Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 1 of 107 PageID #: 1696
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1
`
` 1 IN THE UNITED STATES DISTRICT COURT
`
` 2 FOR THE EASTERN DISTRICT OF TEXAS
`
` 3 MARSHALL DIVISION
`
` 4 AMERANTH, INC. )(
`
` 5 )( CIVIL DOCKET NO.
`
` 6 )( 2:10-CV-294-JRG-RSP
`
` 7 VS. )( MARSHALL, TEXAS
`
` 8 )(
`
` 9 PAR TECHNOLOGY CORP., )( MAY 30, 2012
`
` 10 ET AL. )( 1:30 P.M.
`
` 11 CLAIM CONSTRUCTION HEARING
`
` 12 BEFORE THE HONORABLE JUDGE ROY S. PAYNE
`
` 13 UNITED STATES MAGISTRATE JUDGE
`
` 14
`
` 15 APPEARANCES:
`
` 16
`
` 17 FOR THE PLAINTIFF: (See attached sign-in sheet.)
`
` 18
`
`
`
`
`
` 19 FOR THE DEFENDANTS: (See attached sign-in sheet.)
`
` 20
`
`
`
` 21 COURT REPORTER: MS. SHELLY HOLMES, CSR
` Deputy Official Court Reporter
` 22 2593 Myrtle Road
` Diana, Texas 75640
` 23 (903) 663-5082
`
`
`
`
`
` 24
`
` 25 (Proceedings recorded by mechanical stenography,
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 2 of 107 PageID #: 1697
`
` transcript produced on a CAT system.)
`
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 3 of 107 PageID #: 1698
`
` 2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 I N D E X
`
` 2
`
` 3 May 30, 2012
`
` 4 Page
`
` 5 Appearances 1
`
` 6 Hearing 3
`
` 7 Court Reporter's Certificate 106
`
` 8
`
` 9
`
` 10
`
` 11
`
` 12
`
` 13
`
` 14
`
` 15
`
` 16
`
` 17
`
` 18
`
` 19
`
` 20
`
` 21
`
` 22
`
` 23
`
` 24
`
` 25
`
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 4 of 107 PageID #: 1699
`
` 3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 LAW CLERK: All rise.
`
` 2 THE COURT: Good afternoon. Please be
`
` 3 seated.
`
` 4 For the record, we are here for the Markman
`
` 5 hearing in Ameranth, which is Case No. 2:10-294.
`
` 6 Would counsel introduce themselves for the
`
` 7 record?
`
` 8 MR. PHILLIPS: Yes, Your Honor, Larry
`
` 9 Phillips on behalf of plaintiff, Ameranth, and I'm here,
`
` 10 Your Honor, on behalf of my partner, Michael Smith, who
`
` 11 was out of town, and wanted to introduce John Osborne
`
` 12 with the Osborne Law Firm who will be speaking today on
`
` 13 behalf of the plaintiff. And Mike Fabiano is also here
`
` 14 today. He will not be speaking. And we also have our
`
` 15 client, Keith McNally, who is president and lead
`
` 16 inventor with Ameranth.
`
` 17 THE COURT: All right. Thank you.
`
` 18 MR. JONES: Your Honor, Mike Jones on behalf
`
` 19 of Par Technology and Partech, Inc., and here today with
`
` 20 me representing those two defendants is Mr. Blake
`
` 21 Bettinger -- Blaine Bettinger, excuse me -- and
`
`
`
`
`
`
`
`
`
`
`
` 22 Mr. Frederick Price and Mr. George McGuire who will be
`
` 23 making the presentation, Your Honor, and we're ready to
`
` 24 proceed.
`
` 25 THE COURT: All right. Thank you.
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 5 of 107 PageID #: 1700
`
` 4
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 I have typically found it most helpful to
`
` 2 proceed on a claim-by-claim basis so that we get both
`
` 3 sides making their presentation on the same claim.
`
` 4 Do counsel have any preference regarding
`
` 5 whether you -- it's all right with me if you proceed
`
` 6 from your desk -- from the table there if that works
`
` 7 better for you, as long as you're by a mic, or if you
`
` 8 need the technology up here, you can just take turns at
`
` 9 the lectern. Any preference one way or the other?
`
` 10 MR. OSBORNE: I think probably the lectern
`
` 11 for me, Your Honor.
`
` 12 THE COURT: All right.
`
` 13 MR. McGUIRE: Yes, Your Honor, we'll go to
`
` 14 the lectern, as well.
`
` 15 THE COURT: All right. Good. Well, then
`
` 16 you may proceed.
`
` 17 MR. OSBORNE: Your Honor, so we'll be
`
` 18 proceeding on a term -- disputed term-by-term basis as
`
` 19 you indicated.
`
` 20 THE COURT: And if I said claim-by-claim, I
`
` 21 meant term-by-term, but --
`
` 22 MR. OSBORNE: I -- we know what you meant.
`
` 23 We think the same way.
`
` 24 I wonder if the -- if the Court might be
`
` 25 interested in a short background preliminary before I
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 6 of 107 PageID #: 1701
`
` 5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 get to the first --
`
` 2 THE COURT: That's --
`
` 3 MR. OSBORNE: -- term?
`
` 4 THE COURT: That's fine.
`
` 5 MR. OSBORNE: Okay. If we could go to Slide
`
` 6 2.
`
` 7 As -- as the background, as I was saying,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 8 this is the second Markman proceeding in this Court
`
` 9 involving claims from the same patent family. The first
`
` 10 was by Judge Everingham in 2010, as you saw in our
`
` 11 briefing.
`
` 12 What you did not see in our briefing was
`
` 13 that a third Markman will be upcoming in this Court on a
`
` 14 newly-issued patent that was issued in March of this
`
` 15 year. The case is 2:12-164. It was filed shortly
`
` 16 after the patent issued. We'll be serving that
`
` 17 complaint, and -- and it's already assigned to -- to
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 18 Your Honor, so there will be a hope for consistency
`
` 19 between the three constructions.
`
` 20 THE COURT: That's always helpful.
`
` 21 MR. OSBORNE: So we just wanted to make you
`
` 22 aware of that because in addition to a consistency
`
` 23 because the Markmans already exist, there's another one
`
` 24 on the way.
`
` 25 THE COURT: All right. Thank you.
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 7 of 107 PageID #: 1702
`
` 6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 MR. OSBORNE: On Slide 3, we just have small
`
` 2 snippets of the cover pages of the two patents on the
`
` 3 left that are presently asserted. Another patent in the
`
` 4 Ameranth patent family that is not asserted is the third
`
` 5 one over, the '733 patent, and then the new patent, the
`
` 6 '077, is the one upcoming in the third case, the second
`
` 7 case against the Par defendants.
`
` 8 The '850 and '325 patents are the ones
`
` 9 presently asserted in this case. All of these claims in
`
` 10 all of the patents share terminology and Ameranth
`
` 11 believes should be construed consistently where there --
`
` 12 there is an overlap, and there's an overlap in overall
`
` 13 perspective of the patents that infuses all the claims.
`
` 14 Going to the next slide, 4.
`
` 15 Judge Everingham recognized in his Markman
`
` 16 order two years ago that there were two aspects to the
`
` 17 patents. One was display on different kinds of devices
`
` 18 for clients, and the second aspect was consistency
`
` 19 between centrally maintained information and information
`
` 20 presented on different kinds of -- of devices for our
`
` 21 clients.
`
` 22 The quote that we put up there is from Judge
`
` 23 Everingham's Markman from two years ago in which he
`
` 24 indicated that, first, there was the aspect of being
`
` 25 automatically adapted to display properly on various
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 8 of 107 PageID #: 1703
`
` 7
`
`
`
`
`
`
`
`
`
`
`
` 1 devices, and, second, synchronization between a central
`
` 2 database and multiple handheld devices.
`
` 3 And note here that Judge Everingham did not
`
` 4 equate synchronization to real-time communication since
`
` 5 he didn't include it in his construction -- he didn't
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 6 include real-time in his construction.
`
` 7 Next slide.
`
` 8 The asserted claims are directed to -- let
`
` 9 me back up and say eight claims are being asserted in
`
` 10 this case. All of those claims are directed to a client
`
` 11 server system for synchronizing hospitality information
`
` 12 for consist display across these various claimed
`
` 13 elements in an internet-enabled system.
`
` 14 THE COURT: Mr. Osborne, were you involved
`
` 15 in the -- the Menusoft cases?
`
` 16 MR. OSBORNE: Yes, I was.
`
` 17 THE COURT: Was real-time urged to Judge
`
` 18 Everingham as a part of a --
`
` 19 MR. OSBORNE: Yes, it was.
`
` 20 THE COURT: -- construction?
`
` 21 MR. OSBORNE: Yes, it was, by me. We were
`
` 22 wrong.
`
` 23 THE COURT: Okay. And that was in
`
` 24 connection in synchronous or what -- what --
`
` 25 MR. OSBORNE: Synchronous communications in
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 9 of 107 PageID #: 1704
`
` 8
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 the preamble, and synchronous communications in the
`
` 2 preamble is disputed terminology that Mr. McGuire of Par
`
` 3 asserts does have a real-time aspect.
`
` 4 THE COURT: Okay.
`
` 5 MR. OSBORNE: So in addition to this first
`
` 6 bullet point, this also provides the capability for
`
` 7 synchronization between or with other hospitality and/or
`
` 8 third-party applications.
`
` 9 These claims encompass hospitality
`
` 10 applications, such as online mobile ordering,
`
` 11 reservations, frequency programs, wait lists, ticketing,
`
` 12 payment processing. These are all referred to in the
`
` 13 specification. And they all, in the spirit of the
`
` 14 patents, require a synchronized user interface across
`
` 15 different computing components or elements of this
`
` 16 overall synchronized client server system.
`
` 17 It's important to realize that this
`
` 18 invention was conceived over 13 years ago, in 1998, when
`
` 19 the internet wasn't what it is today and when wireless
`
` 20 communications were not what they are today.
`
` 21 Capabilities and deployment were just not where they are
`
` 22 today. But these patents from way back, going on 15
`
` 23 years now, or 14 years, are a virtual blueprint for all
`
` 24 modern internet-enabled hospitality systems.
`
` 25 Next slide, please. Next. 7.
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 10 of 107 PageID #:
` 1705
`
` 9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 On Slide 7, we have a graphic which
`
` 2 illustrates the issue that the inventors were facing in
`
` 3 1998 in that there were all kinds of different potential
`
` 4 display mechanisms, but they all had to be configured
`
` 5 differently. The displays had to be configured
`
` 6 differently mainly because of size of display. The
`
` 7 overriding objective of the patents was to provide
`
` 8 consistent user interfaces on these different types of
`
` 9 displays.
`
` 10 For example, in the menu or ordering
`
` 11 embodiment, the smaller the output display, the more
`
` 12 screens are required to display the same information.
`
` 13 And you can see this from top to bottom. To get the
`
` 14 same menu information displayed with a -- a layer of
`
` 15 cascades of menus to go from entrees to particular
`
` 16 things that could be entrees to modifiers and those kind
`
` 17 of things, not terms that are subject to these claims,
`
` 18 but a menu application is one type of hospitality
`
` 19 application. And this -- this is the -- this is the
`
` 20 battle they were fighting when they were -- when they
`
`
`
`
`
`
`
`
`
`
`
`
`
` 21 were doing the menu application, which is the
`
` 22 application that's most spoken of in the specification.
`
` 23 And the point being that synchronizing the
`
` 24 user interfaces means presenting the same information to
`
` 25 each user no matter the size of their screen.
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 11 of 107 PageID #:
` 1706
`
` 10
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 Can we go to Slide 8?
`
` 2 You can see three examples of handheld
`
` 3 screens for menu application. These all happen to be
`
` 4 screens of licensees of the patents, Menusoft being one
`
` 5 that was the adverse party to Ameranth in the prior
`
` 6 claim construction in the prior case. These are all
`
` 7 handheld screens of point of sale software licensees of
`
` 8 the patentees, as I said.
`
` 9 The corresponding standard, POS -- and when
`
` 10 I say POS, I mean point of sale -- corresponding
`
` 11 standard POS display of a menu would show the same
`
` 12 information, but would need fewer screens to do so. You
`
` 13 can see that aspect, for instance, on the right side of
`
` 14 the Menusoft handheld screen. You see the next button,
`
` 15 third up from the bottom, all the way on the right, that
`
` 16 means if you hit that button, it'll show you some more
`
` 17 things that are available to select at that level of the
`
` 18 menu.
`
` 19 You might not see a next button in that same
`
` 20 place if you had a laptop screen or a full desktop
`
` 21 screen. So to maintain con -- maintain consistency
`
` 22 between what you're seeing on the handheld and what
`
` 23 you're seeing on a bigger screen, you had to parse it
`
` 24 out, you had to divide it up for the smaller screen.
`
` 25 That's what the patents were directed to in regards to
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 12 of 107 PageID #:
` 1707
`
` 11
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 the menu application.
`
` 2 Next.
`
` 3 On this slide, we see the client server
`
` 4 nature of the invention. We have a central database,
`
` 5 central computer, central server that communicates out
`
` 6 through the internet to provide different types of users
`
` 7 on different types of devices the same information
`
` 8 that's maintained back at this central database server.
`
` 9 This client server system provides a mechanism which
`
` 10 results in the same information presented to any one of
`
` 11 these users, no matter the kind of device.
`
` 12 The current information needed by a user
`
` 13 will be provided by the central server, and the
`
` 14 particular application software will present it on the
`
` 15 device screen appropriate for that screen, but it's
`
` 16 still going to match what any other user on any other
`
` 17 device would have seen.
`
` 18 No. 10.
`
` 19 The parties agree on a number of things.
`
` 20 They agree that the -- the preamble is a limitation and
`
` 21 is integral to the construction of the claims as a
`
` 22 whole, as it was in Judge Everingham's construction.
`
` 23 The parties agree the -- the invention is client
`
`
`
`
`
`
`
` 24 server-based. That's consistent with Judge Everingham's
`
` 25 construction. And the web is a client server system, as
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 13 of 107 PageID #:
` 1708
`
` 12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 stated in the patents and known to a person of skill in
`
` 2 the art. And these -- these particular claims that are
`
` 3 being asserted in this case are claims directed to
`
` 4 internet web communication.
`
` 5 The parties agree on the construction of
`
` 6 central database, stored, and wireless handheld
`
` 7 computing device. And there was no dispute about web
`
` 8 server. It doesn't need any construction. And note
`
` 9 also that both sides' proposals for web page, which is a
`
` 10 disputed term -- web page is disputed -- but the
`
` 11 parties' constructions -- their proposals include
`
` 12 viewability by a user in a web browser, and that's a
`
` 13 user interface.
`
` 14 Next slide.
`
` 15 Claim 12 of the '850 patent covers most of
`
` 16 the claim construction disputes. There are some
`
` 17 dependent claims that have disputed aspects. Some of
`
` 18 those relate back to what's claimed in -- I mean, some
`
` 19 of the disputes relate back to what's claimed -- what's
`
` 20 disputed in the -- Claim 12. So Claim 12 is just the
`
` 21 focus. It's not all encompassing, but it is the focus
`
` 22 of -- of this claim construction.
`
` 23 Next.
`
` 24 Ameranth asserts that this claim and the
`
` 25 other asserted claims are clear and unambiguous when
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 14 of 107 PageID #:
` 1709
`
` 13
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 interpreted in light of the intrinsic record. Our
`
` 2 constructions are based on the intrinsic evidence.
`
` 3 Every one of our proposed constructions come directly
`
` 4 from the specification, and Ameranth's constructions are
`
` 5 consistent with Judge Everingham's previous
`
` 6 constructions of the same terms in other claims.
`
` 7 Next.
`
` 8 Just pointing out, some of the issues we
`
` 9 have with Par's proposals, we believe they're untenable
`
` 10 for a number of reasons, including, for example, that
`
` 11 their -- their proposals are unsupported for two
`
` 12 hospitality applications on each wireless handheld
`
` 13 computing device and/or web page.
`
` 14 They argue that "S," quote, unquote,
`
` 15 requires a plural construction without properly
`
` 16 considering the overall intrinsic context. We think the
`
` 17 intrinsic context illustrates that "S" doesn't mandate
`
` 18 plurality here and, in fact, mandates one or more, any
`
` 19 number.
`
` 20 THE COURT: Mr. Osborne, it would be most
`
` 21 helpful to me to take up these issues where they appear
`
` 22 in the terms.
`
` 23 MR. OSBORNE: Okay.
`
` 24 THE COURT: So if we -- it would be helpful
`
` 25 to me if we can go to the --
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 15 of 107 PageID #:
` 1710
`
` 14
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 MR. OSBORNE: Understood, Your Honor.
`
` 2 THE COURT: -- first term. And you can
`
` 3 refer back to these when --
`
` 4 MR. OSBORNE: Okay. Well, with that, why
`
` 5 don't I just go directly to the -- the disputes about
`
` 6 the preamble?
`
` 7 THE COURT: All right.
`
` 8 MR. OSBORNE: On Slide 17.
`
` 9 Here are -- we just have a slide up here
`
` 10 that shows the claim language, our proposed
`
` 11 construction, their proposed construction. And I've
`
` 12 highlighted the issues in their claim construction that
`
` 13 we have issues with.
`
` 14 Next, please.
`
` 15 THE COURT: It -- one thing is, I know
`
` 16 we're -- we're talking about a preamble here, and I --
`
` 17 you mentioned that there's some agreement that it's a
`
` 18 limitation, and --
`
` 19 MR. OSBORNE: Yes.
`
` 20 THE COURT: -- and in your terms integral.
`
` 21 What -- what elements within the claim does the -- does
`
` 22 the preamble provide the antecedent basis for? What --
`
` 23 why -- why do you take the position that it's integral
`
` 24 for --
`
` 25 MR. OSBORNE: Well --
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 16 of 107 PageID #:
` 1711
`
` 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 THE COURT: -- construction of these terms?
`
` 2 MR. OSBORNE: -- synchronous is a form of
`
` 3 synchronized, but it's not exactly the same thing. But
`
` 4 this whole clause, information management and
`
` 5 synchron -- synchronous communications system for use
`
` 6 with wireless handheld computing devices and the
`
` 7 internet, that explains what's being done here.
`
` 8 It's a system that's configured specifically
`
` 9 to make use by a handheld computing device over the
`
` 10 internet useable. And, for instance, for use with is --
`
` 11 are three words that we highlight in our construction of
`
` 12 hospitality applications. We believe that indicates
`
` 13 that the hos -- hospitality applications are -- are to
`
` 14 be used with something that has a user interface.
`
` 15 Mr. McGuire may point to different issues
`
` 16 indicate -- that -- that militate it in his mind why he
`
` 17 thought the -- the preamble should be a limitation, but
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 18 those are mine, not an exhaustive list, but important
`
` 19 ones.
`
` 20 THE COURT: All right.
`
` 21 MR. OSBORNE: Slide 18, please.
`
` 22 Ameranth believes that its construction is
`
` 23 completely consistent with Judge Everingham's prior
`
` 24 construction of analogous or near exact language in
`
` 25 other claims of the same patents. Ameranth's proposal
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 17 of 107 PageID #:
` 1712
`
` 16
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 modifies this prior construction only slightly and only
`
` 2 insofar as use with wireless handheld computing devices
`
` 3 and the internet is explicitly recited in these asserted
`
` 4 claims in lieu of menu which was recited in the claims
`
` 5 that were asserted and construed in the prior case.
`
` 6 So you take out -- take out "for use with
`
` 7 wireless handheld computing devices and the internet"
`
` 8 and put in "menu," and it was specifically "menu
`
` 9 generation and transmission," and that's the difference
`
` 10 in the preamble between the two cases.
`
` 11 Par's construction is confusing. It would
`
` 12 require a construction within a construction and
`
` 13 includes unrecited and unrequired limitations, which we
`
` 14 highlight in the prior chart.
`
` 15 Par's construction relies heavily on what we
`
` 16 believe are misplaced dictionary definitions of
`
` 17 synchronous and communications, which were rejected by
`
` 18 Judge Everingham. And they also ignore a definition on
`
` 19 the same page that doesn't align -- that does align with
`
` 20 the prior construction and is consistent with the
`
` 21 specification.
`
` 22 Specifically, Par ignored a definition in
`
` 23 the Microsoft Computer Dictionary. They cited overall
`
` 24 as intrinsic evidence, pertinent to handheld device
`
` 25 synchronization, even though it relied on the very same
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 18 of 107 PageID #:
` 1713
`
` 17
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 dictionary for other things. And this is explained
`
` 2 fully in the -- Ameranth's reply brief.
`
` 3 Next.
`
` 4 The patents describe the recited synchronous
`
` 5 communication system as directed to maintenance of
`
` 6 operational consistency, of user interfaces provided by
`
` 7 hospitality application software. This first quote
`
` 8 we've excerpted on this page shows the focus was on
`
` 9 applications with specialized display and synchronous
`
` 10 communications requirements on nonstandard screens --
`
` 11 devices.
`
` 12 Synchronous communication in the patents is
`
` 13 about providing consistency throughout the system. It's
`
` 14 not about clocks and timing signals. Par's reliance on
`
` 15 extrinsic evidence related to clocks and timing sig --
`
` 16 signals is thus not applicable. And I'll point out that
`
` 17 in the prior claim construction when Judge Everingham
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 18 disagreed with us on the synchronous communications
`
` 19 definition, we argued then that clocks and timing
`
` 20 signals weren't pertinent. Our proposal for real-time
`
` 21 then was based on the particular claims being asserted
`
` 22 and the reality of most modern systems there, but we
`
` 23 never relied on any clocks or timing signals as -- as
`
` 24 Par is now.
`
` 25 Next.
`
`
`Apple Inc. Exhibit 1043
`
`

`
`Case 2:10-cv-00294-JRG-RSP Document 164 Filed 06/28/12 Page 19 of 107 PageID #:
` 1714
`
` 18
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 1 So a principal dispute in the construction
`
` 2 of the preamble is over real-time. We put forth simply
`
` 3 that a preferred embodiment cannot be read into a claim.
`
` 4 Plenty of cases, Function Media from this district, hold
`
` 5 that. I don't have to explain that to the Court. And
`
` 6 undisputedly the specification disclose -- disclosure