[00:01:06] Speaker 04: Next case is United Access Technologies versus AT&T, et al, 2017, 26, 14, 15, 16, 2018, 10, 30, 31, and 32. [00:01:24] Speaker 04: Mr. Garza. [00:01:31] Speaker 01: Mr. Garza, before you get started, if I could just ask a procedural question. [00:01:36] Speaker 01: There's a lot of focus on specification and claims. [00:01:40] Speaker 01: And I didn't see anywhere that we were told what specific claims are being asserted. [00:01:47] Speaker 01: I know 61 of the 546 and one of the, what is it, 446 and one of the 585. [00:01:56] Speaker 01: But are there any others? [00:01:59] Speaker 00: It's an excellent question. [00:02:00] Speaker 00: I should know the answer to. [00:02:01] Speaker 00: I know those are the three independent claims that are asserted here. [00:02:04] Speaker 00: I believe there are a couple of dependent claims. [00:02:07] Speaker 00: Okay. [00:02:07] Speaker 01: But we should focus, I gather principally on those three claims. [00:02:10] Speaker 01: Is that fair to say? [00:02:11] Speaker 00: Correct. [00:02:11] Speaker 00: Especially here where the dependent claims that are in the patent don't have positional limitations in them. [00:02:16] Speaker 00: Good. [00:02:17] Speaker 01: All right. [00:02:17] Speaker 01: Thank you. [00:02:19] Speaker 00: May it please the court. [00:02:20] Speaker 00: There are three problems with the district court's construction of signal interface. [00:02:25] Speaker 00: First, the term does not impose implicit positional limitations. [00:02:31] Speaker 00: Second, the specification does not require that every signal interface be found at the boundary of both the public network and the local networks. [00:02:41] Speaker 00: Third, the specification does not mention telephone company ownership and does not define the position of signal interface on that basis. [00:02:53] Speaker 02: As I understand it from your brief, there are two embodiments here that are alleged to infringe. [00:02:59] Speaker 02: One is the remote embodiment, and the other one is, I don't know what you call it, the exchange embodiment? [00:03:07] Speaker 00: Central office embodiment, yes. [00:03:08] Speaker 02: But if the district court's original claim construction was correct, you argue that you could still recover under the remote embodiment, right? [00:03:23] Speaker 02: Correct, your honor. [00:03:24] Speaker 02: But if the district court's original claim construction was correct, you can't recover under the exchange embodiment, right? [00:03:34] Speaker 00: So the central office embodiment. [00:03:36] Speaker 02: The central office embodiment. [00:03:37] Speaker 00: Yes, and that's because if the court imputes an implicit positional limitation that requires a signal interface to be at the end of a public trunk line that comes out of the central office, it would exclude embodiments where the signal interfaces. [00:03:51] Speaker 00: before the public. [00:03:52] Speaker 02: Yeah, because there are two separate positional limitations or interpretations that could be given here. [00:03:59] Speaker 02: One would be to say that it has to be north of the trunk line. [00:04:12] Speaker 02: And the other one is that it has to be below the twisted pairs, right? [00:04:21] Speaker 00: Respectfully, we have a third option, which is you look to the claims instead of imposing implicit positional limitations. [00:04:27] Speaker 00: Yeah, I understand that. [00:04:28] Speaker 00: Of course. [00:04:32] Speaker 00: To uphold the district court's non-infringent judgment, you have to find that all three of these problems were not actually problems. [00:04:39] Speaker 00: The district court got everything correct. [00:04:41] Speaker 00: So we'll start with each point in turn. [00:04:44] Speaker 00: First, all of the asserted claims include explicit positional limitations for signal interface. [00:04:50] Speaker 00: With the 585, the signal interface has to be between the telephone exchange and residences, not the public network and the local networks, not at the boundary of anything, and there's nothing about ownership. [00:05:03] Speaker 00: By looking to the term signal interface to impose additional limitations, you're effectively rewriting the claims. [00:05:11] Speaker 00: Second, not all signal interfaces disclosed in the specification are at the boundary of both the public network and the local networks. [00:05:21] Speaker 00: Let's start with the local networks. [00:05:23] Speaker 00: The specification includes examples, many examples, where the signal interface is not at that boundary. [00:05:30] Speaker 00: So if you look at figures 1A, 1B, and 16, each of those figures identify and delimit what the local networks are. [00:05:41] Speaker 00: They're marked with circles or rectangles, depending on the figure. [00:05:43] Speaker 01: But when you say at, are you incorporating at or downstream of? [00:05:48] Speaker 01: Are you just focusing on at? [00:05:50] Speaker 00: So when we're talking about the local networks, the downstream portion isn't in the area. [00:05:54] Speaker 00: If they say at the boundary of the public network and the local networks, as the district court found, that is what they found. [00:06:01] Speaker 00: It's inconsistent with those. [00:06:02] Speaker 00: If we're looking at the downstream embodiments, defendants solve some of their problems of reading out disclosed embodiments by changing their construction to at the boundary to at and downstream. [00:06:15] Speaker 00: But what they lose is the support of the specifications. [00:06:18] Speaker 00: If you look carefully at the specification sites they use to justify their construction, the invention statements, they all discuss the signal interface being at the end of the public trunk line, not at and downstream. [00:06:31] Speaker 00: So they have two choices here. [00:06:33] Speaker 00: Either they have the specification, and it supports the limitation that it's at the boundary, and they've got problems because it conflicts with preferred embodiments. [00:06:42] Speaker 00: Or they take the position that it's at and downstream. [00:06:44] Speaker 00: That solves some of their preferred embodiment problems, not all of them. [00:06:48] Speaker 00: But they've lost their support from the specification. [00:06:50] Speaker 00: They can't have it both ways. [00:06:51] Speaker 00: They've got to choose whether it's at the boundary or at and downstream. [00:07:01] Speaker 00: So again, it's also true that the specification includes examples where the signal interface is not at the public network boundary. [00:07:13] Speaker 00: The easiest way to see that one is figure 16. [00:07:16] Speaker 00: Figure 16 includes a signal interface, but the signal interface does not interconnect whatsoever with the public switch telephone network. [00:07:24] Speaker 00: There's no trunk line. [00:07:26] Speaker 00: There's no boundary between the public network because the public network doesn't connect with it. [00:07:30] Speaker 01: You say that figure 16 includes a signal interface, but why isn't that just an interface that isn't necessarily a signal interface as that term is used in the [00:07:43] Speaker 01: particular claims that assert a signal interface, which is not all the claims. [00:07:48] Speaker 01: Yes. [00:07:50] Speaker 01: Because the signal interface is tied to telephony, and this device here has no external telephony connection in 16. [00:08:01] Speaker 00: It is still a signal interface because it still carries two different types of signals on the same wire. [00:08:06] Speaker 01: We don't have a definition anywhere in the specification of what a signal interface is. [00:08:12] Speaker 01: It pumps up into claims, oddly enough. [00:08:16] Speaker 00: But in each of the embodiments that discuss the signal interface, Figure 1A, Figure 1B, Figure 16, they all label it the exact same way. [00:08:23] Speaker 01: The discussion of Figure 16 doesn't refer to signal interface. [00:08:27] Speaker 01: My problem is, why isn't it possible to read Figure 16 as simply an interface, not a signal interface, unlike Figures 1A and 1B? [00:08:36] Speaker 00: Well, one of skill in the art looking at the transceiver switch 400, which is the embodiment of the signal interface in figures 1A and 1B, would see the same transceiver switch 400, certainly in figure 16. [00:08:48] Speaker 00: It's all labeled the same way. [00:08:49] Speaker 00: And you look at the specification pros about figure 16, it is clear figure 16 is an extension of the same transceiver switch that we saw with telephony. [00:08:58] Speaker 00: The big difference being because you're not using telephone signals, you're using different signals. [00:09:04] Speaker 00: So if you're using the term signal interface to make this distinction between Figure A, 1A, 1B, and 16, it's hard when we're still talking about signals. [00:09:12] Speaker 00: Had they used the term telephony interface or something to that effect, I think the argument would have more force. [00:09:18] Speaker 00: But I think the word signal doesn't do the job. [00:09:20] Speaker 00: There are still signals in Figure 16 that they're trying to separate and use on the same wire with the transceiver switch 400. [00:09:31] Speaker 00: So finally, the district court erred [00:09:34] Speaker 00: in using telephone company ownership as the way of measuring the extent of the public networks and the local networks. [00:09:43] Speaker 00: The specification does not define public or local anywhere related to ownership. [00:09:50] Speaker 00: Instead, the specification explicitly defines local network as internal to residences or offices or rooms and buildings. [00:09:59] Speaker 00: And we know that local is not coextensive with ownership [00:10:03] Speaker 00: because again of Figure 16. [00:10:06] Speaker 00: Figure 16 is a completely privately owned embodiment. [00:10:09] Speaker 00: There is still a transceiver switch 400. [00:10:11] Speaker 00: And the local networks are identified and delimited. [00:10:14] Speaker 00: It's only a part of Figure 16. [00:10:17] Speaker 00: So ownership is simply not the metric, not a metric supported by the specification in determining where a public network ends or a local network ends. [00:10:27] Speaker 02: How is Figure 1A [00:10:29] Speaker 02: consistent with your argument that the central office embodiment is infringing? [00:10:37] Speaker 00: So, Figure 1A, our use of Figure 1A is to show that various portions of the district court's claim construction is incorrect. [00:10:43] Speaker 00: We are not using Figure 1A to address our primary argument, which there are no implicit positional limitations. [00:10:49] Speaker 02: But putting that to one side, if there are implicit positional limitations here, [00:10:57] Speaker 02: Isn't figure 1A inconsistent with your theory that the central office embodiment is infringing? [00:11:04] Speaker 00: Yes. [00:11:04] Speaker 00: So if the signal interface has to be at the end of a public trunk line, the central office embodiment is not infringed. [00:11:09] Speaker 01: So to perhaps oversimplify this, your position, initially you say none of the figures really limit you. [00:11:19] Speaker 01: Figure 1A, figure 1B for sure. [00:11:21] Speaker 01: But beyond that, you say, except Judge Thine's construction and her conclusion, [00:11:27] Speaker 01: that summary judgment would not be appropriate with respect to the remote terminal embodiments, but would with respect to the central office term. [00:11:36] Speaker 00: Correct. [00:11:38] Speaker 00: OK. [00:11:38] Speaker 00: That's our position. [00:11:41] Speaker 00: So those are the major points I was hoping to cover. [00:11:43] Speaker 01: And the principal difference, if I could just tie it down, the principal difference that I understand you to be pointing to between Judge Thine's construction and Judge Stark's [00:11:56] Speaker 01: pops up principally in Judge Stark's infringement analysis where he adds the private network is local versus public is company owned. [00:12:10] Speaker 01: And that includes, in his view, the first wires to the remote terminal as being company owned and therefore not within the scope of the infringement of the figure 1A. [00:12:24] Speaker 00: Yes. [00:12:25] Speaker 01: Is that a fair characterization of the way you parse those two claim constructions? [00:12:31] Speaker 00: Yes. [00:12:31] Speaker 00: And just to be clear, what Judge Stark did is say, we will look for the point where the telephone company ownership ends. [00:12:38] Speaker 00: And that's the NID. [00:12:39] Speaker 00: That is supported by the record. [00:12:41] Speaker 00: We're not fighting that. [00:12:43] Speaker 00: He said the NID therefore is where the signal interface has to be. [00:12:46] Speaker 00: The signal face is not there. [00:12:48] Speaker 00: They do not infringe. [00:12:50] Speaker 00: That analysis is wrong for the three reasons we pointed to earlier. [00:12:53] Speaker 00: One, ownership is not the right metric. [00:12:55] Speaker 00: Two, it doesn't have to be at the boundary of the local and public networks. [00:12:59] Speaker 00: And third, there are no implicit limitations. [00:13:01] Speaker 01: And your argument, I take it from figure 1A, would be that the NID is at the local network interface 404. [00:13:08] Speaker 00: Correct. [00:13:09] Speaker 00: There's also a disclosure of the NID at column seven near the top that explicitly calls out the network interface device as being between the signal interface and local networks. [00:13:20] Speaker 00: I know I'm in my rebuttal time, so I'd like to reserve that. [00:13:24] Speaker 04: We will save it for you. [00:13:27] Speaker 04: Mr. Hawes. [00:13:31] Speaker 03: Thank you, Your Honor. [00:13:32] Speaker 03: My name is Michael Hawes and I represent the Defendant Appellees. [00:13:35] Speaker 03: Let's start with Figure 16. [00:13:36] Speaker 03: There were a lot of eggs put in the Figure 16 basket. [00:13:40] Speaker 03: Council relied on it both for his argument that ownership is not relevant. [00:13:44] Speaker 02: Let me ask about 1A here first. [00:13:46] Speaker 02: How was 1A [00:13:48] Speaker 02: consistent with your argument that the remote embodiment is not entrenched? [00:13:53] Speaker 02: Because it seems to me that it pretty clearly shows 400, the interface, being upstream of the extended pairs. [00:14:06] Speaker 02: And so how is it that their theory about the remote embodiment is incorrect? [00:14:16] Speaker 03: Your Honor? [00:14:17] Speaker 03: Figure 1A shows what the inventor decided was a possible network. [00:14:22] Speaker 03: He said, you could build it this way. [00:14:24] Speaker 03: You could take your private wires and arrange them as shown here with going down what are called extended pairs. [00:14:33] Speaker 03: That's not how it happens in the real world. [00:14:35] Speaker 03: Someone could have built the network this way. [00:14:36] Speaker 02: I'm not sure that I'm understanding. [00:14:37] Speaker 02: Under your theory, the transceiver switch, which is the interface, number 400, would have to be on the other side [00:14:46] Speaker 02: of the extended pairs under the claim, right? [00:14:49] Speaker 03: No, Your Honor. [00:14:50] Speaker 02: No? [00:14:51] Speaker 03: No. [00:14:52] Speaker 03: Your Honor, the extended pairs here are the private network. [00:14:56] Speaker 03: So the switch... How do we know that? [00:14:57] Speaker 01: How do we know that's the private network in the sense that the wires are not owned by the telephone company? [00:15:04] Speaker 03: If you'll turn to column eight, we can see that the inventor specifically says that with respect to his invention, and I'm looking here, Your Honor, at... This is on the appendix of page 288. [00:15:16] Speaker 03: And it's column 8 of the patent. [00:15:18] Speaker 03: And it's specifically talking about this transceiver switch at line 10. [00:15:25] Speaker 03: At the end of line 10, it says, this device replaces the existing interface between the public telephone network and the telephone lines that lead to the individual residences. [00:15:36] Speaker 03: So it is saying that that switch is at the edge of the public telephone network. [00:15:42] Speaker 03: And that's exactly why Judge Stark said [00:15:45] Speaker 03: This is a coined term. [00:15:46] Speaker 03: Let's look to the specification to see what it says about it. [00:15:49] Speaker 01: Well, but the public telephone network is defined in the patent as the public telephone trunk line. [00:15:58] Speaker 01: And that doesn't seem to me necessarily to include the extended wires, the extended pairs, right? [00:16:04] Speaker 01: You're not calling the extended pairs part of the trunk line, are you, or are you? [00:16:08] Speaker 03: Extended pairs, the extended pairs is just a [00:16:12] Speaker 03: description of a wire. [00:16:14] Speaker 03: It could be on one side of the handoff, it could be on the other side. [00:16:17] Speaker 02: But you have to have an extended pair to get from the trunk line to the residence, right? [00:16:23] Speaker 03: Not necessarily, Your Honor. [00:16:24] Speaker 03: There are actually embodiments discussed in the uncontested declarations about the acute systems. [00:16:30] Speaker 02: Typically, you have extended pairs that go from the trunk line to the residence, right? [00:16:35] Speaker 03: Your Honor, that is hard to say. [00:16:36] Speaker 03: Really, right now, we're going to different formats where there's fiber optics, which is discussed in the declaration. [00:16:41] Speaker 03: So no, not necessarily. [00:16:44] Speaker 03: At this time, there were extended pairs. [00:16:47] Speaker 03: So going back in history. [00:16:49] Speaker 02: Are you saying that in 1A that these extended pairs are owned by the residence owner rather than the telephone company? [00:16:58] Speaker 02: Yes, Your Honor. [00:16:58] Speaker 02: That's exactly what I'm saying. [00:16:59] Speaker 01: What evidence do you have of that? [00:17:01] Speaker 01: In the specification that was intended to be designated as private lines, including the 1,000-foot lines all the way to the telephone pole. [00:17:13] Speaker 03: The fact that the patentee specifically says, look, what I'm doing is I'm putting the switch at the edge, at the handoff of the public telephone network. [00:17:23] Speaker 03: And if you look in the figure, that means that [00:17:26] Speaker 03: No, not IE. [00:17:27] Speaker 03: The trunk lines are part of the public telephone network. [00:17:29] Speaker 01: Well, it says IE. [00:17:30] Speaker 01: They're in the patent. [00:17:32] Speaker 01: Public telephone network is defined as the public trunk lines. [00:17:38] Speaker 03: Your Honor, that is part of it. [00:17:39] Speaker 03: But no, the patent also talks about the central office. [00:17:43] Speaker 03: If you look at, for example, Figure 1A, the local exchange is also referred into the patent as part of the public telephone network. [00:17:50] Speaker 03: So it certainly is not just the trunk. [00:17:53] Speaker 01: Local exchange is way down. [00:17:54] Speaker 01: That's at the end. [00:17:56] Speaker 01: That's at 475, which is way beyond the, uh, the twisted pairs, right? [00:18:02] Speaker 01: That is part of the trunk line. [00:18:04] Speaker 01: Sure. [00:18:04] Speaker 03: Well, actually the patent talks differently about the trunk line versus the local exchange. [00:18:10] Speaker 03: Those are different parts of the public telephone network. [00:18:13] Speaker 03: Okay. [00:18:13] Speaker 01: But the trunk line leads to the local exchange at the other end. [00:18:18] Speaker 01: I mean, there's no question that local exchange doesn't have anything to do with what the proper characterization of the extended wires is, right? [00:18:26] Speaker 03: In the system proposed by the inventor, yes. [00:18:28] Speaker 03: The trunk line leads to the local exchange and the switch. [00:18:32] Speaker 03: And that's the system proposed by the inventor. [00:18:35] Speaker 03: What I'm trying to make sure is clear is the accused systems don't line up to that. [00:18:40] Speaker 03: So that's important distinction. [00:18:42] Speaker 03: The counsel in the reply brief gave you these two figures and said, oh, look at them. [00:18:46] Speaker 03: They're the same. [00:18:47] Speaker 03: Except the elements are all different. [00:18:49] Speaker 03: For example, they say themselves, you heard him just say, well, there's a need in column seven. [00:18:54] Speaker 03: But in column seven, what he ignores, and this is looking, if you remember, in their brief, they specifically make this analogy. [00:19:04] Speaker 03: And this is on page seven of their brief, Your Honor. [00:19:06] Speaker 03: I think this is an important point. [00:19:08] Speaker 03: Because there's confusion here, and I want to clear it. [00:19:10] Speaker 03: The blue brief? [00:19:11] Speaker 03: This is the blue brief, Your Honor, on page seven. [00:19:16] Speaker 03: So on page 7, I'm looking at the second bullet point. [00:19:19] Speaker 03: Do you see that list of bullet points there? [00:19:21] Speaker 03: They say that located upstream from local networks, local interface devices, NIDs, and extended pair wiring. [00:19:29] Speaker 03: NID is a term used in the accused networks. [00:19:33] Speaker 03: If you actually look at that reference, that column 9, at 9 to 16, what you'll see is that they refer to, and this is at lines 12 to 13, [00:19:45] Speaker 03: They refer to local network interface device. [00:19:49] Speaker 03: They then use the term local network interface 90 times in this specification, never using device again. [00:19:57] Speaker 03: The reason the language is different, the reason there's an LNI here and there's a NID in our systems is that this doesn't do what the NID does in the accused systems. [00:20:07] Speaker 03: They are falsely saying these are the same things. [00:20:10] Speaker 03: They're not. [00:20:11] Speaker 03: The local network interface was a way they used inside the private network to move signals around and control filter signals and move them from one space to another. [00:20:22] Speaker 03: The NID is a handoff. [00:20:24] Speaker 03: And if any of you have ever had repair work done, you'll know it's really important because if it's on their wires, the company pays for it. [00:20:31] Speaker 03: If it's on your wires, you have to pay for it. [00:20:33] Speaker 01: That's what a NID is. [00:20:34] Speaker 01: Does the NID do any filtering or converting? [00:20:36] Speaker 03: In the declarations, it does talk about the fact that it can, but it doesn't do the functions that the signal interface does, which is why they can't accuse the NID. [00:20:45] Speaker 03: And they've never accused the NID of being a signal interface. [00:20:49] Speaker 03: So it's important to realize a second point here, and I do want to get to that. [00:20:54] Speaker 02: So if you look at 1A, and the extended pairs are considered to be part of the public network, [00:21:04] Speaker 02: Contrary to your argument, then the remote embodiment does infringe, right? [00:21:13] Speaker 03: Your Honor, the Figure 1A is a different system than the accused system, so I can't really answer that. [00:21:19] Speaker 03: You can't answer that question? [00:21:20] Speaker 03: It's not the same system. [00:21:22] Speaker 03: Well, you're asking me, this is Figure 1A, which was proposed by the inventor. [00:21:27] Speaker 03: It doesn't line up with the accused system. [00:21:30] Speaker 01: Well, let's put the question slightly differently. [00:21:32] Speaker 01: Yes, Your Honor. [00:21:34] Speaker 01: take Judge Dyke's hypothesis, then at least Judge Stark's ground for entering summary judgment of non-infringement would have to fail, correct? [00:21:45] Speaker 01: Because he predicated his judgment on the ownership issue. [00:21:50] Speaker 03: So I think it would go to his claim construction, because you're saying, look, Figure 1A has public network below the switch. [00:21:58] Speaker 03: You proposed that. [00:21:59] Speaker 03: If that were true, that would be a fact that would weigh against his construction. [00:22:03] Speaker 03: Because then it wouldn't make as much sense to say that signal interface... It would defeat his construction, wouldn't it? [00:22:08] Speaker 02: The construction that he gave in the infringement summary judgment decision. [00:22:15] Speaker 03: Okay, so Judge Stark's construction did not change. [00:22:18] Speaker 03: He applied the same construction. [00:22:20] Speaker 02: Okay, but let's say hypothetically we think it did change. [00:22:24] Speaker 02: And that the first construction said that it had to be where the trunk line [00:22:33] Speaker 02: connected to the extended payers. [00:22:37] Speaker 03: Can I point the court to his first construction? [00:22:39] Speaker 03: Because I have it in the record. [00:22:42] Speaker 03: That construction is in the record, and it is specifically in the record at page 67. [00:22:47] Speaker 03: And this is, you'll see it in the table, it's the last one of the table, and it's interposed at the opposite end, i.e. [00:23:02] Speaker 03: the local side. [00:23:04] Speaker 03: So he's talking about a side, not the boundary, as we've been hearing, but the side. [00:23:09] Speaker 03: And he says, of the public trunk line, but he defines that. [00:23:12] Speaker 03: He says, i.e., the telephone lines comprising the public telephone network. [00:23:18] Speaker 03: Then in the uncontradicted declarations, which I would point the court to, those are in the second and third volumes, there are three declarations, Your Honor. [00:23:30] Speaker 03: One for each of the companies, but the language is fairly similar. [00:23:34] Speaker 03: These are unconscious. [00:23:35] Speaker 03: This is Mahoney, Binek, and Gollum. [00:23:37] Speaker 03: That's right. [00:23:38] Speaker 03: I'll use Gollum because it's in volume two. [00:23:41] Speaker 03: But all of these talk about the fact that the public network downstream of the RT embodiment, and this is in paragraph 12 on page 3128, the public network downstream of the RT embodiment is identical to that of the central office embodiment. [00:23:56] Speaker 03: So this is that distinction that you were talking about, Judge Guy. [00:23:59] Speaker 03: Twisted pairs are bundled. [00:24:02] Speaker 03: to run to multiple serving terminals. [00:24:04] Speaker 03: So we're not talking about single extended pairs that are downstream of the remote terminal. [00:24:09] Speaker 03: We're talking about a bundle, which is the public trunk line. [00:24:12] Speaker 03: And this is part of what is owned by the public telephone network. [00:24:17] Speaker 03: So he was looking at uncontradicted declarations saying what they've accused as being a signal interface has downstream bundled twisted pairs. [00:24:28] Speaker 03: Not single twisted pair going to separate residences, bundled twisted pair. [00:24:33] Speaker 03: That's in paragraph 12. [00:24:35] Speaker 03: There was no evidence entered by plaintiff contrary to that. [00:24:38] Speaker 03: And the same language is in the declarations for the other two accused systems. [00:24:43] Speaker 01: So where is it in your view that the individual twisted pairs coming out of the various, let's say, the local interfaces of a multiple residence system? [00:24:57] Speaker 01: Where is it that that turns into the trunk line? [00:25:00] Speaker 01: For example, just because we have the figure here in figure 1A. [00:25:05] Speaker 03: All right. [00:25:07] Speaker 03: So figure 1A shows individual extended pairs that it labels, 405. [00:25:16] Speaker 03: So figure 1A shows that at the switch, you have a trunk line, a bundle going in, [00:25:25] Speaker 03: and you have extended pairs coming out that are going to each local network interface. [00:25:30] Speaker 01: And those- Can you say a bundle coming in? [00:25:32] Speaker 01: Are you talking about the bundle that consists of 405A through E? [00:25:37] Speaker 01: No, I'm talking about- No, you're talking about the- Twisted pairs 7 and 46. [00:25:40] Speaker 01: Well, it's actually 476. [00:25:42] Speaker 01: It was another mistake. [00:25:44] Speaker 03: Yes, I know. [00:25:44] Speaker 03: And I corrected the mistake. [00:25:48] Speaker 03: But if you contrast that with the language in the declaration, you'll see that is not the system with the remote terminal embodiment. [00:25:56] Speaker 03: Instead, that bundled twisted pairs is below the remote terminal. [00:26:01] Speaker 03: That's why it can't be a signal interface, because it doesn't meet that. [00:26:05] Speaker 03: And I do want to point out one thing, Your Honor. [00:26:07] Speaker 02: That's an issue that wasn't reached by Judge Stark, right? [00:26:11] Speaker 03: It was. [00:26:12] Speaker 03: Judge Stark, on pages 52 and 53 of the record, said those declarations are uncontroverted, and said that's my basis for summary judgment, and said that the [00:26:24] Speaker 03: Networks are described as having these bundled wires, this public telephone network downstream of what's accused of the signal interface that's uncontroverted and that's the basis for summary judgment. [00:26:38] Speaker 03: It's in his summary judgment order at pages 52 and, sorry, record pages 52 and 53. [00:26:44] Speaker 03: I'm going to go ahead and use my rebuttal time because it seems the panel is more interested in the non-enfrenchment issue. [00:26:50] Speaker 03: But if you have any questions on indefiniteness, I'd be happy to answer them. [00:26:54] Speaker 03: But I really want to talk about figure 16 because council put so much on the figure 16 and every claim. [00:27:01] Speaker 03: And by the way, Your Honor, Judge Bryson, you asked which claims. [00:27:05] Speaker 03: It's only claims 61 of the 596. [00:27:07] Speaker 03: It's claims one to five of the 446. [00:27:12] Speaker 03: And it is claims one, two, four, eight, and nine of the 585. [00:27:17] Speaker 03: One, two, four, eight. [00:27:21] Speaker 03: And nine. [00:27:22] Speaker 03: One, two, four, eight, and nine. [00:27:25] Speaker 03: Every one of those claims, your honor, if you look at the independent claims, every one of them is talking about a system with a telephone network, which means that the signal interface language used in there, no person of ordinary skill in the art would look at figure 16. [00:27:38] Speaker 03: As you pointed out, that figure has no telephone network. [00:27:42] Speaker 03: So when you're looking at this coined term, and that's a finding by Judge Stark, he found there's no plain and ordinary meaning for signal interface. [00:27:51] Speaker 03: So he was looking at this coined term in the context of the claims in which it was used. [00:27:56] Speaker 03: Figure 16 has no impact. [00:27:58] Speaker 03: Figure 16 cannot be an embodiment of these claims because it doesn't have a telephone network, which is required by every one of these claims. [00:28:09] Speaker 03: So because signal interface was a coined term, because Judge Stark gave a proper reading to it. [00:28:15] Speaker 03: And I would also note that we haven't been told what the construction is that was below. [00:28:19] Speaker 03: There's been no support. [00:28:21] Speaker 03: from UAT's construction below, which was a locational construction. [00:28:25] Speaker 03: It talked about the convergence point. [00:28:27] Speaker 03: No support for that in the briefing, no support for that today in the argument. [00:28:32] Speaker 01: I would ask the support to... You mean that this is the argument that they really haven't pressed the Judge Thine construction? [00:28:39] Speaker 01: They've attacked Judge Starks and they've argued in favor of a no-locational interpretation, claim-based, but they haven't taken the middle position? [00:28:49] Speaker 03: In fact, not only did they not take it, they criticized it. [00:28:54] Speaker 01: Yeah, that's right, because they don't want that, because they want more. [00:28:57] Speaker 01: But it does seem to me that it's a fair reading of their brief, that as a fallback position, they'll take Judge Stein's position. [00:29:04] Speaker 03: That may be a fair reading of their brief, but in an interactive video, if they didn't preserve that as a construction below, they're not allowed to argue for that construction here. [00:29:12] Speaker 01: Well, of course, Judge Stark, [00:29:14] Speaker 01: stated that he was adopting Judge Tang's construction in his claim construction order. [00:29:19] Speaker 01: I believe you agree with that. [00:29:22] Speaker 03: Well, we can look at his wording. [00:29:23] Speaker 03: His claim construction is not identical to hers. [00:29:26] Speaker 01: Well, when he finally ends up with whatever his final claim construction was, which really doesn't pop up at least clearly until the summer judgment order. [00:29:37] Speaker 01: By then, there's no doubt that he is adopting a different claim construction, which leads him to a different conclusion. [00:29:42] Speaker 03: The wording in his claim construction order is different, Your Honor. [00:29:45] Speaker 03: It is a different claim construction than it was from the get-go. [00:29:48] Speaker 03: His words are different. [00:29:50] Speaker 03: And it's those words that in the declaration are compared against the accused system, which is this court's approach to asserting or assessing infringement. [00:30:00] Speaker 02: Before you sit down, in terms of the indefiniteness, then why shouldn't one read these claims as saying that high frequency simply means [00:30:11] Speaker 02: above the voice band. [00:30:14] Speaker 03: First of all, Your Honor, Judge Thine relied, and this court affirmed, a J-mol of anticipation relying on high frequency being higher, being more than that. [00:30:26] Speaker 03: So in the EarthLink case, the prior art was actually distinguished because it didn't have a higher frequency, not just above the voice band, but higher than that. [00:30:36] Speaker 03: The second thing I point you to, Your Honor. [00:30:38] Speaker 02: Did you make that argument in the brief? [00:30:40] Speaker 03: Did we, Your Honor? [00:30:42] Speaker 03: Yeah. [00:30:43] Speaker 03: Not specifically, no, so I'll point you to the Camerata disclaimer. [00:30:47] Speaker 03: If he didn't have it in the brief, let's put it aside. [00:30:51] Speaker 02: So why shouldn't high frequency mean simply above the voice band? [00:30:55] Speaker 03: If you'll look at appendix page 2430, Your Honor, this is the applicant's description of high frequency. [00:31:06] Speaker 03: You mean their claim construction? [00:31:07] Speaker 03: No. [00:31:08] Speaker 03: their statement to the Patent Office that high-frequency have an independent importance. [00:31:38] Speaker 01: This is the Camerata disclaimer. [00:31:39] Speaker 01: It is. [00:31:40] Speaker 01: It said between 250 and 500. [00:31:43] Speaker 01: What was Camerata? [00:31:44] Speaker 01: It was 300. [00:31:45] Speaker 03: Camerata went up to a half a megahertz. [00:31:47] Speaker 03: So 500 kilo. [00:31:48] Speaker 03: 500 kilo. [00:31:49] Speaker 03: Yeah, that's correct. [00:31:50] Speaker 03: So they specifically say, nor any type of circuitry for preventing transmission of signals in the high frequency band. [00:31:59] Speaker 03: That high frequency band had independent importance for them. [00:32:03] Speaker 03: Camerata, no question, Camerata was blocking well above the voice band. [00:32:07] Speaker 03: So they had to say high frequency was above that. [00:32:11] Speaker 03: They couldn't just say high frequency is at the edge of the voice band. [00:32:14] Speaker 03: So that's completely inconsistent with their current position that high frequency is anything above the voice band, even if that didn't render that language mere self-surplusage in the claim. [00:32:27] Speaker 03: Thank you, Mr. Haas. [00:32:27] Speaker 03: Welcome, Your Honor. [00:32:37] Speaker 04: Mr. Garza, take five minutes if you need it. [00:32:40] Speaker 00: Thank you. [00:32:41] Speaker 00: I have four points I'd like to cover. [00:32:43] Speaker 02: Before we get into the other issues, could you just address that last question about why shouldn't high-frequency mean above the voice band? [00:32:54] Speaker 00: So that is our fallback position, so we're okay with that position. [00:32:57] Speaker 00: I would like to take a stab at defending Judge Stark's construction. [00:33:01] Speaker 02: I think the reason... I find Judge Stark's construction so [00:33:05] Speaker 02: convoluted and complicated and relying on interpretation of various parts of the specification, it seems to me it's hard to follow. [00:33:14] Speaker 00: Well, I think part of it comes from the construction of the term voice band frequencies. [00:33:19] Speaker 00: If that term were as we argued at district court, that it is the frequencies, whatever they might be, carrying the voice band information, then the construction of high frequency that you're proffering today is the natural extension. [00:33:33] Speaker 00: Judge Stark did find, as defendants argued, that voice band frequencies are between zero and four kilohertz. [00:33:39] Speaker 00: He put limits on those. [00:33:41] Speaker 00: And that's why it's not a stretch for one of Skill in the Art then, if one of Skill in the Art made that conclusion, to find a hard limit for the high frequency terms. [00:33:50] Speaker 00: And that's how he reached a construction he did. [00:33:52] Speaker 02: Well, he tries to, I'll just say it has to be above the voice band, because it's necessary to be above the voice band [00:33:58] Speaker 02: And, you know, how much above is not very clear to me from the specification. [00:34:07] Speaker 02: And so I think it's a construction that leads to indefiniteness problems. [00:34:14] Speaker 00: Well, in the very least, if the court is inclined to reach claim construction on the high frequency term, I suggest the court does send it back down and ask the court to reconsider the high frequency term and the voice band frequency term. [00:34:26] Speaker 00: I do think they go together. [00:34:28] Speaker 00: And it's hard to have one without the other. [00:34:31] Speaker 00: The points I wanted to raise though, first, Judge Stark did not make a finding based on whether twisted pairs were bundled. [00:34:38] Speaker 01: Did you want to say anything about the camaraderie disclaimer? [00:34:41] Speaker 00: I think the portion in our brief addresses our position on it, and it's what Judge Stark found as well. [00:34:47] Speaker 01: Yeah. [00:34:49] Speaker 01: Do you have anything more than that to say about it? [00:34:51] Speaker 01: No, but I- I didn't actually find that all that persuasive. [00:34:53] Speaker 01: Well, I do want to- Neither A nor B usually means neither one. [00:34:58] Speaker 00: Usually, but we know that's not the case here because of Rikert. [00:35:01] Speaker 00: If you look at Rikert figure 1A, and that's at the... Are you talking about Rikert or Camerata? [00:35:05] Speaker 00: Rikert. [00:35:06] Speaker 00: So the Camerata disclaimer is the Camerata and Rikert disclaimer. [00:35:10] Speaker 01: I understand, but Camerata specifically blocks 300 to 500. [00:35:14] Speaker 00: Yes, but what the disclaimer says is neither Camerata nor Rikert disclosed, and then it follows, correct? [00:35:20] Speaker 00: So if it were either or, like you're suggesting, it wouldn't work with Rikert. [00:35:25] Speaker 00: If you look at Figure 1 of Reichert, Reichert says, here is a low-pass filter. [00:35:30] Speaker 00: It blocks 0 to 4 kilohertz. [00:35:32] Speaker 00: So this sentence makes no sense if you require Reichert to not have a low-pass filter, which is the interpretation that defendants want. [00:35:39] Speaker 01: I've probably taken up more of your time than I should. [00:35:41] Speaker 00: All right. [00:35:42] Speaker 00: So first, Judge Stark never considered the bundled twisted pair point that defendants pressed here on appeal. [00:35:47] Speaker 00: That was not in the appellate briefing. [00:35:49] Speaker 00: It was in the district court briefing. [00:35:50] Speaker 00: It's not anything the district court has considered. [00:35:53] Speaker 00: Second, I know there's been a lot of discussion about Figure 16. [00:35:56] Speaker 00: We don't need that discussion to win. [00:35:58] Speaker 00: We don't need that figure to win on claim construction. [00:36:01] Speaker 00: Figure 1B is an example where the signal interface is not at the handoff of the public network. [00:36:07] Speaker 00: It is within wholly private networks that private companies are responsible for. [00:36:10] Speaker 00: There's embodiments where the signal interface is in closets of apartment buildings, again, not owned by the telephone company. [00:36:17] Speaker 00: So Figure 16 is important to us and helpful, but it's not necessary. [00:36:21] Speaker 00: Now I'm going to try to bolster figure 16. [00:36:23] Speaker 00: If you'll look at the specification at column 69, column 69 lines 49 to 51 state that figure 16 is just like what we've had before with a couple of changes. [00:36:35] Speaker 00: And the changes are we're taking out the telephones and we're taking out, you know, the various frequency requirements we use with telephony. [00:36:42] Speaker 00: There's no [00:36:43] Speaker 00: signal here that this is completely different of something of such a strange ilk that the signal interface should be considered differently between the two embodiments. [00:36:53] Speaker 00: Any other? [00:36:53] Speaker 01: I do have a question. [00:36:55] Speaker 01: Sure. [00:36:56] Speaker 01: So how are we to tell when the extended wires become the trunk line? [00:37:07] Speaker 01: Your figure 1A has a picture of the extended wires going into the signal interface. [00:37:13] Speaker 01: And you characterize that as the extended wires going into the signal interface and not the trunk line, which you say is on the other side of it. [00:37:19] Speaker 01: But suppose that you move the signal interface up in the upstream direction by 50 feet. [00:37:33] Speaker 01: So you've got the extended wires have now been bundled together and they're going into the signal interface. [00:37:39] Speaker 01: Does that not infringe because they've been bundled together because there's a tie [00:37:43] Speaker 01: around them. [00:37:44] Speaker 00: All right. [00:37:44] Speaker 00: So this is the bundled analysis that wasn't in the district court, but no, it doesn't change the analysis at all. [00:37:50] Speaker 01: I bet if it's not 50 feet, it's a mile. [00:37:52] Speaker 00: It doesn't change the analysis. [00:37:53] Speaker 00: So what you should be thinking here is the public trunk line connects two major components owned by the telephone company. [00:37:59] Speaker 00: It connects the signal interface where all the wires are connecting to a signal interface and all of the wires. [00:38:05] Speaker 01: My question is predicated on the notion that the signal interface now in my hypothetical [00:38:12] Speaker 01: is in the middle of the trunk line. [00:38:14] Speaker 00: No, it's still not in the middle of the trunk line, even if you move it up the trunk line. [00:38:17] Speaker 01: So the wires that have movement. [00:38:20] Speaker 01: When you say even if you move it up the trunk line, it's not on the trunk line. [00:38:23] Speaker 01: I just put it on the trunk line. [00:38:25] Speaker 00: Correct. [00:38:25] Speaker 01: So why isn't that outside of your patent? [00:38:30] Speaker 00: OK. [00:38:31] Speaker 00: So what happens to the lines coming out of the signal interface? [00:38:34] Speaker 00: Are they still run to individual resonances? [00:38:36] Speaker 00: That is why it's no longer a trunk line. [00:38:38] Speaker 00: Instead of connecting two items, it's connecting an item and a bunch of residences. [00:38:43] Speaker 00: Because it's branching off at the end, that's why it's not a trunk line. [00:38:46] Speaker 00: It has nothing to do with whether you move the signal interface up 50 feet or not. [00:38:51] Speaker 00: The fact is the line is branching to multiple residences. [00:38:54] Speaker 00: It's not a trunk line. [00:38:55] Speaker 01: And what happens to those lines after, I don't know a lot as it may become evident to you. [00:39:01] Speaker 01: I don't know a lot about how the telephone system works. [00:39:06] Speaker 01: But once you get past the signal interface and you are on what is indisputably the trunk line, what is the way that trunk line functions that is profoundly different from the way the extended wires function? [00:39:24] Speaker 01: And now, don't go into the optical, but just stick with the old-fashioned wired system for the trunk line. [00:39:32] Speaker 00: Yeah. [00:39:32] Speaker 00: Old fashioned wire system. [00:39:34] Speaker 00: Yeah. [00:39:34] Speaker 00: Just no, there's no different just copper twisted wires that would go up. [00:39:37] Speaker 00: Right. [00:39:38] Speaker 01: And they continue from the residence all the way to the central office. [00:39:41] Speaker 01: Yes. [00:39:41] Speaker 00: But because it's a trunk line, you're not stuck with that. [00:39:44] Speaker 00: You get to change to an optical line. [00:39:46] Speaker 00: You get to mess with things. [00:39:47] Speaker 00: How do I know? [00:39:48] Speaker 01: At least in the old style, which I assume still exists in many places. [00:39:53] Speaker 01: How do I know that I'm now on a trunk line and I'm not on the extended wires? [00:39:58] Speaker 00: Because you're connecting to items owned by the telephone company and not going to individual residences. [00:40:03] Speaker 00: It is that branching that kills the trunk line. [00:40:06] Speaker 01: I'm really not following this because you were saying, stay with me here. [00:40:11] Speaker 01: There's a wire which goes from my house up to a point at which it joins wires from a lot of other houses in the neighborhood. [00:40:19] Speaker 01: And they're all bound together like that. [00:40:22] Speaker 01: and they're all put in a conduit. [00:40:24] Speaker 01: And then they go up a little ways and then there's a signal interface. [00:40:28] Speaker 01: And then at the other end of the signal interface comes the same kind of conduit with the same wires. [00:40:34] Speaker 01: Are you telling me that on the south side, on the downstream side of that signal interface, it was extended wires, but on the upstream side, it's the trunk line? [00:40:45] Speaker 00: Correct. [00:40:46] Speaker 00: So I think I got an answer for you. [00:40:48] Speaker 00: Got an answer for you. [00:40:49] Speaker 00: I think you're looking at it structurally and I'm looking at it functionally. [00:40:52] Speaker 00: You're thinking if there are wires bundled together, it's a trunk line. [00:40:56] Speaker 00: I disagree. [00:40:57] Speaker 00: I think the wires upstream of the signal face are a trunk line because they functionally act that way. [00:41:01] Speaker 00: They connect two parts of the telephone network. [00:41:04] Speaker 00: They're using all these residences together. [00:41:08] Speaker 00: They're treating them together. [00:41:09] Speaker 00: once they exit the signal interface, even if they're still bundled together for 50 feet outside of the signal interface, they're still running to the residences. [00:41:16] Speaker 00: They're still not functionally a trunk line anymore. [00:41:18] Speaker 01: So why is the, suppose we have 10 wires inside this set of wires that's going into the signal interface and there are 10 wires that come out of the signal interface. [00:41:31] Speaker 01: Okay. [00:41:31] Speaker 01: And one of those wires goes to my house. [00:41:33] Speaker 01: One of the wires that started in my house, [00:41:35] Speaker 01: goes through the signal interface and it comes out of the signal interface and that's identifiable as my house wire. [00:41:41] Speaker 01: Yes. [00:41:42] Speaker 01: And that's suddenly different functionally in a way that makes that a trunk line when it's down, when it's upstream of the signal interface. [00:41:50] Speaker 00: Yes. [00:41:51] Speaker 01: And why? [00:41:53] Speaker 00: And it's because the telephone company can treat those 10 wires together as a unit. [00:41:57] Speaker 00: Now they're, they're, they're processing together. [00:41:59] Speaker 00: They can change it with fiber optics. [00:42:00] Speaker 00: They can do a lot of things they can't do. [00:42:02] Speaker 00: when they are connecting them straight to the residences. [00:42:05] Speaker 00: When they're connecting them straight to the residences, they're stuck with the signals that the residences expect. [00:42:09] Speaker 00: Thank you, counsel. [00:42:10] Speaker 00: Thank you. [00:42:11] Speaker 04: We will take the case under advisement.