[00:00:00] Speaker 04: The 17, 1896 IP Company LLC against Emerson elected Mr. Gonzales. [00:00:14] Speaker 01: Your Honor, at the outset I would like to say that having had been a judge at the Patent Trial and Appeal Board for three years that the vast majority of the time they do a very good analysis and [00:00:25] Speaker 01: their decisions are correct. [00:00:27] Speaker 01: But we'll respectfully argue... The thing is this is on tape. [00:00:33] Speaker 01: I don't have that many friends, so I don't want to... The friends that I do have that are still there, I don't want to lose them. [00:00:40] Speaker 01: But I do want to very respectfully explain that the board's claim construction decisions in this case are not correct. [00:00:52] Speaker 01: And that once the claim construction decisions that if [00:00:55] Speaker 01: the claims would have been construed correctly, then the prior rot would not have taught the claim limitations. [00:01:04] Speaker 01: The first one that I want to talk about is the map of data packet transmission paths to a plurality of second nodes of said first network. [00:01:15] Speaker 01: And there's a similar claim about a map of transmission paths. [00:01:23] Speaker 01: So whether it's data packet transmission paths in claim 12 or a map of transmission paths in claim 15, the terms are very similar. [00:01:34] Speaker 01: Now, the interpretation that the board gave is that paths, that just one path could meet this claim limitation. [00:01:47] Speaker 01: And I believe that's improper because the broadest and reasonable construction [00:01:53] Speaker 01: of a term ending in an S, like, for example, the claimed term paths, would ordinarily be understood as being plural. [00:02:01] Speaker 01: In fact, at the deposition of Dr. Heppe, I asked him, one of ordinary skill in the arts, seeing the term paths with an S at the end, would they understand that term to refer to two or more paths? [00:02:16] Speaker 01: And his answer was, I mean, the word is plural, so the presumption is that it would be more than one path. [00:02:24] Speaker 01: He went on to say there may be some examples you can come up with that is kind of strange, but most people would recognize the word spelled P-A-T-H-S as plural. [00:02:36] Speaker 03: Now, although... If the thing had actually said a map of the existing transmission paths, I don't think I'd have any difficulty, or other people would either, in understanding that that meant whatever transmission paths there are, even if that were only one. [00:02:56] Speaker 03: The last step is to say that the phrase map of transmission paths can reasonably be understood to mean map of the existing transmission paths. [00:03:13] Speaker 01: The whole idea of the patent is from start to finish. [00:03:17] Speaker 01: is about a new technique for determining how paths should be chosen and selected in a wireless network. [00:03:26] Speaker 03: That's a different point from the word itself, because it has an S on it, mandates that there be more than one of those things. [00:03:38] Speaker 01: Right. [00:03:38] Speaker 01: That is a second reason why the board's claim construction is incorrect, because it's inconsistent with the specification. [00:03:45] Speaker 04: What about the rest of the claim language that talks about, and I understand the board relied on the language like at least one second node and that there would be a transmission path from the second node to the gateway to be directly from the second node to the gateway, saying that this language in the claim supports the idea that the existing paths might just be one? [00:04:11] Speaker 01: Well, I think if you look at the claim itself, [00:04:14] Speaker 04: like the breadth of the claim itself. [00:04:17] Speaker 04: In other words, supporting the idea that there's one path. [00:04:26] Speaker 01: Well, various limitations in the claim would limit it differently. [00:04:30] Speaker 01: So maybe you would read a portion of it and you would say, well, maybe it covers one path. [00:04:36] Speaker 01: But as you continue reading and you see the word S at the end of path, then that means there has to be more [00:04:43] Speaker 01: And also the surrounding claim language talks about how these paths would be selected. [00:04:51] Speaker 01: For instance, it says, I'm looking at page 109 of the appendix, it says that the transmission path of a second node to the gateway can be directly from the second node to the gateway or indirectly to the gateway through one or more other second nodes of the first network. [00:05:10] Speaker 01: So even when it's describing the network, [00:05:13] Speaker 01: It refers not to one, the second nodes of the client nodes. [00:05:17] Speaker 01: The first node would be the server node. [00:05:19] Speaker 01: But it doesn't just refer to a network that the surrounding claim language, when it describes the network, it doesn't just refer to a network that has only one client node or only one second node. [00:05:32] Speaker 01: It's throughout the language of the claim, it's also referring to other second nodes as an S at the end. [00:05:39] Speaker 01: So the claim itself limits the network to not having just [00:05:43] Speaker 01: one second node, one client node. [00:05:46] Speaker 01: It also indicates explicitly in the claim language that there can be, there are more, the claim requires more than one client node, more than one second node. [00:06:03] Speaker 01: And in fact second node appears, second nodes with an S at the end appears multiple times. [00:06:09] Speaker 01: Now there was no [00:06:10] Speaker 01: Although inventors may provide a special definition of a claim term, they must do so with reasonable clarity, deliberateness, and precision. [00:06:19] Speaker 01: This is the in Ray Paulson case that I cited in my brief. [00:06:22] Speaker 01: Now, there's nowhere in the 314 patent where the inventor provided a special definition of the word paths with an S at the end to mean that it's simply singular. [00:06:37] Speaker 01: The surrounding claim language in claim 15 recites that the digital controller dynamically updating the map of transmission paths, adding and removing second nodes. [00:06:51] Speaker 01: Again, second node is the client node. [00:06:54] Speaker 01: It's plural. [00:06:55] Speaker 01: The claim is requiring a network that has more than one node. [00:07:02] Speaker 01: It requires [00:07:05] Speaker 01: It uses the plural form of second nodes. [00:07:07] Speaker 01: It requires more than one. [00:07:11] Speaker 01: And then it says changing the transmission paths of the at least one second node to optimize the transmission paths. [00:07:17] Speaker 01: Over and over and over again, it's referring to path in its plural form. [00:07:26] Speaker 01: Claim 15 also recites said digital controller changes the transmission paths from second nodes [00:07:32] Speaker 01: to optimize the transmission path. [00:07:34] Speaker 01: They're second nodes, meaning there's more than one client node. [00:07:38] Speaker 01: Transmission paths with an S at the end means there's more than one transmission path. [00:07:51] Speaker 01: Emerson's argument that the board's claim construction is supported by the specification is also without merit, and it's not supported by any expert testimony. [00:08:00] Speaker 01: The various portions of figure two that the petitioner referenced are not different embodiments. [00:08:07] Speaker 01: Rather, and this I'm quoting right from the patent, which is at page 99 of the appendix, column six, lines 25 through 28, figures 2A through 2G, 2H prime to 2H double prime, and 2I to 2O. [00:08:25] Speaker 01: I used to describe a prototype of the wireless network system of figure one, [00:08:29] Speaker 01: illustrating both the path connection and path optimization process of the present invention. [00:08:36] Speaker 01: So there, the inventor is explaining that the various portions of Figure 2 illustrate different scenarios that are referenced to explain how the claimed connection and optimization processes of the 314 patent work. [00:08:51] Speaker 01: Indeed, if you look at the portions of Figure 2 that are at 2f, 2h' and 2h'' [00:08:58] Speaker 01: There are many paths from the client to the various servers that are in the network. [00:09:05] Speaker 01: Now, the petitioner did not cite to either of the two declarations or either of the two depositions of expert, Dr. Heppey, to support the argument that petitioner now sets forth in this appeal with respect to Figure 2. [00:09:20] Speaker 01: And so the petitioner's position is set forth before this court is based on mere attorney argument, which is given no weight. [00:09:27] Speaker 01: I cited the Inrei Geisler case in my brief for that principle. [00:09:35] Speaker 01: Also, Petitioner did not make any argument with respect to a portion of Figure 2, Figure 2B in particular, in any paper that it filed during the Interparties Review before the Court. [00:09:45] Speaker 01: And this Court ordinarily declines to consider new arguments that were not considered below. [00:09:51] Speaker 01: And this case I cited is Israel Bioengineering Project. [00:10:00] Speaker 01: The petition is referenced to written description or enabling. [00:10:06] Speaker 01: I didn't mention either of those two topics that are not an issue in this IPR or in this appeal. [00:10:19] Speaker 01: The boards view that the claim language includes all of the transmission paths. [00:10:28] Speaker 01: is also inconsistent with how wireless networks work. [00:10:31] Speaker 01: With wireless networks, you have nodes that are continually entering and leaving the network. [00:10:36] Speaker 01: So at any one particular time, the map of transmission paths will not contain all the transmission paths that are available in a network because it takes a finite amount of time to do anything. [00:10:48] Speaker 01: So at the time that the network realizes that there is an additional path through it because an additional node entered the wireless network, [00:10:56] Speaker 01: to the time that it's recorded in the map of transmission paths. [00:11:02] Speaker 01: During that time period, the map would not contain each and every transmission path that's in the wireless network. [00:11:10] Speaker 01: And this was explained in the specification of the 314 patent at column 9, lines 3 to 11, when it indicates that the wireless network system is robust and it will survive the loss of one or more clients in the system [00:11:26] Speaker 01: If the client 18A is lost due, for example, to a power or system failure, the data packets of client 18C can be routed through another client, and the data packets of 18B can be routed through 18C. [00:11:40] Speaker 01: So the description and specification of the 314 patent specifically indicates that nodes can be entering and leaving the network. [00:11:50] Speaker 01: It's very dynamic. [00:11:51] Speaker 01: So at any one particular time, the map of transmission paths [00:11:55] Speaker 01: that's recited in the claim will not contain every single transmission path that's in the wireless network. [00:12:03] Speaker 01: Now, the reason why this error in claim construction is so important is because the board base that's obvious is the transmission. [00:12:14] Speaker 03: Can I just ask you something about it? [00:12:15] Speaker 01: Sure. [00:12:15] Speaker 03: I think what you just said, is it your view that the patent [00:12:24] Speaker 03: clearly does not require the map to include or to cover all the transmission paths in the network? [00:12:35] Speaker 03: Or must it and there must be more than one such path? [00:12:39] Speaker 01: Okay, our view is because, for all the reasons I just stated in particular, because path has an S at the end and throughout the claim, second node, which is the client, has an S at the end. [00:12:52] Speaker 01: There has to be more than one second node. [00:12:55] Speaker 01: There has to be more than one path from those plurality of second nodes to the server. [00:13:00] Speaker 01: So our view is clear that the claim requires a plurality of transmission paths that are stored in the map. [00:13:10] Speaker 01: I was also mentioning with respect to the portion of the board's decision that mentioned that it had to contain all of them. [00:13:17] Speaker 01: Well, it may contain all of them, but it may not. [00:13:19] Speaker 01: That's not a requirement of the claim. [00:13:22] Speaker 03: Is there something in the specification that confirms there can be a map that does not cover all of the transmission paths? [00:13:35] Speaker 01: Yeah, the passage that I just referred to you, which is a column 9, lines 3 to 11, it talks about the dynamic nature of a wireless network. [00:13:47] Speaker 01: And so, for example, it talks about if the client 18A is lost due, for example, to a power system failure, then the data packets of 18C can be routed through a different client, 18D. [00:14:00] Speaker 01: So that's an indication of a dynamic nature of wireless networks, that nodes go down. [00:14:07] Speaker 03: But how does that tell us whether the map has to include all of the transmission paths that there are at any given [00:14:17] Speaker 01: That's a good question and I'll explain it. [00:14:22] Speaker 01: The reason why is because when this happens and let's say now there's a different path now that goes through 18D instead of 18A because 18A was lost. [00:14:33] Speaker 01: So now there's a different transmission path through the wireless network. [00:14:37] Speaker 01: But it takes a finite amount of time for that difference in the paths to be recorded in the map of transmission paths. [00:14:46] Speaker 01: So during that finite amount of time, there are paths in the wireless network that are not in the map of transmission paths. [00:14:56] Speaker 03: But it's just a transition issue. [00:14:59] Speaker 03: That is, is the system set up so that the map is supposed to be updated? [00:15:04] Speaker 01: The map will be updated, but at any particular instant of time, the map may not contain every single transmission path that goes through the wireless network. [00:15:14] Speaker 03: Would it ever be under-inclusive as opposed to over-inclusive? [00:15:23] Speaker 01: Meaning would there be paths that... It might list some broken paths, but would it... Well, I think your logic is perfectly acceptable that there's a broken path and it's still nonetheless in the map of transmission paths and it takes a finite amount of time to get that path out of there because it's not really [00:15:44] Speaker 01: path anymore. [00:15:46] Speaker 04: You also referred to there being multiple second nodes, and I see that language in Claim 12, but I'm correct in understanding and reading Claim 15, which is also on appeal differently, right, where it says repeatedly at least one second node. [00:16:03] Speaker 00: Sure, let me just take 30 seconds and review this. [00:16:14] Speaker 01: Page 109, Your Honor. [00:16:19] Speaker 01: Column 26, line, I believe it's 63 and 64. [00:16:26] Speaker 01: It says one or more of other second nodes of the first network. [00:16:32] Speaker 04: What about the language in line 52 that talks about at least one second node and the subsequent language in column 27, line 1 that says at least one second node? [00:16:47] Speaker 01: Right. [00:16:48] Speaker 01: Those particular instances that you referred me to would mean that there has to be one or more, but the instances that I referred you to where it says second node with the S at the end further limits the claim scope to being more than one second node. [00:17:08] Speaker 01: In fact, I just found another one on column 27, which was at page 110. [00:17:16] Speaker 01: And it's at line number 11. [00:17:18] Speaker 01: It refers to fastest second nodes. [00:17:21] Speaker 01: Again, it has an S at the end. [00:17:25] Speaker 01: So the obviousness decision is based upon a construction that's improper. [00:17:35] Speaker 01: And therefore, the obviousness decision is also wrong. [00:17:40] Speaker 01: Because the board relied upon a special case in Khan, and this is [00:17:45] Speaker 01: 278 of the appendix of a network that contains only one node. [00:17:50] Speaker 01: That single node is labeled and the server as part of that labeling process provides the node with the one and only route in the system. [00:17:59] Speaker 01: So it's relying upon a teaching and con of only one path to meet a limitation that requires multiple paths to be stored in the map. [00:18:13] Speaker 01: So for that reason, because they got the claim construction wrong, the obvious conclusion that it's based upon the fault, the claim construction is also wrong. [00:18:22] Speaker 01: There's also another error in the board's construction of claim 10. [00:18:28] Speaker 01: The board erred in construing claim 10 to encompass a client selecting a parent node, even though the claims explicitly recite implementing by the server node changes to upgrade the selected transmission path [00:18:42] Speaker 01: to an optimized transmission path. [00:18:45] Speaker 04: Now... What about the fact-flame preamble that talks about how it's a client node? [00:18:50] Speaker 04: Did I remember that correctly? [00:18:51] Speaker 04: Yeah, client node in a network. [00:18:53] Speaker 04: So that why wouldn't implementing by the server, why couldn't that reasonably mean implementing via the server? [00:19:00] Speaker 04: With by and it's plain and ordinary meaning could be by as in action by the server or it could be by as in via the server, going through the server. [00:19:12] Speaker 01: I'm sure. [00:19:14] Speaker 01: Well, first of all, I'll note that the PTAB relied on a dictionary definition for its interpretation of the word by that appears in the claim that dictionary is dated subsequent to the filing date of the 314 patent. [00:19:30] Speaker 01: So one of ordinary skill neon clearly could not have used that dictionary in order to gain an understanding of how the term by is used. [00:19:37] Speaker 04: So is your position that the word by had a different meaning at the time of the invention? [00:19:42] Speaker 01: Yeah, I think in the context of this claim, the word by means the noun following the word by identifies the thing that is doing that function. [00:19:55] Speaker 01: And if you take a look at claim 10, which is at 109 of the appendix, and it talks about in the preamble, it mentions that there's a client node and a network, but it also mentions that there's a server node [00:20:09] Speaker 01: having a server radio modem and a server controller which implements a server process. [00:20:15] Speaker 01: So the claim doesn't only require a client. [00:20:18] Speaker 01: It doesn't only say what the client is doing. [00:20:21] Speaker 01: It requires both a client and a server with the client doing something and the server doing something else. [00:20:30] Speaker 01: The server process includes controlling the... Okay. [00:20:34] Speaker 01: And you see here further down the claim it says the client node comprising and then there's an indentation. [00:20:39] Speaker 01: That means that the client node has these two things, a radio modem and a controller. [00:20:44] Speaker 01: And then it says the client node controller implementing a process, and then it talks about the step, steps that a client node performs. [00:20:53] Speaker 01: Toward the end of the claim, it talks about another, the last paragraph of the claim, it talks about another limitation. [00:21:03] Speaker 01: And that is performed by the client. [00:21:06] Speaker 01: It says, implementing a process requesting updated radio transmission path data from the server node. [00:21:14] Speaker 01: And then it says, and in response there to implementing who's doing this last step, the very last step in the claim, it explicitly tells you who's doing it. [00:21:24] Speaker 01: It's done by the server node, which changes to upgrade the selected transmission path to an optimized transmission path. [00:21:32] Speaker 01: So the claim explicitly requires the client to do something and the server node to do other things. [00:21:40] Speaker 01: And this last limitation in the claim requires the client node to make a request to the server node and the server node to respond to that request by changing or upgrading the selected transmission path to an optimized transmission path. [00:21:59] Speaker 01: The whole idea of the specification. [00:22:02] Speaker 01: And the whole idea of this invention is that it's a more efficient way to do routing to have both the client do some things and the server to do other things. [00:22:13] Speaker 01: And that's explained throughout the specification. [00:22:16] Speaker 00: Let's hear from the other side and we'll save a little rebuttal time. [00:22:20] Speaker 01: Okay, thank you. [00:22:30] Speaker 02: Starting with the board's construction of the term map of transmission paths of the first network. [00:22:44] Speaker 02: The board focused on the fact that it's not any map of transmission paths, it's specifically the map of transmission paths of the first network. [00:22:55] Speaker 02: And so we have to look at what are the characteristics of the [00:22:59] Speaker 02: first network that are described in the claim. [00:23:01] Speaker 02: And as your honor points to, there are two indications that that has to encompass a situation in which the first network has only one second node and that there is one path between the gateway and that node. [00:23:17] Speaker 03: And that's because at... Are those two things synonymous? [00:23:25] Speaker 03: One node, one server, there can only be one path? [00:23:28] Speaker 02: No? [00:23:28] Speaker 02: Or might there be more? [00:23:30] Speaker 02: There are actually two provisions that I think speak to this. [00:23:34] Speaker 02: The first is that it describes the first network as having at least one second node. [00:23:39] Speaker 02: So it can be just one. [00:23:41] Speaker 02: And then with respect to the path, the provision goes on to say that the path can be a direct one from the gateway to the second node. [00:23:57] Speaker 02: It can have just this direct path from the gateway to the second node. [00:24:04] Speaker 02: And there can be under the claims own language, only one second node. [00:24:09] Speaker 02: So this provision, the map of the transmission paths of the first network, given the description of the first network in the claim, what is recited by it specifically. [00:24:24] Speaker 02: It must encompass the situation in which there is only one node and one path from the gateway to that node. [00:24:32] Speaker 02: And I think a further indication that that is the correct construction comes from the quite distinct phrase that appears in claim 12. [00:24:44] Speaker 02: I know counsel referenced claim 12 and claim 15 as though they had the same term. [00:24:50] Speaker 02: They don't. [00:24:51] Speaker 02: Claim 12 says, [00:24:53] Speaker 02: map of transmission paths to a plurality of second nodes of the first network. [00:25:01] Speaker 02: Claim 15 omits that phrase to a plurality of second nodes, and it does so because claim 15 specifies that the first network may have only one second node. [00:25:17] Speaker 02: under this court's precedent, in light of the choice of different language in these two claims, the court has to give effect to that. [00:25:26] Speaker 02: And so the map in claim 15 has to be construed to encompass a map, a situation where the first network has only one second node and a direct path from the gateway to that second node. [00:25:43] Speaker 02: Although counsel [00:25:44] Speaker 02: references of Figure 2B and our reliance on it, I want to be clear that we cited in our brief, Figure 2B, only to robot a statement in the patent owner's brief at page 27 that, quote, there isn't a single example in the specification of a transmission map having only one path. [00:26:08] Speaker 02: And yet, Figure 2B describes a situation in which you have one server, 14 [00:26:15] Speaker 02: and one second node, five, and a path between the two. [00:26:20] Speaker 02: So we are not relying on it. [00:26:22] Speaker 02: The board didn't rely on it. [00:26:24] Speaker 02: We're just using that to push back from an assertion by the patent owner that somehow this construction is inconsistent with the specification and the figures. [00:26:38] Speaker 02: But the board correctly relied on [00:26:43] Speaker 02: the language of the claim itself, the contrast between the language of claim 12 and claim 15, and it reached the correct construction. [00:26:56] Speaker 02: Whether the map has to include all of the paths really isn't at issue in this case. [00:27:06] Speaker 02: We noted that the references in the [00:27:12] Speaker 02: in the specification, two maps include maps that include all of the links. [00:27:20] Speaker 02: For example, at appendix 99, there's a reference to the controller maintains a map of the links of the first network, and that by maintaining a map of the links of the first network, reference seemingly to all of them, a little clearer, perhaps, reference at appendix [00:27:40] Speaker 02: 107, column 22, and this is lines 19 to 24, where there's a reference to the server providing, quote, the complete tree. [00:27:51] Speaker 02: The complete tree certainly supports the inclusion of all. [00:27:55] Speaker 02: But again, all really isn't what's at stake here. [00:28:00] Speaker 02: What's at stake here was a subsidiary construction that the board adopted, which was that the map of transmission paths of the first network [00:28:10] Speaker 02: had to encompass that circumstance in which there was only one second note and one map to it. [00:28:18] Speaker 03: I suppose it's evident. [00:28:20] Speaker 03: The reason I was interested in the question is you have one point or set of points about indications in the claim language, other than the language that we're defining here, that there can be systems in which there's just one note. [00:28:39] Speaker 03: Putting that aside, there's a question, is there one ordinary English understanding of map of transmission paths that would naturally itself encompass the single node system? [00:28:53] Speaker 03: And the one that I thought of was map of the existing transmission paths, by which I mean all of them. [00:29:01] Speaker 03: And so it's at least interesting to me to know whether the spectrum [00:29:08] Speaker 03: makes more or less clear, as I think the institution decision may have said, the board didn't quite repeat, but that you assert in your red brief whether this phrase means a map of all of the transmission paths because it gives one kind of ordinary language interpretation that would help you. [00:29:30] Speaker 02: Right. [00:29:31] Speaker 02: Well, as I said, there are certainly indications in the specification that seem to [00:29:36] Speaker 02: suggest that the map has to include all of the paths, including the one I referenced about the complete tree. [00:29:43] Speaker 02: I don't think that the reference to column nine that council made during argument defeats that. [00:29:52] Speaker 02: It doesn't mention the maps. [00:29:54] Speaker 02: It simply talks about the system being dynamic, which is not inconsistent with the map being comprehensive. [00:30:02] Speaker 02: And so I think that [00:30:06] Speaker 02: your right to think that one understanding of paths is not that it is necessarily always in every instance plural, but rather when it's map of paths of the network, it's whatever paths there are in the network are in the map. [00:30:24] Speaker 02: And when that network has one path, that's the map. [00:30:29] Speaker 02: And that's what the board found. [00:30:31] Speaker 02: And that's consistent, again, with not only the specific [00:30:35] Speaker 02: reference to the fact that the first network includes at least one second node, which means that it could be just one, but also immediately following the reference to the map of transmission paths of the first network, being that there can be a direct path from the gateway to a second node. [00:31:00] Speaker 02: With respect to claim 10, the board [00:31:05] Speaker 02: relied on, and I think correctly, the structure and context of Claim 10 and the fact that the phrase about implementing by the server node changes to upgrade the selected transmission path appears at the end of a list of things that the client node controller is doing. [00:31:28] Speaker 02: The client node controller is implementing a process. [00:31:31] Speaker 02: The client node controller is selecting a path [00:31:34] Speaker 02: the client node controller is implementing a process to request updated transmission path data, and then the client node controller is implementing by the server node changes to upgrade the selected transmission path. [00:31:48] Speaker 02: That structure is repeated, as I say, four times. [00:31:51] Speaker 02: The subject or actor, the client node controller, followed by Jarend, and then what? [00:31:58] Speaker 04: This little odd on the claim that it says client node controller implementing, and then [00:32:04] Speaker 04: The next phrase is selecting, and then the next phrase is implementing. [00:32:09] Speaker 04: But it's not expressly stated what the actor is for selecting and implementing. [00:32:17] Speaker 02: That's true, and yet there's no dispute. [00:32:19] Speaker 02: Pat Nohner, even during his oral argument today, acknowledged that with respect to the first three of those, it is the client node controller that's doing all of them, the implementing, the selecting, the implementing. [00:32:34] Speaker 02: we get to the fourth that the patent owner wants to switch and say, no, now it's the server node that's doing the implementing. [00:32:42] Speaker 03: And the one thing about the structure of this that might weigh in that direction is the fact that that implementing word is not broken out in a separate little indent. [00:32:55] Speaker 02: It's not, but I don't think that that suggests that we've now changed to another actor. [00:33:03] Speaker 02: The, the, every, not every time. [00:33:06] Speaker 04: Judge Toronto is suggesting that that favors your position. [00:33:09] Speaker 02: Oh, I thought he was suggesting it went the other way. [00:33:12] Speaker 02: It doesn't seem to me that it favors either necessarily. [00:33:18] Speaker 02: It's just that we have the structure of client node controller and then the four [00:33:23] Speaker 02: without any new subject coming in. [00:33:26] Speaker 04: What about the preamble? [00:33:29] Speaker 04: Does the phrase, including a server node, does that modify in a network or does it modify a client node? [00:33:58] Speaker 02: The network has a server node. [00:34:02] Speaker 02: And the server node has these characteristics. [00:34:05] Speaker 02: And that's not disputed. [00:34:06] Speaker 02: And there is a server node referred to in the final passage. [00:34:13] Speaker 02: Because one of the steps that the client node controller undertakes is making a request for updated radio transmission path data to the server node. [00:34:28] Speaker 02: And what counsel does with that language is suggest that the client node controller is asking for the server node to update the transmission path. [00:34:41] Speaker 02: But that's not what it says. [00:34:43] Speaker 02: It says the client node controller is implementing a process requesting updated radio transmission path data from the server node. [00:34:53] Speaker 02: And so when it says in response thereto, [00:34:56] Speaker 02: It's not in response to a request to update the path. [00:35:00] Speaker 02: It's in response to the updated transmission path data that the server has provided, that the client node implements by the server node the changes to upgrade the selected transmission path. [00:35:17] Speaker 02: That use of the word by, which a padnoder suggests is somehow strange and unusual, [00:35:24] Speaker 02: isn't at all. [00:35:25] Speaker 02: Your Honor equated it with via or through, and that's the construction that the board gave it. [00:35:33] Speaker 02: Even the definition dictionary... It may be right, even if it's a little strange. [00:35:38] Speaker 02: What's that? [00:35:38] Speaker 03: It may be right, even if it's a little strange. [00:35:40] Speaker 02: Well, Your Honor, they cite to a dictionary definition that they say supports them that killed by a bullet. [00:35:48] Speaker 02: But in that instance, the bullet is not the agent. [00:35:50] Speaker 02: The agent is the shooter. [00:35:52] Speaker 02: The bullet is the means by which [00:35:54] Speaker 02: the killing is done. [00:35:56] Speaker 02: And here, the agent is... Getting a lot more interesting than I... Well, I'm just saying that the example that they choose doesn't prove their point. [00:36:06] Speaker 02: The agent here is the client node controller, and it's accomplishing this by the server, meaning through it, the means. [00:36:17] Speaker 02: It's using it. [00:36:19] Speaker 02: It's helping, as the board said. [00:36:22] Speaker 02: And that's supported. [00:36:23] Speaker 02: Moreover, the specification in several places, including column 11 and column 8, reflect instances where the client node is the one updating the path. [00:36:43] Speaker 02: With the help of the server, the server may validate that, may reflect that changed, updated path in the map or tree. [00:36:53] Speaker 02: but it's only after the client has updated the path. [00:36:58] Speaker 02: And that is, let me point you to these provisions, column 1157, it's talking about client seven, [00:37:17] Speaker 02: Client seven finds a shorter route to server 26, client seven informs server 14 to drop client seven from server 14's routing table, and client seven informs server 26 to add client seven to its routing table. [00:37:32] Speaker 02: So the client is the one updating the path. [00:37:35] Speaker 02: At column eight, lines 44 to 53, client C will note that client 18 has less hops [00:37:47] Speaker 02: to server 16 then client 18b and will switch its link from client 18b to client 18d. [00:37:55] Speaker 02: This process is part of optimization process of the network 10. [00:38:00] Speaker 02: So again, the client is noting that there is a better route and making a change to effectuate that. [00:38:07] Speaker 02: The server in each of these instances can have a role to play, but it does not require that the server be the one [00:38:16] Speaker 02: update the path. [00:38:17] Speaker 02: That's inconsistent with what the specification provides. [00:38:54] Speaker 00: On the last point with respect to the... This is a brief rebuttal, I think, for what you need to tell us. [00:39:01] Speaker 01: On the last question involving the construction of claim 10, I refer you to figure 6 of the patent, which is at page 77 of the appendix. [00:39:13] Speaker 01: And it's consistent with the construction that I gave you before, step number 132. [00:39:19] Speaker 01: This whole thing about figure 6 is what's done at the server. [00:39:22] Speaker 01: The server receives a client request for a network tree, and in step number 134, the server places the network tree in the client's transmit buffer to send to the client. [00:39:35] Speaker 01: Now, the reason why this all works so well, this particular routing algorithm, is because the server has knowledge of what's going on in the entire network. [00:39:43] Speaker 01: Each of the client has knowledge of what's going on in its vicinity, and the beauty of this claimed routing algorithm is that it uses both. [00:39:52] Speaker 01: So in claim 10, when it's saying that certain things are done by the client and certain things are done by the server, in the last step it says that the client is requesting updated radio transmission path data from the server node. [00:40:07] Speaker 01: And then the server, as indicated in step number 134 of figure 6, then sends that updated and optimized transmission path to the client. [00:40:19] Speaker 01: So the claim language is consistent [00:40:22] Speaker 01: with the specification. [00:40:24] Speaker 01: And I'll also note, with respect to the claim construction of the term paths with an S at the end, if you look at page 267 of the joint appendix, which includes the institution decision, the board, when it instituted, said as follows, the third line down, thus on this record, the most logical reading of this language [00:40:52] Speaker 01: referring to the language transmission paths with an S at the end, is that the map contains more than one path. [00:41:03] Speaker 01: So just to summarize, claim 15, second nodes has an S at the end. [00:41:10] Speaker 01: That means there's more than one of them. [00:41:12] Speaker 01: Transmission paths has an S at the end. [00:41:15] Speaker 01: That means there has to be more than one of them in the map. [00:41:18] Speaker 01: What they referred to in the prior art of Khan [00:41:21] Speaker 01: having only one transmission path, can't possibly meet this claim limitations of claim 15. [00:41:28] Speaker 01: With respect to claim 10, it's clear from the claim and the specification, client's doing stuff, server's doing stuff. [00:41:36] Speaker 01: In Meyer, the reference that they asserted against claim 10, as I indicated in my brief, only the client is picking the node that it wants to attach to. [00:41:45] Speaker 01: The server does not determine what node or what path the client attaches to. [00:41:51] Speaker 01: The claim, claim 10, requires two different things. [00:41:54] Speaker 01: It requires a selection of a path, of an entire path, and it's done by the server of an optimized path. [00:42:07] Speaker 01: Claim 10, the explicit language, requires two things. [00:42:10] Speaker 01: It requires selection of a path, and it also says what does the selection of the optimized path. [00:42:18] Speaker 01: Myer doesn't meet either one of those, because in Myer, the client, not the server, is selecting a node and not an entire path, unless there are any questions. [00:42:30] Speaker 00: No questions. [00:42:31] Speaker 00: Thank you. [00:42:31] Speaker 00: Thank you both. [00:42:32] Speaker 00: The case is taken under submission.