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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`
`KAPSCH TRAFFICCOM IVHS INC.,
`Petitioner,
`
`v.
`
`NEOLOGY, INC.,
`Patent Owner.
`_____________
`
`
`Case IPR2016-01763
`Patent 8,944,337 B2
`
`____________
`
`Record of Oral Hearing
`Held: January 12, 2018
`____________
`
`
`
`
`
`
`Before JUSTIN T. ARBES, TREVOR M. JEFFERSON, and CHRISTA
`P. ZADO, Administrative Patent Judges.
`
`
`
`
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`Case IPR2016-01763
`Patent 8,944,337 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ANDERS P. FJELLSTEDT, ESQUIRE
`NATHAN S. MAMMEN, ESQUIRE
`Kirkland & Ellis LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`VICTOR M. FELIX, ESQUIRE
`NOEL C. GILLESPIE, ESQUIRE
`Procopio, Cory, Hargreaves & Savitch
`525 B Street
`Suite 2200
`San Diego, CA 92210
`
`
`
`
`
`The above-entitled matter came on for hearing on Friday, January
`12, 2018, at 1:07 p.m., at the U.S. Patent and Trademark Office, Madison
`Building East, 600 Delany Street, Alexandria, Virginia, before Chris
`Hofer, Notary Public.
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`Case IPR2016-01763
`Patent 8,944,337 B2
`P R O C E E D I N G S
`- - - - -
`JUDGE ARBES: Hello everyone. This is the oral hearing in Case
`IPR2016-01763 involving Patent 8,944,337. Can counsel please state
`your names for the record?
`MR. FJELLSTEDT: Anders Fjellstedt on behalf of Kapsch
`Trafficcom.
`MR. FELIX: Victor Felix, Procopio, Cory, Hargreaves & Savitch
`on behalf of the Patent Owner. With me is Noel Gillespie.
`JUDGE ARBES: Thank you. Per the Trial Hearing Order in this
`case, each party will have 60 minutes of time to present arguments.
`Petitioner will argue first. Both parties may reserve rebuttal time.
`A few reminders before we begin. One, to ensure that the
`transcript is clear and because we have one judge participating remotely,
`please only speak at the podium and please try to refer to your
`demonstratives by slide number. Also, if either party believes that the
`other party is presenting an improper argument in some way, I would ask
`you to please raise that in your own presentation rather than interrupting
`the other side. Any questions from either party before we begin?
`MR. FJELLSTEDT: Your Honor, I have a question. I have our
`copies of (indiscernible.)
`JUDGE ARBES: That would be fine, yes.
`MR. FELIX: We likewise have copies if that would be fine.
`JUDGE ARBES: Please.
`JUDGE JEFFERSON: Please.
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`Patent 8,944,337 B2
`JUDGE ARBES: Counsel for Petitioner, you may begin and
`would you like to reserve time for rebuttal?
`MR. FJELLSTEDT: Yes, Your Honor. Based on a review of
`Patent Owner’s slides, it looks like they’re going to be emphasizing the
`Motion to Amend a little bit more so we’d like to reserve 30 minutes for
`rebuttal.
`JUDGE ARBES: All right. You may begin.
`MR. FJELLSTEDT: So, again, I’m Anders Fjellstedt on behalf of
`Kapsch, the Petitioner, and from Kirkland Ellis here with me is my
`colleague, Nathan Mammen. He was prepared to address the parties
`pending motion should the Board have any questions about those and
`also with us is our colleague law clerk and law student, Matt McIntee.
`Before we get into the issues at hand, I’d like to first do a quick
`refresh on the ’337 patent and this is slide 3 from our demonstratives, and
`what it has on it it has claim 1 from the original claims of the ’337 patent
`and then figures 2A through 2C and then also 9A, and regarding figures
`2A and 2B those show kind of seminal components of the claimed
`invention. The item labeled 220 is the RF module. The item labeled 210
`is referred to as the booster antenna and when the RF module is in the
`center position referred to as in the coupling region of the booster
`antenna, that’s when it’s coupled, energy is mostly transferred from the
`booster antenna to the RF module. And what means is this is a passive
`RFID tag. So as it receives an RF signal and then the energy’s captured
`by the booster antenna and then in one case transferred through a
`capacitive coupling to that RF module, the RF module contains a chip
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`Patent 8,944,337 B2
`and that modulates the back scattering of the energy to identify whatever
`the item is.
`Then the ’337 patent describes how when the RF module is moved
`away from that region, for example to the position in figure 2B, it’s
`decoupled deactivated, all the terms that you’ll see in the detuned
`position, et cetera, so that the read range is decreased for that apparatus.
`So that’s the essence of the claimed invention. Those are the
`components.
`There’s one more component that is generally not pictured or
`actually never pictured in the actual ’337 patent but it’s noted, and that’s
`the third element of claim 1. So we’ve covered the booster antenna up
`top, the RF module is the second element, and the third element is the
`switching mechanism and the switching mechanism is what then moves
`the RF module between, for example, the position shown in figure 2A
`and then moves it to the position shown in figure 2B. This arrangement
`was anticipated. The prior art discloses RF modules that can be
`selectively coupled and decoupled from a booster antenna to activate and
`deactivate the mechanism.
`So the general arguments for the original claims, and we’re going
`to show this is Neology slide 3. So Neology slide 3 summarizes what, at
`least Neology used to be, their arguments for patentability and they’re
`really only two flavors. First, regarding claims 1 through 6, that’s
`anticipation by Atherton, Neology only argues that Atherton does not
`disclose the switching mechanism and that switching mechanism that
`Neology argues is strictly Neology’s proposed construction for switching
`mechanisms. Neology does not contest patentability of claims 1 through
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`Case IPR2016-01763
`Patent 8,944,337 B2
`6 under the Board’s construction for switching mechanisms. So if the
`Board adheres to its construction for switching mechanisms, that’s the
`end of the story for claims 1 through 6.
`Regarding claims 7 through 9, there’s a similar argument about the
`switching mechanism, but also that -- this is another flavor of Neology’s
`argument -- that modifying Atherton’s folding tag and we’ll take a look
`at the art in a second, but it is the one with a folding feature, into a slider
`is impermissible and Neology applies a misreading of the Plas-Pak case
`and that’s really the only argument for patentability other than the
`switching mechanism.
`So the other point I want to emphasize before we get started is
`even under Neology’s proposed construction for switching mechanisms,
`the actual words that Neology has proposed for that construction, when
`you look at those words and you look at Atherton, Atherton still
`anticipates. Neology’s arguments are not only strictly relegated to its
`own proposed construction but to its secondary interpretation of its own
`construction.
`Turning to the proposed claims, Neology’s proposed claims recite
`features generally related to shielding of the RF module to further isolate
`it when in deactivated position and that’s shown in figure 2B, for
`example, the RF module is supposed to be disposed entirely behind a
`conductive trace of the booster antenna. Now Atherton and Roesner,
`which were in the initial petition, those two references alone render
`obvious all proposed claims 10 through 18. Roesner teaches a shielding
`to deactivate an RFID tag and you combine that with Atherton and you
`have the proposed claims.
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`Now you also hear a lot about the Artigue reference. It’s a
`fantastic reference for us. It’s spot on in teachings of shielding an RF
`module with a booster antenna and it really puts the nail in the coffin of
`the proposed claims, but Artigue is not necessary. Roesner and Atherton
`alone render obvious all of the proposed claims, and in addition we’ll
`also be talking about the 112 bases of unpatentability for these proposed
`claims. The distinction is that Neology attempts to over the prior art, or
`just not supported by the ‘337 patent’s disclosure and the performance
`characteristics that are argued, not claimed, but argued are just simply
`possible.
`So I’d like to then look at the prior art. This is slide 5 of our
`demonstratives and it shows the Atherton reference. So the Atherton
`reference has, and it’s as annotated, so the green region in figure 1A of
`Atherton reference that is what we refer to as the RF module. It has the
`chip which is right there, then the conductive traces right there, and then
`on the right hand side region 2 of Atherton there’s the conductive traces
`that combines the booster antenna. So you take in this case region 2 and
`you can fold it over on to region 1 and then you bring the pads shown as
`105 in figure 1A and the pads shown here as they’re part of 107, bring
`those closer together, there’s a capacitive coupling, it then transfers the
`energy across dielectric and uses that booster antenna to enhance the read
`range of the RF module.
`Now Atherton is not a one off. It’s not as if that is the only
`concept of a RF module and a booster antenna coupled together in the
`prior art, and I want to look at some of the state of the art at the time.
`Now the Kubo reference, this is referred to also for the sliding
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`Patent 8,944,337 B2
`mechanism. It was part of the petition but not an instituted ground but is
`the state of the art, and it also shows you can see on the right hand side,
`this is slide 6, on the right hand side of figure 6A it has again a chip, has
`a conductive trace attached to it, and then there’s an antenna off to the
`left and when that antenna is brought close, this is at the bottom of slide
`6, is brought close to the RF module it then transmits when it is taken
`away from the RF module so it’s decoupled, it no longer transmits. Just
`generally the same concept.
`I don’t want to spend too much on time on this but the Janke
`reference, which again is also a part of the state of the art, also part of the
`original petition and part of the instituted grounds to the teaching of a
`slider. This has the similar kind of operation where it has an antenna, this
`is slide 7 of the demonstratives, has an antenna shown as No. 5 and has
`an RF module which is a chip 10 and its conductive traces emanating
`from it, and when those are put in the right orientation they’re coupled
`and the chip can be read.
`This concept of having an RF module and an antenna selectively
`couplable and uncouplable in order to activate and deactivate an RFID
`tag is just intrinsic to a lot of the RF in RFID tags in this sense. That’s
`how they’re made. In slide 8 we have two references that were noted as
`being part of the background in the prior art. We have the Armijo
`reference, that’s Exhibit 1016, and the Green reference, that’s Exhibit
`1017. As shown in what we have in demonstrative 8, in the upper left
`there’s the Armijo. This is a web here where the RF module is
`essentially printed on to this web in mass production and the RF module
`includes again the integrated circuit aka chip conductive trace. Then
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`there’s the antenna web that’s figure 4 and these are again mass produced
`so you produce the antenna. This is what a person of skill in the art
`would have known at the time. You have antennas, you have RF
`modules and in this case they may be permanently affixed together, but
`those components existing separately were well known to a person of
`skill in the art as we should show with the prior references, selective
`activation and deactivation, was also well known.
`JUDGE ARBES: Counsel, I see what you’re saying about these
`references but what is the relevance of these references to the anticipation
`ground?
`MR. FJELLSTEDT: Just background in terms of the anticipation
`ground, it’s just background to show that Atherton’s not just like a one
`off we happened to find one idea where somebody else had an RF
`module and booster antenna that could be brought together.
`JUDGE ARBES: But that doesn’t impact our analysis of whether
`Atherton actually has a switching mechanism or not?
`MR. FJELLSTEDT: Not for the analysis of switching mechanism,
`
`no.
`
`JUDGE ARBES: Okay.
`MR. FJELLSTEDT: The next --
`JUDGE ZADO: Well let’s take a step back from switching
`mechanism and I believe my colleague’s point was that at least for claims
`1 through 6 we have a 102 ground so it’s anticipation, and so I think the
`question is for anticipation what do these references about the state of the
`art -- how do they bear on our analysis under 102?
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`MR. FJELLSTEDT: For the analysis under 102 it’s not necessary
`to find anything about the background art. This is once we get into the
`concept of the modifications for the obviousness grounds. So moving on
`to the Roesner reference, I’m going to show a figure on slide 10, and the
`Roesner reference is used as a secondary reference and in the original
`petition it was for modifying Atherton to include a slider and then also
`for visual indicators. The visual indicator claims are 8 and 9. Those are
`really not disputed in and of themselves as being a particularly inventive
`feature. In the briefing you’ll see that. But claim 7 is the slider claim
`and that is one that Neology does dispute.
`So Roesner actually teaches both a folding embodiment that’s
`shown in the upper left, and a sliding embodiment, the exact same
`structure of RFID components and what Roesner says is you can have
`them fold and pointing toward the fold line of this embodiment where
`this region would be folded over so that this blue metal strip would then
`deactivate the RFID tag or it could be slid, such that it comes into that
`position, and Roesner teaches this interchangeability.
`There’s another teaching in Roesner that’s relevant to the proposed
`amended claims and that’s shown on the right hand slide of slide 10 and
`that’s the shielding embodiment of Roesner. Roesner also teaches that
`you can deactivate and activate an RFID tag by shielding the RFID tag
`with this large conductive plate, numeral 210, here.
`The final piece of prior art that I’d like to look at before we get
`into the issues is the Artigue reference. Now as I mentioned, Artigue is a
`fantastic reference for teaching a booster antenna that can shield an RF
`module corresponding to the substantive revisions of the proposed
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`amended claims. But Artigue is not necessary for that teaching. Roesner
`can cover that.
`So slide 13 shows the original claims 1 through 9 and I’ve
`highlighted the disputed issues. The switching mechanism in claim 1, the
`slider in claim 7. Slides 14, 15 and 16 actually are tables of the parties
`and the Board’s claim construction positions. There are mostly for the
`Board’s convenience to kind of put them all together in one place. It
`does capture the fact that Neology had an originally proposed
`construction for switching mechanism which it has since abandoned. It is
`now proposing a new one.
`Slide 17 shows -- we’ll walk through this one -- shows Atherton
`and how it anticipates the original claims 1 through 6. So Neology’s only
`dispute with regards to that anticipation is the switching mechanism. So
`let’s look at Neology’s definition of switching mechanism and this is
`Neology’s currently proposed definition,
`“An assembly of moving parts performing the functional motion of
`making or breaking a circuit.”
`And then on the right we have figures excerpted from Atherton.
`So on the top figure it shows the integrated circuit and the traces attached
`to a substrate 103. So right there we have an assembly of parts. On the
`right hand side region 2 of Atherton we have the conductive traces 107
`and the substrate 103 again. We have parts. So we have an assembly of
`parts. Now let’s make them moving. So --
`JUDGE ARBES: Counsel, before you get into that can I ask a
`question? One concern I have with what you’re arguing here is that
`switching mechanism is a separately recited limitation of the claim. So
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`you have a booster antenna and the RF module comprising an integrated
`circuit and a set of one or more conductive traces. It seems like what
`you’re arguing here is the integrated circuit and the conductive traces are
`the assembly, right, but they can’t be the exact same thing as the
`switching mechanism itself, right?
`MR. FJELLSTEDT: And so the assembly includes also a fold line
`which Atherton discloses as it can include perforations and things but
`then also made it fold it. So it’s essentially a hinge right there at 101
`shows that as well.
`JUDGE ARBES: Is it a hinge though or is it just one layer that
`folds? You have the layer, is there any sort of mechanical structure in
`addition to that or does it just fold over?
`MR. FJELLSTEDT: It has here it’s depicted as being a fold line
`but I think it’s -- let me get the right side for you -- but it is disclosed as
`having other methods of attaching the two regions together although not
`illustrated in the figures.
`JUDGE ARBES: Okay. Perhaps if you could point us to that we
`can discuss that.
`MR. FJELLSTEDT: So here’s an example, Your Honor. This is
`Exhibit 1006 and this is Atherton and this is page 7 of 21 according to the
`stamping and it says line 19, “The RFID tag antenna designs . . .
`different from those described in relation to figure 1 or may be
`employed,” and the next line 21, “Different methods may be used to
`attach region 1 of the RFID tag to attach region 2 thus the region 2,
`region 1” --
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`JUDGE ZADO: I’m sorry. Being remote it’s difficult for me to
`hear. Which page of Atherton are you looking at?
`MR. FJELLSTEDT: So this is Atherton page 7 of 21 and so the
`stamping at the bottom is the page number to look at.
`JUDGE ZADO: Okay. And which line are you at?
`MR. FJELLSTEDT: This is line 21.
`JUDGE ZADO: Thank you.
`MR. FJELLSTEDT: It says “Different methods may be used to
`attach region 2 of the RFID tag 100 or 300 to region 1 of the RFID tag to
`enable the RFID function of the tag.”
`JUDGE ARBES: But it doesn’t say what those methods are. It
`doesn’t say you could use a hinge or some sort of other structure.
`MR. FJELLSTEDT: It doesn’t use the word hinge. It depicts a
`fold line and says there can be other methods as well.
`JUDGE ARBES: What is the fold line exactly in your view?
`MR. FJELLSTEDT: The fold line, so this is page 5 of the
`Atherton reference, Exhibit 1006, and this is how Atherton describes the
`fold line. This is line 24, it says,
`“The substrate is flexible along the fold line 101 to provide for
`folding.”
`And then it describes how that’s made to happen. It says on lines
`34 in that region,
`“The tag substrate 103 may be perforated or modified in some way
`along the fold line so as to promote folding along the fold line 101,” and
`the then the rest I guess is the attachment to the source.
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`JUDGE ARBES: What is that? I understand perforation, what
`does it mean, in your view, modified in some other way along the fold
`line?
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`MR. FJELLSTEDT: It definitely could include an hinge. That’s
`the meaning.
`JUDGE ARBES: Okay. And that’s how you believe a person of
`ordinary skill in the art would understand that?
`MR. FJELLSTEDT: Yes, Your Honor, yes.
`JUDGE ARBES: Okay.
`JUDGE ZADO: The Patent Owner has a definition from a
`dictionary of the word mechanism and it’s a plain and ordinary meaning
`from Mr. Fischer and the definition here we have is an assembly of
`moving parts performing a complete functional motion. What’s
`Petitioner’s view on this dictionary definition of mechanism?
`MR. FJELLSTEDT: So the dictionary definition itself is a
`concatenation of kind of improper source for this line of construction and
`we shouldn’t even get there in the first place because the ‘337 patent
`specifically describes what the switching mechanism is and the actual
`definition that was taken from the dictionary, Neology looked for
`definitions of switch, looked for definitions of mechanism, found the
`definitions that they liked, took parts of those definitions that they liked
`and then put them together in a way that they liked and while we don’t
`think that a dictionary is necessary to define switching mechanism given
`the strong intrinsic evidence, we also looked up switching mechanism.
`We looked up switching mechanism as a term that exists, thought that
`that would be a good place to go and then also looked it up in an
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`electronics dictionary and it is not so narrow as what Neology has
`concatenated, and we have that definition. That’s on paper 16, page 3
`and so --
`JUDGE ZADO: And I’ve seen that definition so I understand that
`it’s Petitioner’s position, like the first question I have, is switching
`mechanism defined in the patent and has a special meaning or should we
`just interpret it or assign it it’s plain and ordinary meaning?
`MR. FJELLSTEDT: It does have a special meaning. Switching
`mechanism does have a special meaning in the ‘337 patent. The Board
`recognized that in its preliminary construction and construed it correctly
`and so --
`JUDGE ZADO: Well we didn’t necessarily construe it to be the
`patentee is acting as a lexicographer, rather we were indicating that it was
`at least broad enough to encompass what had been disclosed in the
`specification.
`MR. FJELLSTEDT: Right.
`JUDGE ZADO: Just wanted to clarify that.
`MR. FJELLSTEDT: Thank you. And if we look at -- this is
`actually, Neology will show you the same slide.
`JUDGE ZADO: Well I asked that question because Petitioner also
`proffers the dictionary definition of switching mechanism and so if we
`were to say that the patentee defined the term, why would we even look
`at a dictionary definition?
`MR. FJELLSTEDT: Your Honor, I entirely agree that there is no
`reason to look at the dictionary definition. The patent does define the
`term and that is what Petitioner has argued, that the patent defines the
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`Case IPR2016-01763
`Patent 8,944,337 B2
`term and the meaning of switching mechanism was properly construed in
`the preliminary construction, and we offered the dictionary definition to
`just show how Neology is picking and choosing has kind of led it down
`this incorrect path towards its construction.
`The broadest reasonable construction of the switching mechanism
`is given by, for example, this passage right here that I have shown and if
`you’d like I can continue on with (indiscernible.)
`JUDGE ARBES: Do you believe that this passage constitutes an
`explicit definition of the term switching mechanism?
`MR. FJELLSTEDT: Yes, Your Honor.
`JUDGE ARBES: And is it defining switching mechanism or
`mechanism because --
`MR. FJELLSTEDT: Defining switching mechanism and --
`JUDGE ARBES: But it does not use that term, right?
`MR. FJELLSTEDT: The term switching mechanism itself only
`occurs in the claims and then in the summary of the embodiments which
`is basically the recitation of the claims. So --
`JUDGE ARBES: Usually when we’re looking for a lexicographic
`definition it’s this term means X, but here we don’t have something like
`that, right?
`MR. FJELLSTEDT: The phrase switching mechanism means X,
`Your Honor, you’re right. That is not in the ‘337 patent. What it does is
`it shows examples of the switching mechanism, and this paragraph here
`in particular is a good one.
`First of all, Neology originally agreed that the ‘337 patent defined
`switching mechanism. I would like to then remind us of the original
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`Case IPR2016-01763
`Patent 8,944,337 B2
`proposed construction that Neology had for switching mechanism where
`Neology -- this is slide 14 of the demonstratives showing the switching
`mechanism constructions. Neology’s original construction was mostly a
`verbatim quote from the ‘337 patent, but a mechanism comprising a
`lever, switch, knob, slider, rotatable member or similar mechanical
`structure, but then Neology appended this other part, with discreet
`positions that does not have any support in the ‘337 patent.
`Neology’s now coming back with this new definition. So at least
`the pre-institution Neology agreed that the ‘337 patent does define
`switching mechanism. The current Neology position is that it does not,
`and Neology attempts to walk away from that definition of switching
`mechanism and the ‘337 patent’s intrinsic definition of it, and this is
`again slide 4 of Neology’s presentation. We have a very similar one.
`But the point that Neology is attempting to make with this passage right
`here is that this passage only defines mechanism, some broad
`mechanism, and really this passage is a tail of two mechanisms. There’s
`some underlying switching mechanism that’s within this passage, but this
`is broadly talking about mechanism.
`The issue is that it starts with a mechanism and then it says, “is
`provided for selectively altering the relative position of RF module 220
`and the booster antenna 210.” Neology argues that this occurrence of
`switch found on line 34, that’s a unique interpretation of switching
`mechanism, but it’s not. This switch, lever, knob, slider, rotatable
`member, those can all be switching mechanisms and one give away of
`that is the fact that a slider, according to claim 7, is a switching
`mechanism. So to the extent Neology tries to delineate between this
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`Case IPR2016-01763
`Patent 8,944,337 B2
`switch, which is highlighted here, and the slider, which it has not, as
`being switching mechanisms, it has not to this day reconciled that issue.
`And so the description of mechanism at the top is the switching
`mechanism.
`JUDGE ARBES: But counsel, I’m looking at the last sentence
`here, and if we have a sentence like this that says the mechanism may
`include certain things, may include a switch, I guess I’m having trouble
`reading that as a definition of the term switching mechanism when it says
`include.
`MR. FJELLSTEDT: So the definition is the top line. A
`mechanism provided for selectively altering a relative position of the RF
`module 220 and the booster antenna. These are examples of it down here
`at the bottom of the passage but the definition is up top, and it refers to its
`antecedent basis in that final phrase. It says the mechanism. It’s not
`again talking about a mechanism, it’s talking about the mechanism which
`it provided at the beginning of the passage.
`JUDGE ZADO: Well let me ask you this then, because we have
`this language saying the mechanism may include and at least can we
`establish that Petitioner does not dispute that this listing here of switch,
`lever, knob, slider, rotatable member or any other device or a
`construction which serves this purpose, that the term mechanism at least
`encompasses those things?
`MR. FJELLSTEDT: So, and I may have --
`JUDGE ZADO: I’m trying to figure out is that in dispute because,
`you now, setting aside whether or not the patentee was acting as its own
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`Case IPR2016-01763
`Patent 8,944,337 B2
`lexicographer the term mechanism has to at least include these things that
`are listed; is that correct? Can we read that out of the claim language?
`MR. FJELLSTEDT: So if I understand the question and pardon
`me if I don’t, but a switching mechanism can be a switch --
`JUDGE ZADO: I didn’t say switching mechanism. The
`description of mechanism here, the mechanism may include and there’s a
`list of what may be included, and I’m just trying to establish setting aside
`whether or not this is a definition of the word mechanism, that we cannot
`exclude these things listed from being within the scope of the term
`mechanism; isn’t that right?
`MR. FJELLSTEDT: It has to be at least broad enough to include
`them. Is that --
`JUDGE ZADO: Yes. I mean my follow-up question though, and
`this is what is perhaps the issue, is not whether a mechanism has to
`include these things but the issue seems to be that if we’re going to go
`down the path and if it’s Petitioner’s position that this here is the
`definition that the patentee’s acting as a lexicographer, how on earth do
`we determine -- we have may include and then things are listed, how on
`earth would this definition tell us whether other things -- the words may
`include you just indicated means other things in addition to this list could
`be within the scope of mechanism, then that’s not defined here. There’s
`no listing of other things beyond what’s listed switch, lever, knob, slider,
`rotatable member, or any other device or construction that serves this
`purpose. So if we were to construe this term in a way that if we were to
`agree that the patentee was acting as its own lexicographer, wouldn’t the
`definition be limited to the things listed here?
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`MR. FJELLSTEDT: So I think I may be realizing I might have
`communicated a misunderstanding. So the ‘337 patent does explain
`switching mechanism and provides intrinsic evidence that informs the
`definition. But in terms of reaching the lexicographer threshold which I
`think is what Your Honor is asking about here, that specifically is not our
`position. The ‘337 patent provides intrinsic evidence that contradicts
`Neology’s proposed construction based on extrinsic evidence. So does
`that clarify our position? It’s not as if there’s a limited lexicographic
`definition provided here, and this is in slide 4 of Neology’s
`demonstratives, that passage demonstrates the ‘337 patent’s disclosure of
`intrinsic evidence regarding the broadest reasonable definition for
`switching mechanism.
`JUDGE ZADO: Okay. Yes, that clarification helps because I had
`understood it was Petitioner’s position that the patentee was acting as its
`own lexicographer, but now as I understand it that is not Petitioner’s
`position.
`MR. FJELLSTEDT: And the misunderstanding may have
`obviously been my fault, but this passage here provides an example of
`the switching mechanism and Neology attempts to use this passage to
`actually walk away from the ‘337 patent saying there’s no example
`provided and Neology’s argument for that is based on this mention of a
`switch, and based on that mention of a switch, it says, switch is
`mentioned here. All other variations of mechanism do not -- they are not
`the switching mechanism per se and one of the places where we sh
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