[00:00:13] Speaker 04:
The next case for argument is 18-1014, Advanced Media Networks versus AT&T Mobility.

[00:00:56] Speaker ?:
Hmm.

[00:01:43] Speaker 04:
Mr. Carpenter, we're ready whenever you are.

[00:01:58] Speaker 02:
Good morning and may it please the Court.

[00:02:01] Speaker 02:
This appeal concerns the correct construction of two claim terms, Ethernet packet switching protocol and wireless LAN.

[00:02:09] Speaker 02:
The dispositive issue before this Court is this.

[00:02:13] Speaker 02:
whether IP is within the scope of the claim term Ethernet packet switching protocol.

[00:02:19] Speaker 03:
Before we get to Ethernet packet switching protocol, hypothetically, if we affirm the claim construction below and then necessarily affirm the summary judgment ruling, why would we need to address the wireless LAN claim construction issue?

[00:02:38] Speaker 03:
I don't see how it's

[00:02:39] Speaker 03:
it would impact the case.

[00:02:42] Speaker 02:
That is correct.

[00:02:43] Speaker 02:
That's the sort of fourth issue.

[00:02:46] Speaker 02:
And so only in the event that AMN wins on one of the first three that it raised, would the court need to decide wireless land.

[00:02:55] Speaker 02:
Okay.

[00:02:55] Speaker 02:
So I believe you're reading things correctly.

[00:02:57] Speaker 04:
That is the case.

[00:02:58] Speaker 04:
Can I ask you a related kind of process issue which the briefs list related cases?

[00:03:04] Speaker 04:
And you list a bunch of cases in Delaware.

[00:03:07] Speaker 04:
Have those been stayed based on this proceeding?

[00:03:11] Speaker 04:
And is the claim construction question that we have here the focus or a necessary credit kit to be decided in those pending cases?

[00:03:20] Speaker 02:
Yes, it has been stayed.

[00:03:21] Speaker 02:
And yes, this claim construction will likely be persuasive authority to that court.

[00:03:31] Speaker 02:
This is sort of a standards case.

[00:03:33] Speaker 02:
Our theory, Eamon's theory against all these telecoms is basically the same.

[00:03:39] Speaker 02:
We need IP to be within the scope of Ethernet packet switching protocol.

[00:03:43] Speaker 02:
Or at least have draft IAPP be allowed to be considered as whether or not that's within the court's original construction.

[00:03:52] Speaker 02:
But that's the second issue that was raised.

[00:03:55] Speaker 02:
The primary and dispositive issue is whether Ethernet packet switching protocol includes IP

[00:04:02] Speaker 02:
And I submit that this court is required to decide this as a matter of law.

[00:04:09] Speaker 02:
Two reasons.

[00:04:10] Speaker 02:
There's a 305 issue about whether the re-examined claims, which use the term internet protocol.

[00:04:17] Speaker 03:
Can I try to restate the issue of the case a little differently?

[00:04:21] Speaker 03:
And this is how I think I understand the case.

[00:04:24] Speaker 03:
The case is really about in terms of figuring out what does ethernet packet switching protocol mean.

[00:04:30] Speaker 03:
Does it necessarily require the use of either IEEE 802.3 or draft 802.11?

[00:04:41] Speaker 03:
And if it does, then that kind of resolves this case.

[00:04:49] Speaker 03:
And if it doesn't, then that's very helpful for you.

[00:04:53] Speaker 03:
Is that fair to say?

[00:04:54] Speaker 02:
I'm not sure I understood the last part of that.

[00:05:00] Speaker 02:
I submit that the emphasis needs to be placed on packet switching protocol first, and then let's figure out what ethernet means as a modifier.

[00:05:09] Speaker 02:
And so packet switching protocol is a level three network layer activity routing, and IP is the dominant packet switching protocol in the world today, as well as 96.

[00:05:17] Speaker 02:
So this claim term does not require 802.3, 802.11.

[00:05:25] Speaker 02:
It's indifferent to the layer two.

[00:05:29] Speaker 02:
except in this regard, as I was going to get into this, is that ethernet certainly had some meaning.

[00:05:38] Speaker 02:
It gave some meaning to it.

[00:05:40] Speaker 02:
I submit to you that it simply means a packet switching protocol that is suitable for use on communicating on a shared medium, i.e.

[00:05:48] Speaker 02:
an ethernet.

[00:05:49] Speaker 01:
Didn't you disavow the inclusion of IP within EPSP in prosecution?

[00:05:59] Speaker 01:
With examination?

[00:06:01] Speaker 02:
Absolutely not.

[00:06:03] Speaker 02:
Well, various courts have gotten that one wrong, starting with the GOGO court.

[00:06:08] Speaker 02:
And the reasons are this.

[00:06:14] Speaker 02:
From a 30,000 foot level, let me point out two sort of things that make this unique.

[00:06:18] Speaker 02:
You have to realize that AT&T is relying on, well, has four theories based on five or six different statements.

[00:06:28] Speaker 02:
And only the first theory is based at all on a sentence where ethernet packet switching protocol was even used.

[00:06:37] Speaker 02:
And then secondly, the four theories cover a wide breadth of technologies.

[00:06:43] Speaker 02:
There's the lower layers in CATS and the hidden terminal problem.

[00:06:47] Speaker 02:
There's the T1 line in norm oil, ATM, HDLC.

[00:06:53] Speaker 02:
So unlike many cases where, yes, maybe

[00:06:56] Speaker 02:
There were multiple statements, multiple documents relied upon.

[00:07:00] Speaker 02:
This isn't a case where there was an ongoing communication or correspondence with patent office and the patent office and the patentee continued to make progress and eventually a disavow occurred.

[00:07:14] Speaker 02:
That's not the case here.

[00:07:15] Speaker 02:
These are four disparate technologies.

[00:07:18] Speaker 02:
Only one statement uses the claim term at issue.

[00:07:25] Speaker 02:
has provided in its reply brief detailed explanations, a reasonable explanation of each statement and why that was not disclaimer.

[00:07:36] Speaker 02:
As this court knows, disclaimer has to be clear and unmistakable.

[00:07:41] Speaker 02:
Ambiguous statements are not enough.

[00:07:47] Speaker 02:
This burden has been described as a high burden.

[00:07:49] Speaker 02:
I submit to this court that the burden must be very high in a case such as this.

[00:07:55] Speaker 02:
where AT&T is asking or alleging that AMN disclaimed one of the two examples specifically given as an Ethernet packet switching protocol.

[00:08:10] Speaker 02:
Of course, I have set forth three statements in our briefing, but I'd like to review those if you don't mind, because I think

[00:08:23] Speaker 02:
once it's understood that ethernet packet switching protocol was specifically explained as including TCPIP three times in the spec, twice in the spec, once in the original file history.

[00:08:36] Speaker 02:
I think this, analogizing to other opinions from this court, I think this one is far different.

[00:08:44] Speaker 03:
I'm still trying to figure out why can't we read those two statements in the specification?

[00:08:51] Speaker 03:
in conjunction with the claim term and understand it to mean, well, what this patent owner is contemplating is using Ethernet 802.3 and or 802.11 at layer two and using TCP IP at layers three and four.

[00:09:10] Speaker 02:
Multiple reasons, but one is that right in the title of draft 802.11 and as admitted by their expert, Akampuro,

[00:09:19] Speaker 02:
802.3 and 802.11 are WAN standards, and this patentee was describing an invention that was going to interface with a WAN on one side and a WAN on the other.

[00:09:30] Speaker 02:
The claim doesn't say WAN, right?

[00:09:32] Speaker 02:
It says redundant microwave communication system.

[00:09:34] Speaker 02:
Right.

[00:09:35] Speaker 02:
And in the spec, it says something like wide angle network including a microwave, but redundant microwave communication system.

[00:09:44] Speaker 02:
So in our briefing, I did not, and in fact we abbreviated it,

[00:09:48] Speaker 02:
made clear, we're abbreviating redundant microwave communication system as WAN.

[00:09:53] Speaker 02:
But when I say WAN, that's what I mean.

[00:09:55] Speaker 02:
So the invention, claim one, is directed at an invention that is communicating, a mobile hub station communicating with a WAN, a redundant microwave communication system on one side and a LAN on the other.

[00:10:14] Speaker 02:
So the

[00:10:18] Speaker 02:
A person's skill in the art reading the spec, I think, would understand.

[00:10:22] Speaker 02:
A, it has to be wireless.

[00:10:23] Speaker 02:
8023 is not wireless.

[00:10:24] Speaker 02:
So you wouldn't automatically think, oh, that's what he's talking about.

[00:10:29] Speaker 02:
So looking at these three statements, the one at column two, lines 49 through 53, clearly state the ethernet packet switching protocol, such as the IEEE 802.10 protocol, or the TCPI protocol used on the World Wide Web.

[00:10:49] Speaker 02:
That worldwide web phrase, I think, is important because once skilled in the art, even in 96, would know that IP, in the words of one of the commentators, I believe it was Cannonball, is the glue, the linchpin of the internet.

[00:11:08] Speaker 02:
So just reading the spec, I believe once skilled in the art would immediately understand, because of the way it's defined, ethernet packet switching protocol

[00:11:19] Speaker 02:
Whatever else it means, means TCP IP.

[00:11:23] Speaker 02:
And I will also give you an example.

[00:11:26] Speaker 04:
Even if one knows nothing about the technology or what's going on here, wouldn't a normal observer just read those as being two different things, one protocol and a different protocol?

[00:11:39] Speaker 02:
I don't believe so, Your Honor, because reading the term Ethernet packet switching protocol, the mistake

[00:11:49] Speaker 02:
The go-go court made, and I believe the judge, well, I'm not quite sure, but I believe the mistake made below was that Ethernet is being construed as a standalone noun.

[00:12:00] Speaker 02:
And that's just defying the rules of English grammar.

[00:12:03] Speaker 02:
If you read the term Ethernet packet switching protocol, you know it's a protocol.

[00:12:09] Speaker 02:
You know it's packet switching.

[00:12:10] Speaker 02:
OK, so that's a universe.

[00:12:12] Speaker 02:
And then I know it has to be an Ethernet packet switching protocol.

[00:12:15] Speaker 02:
So then the question is, what does Ethernet mean as a modifier?

[00:12:20] Speaker 02:
In everyday life, we use words that can be standalone nouns in one context and can be modifiers in another.

[00:12:29] Speaker 02:
Baseball game.

[00:12:30] Speaker 02:
Nobody's going to say that the baseball game is the spherical object of baseball.

[00:12:35] Speaker 02:
Similarly with ethernet.

[00:12:39] Speaker 02:
Ethernet is used in the same way.

[00:12:43] Speaker 02:
Ethernet switch, ethernet cable.

[00:12:45] Speaker 02:
Nobody would say an ethernet cable is an ethernet.

[00:12:47] Speaker 02:
Nobody would say an ethernet switch.

[00:12:50] Speaker 03:
What if we just accept that there was a well-established meaning for this technical term of art, ethernet, for these types of communications?

[00:12:59] Speaker 03:
And ethernet is something that operates at the data link layer and is IEEE 802.3 and or 802.11.

[00:13:07] Speaker 03:
So that's an established technical understanding of ethernet and we accept that.

[00:13:15] Speaker 03:
Now we have to figure out what you mean by Ethernet packet switching protocol.

[00:13:20] Speaker 03:
And we have to figure out whether you said something so clearly enough in your specification that displaces and dislodges the well-established meaning of Ethernet.

[00:13:32] Speaker 03:
And so now I'm wondering when you say what you say about Ethernet packet switching protocol and using TCP IP or 802.10,

[00:13:41] Speaker 03:
why can't that mean, or why shouldn't the most logical understanding of this be, you can use IEEE 802.10 and or TCP IP in conjunction with the Ethernet standards at the data link layer.

[00:13:57] Speaker 03:
That is 802.3 and 802.11.

[00:14:00] Speaker 02:
Well, I just mentioned earlier, those standards wouldn't work on the redundant microwave communication system.

[00:14:07] Speaker 02:
That would be one reason.

[00:14:09] Speaker 02:
It's specifically identified as an example.

[00:14:12] Speaker 02:
And number three, you know, an example of an Ethernet Pack switching protocol is TCPIP.

[00:14:23] Speaker 03:
Let me try again.

[00:14:24] Speaker 03:
TCPIP can be used with 802.3 and 802.11.

[00:14:30] Speaker 03:
Is that right?

[00:14:30] Speaker 03:
They're compatible with each other?

[00:14:31] Speaker 03:
There's not something incompatible with them?

[00:14:35] Speaker 02:
Certainly not.

[00:14:37] Speaker 02:
is the dominant packet switching protocol throughout the Internet.

[00:14:41] Speaker 03:
And then the same thing with the security functions of 802.10.

[00:14:46] Speaker 03:
Those can be used with 802.3 and 802.11, right?

[00:14:50] Speaker 02:
Right.

[00:14:53] Speaker 02:
To define Ethernet packet switching protocol as limited to two standards that are not even mentioned and exclude TCPIP, I believe is error.

[00:15:04] Speaker 03:
I'm not trying to exclude DCPIP.

[00:15:07] Speaker 03:
I think I'm saying those are classic layers three and four protocols that you would use with the Ethernet at layer two.

[00:15:22] Speaker 02:
Maybe the claim term configured to transfer information between will give us some insight.

[00:15:28] Speaker 02:
The court said there had to be one common protocol on each side.

[00:15:33] Speaker 02:
The mobile hub station uses, it transfers information using an ethernet packet switching protocol.

[00:15:40] Speaker 02:
That means to a person skilled in the art, it's performing a routing function.

[00:15:45] Speaker 02:
Routing is a network layer three function.

[00:15:48] Speaker 02:
You can't, 802 specs are point to point.

[00:15:52] Speaker 02:
They're not getting zeros and ones accurately between point A and point B. It's not routing packets.

[00:15:58] Speaker 02:
IP is the packet switching protocol.

[00:16:01] Speaker 02:
that enables us to send a message to the other side of the world.

[00:16:06] Speaker 02:
802 will just get it to the next box.

[00:16:09] Speaker 02:
So we're going to run short on time.

[00:16:12] Speaker 02:
I'd like to save some time for rebuttal.

[00:16:14] Speaker 02:
Thank you.

[00:16:31] Speaker 00:
Good morning, and may it please the court.

[00:16:34] Speaker 00:
It is absolutely correct that Ethernet had a clear ordinary meaning to a person of ordinary skill in the art in 1996.

[00:16:40] Speaker 01:
But don't we know, isn't it a well-established rule that the patentee can be its own lexicographer?

[00:16:47] Speaker 01:
And aren't there several instances in the specification where it's indicated that TCP slash IP is within

[00:16:59] Speaker 01:
Ethernet packet switching protocol, such as, for example, in several instances.

[00:17:07] Speaker 01:
And then you have claim three, which is dependent, wherein the information is transferred using the TCPIP protocol.

[00:17:16] Speaker 01:
Doesn't that dominate any other so-called well-established meaning?

[00:17:22] Speaker 00:
It does not in this case, Your Honor.

[00:17:24] Speaker 00:
Certainly, to your first question, it is correct that the patentee may be his or her own lexicographer.

[00:17:29] Speaker 00:
But that is a very high bar to meet.

[00:17:31] Speaker 00:
It is, as this court has described in the foreigner decision in our briefs, an exacting standard.

[00:17:36] Speaker 00:
It must clearly express an intent to redefine.

[00:17:40] Speaker 00:
And there's an important policy behind that as well.

[00:17:42] Speaker 00:
Because if you have a situation, such as your question would posit here, where you have a word with such a clear, understood meaning to a person of ordinary skill as Ethernet had in 1996, if the patentee wished to define that differently, such that rather than operating at

[00:17:59] Speaker 00:
at level layer two, as Judge Jen observed, it operates instead with different protocols articulated by a different standards body at different layers, then that has to be very clearly expressed indeed.

[00:18:10] Speaker 01:
Isn't that very clear when it says such as, and for example, and then it does the same thing in other parts of the specification several times?

[00:18:23] Speaker 00:
It is not clear.

[00:18:24] Speaker 00:
It is perhaps inartfully drafted there, but it is not clear that there is a limitation of Ethernet to be a situation where, in AMN's view, it would be IP without Ethernet.

[00:18:36] Speaker 00:
And that's exactly... Everyone understood that you could use IP with Ethernet, and that's exactly what those examples in Figure 2 would be understood as being, because a person of ordinary skill in the art would know that IP is not Ethernet, but it could be commonly used as the higher layer protocols encapsulated in an Ethernet layer.

[00:18:53] Speaker 00:
at layer two.

[00:18:54] Speaker 00:
And further, the intrinsic record is also not so one-sided.

[00:18:58] Speaker 00:
There is, for example, comments as we pointed out in our brief at column three, lines 24 through 26, which talk about using wireless Ethernet in wireless LANs, which are the issues to which 802 standards are directed.

[00:19:14] Speaker 00:
TCP IP, on the other hand, is not restricted to use in LANs.

[00:19:18] Speaker 00:
Further, claim three reinforces the view

[00:19:20] Speaker 00:
that a person of ordinary skill in the art would have, because in claim one, all that's required is an Ethernet standard, Ethernet protocol, which operates as layer two.

[00:19:30] Speaker 00:
But claim three further says, well, you've also got to use TCPIP with your Ethernet protocol at the higher layers.

[00:19:36] Speaker 00:
And so there's a consistent view that one of ordinary skill in the art would have.

[00:19:40] Speaker 00:
And then when we get to the prosecution history, even without getting into the issue of disclaimer, there are multiple statements throughout the re-examinations in which the patentee said,

[00:19:50] Speaker 00:
that yes, in fact, by Ethernet packet switching protocol, what I mean is what's classically understood as being Ethernet.

[00:19:57] Speaker 00:
And for example, there were statements about a hidden terminal problem that Ethernet had, but that TCPIP did not have.

[00:20:05] Speaker 00:
And AMN made it very clear to the patent examiner that this problem only exists for Ethernet.

[00:20:10] Speaker 00:
Well, if it doesn't exist for TCPIP, then TCPIP can't be within the scope of Ethernet.

[00:20:18] Speaker 00:
AMN repeatedly said when confronted with prior art showing TCPIP being used over different layer two protocols, like ATM, HDLC, and T1, as only a few examples, AMN repeatedly said, no, no, no, that's not an Ethernet packet switching protocol.

[00:20:38] Speaker 00:
And so those statements in the intrinsic record, before we even get to the issue of whether they're a disclaimer, which they are for the reasons we pointed out in our briefing,

[00:20:45] Speaker 00:
They also illustrate in the intrinsic record that a person who already used to go in the yard would not see this as the clearly expressed intent to redefine a term to meet the exacting lexicography standard.

[00:20:58] Speaker 00:
In fact, the patentee here does not even argue lexicography in its briefs.

[00:21:02] Speaker 00:
It didn't do it here.

[00:21:03] Speaker 00:
It didn't do it below before the district court.

[00:21:05] Speaker 00:
So lexicography has not been an issue.

[00:21:08] Speaker 04:
Well, but you understand what his argument is.

[00:21:10] Speaker 04:
This argument is slightly different.

[00:21:11] Speaker 04:
It's that we don't have to take the definition or the well-understood meaning of Ethernet, because what we've got here is a whole claim term, so it might have a slightly modified meaning in the context of the other words used.

[00:21:25] Speaker 00:
Yes, but essentially, as they admit on page one of their opening brief, this appeal boils down to what does Ethernet mean.

[00:21:32] Speaker 00:
That's how they let off their brief, and that's absolutely correct.

[00:21:35] Speaker 00:
Nobody's disputing what a packet switching protocol is.

[00:21:38] Speaker 00:
And the word Ethernet is simply a modifier that further narrows it.

[00:21:42] Speaker 00:
There are many packet switching protocols in the ARC.

[00:21:45] Speaker 00:
Ethernet is one very specific type of packet switching protocol.

[00:21:49] Speaker 03:
Their argument would be... Is it a packet switching protocol?

[00:21:51] Speaker 00:
Ethernet?

[00:21:52] Speaker 00:
Yes, absolutely it is.

[00:21:53] Speaker 03:
I guess that's what I'm trying to understand.

[00:21:57] Speaker 03:
When I think of packet switching protocol, I think of things like TCP IP.

[00:22:03] Speaker 03:
Whereas Ethernet, which is going on at the data link layer,

[00:22:07] Speaker 03:
I don't necessarily think of as a packet switching protocol.

[00:22:12] Speaker 03:
So that's why I'm a little confused.

[00:22:16] Speaker 03:
I could understand perhaps an interpretation of Ethernet packet switching protocol as meaning a packet switching protocol that's running on the layer two Ethernet standard, right, and then that would include TCP IP.

[00:22:35] Speaker 03:
But I'm not so sure I understand that what is going on at the data link layer, layer two, with Ethernet itself is a packet switching protocol.

[00:22:46] Speaker 03:
Could you explain that?

[00:22:48] Speaker 03:
I mean, do you see what I'm thinking and how that seems to have some daylight between what you're thinking?

[00:22:54] Speaker 00:
I see the distinction certainly that you're making at that level, Your Honor.

[00:22:58] Speaker 00:
However, if we look at both the intrinsic record and AMN's own statements below,

[00:23:02] Speaker 00:
That's not how they've ever characterized it.

[00:23:04] Speaker 00:
First of all, in the intrinsic record, throughout the prosecution of the re-exams, AMN distinguished prior art that used a different layer two protocol than Ethernet by saying that's not an Ethernet packet switching protocol.

[00:23:17] Speaker 00:
They didn't just say that's not Ethernet.

[00:23:19] Speaker 00:
They used the full claim term, that's not Ethernet packet switching protocol.

[00:23:23] Speaker 00:
And furthermore, in the district court, they made the same argument.

[00:23:26] Speaker 00:
At appendix 426, for example, I'll quote from AMN's opening claim construction brief,

[00:23:33] Speaker 00:
It says, AMN agrees with the PTAB and does not dispute that the 802 standards are included within the scope of the term Ethernet packet switching protocol.

[00:23:42] Speaker 00:
The 802 standards, of course, everyone would agree are Ethernet protocols.

[00:23:46] Speaker 00:
So AMN has never taken that fine of a distinction between what a packet switching protocol is at different layers.

[00:23:52] Speaker 03:
So is it your understanding that Ethernet packet switching protocol is something we're referring to what's going on at layer two?

[00:23:58] Speaker 00:
Yes, so that is a term used in this patent and throughout the intrinsic record to define what's being referred to.

[00:24:04] Speaker 03:
So then it doesn't exclude the possibility of running TCP IP on layers 3 and 4?

[00:24:11] Speaker 03:
Absolutely not.

[00:24:12] Speaker 03:
So then why did the district court say Ethernet packet switching protocol excludes IP?

[00:24:18] Speaker 00:
What it excludes is IP running over a layer 2 protocol other than Ethernet, and that's what AMN's infringement contention is in this case.

[00:24:26] Speaker 00:
The issue here with AT&T is that on the cellular network, IP packets are used over the 3GPP protocol for 3G and 4G LTE networks.

[00:24:37] Speaker 00:
That is not Ethernet.

[00:24:38] Speaker 00:
So there is a different Layer 2 protocol being used in the alleged infringing devices and the allegedly infringing network.

[00:24:46] Speaker 00:
And so that's the issue is AMN wants to construe Ethernet packet switching protocol to mean using IP

[00:24:52] Speaker 00:
but not using ethernet at layer two, rather using some different layer two standard.

[00:24:58] Speaker 00:
And that's where the inconsistency comes with the prosecution history.

[00:25:02] Speaker 00:
During the re-exams, every time it was confronted with a layer two protocol, such as ATM, which is another packet switching protocol, it said, no, no, that's not an ethernet packet switching protocol.

[00:25:13] Speaker 00:
So the district court's construction does not eliminate

[00:25:16] Speaker 00:
the use of TCP IP from the claim.

[00:25:19] Speaker 00:
To the contrary, so long as TCP IP is used with Ethernet, it could infringe claim one or claim three of the patent.

[00:25:29] Speaker 00:
And so that's where the distinction is.

[00:25:31] Speaker 00:
It's really they're trying, in our view, they're trying to rewrite the word Ethernet out of the patent, out of the claim, by saying, OK, you can use IP, but you use a different layer, too, that's not Ethernet.

[00:25:43] Speaker 00:
And lo and behold, you still have an Ethernet packet switching protocol.

[00:25:46] Speaker 00:
And that would do violence to the claim language in our view.

[00:25:49] Speaker 04:
You mentioned the 802, but you're aware, I'm sure, that the district court went farther and did something a little different to your claim construction with regard to 802.10.

[00:25:58] Speaker 04:
Does that have any consequence that you're aware of, either in the infringement contentions in this case or in any of the other pending cases?

[00:26:09] Speaker 04:
I don't know if you have any involvement in that.

[00:26:10] Speaker 04:
Does it matter?

[00:26:11] Speaker 04:
I mean, do we reach that?

[00:26:13] Speaker 04:
Does it matter in this case or anywhere else?

[00:26:16] Speaker 00:
I don't believe it does, Your Honor, because what the district court did here was be even a little bit more precise than the GOGO court.

[00:26:22] Speaker 00:
The district court is correct that the applicable Ethernet standards are 802.3 for wired Ethernet and 802.11, which was in draft close to final form at the time, for wireless Ethernet.

[00:26:32] Speaker 00:
And that's another reason, frankly, that the specifications mentioned of 802.10 is consistent with the view that these are other standards that could be used with Ethernet but are not themselves Ethernet.

[00:26:43] Speaker 00:
802.10, as Your Honor recognizes, is a security protocol.

[00:26:46] Speaker 00:
that can be used with Ethernet 8023 or 80211 or other chapters of 802, but it itself is not Ethernet.

[00:26:54] Speaker 00:
So it is merely another, it's a security protocol that spans a couple of different layers that can be used along with what is Ethernet.

[00:27:01] Speaker 00:
But it's not correct for AMN to argue that Ethernet can be simply read out of this patent and instead the claim should apply to higher level protocols that aren't Ethernet and that are used under

[00:27:13] Speaker 00:
over lower labor protocols that themselves also aren't used to.

[00:27:16] Speaker 03:
I guess your opposing counsel today was talking about how wireless WOMs or WOMs can't be used with ethernet, so therefore it doesn't make sense to read it the way you and the district court want to read it.

[00:27:28] Speaker 00:
Yes, that was their argument.

[00:27:30] Speaker 00:
But again, there's no evidence of that.

[00:27:32] Speaker 00:
That's an argument they made here on appeal

[00:27:34] Speaker 00:
There's no evidence in the record to support that notion that they can't be used with WANs because that was not a contention that they made and developed below.

[00:27:43] Speaker 00:
And furthermore, as this court's authority on claim drafting holds, even if that were the case, they drafted the claim to recite Ethernet to say that you've got to use it on a WAN or a LAN, however you pronounce that.

[00:27:56] Speaker 00:
So it's up to them to draft the correct claims to cover the full scope of the invention.

[00:28:01] Speaker 00:
But there's simply no evidence in the record that it couldn't work because that wasn't a point that was probed below.

[00:28:06] Speaker 00:
It was only brought up here and fleshed out on appeal.

[00:28:10] Speaker 00:
In fact, as AMN admitted, 802 standards are Ethernet packet switching protocols, and so they fully were within the scope of what they contemplated within that claim term.

[00:28:23] Speaker 03:
Would it make a difference whether the claim construction for Ethernet packet switching protocol was

[00:28:30] Speaker 03:
what the district court said, which was a packet switching protocol defined by 802.3 and draft 802.11 versus a packet switching protocol that uses 802.3 or draft 802.11 or a packet switching protocol that relies on or is carried on 802.3.

[00:29:00] Speaker 03:
and 802.11.

[00:29:01] Speaker 00:
I don't think that last one would be correct, because that would talk about a different protocol at a different layer, perhaps.

[00:29:09] Speaker 00:
And I think at its heart, the construction, whatever the words use, needs to capture the fact that this Ethernet packet switching protocol must itself be Ethernet.

[00:29:19] Speaker 00:
Not merely that it's describing some higher layer protocol that perhaps theoretically could be carried on Ethernet, but need not be, because it could also be carried on a different layer to protocol.

[00:29:28] Speaker 00:
That's what AMN is trying to read the term as to capture IP without Ethernet.

[00:29:32] Speaker 03:
But the alternative construction I'm coming up with, it necessarily requires the usage of 8023 or draft 80211 operating on layer two in order to do whatever packet switching protocol you would be using at layer three.

[00:29:53] Speaker 00:
I think so long as those are required, as long as you're requiring 802.3 or 802.11 as a layer 2 protocol, then the specific wording perhaps is not as important, whether we use the word defined or we use different terms such as used.

[00:30:07] Speaker 00:
But at its bottom, it must use one of those 802 protocols that it would be considered and known by a person of ordinary skill in the art in 1996 to be Ethernet.

[00:30:18] Speaker 03:
Do you agree that the wireless

[00:30:23] Speaker 03:
land claim construction issue is not an issue on this appeal if we were to affirm the claim construction on Ethernet switching protocol?

[00:30:32] Speaker 03:
I do, Your Honor.

[00:30:33] Speaker 00:
I do, Your Honor.

[00:30:33] Speaker 00:
Yes, absolutely.

[00:30:36] Speaker 00:
And so unless there are any other questions, the last thing I want to do is just point to two decisions in our brief, and this is at page 31 of our response brief, the Ankara versus Apple decision and the Bayer-Agro versus Dow-Agro decision.

[00:30:49] Speaker 00:
Those are both cases where this court found

[00:30:51] Speaker 00:
that the patentee had not expressly redefined the claim term and talk about the public notice of policy behind requiring a clear redefinition in a case where, as was the case there and is the case here, a technical term, a scientific term, is so well established in the art that we've got to have something very clear to redefine it to mean something differently.

[00:31:10] Speaker 00:
And AMN should not be permitted to redefine it here because the patent does not clearly do so.

[00:31:16] Speaker 00:
Unless you have other questions, thank you very much, John.

[00:31:24] Speaker 02:
My time is short, but I'll cover the highlights here.

[00:31:29] Speaker 02:
The distinction in the file history that was being made in the later prosecution history, 12 years after the patent issued, was the difference between circuit switch, a circuit switch technology like T1 or ATM versus packet switching.

[00:31:44] Speaker 02:
That was the distinction that was being made.

[00:31:46] Speaker 02:
And that, in fact, as we have explained in the Finner patent that's on the face,

[00:31:52] Speaker 02:
Packet switching and circuit switching were two different technologies, and the world was emerging from circuit switch going toward packet switch, which is what dominates today.

[00:32:07] Speaker 02:
A colleague here has, I believe, taken too harsh of a view of lexicography.

[00:32:13] Speaker 02:
The more modern statement of claim construction, spinning off this Phillips or following up on Phillips, is the trustees case that we cite.

[00:32:21] Speaker 02:
where it's all about context.

[00:32:25] Speaker 02:
You can define a term by implication.

[00:32:27] Speaker 02:
The only thing that matters is how a word is used in the specification.

[00:32:33] Speaker 02:
And here, I submit to you that Ethernet Packet Switching Protocol was consistently defined, or at least given as an example.

[00:32:43] Speaker 02:
TCPIP was given as an example of an Ethernet Packet Switching Protocol.

[00:32:47] Speaker 02:
Yes, we conceded below that

[00:32:50] Speaker 02:
802.10 had to also be included because it's also given as an example.

[00:32:55] Speaker 02:
The district court's construction reads out both examples given.

[00:32:59] Speaker 02:
As we showed in our... Is 802.10 a packet switching protocol?

[00:33:03] Speaker 02:
As we showed in our reply brief, if you look at the diagram out of 802.10, it extends... Right here, page 16.

[00:33:15] Speaker 02:
You'll see in this picture that it extends

[00:33:18] Speaker 02:
above layers one and two and goes into layer three.

[00:33:22] Speaker 02:
And that is because 802.10 utilized layer three to manage the lower layers in the security function.

[00:33:30] Speaker 03:
Yeah, it's a security protocol.

[00:33:31] Speaker 02:
Exactly.

[00:33:32] Speaker 02:
But is that package switching protocol?

[00:33:33] Speaker 02:
There's a dependent claim that is directed at a secure intranet.

[00:33:38] Speaker 02:
So I would speculate that that's what the writer had in mind when he threw that in.

[00:33:47] Speaker 02:
Regardless of whether 802.10 is in or out, I submit to you that Ethernet has to be construed as an adjective, as a modifier.

[00:33:56] Speaker 02:
Packet switching protocol is the universe that we have to start with.

[00:34:00] Speaker 02:
And there were a number of them.

[00:34:01] Speaker 02:
Because in Ether 802.3, or Dick's Ethernet, there was an Ether type.

[00:34:07] Speaker 02:
And you had multiple packet switching protocols that had Ether types that were suitable for use on Dick's Ethernet, which was the first

[00:34:15] Speaker 02:
Ethernet and that Ethernet actually means Dix Ethernet, not IDO 2.3 as of 96.

[00:34:21] Speaker 02:
So when I say that Ethernet packet switching protocol, what I say it means is it's a packet switching protocol, IP would be the first one that would pop into somebody's mind after reading this, and then ask, well, what did it mean by Ethernet?

[00:34:37] Speaker 02:
And I'd think, oh, it's one that would be suitable for use on communicating over a shared medium, an Ethernet.

[00:34:44] Speaker 02:
such as one of these that had an ether type.

[00:34:46] Speaker 02:
And then Claim 3 wraps it all up.

[00:34:49] Speaker 02:
Claim 3 narrows Claim 1 by specifically requiring that the packet switching protocol be TCPIP, as opposed to one of the others.

[00:34:57] Speaker 03:
Does it say it like that?

[00:34:59] Speaker 03:
It doesn't quite say it like that.

[00:35:01] Speaker 02:
I think the word information, yeah, it would have been a lot more helpful if it had said where it would have been a lot more helpful.

[00:35:07] Speaker 02:
But information looking at the antecedent basis above, it's the information being transferred

[00:35:13] Speaker 02:
by the mobile switching unit, mobile hub station, that utilizing using an Ethernet packet switching protocol.

[00:35:25] Speaker 02:
So I hope that answered your questions.

[00:35:28] Speaker 02:
I believe I'm out of time.