[00:00:05] Speaker 00:
Oh, on the last case, why don't counsel provide, within a week, a submission responsive to Judge Stoll's question and my question, maybe limited to five double-spaced pages each.

[00:00:23] Speaker 00:
Does that work?

[00:00:24] Speaker 00:
Thank you.

[00:00:40] Speaker 00:
Okay, our next case this morning is number 17, 2242 Erickson, Inc.

[00:00:46] Speaker 00:
versus Indirectional Ventures, Mr. Lowes.

[00:00:56] Speaker 04:
Good morning, Your Honor.

[00:00:57] Speaker 04:
This case involves the issue of the proper construction of transmitting a broadcast channel in a core band as found in claims 8 and 18 of the 431 patent.

[00:01:07] Speaker 04:
The primary

[00:01:09] Speaker 04:
area we should look to first is the claims themselves.

[00:01:11] Speaker 04:
And that's the issue that's really before us.

[00:01:14] Speaker 04:
The board didn't really consider the claims and the distinction between in a core ban and then later when they were talking about a different element of the claim, they used a more narrow specification being the preamble is confined within the core ban.

[00:01:30] Speaker 04:
And here the board adopted that same definition of confined within the core ban with respect to the broadcast channel simply being in a core ban.

[00:01:37] Speaker 01:
The board actually

[00:01:39] Speaker 01:
believe that you waved this argument because you never said you disagreed with the board or agreed with the board.

[00:01:47] Speaker 01:
All you did was make it clear that you didn't like the complicated construction that was proposed by the other side.

[00:01:54] Speaker 04:
And we disagree with that characterization.

[00:01:56] Speaker 04:
In our reply brief, we said that our arguments were the plain, ordinary meaning consistent with the board's institution decision.

[00:02:03] Speaker 04:
And we said that the limitations proposed by IV unduly limit the claim, and that we argued for plain and ordinary meaning, which was the construction of the word.

[00:02:11] Speaker 01:
But you said that there was no need for any construction.

[00:02:15] Speaker 04:
Right.

[00:02:16] Speaker 04:
Right.

[00:02:17] Speaker 04:
It's plainly understood.

[00:02:19] Speaker 04:
Something can be in.

[00:02:21] Speaker 04:
We don't need to construe the word in.

[00:02:24] Speaker 04:
For example, looking to the definition submitted by intellectual ventures, I think, at 1751,

[00:02:30] Speaker 04:
They use them in the water.

[00:02:32] Speaker 04:
And if I take my finger and I put it, just the tip of it, in the water, my finger's in the water.

[00:02:37] Speaker 04:
I could dump my finger in there and it would be completely in.

[00:02:39] Speaker 04:
In by itself doesn't tell you how much or the extent.

[00:02:43] Speaker 02:
It depends on the context, doesn't it?

[00:02:45] Speaker 02:
I mean, because if I said the chair is in the house, most people are going to think that means it's actually in the house.

[00:02:50] Speaker 02:
But if I said a creek is in the yard, that could be, of course, the creek is going to be outside of the yard as well as inside the yard, or it wouldn't be a creek.

[00:02:59] Speaker 02:
depending on the size of the yard.

[00:03:01] Speaker 02:
But anyway, doesn't it really depend on the context what N means?

[00:03:05] Speaker 02:
And here, there was some context that was provided by some extrinsic evidence, at least, that seems to have been unrebutted.

[00:03:12] Speaker 04:
It can depend.

[00:03:13] Speaker 04:
It certainly depends on the context of use and the specification.

[00:03:16] Speaker 04:
And with respect to that expert testimony, that was very limited.

[00:03:20] Speaker 00:
Was your whole point of the invention to have this information in the core

[00:03:26] Speaker 04:
No, Your Honor, there are two examples of this broadcast channel, and the expert only considered one.

[00:03:32] Speaker 04:
IB admits in their brief, I believe it's page 58, that the expert, or probably brief 48, they freely admit that while Dr. Zier was aware of the second embodiment, he chose not to consider it because he didn't think it was relevant to claim construction.

[00:03:48] Speaker 04:
Well, the second embodiment is exactly that.

[00:03:51] Speaker 04:
It's a broadcast channel that includes the primary preamble

[00:03:54] Speaker 04:
confined within the core band, but the rest of the broadcast channel includes additional bands that are sent to all the users of the broadcast.

[00:04:02] Speaker 01:
But that's not what we're talking about in terms of the claims that are issued here, are we?

[00:04:08] Speaker 04:
Yes, it is, Your Honor.

[00:04:10] Speaker 01:
The fact that there might be another way to have some aspects in the core band and other aspects not doesn't change the fact that the claim says in the core band.

[00:04:23] Speaker 04:
The patentee knew how to be specific, and if they wanted it to be confined within the core band, that's what they said.

[00:04:30] Speaker 04:
That's the public notice that they gave us, that the primary preamble is confined within the core band.

[00:04:37] Speaker 04:
As to the broadcast channel, just simply a part of it needs to be in the core band.

[00:04:41] Speaker 04:
So a broadcast channel in a core band.

[00:04:43] Speaker 04:
It's not later described in the patent at all as being more limiting.

[00:04:50] Speaker 00:
But help me understand what the purpose of the invention is here.

[00:04:54] Speaker 00:
This is complex technology.

[00:04:56] Speaker 00:
I'm not sure that I fully understand it.

[00:04:59] Speaker 00:
But I read the thing, and it seems to me as though the idea is let's put this in this critical information in the core band so it can be received by, what, all cellular phones?

[00:05:14] Speaker 04:
So you have to imagine that there are multiple cellular phones communicating with a base station.

[00:05:18] Speaker 04:
The example that the expert used was just one of those, a new phone coming in and just looking at this core band.

[00:05:26] Speaker 04:
The other phones are already in communication.

[00:05:27] Speaker 04:
They look at the full bandwidth.

[00:05:29] Speaker 04:
So the transmissions of the base station, which is what this claim is about, has nothing to do with mobile devices.

[00:05:34] Speaker 04:
It's about the base stations and what they transmit.

[00:05:37] Speaker 04:
So the transmitter is transmitting a broadcast channel to all users.

[00:05:41] Speaker 04:
It's just what is that mobile device using?

[00:05:43] Speaker 04:
And in this context, this new mobile device is using just that core band.

[00:05:47] Speaker 04:
to recognize, okay, what is the maximum bandwidth that all the other devices are using?

[00:05:52] Speaker 04:
There's additional information transmitted with that that's sent to all users.

[00:05:57] Speaker 04:
And that's explained in column five, 51 to 55, where it says the formation of the full bandwidth preamble, the FP, by adding the auxiliary preamble allows a base station to broadcast the full bandwidth preamble.

[00:06:14] Speaker 04:
So again, it's broadcasting it, meaning going to all users,

[00:06:17] Speaker 04:
and a mobile station to use the corresponding primary preamble to access the base station.

[00:06:24] Speaker 00:
Is the issue here whether the primary preamble has to be entirely within the core band?

[00:06:29] Speaker 04:
Yes, that's still within here because it's shown in Figure 8C.

[00:06:35] Speaker 00:
I'm not understanding your answer.

[00:06:36] Speaker 00:
Is the issue here whether the primary preamble has to be entirely within the core band?

[00:06:42] Speaker 04:
No, Your Honor.

[00:06:43] Speaker 04:
The issue here is whether the broadcast, what's broadcast to all users has to be solely within the core band, or if only a part of that broadcast needs to be in the core band.

[00:06:53] Speaker 00:
And here it's clear that that broadcast... I thought that, maybe I'm misunderstanding.

[00:06:58] Speaker 00:
I thought that the point of the invention here was that there's certain critical information that's put entirely within the core band, but that there can be other information which could be within other

[00:07:11] Speaker 00:
Am I misunderstanding?

[00:07:14] Speaker 04:
You're slightly misunderstanding.

[00:07:16] Speaker 04:
The information that's necessary for the initial startup of a device coming into the network is placed in that narrow band.

[00:07:23] Speaker 04:
But other information that all the devices already there are using, which is also control information, allows each of the mobile devices to communicate.

[00:07:33] Speaker 01:
Are you interpreting broadcast channel to be broader than you think the board interpreted it to be?

[00:07:39] Speaker 04:
No, I think broadcast channel is understood to be the signals using the channels that are actually sent to all the users.

[00:07:46] Speaker 00:
So if we look to the specification... So it would include all the information sent to the users?

[00:07:50] Speaker 04:
Yes, that's broadcast, meaning it's intended for all the users as opposed to going to a specific user.

[00:07:55] Speaker 01:
But you didn't ask for construction of broadcast channel.

[00:07:57] Speaker 04:
No.

[00:07:58] Speaker 01:
So how do you interpret broadcast channel as used in claims 8 and 18?

[00:08:03] Speaker 04:
It's the signals that are broadcast to the users.

[00:08:08] Speaker 04:
And the example

[00:08:09] Speaker 04:
Broadcast channel is not using the specification.

[00:08:11] Speaker 04:
Transmitting a broadcast channel is not in the written specification.

[00:08:15] Speaker 04:
The only disclosure here of actual broadcasting is with respect to the full bandwidth preamble, which includes all the bands plus the essential preamble or primary preamble that's in that core band.

[00:08:29] Speaker 00:
Do you agree that the preamble has to be entirely within the core band?

[00:08:33] Speaker 04:
Yes, Your Honor.

[00:08:34] Speaker 04:
It's explicit in the claim that the primary preamble is confined within the core band.

[00:08:39] Speaker 04:
That's how the patentee meant to be specific.

[00:08:44] Speaker 04:
When they use the word in, it's broad and general.

[00:08:47] Speaker 04:
It can have lots of connotations.

[00:08:49] Speaker 04:
It can be partially in or completely in the court ban.

[00:08:53] Speaker 02:
How do you respond to Dr. Ziegler's testimony that a person of ordinary scale and area would understand that any part of the broadcast channel not transmitted within the court ban

[00:09:05] Speaker 02:
is necessarily transmitted within a sideband, and that that's inconsistent with the invention.

[00:09:10] Speaker 02:
Do you think he has a different understanding of what any part of the broadcast channel is?

[00:09:16] Speaker 02:
Is he interpreting that just to be the essential preamble?

[00:09:19] Speaker 04:
I think he intentionally chose just not to look at the embodiment that literally describes what he said wasn't there, which is that the information is broadcast with a preamble.

[00:09:29] Speaker 04:
It's called the full bandwidth preamble.

[00:09:31] Speaker 04:
It's broadcast.

[00:09:31] Speaker 04:
It includes the primary preamble plus the auxiliary preamble.

[00:09:35] Speaker 04:
So he just didn't address that embodiment at all.

[00:09:38] Speaker 02:
His view was that the information in the core band would be sent before the information in the side bands, and so it would all have to be within the core band in order to operate correctly.

[00:09:49] Speaker 02:
I think that's what he was saying.

[00:09:51] Speaker 04:
But that is inconsistent with the specification.

[00:09:53] Speaker 04:
So that testimony, the specification, that information is all sent together.

[00:09:57] Speaker 04:
Now, the first device that's new may only use the core band, but the other devices that are already there will use the information in the full band.

[00:10:04] Speaker 01:
But do you agree that a broadcast channel can be limited?

[00:10:09] Speaker 04:
It could have been limited if they had said confined within the core band.

[00:10:15] Speaker 01:
Well, we'll get to the within in.

[00:10:18] Speaker 01:
But you agree that a broadcast channel can be different from, say,

[00:10:24] Speaker 01:
every other broadcast channel.

[00:10:25] Speaker 01:
There can be different kinds of broadcast channels.

[00:10:27] Speaker 04:
Yes, Your Honor.

[00:10:28] Speaker 04:
There can be different kinds of channels, yes.

[00:10:29] Speaker 01:
So then, if they're using the phrase a broadcast channel and then they say confined in the core ban, your next argument is within and in are different concepts.

[00:10:39] Speaker 01:
But isn't it true that everybody used the two interchangeably during the entirety of these proceedings?

[00:10:46] Speaker 04:
Not really.

[00:10:47] Speaker 04:
Certainly not intentionally.

[00:10:51] Speaker 04:
Within the specification itself,

[00:10:53] Speaker 04:
There is no disclosure of transmission in something, or transmitting in.

[00:10:58] Speaker 04:
That term's not used.

[00:11:01] Speaker 04:
In discussing the prior art, there were certainly discussions about whether broadcast channels are in or within the core band or the narrow band, as it's used in the prior art.

[00:11:13] Speaker 02:
The board emphasized that Erickson didn't rebut Dr. Zieger's testimony.

[00:11:19] Speaker 02:
Why was there no contrary expert testimony provided?

[00:11:22] Speaker 04:
Our expert rebutted his factual testimony relating to the references themselves, but his testimony concerning claim construction, he didn't consider the claims themselves.

[00:11:31] Speaker 04:
He didn't even consider this difference between confined within and in.

[00:11:34] Speaker 02:
He talked about how the invention, having something, having part of the broadcast not be in the core ban would frustrate the purpose of the patent.

[00:11:46] Speaker 02:
Why was that not responded to?

[00:11:48] Speaker 04:
It just wasn't at that time.

[00:11:50] Speaker 04:
It is now with respect to the second embodiment, which is the full broadcast preamble.

[00:11:55] Speaker 00:
What do you understand him to have been saying when he said it would frustrate the purpose of the patent not to have all the information in the core patent?

[00:12:07] Speaker 04:
I'm not exactly sure because he was referencing the other embodiment which says all the information is the primary preamble.

[00:12:16] Speaker 00:
Would you agree that it would frustrate the purpose of the patent not to have the preamble within the core band?

[00:12:23] Speaker 04:
Yes, because the new device entering the network would not be able to know how to transition to the full bandwidth, which is what's being transmitted.

[00:12:31] Speaker 04:
by the base station.

[00:12:32] Speaker 04:
And again, these claims are not about the mobile devices, as Dr. Zeiger was talking about.

[00:12:36] Speaker 00:
What's the information that's not in the preamble that's being transmitted?

[00:12:40] Speaker 04:
It's other signals that are for synchronization or other aspects that the other users need to maintain their communication sessions.

[00:12:49] Speaker 04:
So they're in there, you're having a phone call, they need to continue to stay synced up with the base station.

[00:12:54] Speaker 01:
But the preamble alone is a broadcast channel, is it not?

[00:12:59] Speaker 04:
It can be used as a...

[00:13:00] Speaker 04:
It can be transmitted in a broadcast channel.

[00:13:03] Speaker 04:
The preamble itself is really the information.

[00:13:06] Speaker 02:
Right.

[00:13:08] Speaker 02:
Do any of the claims that depend from claim eight or claim eight refer to the side bands?

[00:13:13] Speaker 02:
Or is it all talking about the core band?

[00:13:15] Speaker 04:
They're all referring to the core band.

[00:13:17] Speaker 04:
They don't refer to the side bands, I don't believe.

[00:13:20] Speaker 02:
So there's no reference to side bands.

[00:13:22] Speaker 02:
So that doesn't seem to support the position that the claim contemplates that information would be anywhere but the core band.

[00:13:30] Speaker 04:
It certainly, the claim is broad enough to encompass that the full bandwidth preamble includes other information.

[00:13:39] Speaker 04:
Really, the broadcast channel is not the part of this invention.

[00:13:42] Speaker 04:
It's about the preambles and the preamble properties and this preamble confined within a core band.

[00:13:47] Speaker 04:
The broadcast channel is just provided as a kind of a framework for describing what the base station is broadcasting.

[00:13:54] Speaker 04:
That is, it's broadcasting to all users.

[00:13:58] Speaker 00:
In the prior art,

[00:14:00] Speaker 00:
What does it show about the preamble being in the core band?

[00:14:05] Speaker 00:
Did the board read the priorities suggesting that part of the preamble could be outside the core band?

[00:14:13] Speaker 04:
No, the preamble itself was in the core band, in the VCH and FCH part of the Yama Yura reference.

[00:14:19] Speaker 04:
There was concern that it was silent as to are there any other signals sent outside.

[00:14:23] Speaker 04:
And so on that basis, the board said, well, it's silent.

[00:14:25] Speaker 04:
We don't know what might be out there.

[00:14:27] Speaker 04:
And so found it didn't satisfy the claims.

[00:14:32] Speaker 03:
Okay May it please the court this appeal is really about Erickson's 11th hour attempt to use a claim construction that it never before relied upon in the hopes of getting a third do-over of

[00:14:58] Speaker 00:
with respect to these challenge claims.

[00:15:00] Speaker 00:
Let's skip the hyperbole for a moment and just help us with the technology, okay?

[00:15:04] Speaker 03:
Okay.

[00:15:05] Speaker 00:
So, certainly the purpose of this invention is to have the preamble in the core band.

[00:15:12] Speaker 00:
Why is the purpose of the invention to have the rest of the signal information within the core band, which is, as I understand it, your contention, right?

[00:15:23] Speaker 03:
Yes, so

[00:15:25] Speaker 03:
At appendix 1503 to 1504, that's where Dr. Zeiger explains the purpose of the invention in light of the specification and his reading of it.

[00:15:35] Speaker 03:
But basically, the point of the invention is to improve communications for mobile stations that are moving or roaming in variable bandwidth environments.

[00:15:44] Speaker 03:
And so the patent describes the specific signaling and control methods that use the core bands.

[00:15:50] Speaker 03:
So what the base stations are doing is they're putting the essential

[00:15:53] Speaker 03:
information into the core band and non-essential information in the side bands.

[00:15:59] Speaker 03:
And so as a result, the mobile stations, as they roam from various variable bandwidth systems to others, they can at least just look at the core band to reach a primary state, and that core band has all of the essential information.

[00:16:15] Speaker 03:
And then once they reach this primary state of communications, they can transition to the full bandwidth operation.

[00:16:22] Speaker 01:
So in this context, your reference to a broadcast channel in the claims doesn't necessarily mean the entirety of everything that gets broadcast.

[00:16:32] Speaker 01:
It means a particular channel that has the essential or core information, not to use the word core twice.

[00:16:40] Speaker 03:
That is correct.

[00:16:41] Speaker 03:
I think one of the main assumptions that has been made by Erickson

[00:16:46] Speaker 03:
And it really was never explored below, simply because this issue was never raised below.

[00:16:50] Speaker 03:
And that's part of the problem here.

[00:16:52] Speaker 03:
And that's why the board believed that there was waiver.

[00:16:54] Speaker 03:
But aside from that, there's an assumption that's being made without any expert testimony that there's only one broadcast channel.

[00:17:02] Speaker 03:
And because there's a full bandwidth embodiment that's described later in the specification in a part that their expert never touched,

[00:17:13] Speaker 03:
They're assuming that everything has to be broadcast together, and therefore it has to be the full bandwidth.

[00:17:18] Speaker 03:
But here, if you look at the claim language, the claim language says a broadcast channel in the core band, in the OFDMA core band.

[00:17:26] Speaker 03:
So we're talking about a broadcast channel that's in the core band.

[00:17:30] Speaker 03:
That's not to say, and again, there's no evidence on this, because this was never raised below.

[00:17:34] Speaker 03:
That doesn't mean that there can't be other broadcast channels that are in the side bands.

[00:17:39] Speaker 03:
It just, again, simply was not raised.

[00:17:42] Speaker 03:
because this was an afterthought type argument.

[00:17:45] Speaker 01:
So there was no instruction of the term a broadcast channel.

[00:17:49] Speaker 01:
I'm sorry?

[00:17:50] Speaker 01:
The term a broadcast channel was not construed.

[00:17:55] Speaker 03:
No, it was really the whole phrase, you know, transmitting a broadcast channel in an OFDMA core band.

[00:18:04] Speaker 01:
But you agree with your friend on the other side that there can be different types of broadcast channels.

[00:18:10] Speaker 03:
Yes, although, again, there's no evidence of record, just attorney argument on that point.

[00:18:17] Speaker 00:
But is it accurate to say that claiming, for example, is only requiring that the preamble information be broadcast in the core band?

[00:18:27] Speaker 03:
The claim language at claims eight and 18 talk about a primary preamble that, let me find the exact language here, I'm sorry.

[00:18:39] Speaker 03:
The core band is used to communicate a primary preamble sufficient to enable radio operations.

[00:18:45] Speaker 03:
So there's not really a tying of the primary preamble to the broadcast channel in that particular claim element.

[00:18:53] Speaker 03:
But, you know, as we're talking about it, yes, the primary preamble information does need to be broadcast at some point.

[00:19:03] Speaker 03:
That's the essential information.

[00:19:05] Speaker 02:
Just the language in the core band.

[00:19:08] Speaker 02:
correlate to the primary preamble later in the claim, is it clear that the broadcast channel that's in the core band includes the primary preamble?

[00:19:18] Speaker 03:
I think that the broadcast channel that's in the core band can include the primary preamble.

[00:19:25] Speaker 03:
They're not the same thing, though.

[00:19:27] Speaker 03:
So again, a primary preamble is information, whereas a broadcast channel is simply a bunch of frequencies in which you're sending

[00:19:37] Speaker 03:
information so it's apples to oranges.

[00:19:38] Speaker 00:
But is this claim saying that something more than the preamble is in the core band?

[00:19:43] Speaker 00:
I'm sorry, I couldn't quite... Is the claim saying that something more than the preamble is in the core band?

[00:19:49] Speaker 03:
The claim doesn't say either way.

[00:19:51] Speaker 03:
The claim is just talking about a broadcast channel in a core band and the fact that a broadcast channel is in a core band does not mean that the primary preamble cannot also be within the core band.

[00:20:04] Speaker 03:
Erickson seems to be arguing that because

[00:20:06] Speaker 03:
primary preamble, the language says it's confined within a core band, means necessarily that the broadcast channel can't also be confined in the core band.

[00:20:18] Speaker 00:
I'm sorry, I'm not following what you're saying.

[00:20:21] Speaker 00:
If I understand correctly, there doesn't seem to be any dispute between the parties that the preamble has to be within the core band.

[00:20:27] Speaker 00:
That is true, the primary preamble.

[00:20:29] Speaker 00:
The primary preamble, and that that's true in the prior art as well, that the primary preamble is in the core band, right?

[00:20:35] Speaker 03:
Well, I mean, that was a dispute about the reading of the prior art, and obviously the board did not agree with Erickson's interpretation of the prior art.

[00:20:45] Speaker 00:
Well, as to the primary preamble being within the core band?

[00:20:49] Speaker 03:
About the primary preamble being within the core band?

[00:20:52] Speaker 03:
Well, again, that's not an issue that's on appeal here, because the only issue they were talking about was whether or not in Yamaura, the broadcast channel was transmitted in the core band.

[00:21:04] Speaker 03:
the discussion was whether or not in Yamayura, this BCH and FCH were only, those were, BCH and FCH were what they had called broadcast channels, and it was whether or not the entire broadcast channel was in what they said was a core band, which was a narrow band that only had calling signals in it.

[00:21:26] Speaker 01:
So there wasn't a debate about Yamayura and what information ended up in the core band?

[00:21:34] Speaker 03:
Not as to this particular claim element.

[00:21:37] Speaker 03:
The primary preamble was a later element that was discussed.

[00:21:42] Speaker 03:
And there were several different pieces of prior art that Erickson was relying on there.

[00:21:48] Speaker 02:
But we do think, really, that- Did the board rule on this issue?

[00:21:52] Speaker 02:
The question, the original question was, does the prior art teach the primary preamble being within a core band?

[00:21:59] Speaker 02:
Did the board rule on that issue, even though it's not on appeal here?

[00:22:03] Speaker 03:
It's not on appeal because the board didn't need to reach any of those issues.

[00:22:08] Speaker 03:
The board found for IV here that Erickson failed to show that the Yamayura reference taught or disclosed transmitting a broadcast channel in the core band.

[00:22:23] Speaker 03:
And because of that, there was no need to reach the many other issues with regard to the petition that was filed.

[00:22:31] Speaker 03:
But again, we do believe that one of the primary issues here is this claim construction challenge is untimely, and it's waived, and certainly this... Setting that aside for a minute, what about the argument, which is a pretty good one, I think, about how the claim language demonstrates that they knew

[00:22:48] Speaker 02:
how to make sure the content had to be confined within the core band versus just in the core band.

[00:22:55] Speaker 02:
As the claim talks about a frequency content confined within the core band, and that's narrower than in the core band.

[00:23:04] Speaker 02:
How do you respond to that?

[00:23:05] Speaker 02:
Because I know the specification also uses language like confined within.

[00:23:09] Speaker 03:
Yes.

[00:23:11] Speaker 03:
So we believe and we provided evidence to the court that in means within.

[00:23:18] Speaker 03:
So confined within, we do not believe, is any different than in with respect to, when you're looking at the context of this invention and the point of the invention, the whole point is that the base station is trying to put information in a core band.

[00:23:35] Speaker 03:
And that doesn't mean partially in the core band and partially outside the core band.

[00:23:39] Speaker 03:
That's exactly what Dr. Zeager was talking about at appendix 1503 and 1504.

[00:23:44] Speaker 03:
Dr. Zeager, in his unrebutted testimony,

[00:23:48] Speaker 03:
specifically pointed out, and I will say, I do want to point out one other thing, because I think that counsel may have misspoken when talking about what Ivy said at page 48 of its brief.

[00:24:01] Speaker 03:
Dr. Zeager considered all of the embodiments that were disclosed in the specification, including the full bandwidth embodiment.

[00:24:08] Speaker 03:
Appendix 1497 is the portion of the Zeager declaration where he actually talks about the full bandwidth embodiment, or at least

[00:24:17] Speaker 03:
acknowledges that it exists.

[00:24:19] Speaker 03:
He then, in paragraph 57, which is at appendix 1503 and 1504, provided unrebutted testimony that there is nothing in the specification that supports the board's preliminary construction.

[00:24:33] Speaker 03:
So namely, nothing in the specification, including the full bandwidth embodiment, that supports the board's preliminary construction, that a broadcast channel can be part in and part out of the core band.

[00:24:45] Speaker 03:
So that was unrebutted.

[00:24:47] Speaker 03:
Erickson had every opportunity.

[00:24:48] Speaker 00:
So your view is that under this invention, while the preamble information has to be within the core band, other information also has to be within the core band?

[00:24:59] Speaker 03:
Well, in this particular claim, all it's saying- Yes, in this particular claim.

[00:25:06] Speaker 00:
Is your contention that the other information that's being transmitted also must be within the core band?

[00:25:13] Speaker 03:
There is information.

[00:25:14] Speaker 03:
There's the essential information.

[00:25:17] Speaker 03:
that's necessary for the mobile stations to reach the primary state.

[00:25:20] Speaker 03:
That has to be in the core band.

[00:25:22] Speaker 03:
That doesn't mean that there's not other information that can be transmitted elsewhere.

[00:25:26] Speaker 02:
And if you look at the second part... Where is that in the claim?

[00:25:30] Speaker 02:
Where's... That this is information, essential information, has to be in the core band as opposed to other things.

[00:25:37] Speaker 03:
Okay.

[00:25:38] Speaker 03:
The essential information language is not specifically in the claim.

[00:25:42] Speaker 03:
At Appendix 41,

[00:25:45] Speaker 03:
column 5, lines 8 to 18.

[00:25:48] Speaker 03:
That's the portion of the specification that Dr. Zeager was looking at, and really all of the experts were focused on that particular part of the specification.

[00:25:59] Speaker 03:
The language that talks about, okay, there's the primary preamble is sufficient to enable basic radio operations, or to enable radio operations.

[00:26:10] Speaker 03:
That's basically the same thing as saying

[00:26:12] Speaker 03:
the essential information.

[00:26:14] Speaker 03:
It's what information is necessary for radio operations.

[00:26:18] Speaker 00:
The problem is, you say that the essential information is the same as the preamble information.

[00:26:23] Speaker 00:
That has to be in the core band, which they apparently agree with.

[00:26:27] Speaker 00:
There's no dispute about that.

[00:26:29] Speaker 00:
So the question is then, is it not?

[00:26:32] Speaker 00:
Whether in the prior art, this has also shown that the preamble information is within the core band, which

[00:26:40] Speaker 00:
I heard you say earlier was not an issue that was addressed by the board.

[00:26:46] Speaker 03:
Well, in the final written decision, again, the entire hearing and the main issue at the hearing was this broadcast channel in a court band.

[00:26:58] Speaker 00:
Is my statement incorrect?

[00:27:01] Speaker 00:
You all agree that the essential information, the preamble information has to be within the court band.

[00:27:07] Speaker 00:
The question then becomes,

[00:27:09] Speaker 00:
whether that feature, which is this invention, is shown in the prior art.

[00:27:14] Speaker 00:
And if I understand correctly from what you said earlier, the board did not address that particular question.

[00:27:20] Speaker 03:
Well, this is how I want to answer, Your Honor, to make sure.

[00:27:25] Speaker 03:
Because there are a few ambiguous portions in the question.

[00:27:30] Speaker 03:
So first of all, I want to make it clear that it's not any preamble that is within the chord band.

[00:27:35] Speaker 03:
It is the primary preamble as defined in the specification.

[00:27:38] Speaker 03:
So that's part one.

[00:27:42] Speaker 03:
Part two.

[00:27:42] Speaker 03:
At the oral hearing, what IV was able to establish is that the prior art showed calling signals in what they called the narrow band that they were equating with the core band, but there were other signals that are sort of unnamed.

[00:28:01] Speaker 03:
We don't know exactly all the types of signals, but we know that there were other signals

[00:28:06] Speaker 03:
that were transmitted outside of the Yama-Yura narrowband.

[00:28:09] Speaker 00:
Well, fine.

[00:28:10] Speaker 00:
But my question was, if this invention is having the essential information, the primary preamble information within the core band, then the question becomes, is that also shown in the prior art?

[00:28:27] Speaker 00:
And if I understand correctly, that that particular question was not resolved by the board.

[00:28:34] Speaker 00:
The question that was resolved... Can I help you here?

[00:28:37] Speaker 01:
Isn't it really what the Board was looking at?

[00:28:40] Speaker 01:
Is the broadcast channel that includes this essential information within the court band?

[00:28:48] Speaker 01:
Not necessarily does essential information end up in the court band, but is the particular broadcast channel that includes this information sent in the court band?

[00:29:02] Speaker 03:
Yes, except

[00:29:04] Speaker 03:
that the prior art that was relied upon only discussed sending calling signals in what they called the narrow band.

[00:29:12] Speaker 00:
Which is only part of the primary preamble information?

[00:29:16] Speaker 03:
Well, again, like we're looking at this and assuming that the prior art can somehow be used to construe the claims, and that's... No, no, no, no.

[00:29:24] Speaker 03:
That's just the answer to my question.

[00:29:26] Speaker 00:
I mean, is that the argument that in the prior art it only shows part of the primary preamble information in

[00:29:33] Speaker 00:
in the core band?

[00:29:35] Speaker 03:
No.

[00:29:36] Speaker 03:
The argument below was that the... Your argument.

[00:29:40] Speaker 03:
Our argument below that the board agreed with was that Yama Yura, what Erickson showed was BCH, which was the broadcast channel, having calling signals in the narrow band.

[00:29:55] Speaker 03:
But there were, and Erickson took the position that there were no other signals

[00:30:01] Speaker 03:
in the broadcast channel other than the calling signals.

[00:30:04] Speaker 03:
But that turned out not to be true.

[00:30:06] Speaker 03:
That's what IV showed to the PTAB at the oral hearing.

[00:30:11] Speaker 00:
What difference does it make that there are other signals?

[00:30:13] Speaker 00:
Because you said a few minutes ago that even under your invention there are other signals outside the core band.

[00:30:21] Speaker 03:
There can be other signals outside the core band.

[00:30:24] Speaker 03:
The problem is that doesn't mean that they're in the broadcast channel that's in the core band.

[00:30:29] Speaker 03:
So again, it's kind of going to this assumption that if there are signals outside of the core band, that doesn't mean that there can't be another broadcast channel outside of the core band.

[00:30:39] Speaker 03:
It's just that was never argued by Erickson.

[00:30:42] Speaker 01:
Isn't that your point that to the extent that there are other signals, those are sent by different broadcast channels?

[00:30:50] Speaker 03:
That is correct.

[00:30:51] Speaker 03:
And in fact, if you look at what we talked about, for example, if we're looking at the full bandwidth,

[00:30:58] Speaker 03:
preamble embodiment that Erickson relies on that wasn't raised below, dependent claim three specifically and expressly talks about a full bandwidth preamble, unlike claims eight and 18.

[00:31:12] Speaker 03:
And so, you know, obviously the case law shows that you don't have to read every single embodiment into every single claim, and certainly you don't have to read it into every single claim element, because even, and we pointed this out as well,

[00:31:24] Speaker 03:
If you look at claims 8 and 18, there is a second part.

[00:31:28] Speaker 03:
So the last portion of claim 8 talks about circuitry configured to transmit control and data channels using a variable band.

[00:31:36] Speaker 03:
So that's the second part of the claim.

[00:31:38] Speaker 03:
That's not the part of the claim that we're discussing here with respect to a broadcast channel in a core band.

[00:31:46] Speaker 03:
Here they're talking about the variable band.

[00:31:47] Speaker 03:
The variable band is the core band with side bands.

[00:31:51] Speaker 03:
That's different.

[00:31:52] Speaker 03:
So again, the point being that

[00:31:54] Speaker 03:
We don't have to read every single thing into the broadcast channel that's transmitted in a core band.

[00:32:02] Speaker 00:
Okay, I think we're out of time.

[00:32:03] Speaker 00:
Thank you, Ms.

[00:32:04] Speaker 00:
Wang.

[00:32:05] Speaker 00:
Okay, thank you.

[00:32:09] Speaker 00:
Mr. Lowes?

[00:32:10] Speaker 04:
Yes, Your Honor.

[00:32:11] Speaker 04:
If I could quickly address any area that there seemed to be some confusion on, and that is preamble.

[00:32:19] Speaker 04:
It's not like there's just one preamble.

[00:32:20] Speaker 04:
There are hundreds of preambles transmitted every minute.

[00:32:23] Speaker 04:
They just are constantly coming with every frame.

[00:32:26] Speaker 04:
And if we look to the patent, APX 40, column 3, line 52, the patent explains the downlink transmission in each frame begins with a downlink preamble, which can be the first or more symbols.

[00:32:40] Speaker 04:
And later it says the downlink preamble is used at the base station to broadcast radio network information, such as synchronization and cell ID.

[00:32:47] Speaker 04:
So these preambles keep coming.

[00:32:49] Speaker 04:
So a device enters the network.

[00:32:51] Speaker 04:
It receives its very first preamble.

[00:32:53] Speaker 04:
It only is going to use what's in the core band, because that's all it's listening to.

[00:32:57] Speaker 04:
All the other devices, 100 times a second, are looking at the full bandwidth, which is what's broadcast.

[00:33:03] Speaker 04:
But with different broadcasts.

[00:33:05] Speaker 04:
It's absolutely the same broadcast.

[00:33:07] Speaker 04:
It just picks out the middle versus the rest of the preamble.

[00:33:11] Speaker 02:
How are we supposed to deal with this, where it seems like part of the dispute here is over a broadcast channel, with one party arguing that it's the full thing, is the broadcast channel, and one party saying that a broadcast channel in

[00:33:23] Speaker 02:
the core band or in a separate one in the side band.

[00:33:27] Speaker 04:
I think the specification is where to look.

[00:33:29] Speaker 04:
There is no discussion of more than one broadcast channel being... Where the parties don't even bring this up before the board.

[00:33:35] Speaker 02:
They don't even bring up that there's a difference in opinion on how this should be interpreted.

[00:33:39] Speaker 02:
Why should we be interpreting it at this point?

[00:33:43] Speaker 04:
Obviously, it's part of the intrinsic record.

[00:33:44] Speaker 04:
It needs to be interpreted to understand the claims.

[00:33:46] Speaker 04:
No, no, no.

[00:33:48] Speaker 00:
Look, technology is complex as this.

[00:33:51] Speaker 00:
You can't ask us to take the claim language and the specification and simply understand how to construe the claims.

[00:34:00] Speaker 00:
You have an obligation to raise these issues before the board fully and to present expert testimony so that the thing can be understandable.

[00:34:10] Speaker 00:
What strikes me is that you didn't do what was necessary before the board.

[00:34:16] Speaker 04:
It seemed clear before the board that in, as compared to confined within, is broad.

[00:34:22] Speaker 00:
It's general.

[00:34:22] Speaker 00:
That's a very simplistic argument, which, I mean, you can tell from our questions that we're interested, as Judge Stoll said, in can have different meanings depending on the context.

[00:34:36] Speaker 00:
We're trying to understand the context here.

[00:34:39] Speaker 00:
And you just haven't made your record about why the context supports your interpretation here.

[00:34:46] Speaker 04:
I understand that, Your Honor, but the reference is actually very clear.

[00:34:52] Speaker 04:
The 431 patent that says the full bandwidth preamble is broadcast.

[00:34:58] Speaker 04:
That is a broadcast channel.

[00:35:00] Speaker 04:
That is what is broadcast, and it includes the primary preamble in the core band.

[00:35:05] Speaker 04:
It includes the other aspects that are broadcast, the side bands.

[00:35:09] Speaker 04:
It's all a broadcast channel because that's what's being broadcast.

[00:35:13] Speaker 04:
Those are the subcarriers being used.

[00:35:15] Speaker 00:
Okay.

[00:35:16] Speaker 00:
Thank you, Mr. Chairman.