[00:00:00] Speaker 02: versus contest table. [00:00:01] Speaker 02: Mr. Garrison. [00:00:07] Speaker 05: Good morning. [00:00:08] Speaker 05: May it please the court. [00:00:11] Speaker 05: I would like to have some time to address the 832 patent, but we've received the communication from the court asking us to be ready to address the Nozomi case. [00:00:19] Speaker 05: I thought I would start with that. [00:00:23] Speaker 05: Nozomi relates to a situation in which a product was sold [00:00:29] Speaker 05: and then end users could or could not put optionally different types of software on it to perform different functions. [00:00:38] Speaker 05: It has only turned on the fact that the Giselle software in question, there was no proof that the end users had actually taken and installed that for the optional purpose of taking that manufacturer's equipment and using it for that optional purpose. [00:00:57] Speaker 05: Our case is different. [00:00:59] Speaker 05: The connection systems and particularly the flash wave as example systems that were used by Comcast in its networks were shown at trial to actually perform the grooming function. [00:01:14] Speaker 02: I didn't read the testimony that way. [00:01:16] Speaker 02: I read the testimony of your expert as saying that a particular piece of equipment [00:01:21] Speaker 02: could provide the connectivity. [00:01:24] Speaker 02: I didn't see testimony that the system could work that way without modification. [00:01:33] Speaker 05: That testimony relates to what the manuals show the system is capable of doing. [00:01:40] Speaker 05: The system or the piece of equipment? [00:01:42] Speaker 05: The piece of equipment in the Comcast system. [00:01:45] Speaker 02: But is there a difference between the piece of equipment and the system? [00:01:49] Speaker 05: There is. [00:01:51] Speaker 05: There are different pieces of the architecture for how Comcast was using this in its sonnet networks, these flash wave pieces of equipment. [00:02:02] Speaker 05: There are also things called digital cross-connect systems and also direct cabling. [00:02:07] Speaker 02: So it's not as though they could sort of flip a switch and the system would function differently. [00:02:13] Speaker 05: No, this is the core functionality of the thing. [00:02:16] Speaker 05: You don't buy it. [00:02:18] Speaker 05: if you're not going to use it in that fashion. [00:02:20] Speaker 05: That was what Dr. Wilner testified to. [00:02:23] Speaker 05: I don't understand why you would buy this system to begin with, this piece of equipment, if you will, if you're not going to use it in the manner that's set forth in the manuals. [00:02:35] Speaker 05: It's not sort of an additional add-on functionality that you can sort of optionally use or not use. [00:02:44] Speaker 05: trial exhibits that were entered, there was evidence of how Comcast actually used these materials in its network. [00:02:51] Speaker 05: This is at appendix 74, 73, through 75, 79. [00:02:55] Speaker 05: There are two pieces of evidence. [00:02:58] Speaker 05: One is a deposition exhibit that Comcast 30B6 witnessed on the use of this equipment in Comcast networks used. [00:03:08] Speaker 05: And the other is an interrogatory response, which showed how, for each network, [00:03:14] Speaker 05: The pieces of the architecture were operating with each other. [00:03:19] Speaker 04: What were those pages with? [00:03:22] Speaker 05: Appendix 7473. [00:03:23] Speaker 05: What volume are we talking about? [00:03:26] Speaker 05: I believe it's volume three. [00:03:31] Speaker 04: Can you say the numbers again, please? [00:03:33] Speaker 05: Certainly. [00:03:34] Speaker 05: I'm sorry. [00:03:34] Speaker 05: Appendix 7473 through 7519. [00:03:41] Speaker 05: is one of the items. [00:03:43] Speaker 05: The other item is appendix 7520 through 7579. [00:03:49] Speaker 04: But those are gigantic documents. [00:03:53] Speaker 04: Can you focus on, at least for me, the Portland-San Francisco systems and the question of the cross-connect or some sort of connect system and the difference between configured [00:04:10] Speaker 04: and actual use. [00:04:13] Speaker 04: I want to stipulate at the moment, for purposes of this question, that the district court, in focusing on actual operation, departed from the actual requirement of configured to. [00:04:24] Speaker 04: What is the testimony that the, I think it's a Cisco system in those? [00:04:31] Speaker 05: It's called a DCS Cross Connect. [00:04:34] Speaker 04: Right, but a Cisco version of it, right? [00:04:36] Speaker 04: Yes, I believe that's right. [00:04:38] Speaker 04: 15454 or something? [00:04:39] Speaker 04: Yeah. [00:04:40] Speaker 05: So for Portland, to give you an example, it's at appendix 14862. [00:04:45] Speaker 05: There's a specific, I think it's called it. [00:04:49] Speaker 05: What volume is that in? [00:04:50] Speaker 05: 14862. [00:04:55] Speaker 05: Volume. [00:04:57] Speaker 05: I believe that one is in volume two of the appendix. [00:05:00] Speaker 04: 14862 is the last volume. [00:05:03] Speaker 05: Is the last volume. [00:05:26] Speaker 05: And what that is, is it shows that the same TEL Labs, this is a TEL Labs system, is present in both the van, for Vancouver and Beaverton. [00:05:36] Speaker 05: It's the same piece of equipment. [00:05:39] Speaker 02: Yeah, but that doesn't show system capability as opposed to device capability. [00:05:47] Speaker 05: Well, the device is what, within the system, provides that capability, configured to groom, to manipulate the sonic traffic. [00:05:55] Speaker 05: in its interrogatory response, in the larger materials that I cited to you, Comcast identified that this particular traffic running over this equipment is sonnet traffic, and that this shared equipment here is what is performing the claim elements. [00:06:18] Speaker 05: That's what we showed at trial. [00:06:20] Speaker 02: Yeah, but the problem is in this [00:06:23] Speaker 02: This technology is complex. [00:06:24] Speaker 02: I don't think the briefs did a great job explaining it to us. [00:06:29] Speaker 02: And what you have to show is something, some testimony in here, some evidence that the system [00:06:37] Speaker 02: had this capability. [00:06:40] Speaker 02: And I'm not seeing that because I can't make the connection between a particular piece of equipment having the capability and the system of having the capability. [00:06:53] Speaker 05: Well, there were three areas that we showed at trial that for the various networks these things were happening through direct connections, through DCS, and something called switching functionality in the flash wave equipment. [00:07:06] Speaker 05: And for the switching functionality, we did identify the program, the manuals that showed that the whole purpose of this equipment is to provide that switching functionality. [00:07:20] Speaker 05: That's the core purpose of it. [00:07:22] Speaker 05: It's not an optional software add-on. [00:07:24] Speaker 05: It is the whole reason that the piece of equipment exists. [00:07:28] Speaker 05: If you're buying it and you're using it in your network, then it is expected to carry forth the basic core purpose for what you're purchasing. [00:07:37] Speaker 05: Dr. Wilner's testimony. [00:07:38] Speaker 02: No, it isn't his testimony. [00:07:40] Speaker 02: He doesn't say that about the system. [00:07:42] Speaker 02: He says that about a particular piece of equipment. [00:07:48] Speaker 05: But that is the piece of equipment which performs that function in the system. [00:07:52] Speaker 05: And that was Dr. Wilner's testimony at trial. [00:07:57] Speaker 04: Can I just focus you on, I think, at least as I'm understanding it, is one segment of the arguments you're making. [00:08:06] Speaker 04: You've got arguments about the ring terminal, and I want to put aside everything for the moment except Portland and San Francisco and focus just on those two locations and just on the connection issue. [00:08:22] Speaker 04: And that has to do with this, as I understand it, the Cisco 15454 and the district court granted JMLL on that piece by saying, you didn't show that the systems actually operated in accordance with the claim requirement, notwithstanding a claim construction requiring only that they be configured to do so. [00:08:49] Speaker 04: So what I want you to try to tell me is what is the testimony and configured is different from here's a piece of equipment that if you added new software or reprogrammed could do it it has to actually be more or less subject to the flip of a switch to make it do it even if it's not in fact doing it. [00:09:07] Speaker 04: So what is the evidence for the proposition that it is configured to do this even if there's no evidence that it is actually doing it? [00:09:19] Speaker 05: The evidence is, we cite it, there's a great deal of evidence at pages 55 through 60 of our opening brief. [00:09:29] Speaker 05: But it is Dr. Wilner's experience in using this type of equipment, seeing from the interrogatory response. [00:09:39] Speaker 05: And this interrogatory response and the exhibit [00:09:43] Speaker 05: the deposition exhibit are very big pieces of material, but within them they each focus down on each of the regional networks and describe exactly what the pieces of the architecture are, and that is the evidence that we're relying on. [00:10:01] Speaker 05: Dr. Willner's experience and that information from the Comcast interrogatory response and the deposition exhibit. [00:10:12] Speaker 05: if I may serve time at this point. [00:10:16] Speaker 04: Do you want to say anything about the 832? [00:10:18] Speaker 05: I do. [00:10:19] Speaker 05: I absolutely do. [00:10:20] Speaker 05: I believe that the district court's summary judgment was an error. [00:10:25] Speaker 05: The district court did not look properly at what the inventive entity was. [00:10:31] Speaker 05: The Kaplan [00:10:32] Speaker 05: reference is not prior art under 102E. [00:10:38] Speaker 02: With respect to another question, I see testimony that the inventors of the 832 worked on these prototypes. [00:10:50] Speaker 02: Perhaps there's testimony that the prototypes [00:10:53] Speaker 02: embody the 832 invention, but I also see that testimony as saying that the 832 inventors worked with other people in developing those prototypes. [00:11:04] Speaker 02: So there is a testimony that the 832 inventors were responsible for the aspect of the prototypes that supposedly embodied the 832 invention. [00:11:15] Speaker 05: Well, the 832, I think in the Burnett Declaration, which is A2007, [00:11:22] Speaker 05: And the Vogue testimony does address that point. [00:11:27] Speaker 05: There's a difference between the inventive. [00:11:29] Speaker 02: It doesn't address that point, because all the testimony that I've seen, and maybe you can show me other testimony, the testimony that I've seen is that the 832 inventors worked with other people in developing these prototypes. [00:11:40] Speaker 02: And there isn't any testimony that the 832 inventors were the ones who were responsible for this aspect of the prototype. [00:11:50] Speaker 05: The other people that they worked with were the other people on the Kaplan reference. [00:11:56] Speaker 05: There's a difference between what's in the disclosure of Kaplan and what's in the claims in terms of naming inventive entities and inventors on the two separate patents. [00:12:05] Speaker 05: In fact, there's no evidence that they did not collaborate in that way. [00:12:09] Speaker 02: The 832 inventors were focused on that. [00:12:12] Speaker 02: That doesn't do it. [00:12:14] Speaker 02: You've got to have evidence that the 832 inventors were the ones who [00:12:19] Speaker 02: develop the aspect of the prototypes were supposedly embodying the 832 invention. [00:12:26] Speaker 02: And I just don't see that testimony. [00:12:31] Speaker 05: The different inventors in the testimony that we cited in the briefs talked about their respective contributions. [00:12:36] Speaker 05: The Kaplan is an overall network architecture patent. [00:12:40] Speaker 05: It describes the entire thing on both the system side or the network side and what's called the home or provider side, provider agent. [00:12:48] Speaker 05: The 832 patent is focused on the home side of that. [00:12:52] Speaker 05: And I believe that the deposition testimony does show that Mr. Bo, Mr. Bog, as it shows in the briefing, was one of the people that overlapped between those two teams. [00:13:08] Speaker 05: But it was the 832 inventors as reflected by the selection of inventive entities on the 832 patent itself. [00:13:14] Speaker 05: And we look at the claims that they worked on that aspect of things. [00:13:18] Speaker 05: It's reflected in the patent itself and the inventive entities. [00:13:21] Speaker 05: As opposed to the Kaplan claims, which are broader, go to the entire thing and thus name a different set of inventors, including Mr. Bob. [00:13:39] Speaker 02: Thank you, Mr. Gerritsen. [00:13:41] Speaker 02: We'll give you three minutes for your rebuttal. [00:13:43] Speaker 02: Thank you. [00:13:47] Speaker 01: Mr. Lear. [00:13:49] Speaker 01: May it please the court. [00:13:52] Speaker 01: Good morning, your honors. [00:13:53] Speaker 01: Matthew Lear of Davis Polk and Wardwell for Comcast. [00:13:57] Speaker 01: Let me start off with the sonnet issue. [00:14:02] Speaker 01: This is testimony from Dr. Wilner at the trial. [00:14:05] Speaker 01: And this appears at page 4565 of the appendix. [00:14:10] Speaker 01: I asked Dr. Wilner. [00:14:12] Speaker 01: Dr. Wilder, you have no idea how those flash waves in any single facility you identified today are actually operated in real life. [00:14:22] Speaker 01: Answer how they're actually operating? [00:14:24] Speaker 01: Question, yes. [00:14:25] Speaker 01: Answer, I do not know. [00:14:27] Speaker 04: But that's not the standard. [00:14:29] Speaker 04: The standard is how they're configured to operate. [00:14:31] Speaker 04: So that's suggested. [00:14:32] Speaker 04: And I think the district court bought the idea that those are equivalent, but they're not. [00:14:38] Speaker 04: So what is the evidence that? [00:14:41] Speaker 04: they're not configured to do it. [00:14:43] Speaker 04: Well, Your Honor, these... You're saying that they don't actually operate to do it, does not support JMOL. [00:14:51] Speaker 01: Your Honor, the FlashWave devices, which were used as exemplary devices, the FlashWave 4300 and FlashWave 4500, Sprint has cited essentially to the entire manuals. [00:15:07] Speaker 01: Those manuals describe how various cards can be [00:15:11] Speaker 01: plugged in and not plugged in, and how, for example, grooming can take place at various levels. [00:15:18] Speaker 01: One of the claims here requires grooming at both the STS level. [00:15:21] Speaker 04: Can you focus for me? [00:15:22] Speaker 04: The thing that I'm interested in is Portland and San Francisco, which was not based on the grooming ad drop multiplexing. [00:15:32] Speaker 04: It was based on this connection. [00:15:36] Speaker 04: piece of the claim requirement. [00:15:38] Speaker 04: And the district court, tell me if I'm wrong in remembering, said the problem there is that there's no evidence that they actually operate to perform this connection, which is not required by a configuration construction. [00:15:53] Speaker 04: They don't have to actually operate. [00:15:54] Speaker 04: All they have to do is be configured to operate. [00:15:57] Speaker 04: So the question is, was there sufficient evidence for a jury to find that they are so configured, even if they never actually do operate that? [00:16:07] Speaker 01: Respectfully, I don't believe so, Your Honor, because what, and you heard this from Mr. Gerritsen today, what Willner testified was, I look at the manuals, I'm experienced in these optical networks, I believe that somebody would configure [00:16:24] Speaker 01: these flash waves and these Cisco devices to operate in a specific way. [00:16:28] Speaker 04: There is no time... I'm not remembering those words. [00:16:31] Speaker 04: I'm remembering his words that say two or three times [00:16:35] Speaker 04: They allow this to happen allow sort of suggests maybe Configured and then the other thing is why would somebody have it if they're not using it? [00:16:45] Speaker 04: Which is a point about how he thinks they probably are actually using them for that neither one of which is Contrary to they are configured, but they never proved the first point your honor They never proved that they were in fact configured [00:17:02] Speaker 02: Oh, wait. [00:17:04] Speaker 02: Were you listening earlier about the difference between the equipment and the system? [00:17:07] Speaker 02: Yes, sir. [00:17:08] Speaker 02: Does this make sense? [00:17:09] Speaker 02: I mean, perhaps he testified that the equipment could provide connectivity of the type that's required by the clients. [00:17:18] Speaker 02: But he didn't testify that the system was configured that way. [00:17:23] Speaker 01: I think that's a fair distinction, Your Honor. [00:17:25] Speaker 01: I mean, Wilner never examined any individual facility. [00:17:30] Speaker 01: He had no idea how these operated in real life, as I just showed in his testimony. [00:17:37] Speaker 01: His basic theory was, if you look at these sonic connection systems that Comcast has, I, as somebody experienced in the art, would believe that you would configure a system to operate these OC-12 cards. [00:17:51] Speaker 02: I don't see that he testified to that. [00:17:53] Speaker 02: Where did he testify to that? [00:17:54] Speaker 01: I'm saying that is at most what he could say, Your Honor. [00:17:57] Speaker 02: What did he actually say? [00:17:59] Speaker 02: My recollection, and it may be mistaken, is that he testified only about the particular piece of equipment. [00:18:05] Speaker 02: Your Honor. [00:18:06] Speaker 02: That the equipment would have this capability, and he suggested, you know, why would you buy it if you didn't want potentially to have that particular configuration. [00:18:18] Speaker 01: Fair enough, Your Honor. [00:18:19] Speaker 01: That's exactly right. [00:18:19] Speaker 01: He focused on the individual flash wave systems [00:18:24] Speaker 01: put the manuals up and said, I look at these manuals, and I believe that somebody would configure something in this flash wave to achieve this end. [00:18:33] Speaker 01: That was basically his testimony. [00:18:37] Speaker 01: Can I move to ring terminal just for a second, Your Honors? [00:18:40] Speaker 01: Unless there's a need. [00:18:41] Speaker 01: So the issue that I think Sprint is still arguing on this appeal, even though they say they're not, is the single card theory. [00:18:51] Speaker 01: Because the claims require unique [00:18:53] Speaker 01: ring terminals, and they require unique ring terminals to perform the functions of add, drop, muxing, grooming, switching, sending, and receiving. [00:19:04] Speaker 01: And for example, they say in the reply brief that there was testimony from one of the Comcast Chicago employees, and this is at the reply 18, and they say there's testimony in the record that these individual cards are capable of [00:19:23] Speaker 01: grooming, and they cite to this testimony where our witness, this is at page 4835 of the record, where a Comcast witness said that the interface card provides multiplexing and demultiplexing, but they ellipsized the next part of the sentence, which said, but add drop is performed by the switch fabric. [00:19:44] Speaker 01: And then the following question, the witness says, that in fact, these cards cannot perform grooming specifically [00:19:52] Speaker 01: unless they use a switch fabric. [00:19:54] Speaker 01: So the case really met on whether or not the cards could be unique ring terminals when it's crystal clear from the manuals that Dr. Willner relied on that the switch fabric is mandatory in every instance. [00:20:13] Speaker 01: You cannot communicate from one OC-12 card to another OC-12 card [00:20:18] Speaker 01: communicate traffic across the spans as required by the sonic claims, unless you use a switch fabric. [00:20:25] Speaker 01: And it's indisputable that the switch fabric is common. [00:20:30] Speaker 01: So what the theory has changed over and over and over again, but it seems to me that the theory today as it stands is Sprint says two OC12 cards, for example, in a FlashWave 4500 in tandem can communicate traffic across the spans [00:20:48] Speaker 01: But the uniqueness is in the individual cards. [00:20:52] Speaker 01: It's back to the single card theory. [00:20:55] Speaker 01: And the testimony and the manuals are that an individual card cannot add drop mucks, cannot groom, and most definitely cannot switch, because that is what the switch fabric is for. [00:21:08] Speaker 01: So our position is that they basically reverted to the single card theory, and it just doesn't stand up to what the evidence shows about what these [00:21:18] Speaker 01: Devices do. [00:21:22] Speaker 01: So let me turn briefly to. [00:21:24] Speaker 02: Switch fabric is common, right? [00:21:28] Speaker 01: Yes, sir, and the manuals, let me give you the exact page. [00:21:37] Speaker 01: At appendix 10059, this is for the flash wave 4300. [00:21:45] Speaker 01: It says at the top that this plug-in unit is mandatory for all FlashWave 4300s. [00:21:50] Speaker 01: There's not even a question about this. [00:21:53] Speaker 04: Can I ask you, is supposing that the argument about switch fabric and therefore the ring terminals can't be their individual card or even possibly two cards if they're going to be unique and so on. [00:22:12] Speaker 04: My understanding, my recollection of the district court's opinion, is that that covers everything except Portland and San Francisco. [00:22:19] Speaker 04: Is that right? [00:22:20] Speaker 01: Portland and San Francisco and Seattle. [00:22:22] Speaker 04: Yeah, but with Seattle, he said it's one thing or the other, so that effectively covers that, right? [00:22:27] Speaker 01: Yes. [00:22:28] Speaker 04: So for Portland and San Francisco, what you were just talking about, you haven't yet discussed that. [00:22:33] Speaker 04: No. [00:22:34] Speaker 04: That's about the connection system. [00:22:36] Speaker 04: And my understanding of that is that the issue on which that piece turns [00:22:41] Speaker 04: is whether the systems there are configured to make certain connections. [00:22:47] Speaker 04: Connection for grooming or something. [00:22:50] Speaker 04: And on that, my recollection, just sort of going back to where I started, is that the district court said the element is not required because there's no evidence that they actually operate to do that. [00:23:02] Speaker 04: That seems to me an insufficient reason [00:23:05] Speaker 04: to conclude that they're not configured to do so. [00:23:08] Speaker 04: So what is, now this is going to be a new argument on your part, one that Judge Andrews did not articulate. [00:23:16] Speaker 04: What is the reason to conclude that there is no evidence that the system is configured, again, just for Portland and San Francisco, just on the connect piece to do what's required? [00:23:26] Speaker 01: Your Honor, I think our position is they didn't meet their burden of proof to show even that level, even the level that they were configured to. [00:23:33] Speaker 04: Even though Willner expressly said it, and the only supposedly killer, contrary colloquy was your colloquy with Willner about what they actually do, which doesn't go to what they're configured to do. [00:23:49] Speaker 01: Again, Your Honor, I think that what Wilner was saying, and I don't have the exact testimony in my fingers, but I think what Wilner was saying is, I believe, based on my experience about how people use these devices... You asked him questions completely focused on what they actually do, and so he responded to those questions by saying, I think they do it. [00:24:10] Speaker 04: What I keep focusing on is that's not the inquiry. [00:24:14] Speaker 04: Of course he was going to respond to you in the terms that you asked, but those are not the terms required. [00:24:21] Speaker 01: Fair enough, Your Honor. [00:24:22] Speaker 01: And what I'm saying is I don't think that Sprint met its burden to even show configured to. [00:24:28] Speaker 01: Willner can't just say, I believe they're configured to. [00:24:31] Speaker 01: I mean, these systems can be configured in multitudes of ways. [00:24:35] Speaker 01: I mean, that's the whole point of these large devices. [00:24:39] Speaker 01: You can switch, for example, at the VT level. [00:24:41] Speaker 01: I'm sorry, you can groom at the VT level, or you can not groom at the VT level. [00:24:45] Speaker 01: He had no evidence. [00:24:46] Speaker 01: There was no specific evidence. [00:24:47] Speaker 01: Virtual tributary. [00:24:51] Speaker 01: I'm sorry. [00:24:52] Speaker 01: If you look in the first claim that's at issue, that's still alive, claim seven, it says that it has to be able to groom specifically at the STS level, which is one measure of sonnet traffic, and the VT level, which is yet a smaller [00:25:08] Speaker 01: unit of sonnet traffic. [00:25:09] Speaker 01: There's no evidence from Willner that says, I looked at that specific device in San Francisco and determined that it was configured to groom traffic at the VT level. [00:25:21] Speaker 01: I don't know where that is in the record, Your Honor. [00:25:25] Speaker 04: Is there evidence from the manuals or otherwise that that capability requires some programming? [00:25:32] Speaker 04: Anything going the other way as opposed to [00:25:36] Speaker 04: It's there in what we send you out of, I don't know who makes these boxes. [00:25:40] Speaker 01: Most definitely, Your Honor. [00:25:41] Speaker 01: And forgive me, I don't have the exact page. [00:25:45] Speaker 01: But in the 4300 manual, for example, it discusses a number of different virtual tributary configurations that the owner can opt to use or not opt to use. [00:25:58] Speaker 01: So STS grooming is [00:26:02] Speaker 02: the common way that grooming is done and likely to... Is this the manual for the particular piece of equipment that he was testifying about? [00:26:07] Speaker 01: Yes, your honor. [00:26:08] Speaker 01: He testified broadly about two pieces of equipment, both of which were flash-wave Fujitsu flash-wave devices, the 4300 and the 4500. [00:26:17] Speaker 04: And those... I'm confused about that. [00:26:20] Speaker 04: I thought that was part of what he was testifying about, but for Portland and San Francisco, it was not the Fujitsu. [00:26:27] Speaker 04: It was the 550 NGXS [00:26:31] Speaker 04: things so that the Fujitsu manual wouldn't go to that piece of his system. [00:26:36] Speaker 01: That's correct, Your Honor. [00:26:37] Speaker 01: But again, I go back to, I don't see anything in the record where they say that device in Portland and San Francisco was configured to groom traffic at the VT level and specifically point to evidence where that happens. [00:26:52] Speaker 01: Because Willner was not, he didn't have those facts at his disposal. [00:26:57] Speaker 04: And in your Jamal motion, did you specifically say not only is there no evidence that they actually operate, but there's no evidence that they're configured and no evidence that, in particular, they're configured at this specific level? [00:27:14] Speaker 01: Your Honor, I confess I don't recall, honestly, exactly how we argued that. [00:27:19] Speaker 01: I'm sorry. [00:27:21] Speaker 01: If I could take one minute on the 832 patent. [00:27:26] Speaker 01: It's tautological that Kaplan discloses what is claimed by the 832 patty. [00:27:33] Speaker 01: It's agreed that Kaplan anticipates 832. [00:27:38] Speaker 01: So the only issue is, who thought it up? [00:27:41] Speaker 01: Either who thought it up, Your Honor, or who one of their other positions is that the 832 inventors invented a swore behind the inventive date of Kaplan, and they built a prototype. [00:27:54] Speaker 01: And the evidence in the record at best is ambiguous about what prototype was built, who built it, what it did, and when they did it. [00:28:05] Speaker 04: Well, ambiguous evidence is not enough to grant summary judgment. [00:28:10] Speaker 01: It's ambiguous from interested parties, Your Honor. [00:28:12] Speaker 01: It's not just ambiguous. [00:28:14] Speaker 01: It's people who are either co-inventors on the 832 or the prosecuting attorney, Mr. Sutter, who was a prosecuting attorney [00:28:21] Speaker 03: For Sprint I mean we have the testimony of the inventor and we are or we have a declaration from the inventor we have a testimony the patent attorney that the a32 invention occurred prior to the Kaplan patent which obviously requires corroboration right, but then we have corroboration in the Kaplan patent itself that a demonstration occurred prior to the date and [00:28:44] Speaker 01: I disagree with that respectfully, Your Honor, for two reasons. [00:28:47] Speaker 01: Number one. [00:28:47] Speaker 03: Let me ask you this. [00:28:48] Speaker 03: I think maybe I overstate it. [00:28:50] Speaker 03: Maybe Kaplan doesn't show when it occurred. [00:28:53] Speaker 01: I believe, Your Honor, it doesn't show that it occurred. [00:28:55] Speaker 01: Kaplan makes no reference to an actual device being prototyped and demonstrated. [00:29:00] Speaker 01: It's a patent application that says, we have an idea for a provider agent and a hub. [00:29:06] Speaker 01: There's nothing in Kaplan on its face that says, here are the results of a demonstration that occurred. [00:29:12] Speaker 01: that we use to make this patent application. [00:29:14] Speaker 01: That's point one. [00:29:15] Speaker 01: And point two, no 339 inventor, including Mr. Bog, testified that the 339 inventors didn't have some role in developing the provider agent and the communication hub. [00:29:32] Speaker 01: There's no evidence that the 339, I'm sorry, the Kaplan, there's 2339-5. [00:29:37] Speaker 01: The Kaplan inventors didn't have a role in developing the provider agent and the communications hub. [00:29:43] Speaker 01: So it's circular to say the Kaplan provides corroboration both of prior invention. [00:29:51] Speaker 04: So the general picture that at least I remember being presented with, and I don't remember, the question is sort of what is the particular evidence, is that [00:30:01] Speaker 04: Sprint had this fairly large project. [00:30:03] Speaker 04: The project had different components. [00:30:06] Speaker 04: The A32 team had this component. [00:30:10] Speaker 04: They worked together as a unit. [00:30:12] Speaker 04: You couldn't distinguish any of them. [00:30:14] Speaker 04: This piece of it clearly was conceived by somebody because it didn't spring into the Kaplan application with monkeys typing on a computer, on typewriters, and suddenly it appeared. [00:30:28] Speaker 04: It was conceived. [00:30:29] Speaker 04: The question is by who? [00:30:30] Speaker 04: Isn't there evidence that the way Sprint organized its big ion project had the piece that is subject to 832 and referred to in Kaplan came from what? [00:30:42] Speaker 04: the group working on that piece of the project. [00:30:45] Speaker 01: That's what the 832 inventors say, like Bernath. [00:30:49] Speaker 01: That's what Seder says, although he's pretty ambiguous about it, because his testimony was, I saw them messing around with equipment, et cetera. [00:30:56] Speaker 02: Wait, I don't recall any testimony that the 832 inventors were responsible for that aspect of the disclosure in Kaplan, or that they, as opposed to other people, [00:31:11] Speaker 02: were responsible for that aspect of the supposed prototype. [00:31:15] Speaker 01: That's correct. [00:31:16] Speaker 01: There's no testimony that says from any A32 inventor that says, I am responsible for what is in Kaplan. [00:31:26] Speaker 04: That's neither necessary nor what Judge Dyck said. [00:31:30] Speaker 04: The question is the inventive entity in A32, it's the group. [00:31:34] Speaker 04: Yes. [00:31:37] Speaker 04: isn't the story. [00:31:38] Speaker 04: That's the group that had that piece of the Sprint ion project. [00:31:44] Speaker 04: And there's no reason. [00:31:45] Speaker 04: And we together, I think Bog said, I never did anything by myself. [00:31:50] Speaker 04: I'm indistinguishable from my 832 colleagues. [00:31:53] Speaker 04: We did this. [00:31:54] Speaker 02: No, I don't think that Bog said that. [00:31:57] Speaker 02: I think that Bog said that the 832 inventors working with other people did this. [00:32:03] Speaker 01: That is exactly right, Your Honor. [00:32:04] Speaker 01: He testified that the [00:32:06] Speaker 01: Kaplan people building the broader invention were focused on the broader invention, and that the 832 inventors were working on the provider agent and the communications hub. [00:32:20] Speaker 01: But there's no testimony that says there weren't Kaplan inventors who were doing the same thing. [00:32:25] Speaker 01: The other point I would make, and I'm out of time, I realize, is the person who was best situated to determine who invented what was center. [00:32:34] Speaker 01: He testified, I was there, I was watching this. [00:32:37] Speaker 01: I wrote the cases. [00:32:39] Speaker 01: And he named a completely different set of inventors on Kaplan than on the A32 patent, with the exception of Bach. [00:32:47] Speaker 04: Right, because they're claiming different things. [00:32:48] Speaker 04: I mean, Kaplan does not claim this piece. [00:32:52] Speaker 04: Isn't that some actual affirmative evidence that there is somebody [00:32:58] Speaker 01: Missing from the Kaplan group responsible for the piece that's not claimed or you would have had to include them in the Kaplan your honor I don't I don't recall off the top of my head with the originally filed claims were on Kaplan But I don't know that there was a determination made when they named the inventors on cap on Kaplan who would ultimately be What the claims would ultimately look like that they could attribute back to the people that were named all I'm suggesting is that setter was sitting there and [00:33:26] Speaker 01: saying, this is the group that came up with what's disclosed in Kaplan. [00:33:30] Speaker 01: And that included the provider agent and the communications hub. [00:33:35] Speaker 01: I'm way out of time. [00:33:37] Speaker 02: Thank you. [00:33:38] Speaker 02: OK. [00:33:38] Speaker 02: Thank you, Mr. Lerner. [00:33:40] Speaker 02: Mr. Harrison, you have three minutes. [00:33:45] Speaker 05: Thank you, Your Honors. [00:33:47] Speaker 05: Briefly, in response to the 832 cabinet first, [00:33:52] Speaker 05: There is the applied materials case that the disclosure in Kaplan obviously was conceived before it was in there. [00:34:01] Speaker 05: And that should mean that it is not properly a 102E reference. [00:34:09] Speaker 05: The inventive entity on the 832 patent itself that the four people is, and you look at the claims of the 832 patent which were directed to the provider agent and the in-home portion [00:34:22] Speaker 05: the overall project shows that it's those four people that were working on that. [00:34:28] Speaker 02: I think the testimony we're talking about is on 2521. [00:34:33] Speaker 02: On page 111. [00:34:42] Speaker 02: And this is I guess Bob's testimony. [00:34:46] Speaker 02: He says all of these people that you've seen as co-inventors were involved at different levels. [00:34:50] Speaker 02: There were also people like the co-inventors of the E32 Pack that focused on more of the session manager and provider agent. [00:34:59] Speaker 02: But that doesn't say that they are the only people who did that, right? [00:35:06] Speaker 05: That does not by itself, that does not say that. [00:35:10] Speaker 05: In so many words, when you look at all, when you look at the Bernat Declaration, the A2007, when you look at who was named as inventors on the 832 patent, when you look at the differences in the inventors on the Kaplan patent versus the 832 patent, when you look at Mr. Setter's testimony, parenthetically, [00:35:28] Speaker 05: the district court made a credibility determination with respect to Mr. Setter that we feel was inappropriate. [00:35:33] Speaker 05: That is not the sort of thing you do on summary judgment. [00:35:36] Speaker 02: So where is the testimony that the 832 inventors were themselves, not part of a larger group, were responsible for the 832 invention is disclosed in capital? [00:35:52] Speaker 05: I think it's the fact that we're focusing on testimony [00:35:57] Speaker 05: Other than the testimony we've talked about, there is no testimony. [00:36:00] Speaker 05: But the naming of those people as inventors for the 832 claims, which Mr. Sutter was responsible for the prosecution here, is in itself evidence of what those four people were targeted on. [00:36:16] Speaker 05: Very briefly, with respect to the Portland and San Francisco [00:36:25] Speaker 05: You had asked about the Portland and San Francisco evidence. [00:36:31] Speaker 05: If you look at page 58 of our opening brief, there are some specific figures and there's specific record citations for both Portland and San Francisco that showed basically the same piece of equipment being used. [00:36:44] Speaker 04: And then with respect to the ring terminals, the situation- Mr. Lara, as I understood it, stood his response to one of my questions. [00:36:57] Speaker 04: put aside the Fujitsu manual, which he referred to, but let's suppose that there's a similar manual for the other piece of equipment. [00:37:06] Speaker 04: There's a Cisco or whatever it is for Portland and San Francisco. [00:37:11] Speaker 04: I think he suggested that if you look at that manual, you can't tell that the thing that comes out of the box would be configured to serve this connection function. [00:37:25] Speaker 04: It might require some actual new software, some reprogramming. [00:37:31] Speaker 04: It's not just flicking a switch. [00:37:34] Speaker 04: What's the evidence on that? [00:37:36] Speaker 05: I don't think that that's borne out in the record. [00:37:40] Speaker 05: I don't recall that being a contested issue that their expert testified on. [00:37:46] Speaker 05: I do not have a record citation at my fingertips for that. [00:37:50] Speaker 05: But Dr. Willner relied on [00:37:53] Speaker 05: Again, the interrogatory 10 and the deposition exhibit from their 30B6 witness who explained that this stuff was in the system and operating Comcast also produced system manuals that reflected what was, you know, how these things worked. [00:38:09] Speaker 05: Dr. Willner expressly relied on those as part of the trial record. [00:38:12] Speaker 05: So I don't have a specific point. [00:38:14] Speaker 02: System manuals as to how these things work? [00:38:16] Speaker 05: I say system manuals. [00:38:17] Speaker 05: The issue between system and equipment. [00:38:20] Speaker 05: for this particular piece, this DCS cross-connect, there is literature that comes with the product that was produced. [00:38:28] Speaker 03: But the problem with that is that DCS can do a lot of different things, including the disputed function, but it doesn't have to do the disputed function, does it? [00:38:37] Speaker 05: I think it's part of its core functionality. [00:38:38] Speaker 05: It's a digital cross-connect system. [00:38:40] Speaker 05: It's in the name. [00:38:41] Speaker 05: It's the whole point of this piece of equipment. [00:38:43] Speaker 05: It is huge. [00:38:44] Speaker 03: But isn't it true it can do other things? [00:38:48] Speaker 03: I mean, isn't this the problem? [00:38:50] Speaker 03: Not to the exclusion. [00:38:52] Speaker 03: I'm sorry, Your Honor. [00:38:53] Speaker 03: You both did a really bad job in explaining this technology to us, and I have no idea what's going on. [00:38:59] Speaker 03: But it seems to me that it's unclear, or at least not clear enough to overturn the fact that this, it doesn't necessarily show that this piece of equipment, even if it's manual says you can do it, [00:39:13] Speaker 03: use it to do this, that when put in this system, it was configured to do that in this particular system. [00:39:20] Speaker 05: it's part of its core functionality, whether or not it's... You're not answering the question yet. [00:39:24] Speaker 03: I mean, you're assuming because you say it's part of its core functionality that when it was put in the system, it was automatically configured to do that. [00:39:34] Speaker 03: And I agree, it doesn't have to actually do that. [00:39:36] Speaker 03: It has to be configured to do that. [00:39:38] Speaker 03: But there's a difference between this piece of equipment being capable of doing something in isolation and then being configured to do it when put in the system. [00:39:46] Speaker 03: And what have you pointed to [00:39:48] Speaker 03: beyond the fact that this is its core functionality. [00:39:52] Speaker 05: Dr. Wilner's testimony that in his experience, when you look at the evidence that Comcast provided about how these pieces of equipment were actually being used in their networks, when you see the literature that they produced that shows their core functionality, that when he looks at all of the information that Comcast provided in his experience based on his use of the systems, then this is [00:40:17] Speaker 05: has to be the way that they are being used. [00:40:19] Speaker 02: I don't recall that testimony. [00:40:21] Speaker 02: I read the testimony. [00:40:22] Speaker 02: I think you're overstating what he said. [00:40:24] Speaker 02: I don't remember his using the terminology core functionality, and I don't remember his saying that this is necessarily the way it would be used. [00:40:32] Speaker 02: He said that someone would buy this because it had the potential to do this. [00:40:37] Speaker 02: He didn't say that the only reason he would buy it would be to use it in this way. [00:40:45] Speaker 05: I think his testimony said that he wouldn't understand that you would have any other reason for buying it, but then to use it. [00:40:52] Speaker 05: Where did he say that? [00:40:53] Speaker 05: I don't recall that testimony. [00:40:54] Speaker 05: I think that's the fair import of his testimony. [00:40:56] Speaker 05: Where did he say it? [00:41:00] Speaker 05: He said it was highly unlikely to work differently. [00:41:02] Speaker 05: This is Appendix 4561. [00:41:06] Speaker 05: Which volume is this? [00:41:07] Speaker 05: Lines 4 through 8. [00:41:08] Speaker 05: Which volume? [00:41:09] Speaker ?: 2. [00:41:11] Speaker 05: 2? [00:41:11] Speaker 05: Volume 2. [00:41:12] Speaker 02: 4561. [00:41:20] Speaker 04: is where it says, actually, I'm highly confident that if you're going to buy a certain piece of equipment that it would be unusual, highly unusual to not, and this is, I think, the problem, to not have it potentially function that way. [00:41:34] Speaker 05: Well, there's also Mr. Raquel, their Comcast 30B6 witness, regarding the DCS and the functionality of it at 4, appendix 4466, lines 11 through 21. [00:41:51] Speaker 05: 4466. [00:41:59] Speaker 04: This is their witness? [00:42:01] Speaker 05: Yes, this is their witness. [00:42:06] Speaker 02: None of these witnesses says that this is the core functionality of this piece of equipment, right? [00:42:12] Speaker 05: This is the purpose for which it's being used. [00:42:15] Speaker 05: Mr. Norman, who is the inventor. [00:42:17] Speaker 02: Where did somebody say this is the purpose for which it's being used? [00:42:24] Speaker 02: There's a difference between the way you're articulating this and the way the witness articulated it. [00:42:30] Speaker 02: We don't care what you're saying. [00:42:33] Speaker 02: What we care is what the witness said. [00:42:35] Speaker 02: Where does the witness say that this core functionality of this equipment is this and that's the only way you would use it? [00:42:44] Speaker 05: He does not say it's the only way you can use it. [00:42:49] Speaker 05: He does not, there is no explicit testimony that it is impossible, that it is possible to use a DCS while disabling that core functionality that's talked about in the manuals that were laid out. [00:43:02] Speaker 02: The core functionality terminology doesn't appear here. [00:43:07] Speaker 02: That's your words. [00:43:10] Speaker 05: Understood, Your Honor. [00:43:11] Speaker 05: It was the material. [00:43:13] Speaker 05: When you look at the literature, the product literature that Comcast produced, this is what it talks about. [00:43:17] Speaker 05: This is what it does. [00:43:18] Speaker 05: This wasn't in a sub-addendum in chapter 72, additional things that you can do with this equipment. [00:43:25] Speaker 05: Where is the literature in the record that says this is the core functionality? [00:43:33] Speaker 05: It says these are the trial exhibits at the end [00:43:36] Speaker 05: of the Joint Appendix. [00:43:38] Speaker 05: There's a series of trial exhibits that show that there are specific excerpts from the manuals for this equipment. [00:43:50] Speaker 05: That's where it is. [00:43:51] Speaker 04: Do you have your fingertips, the relevant manuals, not for the Fujitsu devices, but for the Portland and San Francisco? [00:43:59] Speaker 04: I keep thinking it's Cisco devices. [00:44:01] Speaker 04: Is that right? [00:44:02] Speaker 05: There's different pieces. [00:44:03] Speaker 05: There's Tellabs pieces. [00:44:05] Speaker 05: I think there is a Cisco piece that you've referred to. [00:44:07] Speaker 04: The piece that Wilner was relying on putting aside the Fujitsu, he talked about those two, are the non-Fujitsu pieces for performing this cross-connect. [00:44:19] Speaker 05: I do not have that citation at the tip of my tongue. [00:44:22] Speaker 05: I apologize. [00:44:24] Speaker 02: OK. [00:44:24] Speaker 02: I think we're out of time. [00:44:25] Speaker 05: Thank you, Mr. Yaroslav. [00:44:27] Speaker 05: Thank you, Your Honors.