throbber
RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.
`Petitioner
`vs.
`AFFINITY LABS OF TEXAS, LLC
`Patent Owner
`- - - - - -
`Case IPR2014-01181
`Patent 8,532,641
`Application 13/673391
`Technology Center 2600
`- - - - - -
`Oral Hearing Held: October 28, 2015
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`
`
`trials@uspto.gov
`571-272-7822
`
`IPR2014-01181, Paper No. 35
`November 18, 2015
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`Before: KEVIN F. TURNER (via video), LYNNE E. PETTIGREW,
`JON B. TORNQUIST, Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Wednesday,
`October 28, 2015 at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia in Courtroom A, at 2:00 p.m.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`J. STEVEN BAUGHMAN, ESQ.
`Ropes & Gray LLP
`2099 Pennsylvania Aveue, N.W.
`Washington, D.C. 20006-6807
`202-508-4606
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`GABRIELLE E. HIGGINS, ESQ.
`Ropes & Gray LLP
`1900 University Avenue
`6th Floor
`East Palo Alto, CA 94303
`650-617-4000
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`ON BEHALF OF THE PATENT OWNER:
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`RYAN M. SCHULTZ, ESQ.
`EMILY E. NILES, ESQ.
`Robins Kaplan
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`800 LaSalle Avenue, Suite 2800
`Minneapolis, Minnesota 55402
`612-349-9500
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`Case IPR2014-01181
`Patent No. 8,532,641
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`P R O C E E D I N G S
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`(2:00 p.m.)
`JUDGE TORNQUIST: You may be seated. Okay.
`We are here on IPR2014-01181, Samsung versus
`Affinity Labs of Texas, which is a consolidated case with
`IPR2014-1182 and 1184.
`Who do we have for Petitioner?
`MR. BAUGHMAN: Your Honor, Steve Baughman
`with Gabrielle Higgins for Petitioner. And we have
`representative Michelle Yang from Samsung.
`JUDGE TORNQUIST: Welcome. Patent Owner?
`MR. SCHULTZ: Good afternoon, Your Honor,
`Ryan Schultz on behalf of Affinity Labs of Texas. With me is
`my colleague, Emily Niles.
`JUDGE TORNQUIST: Welcome. Per our order of
`September 25th, each side will have 90 minutes to present
`argument. Petitioner bearing the ultimate burden of proof, you
`will go first. You can reserve as much time as you want for
`rebuttal.
`
`Then we will hear from Patent Owner and then
`Petitioner's rebuttal, if any.
`What I would like to address before we start off is
`Patent Owner requested in their request for oral argument
`paper 31 that they be allowed a surrebuttal specifically to the
`issue of priority.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`
`MR. SCHULTZ: Yes, everybody agrees as to
`priority, the Patent Owner bears the burden of proof on
`priority, so if the standard of protocol here at the PTAB is
`whoever bears the burden gets the last word on the issue, we
`think that it would be consistent then for us to bear the last
`word on the issue of priority, which Petitioners will admit that
`we bear the burden of proof on.
`JUDGE TORNQUIST: Petitioner, do you want to
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`mention?
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`MR. BAUGHMAN: Your Honor, I understand we
`have the ultimate burden of persuasion on invalidity, so we
`would not agree a surrebuttal is necessary here.
`JUDGE TORNQUIST: This actually addresses a
`question the Board has an interest in. Specifically who bears
`the burden of proof on a subsidiary issue, such as this, and
`whether the burden ever can shift from the Petitioner in this
`case.
`
`So we are going to allow a two-minute surrebuttal.
`I would like -- it needs to be limited specifically to the issue of
`burden and how that burden applies to the facts with respect to
`priority. Okay?
`MR. SCHULTZ: Understood, Your Honor. Thank
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`you.
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`JUDGE TORNQUIST: Okay. With that said,
`Petitioner do you want to start?
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`Case IPR2014-01181
`Patent No. 8,532,641
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`MR. BAUGHMAN: Thanks, Your Honor.
`Your Honor, and Judge Turner, if for whatever
`reason I wander away from the microphone, please feel free to
`let me know if you can't hear.
`May it please the Board -- sorry, Your Honor. May
`it please the Board, at the outset we would like to reserve 40
`minutes of our time, if we may, for rebuttal.
`JUDGE TORNQUIST: Okay.
`MR. BAUGHMAN: And Petitioners have provided
`our positions and evidence in our briefing. And we rely on
`that material to support our arguments, but to assist the Board
`in considering the record, we plan to address today in our
`opening discussion four topics, along with any questions, of
`course, the Board may have.
`And we understand that our demonstratives were
`not required to be filed with the Board. We would make a
`request for permission to file those, just so that the record is
`complete, understanding that demonstratives are not evidence,
`but so that the transcript of the oral argument can reflect page
`numbers and so forth. We would respectfully request
`permission to file our demonstratives after the hearing today.
`JUDGE TORNQUIST: Okay. We will take that
`under advisement after the hearing.
`MR. BAUGHMAN: Thanks, Your Honor.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`
`There are three groups, if we can turn to slide 3 of
`our demonstratives, please, three groups of prior art
`combinations at issue in this joint proceeding. So after some
`brief opening comments, first my colleague, Ms. Higgins is
`going to address claim construction.
`Second, I will address combinations based on the
`Abecassis reference as the 01182 proceeding originally. Then
`my colleague will address combinations based on Ito 01181
`and priority and combinations based on Ohmura 01184.
`This is the parties third hearing before the Board
`following hearings earlier this year on the related '390 and '007
`patents. We're now looking at the invalidity of the '641 patent,
`one of 15 claiming priority to the same March 28th, 2000
`application.
`Before we jump in, I would like to make three brief
`observations about the kind of arguments and evidence that
`Patent Owner has put before this Board. First, Patent Owner
`consistently misstates the law and argues about points that are,
`for that reason, irrelevant. For example, just as they have
`argued in prior proceedings, Patent Owner here repeatedly
`urges the need for existing devices or commercial devices or
`commercially successful devices for obviousness.
`If we put up as an example Patent Owner's
`response, paper 20, at page 50.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`If we can enlarge the paragraph starting off with
`"additionally." So in this paragraph on page 50, Patent Owner
`is arguing about implementation of Bluetooth in Abecassis and
`suggesting it would have required a paired device and arguing
`against the combination. They argued that Bluetooth was new
`commercial technology, that there is no evidence that such
`devices existed, that the Haartsen article merely states devices
`may be available in late 1999, and that the evidence doesn't
`definitively prove or definitely prove that such devices were
`actually available prior to March 28th, 2000.
`From this, they conclude there is no reasonable
`expectation of success. Respectfully, that's not the law. That's
`not what's required for obviousness.
`Second, the Patent Owner repeatedly relies on
`argument rather than evidence. Their expert, Dr. Wolf, for
`example, either opines in conclusions or stops short even of
`providing an opinion.
`And her testimony, like Patent Owner's arguments,
`is full of wiggle words that makes the assertions she offers
`meaningless. If we can pull up Exhibit 2005, that is her
`declaration. And let's take a look at paragraph 281 as an
`example.
`
`If we can enlarge that, please, thanks.
`So here Dr. Wolf is saying that there is a technical
`issue having to do with display taking up more than half of the
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`Case IPR2014-01181
`Patent No. 8,532,641
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`front surface. And she says, "a technical issue that may have
`arisen was that increasing the screen size could have resulted
`in an overly pixelated display." This is mere conjecture.
`There is no evidence to back it up.
`And, notably, she makes no comment about the '641
`patent itself and what disclosure, if any, it may have about
`solving problems associated with the display it claims.
`Third and finally Patent Owner repeatedly suggests
`there is a reason the prior art is not enabled and doesn't work
`but first this ignores the fact that prior art is presumed
`enabled. That's the In re Antor case we cited on page 24 of our
`reply.
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`Second, it is contradicted by voluminous evidence
`showing a person of skill would have had more than a
`reasonable expectation of success in the combinations we have
`put forward, including, although it is not required for
`obviousness, from working examples.
`Third, it is simply ironic, the prior art here
`provides much richer disclosure than the '641 patent itself
`about the claimed features. If you were to take Patent Owner's
`arguments to their logical conclusion, it would suggest there is
`no enablement of the claims at issue.
`We ask the Board to bear these issues in mind, as
`well as the principal that any argument not raised in the Patent
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`Case IPR2014-01181
`Patent No. 8,532,641
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`Owner response has been waived. That's made clear in the
`Board's scheduling order, Paper 11 at 3.
`With that, I will hand the podium over to my
`colleague, Ms. Higgins.
`MS. HIGGINS: Good afternoon, Your Honors.
`We're going to start off with claim construction and
`slide 9, please. So the first term we're going to address is
`"stream a signal" and "streaming audio signal" which appear in
`claim 1 and claim 8 respectively.
`The Board correctly construed "streaming audio
`signal" in the Institution decision to mean an audio signal that
`is transferred in a continuous stream, consistent with its
`ordinary meaning. And the Board's construction is consistent
`with the specification and the understanding of a person of
`ordinary skill.
`Slide 10, please.
`Patent Owner's construction of "streaming audio
`signal/stream a signal," on the other hand, is inconsistent with
`the specification. Patent Owner is not offering the broadest
`reasonable construction. Rather, Patent Owner has limited the
`construction of this term to a signal that must be played as it
`arrives at the recipient device, not requiring that the entire file
`be transferred to and stored at the recipient device for
`initiating playback.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`The '641 patent does not discuss or require that
`streaming audio is played as it arrives at the recipient device.
`Slide 11, please.
`Patent Owner's construction also is unsupported by
`the prosecution history. Patent Owner's statement made during
`prosecution regarding immediate playback, which appears in
`their responsive brief at page 8, was explicitly rejected by the
`examiner.
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`The examiner stated during prosecution that
`streaming audio is transferred as an audio file and can be
`stored on the receiving device as such. And he stated that the
`invention as claimed provides no teaching of any other
`definition or significant difference between streaming audio
`and transferring of an audio file.
`Moreover, the Board is not bound by Patent
`Owner's self -serving statement made during prosecution. As
`the Federal Circuit stated in Temple Lighting, the PTO is under
`no obligation to accept a claim construction proffered as a
`prosecution history disclaimer, which generally only binds the
`Patent Owner.
`Slide 12, please.
`The next term is "a signal representing at least a
`portion of a song" and signal --
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`Case IPR2014-01181
`Patent No. 8,532,641
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`JUDGE TORNQUIST: Before you move on, let me
`just ask you, would you agree that many people discuss the
`term "streaming" to mean "playing" as it arrives?
`MS. HIGGINS: Your Honor, that falls within the
`proper broadest reasonable construction of the term.
`JUDGE TORNQUIST: Okay.
`MS. HIGGINS: Yes, I do, Your Honor.
`Moving on to streaming a signal -- "a signal
`representing at least a portion of a song," claim 1, and "signal
`that represents a playing of a song," claim 8, here Patent
`Owner has proposed no construction for these terms.
`Rather, Patent Owner argues that Petitioners have
`improperly conflated communication of data and streaming a
`song, which Petitioners have not done.
`Patent Owner provided no construction for these
`terms, as I said. And as Dr. Quackenbush has explained, there
`is no functional difference between streaming data or a song.
`Indeed, this Board has acknowledged that the '641 patent
`confirms that data represents selected audio information, such
`as a song.
`Next slide, please.
`The next term is "communication rate that provides
`for a CD quality listening experience" that appears in claim 11.
`There is no dispute over the meaning of "communication rate"
`here, which Patent Owner defines as "data transfer rate."
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`Case IPR2014-01181
`Patent No. 8,532,641
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`The dispute is with respect to the phrase "CD
`quality listening experience." Petitioner's construction of "CD
`quality listening experience" as provides for a listening
`experience that is similar to that of a CD is consistent with the
`'641 patent specification. The '641 patent at column 2
`explicitly states that the disclosed embodiments allow a radio
`listener to enjoy CD quality sound.
`And at column 1, the patent states that digital radio
`reception may be able to provide compact disk, CD quality
`sound.
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`Slide 14, please.
`Patent Owner's construction "provides for CD
`quality listening experiences" is inconsistent with the
`specification. The disclosed embodiments with wireless
`transmission rates lower than Patent Owner's proposed 1.4
`megabits per second allow a listener to enjoy CD quality
`sound.
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`Indeed, the disclosed embodiments in the patent
`teach that audio may be wirelessly transmitted at a speed of 10
`kilobits per second. The only speed, actually, explicitly set
`forth in the patent utilizing the Bluetooth standard, which had
`a maximum data rate of 721 kilobits per second, and using
`digital radio, for example, IBOC at 96 kilobits per second.
`Slide 15, please.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`Patent Owner's construction of "provides for a CD
`quality listening experience" is also inconsistent with the claim
`language itself. Claim 8, which depends from claim 11,
`requires that the wireless communication module is compliant
`with a Bluetooth standard. Patent Owner's construction is
`inconsistent with the claim language because it would require a
`communication rate greater than what was provided by
`Bluetooth as of March 2000. So 1.4 megabits per second is
`greater than 721 kilobits per second.
`JUDGE TURNER: Counsel, can I ask you a quick
`question before you move on?
`MS. HIGGINS: Yes, Your Honor.
`JUDGE TURNER: The claim says it is compliant
`with the Bluetooth standard. Does that mean that it has to
`transmit at the Bluetooth standard?
`MS. HIGGINS: Your Honor, compliant with the
`Bluetooth standard --
`JUDGE TURNER: But it doesn't say the module
`actually transmits at that. So I understand your -- the
`distinction you are trying about raised, but I guess I am
`slightly quibbling with your interpretation.
`MS. HIGGINS: Understood, Your Honor.
`What I am trying to say is that the maximum rate at
`which data can be transferred over an asynchronous channel
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`Case IPR2014-01181
`Patent No. 8,532,641
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`according to the Bluetooth standard as of March 2000 was 720
`kilobits per second.
`JUDGE TURNER: Understood. But the claim
`doesn't require that it is actually sent at that rate, right? It just
`says that the module has to be compliant with the standard. So
`I can send it in a different rate, I could send it under, you
`know, under a different standard, right?
`MS. HIGGINS: You could read the claim that way,
`Your Honor.
`JUDGE TURNER: I guess you are not reading the
`claim that way?
`MS. HIGGINS: You could read the claim more
`broadly to -- because of -- so I will say that there is a
`disconnect in the patent specification where it talks about the
`speed and then it also talks about somewhere else in the
`specification about the Bluetooth standard.
`Moreover, claim 8, which is what we're talking
`about here, it refers to streaming an audio signal and then --
`JUDGE TURNER: I am trying to understand your
`argument, but normally Petitioners like it when we interpret
`claims broadly. And perhaps I am missing something. I am
`probably throwing you off your claim construction, but I just
`wanted to ask about this construction.
`MS. HIGGINS: Right. And I think, Your Honor
`what we were looking at was in claim 11, it is referring to
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`Case IPR2014-01181
`Patent No. 8,532,641
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`communicating the streaming audio signal at a communication
`rate that provides for a CD quality listening experience.
`JUDGE TURNER: Okay. Thank you.
`MS. HIGGINS: You're welcome.
`Slide 16, please.
`Patent Owner's construction of "provides for a CD
`quality listening experience" improperly relies on extrinsic
`evidence, inconsistent with the '641 patent.
`Patent Owner relies exclusively on the Red Book.
`The '641 patent does not refer to the Red Book cited by Patent
`Owner. Moreover, while recording audio on to a CD,
`according to the Red Book, results in storing 1.4 megabits per
`second of data of the song, the Red Book nowhere specifies
`how to wirelessly transfer audio to provide a CD quality
`listening experience.
`And a person of ordinary skill would have
`understood that audio that does not follow the Red Book could
`provide a CD quality listening experience. For example, we
`cite Exhibit 1034, an IEEE article, which states that "typical
`audio compression standards that provide for CD-quality audio
`are," and it lists among the compression standards, for
`example, MP3.
`Let's turn to slide 19, please. Let's back up one
`slide, please.
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`Case IPR2014-01181
`Patent No. 8,532,641
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`The next term is "means for recharging the internal
`battery." Here Patent Owner has not offered a construction for
`means for recharging the internal battery.
`Rather, Patent Owner argues that claim 14 involves
`means-plus-function claiming under 35 U.S.C., they said
`112:F, but it is actually 112:6 in this case. And Petitioners
`failed to identify the structure disclosed in the '641 patent.
`But Patent Owner ignores that the Petitioner stated
`in the opening petitions that the terms should be given its plain
`and ordinary meaning.
`And the term "means for recharging the internal
`battery" connotes a well-known class of structures; namely,
`battery rechargers.
`In response to Dr. Wolf's arguments,
`Dr. Quackenbush explained that a person of ordinary skill in
`the art would have understood that the term means for
`recharging an internal battery connotes a well-known class of
`structures, i.e., battery rechargers, for recharging a battery.
`In addition, the Herrod reference states that battery
`recharging technology will be well -known to the skilled
`person. That's Herrod, Exhibit 1106 at 14, 18 to 24.
`Thus, it is Petitioner's position that the term is not
`governed by 112:6. And for supporting case law, we cite to the
`recent Lighting Ballast case where the Federal Circuit stated
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`that the term voltage source means was not covered by 112:6
`because it connoted a class of structures.
`Now, we also want to point out that here the Board
`has previously rejected Patent Owner's argument that structure
`must be identified for means language.
`In 2014-261, paper 19, at the Institution phase, the
`Board did not require the Petitioner to identify structure for a
`limitation having means language where the Board was not
`convinced that the Petitioner was contending that the claim
`language invoked 112:6.
`And in the Institution decision, the Board stated
`what it says there in the final box on slide 18, "we are not
`convinced, however, that Petitioner contends that claim 13
`invokes 35 U.S.C. 112, sixth paragraph. We thus do not find
`Patent Owner's argument persuasive."
`Next slide, please.
`Now, here Patent Owner has provided no
`construction for "means for recharging the internal battery."
`And, indeed, Patent Owner's specification cites in its brief,
`responsive brief at 95-96 that it stated for the priority issue,
`confirm that it needs no construction.
`If we look to the patent and to the specific cites
`that Patent Owner cited, and these were also cited in the Wolf
`declaration, Exhibit 2005 at 92, we see that if we look to the
`'641 patent, we see that the means for recharging the internal
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`battery is simply a recharging circuit operable to recharge a
`power supply.
`So I would submit, whether the Board construes the
`term as means-plus-function or finds that the term "means for
`recharging the battery" does not invoke 112:6, we reach the
`same result here.
`And there is no dispute here that the references
`disclose a battery recharger. Petition 1 at 19, 23, and 36;
`Petition 2, at 19, 23, 24 and 38; and Petition 3 at 35, 36, 41,
`42, and 59.
`And with that, I will turn the podium over to my
`colleague, Mr. Baughman.
`MR. BAUGHMAN: If we could turn to slide 3,
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`please.
`
`So there are a number of combinations that were
`instituted for trial involving the Abecassis reference. I am
`going to address those briefly now.
`I will acknowledge that there are a kitchen sink of
`arguments that the Patent Owner has raised in its response. We
`can't address all of them in the hearing today. We have
`addressed them in our papers. But we will try to talk about
`some of the higher-level issues we have seen. If the Board has
`other questions, we're certainly happy to address them.
`The six topics I plan to talk about right now are
`recipient device, selectable menu item, streaming a signal
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`Case IPR2014-01181
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`representing at least a portion of a song using an asynchronous
`channel, compliant with the Bluetooth standard, physical
`interface, and providing a CD quality listening experience.
`If we could turn to slide 21, please.
`So Abecassis clearly discloses the claimed
`recipient device. As we have reproduced here on slide 21 from
`figure 2 of Abecassis, and from column 9, Abecassis talks
`about a portable media player that is intended to function as a
`stand- alone cellular phone and as part of a multi- phone
`configuration.
`In addition to that device, that portable multimedia
`player, which acts as the wireless telephone device in claim 1
`or as the portable electronic device in claim 8, Abecassis also
`discloses a remote control that can directly receive from the
`multimedia player a transmission and render it audible for the
`user through its built-in speaker.
`We have that quotation from column 10 of
`Abecassis and the reproduction of figure 3 also on slide 21.
`Turning to slide 22.
`As the Board recognized in the Institution decision
`at 10, it is this remote control device that we have argued is
`the recipient device in claim 1, element G, and claim 8,
`element C. And, by the way, the Abecassis disclosure makes
`clear that a multimedia player can be used as the remote
`device. That's column 9, lines 26 to 30.
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`Case IPR2014-01181
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`And as the discussion here from column 10 makes
`clear, the remote control is comprising all of the components
`and elements that are necessary to operate this way, it includes
`a digital signal processor and electronics. It has
`communications capabilities that are synergistically integrated
`with those of a multimedia player. And it can directly receive
`from another multimedia player the transmission and render it
`audible.
`
`Turning to slide 23, Abecassis also discloses the
`claimed selectable menu item on that remote. So we have
`reproduced here figure 3 from Abecassis. And if you look at
`element 312, there is a row of function keys there, little
`Romans i to v. And those function keys provide at least four
`kinds of selections that we quoted in our petition.
`The subject category selection, program selection,
`music and information preference selection, and source
`selection. That's from column 9. We have reproduced the
`quote on slide 23.
`And Abecassis provides that those keys can be
`interactively defined and labeled and relabeled automatically
`using a transmission from the wireless telephone device or the
`portable electronic device that is the multimedia player.
`Turning so slide 24, Patent Owner argues that there
`is no disclosure in Abecassis that content is somehow
`transferred to that remote to generate a selectable mean item.
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`Case IPR2014-01181
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`It is simply not true. Abecassis teaches these function keys are
`configured by that information downloaded from a multimedia
`player. The quote from column 9 is reproduced again here on
`slide 24, and Dr. Quackenbush talks about this in his
`declaration, Exhibit 1025, paragraph 106.
`That multimedia player, in response to Dr. Wolf's
`comments, is transmitting information to the remote control
`device to configure how the function keys will be defined and
`labeled. Things like the label dad indicate the kind of
`multimedia information that are available with dad as the user.
`Turning to slide 25, those function keys provide, as
`I noted before, three categories that we have highlighted on
`slide 25, ignored in Patent Owner's response; subject category
`selection, program selection, source selection.
`No comment about those in the response.
`Dr. Quackenbush opined that each of these three types of
`examples of selections from those keys is making a selection of
`available media from a list of subjects, categories, programs,
`or sources.
`And we quote here at the bottom of slide 25 or
`column 25 of Abecassis, from 47 to 50, again, that's
`Exhibit 1103, talking about how audio information may be
`obtained by a selection from an alphabetical list by title,
`subject matter, and categories and so forth.
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`Now, turning to slide 26, the fourth example is also
`an example of a selectable menu item associated with available
`content from that wireless telephone device or that portable
`electronic device. Abecassis teaches that this is demonstrated
`in figures 5 and 6. We have reproduced those on slide 26.
`And as Dr. Quackenbush testified, and we have his
`quotes on slide 27, this is from paragraph 109, in response to
`Dr. Wolf saying those figures don't disclose selections that are
`associated with available content, Dr. Quackenbush explained
`further, things like the basketball, the baseball, the hockey
`puck, are associated with content that can be retrieved and
`played on the multimedia player, just like ACC, Big East, Big
`10, they are all football games.
`And in the quote from Abecassis we have excerpted
`here from column 18, lines 32 to 37, Abecassis discloses those
`music preferences automatically produce a continuous playing
`of audio without the need for a user to intervene.
`So they are certainly associated with available
`
`content.
`
`Turning to slide 29, on the issue of streaming a
`signal using an asynchronous wireless channel, Patent Owner
`argues that Chennakeshu teaches communicating asynchronous
`data as opposed to streaming a signal representing at least a
`portion of a song. That misapprehends our argument.
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`We argue that Abecassis teaches streaming a signal
`representing at least a portion of a song. We have reproduced
`the quotes the Board is familiar with here from column 14 and
`column 10 about reproducing and retrieving and playing in a
`real-time manner, using the multimedia player and the remote
`control directly receiving from the player at transmission and
`rendering it audible.
`Turn to slide 30.
`Chennakeshu in turn teaches the use of an
`asynchronous data channel and Bluetooth supporting
`transferring data.
`Now, there is no functional difference as Ms.
`Higgins indicated before, about transmitting data versus
`transmitting a song. And, again, the '641 patent confirms that
`as well.
`
`And if there were any question, because Patent
`Owner is certainly arguing that you wouldn't transfer songs
`over the data channel disclosed in Chennakeshu, Chennakeshu
`incorporates by reference Ericsson Review 3. That is
`Exhibit 1007-A, or 1108-A in the 01182 proceeding. They are
`the same document.
`It talks about transmitting data including
`multimedia applications, sending video clips. And the SIG
`white paper, that is Exhibit 1047, talks again about transferring
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`data objects using Bluetooth with object types including
`streaming media format.
`So as Dr. Quackenbush testified, a person of skill
`would have understood that a signal representing at least a
`portion of a song is represented by data. And this data could
`be transferred over Chennakeshu's asynchronous data channel.
`JUDGE TORNQUIST: Counsel let me ask a
`question to make sure I understand. Is Bluetooth necessarily
`asynchronous?
`MR. BAUGHMAN: Your Honor, Bluetooth has two
`channels. It has a voice channel that is synchronous, and it has
`an asynchronous data channel. And what Chennakeshu
`discloses is transmitting data over the data channel.
`And these disclosures we have talked about here in
`Exhibits 1007- A and 1047 are about the asynchronous data
`channel, if you look at the context on both those pages.
`JUDGE TORNQUIST: So the argument is that if
`you are going to transmit a song using Bluetooth, it is going to
`be asynchronous?
`MR. BAUGHMAN: Your Honor, I am not saying it
`is impossible to do that over the synchronous channel, but
`certainly the disclosures we put forward show doing that on the
`asynchronous channel. The asynchronous channel is tailored
`for data and the synchronous channel is tailored for voice.
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`And the data rate is also much higher on the
`asynchronous channel, the rate that is possible to transmit.
`Taking a look at slide 32, the Patent Owner also
`argues there wouldn't have been a motivatio

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