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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`ROHDE & SCHWARZ GMBH & CO., KG,
`Petitioner,
`
`v.
`
`TEKTRONIX, INC.,
`Patent Owner.
`__________
`
`Case IPR2018-00643 (Patent 8,675,719 B2)
`Case IPR2018-00647 (Patent 8,675,719 B2)
`__________
`
`Record of Oral Hearing
`Held: June 26, 2019
`__________
`
`
`
`
`Before JOSIAH C. COCKS, PATRICK M. BOUCHER, and
`SCOTT E. BAIN, Administrative Patent Judges.
`
`
`
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`
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`Case IPR2018-00643 (Patent 8,675,719 B2)
`Case IPR2018-00647 (Patent 8,675,719 B2)
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ROBERTO DEVOTO, ESQ.
`WALTER KARL RENNER, ESQ.
`USMAN KHAN, ESQ.
`Fish & Richardson, P.C.
`1000 Maine Ave, SW
`Suite 1000
`Washington, D.C. 20024
`(202) 626-6393
`devoto@fr.com
`renner@fr.com
`khan@fr.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MICHAEL A. OBLON, ESQ.
`JAMES YANG, ESQ.
`Jones Day
`51 Louisiana Avenue, NW
`Washington, D.C. 20001-2113
`(202) 626-1700
`moblon@jonesday.com
`jamesyang@jonesday.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday, June
`
`26, 2019, commencing at 1:29 p.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR2018-00643 (Patent 8,675,719 B2)
`Case IPR2018-00647 (Patent 8,675,719 B2)
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`P R O C E E D I N G S
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`1:29 p.m.
`JUDGE COCKS: Good afternoon and welcome to the Board.
`We're here today for a consolidated oral argument for two proceedings:
`IPR 2018-00643 and 00647 involving U.S. Patent 8,675,719.
`Let's begin with introductions from counsel for the Petitioner.
`Please state your appearance.
`MR. DEVOTO: Yes, my name is Rob Devoto. I'm here with Karl
`Renner. We are here on behalf of Petitioner Rohde & Schwarz.
`JUDGE COCKS: Okay. Thank you, sir.
`And counsel for the Patent Owner?
`MR. OBLON: Good afternoon, Your Honor. My name is Michael
`Oblon with Jones Day, here on behalf of Tektronix, the Patent Owner.
`With me is James Yang.
`JUDGE COCKS: Okay. Thank you, Mr. Oblon.
`Now as set forth in the trial hearing order each side -- we gave each
`side 90 minutes. The Petitioner bears the burden of showing un-
`patentability, so they will present first and may reserve rebuttal time. Patent
`Owner may then argue their opposition to the case. And in -- we had a
`teleconference and I believe the Patent Owner requested some surrebuttal
`time. So we granted that and permit surrebuttal. So you may respond to
`the rebuttal and you will conclude the proceeding.
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`MR. OBLON: Thank you.
`JUDGE COCKS: Any other preliminary matters that came out in
`the conference call? Does either party recall?
`MR. DEVOTO: No, I do not believe there were any other matters
`that came up.
`JUDGE COCKS: That being said, whoever is presenting for the
`Petitioner may begin.
`MR. DEVOTO: Okay. Thank you. My colleague --
`JUDGE COCKS: Yes, please, you may approach.
`MR. DEVOTO: -- will distribute some physical copies.
`JUDGE COCKS: It's obviously evident we have a remote judge, so
`please when giving your presentation try to refer to the slide deck by slide
`number.
`MR. DEVOTO: Will do. Let me know when I can begin.
`JUDGE COCKS: Do you wish to reserve any rebuttal time?
`MR. DEVOTO: Oh, yes, we do, and thank you for asking. We
`would like to reserve if possible 35 minutes for rebuttal, so 55 minutes for
`direct.
`
`JUDGE COCKS: Okay. That will be fine.
`Also, before you begin, I think at some point we may wish to take a
`recess for all involved, so we will try and find an appropriate time to do that.
`MR. DEVOTO: Sounds great. Thank you.
`JUDGE COCKS: You may begin.
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`MR. DEVOTO: Thank you. So, Your Honors, there's a significant
`record in these proceedings. As such, we find ourselves having to choose a
`subset of topics to discuss during this hearing, so we propose to discuss the
`disputed claim constructions, the applicability of Grounds 1, 2, 3 and 4 of
`the Hansen petition to Claims 1, 2, 3, 6 and 7 of the '719 patent, and the
`applicability of Ground 1 of the Engelse petition to Claims 1, 4 and 8 of the
`'719 patent. We of course welcome any questions you may have in any of
`the grounds as we recognize that our main goal is to answer your questions.
`Next slide, please. This is slide 43 of the deck. Now we would
`like to begin by discussing Claim 1 briefly. As you can see from this slide
`there are three claim terms that are subject to claim construction disputes:
`time domain channel, frequency domain channel, and acquisition system.
`We will deal with these as we discuss how the Hansen reference maps to
`Claim 1, however, before we turn to that mapping, Your Honors, we wanted
`to bring to your attention the fact that Independent Claim 1 does not require
`that the acquired data be signal data; that is the data acquired by the
`acquisition system.
`It doesn't say signal data. It says data. Nor does it specify any
`particular relationship between the first input signal and the second input
`signal. In fact, these signals could be entirely different signals received at
`entirely different times. And the data from the channels processing these
`signals could be acquired by the acquisition system at entirely different
`times.
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`Now notably non-simultaneous acquisition of data from the channels
`is well within the scope of Claim 1 which fails to include substantially
`simultaneous or contemporaneous, which are words well known to the
`inventor and yet are omitted from Independent Claim 1.
`Now we bring this to your attention because Tektronix largely fails
`to address our two signal mapping arguments, such as, for example, those
`advanced in the Hansen petition with respect to Claims 4, 10, 14 and 15, and
`those advanced in the Engelse petition with respect to Claims 4 and 15.
`And we believe our two signal mapping arguments are supported by both
`Hansen and Engelse because both of these references disclose instruments
`that allow users to freely input acquisition parameters that affect the time
`and frequency domain analyses of an inputted signal, and therefore are
`instruments that are configured to allow different signals to be acquired with
`different acquisition parameters by the instruments at different times.
`JUDGE COCKS: Counsel, I have one question.
`MR. DEVOTO: Sure. Please.
`JUDGE COCKS: How much of this, or these cases is going to be
`governed by the construction of channel?
`MR. DEVOTO: A lot of this case is governed by the construction
`of channel. In fact, it certainly is a very important term. As you can see,
`it's used throughout the Independent Claim 1. And as you'll note, and as
`we'll explain in these upcoming slides, we do submit that the Patent Owner
`has attempted repeatedly to improperly import aspects of embodiments into
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`the term channel as a mechanism, frankly, that we believe is designed to
`attempt to distinguish the prior art in violation of the Thorner requirements.
`JUDGE COCKS: Thank you.
`MR. DEVOTO: Sure.
`JUDGE COCKS: Thank you.
`MR. DEVOTO: Next slide, please. Yes?
`JUDGE BOUCHER: Can I just ask though, with respect to channel,
`ignoring in the claim the Configure 2 language with respect to each of those,
`is there anything physically distinct between a time domain channel and a
`frequency domain channel, or are the words time domain and frequency
`domain just being used as labels for the channels?
`MR. DEVOTO: Well, that's a good question. As you'll notice
`perhaps from the briefs that we do believe that there's a distinction between
`time domain channel and frequency domain channel. We submit that a time
`domain channel is actually a set of one or more paths, and that's why we
`submit channel means. It's a set of one or more paths that specifically
`directed the processing and input signal for analysis in the time domain.
`In contrast, the frequency domain channel is a set of one or more
`paths against the plain meaning of channel that specifically directed the
`processing and input signal for analysis in the frequency domain. And that
`can implicate different or even the same processing components.
`Ultimately the distinction between the two will be determined
`downstream on how the signals are ultimately analyzed. And we submit to
`Your Honors that this notion of looking downstream to assess whether it's a
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`frequency domain channel or a time domain channel is actually very
`consistent with the reasoning Tektronix itself used in support of its shared
`channel construction where they submit that the way you know whether two
`paths are part of a shared channel is not by looking at the paths themselves,
`but actually looking at what happens downstream. Are they received as if
`they're in one channel or not?
`Does that answer your question, Your Honor?
`JUDGE BOUCHER: I guess so. It still -- it seems to me that
`you're putting everything then into the words time domain and frequency
`domain as modifying the word channel.
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: What role does the Configure 2 language then
`in the claim play?
`MR. DEVOTO: Well, the Configure 2 language is actually used
`there to point to a specific input signal, a first input signal. So the time
`domain channel is configured to process a first input signal. If they hadn't
`decided to label and in fact separately identify the first input signal as
`distinct, or at least with a distinct label from the second input signal, well,
`then they wouldn't need to have that language. But they did that because
`they -- the prosecuting attorney presumably had some desire to label these
`input signals differently and perhaps down the road ended up not actually
`using or drawing relationships between those first and second input signals.
`They certainly did not draw a relationship in Independent Claim 1. And as
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`we see from the dependent claims, they later did not draw relationships at
`that point either.
`Nevertheless, they wanted those terms in there: first input signal and
`second input signal. So we actually submit that that configurative process
`does not render our constructions redundant or meaningless or non-limiting
`because here we're applying it to a first input signal and a second input
`signal.
`
`JUDGE BOUCHER: Okay. So when you say then that a channel
`is a set of paths --
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: -- that path is not just a path so to speak, but
`includes some electronic circuitry that is included within the path --
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: -- to affect the time domain or frequency
`domain analysis?
`MR. DEVOTO: That's a very good point. And obviously it's an
`instrument claim, so yes, that would implicate circuitry. And we'd submit
`to you would implicate data processing circuitry, and specifically signal data
`processing circuitry as you are processing the signal ultimately for analysis
`in the time domain if it's a time domain channel, or for analysis in the
`frequency domain and if it's a frequency domain channel.
`JUDGE BOUCHER: Okay. Thanks.
`MR. DEVOTO: Any other questions?
`JUDGE BOUCHER: Not for me at this time, no.
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`MR. DEVOTO: Thank you, Your Honor.
`So if we could turn -- this is slide 44. So before we show how
`Hansen discloses the recited time domain channel, we wanted to provide a
`brief overview of Hansen by focusing on the two graphics of slide 44. On
`the left we show you Hansen's figure 1, which illustrates the oscilloscope of
`Hansen and allows a user to -- that of course allows a user to review and
`analyze an input signal. And as you can see on the right, this is a -- figure 2
`actually shows a signal flow diagram which explains how the different
`elements or components of figure 1 process signals and the order in which
`the signals ultimately get processed as the signal data traverses through the
`instrument.
`Now it's important to recognize that Hansen's instrument has two
`types of operational modes. It has a base band mode and a band pass mode.
`In the base band mode the user inputs a window of time over which a signal
`will be analyzed, while in the band pass mode the user will input two things:
`one, the window of time over which the signal will be analyzed, as well as a
`center frequency of a particular band of interest to the user.
`Now, Hansen's scope processes the input signal to enable the user to
`observe both the signal waveform over the inputted window of time for time
`domain analysis and a corresponding frequency spectrum for that same
`inputted window of time for frequency domain analysis.
`Now in band pass mode Hansen's scope does an additional thing. It
`actually does -- it performs a frequency shifting from the user inputted
`center frequency to base band, which is around zero hertz, and filters out
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`frequency components outside of that bandwidth around the center
`frequency prior to showing a display.
`Now as we noted, as I noted, on the bottom right here of this slide
`you'll see Hansen's figure 2. As I noted previously it's a signal flow
`diagram and it represents the various processing steps performed by the
`components of figure 1. Now here we can tell that Hansen is referencing a
`time domain channel because figure 2 shows a time input; in this case it's the
`analog input V'(t), processed to generate a time domain display for analysis
`of the signal in the time domain.
`Now this mapping does rely on our construction of time domain
`channel, so we'd like to talk briefly about that construction next.
`Next slide, please. So this is slide 9. Now before we do that we
`wanted to note -- first of all, the broadest reasonable construction is of
`course the standard applicable to this proceeding, as you well know. This
`occurred before the rule change. The petition was filed before the rule
`change.
`And we would also note that the general rule for claim construction,
`which even applies under Philips, is that a claim term is given its ordinary
`and customary meaning as understood by a person of ordinary skill in the art
`in light of the specification with two exceptions per the Thorner case law.
`One, that there's a clear disavowal of the claim scope in the patent itself or
`the prosecution history, or there's a clear redefinition of the term in the
`specification or prosecution history.
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`Now notably Thorner and its progeny make it quite clear the use of
`the claim term consistently and repeatedly in a particular way in only one
`embodiment, or in all embodiments disclosed in a specification fails to rise
`to the level of a clear disclaimer or redefinition that would mandate
`departure from plain meaning.
`Now in the following slides as a preliminary matter I'll address two
`claim terms: channel and time domain channel, to facilitate our discussion,
`and then I'll return back to Hansen to talk about how it applies to the rest of
`the claims, turning then to the other relevant claim terms that are in dispute:
`frequency domain channel and acquisition system as we move through the
`claim.
`
`Next slide, please. So this is slide 10. So this slide shows the
`claim constructions advanced for the term channel. As you can see here we
`tend to embrace the plain meaning of the claim language. By contrast Tek
`instead, we submit to you, has set forth a construction that includes a lot of
`language. It's a lengthy construction that we would submit to you is
`importing aspects of different embodiments disclosed in the patent
`specification and that is specifically, we submit to you, designed to
`distinguish our prior art in a manner that we submit violates the Thorner
`requirements.
`Next slide, please. Slide 11. This is slide 11. So slide 11 shows
`ample support for --
`JUDGE BAIN: Counsel?
`MR. DEVOTO: Yes. Sure.
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`JUDGE BAIN: Can we go back to slide 10 for a moment?
`MR. DEVOTO: Yes.
`JUDGE BAIN: Or perhaps you're about to address this.
`MR. DEVOTO: Sure.
`JUDGE BAIN: What's the difference between the proposed
`construction on your slide, a set of paths for signals and what you indicated
`was the Board's construction in the Institution Decision, a signal path?
`MR. DEVOTO: The difference is that we wanted to embrace the
`notion that you can have a channel that consists of multiple paths. So to be
`clear, this slide is a little misleading. What we said is a set of one or more
`paths. We put a parentheses around the S, so a set of path(s) meaning one
`or more paths for signals. We wanted to embrace the notion that you can
`have a channel that has multiple paths in it.
`In fact, if you look in the '719 patent specification, you will find that
`it indeed has a channel; in this case a frequency domain channel, that has
`two distinct paths: one for an I component of a signal and another for a Q
`component of a signal. I believe that's in figure 8.
`JUDGE COCKS: Oh, so that's a significant point. So a set of
`paths for a signals implies it would have to be at least two, but you're saying
`that's not --
`(Simultaneous speaking.)
`MR. DEVOTO: Yes, it's kind of -- this slide is a little deceptive.
`It's a set of path with parentheses, meaning -- on the S, which means that we
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`meant one or more paths. And that's our -- that's been our position
`consistently. Does that help? Does that answer the question?
`JUDGE COCKS: Yes. Thank you.
`MR. DEVOTO: Thank you. So if we could move to the next slide.
`That's slide 12. So -- yes, I'm sorry. Slide 11.
`So as you can see here we submitted in our petition the plain and
`ordinary meaning for the term channel. We also provided -- showed that it
`was consistent with the '719 patent specification, and we also showed that it
`was consistent with the McGraw-Hill Dictionary of Electrical and Computer
`Engineering.
`Next slide, please.
`JUDGE BAIN: Yes, counsel, I don't mean to belabor the point, but
`again the dictionary definition on slide 11 states that a channel is a path.
`And in two different alternative definitions it uses the term a path.
`MR. DEVOTO: Yes.
`JUDGE BAIN: I guess I'm still confused about how -- you seem to
`be saying that a channel and a path are different and that one is a subset of
`the other. Could you elaborate?
`MR. DEVOTO: I think not necessarily so. I'm just -- what I'm
`asserting is that a channel is somewhat -- is a bit more of a fluid term. A
`channel can include one path. And it could be only one path. A channel
`could include multiple paths. And that would be consistent with the '719
`patent specification which shows the frequency domain channel having two
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`distinct paths and describes them as two distinct paths with respect to the I
`component and the Q component.
`So you can call those two distinct paths a singular path if you want,
`but in the end the applicability of the prior art we think will not turn on this
`point. Does that help, Judge Bain?
`JUDGE BAIN: That helps. You may continue.
`MR. DEVOTO: Thank you, Your Honor.
`JUDGE BOUCHER: Actually is there any difference between what
`you just said and understanding the recitation of a time domain channel in
`the claim as one or more time domain channels if we were to construe a
`channel as being just one path?
`MR. DEVOTO: Well, that's an interesting point. I mean, I think
`you could construe it as one or more time domain channels perhaps, but I
`think channel is more of a looser term that -- and we arrive at that conclusion
`because we look at the '719 patent specification and we note that there can
`be multiple paths in a single channel. But if you want, you could call
`multiple -- each one of the different paths its own time domain channel or
`you could call them together one channel as well.
`The key of course is that when you say time domain channel, what
`you're doing is you're taking the universe of paths or signals and you're
`carving it up a bit and you're saying, look, the paths that are related to
`processing a signal for time domain analysis, well, that's time domain
`channel. That's time domain channel stuff. That's a time domain channel.
`You can call them separate individual time domain channels. We can
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`combine them together and say that's one -- just one big time domain
`channel. But that's the touchstone of determining the meets and balance of
`what we discern to be a time domain channel. Does that help?
`JUDGE BOUCHER: Yes. Yes, that's fine. Thanks.
`MR. DEVOTO: Thank you, Your Honors.
`So if we turn to the page -- slide 12, please. So slide 12 we did want
`to make a point, and we did state this in our briefs. We take issue with
`Tektronix' constructions for various reasons. And this slide shows excerpts
`from our Petitioner responses. The construction impermissibly injects the
`term selectively acquires complementary processing. And worst of all, it's
`circular. It's actually defining channel by appealing to the word channel.
`We think that creates confusion and in and of itself makes the construction
`just not tenable.
`Next slide, please. And perhaps worse -- this is slide 13, excuse me.
`Perhaps worse, Tek's construction is based on a misguided view of figure 4
`of the '719 patent. Tek intends that figure 4 discloses only a single channel,
`as you can see here.
`Next slide, please. This is slide 14. A bit of a busy slide, Our
`apologies. As noted in our Petitioner responses, excerpts of which are
`shown here on the upper left side, figure 4 is disclosed as being an example
`of figure 3. Because figure 3 shows two channels, figure 4 would similarly
`be understood to depict two channels. And so we submit that this is a
`misinterpretation of figure 4; that is, Tektronix asserting that it only
`discloses a single channel is a misinterpretation of figure 4 and therefore
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`Case IPR2018-00643 (Patent 8,675,719 B2)
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`does not support the claim construction, particularly the selectively acquires
`prong of claim construction.
`In the absence of any questions, further questions related to the term
`channel, we'd like to turn to the term time domain channel. Are there any
`further questions on that?
`JUDGE BOUCHER: So when you're saying that figure 4 discloses
`two channels, you're saying it discloses the time domain channel and a
`frequency domain channel, is that correct?
`MR. DEVOTO: That is exactly correct, sir.
`Next slide, please. So slide 15. So here we turn to the time domain
`channel construction. Again, we assert plain meaning. The plain and
`ordinary meaning is one or more signal paths that processes a signal for
`analysis in the time domain. We talked about that earlier on. And as you
`can see, Tektronix instead has again -- and this is a repeated theme I think
`you'll find, Your Honors, they have attempted to import implementation
`embodiment specifics into the claim language. In this case they really have
`crafted a claim construction that very much focuses on the implementation
`specifics of the channel, specifically prohibiting the channel from including
`circuitry for frequency shifting.
`Next slide, please. This is slide 16. Now as ample supports we
`submit -- excuse me, ample support exists for our construction of time
`domain channel as noted in the excerpts of the '719 patent shown in this
`slide and referenced in our Petitioner response.
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`Case IPR2018-00643 (Patent 8,675,719 B2)
`Case IPR2018-00647 (Patent 8,675,719 B2)
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`Next slide, please. This is slide 17. As pointed out in our response
`at page 5, Tek's construction on the other hand relies on a rationale that the
`time domain channel cannot include circuit components that remove or
`distort frequency components of the input signal as evidenced by their expert
`testimony. And you can see that in paragraph 43. So we submit to you
`that the very rationale that undergirds their claim construction, this notion,
`and that rationale is that the time domain channel simply cannot remove or
`distort frequency components of the input signal.
`JUDGE BAIN: Counsel, is there any evidence as to what -- how
`one of ordinary skill would understand that position? In other words, would
`one of ordinary skill understand that a time domain channel includes no
`elements that do any frequency shifting? Or is the opposite true?
`MR. DEVOTO: Well, that's a great question, Your Honor, and I
`would submit to you that the evidence of record actually suggests the
`opposite. So if you think of a time domain channel and you think of what
`it's doing, it is processing a signal. Now in the '719 patent they claim that
`they're optimizing -- they're processing the signal and the way to optimize it
`is with time domain analysis. And they attempt to assert that when you
`frequency shift, you're really not optimizing it for time domain analysis.
`That's basically their argument.
`We submit to you that that's actually directly contradicted by the
`record of evidence. Look no further than Hansen. The Hansen reference
`in its background section shows that there is a desire -- in fact in the band
`pass mode of operation of the Hansen reference there's a desire to actually
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`Case IPR2018-00643 (Patent 8,675,719 B2)
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`do time domain analysis where you have frequency shift to the input signal
`so you've been -- to focus in on the portion of the waveform around a
`particular band of interest and yet look at it in the time domain.
`And why? Because -- and you don't want it obstructed with the
`higher or lower frequency components. So indeed that frequency shifting
`acts as a vehicle to optimize time domain analysis in the Hansen instrument
`itself in a desirable vehicle --
`JUDGE BAIN: I don't mean --
`MR. DEVOTO: -- as set forth in the background section of Hansen.
`I'm sorry. Go ahead.
`JUDGE BAIN: Okay. Yes, and if you don't have it now, that's
`fine. Maybe at some point later you could point us to the relevant section.
`MR. DEVOTO: Of Hansen?
`JUDGE BAIN: Oh, I'm sorry. Never mind. Never mind my
`question. You said the background?
`MR. DEVOTO: Yes, it's in the background section of Hansen.
`JUDGE BAIN: Okay.
`MR. DEVOTO: That's right. So, yes, sir, Your Honor?
`JUDGE BOUCHER: So you're saying that a time domain channel
`could potentially include circuitry for a frequency domain channel. Is that
`correct?
`MR. DEVOTO: I am indeed saying that, that it could include
`circuitry for frequency shifting. I'm submitting the very evidence of that is
`shown in Hansen where you see an oscilloscope that has band pass filtering,
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`and in doing so it does shift the waveform and yet provides to you a time
`domain display. And it says, look, this is a great time domain display. It's
`optimized for your analysis. Why? Because we're no longer cluttering it
`with higher or lower level frequency components in the time domain.
`So indeed, frequency shifting as shown in Hansen is indeed
`optimizing the signal for analysis in the time domain. We'd submit that that
`itself undermines this whole claim construction, which we submit is wrong
`and has a lot of other problems for various reasons that we'll talk about in
`this slide as well, the next slide as well, excuse me.
`JUDGE BOUCHER: So how can I tell just looking at the path with
`the circuitry --
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: -- whether that path processes a signal for
`analysis in the time domain or more in the frequency domain?
`MR. DEVOTO: That's an excellent question, and I touched upon it
`a little earlier in the oral hearing. The way you tell is you got to look
`downstream. You actually have to look downstream and see what is it
`doing with the resulting process signal data? If it's putting it up in a time
`domain display for a user to look at and analyze, well, then you know that
`that processing that ultimately led and produced the data for that time
`domain display was part of the time domain channel. If it's putting it up
`instead for say a frequency domain trace, like a spectrum say, well, then that
`processing that ultimately led to producing that frequency domain display is
`indeed a frequency domain channel.
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`And again, I would submit that this notion of having to look
`downstream to assess the type of channel is not a new notion. In fact, Tek
`itself advances this notion when it's trying to argue for its shared channel
`concept, where it's saying, look, I don't know if the path is or is not part of a
`shared channel. I got to look downstream to make that assessment. Well,
`the same rationale is being used here for frequency and time domain
`channels.
`JUDGE BOUCHER: So if I have a bad engineer and he creates two
`channels that are identical --
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: -- one that is then used to do an analysis of
`the time domain and one that is then used to do an analysis on the frequency
`domain, even though those channels are
`identical --
`MR. DEVOTO: Yes.
`JUDGE BOUCHER: -- your position is that those are not the same
`kind of channel?
`MR. DEVOTO: I -- our position would be that the nature of that
`channel will depend ultimately downstream on how the process data that is
`produced by that channel is going to be used as to whether it's a time domain
`channel or a frequency domain channel. So for example if the time domain
`data produced from the channel -- because it's -- if both channels produce
`the exact same time domain data and one channel displays a time domain
`waveform and that is in fact what that data is used for, well, then that's a
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`Case IPR2018-00643 (Patent 8,675,719 B2)
`Case IPR2018-00647 (Patent 8,675,719 B2)
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`time
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