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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONY CORPORATION,
`Petitioner,
`
`v.
`
`ONE-E-WAY, INC.,
`Patent Owner.
`_____________
`
`Case IPR2016-01638 (Patent 9,282,396 B2)
`Case IPR2016-01639 (Patent 9,282,396 B2)
`____________
`
`Record of Oral Hearing
`Held: November 6, 2017
`____________
`
`
`Before DAVID C. MCKONE, ROBERT J. WEINSCHENK, and JOHN
`F. HORVATH, Administrative Patent Judges.
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`
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`PAUL T. QUALEY, ESQUIRE
`Andrews Kurth Kenyon LLP
`1350 I Street, N.W.
`Suite 1100
`Washington, D.C. 20005
`
`Case IPR2016-01638 (Patent 9,282,396 B2)
`Case IPR2016-01639 (Patent 9,282,396 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
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`
`
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`
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`ON BEHALF OF THE PATENT OWNER:
`
`
`PAYSON E. LEMEILLEUR, ESQUIRE
`DOUG MUEHLHAUSER
`Knobbe Martens
`2040 Main Street
`14th floor
`Irvine, CA 92614
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`
`
`The above-entitled matter came on for hearing on Monday,
`November 6, 2017, at 1 p.m., at the U.S. Patent and Trademark Office,
`Madison Building East, 600 Dulany Street, Alexandria, Virginia, before
`Chris Hofer, Notary Public.
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`Case IPR2016-01638 (Patent 9,282,396 B2)
`Case IPR2016-01639 (Patent 9,282,396 B2)
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`P R O C E E D I N G S
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`JUDGE WEINSCHENK: All right. Good afternoon everyone.
`This is a hearing for IPR2016-01638 and 01639, Sony Corporation v.
`One-E-Way, Inc. Let’s start with appearances. When you make your
`appearance, please step up to the center podium. Who do we have for
`Petitioner?
`MR. QUALEY: Good afternoon, Your Honor. Paul Qualey from
`Andrews Kurth Kenyon for Sony Corporation.
`JUDGE WEINSCHENK: Thank you, Mr. Qualey. And who do
`we have for Patent Owner?
`MR. MUEHLHAUSER: Doug Muehlhauser, and my partner and
`colleague Payson LeMeilleur. We’ll both be arguing on behalf of One-
`E-Way today.
`JUDGE WEINSCHENK: Okay. Mr. Muehlhauser and what was
`the other name?
`MR. LEMEILLEUR: Payson LeMeilleur.
`JUDGE WEINSCHENK: LeMeilleur, okay. All right, thank you
`Mr. Muehlhauser. As to few preliminary matters, as you can see Judges
`McKone and Horvath are appearing remotely so whenever you speak
`please make sure you step up to the center podium so that they can hear
`you, and also when you’re referring to slides in your demonstratives
`please use slide numbers so that they can follow along.
`As we indicated in our order, each side will have 60 minutes to
`present its case. You can use that time however you want between the
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`Case IPR2016-01638 (Patent 9,282,396 B2)
`Case IPR2016-01639 (Patent 9,282,396 B2)
`two cases. Just for Petitioner, before you begin please let us know how
`much time you’d like to reserve for rebuttal, if any. So Petitioner, you
`may begin when you’re ready.
`MR. QUALEY: All right. Good afternoon, Your Honors. I think
`I’d like to start with reserving 20 minutes for rebuttal and we’ll just see
`how it goes. Okay. As you already stated, this is hearing for two IPRs,
`1638 and 1639 IPRs.
`Slide 2 please. Both of these IPRs involve U.S. patent No.
`9,282,396 entitled Wireless Digital Audio Music System, and assigned
`on their face to Patent Owner, One-E-Way.
`As shown on slide 3, so the wireless digital audio music system of
`the claimed invention is largely shown in figure 1 here with some
`primary components, an audio source 80, audio transmitter 20, and a
`receiver 50 that is included in the wireless headphone 55.
`Moving on to slide 4, in figure 2 we see a block diagram with the
`audio transmitter portion and figure 3 we see a block diagram of the
`audio receiver portion.
`Moving on to slide 5, it shows claim 1 of the 396 patent. This is
`largely representative of the claims as a whole with a couple of
`exceptions I’ll note in just a moment. So this claim shows the entire
`system as the portable transmitter which is largely shown in the left hand
`column and in the right hand column is recited the headphone on the
`receiver side.
`Now there are five other independent claims in the patent. Two of
`them are set up similarly to this, that’s claims 6 and 9 which are set up
`reciting both the transmitter and receiver side. The other three
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`independent claims 2, 14 and 16 only claim the headphone on receiver
`side, and then the dependent claims are largely addressing adding a
`differential phase shift keying limitation into the various independent
`claims.
`So we move on to slide 6. So in the 1638 IPR, slide 7 please,
`there’s one instituted ground and that ground is that claims 1 through 17
`of the 396 patent are unpatentable over One-E-Way’s own prior
`published application, No. 2003-0118196 which we generally refer to as
`the 196 publication.
`So moving on to slide 8, we see here is the 196 publication itself,
`published in June, 2003 and it’s a publication of an application filed in
`December of 2001.
`So moving over to slide 9, this is the priority chain in 396 patent.
`So 396 patent appears at the bottom of the slide and going back through
`five prior applications we then reach the 2001 application which is the
`119 application and published as the 196 publication.
`Now all of these connections are continuations except for the first
`one, and that’s the one that matters for our purposes in this IPR. So the
`2003 application, serial No. 10/648,012 is a CIP, continuation in part, of
`the 2001 application.
`JUDGE WEINSCHENK: Mr. Qualey, does it matter at all that
`when the 012 application was filed that it had an incorrect priority claim
`that they later corrected?
`MR. QUALEY: Are you talking about the typographical error?
`JUDGE WEINSCHENK: Yes.
`MR. QUALEY: No. That’s not the source of our case, no sir.
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`JUDGE WEINSCHENK: Okay. So it doesn’t impact our analysis
`though?
`MR. QUALEY: No. Okay. Moving on to slide 10. So here we
`see the 2001 application. It was filed with the specification obviously
`and three figures. Figure 1 which is relatively similar to the 396 figure 1
`we just looked at, as well as figures 2 and 3 which are block diagrams of
`the transmitter and receiver sides.
`Moving on to slide 11, so the 2001 application was entitled
`Wireless Digital Audio System and it says that the present invention is
`directed to a wireless digital audio system for transmission of a signal for
`an audio player device to a headphone. Now included in the
`specification the 2001 application recited a number of elements that go
`into the wireless digital audio system, including a direct conversion
`receiver, a differential phase shift keying or DPSK transmitter, and a
`decoder is used to reduce intersymbol interference.
`Now after some prior art rejections and responses exchange with
`the examiner, the 2001 application was expressly abandoned when a
`continuation in part application was filed and just prior to that
`abandonment in June of 2003, the 2001 application published as the 196
`publication.
`So moving on to slide 12, here we see the 2003 application which
`is the continuation in part. So it was filed with the specification and two
`figures. Figure 1, which is similar to -- perhaps identical -- to the 2001
`application’s figure 1 and figure 2 which is, it’s set up as a graph.
`Moving on to slide 13. So the 2003 application had a different title.
`It was the Fuzzy Audio Wireless Music System and it included a
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`continuation in part priority claim but no incorporation by reference of
`the 2001 application, and it recites that the present invention is “directed
`to fuzzy audio wireless music systems for coded digital transmission of
`an audio signal from any audio layer device with a headphone jack to a
`receiver headphone using fuzzy logic technology.” Now missing from
`the specification in the 2003 application was any reference to a direct
`conversion receiver, differential phase shift keying or an encoder to be
`used to reduce intersymbol interference. These elements are also not
`inherent in the disclosure of the 2003 specification.
`Now slide 14 shows Petitioner’s Exhibit 1008 and this, while
`obviously the text is too small to read here, it illustrates the changes and
`differences between the 2001 and 2003 specifications. So the black text
`is text that was maintained between the two. The blue text is text that
`was newly added in the 2003 application and the red strike through
`shows material that was included in the 2001 application and then
`omitted from the 2003 application. It says “Concededly the changes
`were extensive.”
`Moving over to slide 15, about a year after the 2003 application
`was filed, One-E-Way began making amendments to the disclosure. So
`these included removing some of the references to fuzzy audio wireless
`music system and fuzzy logic in general, adding figures 2 and 3 from the
`2001 application into the 2003 application, adding a description of a
`direct conversion receiver and adding a description of a differential phase
`shift keying transmitter.
`JUDGE WEINSCHENK: Some of these were from the parent
`application, correct?
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`MR. QUALEY: Some of them were material that was included in
`the parent application.
`JUDGE WEINSCHENK: And the examiner did not object to
`those as being new matter, correct?
`MR. QUALEY: He did not object at the time, no.
`JUDGE WEINSCHENK: Okay. How are we to say that that’s
`improper now?
`MR. QUALEY: Well the question is the examiner never examined
`the legal issue of the fact that the incorporation by reference was missing
`and the DeSeversky case that the priority claim they made is not an
`incorporation by reference of the prior material. So then we’re faced
`with the issue that the examiner never examined the legal ramifications
`of U.S. 35 U.S.C. 132 and its prohibition against new matter in methods.
`JUDGE WEINSCHENK: Do we have anything that tells us that
`adding material from a parent into a child is new matter?
`MR. QUALEY: We have cases that talk about adding material
`from a parent into a child in terms of reissue and reexamination. In both
`cases they said that it was improper because it was a violation.
`JUDGE WEINSCHENK: But do we have anything that talks
`about whether that’s improper if added during prosecution and before the
`patent issues?
`MR. QUALEY: There is not a case that addresses these particular
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`facts.
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`JUDGE WEINSCHENK: Okay. So then how are we to say that
`the examiner was wrong in doing something that doesn’t seem to have
`necessarily been prohibited at the time that he allowed it?
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`MR. QUALEY: Well at the time there was language in the MPEP
`saying that incorporation by references added after the filing date of the
`patent application were new matter and this is effectively what he’s
`allowing them to add material to the patent application, and when we get
`to the next slide he allows them to add an incorporation by reference
`statement which was prohibited.
`JUDGE WEINSCHENK: Does the Patent Owner need to rely on
`the incorporation by reference statement or was the material that they
`needed just added directly into the specification? Because they made
`some other amendments where they actually expressly stated things in
`the specification.
`MR. QUALEY: There are some amendments that they made that
`were directly to the specification. Other things are relying on the
`incorporation by reference statement.
`JUDGE WEINSCHENK: Is there a distinction between those two,
`or are they both improper?
`MR. QUALEY: Really they’re both improper.
`JUDGE WEINSCHENK: Okay. You can continue.
`MR. QUALEY: Okay. Moving on to slide 16. As we see here,
`this where the incorporation by reference statement was added in August
`of 2006. So approximately three years after the application was filed
`they further amended the specification to add an incorporation by
`reference statement.
`JUDGE WEINSCHENK: Was that incorporation by reference
`statement discussed at all by either the Applicant or the examiner during
`prosecution?
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`MR. QUALEY: It was not discussed. So moving on to slide 17,
`this is Petitioner’s Exhibit 1010. It shows the extent of the changes that
`were made between the as filed 2003 application and the as issued 2003
`application. So, again, the text that they were the same is shown in in
`black, the new text is shown in blue, and deleted text is shown in red
`strike through.
`Now, Patent Owner’s position is that all these are allowed because
`of the statement that it was a continuation in part application. But as
`we’ve cited in our papers, there’s a number of other cases that set forth
`principles that do not seem to comport with Patent Owner’s position. So
`first that the disclosure of the as filed specification is what matters, that a
`priority claim is not an incorporation by reference of any material from
`the parent, and that all applications that (indiscernible) already must have
`written disclosures.
`So Patent Owner does cite a number of cases, so we’ll move on to
`slide 19. So one of the primary cases they cite for their position is -- I’m
`not sure how it’s pronounced, I’m not sure if Your Honor has a
`preference -- In re Reiffin.
`JUDGE WEINSCHENK: You may choose.
`MR. QUALEY: So in this case the Federal Circuit rejected to use
`attempt to add material from a parent application during reexamination.
`The patent at issue was a continuation where material present in parent
`application had been omitted from the child application as filed. The
`Federal Circuit rejected the patentee’s attempt to add the omitted material
`back into the specification during reexam. So that’s the holding of the
`Reiffin case. Obviously that doesn’t support Patent Owner’s position.
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`Patent Owner instead seeks to use remarks about what the patentee
`hypothetically could have done during prosecution to support its position.
`JUDGE WEINSCHENK: Doesn’t the Federal Circuit in this
`Reiffin case say,
`“It is true that the statutory prohibition against introducing new
`matter in a patent application does not apply in the limited circumstance
`in which the application incorporates material from an earlier application
`in a chain of copending applications.”
`So doesn’t that address exactly what we have here?
`MR. QUALEY: That statement was made to be supported from
`the Litton case and, as I’ll get to in just a moment, there’s problems with
`that in the Litton case. It doesn’t actually hold that that’s the case.
`JUDGE WEINSCHENK: But if our reviewing court has said that,
`whether we disagree with them or not, shouldn’t we follow what they
`have said?
`MR. QUALEY: Well the Reiffin case is also non-precedential and
`the statement you’re referring to is dicta, it wasn’t necessary for the
`holding and it’s also a problem in that they don’t ever grapple with the
`issue of how to reconcile the new matter prohibition in the reissue statute
`with the new matter prohibition in Section 132.
`JUDGE MCKONE: Counselor, is it your argument that the Litton
`case contradicts Reiffin or that it just doesn’t provide enough support for
`the positive statement in Reiffin?
`MR. QUALEY: It’s that it doesn’t provide support for the positive
`statement in Reiffin.
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`JUDGE MCKONE: So if we were to follow what you say is dicta
`in Reiffin, we wouldn’t be contradicting Federal Circuit precedential
`decision in Litton, correct?
`MR. QUALEY: No. It does not contradict --
`JUDGE MCKONE: No, I’m not correct or no, (indiscernible.)
`MR. QUALEY: I’m sorry, I’m sorry. It does not contradict Litton
`because Litton -- the holding in Litton is actually dependent on the fact
`that the applicant conceded that what they were adding was new matter,
`so again all of the discussion in Litton about adding material from parent
`applications is dicta.
`JUDGE WEINSCHENK: But if the most on point thing we have
`here, even though it’s dicta in a non-precedential opinion, but that’s the
`most on point statement we have from our reviewing court, why
`shouldn’t we follow that?
`MR. QUALEY: Well the problem is there’s also statements from
`the reviewing court that contradict this, the DeSeversky case says an
`incorporation by reference is not a -- I’m sorry, got it backwards. The
`DeSeversky case says that a priority claim is not an incorporation by
`reference. It goes on to say that the disclosure must be present in both
`applications.
`JUDGE WEINSCHENK: Yes. But here we do have an
`incorporation by reference statement. It just happens to have been added
`after the filing date. It’s still in the patent as issued.
`MR. QUALEY: It is in the patent as issued, but it was added three
`years after the filing date which presents a number of problems when
`you’re dealing with the disclosure of the patent because the patent’s
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`filing date is assumed to be the presumed invention date as well as the
`reduction of practice date. But here we have a patent filed in 2003 that’s
`missing certain elements that are in the claims and the 2001 filing is also
`missing certain elements that are present in the claims. In particular --
`JUDGE MCKONE: Isn’t that between the examiner and the
`applicant to sort that out since this is all pre-issuance?
`MR. QUALEY: It was pre-issuance --
`JUDGE MCKONE: Two years or three years?
`MR. QUALEY: It’s pre-issuance but the problem is that there was
`no -- when is the date for the complete invention of the 396 claims,
`because the 396 claims we have them reciting a direct conversion
`receiver, the DPSK transmitter, and this reduced intersymbol interference
`limitation. That’s not present in the 2003 application as filed. It’s only
`present in the 2001 application. But the other problem is --
`JUDGE MCKONE: But it would be present in the 2003
`application if the incorporation by reference was proper, correct?
`MR. QUALEY: Not at the time of filing. I’m speaking at the time
`of filing is when the presumed invention date and the presumed reduction
`of practice date occurs. So at that time that incorporation by reference
`wasn’t there. So we’re left with the problem of what becomes the
`presumed invention date or the presumed reduction of practice date and
`this is important because what the 2003 application has is disclosure of
`the use of packets which is not present in the 2001 application. So the
`396 claims essentially have elements that are present in the 2001 but not
`in the 2003 as filed, but it also has elements that are present in the 2003
`as filed that were never present in the 2001. So we’re left –
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`JUDGE MCKONE: No. The Patent Office, at least the current
`version of the Patent Office rules -- and I’m talking about 37 CFR 1.57, I
`believe it is (b), that’s it, yeah, (b) -- does at least seem to have some
`provisions for considering an incorporation by reference that was omitted
`inadvertently by, in certain circumstances, deeming a priority claim to be
`an incorporation by reference if you follow certain procedures afterward.
`So it seems like at least the most recent version of the rules contemplate
`amending an incorporation by reference after filing.
`Has anybody done any research to find out what the rules were,
`you know, and my understanding is that this rule came about part way
`through the prosecution of the patent in suit. Has anybody done any
`research to figure out what the rules were prior to that?
`MR. QUALEY: My understanding is that there was no such rule
`prior to that and that rule comes into effect -- I’m afraid I don’t have it in
`front of me -- but the rule comes into effect for applications filed after a
`certain date which does not apply here.
`JUDGE MCKONE: But at least it looks like the Patent Office is
`not reading the statute to prohibit a later filed amendment that amends an
`incorporation by reference. Do you agree with that?
`MR. QUALEY: Under the circumstances laid out in that rule in
`particular, yes.
`JUDGE MCKONE: And since we’re looking at an application that
`was filed before that rule came about, what would prohibit the examiner
`from allowing an amendment to the incorporation by reference at that
`time?
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`MR. QUALEY: Well at that time we had the statute. We did not
`have this new rule and more importantly we had no evidence that the
`failure to include the incorporation by reference was inadvertent.
`JUDGE MCKONE: But as far as the statute is concerned, the
`Patent Office has interpreted the statute to allow an amendment to an
`incorporation by reference. So if the statute allows it now, why would it
`have prohibited it before the rule?
`MR. QUALEY: Well for one thing because the rule didn’t exist,
`so the rule is an interpretation of a statute that was entered later and it’s
`only entered in the case of certain circumstances applying to inadvertent
`omissions.
`JUDGE MCKONE: Why shouldn’t we interpret the statute as
`allowing it before the rule? I mean the statute hasn’t changed.
`MR. QUALEY: Correct. But the interpretation of the statute was
`changed by the Patent Office in that particular case, but only applying to
`inadvertent changes.
`JUDGE MCKONE: Was the interpretation changed or just --
`you’re implying that the interpretation prior to the rule was that these
`type of amendments were prohibited. What is the evidence of that?
`MR. QUALEY: I didn’t mean to imply that there was a change in
`the interpretation. It was just that that was the first time the interpretation
`was applied.
`JUDGE MCKONE: I mean in this case why don’t you assume that
`the examiner implicitly implied that interpretation?
`MR. QUALEY: Because we were forced to follow what we have
`in the written record and there’s no indication that the examiner reviewed
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`Case IPR2016-01639 (Patent 9,282,396 B2)
`that issue. I mean it repeatedly seems to have believed that the
`incorporation by reference already existed.
`JUDGE MCKONE: And whose burden is it here to show that the
`examiner made a mistake?
`MR. QUALEY: I don’t know there’s a burden to show that the
`examiner made a mistake, but the case law is that it’s the burden on the
`Patent Owner to show entitlement to a priority date.
`JUDGE WEINSCHENK: But isn’t it your burden to establish that
`what you’ve alleged is prior art actually is prior art?
`MR. QUALEY: Well it’s our burden to make a prima facie case
`which the prior art is obviously 102(b) art to the original filing date of the
`396 patent.
`JUDGE WEINSCHENK: So don’t you bear the ultimate burden
`of persuasion on whether something’s prior art, not the Patent Owner?
`MR. QUALEY: The Patent Owner bears the burden on
`establishing the entitlement to a priority date.
`JUDGE MCKONE: And then how does that interpret -- your
`interpretation there square with the Dynamic Drinkware case?
`MR. QUALEY: Excuse me?
`JUDGE MCKONE: Then how does that statement you just made
`square with the Dynamic Drinkware case? I thought that that case
`established that the Patent Owner had a burden of production to show
`entitlement to an earlier priority date, but the ultimate burden of
`persuasion remained on Petitioner. Am I incorrect in the reading of that
`case?
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`MR. QUALEY: Your phraseology -- maybe I misspoke? I think
`your phraseology is probably correct. But the burden shifts back and
`forth as the -- once Petitioner comes forth with an intervening piece of
`prior art, the ultimate burden of proving validity is obviously on
`Petitioner.
`JUDGE MCKONE: One way to look at this case is that the
`examiner considered and allowed amendment to the incorporation by
`reference and nothing in the statute prohibited the examiner from doing
`so. Patent Owner has produced evidence that it’s entitled to an earlier
`priority date, namely the prosecution history. Why is it not your burden
`to prove then the burden of persuasion that the examiner made an error?
`MR. QUALEY: Well I don’t know that that’s how the burden is
`shifted but I think we have shown that the case law that Petitioner cited
`doesn’t support it and there’s case law that we cited, the DeSeversky
`case, Zenon, and some of these other ones that show that this priority
`claim is not an incorporation by reference, and how is it that what is not
`an incorporation by reference, how do we treat that differently under
`reissue as opposed to under regular prosecution when the statute in both
`cases prohibits the addition of new matter?
`JUDGE WEINSCHENK: Isn’t the whole purpose here of new
`matter just to determine whether the inventor was in possession of what’s
`being claimed as of the filing date sought, and so here if we look at the
`matter that’s being incorporated from the parent is there any question that
`the inventor was in possession of that invention as of the 2001 date
`because it’s disclosed in the parent, that merely bringing that into a later
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`application, why shouldn’t they get the filing date of 2001 for the stuff
`that was in that application?
`MR. QUALEY: Well there’s two issues. To get entitlement to a
`priority date, you have to show that you just had possession of all the
`claim limitations. It’s not a big issue in the papers but in our petition it is
`noted that the 2001 application does not disclose packets. That’s only
`disclosed in the 2003 application. That’s why we’re making an
`obviousness case here, not an anticipation based on the 196 publication.
`So in fact there is no -- that is what I was alluding to earlier is that right
`now we don’t have a fixed date when the entire invention was disclosed
`unless you start paging through the 2003 application and figure out when
`these various elements were added into that application, because it’s only
`when those elements are added together to the disclosure of packets in
`the 2003 application do we actually get a full disclosure of the claims of
`the 396 patent.
`JUDGE WEINSCHENK: Is the packet requirement in every
`challenged claim?
`MR. QUALEY: Yes.
`JUDGE WEINSCHENK: Did you make the argument that the 396
`patent isn’t entitled to claim priority all the way back to the 2001
`application because it doesn’t disclose packets?
`MR. QUALEY: That’s not part of our argument. Well indirectly
`yes, but it’s not the focus of the argument. Before I run out of time here
`too much, if you don’t mind I’d like to move on to a few other items.
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`So we go to the next slide. This is the Litton case. I think we
`already talked about this a little bit but Litton involves a different set of
`facts here.
`JUDGE WEINSCHENK: Do you mind if I interrupt you and
`actually in your remaining time turn you to the 1639 case for a bit?
`MR. QUALEY: Okay, if you prefer.
`JUDGE WEINSCHENK: Yes. I have some questions about that
`one. If you have more time you can come back to discussing these cases,
`but there’s at least a few things I’d like to chat with you about in the 1639
`case.
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`MR. QUALEY: Sure. Do you want me to start or (indiscernible) -
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`JUDGE WEINSCHENK: No. I can start for you actually. So one
`of the questions I had for you is, you know, we do have different
`disclosures that you’re pulling from what I’ll refer to as the Haartsen
`patent and then also from the 1998 paper and one of the questions I had
`for you is what evidence do we have that the transmitter that’s disclosed
`in the 1998 paper uses the differential phase shift keying or DPSK that’s
`in the Haartsen patent? How do we know that the transmitter in that
`paper is using the DPSK?
`MR. QUALEY: Well the transmitter in the paper is not using the
`DPSK at the time because it was previous to the 892 patent. So what is
`happening in the 892 patent is Haartsen, the author of the 1998 paper, is
`saying here I’ve come up with some potential improvement techniques
`that can be used with Bluetooth to overcome what he refers to as the
`“slowly varying disturbances” that can interfere with the signal.
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`Case IPR2016-01638 (Patent 9,282,396 B2)
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`So what he’s saying in the 1998 paper is these are techniques that
`are useful to produce for Bluetooth and then he talks about how DPSK
`and DFSK can help resolve some of these issues with slowly varying
`disturbances.
`JUDGE WEINSCHENK: So I think I understand your declarant
`saying that this invention in the Haartsen patent is broader than just
`Bluetooth. Do you agree with that?
`MR. QUALEY: Well the invention can be applied to a number of
`systems, correct.
`JUDGE WEINSCHENK: Right.
`MR. QUALEY: That’s what it says in the 892 patent. It says he
`used this with various kinds of wireless systems and then he uses
`Bluetooth as a specific example of such system.
`JUDGE WEINSCHENK: Right. I guess my question for you is
`how do we connect? How do we know that the DPSK -- because they
`also disclose other types of modulation and encoding in the Haartsen
`patent -- how do we know that the DPSK is supposed to be used with
`Bluetooth? Is there some explicit disclosure or is there some leap being
`made there and the reason I ask is because this is an anticipation ground
`and not an obviousness ground. Is there some disclosure in there that
`connects DPSK to Bluetooth?
`MR. QUALEY: It says, so I’ve jumped here to slide 40, and it
`talks about --
`JUDGE WEINSCHENK: Just want to make sure you’re speaking
`into the microphone so that they can hear you.
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`MR. QUALEY: Sorry. It talks about how the techniques are
`useful with the Bluetooth invention, I’m sorry not the Bluetooth
`invention, the Bluetooth system. Wait,
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