[00:00:00] Speaker 00:
See the sky or SKKY?

[00:00:04] Speaker 03:
Sky, Your Honor.

[00:00:04] Speaker 00:
Sky.

[00:00:05] Speaker 00:
All right.

[00:00:06] Speaker 00:
Even with two K's.

[00:00:07] Speaker 00:
Versus Mind Geek and Playboy.

[00:00:09] Speaker 00:
2016-2018.

[00:00:10] Speaker 00:
Mr. Schutz.

[00:00:13] Speaker 00:
Thank you, Your Honor.

[00:00:16] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
May it please the court, this case should be reversed because the board

[00:00:22] Speaker 03:
erred in its purported construction of the term wireless device means.

[00:00:28] Speaker 03:
And to start the analysis, we should take a brief look at what the board actually said in its purported claim construction, which can be found in the appendix at page 13.

[00:00:37] Speaker 03:
After going through the record and deciding that wireless device means was not a means plus function term, it went on to say, quote, further, if the term were to be so construed,

[00:00:50] Speaker 03:
The corresponding structure in the specification is not limited to the multiple processor embodiment as depicted in figure two.

[00:00:58] Speaker 03:
No further construction is required for purposes of this decision.

[00:01:02] Speaker 03:
That's wrong.

[00:01:03] Speaker 03:
The term needs to be construed.

[00:01:05] Speaker 03:
And regardless of how you construe that term, whether it should be construed pursuant to 112.6 as we proposed, or

[00:01:14] Speaker 00:
How can it be construed under 112.6 because there's no function?

[00:01:20] Speaker 00:
It doesn't say means forward.

[00:01:23] Speaker 03:
It doesn't matter whether it's construed under 112.6 or whether it's construed under a non-112.6 argument.

[00:01:29] Speaker 03:
And that's a very important thing to keep in mind for purposes of this case because the board made no construction.

[00:01:36] Speaker 04:
But aren't things backward here?

[00:01:38] Speaker 04:
How can it be a means plus function claiming if what's

[00:01:43] Speaker 04:
claim up front in the claim itself is a structure, not a function.

[00:01:48] Speaker 03:
Well, let's run with that.

[00:01:50] Speaker 03:
Let's take a construction that's not means plus function that just has to construe the term wireless device means.

[00:01:58] Speaker 03:
Now, I'm not going to concede that it's not means plus function.

[00:02:00] Speaker 03:
We'll make a circle back to that.

[00:02:02] Speaker 03:
Wireless device.

[00:02:03] Speaker 03:
Okay, wireless device.

[00:02:05] Speaker 03:
What's a wireless device?

[00:02:07] Speaker 03:
The court, or excuse me, the board never construed the term wireless device.

[00:02:10] Speaker 03:
It needs to be construed.

[00:02:12] Speaker 03:
It can't be looked at in a vacuum.

[00:02:14] Speaker 02:
You seem to agree that wireless devices is disclosing wrong.

[00:02:20] Speaker 03:
Why, there is, well, not wireless devices properly construed, your honor.

[00:02:25] Speaker 03:
Because wireless device, it doesn't exist in a vacuum.

[00:02:28] Speaker 03:
That term needs to be construed in the context of the specification and the file history.

[00:02:33] Speaker 03:
And what the board did,

[00:02:35] Speaker 03:
would say, in essence, we're not going to construe wireless device other than in the negative and saying it's something that doesn't have two processes.

[00:02:43] Speaker 03:
RALF only has one process.

[00:02:45] Speaker 03:
So the important thing here is no matter whether you construe that term by going the path of 112.6, or if you say it's structure, wireless device, it's got to mean something, and you construe it, you still get to the same result, which is a wireless device as considered

[00:03:05] Speaker 03:
in the context of this patent specification and the file history is a device that has multiple processors.

[00:03:12] Speaker 03:
So why is that so?

[00:03:14] Speaker 03:
First of all, if you take a look at the specification and you go to column 14 in the specification, the invention here is exhibited in figure 2, if you look at block 202, 203, and 204.

[00:03:32] Speaker 03:
That's the wireless device.

[00:03:34] Speaker 03:
And you get there either through 112.6 or just a standard, straight-up plane construction.

[00:03:40] Speaker 03:
202, what's 202?

[00:03:41] Speaker 03:
202 is basically a cell phone.

[00:03:45] Speaker 03:
And a cell phone, and this is undisputed, your basic cell phone at the time, had a processor.

[00:03:50] Speaker 03:
But the reason that our inventors did what they did was you could not download this rich media to an existing cell phone and play it back.

[00:04:00] Speaker 03:
You needed additional processing capability.

[00:04:03] Speaker 03:
And so as illustrated in the affidavit submitted during the course of prosecution history by Dr. Friedson, one of the inventors here, he came up with a prototype that is, in essence, reflected in the patent in this block format of 202 and 203.

[00:04:19] Speaker 03:
It's an additional processor and functionality encompassed in something that can either be part of an existing cell phone or can be an accessory unit.

[00:04:30] Speaker 03:
And the board,

[00:04:32] Speaker 03:
You look at the board's opinion, it basically says, we're going to look at the specification.

[00:04:37] Speaker 04:
Well, just look at claim one, when it describes a method of wirelessly delivering.

[00:04:43] Speaker 04:
And then it goes on and addresses what we mean by comprising.

[00:04:52] Speaker 04:
You have compressing, storing, compressed data, transmitting.

[00:04:55] Speaker 04:
Are you saying that that can only be done by a device that has two processors?

[00:05:03] Speaker 03:
It is done by a device that is a wireless device, and that term needs to be construed.

[00:05:14] Speaker 04:
And in the context of this... But just looking at that, do you need to have to process in order to do this?

[00:05:21] Speaker 03:
Yes, because that's what the patent spec... If you look at the specification, you look at the file history, first of all, the term wireless device does not appear in the specification.

[00:05:32] Speaker 03:
It's not a defined term in the specification.

[00:05:35] Speaker 03:
And despite what my opposing counsel may get up here and say, and that people agree on what a wireless device is, they don't.

[00:05:42] Speaker 03:
There were competing experts here.

[00:05:44] Speaker 03:
The first thing, if you do a Google search on wireless device, you're going to come up the garage door opener.

[00:05:50] Speaker 03:
And the garage door opener is a wireless device, but that can't be the construction here.

[00:05:54] Speaker 03:
When our expert was asked about what does wireless device means, he gave a whole long list of things, including a microwave.

[00:06:00] Speaker 03:
And today's refrigerators are wireless devices.

[00:06:03] Speaker 03:
The point is, what the court did was it did not look at the specification and the file history.

[00:06:09] Speaker 03:
And when you do that, it's clear that wireless device has some meaning.

[00:06:14] Speaker 03:
And that meaning is a multiple processor.

[00:06:17] Speaker 03:
So if we go back and we look at the back and forth file history, part of the file history that took place over many years, the examiner confronted the inventors with raw

[00:06:29] Speaker 03:
and said, you know, Rolf is a wireless device means.

[00:06:32] Speaker 03:
And Rolf can do this functionality.

[00:06:34] Speaker 03:
And we said, no, no, it's not.

[00:06:36] Speaker 03:
There are differences.

[00:06:37] Speaker 03:
But the examiner would not yield.

[00:06:39] Speaker 03:
And so he suggested, all right, you need to add the term wireless device means.

[00:06:45] Speaker 03:
And it's 112.6.

[00:06:46] Speaker 03:
And that's why we took the position that it's 112.6.

[00:06:48] Speaker 03:
And then you go and find the structure in there.

[00:06:52] Speaker 03:
And if you go that path, you're going to come to wireless device means.

[00:06:56] Speaker 03:
The structure in the patent is 202 plus 203 and 204.

[00:06:59] Speaker 03:
So it's going to be standard cell phone with the additional processes.

[00:07:04] Speaker 03:
Processing capability comes with the addition of another processor.

[00:07:07] Speaker 03:
That's how you're going to get there through 112.6.

[00:07:10] Speaker 03:
But you don't, again, that path, you don't want to take that path.

[00:07:14] Speaker 03:
You can just take the path if it's got to mean something.

[00:07:16] Speaker 03:
Because it came up in prosecution, it was added.

[00:07:19] Speaker 03:
So here's the other thing to keep in mind.

[00:07:21] Speaker 03:
It was added.

[00:07:23] Speaker 00:
You're saying material was added to the spec?

[00:07:25] Speaker 03:
No, it was added to the claim.

[00:07:28] Speaker 03:
The term wireless device means was added at the suggestion of the examiner in an examiner's amendment.

[00:07:35] Speaker 03:
And so it has to mean something.

[00:07:36] Speaker 03:
It was added to overcome Roth.

[00:07:42] Speaker 03:
So it can't be Roth.

[00:07:44] Speaker 03:
A wireless device means can't be Roth.

[00:07:46] Speaker 03:
And Roth's only one process.

[00:07:47] Speaker 00:
Unless the examiner was wrong.

[00:07:49] Speaker 03:
Well, but the examiner wasn't wrong.

[00:07:54] Speaker 03:
The examiner suggested the term.

[00:07:57] Speaker 03:
So if we go back to just basic blocking and tackling, the term is in there, needs to be construed.

[00:08:05] Speaker 03:
It's got to mean something.

[00:08:06] Speaker 03:
And it's got to mean something through the eyes of one of ordinary skill in the art who's going to look at the spec in the file history.

[00:08:12] Speaker 03:
And the examiner, or excuse me, the board never did that.

[00:08:16] Speaker 03:
The board never really went through that analysis.

[00:08:20] Speaker 03:
Because if you go through that analysis,

[00:08:22] Speaker 03:
And you just start with an objective view of, OK, what are we talking about here?

[00:08:29] Speaker 03:
You're led to figure 2, and you see 202.

[00:08:33] Speaker 03:
That's a conventional cell phone.

[00:08:35] Speaker 03:
And then it's got an addition.

[00:08:37] Speaker 03:
It's got 203 and 204.

[00:08:39] Speaker 03:
And that's a board that has an additional chip with the functionality required to implement this method.

[00:08:45] Speaker 03:
That's in there.

[00:08:47] Speaker 03:
And then layered on top of that is the affidavit of Dr. Freakson.

[00:08:52] Speaker 03:
And Dr. Friedson talks about what he did to develop his prototype.

[00:08:57] Speaker 03:
He, in essence, and I'm paraphrasing here and you've probably read it, but he basically said there was no existing technology out there I could use to download this, you know, what he called rich media files that needed compressing and shrinking and optimization and normalization.

[00:09:15] Speaker 03:
There was nothing out there that could do that.

[00:09:18] Speaker 03:
So I had to come up with, he called it an engineering solution.

[00:09:21] Speaker 03:
And what he ended up doing was coming up with additional processing power in the form of an additional prototype board and the prototype in essence hooked up to a regular cell phone.

[00:09:33] Speaker 03:
And then they were able to implement the method that set forth in the claim here.

[00:09:37] Speaker 03:
And that's clearly part of the record.

[00:09:39] Speaker 03:
And it's clearly part of what the examiner considered in allowing the claims.

[00:09:43] Speaker 03:
Because in the notice of allowance, the examiner refers to the

[00:09:47] Speaker 03:
A figure two in the patent refers to the specification, refers to Dr. Friedson affidavit.

[00:09:53] Speaker 03:
So I think the only conclusion that can possibly reach is that wireless device means it has to have some context to it.

[00:10:00] Speaker 03:
It's not out there floating in the ether by itself with no definition.

[00:10:05] Speaker 03:
It's not a garage door opener.

[00:10:06] Speaker 03:
It's not a Wi-Fi router.

[00:10:08] Speaker 03:
And it's not a standard existing at the time cell phone.

[00:10:13] Speaker 03:
Because the record that discussed what that

[00:10:17] Speaker 03:
existing was is reflected in 202.

[00:10:21] Speaker 03:
And it wasn't enough.

[00:10:23] Speaker 03:
So there had to be more.

[00:10:24] Speaker 03:
So it can't be Ralph.

[00:10:26] Speaker 03:
It just simply can't be Ralph because of the amendment here.

[00:10:31] Speaker 03:
And so the board basically only did half a job.

[00:10:36] Speaker 03:
And one of the opinions that the board relies on when it talks about the amendment at the patent office, because the board says we're not

[00:10:47] Speaker 03:
We're not bound by any amendments or filed history of Stoppel.

[00:10:52] Speaker 03:
And then they cite the Temple-Lighting v. Tivoli case.

[00:10:56] Speaker 03:
And interestingly, the paragraph they cite, which is also cited by Manwin here, states that, quote, the court also observes that the PTO is under no obligation to accept the claim construction proffered as prosecution history disclaimer.

[00:11:13] Speaker 03:
which generally only binds the patent owner.

[00:11:15] Speaker 03:
And that's the end of the quote that's both in the board decision and the opposing briefs.

[00:11:18] Speaker 03:
However, if you actually go and you take a look, and this is the clear red flag.

[00:11:23] Speaker 04:
That was a quote taken from Temple Lighting Inc.

[00:11:26] Speaker 04:
Pardon me?

[00:11:27] Speaker 04:
What you just read was a quote.

[00:11:29] Speaker 04:
I mean, I know the board used it, but it's a quote from our case in Temple Lighting.

[00:11:32] Speaker 03:
Yes, that's what I'm saying.

[00:11:34] Speaker 03:
So what I'm saying is the board and our opponents here cited that case for the basic proposition that

[00:11:41] Speaker 03:
It doesn't matter whether you amended your claim, Skye, at the Patent Office, to overcome the prior art, and thus limited to something that's not raw.

[00:11:48] Speaker 03:
It doesn't matter because we're not bound by what the board did.

[00:11:51] Speaker 03:
And they cite the Temple Lighting case, which I just cited the person sentenced from, which they cite.

[00:11:56] Speaker 03:
But it goes on.

[00:11:57] Speaker 03:
This is what's important here.

[00:11:59] Speaker 03:
The court, the Federal Circuit, goes on to state, however, in this instance, the PTO itself requested

[00:12:06] Speaker 03:
Tivoli rewrite the non-photoluminescent limitation in positive terms, which it did.

[00:12:14] Speaker 03:
And that is actually the construction that was adopted here.

[00:12:17] Speaker 03:
And it's exactly what we did here.

[00:12:19] Speaker 03:
The PTO said, you have to add something to this claim.

[00:12:23] Speaker 03:
You have to add wireless device means.

[00:12:26] Speaker 03:
And therefore, it's 112.6.

[00:12:29] Speaker 03:
And there's all this structure on the board and the notice of the examiner and the notice of allowance pointed to 202 and 203.

[00:12:35] Speaker 03:
some other parts of the specification and Dr. Friedsen's affidavit and said, you do that, you get your patent because it overcomes.

[00:12:42] Speaker 00:
Mr. Schutz, you want to save some bottle time?

[00:12:45] Speaker 03:
I do, Your Honor.

[00:12:46] Speaker 00:
Thank you.

[00:12:47] Speaker 00:
We will save it for you.

[00:12:48] Speaker 00:
Mr. Gasparro?

[00:12:50] Speaker 00:
Gasparro?

[00:12:51] Speaker 03:
Yes.

[00:13:02] Speaker 01:
Good morning, Your Honors.

[00:13:03] Speaker 01:
May it please the court?

[00:13:06] Speaker 01:
I would like to frame the dispute that was before the board.

[00:13:11] Speaker 01:
The dispute for claim one was whether wireless device means is governed by 112.6 and whether the term wireless device means should be limited to structure having multiple processors, regardless of whether the term

[00:13:32] Speaker 01:
is governed by 112.6 or not.

[00:13:37] Speaker 01:
For claim one, Sky never disputed what Petitioners said Ralph teaches, other than wireless device means.

[00:13:49] Speaker 01:
Sky never disputed what Petitioners said the MP3 guide teaches.

[00:13:57] Speaker 01:
Sky never disputed what Petitioners said

[00:14:01] Speaker 01:
was the reason for combining Ralph with the MP3 guide.

[00:14:06] Speaker 01:
The board resolved the party's dispute by deciding that the term was not governed by 112.6, and I'm happy to get into why we think that's correct.

[00:14:19] Speaker 02:
You didn't when you started.

[00:14:23] Speaker 01:
You are correct, Your Honor.

[00:14:25] Speaker 01:
In our petition, we proposed a means plus function construction

[00:14:30] Speaker 01:
And we misapplied the law, as did the examiner and as did the applicants.

[00:14:37] Speaker 01:
The board got it right.

[00:14:38] Speaker 01:
It's not means plus function.

[00:14:42] Speaker 01:
The other dispute that the board resolved was that the structure should not be limited.

[00:14:47] Speaker 01:
There's no basis to limit it to multiple processors under either construction.

[00:14:52] Speaker 01:
The multiple processor argument is the only argument

[00:14:56] Speaker 01:
that Sky presents for both of its proposed constructions, including its 29-word non-means plus function proposed construction for a three-word term to distinguish rough.

[00:15:13] Speaker 01:
Once the board decided that wireless device means should not be governed by 112.6, it should not be limited to multiple processors, Sky was left with no argument

[00:15:26] Speaker 01:
as to why Ralph does not teach wireless device means.

[00:15:36] Speaker 01:
I think it's very clear, based on the questions from your honors, or the reactions from your honors, I don't think there's any question here 112.6 doesn't apply.

[00:15:44] Speaker 01:
There's no function explicitly recited.

[00:15:46] Speaker 01:
There is structure.

[00:15:48] Speaker 01:
The structure is wireless device.

[00:15:51] Speaker 01:
I would like to address a few things that

[00:15:54] Speaker 01:
Skye's counsel mentioned.

[00:15:58] Speaker 02:
Well, he didn't mention.

[00:15:59] Speaker 02:
I don't recall him mentioning it.

[00:16:00] Speaker 02:
I was looking for it.

[00:16:02] Speaker 02:
But the board, do you think the board addresses his motion to strike in its final written decision?

[00:16:13] Speaker 02:
Subsilentio.

[00:16:15] Speaker 01:
Motion to strike regarding the new clean construction position?

[00:16:20] Speaker 02:
Your theory is in the reply break.

[00:16:23] Speaker 02:
They claim that you improperly raised new theories and arguments in your reply brief and moved to strike it.

[00:16:29] Speaker 02:
I'm sure you'll recall that.

[00:16:31] Speaker 02:
I do.

[00:16:31] Speaker 02:
And the board doesn't mention it, per se.

[00:16:36] Speaker 01:
Skye's position was that petitioners raised two new arguments in its reply brief.

[00:16:43] Speaker 01:
One, regarding claim 18 and relying on Rolfe as opposed to the MP3 guide.

[00:16:51] Speaker 01:
And the second was how, in our reply brief, there was this new theory by petitioners on claim construction.

[00:17:02] Speaker 01:
The board heard Skye out on that.

[00:17:04] Speaker 01:
They authorized the filing.

[00:17:06] Speaker 01:
Skye filed.

[00:17:07] Speaker 01:
We responded.

[00:17:08] Speaker 01:
And I think the board, they realized these were not new arguments.

[00:17:14] Speaker 01:
These were, under the recent case from this court, the SAS case,

[00:17:20] Speaker 01:
Petitioners had a right to respond to this new construction by the board, and we did that in our reply.

[00:17:26] Speaker 01:
And Sky actually had two opportunities.

[00:17:29] Speaker 01:
It had the response, and it also got the right to file a five-page cert reply on that very topic.

[00:17:35] Speaker 01:
So I think the board realized there were no, no arguments here.

[00:17:38] Speaker 01:
This was rebuttal.

[00:17:40] Speaker 01:
There were no, no arguments.

[00:17:41] Speaker 01:
The petition relies on the MP3 guide for Claim 18.

[00:17:45] Speaker 01:
It does not rely on RALF.

[00:17:48] Speaker 01:
Our reference to RALF was to

[00:17:49] Speaker 01:
misstatements about Rulph in their response.

[00:17:56] Speaker 01:
Skye's counsel mentions that the term wireless device is not in the spec.

[00:18:01] Speaker 01:
It actually is, your honors.

[00:18:03] Speaker 01:
It's at the very, very beginning of the patent in the technical description.

[00:18:09] Speaker 01:
You can look to its appendix 44, and it's right there in column one, line 17 to 19.

[00:18:19] Speaker 01:
There's the patent, the 875 patent refers to... What line did you say?

[00:18:25] Speaker 01:
It's column one.

[00:18:28] Speaker 01:
Line 17 to 19 is the technical description.

[00:18:32] Speaker 01:
And there's a reference to working off of memory for wireless or non-wireless devices.

[00:18:39] Speaker 00:
That certainly isn't a descriptive term, a definitional term.

[00:18:45] Speaker 01:
I just wanted to corrupt your honor that wireless device does appear.

[00:18:49] Speaker 01:
in the spec.

[00:18:53] Speaker 01:
The other thing I'd like to address, and I think it's a really important point here, Skye's counsel says that the board did not consider the file history.

[00:19:02] Speaker 01:
It absolutely considered the file history.

[00:19:04] Speaker 01:
And I can give you a site for where that is.

[00:19:06] Speaker 01:
The file history is impregnated with a misapplication of 112.6.

[00:19:17] Speaker 01:
And when you look at the section of the file history that Sky relies on, as did the examiner, it's not restricted to multiple processors.

[00:19:28] Speaker 01:
You've got a chip embodiment.

[00:19:30] Speaker 01:
You've got a software embodiment.

[00:19:32] Speaker 02:
So there's no- You have to admit, this case is in a somewhat unusual posture.

[00:19:38] Speaker 01:
In what way, Your Honor?

[00:19:40] Speaker 02:
That both parties came in agreeing to a position which the board

[00:19:47] Speaker 02:
took is not accurate.

[00:19:50] Speaker 01:
I agree.

[00:19:52] Speaker 01:
The board got it right.

[00:19:54] Speaker 01:
We and our papers did not.

[00:19:57] Speaker 01:
You look at our petition, we never, ever argued that a function is explicitly recited.

[00:20:04] Speaker 01:
We implied a function into the claim, which is contrary to law.

[00:20:09] Speaker 01:
We can't rewrite the statute.

[00:20:11] Speaker 01:
The examiner can't rewrite the statute.

[00:20:13] Speaker 01:
Applicants can't rewrite the statute.

[00:20:14] Speaker 01:
And certainly, Sky can't rewrite the statute.

[00:20:17] Speaker 01:
You know, Sky had an opportunity here.

[00:20:20] Speaker 01:
Right after this IPR was instituted, we had our initial conference call with the board.

[00:20:25] Speaker 01:
And Sky indicated that it may seek a motion to amend the claims.

[00:20:28] Speaker 01:
It never did that.

[00:20:29] Speaker 01:
It could have filed a motion to amend.

[00:20:32] Speaker 01:
After knowing that the board said this wasn't means plus function, they could have tried to fix the claims.

[00:20:38] Speaker 01:
I didn't see that.

[00:20:39] Speaker 01:
It's in the record, Your Honor.

[00:20:40] Speaker 01:
So let's see.

[00:20:45] Speaker 01:
If you look at appendix 5635, that's where Skye represents that they may seek.

[00:20:55] Speaker 01:
That was in the order from the board, 5635, where Skye indicates it may seek leave to amend the claims.

[00:21:05] Speaker 01:
It never did.

[00:21:11] Speaker 01:
And just lastly, unless your honors have any questions,

[00:21:16] Speaker 01:
Yes, the board relied on tempo lighting.

[00:21:17] Speaker 01:
Tempo lighting was not a means plus function case.

[00:21:21] Speaker 01:
Here the board relied on the file history, consulted the file history.

[00:21:25] Speaker 02:
I do have a question for you.

[00:21:27] Speaker 02:
Hypothetically, if we disagree with you on claim construction, do we have to remand for additional fact lining?

[00:21:34] Speaker 01:
I don't think so, Your Honor.

[00:21:35] Speaker 01:
I think we've got substantial evidence in the record.

[00:21:38] Speaker 01:
I mean, Ralph is replete with teaching wireless devices.

[00:21:42] Speaker 01:
I mean, that's exactly the argument that we made in our petition.

[00:21:45] Speaker 01:
We never had to change, although we changed course on claim construction, we never had to change course on what Ralph teaches.

[00:21:55] Speaker 01:
We always said from the beginning, Ralph teaches a cell phone, teaches other wireless devices.

[00:21:59] Speaker 01:
It hasn't.

[00:22:00] Speaker 01:
Listen, they may have intended to get over Ralph, but they did it the wrong way.

[00:22:04] Speaker 01:
They're just wrong as a matter of law, your honor.

[00:22:06] Speaker 00:
On the question of multiple processes, does column five

[00:22:10] Speaker 00:
Line 66, is that relevant?

[00:22:16] Speaker 01:
Column 5.

[00:22:17] Speaker 00:
Line 66.

[00:22:19] Speaker 01:
Asserted in the patent, 875.

[00:22:21] Speaker 00:
Yes, right.

[00:22:22] Speaker 00:
It talks about a processor.

[00:22:28] Speaker 00:
Does that mean the spec is not limited to multiple processes?

[00:22:36] Speaker 01:
That's exactly right, Your Honor.

[00:22:41] Speaker 01:
That paragraph is a description of the software embodiment which the applicants taught was not a multiple processor embodiment.

[00:22:52] Speaker 01:
So that is similar to what's in column 14 that the examiner was relying on.

[00:22:59] Speaker 01:
If there's no other further questions, Your Honor, we believe the case should be affirmed.

[00:23:05] Speaker 00:
Thank you, Mr. Gasparro.

[00:23:05] Speaker 00:
Mr. Schultz has two and a half minutes.

[00:23:10] Speaker 03:
First of all,

[00:23:11] Speaker 03:
With regard to the software embodiment, which is talked about and briefed a little bit, there is no reliance on any software embodiment by the examiner in either proposing the amendment to the claims or in, if you take any kind of reasonable objective look at the notice of allowance, because the notice of allowance doesn't talk about software.

[00:23:34] Speaker 03:
It talks about 202, 203, and 204.

[00:23:35] Speaker 03:
It talks about figure two.

[00:23:37] Speaker 03:
There's no software embodiment in that.

[00:23:40] Speaker 03:
There is a passing reference in, I think, one sentence out of an entire column that basically spends the rest of the time talking about hardware.

[00:23:50] Speaker 03:
So that's, in essence, a red herring.

[00:23:52] Speaker 03:
It doesn't come.

[00:23:53] Speaker 03:
And on the 112.6 piece, interestingly, you only get the software if you do 112.6.

[00:24:01] Speaker 03:
And then even, arguably, you don't.

[00:24:04] Speaker 03:
You come back to bocking and tackling basics.

[00:24:06] Speaker 03:
The claim has to be construed.

[00:24:08] Speaker 03:
Wireless device means.

[00:24:10] Speaker 03:
must mean something, and it can't simply mean this generic defined in the negative.

[00:24:16] Speaker 03:
It can be anything as long as it doesn't have multiple processors, because we overcame Roth.

[00:24:21] Speaker 03:
It's just not Roth.

[00:24:23] Speaker 03:
If you go back to the petition, when they say there's no dispute about Roth, there's no dispute as long as we're all in agreement that it has only a single processor.

[00:24:31] Speaker 03:
Because when they were going down the 112 route when they started, they found they had a different spin on what structure

[00:24:39] Speaker 03:
is incorporated into the 112 analysis than we did.

[00:24:43] Speaker 03:
Our structure that was incorporated required two processors.

[00:24:46] Speaker 03:
And thus, Rolfe doesn't make the claim obvious.

[00:24:50] Speaker 03:
Their going down the structure, of course, was OK with one processor.

[00:24:55] Speaker 03:
And that wasn't the situation with us.

[00:24:57] Speaker 03:
So with that, your honors, thank you very much.

[00:25:01] Speaker 00:
Thank you, counsel.

[00:25:02] Speaker 00:
We'll take the case under advisement.