Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 1 of 34 PageID #: 686
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`Case No. Case 6:13-cv-00919-JDL
`
`§§§§§§§§§§§§
`
`DSS TECHNOLOGY MANAGEMENT,
`INC.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`APPLE INC.’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`APL 1007
`IPR of U.S. Pat. No. 6,128,290
`
`0001
`
`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 2 of 34 PageID #: 687
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`TABLE OF CONTENTS
`
`INTRODUCTION AND BACKGROUND ............................................................................. 1
`I.
`A. The ’290 Patent ................................................................................................................... 1
`B. Person Of Ordinary Skill In The Art ................................................................................... 3
`II. ARGUMENT .......................................................................................................................... 3
`A. “code sequence” .................................................................................................................. 3
`B. “which is/are timed in relation to” ...................................................................................... 9
`C. “time slots” ........................................................................................................................ 13
`D. “RF synchronizing beacons” ............................................................................................. 16
`E. “[RF bursts at] intervals determined by a code sequence” ................................................ 18
`F. “controlled by said oscillator” / “controlled by said server unit oscillator” ...................... 20
`G. “a local oscillator” ............................................................................................................. 22
`H. “a server microcomputer” ................................................................................................. 25
`I. “adapted to operate within a short range of [said server unit]” .......................................... 28
`III. CONCLUSION .................................................................................................................... 30
`
`i
`0002
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 3 of 34 PageID #: 688
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`TABLE OF AUTHORITIES
`
`Cases
`Aspex Eyewear, Inc. v. Marchon Eyewear, Inc.,
`672 F.3d 1335 (Fed. Cir. 2012)............................................................................................. 3, 28
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009)................................................................................................. 27
`Irdeto Access, Inc. v. Echostar Satellite Corp.,
`383 F.3d 1295 (Fed. Cir. 2004).......................................................................................... passim
`K-2 Corp. v. Salomon S.A.,
`191 F.3d 1356 (Fed. Cir. 1999)................................................................................................. 25
`MyMail, Ltd. v. Am. Online., Inc.,
`476 F.3d 1372 (Fed. Cir. 2007).......................................................................................... passim
`Nystrom v. Trex Co., Inc.,
`424 F.3d 1136 (Fed. Cir. 2005)..................................................................................... 26, 27, 28
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................. 24
`Primos, Inc. v. Hunter’s Specialties, Inc.,
`451 F.3d 841 (Fed. Cir. 2006)................................................................................................... 21
`Retractable Tech., Inc. v. Becton, Dickinson and Co.,
`653 F.3d 1296 (Fed. Cir. 2011)................................................................................................. 24
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)................................................................................................... 17
`
`ii
`0003
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 4 of 34 PageID #: 689
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`I.
`
`INTRODUCTION AND BACKGROUND
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`DSS’ infringement read tries to wedge a square peg into a round hole. Because of this,
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`DSS has to take strained readings of fundamental terms in the patent. For example, DSS takes
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`the term “code sequence” (the purported point of novelty) and uses its construction to literally
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`read out the words “code” and “sequence” such that the term has no meaning. DSS cannot do
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`this. In conjunction with other terms, DSS wants to hide from the facts and tells the Court to
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`ignore the accepted meaning in the art that is reiterated in the specification (e.g., the term “a local
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`oscillator”). DSS cannot do this either. These sorts of errors, and others, pervade DSS’
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`constructions, and the Court should reject DSS’ constructions as detailed below.
`
`A.
`
`The ’290 Patent
`
`
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`At the outset, it is important to understand the problem the ’290 patent sought to solve
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`and how its claims solve the problem.1 The goal of the ’290 patent was to substantially reduce
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`power consumption and interfering signals between a server microcomputer and a plurality of
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`peripherals. ’290 patent, Abstract, 1:57-61. This goal was purportedly achieved by generating
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`“code sequences” which control the operation of transmitters in a low duty cycle pulsed mode of
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`operation. See, e.g., id. at 1:57-61, 2:35-39. While the specification is clear on this point, the
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`lone inventor also has averred that the “code sequences” that control the operations of the
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`transmitters was the key novel concept disclosed in the patent. Ex. A, Declaration of Inventor
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`1 The ’290 patent was filed as a continuation in part of U.S. Patent Application No. 08/611,695,
`which was filed on March 6, 1996, and issued as U.S. Patent No. 5,699,357. The specifications
`of the ’290 and ’357 patents are similar, except that the ’290 patent provides the additional
`disclosure that the peripheral units can operate “within short range of the server unit, e.g., 20
`meters.” ’290 patent at Abstract.
`
`1
`0004
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 5 of 34 PageID #: 690
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`Philip P. Carvey Regarding U.S. Patent No. 6,128,290 (“Carvey Decl.”), ¶¶5-6. This is
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`important because DSS ignores the purported invention in proffering its constructions.
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`The only “server microcomputer” disclosed in the ’290 patent is “characterized as a
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`personal digital assistant (PDA).” ’290 patent, 2:66-3:1. Like conventional PDAs, the server
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`microcomputer “is powered by a battery 12 and may be carried on the person of a user, e.g., in
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`his hand or on a belt hook.” Id. at 3:3-3:5. The peripheral units, referred to as “personal
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`electronic accessories or PEAs,” include body-mounted accessories such as displays “mounted
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`on a headband or eyeglasses” and “physiological sensors.” Id. at 1:67-2:18.
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`The server microcomputer and peripherals are linked in close physical proximity, e.g.,
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`within twenty meters, to establish a common time base or synchronization. ’290 patent, 1:50-55.
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`The claimed inventions all require “low duty” cycle operation. Id. at claims 1, 5, 6 and 9. This
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`low duty cycle operation ensures that the units’ transmitters are only active for relatively short
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`durations of time, which “substantially reduces power consumption and facilitates the rejection
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`of interfering signals.” Id. at 1:59-61. Critical to low duty cycle operation is the use of “code
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`sequences” or “sparse codes,” which “control the operation of the several transmitters in a low
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`duty cycle pulsed mode of operation.” Id. at 1:57-59. The ’290 patent teaches that a code
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`sequence is a series of values, where each value in the series represents a time slot within a frame
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`interval when a unit’s transmitter is energized or a time slot when a unit’s transmitter is
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`depowered. In the Preferred Embodiment (the only disclosed embodiment), “the codes are
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`mostly zeros with three scattered ones representing the locations of the slots in which RF bursts
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`are to be transmitted or received.” Id. at 7:27-29.
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`2
`0005
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 6 of 34 PageID #: 691
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`B.
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`Person Of Ordinary Skill In The Art
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`A person of ordinary skill in the art at the time of invention would be a person with an
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`undergraduate degree in electrical engineering and 1-2 years of experience working with wireless
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`network technology, or equivalent education and/or work experience. Ex. B, Declaration of Dr.
`
`Jing Hu in Relation to U.S. Patent No. 6,128,290 (“Hu Decl.”), ¶24.2
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`II.
`
`ARGUMENT
`
`A.
`
`“code sequence”
`
`Apple’s Construction
`“a series of values, where each value in the
`series represents a time slot within a frame
`interval where a unit’s transmitter is energized
`or a time slot where a unit’s transmitter is
`depowered”
`
`DSS’ Construction
`“information specifying the time at which a
`communication may occur”
`
`
`
`The inventor is clear that the use of the claimed “code sequence” was the “key novel
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`concept” in the project that led to his patent and the “primary core concept of the ’290 patent
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`technology.” Ex. A, Carvey Decl., ¶6. The specification supports this testimony. The whole
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`point of the ’290 patent was to reduce power consumption and interfering signals. ’290 patent,
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`Abstract, 1:50-61. This is achieved by using a common time base where:
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`The server and peripheral unit transmitters are energized in low duty cycle pulses
`at intervals which are determined by a code sequence which is timed in relation
`to synchronizing information initially transmitted from the server microcomputer.
`
`Id. at 2:35-39 (emphasis added); see also 1:57-61.
`
`DSS ignores the core concept of the patent and impermissibly proffers a construction that
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`reads both the words “code” and “sequence” out of the term. Aspex Eyewear, Inc. v. Marchon
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`Eyewear, Inc., 672 F.3d 1335, 1348 (Fed. Cir. 2012) (rejecting construction because it
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`“effectively read[] the term ‘free’ out of the limitation”). Moreover, DSS ignores that “code
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`2 Apple agrees that there is no real substantive difference between the parties’ articulation of
`what constitutes a person of ordinary skill in the art with respect to the ’290 patent.
`
`3
`0006
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 7 of 34 PageID #: 692
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`sequence” is a coined term3 that lacks an accepted meaning in the art and can only be construed
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`“as broadly as provided for by the patent itself.” Irdeto Access, Inc. v. Echostar Satellite Corp.,
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`383 F.3d 1295, 1300 (Fed. Cir. 2004); MyMail, Ltd. v. Am. Online., Inc., 476 F.3d 1372, 1376
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`(Fed. Cir. 2007). DSS instead proposes a construction that replaces the core concept of the
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`patent with literally any “information” that specifies when communication can occur. DSS is
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`wrong.
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`
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`As explained below, Apple’s construction is consistent with the use of the term “code
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`sequence” in the claims and specification and ascribes meaning to both words in the term.
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`Apple’s construction also takes into account that this is a coined term that can be read no more
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`broadly than the specification. As such, Apple’s construction should be adopted.
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`The term “code sequence” appears in asserted independent claim 1. As set forth in claim
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`1, and consistent with Apple’s construction, the claimed code sequence controls when the
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`system’s transmitters are energized: “said server and peripheral transmitters being energized
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`in low duty cycle RF bursts at intervals determined by a code sequence which is timed in
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`relation to said synchronizing information.” ’290 patent, claim 1 (emphasis added). The claim
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`itself thus confirms that the code sequence must dictate when transmitters are energized and not
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`just any information about when communication may occur as DSS posits.
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`The specification also confirms that the code sequence includes a series of values, where
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`each value in the series represents a “time slot” within a “frame interval.” See, e.g., ’290 patent,
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`7:18-33. The disclosed code sequence is a series of values (1s and 0s) that define when the
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`3 Ex. C, Carvey Depo. Tr. at 59:3-11 (“…the word code sequence came from Henry Paul. What I
`did is I explained the protocol to him, and then he tried to convert that into understandable
`language. So the code sequence was his way of collapsing a very complicated concept into two
`words, "code sequence." … Henry Paul was the BBN lawyer that I worked with who actually
`wrote the majority of this patent.”).
`
`4
`0007
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 8 of 34 PageID #: 693
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`peripheral units are energized and transmit/receive, or are not energized and depowered. Ex. B,
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`Hu Decl., ¶28. In the only disclosed embodiment, each “frame interval” is divided into “sectors”
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`(or “sections”), with each sector having 64 time slots. ’290 patent, 7:20-33. A maximum of
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`three RF bursts can be assigned per sector. Id. The position of each RF burst is indicated by a
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`one (1) in the code sequence and dictates when the peripheral units are energized. Id. at 7:23-24.
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`The specification teaches that “the codes are mostly zeros with three scattered ones representing
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`the locations of the slots in which RF bursts are to be transmitted or received.” ’290 patent,
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`7:27-29. An example of a code sequence defined by the patent is reproduced below:
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`As shown in the example above, the 64 values in the sequence correspond to a sequence
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`of time slots, displayed in yellow and green. In this example, in the green time slots the unit’s
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`transmitter would be energized. In all of the other 61 yellow time slots, the unit’s transmitter
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`would be depowered. Because the number of slots when a unit’s transmitter is depowered is
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`substantially greater than the number of slots when the unit’s transmitter is energized, the unit is
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`said to have a low duty cycle – which saves power.
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`Apple’s construction is correct because it incorporates the required aspects of “code
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`sequence” as set forth in the specification – i.e., (1) it is a series of values (e.g., 1s and 0s) that
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`(2) represent time slots within a frame interval where (3) a unit’s transmitter is energized or not.
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`5
`0008
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`

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`Apple’s construction is fully supported by the intrinsic record and the extrinsic record as
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`well. Again, the inventor testified that “code sequence” was a coined term used to refer to the
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`protocol disclosed in the patent for energizing and depowering the various units. Ex. C, Carvey
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`Depo. Tr. at 59:3-11. As such, the term cannot be defined any more broadly than the
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`specification. Irdeto, 383 F.3d at 1300; MyMail, 476 F.3d at 1376. The inventor also averred
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`that the claimed “code sequence” was the key novel concept to the invention itself. Ex. A,
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`Carvey Decl., ¶6. He further explained that the claimed “code sequence” is critical to saving
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`power because it “control[s] the operation of the several transmitters in a low duty cycle pulsed
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`mode of operation.” Id. at ¶6. Finally, Mr. Carvey testified that:
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`In my invention, each value in the series occupies one time slot within a frame
`interval where transceiver elements are energized for a small fraction of the time
`slot defined by the one bits of the code value and de-energized for the remaining
`fraction of the time slot defined by the zero bits of the code value. Id. at ¶7.
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`Id. at ¶7. This extrinsic evidence shows that the claimed “code sequence” is not just any
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`information that specifies when communication may occur. Rather, it is the scheme designed by
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`the inventor and disclosed in the ’290 patent for saving power.
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`Technical dictionaries also buttress Apple’s construction and expose the flaws in DSS’
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`construction. The word “sequence” connotes a “series” or succession of values, which is
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`consistent with Apple’s construction.4 In contrast, DSS attempts to read the term “sequence”
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`completely out of the phrase “code sequence” by equating it with any form of “information.” A
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`person of ordinary skill in the art would understand that a “sequence” is a specific construct that
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`4 Ex. B, Hu Decl., Id. at ¶29, Ex. 1, Dictionary Definitions: The American Heritage College
`Dictionary 2d Ed at p. 1119 (“sequence: .. 3. A related or continuous series”), The Dictionary of
`Computer, Information Processing & Telecommunications 2d. Ed. (sequence: 1. “a series of
`items that has been sequenced”), The Illustrated Dictionary of Electronics 7th Ed. (“sequence: 1.
`A succession of objects, parameters, or numbers”), The IEEE Standard Dictionary of Electrical
`and Electronics Terms 6th Ed. (“sequence: …(1)(C) A set of items that have been sequenced.”).
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`6
`0009
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 10 of 34 PageID #: 695
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`requires a series of values instead of any form of information. Ex. B, Hu Decl., ¶30.
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`Apple’s construction is also consistent with the inherent nature of the word “code,” which
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`is a representative value (e.g., Morse Code uses dashes and dots to represent letters) and not just
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`“any information” as DSS would have the Court believe. Apple’s construction reflects the fact
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`that each value of the code sequence represents a time slot within a frame interval where a unit’s
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`transmitter is energized or not, as is taught by the specification. In stark contrast, Plaintiff’s
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`generic “information” construction has nothing to do with a code. In essence, DSS seeks a
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`construction of “code sequence” divorced from the meaning of a “code” or a “sequence.”
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`Turning specifically to DSS’ construction, it fails to find any basis in the intrinsic or
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`extrinsic record. Indeed, it ignores the teachings of the specification, the testimony of the
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`inventor (i.e., that “code sequence” is the key novel concept) and strips all meaning from the
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`words “code” and “sequence.” DSS has basically made up a broad construction out of nowhere
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`with literally no support. Indeed, DSS’ construction has nothing to do with a code or a sequence.
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`Because it has no support for its own construction, DSS instead chides Apple’s
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`construction – a clear indication that DSS cannot support its own position. DSS asserts that by
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`incorporating a “series of values,” Apple’s construction “limits ‘code sequence’ to codewords”
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`and “does not encompass the additional ‘rotation,’ selection and ‘time slot assignment’
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`information necessary to determine when individual transmitters are permitted to be energized.”
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`DSS Br. at 8-11. DSS is wrong and its argument is irrelevant.
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`Apple’s construction is not limited solely to “codewords.” Rather a series of values
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`representing time slots in a frame interval that is used by the devices to determine when to
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`transmit is covered by Apple’s construction. This includes both the concept of Optimally
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`Orthogonal Codes (OOCs), as well as what is referred to as rotation. Rotation just shifts the
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`7
`0010
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 11 of 34 PageID #: 696
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`positions of the values within the code sequence. ’290 patent, 7:23-27. Apple’s construction
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`does not require any particular positioning, so it equally covers sequences of values that have
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`been “rotated,” as well as those that have not. The figure below illustrates this:
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`Nothing in Apple’s construction excludes any specific position of values resulting from rotation.
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`DSS’ claim that Apple’s construction somehow excludes “selection” and “time slot
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`assignment” information is likewise incorrect. DSS Br. at 11. Apple’s construction explicitly
`
`recites those very concepts—i.e., “each value in the series represents a time slot within a frame
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`interval where a unit’s transmitter is energized or a time slot where a unit’s transmitter is
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`depowered.” Thus, Apple’s construction expressly includes the representation of time slots
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`within a frame interval, which are selected and assigned to a server microcontroller or peripheral
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`unit by the series of values. DSS’ argument to the contrary is without merit, and is again
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`irrelevant because its own construction has nothing to do with any of these concepts.
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`DSS’ complaint that Apple’s construction fails to capture enough technical detail from
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`8
`0011
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 12 of 34 PageID #: 697
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`the specification is an incredible criticism given that DSS incorporates no technical detail in its
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`own construction, much less the details it criticizes Apple for not additionally including.5
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`B.
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`“which is/are timed in relation to”
`
`Apple’s Construction
`“the values of the code sequence are aligned to
`correspond to time slots in a frame interval” /
`“the RF bursts are aligned to correspond to
`particular time slots in a frame interval”
`
`DSS’ Construction
`“occurring at a specified interval of time
`relative to”
`
`
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`As set forth below, “timed in relation to” means that the values of the “code sequence” in
`
`claim 1, and the “RF bursts” in claim 6, are “aligned to correspond to time slots in a frame
`
`interval.” This is consistent with the claim language and the specification.
`
`In claim 1, the full disputed phrase appears in bold: “said server and peripheral
`
`transmitters being energized in low duty cycle RF bursts at intervals determined by a code
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`sequence which is timed in relation to said synchronizing information.” As set forth in Apple’s
`
`construction, when modifying a “code sequence” in claim 1, the phrase “which is timed in
`
`relation to” means “the values of the code sequence are aligned to correspond to time slots in a
`
`frame interval.” This relationship is illustrated in the Figure below:
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`As explained above in section II.A., the values of the “code sequence” (e.g., the 1s and 0s) are
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`5 In connection with “code sequence” and other terms, DSS filed and cited to an untimely
`declaration of its expert that was signed the day DSS filed its Opening Brief and after the close
`of claim construction discovery. DSS Br. at 12 (citing Ex. C to DSS’ Opening Brief). This
`untimely declaration –mentioned only in passing – should either be stricken or disregarded.
`
`9
`0012
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`

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`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 13 of 34 PageID #: 698
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`each aligned to correspond to a time slot within a frame interval.
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`In claim 6, the full disputed phrase appears in bold: “said server and peripheral and
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`peripheral transmitters being energized in low duty cycle RF bursts which are timed in relation
`
`to said synchronizing information.” ’290 patent, claim 6 (emphasis added). As set forth in
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`Apple’s construction, when modifying “RF bursts” in claim 6, the phrase “which is timed in
`
`relation to” means “the RF bursts are aligned to correspond to particular time slots in a frame
`
`interval.” As illustrated in the Figure above, the times of the RF bursts (shown in green) are
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`aligned to correspond to particular time slots in a frame interval. Apple’s construction correctly
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`reflects the usage of the phrase in each individual claim, which modifies a “code sequence” in
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`claim 1 and “RF bursts” in claim 6. Thus, the claim language supports Apple’s construction.
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`The specification also supports Apple’s construction. As discussed in Section II.A.
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`above, the timing of RF bursts is dictated by values of a code sequence, which correspond to the
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`location of time slots in a frame interval. In the only disclosed embodiment, the position of each
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`RF burst is indicated by a 1 in the code sequence. ’290 patent, 7:23-24. “[T]he codes are mostly
`
`zeros with three scattered ones representing the locations of the slots in which RF bursts are to be
`
`transmitted or received.” Id. at 7:27-29. The common time base or synchronizing information
`
`ensures that the values of the code sequence and RF bursts are properly aligned so that the
`
`transmitters are energized at the correct times. Id. at 1:57-59, 7:63-8:7. This is illustrated below:
`
`10
`0013
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`

`

`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 14 of 34 PageID #: 699
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`Thus, in the context of a code sequence, being “timed in relation to” refers to the fact that the
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`values of the code sequence are aligned to correspond to the location of time slots in a frame
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`interval, which is specified by the synchronizing information. ’290 patent, 7:27-29, 8:1-7.
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`Similarly, in the context of RF bursts, being “timed in relation to” the synchronizing information
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`refers to the fact that the RF bursts are aligned to correspond to particular time slots in a frame
`
`interval, which is specified by the synchronizing information. Id. The patent specification,
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`therefore, supports Apple’s constructions of the disputed phrases.
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`In contrast, DSS’ construction conflicts with the claim language and the teachings of the
`
`specification. For example, DSS’ single construction for both phrases causes a nonsensical and
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`unsupported result. In particular, DSS’ construction of “which is timed in relation to” results in
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`the “code sequence” “occurring at a specified interval of time relative to” the synchronizing
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`11
`0014
`
`

`

`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 15 of 34 PageID #: 700
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`information. But nothing in the patent talks about transmitting or generating a code sequence at a
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`“specified interval of time” relative to synchronizing information. That the specification does
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`not do this makes sense because synchronizing information is for synchronization, not for
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`determining when to transmit/receive. Rather, the patent explains the timing of code sequences
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`means that its values (the 1s and 0s) are aligned with time slots in a frame interval, as
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`contemplated by Apple’s construction. ’290 patent, 7:27-29, 8:1-7.
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`DSS seems to acknowledge that its construction requiring the “code sequence” to occur
`
`at a time relative to the synchronizing information makes little sense. DSS Br. at 14-15. Indeed,
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`DSS attempts to explain away the nonsensical result by stating:
`
`. . . the timing described by the code sequence is going to a occur at a time
`relative to the synchronizing information. In other words, the code sequence
`specifies an interval of time for communication that is relative to the
`synchronizing information.
`
`Id. Thus, under DSS’ construction, the “timing” is going to occur “at a time,” which is circular.
`
`DSS’ sole objection to Apple’s construction is that it purportedly does not make
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`grammatical sense if you literally insert the construction back into the claims. DSS Br. at 15-16.
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`But DSS cites no case law that prohibits a construction that does not read perfectly when
`
`reinserted into a claim, just as a dictionary definition of any word would not necessarily read
`
`perfectly if imported into a sentence. Even if there was a requirement that construction need to
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`be inserted into a claim in a grammatically correct fashion (there is no such requirement), the
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`Court could easily solve this issue by adding a short phrase to Apple’s construction (e.g.,
`
`“specified by”), which would read as follows:
`
`Claim 1: said server and peripheral transmitters being energized in low duty cycle RF
`bursts at intervals determined by a code sequence [the values of the code sequence are
`aligned to correspond to time slots in a frame interval specified by] said synchronizing
`information.
`
`12
`0015
`
`

`

`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 16 of 34 PageID #: 701
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`Claim 6: said server and peripheral transmitters being energized in low duty cycle RF
`bursts [the RF bursts are aligned to correspond to particular time slots in a frame
`interval specified by] said synchronizing information.
`
`Because Apple’s construction is consistent with the plain claim language and the teachings of the
`
`specification, while DSS’ construction is not, Apple’s construction should be adopted.
`
`C.
`
`“time slots”
`
`Apple’s Construction
`“a fixed period of time within a predetermined
`frame interval where a respective peripheral
`unit or server microcontroller unit is to
`transmit or not, and whether it will receive or
`not”
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`DSS’ Construction
`“intervals of time”
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`“Time slots” in the context of the ’290 patent have two characteristics and cannot be any
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`“intervals of time.” These characteristics are that “time slots” (1) are “a fixed period of time
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`within a predetermined frame interval” where (2) “a respective peripheral unit or server
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`microcontroller to transmit or not, and whether to receive or not.” DSS actually agrees that the
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`claimed “time slots” have these characteristics as set forth in Apple’s construction. DSS Br. at
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`16. But – for some reason – DSS refuses to acknowledge these characteristics in its construction
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`and instead just rephrases “time slots” as any “intervals of time.” They are not.
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`The claims and the specification explain what constitutes a “time slot” in the context of
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`the patent. The term appears in dependent claims 2, 7 and 10. In each of these claims, the “time
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`slots” are fixed periods of time within a predetermined frame interval. ’290 patent, claims 2, 7
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`and 10. This is reinforced by the specification, which discloses “frame intervals” that are
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`divided into “sectors” which are in turn divided into “time slots.” Id. at Figure 6, 3:57-62, 7:20-
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`216; Ex. B, Hu Decl., ¶42; Ex. A, Carvey Decl., ¶¶4,7. This is further demonstrated graphically
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`6 The passage at 3:57-62 reads: “. . . the general scheme of data transmission and reception is a
`form of time division multiple access (TDMA). This TDMA access is characterized by a frame
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`13
`0016
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`

`

`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 17 of 34 PageID #: 702
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`in Figure 6:
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`There is no disclosure of a “time slot” that is not a fixed period of time within a
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`predetermined frame interval. Moreover, DSS actually agrees that the claimed “time slot” is “a
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`fixed period of time within a predetermined frame interval” but this is nowhere to be found in
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`DSS’ construction. DSS Br. at 16. The only evidence of record is that time slots are
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`subdivisions of frame intervals.
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`
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`The ’290 patent is also clear that for each of the claimed time slots there will be an
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`indication of whether “a respective peripheral unit or server microcontroller unit is to transmit or
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`not, and whether it will receive or not,” in accord with Apple’s construction:
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`For each slot, this TDMA program indicates that a PEA or host is to transmit, or
`not, and whether it will receive, or not. In the intervals between slots in which a
`PEA is to transmit or receive, all receive and transmit circuits are powered down.
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`’290 patent, 4:2-6; Ex. B, Hu Decl., ¶42. Technical extrinsic evidence – dictionaries and expert
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`interval, common to the host and all PEAs of 32.768 milliseconds, segmented into 16,384 time
`slots.” The passage at 7:20-21 reads: “In this scheme, the 16384 slots are equally segmented into
`256 intervals called sectors.”
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`14
`0017
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`

`

`Case 6:13-cv-00919-JDL Document 74 Filed 10/14/14 Page 18 of 34 PageID #: 703
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`testimony – also reinforce that the claimed “time slots” are characterized in this way.7
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`
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`At page 16 of its Opening Brief, DSS actually agrees time slots are used to tell the
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`devices whether to transit/receive or not – but still refuses to include this in their construction:
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`These time slots represent periods of times in which a peripheral device (called
`PEAs in the specification) may be assigned to transmit or receive data. The time
`slot is the interval of time in which the communication between the server
`microcomputer, referred to in embodiment at a PDA, and the PEA can occur.
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`After agreeing that “time slots” are characterized in this way, DSS’ only criticism of
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`Apple’s construction is that if you import the construction into the claims it is results “in an
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`unnecessarily lengthy claim having many redundant terms.” DSS Br. at 17. But DSS never
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`identifies anything that is incorrect in Apple’s construction. Moreover, there is no rule of law or
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`case that says the construction must read perfectly if read into the claim, just as a dictionary
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`definition of any word would not necessarily read perfectly if imported into a sentence.
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`
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`DSS’ construction is wrong for several reasons. First, DSS’ construction of “time slots”
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`is so broad that it would cover “frame intervals” and “sect