UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ITRON, INC.,
`Petitioner,
`
`v.
`
`SMART METER TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01199
`Patent 7,058,524 B2
`____________
`
`Record of Oral Hearing
`Held: June 7, 2018
`____________
`
`
`
`
`Before BRYAN F. MOORE, BARBARA A. BENOIT and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ITRON, INC.,
`Petitioner,
`
`v.
`
`SMART METER TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01199
`Patent 7,058,524 B2
`____________
`
`Record of Oral Hearing
`Held: June 7, 2018
`____________
`
`
`
`
`Before BRYAN F. MOORE, BARBARA A. BENOIT and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-01199
`Patent 7,058,524 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`KIRK T. BRADLEY, ESQUIRE
`BRADY COX, ESQUIRE
`Alston & Bird, LLP
`101 South Tyron Street, Suite 4000
`Charlotte, North Carolina 28280-4000
`704-444-1000
`kirkbradley@alston.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`DECKER A. CAMMACK, ESQUIRE
`ENRIQUE "RICK" SANCHEZ, JR., ESQUIRE
`Whitaker Chalk, Swindle & Schwartz, PLLC
`301 Commerce Street, Suite 3500
`Fort Worth, Texas 76102
`817-878-0586 / 0500
`dcammack@whitakerchalk.com
`rsanchez@whitakerchalk.com
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, June 7,
`
`2018, commencing at 9:00 a.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`
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`Case IPR2017-01199
`Patent 7,058,524 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE HAMANN: Good morning. We are convened here for IPR
`2017-01199; for the oral argument for Petitioners Itron, Inc., and the Patent
`Owner is Smart Meter Technologies, Inc.
`I'm Judge Hamann, appearing by video. Out there, in Alexandria are
`Judges Moore and Benoit. If the parties will, please, introduce themselves,
`beginning with Petitioner.
`MR. BRADLEY: Good morning. For Petitioner, I'm Kirk Bradley
`with Alston & Bird. And I'm joined today by Brady Cox, also Alston &
`Bird.
`
`JUDGE HAMANN: Good morning.
`MR. CAMMACK: Good morning. For Patent Owner, I'm Decker
`Cammack from Whitaker Chalk Swindle & Schwartz. And with me is my
`colleague, Rick Sanchez.
`JUDGE HAMANN: Good morning. And to clarify, to the extent you
`all have not participated in a hearing before where a Judge appears by video.
`The camera -- my view is directly from behind the Judges that are present
`there, so if you are looking at them, you're looking at me.
`To quickly start with some preliminary matters before we turn to
`issues related to the hearing, and begin that, there are currently pending
`Petitioner's request for an authorization to file a motion to expunge; as well
`as a pending motion by Patent Owner regarding a withdrawal of counsel. To
`the extent that it's helpful in knowing our findings as to those for today's
`hearings will provide those orally, and full, in writing, with written order
`shortly.
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`As to the Petitioner's request or authorization, that is denied.
`As to Patent Owner's request -- a motion, actually to withdraw
`counsel, that will be granted with our understanding that it's unopposed by
`Petitioner. Is that correct?
`MR. BRADLEY: That's correct, Judge.
`JUDGE HAMANN: Thank you. And just to be clear. If there's any
`question, Mr. Sanchez, via the updated Patent Owner notes, is a back-up
`Counsel, so he certainly, to the extent that's desired, can participate in
`today's hearing.
`Turning to preliminary matters as to begin (inaudible), as we begin
`this now, both sides will be allowed 45 minutes for their presentation. The
`Petitioner, who bears the burden on patentability, will begin followed by
`Patent Owner -- response from the Patent Owner, followed by a rebuttal of
`the Petitioner to the extent of times reserved.
`Also, obviously I'm appearing by video, but it's helpful to all of us as
`we are following along, to the extent you are referring to a demonstrative, if
`you would endeavor to represent a slide by its number, and not only will it
`help us, but it will provide for a clear record. To the extent that a party has
`an objection, if they could save those objections until it's their presentation
`time and we will deal with those at that time.
`If there's nothing further, Petitioner is free to begin. And if you'd just
`let me know, Mr. Bradley, to the extent, and how much Petitioner -- time
`Petitioner is reserving.
`MR. BRADLEY: Thank you, Judge. I'd like to reserve 15 minutes
`for rebuttal.
`JUDGE HAMANN: Thank you.
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`MR. BRADLEY: So, here on slide 2, we see that the issue to be
`considered by the Board is whether Suh renders obvious claims 17 to 22 in
`the 524 Patent.
`Now, as the papers make clear, there's really only one small issue in
`dispute. The parties agree that Suh discloses all of the other limitations
`except for one part of the final limitation in claim17, and that part is written
`here on slide 2, and it says, "Transmitting the IP-based power consumption
`information from the processor to a destination autonomously in IP format
`over an external power line network."
`And as the Board had seen in the papers, the dispute really is only on
`the last part of that phrase, the part that reads: an external power line
`network.
`Here on slide 3 we can see --
`JUDGE HAMANN: Mr. Bradley --
`MR. BRADLEY: Yes.
`JUDGE HAMANN: Mr. Bradley, just if I could, to clarify. I want to
`make certain I understood what you just said. It's Petitioner's position that
`Suh doesn’t disclose everything? And is that correct?
`MR. BRADLEY: That is not correct. Petitioner's position is that Suh
`discloses each of the limitations on all the claims, and renders all of those
`claims obvious especially when considering in light of the knowledge and
`one of ordinary skill in the art.
`JUDGE HAMANN: And what role, if any, does -- it was (inaudible)
`admitted prior art claims this ground, at a high level. I don't know if you can
`get to the details now but --
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`MR. BRADLEY: Certainly, Judge. At a high level, the admitted
`prior art plays a supplemental role to further demonstrate what was known in
`the art. Suh alone renders all of these claims obvious, it discloses each of
`the limitations, and especially when combined with the knowledge of a
`person of skill in the art it makes clear that Suh alone renders each of these
`claims obvious.
`The admitted prior art, which is the prior art that the 524 Patent itself
`admits was already known, further underscores that showing of obvious,
`further underscores the knowledge of what people of skill at the time already
`knew. And so it's for that reason we had pointed to admitted prior art.
`The Board does not need to rely on the admitted prior art in order to
`find obviousness for all the claims, but the Board can, and we recommend,
`ought to do so to further support the decision.
`JUDGE HAMANN: Thank you.
`MR. BRADLEY: Here on slide 3 of the presentation, we had put a
`portion of the Patent Owner's response where they acknowledged that the
`showing we made in our petition was sufficient, or at least they are not
`disputing, everything except for that last limitation in claim 17.
`JUDGE BENOIT: Let me clarify. You said that they -- I think you
`said they admitted that Suh disclosed all the limitations except the last one.
`And in here you're saying that they only dispute the last claim only. To me
`that's a big difference. What they dispute here, and what you all are going to
`talk about here to clarify your arguments, is different than the burden
`Petitioner has to demonstrate that by a preponderance of evidence.
`MR. BRADLEY: Yes, Judge. I'm not suggesting at all that we don't
`bear the burden, or that the burden is automatically satisfied, just because the
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`Patent Owner doesn’t dispute a particular limitation, my intention was to say
`that we had made a showing in our petition, including through the
`declaration of Dr. Akl, our expert, that all of the limitations of all of these
`claims are satisfied, and in response the Petitioner has not disputed any of
`those showings except for one part of the last limitation of claim 17.
`I recognize it's still our burden. I'll be happy to address any questions
`that the Board may have as to those other limitations, but given the scope of
`the dispute, I did intend today to focus the one aspect they do dispute. But
`I'm very happy any of the other limitations.
`I do believe, and I think it's quite clear that Suh discloses all of the
`other limitations the supporting declaration by Dr. Akl, supports all of that,
`there's no question that he's a person of skill in the art, there's no challenges
`to his opinions, that I can recall, and I think the showing is there.
`JUDGE BENOIT: Thank you for that clarification. And I wanted to
`go back to your use of "admitted prior art" that you talked about a moment
`ago. In our decision to institute on page 12, and it runs over to 13, if you
`could just look at that.
`MR. BRADLEY: Yes.
`JUDGE BENOIT: And once you get there, let me know.
`MR. BRADLEY: I'm there, Judge.
`JUDGE BENOIT: And I'll wait for Patent Owner to locate.
`MR. CAMMACK: Okay.
`JUDGE BENOIT: It looks you're on the same --
`MR. CAMMACK: We are there.
`JUDGE BENOIT: Okay, great. Thank you. So, in that last
`paragraph beginning with, "Furthermore, we understand Petitioner
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`contends," and then later on, at the last sentence, that is on that page, it
`continues to page 13, "We also say we understand Petitioner argues --"
`From your answer on how you use applicant and -- or dealt with prior
`art in this proceeding my question is, is our understanding as reflected in
`page 12 and 13 correct?
`MR. BRADLEY: As I read what's written here on pages 12 and 13, I
`do believe that is correct, with the caveat that when it says at the bottom of
`page 12: we understand that Petitioner argues based on, one of ordinary skill
`in the art's knowledge of the AAPA, I would make clear that that is not our
`only argument. We are saying, Suh discloses that aspect, but also a person
`of skill in the arts knowledge of the admitted prior art, furthers that
`conclusion.
`So, I would -- I just want to clarify that when we say we argue as to
`the admitted prior art, that is not our only argument with regard to
`transmitting the requisite data in IP format, over an external power line
`network. Suh discloses that, discloses it to a person of skill in the art. The
`admitted prior art helps demonstrate that it was known.
`JUDGE BENOIT: And that's reflected in the petition on pages 15 and
`16? Is that correct?
`MR. BRADLEY: And it is reflected in our petition at pages 27 to 32,
`it's where we discuss transmitting the IP-based power consumption
`information in IP format over an external power line.
`JUDGE BENOIT: Great. Thank you very much.
`MR. BRADLEY: Okay. And just for the record, that's also discussed
`in Dr. Akl's declaration at paragraphs 152 to 157. Turning back to -- turning
`back to the presentation, on the next slide, we can see here, this is an excerpt
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`from the deposition of Patent Owner's expert, Mr. Blackburn, and I
`confirmed with him in this deposition that his declarations, again, only
`concern that one limitation that's the focus of my presentation today.
`The Board, of course, normally considers claim construction in
`analyzing whether certain claims are patentable or not. Here, I'll touch on it
`briefly, but I believe there's no dispute between the parties, and nothing that
`the Board actually has to decide for claim construction in order to reach an
`opinion of obviousness.
`At the petition stage, when we first filed, we construed autonomously
`the way that term was construed and the file history, to mean without
`external prompting, that's shown here on slide 6.
`Then, here on slide 7, we see that in the Patent Owner's response it
`turns out, there's just no dispute on that issue, they base -- acknowledged
`that the definition, or they say that the definition of autonomously is
`irrelevant, and in any event not disputed for this proceeding.
`And I submit that that's because the part of the claim that's really in
`dispute is only that phrase, "external power line" not autonomously. There's
`no dispute.
`If the Board would like to reach construction, it ought to be without
`external prompting.
`So the phrase that the parties are disputing is: external power line
`network, but there's no dispute what that phrase means. When we were
`looking at the system, you have a power meter with a power line going all
`the way from the power distribution grid, all the way to the dwelling with
`the power meter, and then it continues inside the dwelling to the appliances,
`and any other systems inside the dwelling.
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`The external power line is the portions that that same power line that
`go from the meter out, out towards the grid, out towards another dwelling,
`anywhere external, frankly. The internal parts are the parts that go from the
`meter inside the building.
`And here on slide 9, I have a highlighted excerpt from the patent
`specification in the 524 Patent, where they defined internal and external, and
`then make clear that internal is within the building, external is the network
`outside of the building. And they give a key example there that I want to
`highlight, it's here on lines 4 to 5 of column 5, and it says, "For example,"
`meaning an example of an external network, "An example is to one or more
`dwelling is located in the same community."
`Again, external means you're going outside of the building. You
`could be going to the neighbor's house next door, the building next door,
`that's an external network, and there's no dispute about that either.
`JUDGE BENOIT: Is there a difference between external power line
`and external power line network?
`MR. BRADLEY: That's a good question, Your Honor. I don't
`believe so, and certainly not for the scope of the debate here. If you had an
`external power line, that creates a network between the destination and the
`starting point, and for what the parties have discussed, what the prior art
`discloses, what the 524 Patent discloses, essentially we sometimes do refer
`to external power line, and external power line network, perhaps that's a
`little casual, but if you have an external power line between two things, you
`have external power line network for purposes of this patent.
`JUDGE BENOIT: And does that apply -- Dr. Akl's applying as to
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`that?
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`MR. BRADLEY: I don't recall if he makes a particular distinction.
`Again, because it's just not an issue, it wasn’t something that the parties
`were concerned with. I know he certainly opines as to what is an external
`power line network, and whether Suh discloses that. Sometimes the parties
`in the briefing have just shortened that to refer to the external power line, but
`I think it's reasonable for it to be understood that the parties are certainly not
`ignoring the word network, it's just the focus is on the word external, or
`external power line, or perhaps, external power line network.
`JUDGE BENOIT: All right. Thank you.
`JUDGE HAMANN: Mr. Bradley?
`MR. BRADLEY: Yes.
`JUDGE HAMANN: Also, how I understood it -- I'm sorry about
`interrupting your flow -- but the right around the slide 9, and I guess two
`questions. One the first being, the parties often use the phrase in the briefing
`a pre-meter, and I think I understand what that refers to, but if you could
`clarify for the record, what Petitioner's use of the term (crosstalk) -- the
`portion of the network, and say what pre-meter is?
`MR. BRADLEY: Yes. Thank you, Judge Hamann. So, you noticed
`that the parties use that phrasing, and I want to be clear that only Patent
`Owner uses that term "pre-meter" and "post-meter". We have specifically
`avoided that phrase because, a couple reasons. Number one, it's not used
`anywhere in the patent classification, or throughout history it's just not used.
`And second of all, to us, it's very confusing, because "pre" and "post"
`suggest a particular direction of flow, you have to -- to refer pre-meter, is
`confusing to us, because I don't know whether that means coming in from
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`the power distribution grid, or coming from the house, one of those is pre, it
`depends on which way you're going.
`We recommend not using that term. I don't think it -- I think it's
`confusing, it's not used in the specification, and Petitioner has not used it one
`time.
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`JUDGE HAMANN: Okay. Well, I'll save that question for Mr.
`Cammack, then. But if I could, the second part while we have the slide here,
`I believe the definition, or the meaning for external power line network the
`parties have, relates to, you know, the meter itself is used for that
`construction, right?
`MR. BRADLEY: The parties have -- the parties have not come to a
`precise construction of external power line network. The parties have
`operated with what appears to be a perfect understanding that anything from
`the meter going out, is external, and the meter being essentially the dividing
`point, because the meter is there, at the dwelling, and at the household,
`whatever, at the building. And anything that's within the building would be
`internal, and anything out of the building is external, just as what's written
`here on slide 9.
`I'm not sure if that answers question.
`JUDGE HAMANN: It generally does. But I think the thing I was
`focusing on is, it was used, the term, slide 9, meter is sort of used as the
`dividing point, for lack of a better term, and with the -- slide 9 refers to the
`definition, the patent itself more focus is on the building, you know, inside
`or outside the building. Although I think -- is it -- this distinction immaterial
`for -- for that Suh reference?
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`MR. BRADLEY: I do think it's largely immaterial, and if I may -- to
`help answer the question, if I may jump ahead to slide 11?
`JUDGE HAMANN: Okay.
`MR. BRADLEY: We can see here, this is Figure 1, a reproduction of
`Figure 1, the 524 Patent, where we've added some highlighting. Box 10,
`inside the house there, is the power metering system.
`If you look inside that box, number 35 is the power meter, but then
`you have the processor, and transceiver, and such, and that's the power
`metering system. And the parties agree that going from there, going from
`the dwelling where the power meter is, and going out towards the grid is
`external, and everything inside the dwelling is internal.
`To Your Honor's question, that portion of the specification on slide 9,
`that we were just looking at, where they defined the terms, Your Honor is
`correct that it doesn’t refer to the meter being the dividing point. And I
`think it's perfectly fair to construe those terms, internal and external, without
`specific reference to the meter. But I do think also, that it's fair to say the
`meter is essentially the dividing point, and everything to one side in the
`building is internal, and everything outside the building is external.
`There hasn’t been any dispute with, well, what if something is just
`inside the meter, but going the other way, there's nothing like that here, so it
`really hasn’t been a bother to use this convention.
`But Your Honor is correct that the specification does not specifically
`say everything from the meter one way is this, and the way is that. I think
`it's just a way that we can easily converse about it, by making the same
`point.
`JUDGE HAMANN: Thank you.
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`MR. BRADLEY: I'm going to move ahead a little bit here to slide 14,
`which is the title slide. I'm going to demonstrate, as demonstrated in our
`briefing, that Suh actually discloses that one disputed limitation in claim 17.
`And I'm going to jump ahead for the interest of time to the portion about the
`last phrase of claim 17 that references an external power line network, and
`the transmissions proceeding over that network.
`This excerpt on slide 19 is from Suh, and Suh specifically says in
`paragraph 8, that the electricity power meter in Suh: includes the
`components necessary to communicate by three different means, the
`telephone line, power line, or wireless communication systems. You can use
`any of those three, to periodically transfer collected data to a remote site. A
`remote site from where the meter is, because we are talking about an
`external network, Suh expressly discloses communicating from the meter to
`the remote site over the power line.
`JUDGE MOORE: And what is your evidence, since you say you rely
`on Suh alone, that one of ordinary skill in the art would understand that that
`was even possible at the time of the invention to communicate over power
`line to a remote site?
`MR. BRADLEY: So, the evidence is first -- it's several-fold. First,
`it's the Suh reference itself, which is presumed to be enabling unless the
`Patent Owner shows otherwise, which they have not done. So, we are
`presumed -- we were able to take what Suh says at its face, unless they show
`otherwise. And they haven't. That's number one.
`Number two, the evidence is Dr. Akl's testimony in support of this
`disclosure in Suh, saying it was known. And that's un-rebutted, and actually
`Patent Owner's expert, Mr. Blackburn, also agreed that transmissions over
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`power line and transmissions over external power lines were known. And he
`admitted that Smart Meter did not invent that.
`Further evidence is the admitted prior art in the 524 Patent. The 524
`Patent says that power line transmissions using known technologies such as
`HomePlug, such as X-10, those were known in the art already, and so
`specifically there's an example I can jump to, that we discussed in our
`papers, where the 524 Patent describes a known system, using HomePlug
`between two dwellings, which is an external network, and it calls that
`HomePlug system a standard, quote/unquote, "standard use of HomePlug."
`And so all of those things together, the admissions of their expert, the
`testimony of our expert, the disclosures in Suh, the admitted prior art, all of
`that evidence is the fact that it was known to transmit over power lines to a
`(inaudible) site.
`JUDGE BENOIT: And I have two questions. One is on page -- slide
`19, in paragraph 8, in Suh, you point to a clear indication that the
`communication technology is necessary to communicate by telephone line,
`by power line. But the claim itself is not just about communicating anything
`over the power line, but it requires a specific way, right. It's transmitting IP-
`based information, in an IP format. Is there evidence from Suh here that you
`use IP format data over a power line?
`MR. BRADLEY: There is evidence from Suh, and I put that on the
`screen here, on slide 15, this is just one example. And here we show Figure
`4 of Suh, and we've highlighted some boxes in red. And we see in box 98,
`there's data, and it says KWH, that's kilowatt hours of usage. That's power
`consumption information.
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`And in box 102, that information gets placed into an IP datagram, an
`IP header, that's putting it into IP format. So, it is now IP-based power
`consumption information.
`And we see here, on the right side of this figure, it's not highlighter in
`red, there's box 18. And for the record, if you look back in the specification
`that should be 108, but I'll call it 18, because that's what it says here; 18 says
`IP address. This, Figure 4, is showing sending kilowatt-hour usage in an IP
`datagram, so sending the power consumption information in IP format, to a
`destination represented by that IP address.
`JUDGE HAMANN: Mr. Bradley?
`MR. BRADLEY: Yes.
`JUDGE HAMANN: Before you -- Judge Hamann speaking -- before
`you move from this slide. This slide is in the content of the telephone line
`embodiment. Correct?
`MR. BRADLEY: This slide is specifically referencing the telephone
`line embodiment. We have testimony from Patent Owner's expert
`confirming, and certainly testimony from expert, both of them confirming
`that this disclosure of Suh is not limited to a telephone line modem,
`telephone line embodiment. It doesn’t have to be a dial-up modem, they
`could be a general-purpose modem.
`And Mr. Blackburn, the Patent Owner's expert, specifically confirmed
`that in Suh it could be a power line communications modem. And of course
`if you're transmitting over power line you would use the power line
`communications modem.
`JUDGE HAMANN: Okay. And I think --
`JUDGE BENOIT: And where is --
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`JUDGE HAMANN: I'm sorry.
`JUDGE BENOIT: Where is that in Dr. Blackburn -- testimony?
`MR. BRADLEY: Let me just. Just so I -- I got a little mixed up,
`Your Honor. When you said, where is that is that in Mr. Blackburn's
`testimony, what is "that"?
`JUDGE BENOIT: Where is the connection between Figure 4 using
`telephone modems to transmit power-based information in IP format with
`the power line transmission?
`MR. BRADLEY: Thank you. So, the slide I have here, is
`specifically, this is actually referenced in Figure 7, the figures in --
`JUDGE BENOIT: I'm sorry. Which slide is that?
`MR. BRADLEY: Thank you, Judge. It's slide 23. I wanted to
`explain, Suh discloses multiple communications paths, the telephone lines,
`power lines, wireless antenna. It says in the specification that telephone line
`is the preferred embodiment. But of course power lines and antennas are
`other suitable embodiments, so the figures, when they are showing
`embodiments, they are showing the telephone line embodiment.
`Figure 7 is another place, just like Figure 4, that shows a dial-up
`modem for telephone line communications. And when I asked Mr.
`Blackburn on his deposition about that modem, and here on slide 23, is that
`excerpt, and I said to Mr. Blackburn, I asked him: The modem 64 is not
`limited to just a telephone modem, is it? And he answered: no, it could be a
`general modem. And I said: it could be a power line communications
`modem, right? And he said, yes.
`And Dr. Akl had similar testimony supporting the Petitioner
`explaining that, of course you just pick the modem to go with the
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`communications protocol that you're using. If you're using a power line
`communications, you use the power line modem.
`So, Figure 4, like Figure 7, both show dial-up telephone modems, but
`a person of skill in the art, as acknowledged by both experts, know that you
`would just use the other modem, the power line communications modem to
`go with the power line.
`JUDGE BENOIT: And where is Dr. Akl's testimony that you just
`referred to?
`MR. BRADLEY: Starting, it is in line -- paragraph 156 of Dr. Akl's
`declaration he says, "In the email messaging system disclosed in Figure 4 of
`Suh, the lowest layer discloses an embodiment that uses the telephone
`modem. However, a POSITA, a person of ordinary skill in the art, would
`have understood that the patent is intended that any of the suggested
`physical layer communication networks, including a power line
`communications modem, could be substituted into Figure 4, without altering
`any other steps of that figure." And he goes on from there.
`And that's the point, and that's the same point I confirmed with Mr.
`Blackburn at his deposition, and to my knowledge, in the response there has
`been no dispute raised that a person of skill in the art wouldn't know to pick
`the right modem to go with the power line communications protocol.
`JUDGE BENOIT: Thank you.
`JUDGE HAMANN: Mr. Bradley, I think you're referring to slide 23
`just a moment ago. I think the slide before that, 22, was sort of a predicate, I
`know we've been jumping around as we've been asking questions, but I had
`some questions, I think, about the predicate in what we just discussed, I
`think, as really, it was slide 22, if we could look at that.
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`MR. BRADLEY: Yes.
`JUDGE HAMANN: But I think that basically shows paragraph 30
`from Suh. Correct?
`MR. BRADLEY: It does, and I'll interject real quickly, that Suh
`discloses communications over power line, and an external network in
`paragraphs 8, 30 and 51. We looked at 8 a moment ago, and this, Your
`Honor, is paragraph 30 of Suh, yes.
`JUDGE HAMANN: If I can -- just some questions about this. The
`international computer network, what does that refer to?
`MR. BRADLEY: That is referring to the Internet, and paragraph 8 of
`Suh makes that clear. And we asked that of Mr. Blackburn, and he
`confirmed for me that's also the Internet.
`JUDGE HAMANN: Okay. And now that's been --
`MR. BRADLEY: And so it's an external network.
`JUDGE HAMANN: There's also been a lot of discussion obviously
`on this phrase, developed data transmission over like technologies. And I
`think the cross of that, the Petitioner's position is that, two examples of that
`are HomePlug and X-10. Is that correct?
`MR. BRADLEY: Yes. Two possible examples are HomePlug and X-
`10, yes.
`JUDGE HAMANN: I'm trying to understand why this seems to be
`talking about both of them, in a sense, why isn't -- why can't we just focus on
`one over the other is just -- it's why this one protocol disclosed something
`that the other doesn’t? Or why, and can we simplify it?
`MR. BRADLEY: I can try to, Your Honor. Actually we could fairly
`speak about none of them, and still has satisfied our burden because, again,
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`Suh is presumed to be enabling, and both experts have testified or admitted
`that external power line networks were known and used.
`So, the reason we've ever even gotten into questions about HomePlug
`or X-10, is only for further support that it was known in the art to transmit
`data over power line networks. And as examples of those, we have referred
`to HomePlug and X-10 specifically the 524 Patent expressly acknowledges
`those, and says those were known power line communications networks.
`So because the 524 Patent admits that those were prior art, we weren't
`sure if their expert was going to dispute this or admit this, so we pointed to
`HomePlug and X-10. It turns out he admitted -- he admitted the power line
`networks were known anyway. So, really we didn’t need then, talking about
`Home Plug or X-10.
`And Judge Hamann, to your question, we didn’t need to talk about
`both of them. They are redundant, we didn’t need to talk about either of
`them, we could talk about one, we could talk about both.
`We have
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