throbber
Claim Construction Hearing
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`1
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`DOCKET 2:14CV59
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`FEBRUARY 18, 2015
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`9:00 A.M.
`
`MARSHALL, TEXAS
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`|||||||
`
`C-CATION TECHNOLOGIES,
`LLC
`
`VS.
`
`TIME WARNER CABLE, INC.,
`ET AL
`
`--------------------------------------------------------
`
`VOLUME 1 OF 1, PAGES 1 THROUGH 141
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`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`--------------------------------------------------------
`
`APPEARANCES
`
`FOR THE PLAINTIFF:
`
`LUPCO (LEWIS) V. POPOVSKI
`DAVID J. KAPLAN
`DAVID JEFFREY COOPERBERG
`JEFFREY S. GINSBERG
`KENYON & KENYON LLP - NEW YORK
`ONE BROADWAY
`NEW YORK, NY 10004
`
`SAMUEL FRANKLIN BAXTER
`MCKOOL SMITH - MARSHALL
`P O BOX O
`104 EAST HOUSTON ST., SUITE 300
`MARSHALL, TX 75670
`
`FOR THE DEFENDANTS:
`
`CHARLES KRAMER VERHOEVEN
`QUINN, EMANUEL, URQUHART &
`SULLIVAN LLP - SAN FRANCISCO
`50 CALIFORNIA STREET, 22ND FLOOR
`SAN FRANCISCO, CA 94111
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`2
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`FOR THE DEFENDANTS (CONTINUED):
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`EDWARD J. DEFRANCO
`MATTHEW A. TRAUPMAN
`QUINN, EMANUEL, URQUHART &
`SULLIVAN, LLP - NY
`51 MADISON AVE, 22ND FLOOR
`NEW YORK, NY 10010
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`JAMES MARK MANN
`MANN TINDEL & THOMPSON
`300 W. MAIN
`HENDERSON, TX 75652
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`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TEXAS
`77701
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`PROCEEDINGS RECORDED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
`
`INDEX
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`3
`
`USABILITY OF SAID SIGNALLING DATA CHANNELS
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`NEEDS TO BE REASSIGNED
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`DETERMINING WHETHER A DIFFERENT AND SUITABLE
`SIGNALLING DATA CHANNEL IS AVAILABLE OTHER
`THAN SAID PREDETERMINED CHANNEL
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`SAID PREDETERMINED SIGNALLING DATA CHANNEL
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`PREAMBLE IS LIMITING
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`ESTABLISHING COMMUNICATIONS BETWEEN SAID
`CENTRAL CONTROLLER AND SAID PLURALITY OF
`REMOTE TERMINALS
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`ORDER OF CLAIM STEPS
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`COURT REPORTER'S CERTIFICATION
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`PAGE
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`42
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`4
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`(OPEN COURT, ALL PARTIES PRESENT.)
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`THE COURT:
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`For the record, we're here for the
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`claim construction hearing in C-Cation Technologies
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`versus Time Warner Cable, et al, Case Number 2:14-59 on
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`our docket.
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`Would counsel state their appearances for the
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`record.
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`MR. BAXTER:
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`Good morning, your Honor.
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`Sam
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`Baxter, McKool Smith, along with Lew Popovski and Jeff
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`Ginsberg who you've seen before in these cases, your
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`Honor, from Kenyon & Kenyon, along with their partners
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`David Kaplan and David Cooperberg, your Honor; and we' re
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`ready.
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`THE COURT:
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`All right.
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`Thank you, Mr. Baxter.
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`MR. MANN:
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`Good morning, your Honor.
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`Mark
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`Mann here for Cisco, Arris, Time Warner Cable, and CASA,
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`the four defendants in the case.
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`And along with me
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`today, Charles Verhoeven and Ed DeFranco and Matt
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`Traupman.
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`And Bill Silverio is here for Cisco as
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`corporate representative, your Honor, from corporate
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`counsel's office.
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`We're ready to proceed.
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`THE COURT:
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`All right.
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`Thank you, Mr. Mann.
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`I'll state for the record that --
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`Mr. Popovski, do you --
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`MR. POPOVSKI:
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`I was going to start off by --
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`5
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`given your Honor's preliminary construction, I think we
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`have maybe a suggestion for organizing the rest of the
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`hearing.
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`THE COURT:
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`All right.
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`Well, let me just make
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`a statement about that; and then I'll give you the floor.
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`I was just going to note that a preliminary
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`construction has been distributed to counsel earlier this
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`morning, and I wanted to make sure that I do state for
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`the record that the intent of that construction is not to
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`limit the arguments in any way but simply to let both
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`sides know where the court is after an initial review of
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`the briefs and the record.
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`I do certainly occasionally reconsider the
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`preliminary constructions based on the arguments, and the
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`goal is to allow you to focus the arguments where you
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`think the court has gone wrong rather than to prevent you
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`from making any arguments that you think are appropriate.
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`I would also like to hear argument on a
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`term-by-term basis but -- you may have suggestions about
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`the order in which that's done, and I'm certainly
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`amenable to those.
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`And I also want to state that if either side
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`has any opening remarks they want to make about the
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`technology or the patents, I'm happy to hear those as
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`well.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`6
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`So, Mr. Popovski, what do you have to offer?
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`MR. POPOVSKI:
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`Well, your Honor, we read the
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`court's preliminary claim constructions; and not
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`surprisingly, I think we're very comfortable with it.
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`We
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`think it's well supported.
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`We think it is correct.
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`With that, we really don't have anything to
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`present to you in our case-in- chief except maybe a little
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`bit of background on the patent itself.
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`But we would
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`suggest that we let the defendants go and pick the claims
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`that they would like to do and reserve our -- any
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`statements in case your Honor has any questions or in
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`rebuttal.
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`THE COURT:
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`Well, I'm happy to hear from the
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`defendants first on any terms where they want to present
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`argument; and then we can give you a chance to respond.
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`That's fine.
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`MR. POPOVSKI:
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`Thank you, your Honor.
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`THE COURT:
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`Mr. Verhoeven, if you want to
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`proceed, go ahead.
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`MR. VERHOEVEN:
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`Thank you, your Honor.
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`Good morning, your Honor.
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`THE COURT:
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`Good morning.
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`MR. VERHOEVEN:
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`We have some slides, your
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`Honor, that I would like to pass out if that's okay.
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`THE COURT:
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`Yes, sir.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
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`7
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`MR. VERHOEVEN:
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`Good morning, your Honor.
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`Your Honor, I know that this is your second Markman on
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`the same patent and I have no doubt that the court put a
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`lot of effort and work into the first time it considered
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`all of these terms and it's now done the same a second
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`time and I appreciate that, your Honor.
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`And I also
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`appreciate getting the tentative order so that we can
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`focus ourselves.
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`The last Markman was about a year and a half
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`ago, your Honor; and since that time there's been changes
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`in the law, most specifically with respect to the law of
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`indefiniteness.
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`We also have different defendants now,
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`your Honor; and they have presented some arguments that
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`weren't presented before as to some of these terms.
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`And, so, what we propose to do, your Honor,
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`with your indulgence, is to focus on some of the new
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`things that weren't raised at the last hearing in the
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`Comcast -- I'll just call it the "Comcast matter," the
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`first one.
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`And taking your invitation on focusing where
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`we think our time is most wisely spent, I think, your
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`Honor, that we would like to start, if it's okay with
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`you, with the indefiniteness arguments and the
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`indefiniteness terms.
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`I could argue -- we have four in this case.
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`Three are highly similar to each other.
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`I could argue
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`8
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`them all together; but I could also argue them one at a
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`time, your Honor.
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`It's up to you.
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`THE COURT:
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`I'm happy to take the related ones
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`together.
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`MR. VERHOEVEN:
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`Okay.
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`So, stop me if you
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`think it's not related enough; but I think in the
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`interest of time, I'll just hit all four because they all
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`concern the same doctrine and then -- if that's okay with
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`plaintiff's counsel --
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`MR. POPOVSKI:
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`Sure.
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`MR. VERHOEVEN:
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`Okay.
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`And then plaintiff's
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`counsel can respond.
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`So, if we could go to Slide 14.
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`I'd like to start first with the change in the
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`law of indefiniteness, your Honor.
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`And, again, I'm sure
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`you're very familiar with the Nautilus case but --
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`THE COURT:
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`I've heard a little about it.
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`MR. VERHOEVEN:
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`Yeah.
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`Well, I'm just going to
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`review, just for the record.
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`Eleven months after
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`your Honor's initial construction on the indefiniteness
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`terms, there was a pretty major change in the law.
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`In
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`the Nautilus case the United States Supreme Court held
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`that a "patent must be precise enough to afford clear
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`notice of what is claimed...otherwise there would be a
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`zone of uncertainty which enterprise and experimentation
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
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`9
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`may enter only at the risk of infringement claims."
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`And the Supreme Court said this next
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`sentence -- I think this is important.
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`It said, "And
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`absent a meaningful definiteness check, we are told,
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`patent applicants face powerful incentives to inject
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`ambiguity into their claims.
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`Eliminating that temptation
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`is in order."
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`And I think that's important, your Honor,
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`because when you look at patents -- and I know your Honor
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`has over and over again -- a lot of times at least I get
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`the impression that, hey, they could have made this
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`clearer.
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`Why didn't they try?
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`And I've come to the
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`conclusion because it leaves ambiguity as to whether
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`you're infringing or not, which is advantageous to the
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`patentee.
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`But it certainly hurts the policy, your Honor,
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`of good-faith people, good-faith corporate entities who
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`don't want to infringe anybody's patent being able to
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`make sure they don't or, if they do, taking the
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`appropriate steps so they don't have to face an expensive
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`lawsuit.
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`So, the policy is a good one behind Nautilus.
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`And the question I think everyone should be asking when
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`you look at these issues under Nautilus is if I was a
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`good corporate citizen and I didn't want to infringe this
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`patent, would I be able to figure out how not to?
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`10
`And I
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`would submit with these terms we' re going to go into,
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`your Honor, the answer is no.
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`Next slide, please.
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`There is no doubt, as I am sure your Honor
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`knows, that the Nautilus case rejected the standard
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`before the court in the old Comcast case, which was the
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`"insolubly ambiguous" standard.
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`That is no longer the
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`law.
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`It is also no longer the law that you can fix
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`something that's indefinite by narrowing construction.
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`Under Nautilus and its progeny, they said you're not
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`allowed to do that either.
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`So, there is definitely
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`different law to be applied to these same terms than was
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`applied the first time, your Honor; and the test --
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`Slide 16, please.
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`-- as your Honor knows is this "reasonable
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`certainty" test that is now the test, not "insoluble
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`ambiguity."
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`Slide 17, please.
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`Now, here what we' re going to go into, I
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`believe -- well, at least certainly I believe and I'd
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`like to argue, your Honor, is we have subjective terms,
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`terms that depend on the intent of a person, instead of
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`objective terms.
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`And, so, I just want to cover -- it is
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
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`11
`very clear under Federal Circuit case law after Nautilus
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`that if you have purely subjective claim phrases, that
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`they violate this principal of reasonable certainty.
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`And, so, "A term of degree fails" -- this is
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`the Interval Licensing case.
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`Quoting Datamize, "A term
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`of degree fails to provide sufficient notice of its scope
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`if it depends 'on the unpredictable vagaries of any one
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`person's opinion.'
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`Where...faced with a 'purely
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`subjective' claim phrase, we must look to the written
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`description for guidance."
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`So, with that, your Honor, I'd like to move on
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`to the terms.
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`If we could go to Slide 19.
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`And the first term, your Honor, that I would
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`like to present argument on is this phrase "the usability
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`of said signalling data channels."
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`Your Honor, I haven't gone into the background
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`of the invention because I guess I have assumed that
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`since this is your second time doing the Markman on this,
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`that you are reasonably familiar with it.
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`If you would
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`like some of that, I could do that; or I could just head
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`right into the terms.
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`THE COURT:
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`You can head into the terms.
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`That's fine.
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`MR. VERHOEVEN:
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`Okay.
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`Thank you, your Honor.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`12
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`So, here we' ve got the usual chart where we
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`put each side's construction at the top.
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`The claim
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`phrase in the context -- element (b) is right here on the
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`slide, and it is "monitoring the status of a plurality of
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`the signalling data channels in use between said central
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`controller and said plurality of remote terminals."
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`Your
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`monitoring for what?
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`"For the usability of said
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`signalling data channels."
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`So, here our contention, your Honor, is
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`"usability" is one of these subjective phrases.
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`It's not
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`like some objective phrase that the person who didn't
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`want to infringe could look at and say, "I am monitoring
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`for usability" or "I'm not monitoring for usability."
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`And I'll go into why, but that's our contention.
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`And,
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`so, the key issue here is whether there is
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`indefiniteness.
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`Now, in the briefing, the plaintiff suggested
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`that the court already found that "usability" was
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`definite; and it cites their brief at page 8, your Honor.
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`But as your Honor knows, that indefiniteness wasn't even
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`raised in the initial case.
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`And we' ve just cited from
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`your Markman order here down at the bottom where you can
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`see the defendants' proposed construction was not
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`indefiniteness.
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`They proposed an actual construction and
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`never argued to your Honor that this phrase was
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
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`13
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`indefinite.
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`So, this is an argument that wasn't made
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`before.
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`It's an argument that this is the first time
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`your Honor has heard, and the law is different from back
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`then as well.
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`So, we think it's worth taking a second
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`look at, your Honor.
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`We believe that "usability" does not have any
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`accepted meaning in the field.
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`It is not a technical
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`term.
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`It is not a term of art.
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`There is no contention
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`from the plaintiff that it is.
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`They are just saying it
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`is the usual layperson's meaning of "usability."
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`Your Honor, we would submit that that depends
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`on the opinion of the person that's making the system,
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`whether it's usable or not; and, so, someone on the
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`outside is not going to be able to make that
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`determination.
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`One person may think a channel is usable
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`based on a system they set up with certain parameters.
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`Another person could have a completely different set of
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`parameters with a different system and have their own
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`opinion about whether it's usable or not.
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`And, so, when
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`a person is sitting there looking at the actual written
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`claim language saying "I don't want to infringe this
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`thing," they're not going to be able to figure out how.
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`The plaintiffs have alleged that "usability"
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`is not a subjective term, but it plainly is.
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`And if you
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`look at the law, you see that subjective terms, just like
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
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`14
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`this one, have repeatedly been found to be indefinite,
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`your Honor.
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`In their briefs C-Cation contends that you
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`just need to look at the context and if you look at the
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`context instead of just the word "usability," then it
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`provides an objective boundary.
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`But in your last Markman order at page 27,
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`your Honor, you did look at it in context; and you said,
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`your Honor -- as I'm sure you know this.
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`But you said,
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`"In the context of the claim steps and the specification,
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`it is clear that the monitoring may include monitoring a
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`variety of factors."
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`And your Honor went on to say, "However, in
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`the context of the intrinsic record as a whole" -- the
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`context as a whole -- "the monitoring of the channels
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`appears to also include more complex determinations that
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`may weigh on a number of factors."
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`So, there is not just
`
`one factor or two factors that you can objectively look
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`at, your Honor.
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`It could be any number of factors.
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`Next slide, 25.
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`C- Cation argues in its
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`Markman brief that this claim is not qualitative.
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`But
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`all you need to do is look at it and exercise your own
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`judgment of the English language, your Honor.
`
`Usability
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`is in the eye of the beholder.
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`It depends on the
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`particular individual involved whether something is
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Claim Construction Hearing
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`15
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`usable, the technical system they set up.
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`It is not
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`something you can look at and say is it or isn't it.
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`And the court noted in its previous Markman,
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`"Usability would imply more of a continuum of
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`determinations of usability."
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`But that violates
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`Nautilus.
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`We're not talking about a continuum.
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`We're
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`talking about objective boundaries that we need.
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`THE COURT:
`
`Isn't what we're talking about
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`here in this limitation -- it's a monitoring step in this
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`method, and the question is whether or not someone -- an
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`accused infringer -- has a step where they are monitoring
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`this usability.
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`MR. VERHOEVEN:
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`Correct.
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`THE COURT:
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`Are you suggesting that a person
`
`would not be able to tell whether or not they are
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`performing that?
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`MR. VERHOEVEN:
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`Yes, your Honor.
`
`I am saying
`
`the person wouldn't be able to tell -- wouldn't know
`
`objectively what "usability" is.
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`You could say, "Oh,
`
`yeah, you're monitoring X.
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`You're monitoring Y."
`
`You
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`could look at those things.
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`But is that usability?
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`And,
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`so, the question is what does "usability" mean?
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`It's
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`claim --
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`THE COURT:
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`Give me an example of what you
`
`could be monitoring that might be usability of the
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

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`Claim Construction Hearing
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`16
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`channel and might not be.
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`MR. VERHOEVEN:
`
`Well, your Honor, I'll give
`
`you an example of what the defendants say -- let me just
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`find the -- bear with me, your Honor.
`
`Well, I'm having trouble finding the slide.
`
`But I will represent to your Honor the defendants [sic]
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`say that to meet this, you just set any threshold; and if
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`the threshold is met --
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`THE COURT:
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`You mean the plaintiffs say?
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`MR. VERHOEVEN:
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`I'm sorry.
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`The plaintiffs,
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`your Honor.
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`THE COURT:
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`Okay.
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`MR. VERHOEVEN:
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`That if any threshold is met,
`
`that that meets that.
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`So, I could pick anything.
`
`So, I
`
`could pick something -- under their contention, your
`
`Honor, I could pick a factor -- first of all, the patent
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`lists five, I believe, factors that it says deal with
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`availability, not usability.
`
`And we'll get to that.
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`But even the plaintiff says usability is not
`
`limited to those five factors; it could be anything.
`
`And
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`they say in their brief, your Honor, that all that's
`
`required is that if the person sets a threshold, any
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`threshold, whether it improves the system or not, your
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`Honor, and if that threshold is met, that meets
`
`usability.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`

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`Claim Construction Hearing
`
`17
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`So, I could pick anything.
`
`I could pick if
`
`there's a hundred remote terminals on the line, it's
`
`still usable.
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`Or I could pick if there is a thousand,
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`it's not usable -- or still usable, regardless of its
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`effect on the system.
`
`That is the position the plaintiff
`
`has repeatedly taken, both as to "usability"; as to the
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`other phrase, "needs to be reassigned"; and as to the
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`third phrase, "suitability."
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`All three of those, they say the same thing,
`
`your Honor, that I would infringe -- I, sitting back --
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`so, the question again, your Honor, is I am outside.
`
`I
`
`am a corporate citizen.
`
`I don't want to practice this
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`patent.
`
`Okay?
`
`And I don't want to -- I wish I had a
`
`definition of "usability," "suitability," "needs to be
`
`reassigned," these three in my opinion subjective terms,
`
`your Honor.
`
`This is the first one.
`
`But the plaintiff's position is if you set a
`
`threshold in your system to determine whether to change
`
`channels or to monitor based on a threshold, any
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`threshold, and that threshold is met, then you are
`
`practicing usability.
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`THE COURT:
`
`Well, under your example, the
`
`accused infringer is monitoring the number of terminals
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`in use on the channel.
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`Is that --
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`MR. VERHOEVEN:
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`Sure.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`18
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`THE COURT:
`
`All right.
`
`So, that would be --
`
`the number of terminals relates to the usability of the
`
`channel?
`
`MR. VERHOEVEN:
`
`In the example.
`
`You could
`
`pick anything.
`
`So, let's pick that as an example.
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`THE COURT:
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`What you're really arguing to me,
`
`it sounds like, is what is the test for determining
`
`whether or not it is usable, which would be different
`
`than monitoring the factors that go into that.
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`MR. VERHOEVEN:
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`Well, then the question is
`
`when are you not infringing monitoring factors.
`
`Anytime
`
`you have a system where you monitor anything, your Honor,
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`that has remote terminals, they would say you are
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`monitoring for usability.
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`Any threshold you set, any
`
`parameters you set in your system and then you monitor
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`them -- ask them.
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`They'll say that will infringe this
`
`step.
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`And what that means, your Honor, is
`
`"usability" has no meaning.
`
`They have -- they are
`
`construing "usability," which is a subjective term, to
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`mean anything.
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`As long as you set a threshold and you
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`monitor it, you're monitoring "usability."
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`THE COURT:
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`I think that -- I mean, the way I
`
`am looking at this is that -- the question is would a
`
`reasonable person understand what "usability" means, and
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

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`Claim Construction Hearing
`
`19
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`then it's a question of fact as to whether or not that
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`condition for which someone is monitoring relates to
`
`usability or not.
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`But you have not -- I haven't heard anything
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`from you yet to tell me that people can't -- a reasonable
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`person cannot tell, with reasonable certainty, what
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`factors relate to the usability of a channel and what
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`don't.
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`MR. VERHOEVEN:
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`Well, let me see if I can go
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`to Slide 40 to show you how extreme -- so, this is an
`
`excerpt from the transcript of the deposition of
`
`plaintiff's expert on this subject, your Honor.
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`And he
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`was asked a hypothetical that suppose you chose to
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`monitor whether there is a dog in the room or not, would
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`that meet this "monitoring" step; and he said yes.
`
`He said anything you set that you decide and
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`then you monitor would meet this step regardless if it
`
`improves the system, hurts the system, is related to the
`
`system in any way -- you could pick a random factor,
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`according to them; and if you monitored it, then you are
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`practicing the step.
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`THE COURT:
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`If that's true, that's a good
`
`example of why I don't rely on experts for claim
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`construction.
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`MR. VERHOEVEN:
`
`I guess the way I try to
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`20
`explain it, your Honor, is when you were describing that,
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`the second part of what you said was, "And that factor,
`
`does it relate to usability."
`
`That's the part we don't
`
`know because we don't know the boundaries of what we mean
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`when we say "usability."
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`THE COURT:
`
`"Useable" is a broad term, but I
`
`don't think that it's an indefinite term.
`
`I think that
`
`people can determine with reasonable certainty whether or
`
`not something has an effect on the usability of these
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`channels, and I think then it becomes just a question of
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`fact as to whether or not this condition for which the
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`monitoring is being done affects the usability.
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`A dog in
`
`the room clearly does not.
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`MR. VERHOEVEN:
`
`So, I guess if I go back to --
`
`I almost hate to say this -- to 02 Micro, your Honor.
`appreciate what you're saying, your Honor, which is you
`
`I
`
`believe that a person could understand what "usability"
`
`means.
`
`But we have a disagreement with the plaintiff
`
`about what it means; and the plaintiff is taking a pretty
`
`broad position that it could mean any parameter that you
`
`set on your system, period.
`
`And if you decide that's
`
`what I'm going to monitor, then that, by definition,
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`relates to usability.
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`So, regardless of its effect on the system,
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`your Honor -- and, so, it gets to that second part of
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`21
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`what you were saying.
`
`Here is a factor that we' re
`
`picking for a system that we're going to monitor.
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`If we
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`monitor -- I guess let me back up, your Honor.
`
`Would you agree that you could monitor things
`
`on the systems that don't relate to usability?
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`I think I
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`would submit you should have to be able to do that.
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`There has to be something you could monitor that doesn't
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`relate to usability; otherwise, usability has no
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`boundary.
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`THE COURT:
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`I mean, that would be a question
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`of fact.
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`I don't know what conditions a system can
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`monitor; but, you know, I think I can determine whether
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`or not a condition relates to whether the channels are
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`usable or not.
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`MR. VERHOEVEN:
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`But then that begs the
`
`question of what does it mean to be "usable."
`
`That's
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`what I'm trying to say, your Honor.
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`And we have a
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`dispute about that, what it means to be "usable."
`
`And even apart from indefiniteness, there is a
`
`dispute about it.
`
`The plaintiff in their brief have
`
`repeatedly said both for "usable," for "needs to be
`
`reassigned" and for "suitability," that you can just pick
`
`any threshold in your system and then if that threshold
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`is met, then you're meeting these elements.
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`And that to
`
`me, your Honor, is not tied to these terms.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`22
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`So, picking the one we're on right now,
`
`usability, that's not tied to usability.
`
`You could pick
`
`a parameter that is completely unrelated to usability in
`
`your system.
`
`THE COURT:
`
`Like what?
`
`MR. VERHOEVEN:
`
`Well, if it's of the channels,
`
`you could have another parameter in your system that
`
`doesn't relate to how efficient the channels worked or
`
`not.
`
`You just pick a threshold, and you decide -- this
`
`is what they are saying in their brief, your Honor.
`
`THE COURT:
`
`I know.
`
`But if you can provide me
`
`an example, then -- but you're just giving me --
`
`MR. VERHOEVEN:
`
`If the clock in your system
`
`strikes ten, then you need to reassign your channel
`
`because it is no longer usable.
`
`That's their position.
`
`You could pick that even though it has no effect on the
`
`system.
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`If you read their briefs carefully, your Honor,
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`that's what they are saying.
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`THE COURT:
`
`Well, I guess I will find out when
`
`they get up whether we have a dispute about that but --
`
`MR. VERHOEVEN:
`
`But in going back to what I'm
`
`saying, your Honor, "usable" is -- well, let me put it
`
`this way.
`
`If I could go to -- bear with me, your Honor.
`
`Bear with me, your Honor.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`23
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`THE COURT:
`
`That's fine.
`
`MR. VERHOEVEN:
`
`I've buried myself with
`
`slides.
`
`So, on Slide 37 here we have how the plaintiff
`
`is characterizing "usability" in their own briefs; and
`
`this is citing to the specification, your Honor.
`
`This
`
`isn't divorced from the specification.
`
`This is what the
`
`specification says, that the usability relates to the
`
`desirability of a reassignment.
`
`And you can look at things like "more
`
`intelligent management schemes."
`
`Well, how do you know
`
`if something is desirable or not?
`
`Well, isn't that --
`
`that is, by definition, something inside the head of a
`
`person, whether something is desirable.
`
`THE COURT:
`
`That's not the term we're
`
`construing.
`
`MR. VERHOEVEN:
`
`But these are the portions of
`
`the spec.
`
`If you look at the spec, your Honor, and you
`
`ask yourself where is it described in the spec what
`
`"usability" means, well, there is only one -- "usability"
`
`doesn't appear in the spec at all, your Honor.
`
`"Usable"
`
`appears in the spec once.
`
`This is on Slide 26, please.
`
`There it is right there.
`
`And it's not used at
`
`all in the way that the plaintiffs are saying it is used
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`24
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`in the claim if you read it.
`
`It says, "If the expected
`
`response is not received at the central controller from
`
`the addressed terminal after the time-out period expires,
`
`the central controller assumes that the channel is not
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`usable."
`
`Well, that's a very specific use of
`
`"usability."
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`In fact, C-Cation doesn't even cite this
`
`portion of the specification in connection with the
`
`construction of the word "usability."
`
`And this is the
`
`only antecedent in the specification, your Honor, that
`
`uses the term -- or it doesn't use the exact term -- uses
`
`a term that's related.
`
`So, there is no explanation other than that
`
`one phrase in the specification of what it means for the
`
`system to be -- or to monitor the system for usability.
`
`The plaintiff cites, your Honor -- and
`
`your Honor cited this in your earlier Markman order --
`
`factors in the spec relating to availability.
`
`So, if we could go to the next slide.
`
`This is Slide 28.
`
`As you can see, in the way
`
`the specification describes the system, "availability" is
`
`a different concept from "usability."
`
`They are described
`
`in different paragraphs in the specification.
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`I'm on
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`Slide 28 now.
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`So, for example, "usable" is described in the
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`25
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`paragraph at Column 8, lines 1 through 10; and the
`
`availability channels are in a different paragraph,
`
`talking about the channel availability.
`
`So, if I could go to Slide 30, your Honor,
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`just to walk you through.
`
`I'll try to answer your
`
`question about how would you not know if you're a person
`
`standing outside.
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`Just take the availability factors
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`that are listed, your Honor.
`
`Those are the number of
`
`remote terminals, the traffic requirements, past
`
`collision count, channel error status, and bandwidth.
`
`If you go to Slide 30, let's take the number
`
`of remote terminals.
`
`So, is there any objective boundary
`
`on that?
`
`No.
`
`In fact, let's skip ahead.
`
`So, here we have five different -- let's go to
`
`35.
`
`We have five different factors that the
`
`plaintiffs point to as to usability; but they don't say
`
`anything about what those factors -- when those factors
`
`are met, how those factors are met, how they mix together
`
`to determine whether something is usable or not usable,
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`your Honor.
`
`The plaintiffs cite --
`
`Go to the next slide.
`
`-- to dependent claim 3 to suggest that that
`
`somehow supports their argument.
`
`Well, dependent claim 3
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`

`
`Claim Construction Hearing
`
`26
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`identifies some specific factors that could be the
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`monitoring; but it is surrounded by a "comprising" claim.
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`So, it could be any number of other factors.
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`And if you go to -- and, by the way, the
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`plaintiff agrees with this.
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`There could be any factor,
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`not just the ones that are enumerated.
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`So, I'd like to end this particular term and
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`move on to the next just by addressing a couple of cases
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`cited by the plaintiff.
`
`This is Slide 41.
`
`They cite the
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`Invensys case, your Honor.
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`Notably -- I think this was
`
`before Judge Davis, your Honor.
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`Notably in that case the
`
`plaintiff proposed a construction o

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