throbber
Claim Construction Hearing 1-9-2015
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`1
`
`DOCKET NO. 2:13CV1059
`
`JANUARY 9, 2015
`
`9:01 A.M.
`
`MARSHALL, TEXAS
`
`|||||||
`
`SOLOCRON MEDIA, LLC
`
`VS.
`
`VERIZON, ET AL
`
`--------------------------------------------------------
`
`VOLUME 1 OF 1, PAGES 1 THROUGH 144
`
`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`--------------------------------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`FOR AT&T MOBILITY:
`
`MATTHEW POWERS
`WILLIAM NELSON
`ROBERT GERRITY
`ANNAKA NAVA
`TENSEGRITY LAW GROUP
`555 TWIN DOLPHIN DRIVE
`SUITE 360
`REDWOOD SHORES, CALIFORNIA 94065
`
`ERIC FINDLAY
`BRIAN CRAFT
`FINDLAY CRAFT
`102 NORTH COLLEGE AVENUE
`SUITE 900
`TYLER, TEXAS 75702
`
`TED STEVENSON
`MCKOOL SMITH
`300 CRESCENT COURT
`SUITE 1500
`DALLAS, TEXAS 75219
`
`Tonya B. Jackson, RPR-CRR
`409.654.2833
`
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`Page 2049-001
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`Solocron Ex. 2049 - Verizon Wireless, AT&T Mobility - IPR2015-00350
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`

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`Claim Construction Hearing 1-9-2015
`
`2
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`TIM DYLL
`ATTORNEY AT LAW
`208 S. AKARD STREET
`WHITACRE TOWER, ROOM 2925
`DALLAS, TEXAS 75202
`
`MIKE JONES
`POTTER MINTON
`110 NORTH COLLEGE AVENUE
`SUITE 500
`TYLER, TEXAS 75702
`
`KEVIN ANDERSON
`WILEY REIN, LLP
`1776 K STREET NW
`WASHINGTON, DC 20006
`
`MARK REITER
`ROBERT VINCENT
`GLENN THAMES
`GIBSON DUNN & CRUTCHER
`2100 MCKINNEY
`SUITE 1100
`DALLAS, TEXAS 75201
`
`STEPHEN MCGRATH
`ATTORNEY AT LAW
`12920 SE 38TH STREET
`BELLEVUE, WASHINGTON 98006
`
`DAVID FINKELSON
`MCGUIRE WOODS
`ONE JAMES CENTER
`901 E. CARY STREET
`RICHMOND, VIRGINIA 23219
`
`ROBERT WEBER
`SMITH WEBER
`5505 PLAZA DRIVE
`TEXARKANA, TEXAS 75505
`
`JENNIFER KNAPP RIGGS
`ATTORNEY AT LAW
`6480 SPRINT PARKWAY
`OVERLAND PARK, KANSAS 66251
`
`Tonya B. Jackson, RPR-CRR
`409.654.2833
`
`FOR VERIZON:
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`FOR T-MOBILE:
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`FOR SPRINT:
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`

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`Claim Construction Hearing 1-9-2015
`
`3
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`COURT REPORTER:
`
`TONYA B. JACKSON, RPR-CRR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 239
`BEAUMONT, TEXAS
`77701
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`PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
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`409.654.2833
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`Page 2049-003
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`

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`Claim Construction Hearing 1-9-2015
`
`INDEX
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`4
`
`"SELECTED VIDEO FILE"
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`"COMMUNICATION LINK"
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`"POLYPHONIC"
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`"ALLOW A USER TO DOWNLOAD THE VIDEO FILE"
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`"CONFIGURED TO"
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`"NATIVE PLAYBACK FORMAT"
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`"CONVERT THE VIDEO FILE TO A NATIVE PLAYBACK
`FORMAT USABLE BY A PLAYBACK DEVICE"
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`"LINK THAT IDENTIFIES THE CONVERTED FILE"
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`"USER-DEFINED AUDIO FILE"
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`"ENHANCED PERFORMANCE SPEAKER"
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`"SUBSTANTIALLY FULL RANGE OF AUDIO SOUNDS"
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`PAGE
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`7
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`26
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`26
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`59
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`59
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`67
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`94
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`113
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`114
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`133
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`138
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`409.654.2833
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`Page 2049-004
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`

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`Claim Construction Hearing 1-9-2015
`
`5
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`(OPEN COURT, ALL PARTIES PRESENT.)
`
`THE COURT:
`
`For the record, we're here for the
`
`Claim Construction Hearing in Solocron Media versus
`
`Verizon Communications, et al, which is Case
`
`No. 2: 13- 1059 on our docket.
`
`Would counsel state their appearances for the
`
`record.
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`MR. FINDLAY:
`
`Good morning, your Honor.
`
`Eric
`
`Findlay on behalf of the plaintiff.
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`Also with me today
`
`is Matthew Powers, William Nelson, Annaka Nava, Robert
`
`Gerrity; and we're ready to proceed.
`
`THE COURT:
`
`All right.
`
`Thank you,
`
`Mr. Findlay.
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`MR. JONES:
`
`Your Honor, on behalf of Verizon,
`
`Mike Jones.
`
`Our lead counsel is Mr. Kevin Anderson.
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`MR. ANDERSON:
`
`Good morning, your Honor.
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`MR. JONES:
`
`And also here from Verizon is
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`Mr. Michael Holden and Jack Minnear.
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`THE COURT:
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`All right.
`
`Thank you, Mr. Jones.
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`MR. FINKELSON:
`
`Good morning, your Honor.
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`Dave Finkelson on behalf of Sprint.
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`With me as well is
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`Bob Weber on behalf of Sprint and Jennifer Riggs on
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`behalf of Sprint.
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`THE COURT:
`
`All right.
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`Thank you, sir.
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`MR. REITER:
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`Good morning, your Honor.
`
`Mark
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`409.654.2833
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`Page 2049-005
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`Claim Construction Hearing 1-9-2015
`
`6
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`Reiter on behalf of T-Mobile, and with me is Stephen
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`McGrath from T-Mobile and also my colleague Robert
`
`Vincent.
`
`THE COURT:
`
`Thank you.
`
`MR. STEVENSON:
`
`Good morning, your Honor.
`
`Ted
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`Stevenson with McKool Smith for AT&T.
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`With me is Scott
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`Hejny from McKool Smith and Tim Dyll from AT&T.
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`We are
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`ready to proceed.
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`THE COURT:
`
`All right.
`
`Thank you,
`
`Mr. Stevenson.
`
`Very well.
`
`I want to state for the record
`
`that I have distributed this morning to all counsel a set
`
`of preliminary or proposed constructions which are
`
`designed to let the parties know where the court is after
`
`the initial review of the briefs and the record.
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`They're
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`given not with the intent of deterring any arguments but
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`rather to allow the parties to focus their arguments
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`where they think the court has gone wrong.
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`And I think
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`that I -- it's been my experience that it helps focus the
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`argument on the things that are most important to the
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`parties as well and I want to assure the parties that
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`I feel free to change these initial constructions based
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`on the arguments and on occasion do.
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`I would also state that I'll give either side
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`an opportunity if they want to make some initial
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-006
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`

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`Claim Construction Hearing 1-9-2015
`
`7
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`commentary about the patents or the technology before we
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`get into the disputed terms, but I do want to take up the
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`terms on a term-by-term basis and hear from each side as
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`to each term before we move on to the next.
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`And if the counsel have any particular way
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`that they think it would be most efficient to approach
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`the terms in a particular order, I'm happy to proceed
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`in that order; or we can just go by the order in which
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`they were briefed, which is the order that we followed
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`on the initial proposed constructions that we have handed
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`out.
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`plaintiff.
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`And, so, with that, I'll turn it over to
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`MR. POWERS:
`
`Your Honor, we're happy to follow
`
`the order that you used in your list of proposed
`
`constructions.
`
`And as I understand your Honor's
`
`procedure, the party that wishes to contest one will go
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`first.
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`So, that means counsel for defendants would go
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`first on "selected video file" if they so wish to.
`
`THE COURT:
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`That is probably the most
`
`efficient way to proceed.
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`So, I' ll be happy to hear from
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`defendants on that.
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`MR. STEVENSON:
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`We're very happy with the
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`order, your Honor, with one slight tweak which is just
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`due to the technology and the way the arguments progress
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-007
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`

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`Claim Construction Hearing 1-9-2015
`
`from each other.
`
`8
`We would suggest for your consideration
`
`switching the order of the last term on page 1, "convert
`
`the video file to a native playback format," with the top
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`term on the next page which is "native playback format,"
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`merely because we think it's a little bit easier to talk
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`about the native format and the issues there before then
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`discussing the conversion.
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`THE COURT:
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`That's fine.
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`We'll do that.
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`MR. STEVENSON:
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`And, your Honor, we' re
`
`prepared to address every term that is on the list and
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`whatever argument the court would desire.
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`There are
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`certain terms that we feel are a little more important
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`than others obviously to our case; and for those terms
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`we'd like to spend a little more time discussing them,
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`arguing them.
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`We split the terms up among the parties.
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`There are some terms where we have very little, if any,
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`additional argument we wish to present over and above the
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`briefs; and for those terms we may just stand up and tell
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`you that and invite any questions from the court, if
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`that's acceptable.
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`THE COURT:
`
`All right.
`
`So, you want to start
`
`with "video file"?
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`We'll take that up.
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`MR. ANDERSON:
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`Good morning, your Honor.
`
`My
`
`name is Kevin Anderson.
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`I represent Verizon, as
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`Mr. Jones said.
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-008
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`

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`Claim Construction Hearing 1-9-2015
`
`9
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`THE COURT:
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`All right.
`
`Thank you,
`
`Mr. Anderson.
`
`MR. ANDERSON:
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`We see your Honor's tentative
`
`construction of "video file" there, and we think it needs
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`some clarification and some slight modification.
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`And
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`three reasons that I think that this construction isn't
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`quite right is what it seems to -- first one is although
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`plaintiff argued that they wanted a plain meaning, their
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`construction which the court adopt is actually not the
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`plain meaning and it is more of a lexicography.
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`They
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`have tried to redefine this, and they don't meet that
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`standard.
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`They don't even discuss that standard in their
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`portions.
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`Their opening brief said plain meaning.
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`Their
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`reply brief didn't say plain meaning anywhere in the
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`"video" portion and they tried to reargue that it had a
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`particular meaning, but that isn't the plain meaning.
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`I mean, the plain meaning of "video file," I
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`think we all know that.
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`We all have phones and -- mine
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`is turned off.
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`If I turned it on and I brought the
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`camera up, I could press two things.
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`I could press a
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`button that says "video" and it would start taking a
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`video or I could press a button that's says "picture"
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`and it would take a picture.
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`Those are two separate
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`things.
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`The plain meaning of "video" has -- it doesn't
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-009
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`

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`Claim Construction Hearing 1-9-2015
`
`10
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`encompass that second one.
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`Everyone knows the plain
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`meaning of "video" is that first one where it's taking
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`something that changes over time.
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`And I'll talk about
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`that a little bit more.
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`The second and third reasons that I think this
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`needs some -- this needs some further clarification is
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`this construction actually conflicts with the intrinsic
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`record, and that second patent that we briefed -- and we
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`have some more information here -- but that second patent
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`very clearly distinguished between "video file" and
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`"image file."
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`And again back to my -- using my phone, when I
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`press that button on "video," it creates a video file.
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`When I take that picture, it creates an image file.
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`And
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`they told the patent office over and over and over again
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`those are different things, and the patent office
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`believed them.
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`And we'll go through that in just a
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`second.
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`And then the third reason I think this
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`construction needs some clarification is it uses the
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`critical term to define itself.
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`The critical aspect of
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`"video file" is not "file."
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`Everyone knows what "file"
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`is.
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`It's "video."
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`And their construction sticks "video
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`clip" in there.
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`It begs the question.
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`We just don't
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`think it can be right to have that -- the critical term
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-010
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`

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`Claim Construction Hearing 1-9-2015
`
`11
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`embedded in the construction.
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`Back to our first point on the lexicography
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`here, we put up what we thought was a good, honest
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`definition of the plain meaning of the term and we
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`adopted that from your Honor -- one of your Honor's prior
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`cases and it was consistent with everyone's extrinsic
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`evidence.
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`Everybody's definition there is that it's some
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`capability of showing movement.
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`And we're not wed to this language at all.
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`We' re just trying to reflect that there is -- even if
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`it's not showing movement, there is some change over time
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`in a video file.
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`And, again, that's the difference when
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`I take a video with my phone or an image with my phone,
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`is that there's some -- there's some capability, there's
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`some change over time.
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`And we'll show you -- we've got
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`some examples of that, and we' ll show you that.
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`We're
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`not wed to this language but we don't think that the term
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`"video file" can include "still image" and that's what
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`they're trying to do with their construction.
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`THE COURT:
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`What do you say to the dependent
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`claims from the '651 that say that it includes that?
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`MR. ANDERSON:
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`Yeah.
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`And I'll just jump right
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`to that slide, then, your Honor.
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`We have a slide that
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`shows that, and let me get there.
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`This is something
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`we...
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-011
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`

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`Claim Construction Hearing 1-9-2015
`
`(Slide presentation to the court.)
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`MR. ANDERSON:
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`I'm not sure how to stop this.
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`And what this shows -- and this is the
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`12
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`embodiment that's in the specification.
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`I can have a
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`video file where I have a single image.
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`If I took my
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`phone and I aimed it at that wall and I didn't move it,
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`that video file would have only a single image of the --
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`even if I hit "video" on here.
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`So, that file would have
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`it there.
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`And what this shows is an embodiment that's
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`actually in the specification where they talk about
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`having a video clip or image that is -- also has
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`associated audio in it, and that's -- the patents don't
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`line up exactly, but that's in the '651 patent at around
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`the citation we have there.
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`It's in the '692 patent at
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`column 8 around lines 37 to 46.
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`And, so, this is an example of how the term
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`"video file" has to encompass the ability to have some
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`sort of change over time there.
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`It's not static.
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`I
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`guess that's the -- you know, I don't like to use the
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`word "not" in a construction; but it's not -- it can't be
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`static.
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`And this is an exact example of that.
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`And
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`people have video files all the time that have a single
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`digital image.
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`And we cited this ActiveVideo case in our
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-012
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`Claim Construction Hearing 1-9-2015
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`13
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`brief and that was really one of the issues that was
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`being discussed there is whether I -- if I did just have
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`a video file with a single digital image, was that or was
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`that not video; and the Federal Circuit says yes, that's
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`still video.
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`So, we, again, are just trying to reflect the
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`plain and ordinary meaning and that's why our
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`construction, consistent with your Honor's prior
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`construction, just said "capable of showing movement."
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`It's a --
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`THE COURT:
`
`Mr. Anderson, isn't there an
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`ordinary meaning of "video" which simply contrasts it
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`with "audio" such that video is visual and audio is
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`sound?
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`MR. ANDERSON:
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`I don't think that for the term
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`"video file" that applies.
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`I think the term "video file"
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`has a very well-known meaning and it doesn't encompass
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`just an image file.
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`THE COURT:
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`Well, you know, claim -- claim 8
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`says it includes a single digital image, and you're
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`saying that it doesn't.
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`MR. ANDERSON:
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`No, I'm saying this is an
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`example of a single digital image.
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`THE COURT:
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`You just told me it doesn't
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`encompass a single image, right?
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`409.654.2833
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`Claim Construction Hearing 1-9-2015
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`That's what you just said, but I know you've
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`14
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`got this up here --
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`MR. ANDERSON:
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`Your Honor, I think I misspoke,
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`then.
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`THE COURT:
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`Okay.
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`MR. ANDERSON:
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`On the single digital -- it
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`doesn't encompass a file format that that's all it has is
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`a single digital image.
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`It doesn't have anything that
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`changes over time.
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`There is a difference between audio
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`and visual, and I would say visual encompasses both video
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`and image.
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`But a video file -- and this is what they
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`told the patent office in that other patent -- they have
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`another patent, and it's a related patent.
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`And this
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`isn't some obscure like they prosecute one 20 years away
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`from each other.
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`These were being prosecuted at exactly
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`the same time.
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`And, in fact, they told the patent office
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`four times during the prosecution, "Go look at this other
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`patent because it has similar claims that might be
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`relevant to the prosecution here," over and over and over
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`again.
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`And those claims had used the same terminology;
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`and as was shown here, they distinguished between image
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`or video file.
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`There's a difference -- both of them
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`might be visual and I -- I would agree with your Honor's
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`statement if you said audio and visual but video is a
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`subset of visual and image is the other portion of
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`409.654.2833
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`Page 2049-014
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`Claim Construction Hearing 1-9-2015
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`15
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`that.
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`Whatever the construction, the -- we think the
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`construction has to be modified to encompass -- or to
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`address, at a minimum, this other file.
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`There can't be
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`something in the intrinsic record where they tell the
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`patent office four times, "This is different.
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`This is
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`different.
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`This is different"; and then we know the
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`patent office bought on it because we have their search
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`strategy.
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`In that other patent, at exactly the same time
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`on virtually identical claims, they search for "image"
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`and "video."
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`If the plain and ordinary meaning of "video"
`
`included "image file," they shouldn't have needed to do
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`that; and, yet, in the claims at issue here, they didn't
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`search for "image."
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`THE COURT:
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`Have you ever relied on or seen a
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`court rely on the examiner's search strategy to construe
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`a term?
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`MR. ANDERSON:
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`It's reflective of what one
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`would understand the plain and ordinary meaning of the
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`term is.
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`If the examiner back at that time understood
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`"video" to encompass "image," then these should have been
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`the same.
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`And I'm not certain, your Honor, if I can
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`point to a specific example of that; but I certainly have
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`seen many examples where the same language just as we
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-015
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`Claim Construction Hearing 1-9-2015
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`16
`have here, "video file," is used in a related application
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`and it's distinguished from another term, as we have
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`here, "image file," and the court relied upon that.
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`In
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`fact, I don't see how -- respectfully, I don't see how
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`the court cannot rely on that or address that because it
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`is clearly two different concepts; and that's what they
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`told the patent office.
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`THE COURT:
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`What's the plain and ordinary
`
`meaning of JPEG?
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`MR. ANDERSON:
`
`So, JPEG, like MPEG, are bodies
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`of standards; and MPEG they cite in their brief.
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`There's
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`not one MPEG standard.
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`There's many different MPEG
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`standards.
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`"MP3" stands for MPEG audio layer 3.
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`There's
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`many different MPEG standards.
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`JPEG similarly -- JPEG is a group that puts
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`forward different standards and they put forward a JPEG
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`still image standard and they put forward motion JPEG.
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`There is such a thing as motion JPEG.
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`And if we were in here, I think, arguing to
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`your Honor that where a patent said MPEG it doesn't --
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`it's not broad enough to encompass all of the different
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`flavors of MPEG, I don't think that that would be an
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`attractive argument.
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`And similarly, what they're saying
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`with respect to JPEG is, " Well, we said JPEG and we" --
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`(Slide presentation to the court.)
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-016
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`Claim Construction Hearing 1-9-2015
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`17
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`MR. ANDERSON:
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`I'm sorry.
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`THE COURT:
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`That's --
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`MR. ANDERSON:
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`I'm sorry about that.
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`THE COURT:
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`I'm a fan.
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`MR. ANDERSON:
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`Similarly with JPEG, if their
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`argument is, " Well, we're only talking about one flavor
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`of JPEG," we don't think that's right.
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`JPEG does
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`encompass motion JPEG.
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`It does encompass the possibility
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`of motion or change over time.
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`THE COURT:
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`But doesn't JPEG refer, in its
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`ordinary usage, to a still image?
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`MR. ANDERSON:
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`There is one -- one of the JPEG
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`standards refers to a still image.
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`THE COURT:
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`Well, just talk about it, its
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`ordinary use as far as one in the art.
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`Would you dispute
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`that when people talk about JPEGs they're talking about
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`single image?
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`MR. ANDERSON:
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`I would say at -- I would say
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`that JPEG encompasses both single image and standards
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`that show motion.
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`And we put the -- all the extrinsic evidence.
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`We put several patents in; we put papers that were
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`contemporaneous at that time that show one of skill in
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`the art would understand JPEG to encompass, broadly,
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`motion.
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`Just as MPEG -- a reference to MPEG encompasses
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Claim Construction Hearing 1-9-2015
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`18
`many different standards, a reference to JPEG encompasses
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`many different standards.
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`And, so, I -- I understand that that is -- you
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`know, that's one of their arguments and the other one is
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`the single image and frame, but we don't think that those
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`two arguments are sufficient to overcome what we believe
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`the plain meaning of "video" is.
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`The plain meaning of
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`"video," as they highlighted when they distinguished it
`
`from "image," requires some change over time, some aspect
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`of temporal change or some capability to do that.
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`And I would also point out the language, and
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`this is the language of one of the claims.
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`They talk
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`about a video playing capability.
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`When I talk about --
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`you know, I'm -- like every proud parent of young
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`children, I've got lots of videos and pictures of my
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`young kids on here and I could pull those up and I would
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`not say when I press -- when I pull up my image, I
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`wouldn't say I'm playing that image.
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`Now, when I press
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`the "video," I would say I'm playing the video.
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`And all
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`of the claims talk about video playing capability.
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`Again, it's a -- it's a different concept.
`
`It
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`may be a parallel concept to "image" under the broad
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`rubric of visual but they are different concepts and
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`that's exactly what they told the patent office when they
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`said "video file" and "image file."
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`I just don't see how
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-018
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`Claim Construction Hearing 1-9-2015
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`19
`they can encompass "image file" in this patent when they
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`said it was different.
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`THE COURT:
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`And that's in a -- the prosecution
`
`of a patent that's not asserted?
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`Is that --
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`MR. ANDERSON:
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`It is.
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`But in the prosecution
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`of the patents that were asserted, that's when they told
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`the patent office, "Go look at that other patent.
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`Go
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`look at that other patent"; and those patents have
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`similar claims.
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`And I don't think that I can -- and it's
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`the same exact examiner.
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`I don't think I can say to the
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`patent office, "Examiner, go look at that other patent
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`where I am distinguishing between video and image files."
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`Those are two different things.
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`They originally had them
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`in different claims, but they stuck them in the same
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`claim with an "or" in there.
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`I don't think I can tell
`
`that examiner that and then honestly with a straight face
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`come into court and tell you, "Well, your Honor, we know
`
`what they told the patent office; but we think those are
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`just all one big thing."
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`I've never seen a case that has
`
`permitted someone to get away with that.
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`And really what they're trying to do is
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`they're just getting greedy here.
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`I mean, they have
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`things that are video, that are true video that they're
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`accusing.
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`This isn't going to end the case.
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`But they're
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`getting greedy here and trying to encompass things that
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-019
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`Claim Construction Hearing 1-9-2015
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`20
`are image files which is what they told the patent office
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`that was different.
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`That's why we think this needs some
`
`clarification on the term "video file" here.
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`If your Honor has more questions, I'm happy
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`to --
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`THE COURT:
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`No.
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`You've answered them well.
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`I
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`appreciate that.
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`MR. ANDERSON:
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`Thank you.
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`MR. POWERS:
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`Your Honor, may I approach with a
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`copy of the slides?
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`THE COURT:
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`Sure.
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`MR. JONES:
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`I'm going to hand up our
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`presentation, judge.
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`THE COURT:
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`Thank you, Mr. Jones.
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`MR. POWERS:
`
`May I proceed, your Honor?
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`THE COURT:
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`Yes.
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`MR. POWERS:
`
`Your Honor, I think there are
`
`three key points on this term; and then I'm happy to
`
`answer any questions your Honor has.
`
`The first is the point that your Honor made,
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`which is that the defendants' proposed construction is
`
`squarely inconsistent with the dependent claims and the
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`specification examples of a video file; and we've shown
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`those dependent claims.
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`I know your Honor is familiar
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`with it; so, I won't belabor it.
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`But a single image
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
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`Page 2049-020
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`Claim Construction Hearing 1-9-2015
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`21
`frame is specifically specified as being a "video file,"
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`which is inconsistent with defendants' proposed
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`construction; and a single digital image is inconsistent.
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`THE COURT:
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`You know, with respect to the
`
`frame, that certainly lends itself much more to their
`
`argument, that it includes an image from a longer video
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`that would encompass movement.
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`MR. POWERS:
`
`I would agree it's less
`
`inconsistent, but I think it's more consistent with
`
`plaintiff's construction than with defendants'.
`
`"Single
`
`digital image" I don't think is squarable at all.
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`I
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`don't think there's any path to harmonize those dependent
`
`claims with defendants' proposed construction.
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`And it's
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`completely consistent with the specification and with
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`other dependent claims that specifically call out JPEG.
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`And you'll note that defendants didn't discuss JPEG until
`
`your Honor asked them about it.
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`The specification and the claims specifically
`
`say that the video file can be a JPEG file.
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`So, the
`
`question is what is a JPEG file.
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`Defendants had argued,
`
`well, JPEG -- and they argued again today -- that there
`
`are some JPEG standards which can encompass motion and
`
`that is true, but what is also true is exactly the
`
`question your Honor posed which is that JPEG in ordinary
`
`meaning is still images.
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`That's the title of JPEG.
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`That
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`409.654.2833
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`Page 2049-021
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`Claim Construction Hearing 1-9-2015
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`22
`
`is what -- how people consider JPEG.
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`And over and over
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`again we' ve provided expert testimony on that and other
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`extrinsic evidence of that.
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`And the only response from defendants on that
`
`question is to cite several patents which don't say that
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`JPEG is motion.
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`They specifically talk about motion
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`JPEG.
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`So, the patent of course is using JPEG without the
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`modifier "motion"; and their own extrinsic evidence makes
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`clear that JPEG is so associated with static or still
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`images that when you mean something different you attach
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`the label "motion" or "MJPEG."
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`And that's how it's used
`
`in the art but that's not how it's used in the patent and
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`I think that that issue is definitive here.
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`The Johnny Cash excerpt, as much as I love
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`Johnny Cash, doesn't prove anything to the contrary.
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`That was a single image.
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`His argument is, well, it's
`
`associated with audio.
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`A JPEG file is not, and there's
`
`no dispute about that.
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`So, I look at that Johnny Cash
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`image; and that's a single still image.
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`Now, someone
`
`might call it a video colloquially; but it's a single
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`still image, which takes us to defendants' argument about
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`plain meaning which was really I think primarily just
`
`attorney argument.
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`And the real response is exactly the response
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`that your Honor made which is "video" in these patents is
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`409.654.2833
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`Page 2049-022
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`Claim Construction Hearing 1-9-2015
`
`23
`being used to distinguish from audio; and video includes,
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`of course, motion video.
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`It also includes still video,
`
`and that is a still image by itself.
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`That's clear from
`
`the dependent claims; it's clear from the specification.
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`THE COURT:
`
`What do you say to their arguments
`
`based on -- I think it's the '317 patent.
`
`MR. POWERS:
`
`Two things, your Honor.
`
`First, I
`
`think the law is pretty clear, the Swanson case and
`
`several others, that you -- where you have unambiguous,
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`square language in the patent-in- suit, which this -- and
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`the claims are as clear as they can be and the
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`specification is as clear as it can be -- you don't use
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`the prosecution of another patent to change the meaning
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`of the patent-in-suit from what those claims and that
`
`specification of the one actually in-suit would dictate.
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`And I think with that, your Honor, there's
`
`really no other point we need to make.
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`I'm happy to
`
`address their cases, if you wish; but their cases all
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`involve different facts and situations in where there was
`
`a specific disavowal in the patent-in-suit or something
`
`like that.
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`There's nothing like that here.
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`There is
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`square, consistent intrinsic evidence saying a video file
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`can be a static image, in addition, of course, to being
`
`motion.
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`THE COURT:
`
`All right.
`
`Thank you, Mr. Powers.
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`Claim Construction Hearing 1-9-2015
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`24
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`MR. POWERS:
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`Thank you, your Honor.
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`THE COURT:
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`Mr. Anderson.
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`MR. ANDERSON:
`
`Yes, your Honor, just quickly
`
`on a couple of things.
`
`Mr. Powers mentioned "single digital image"
`
`and said that just can't be squared.
`
`Actually it very
`
`much can be.
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`The video formats that are listed in the
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`patent there include -- they say video may include
`
`analog, and then it gives a bunch of others which are
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`digital file formats.
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`The single digital image is
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`distinguishing from the independent claim where it could
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`include analog or digital.
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`That is the -- the word
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`"digital" there is distinguishing from the analog, which
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`is what the patent said it could be.
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`And on the '317, I respectfully say I've never
`
`seen a situation where the patentee again tells the
`
`patent office over and over and over, "Go look at that.
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`Go look at that" and it's so clearly -- this isn't
`
`even -- we're not even trying to imply anything here.
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`This is exact language.
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`This is as definitional as one
`
`can possibly get.
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`I know that image file cannot be
`
`encompassed within video file.
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`And Mr. Powers said, oh, we don't have any
`
`evidence on plain meaning.
`
`We actually have both side's
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`evidence on our plain meaning.
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`They put in their own
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`
`24
`
`25
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`09:29AM
`
`09:29AM
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`09:30AM
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`09:30AM
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`09:30AM
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`Tonya B. Jackson, RPR-CRR
`409.654.2833
`
`Page 2049-024
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`

`

`Claim Construction Hearing 1-9-2015
`
`dictionary definitions.
`
`Those are at the top.
`
`Solocron's dictionary definitions.
`
`Everybody's
`
`25
`Those are
`
`dictionary definition has "moving image" for "video."
`
`There isn't a dictionary definition of "video" that
`
`doesn't encompass "moving image."
`
`Everybody has that.
`
`And I guess finally I'd just close with we
`
`have at the very end a standard for -- I'll play your
`
`favorite thing briefly --
`
`(Slide presentation to the court.)
`
`THE COURT:
`
`I didn't say that he was my
`
`favorite.
`
`likes.
`
`MR. ANDERSON:
`
`Okay.
`
`One that your Honor
`
`-- and get to this -- the standard here.
`
`This
`
`is what they're trying to do, say these passing -- there
`
`is no clear definition.
`
`We think in order for their
`
`construction to be adopted -- very clear about this --
`
`they have to have run themselves into the lexicography
`
`cases.
`
`You didn't s

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