court.

[00:50:35] Speaker 02:
Thank you so much.

[00:50:35] Speaker 02:
OK, thank you.