UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD,
`Patent Owner.
`____________
`
`Case IPR2018-01257 (Patent 8,552,978 B2)
`Case IPR2018-01258 (Patent 8,441,438 B2)
`____________
`
`Record of Oral Hearing
`Held: September 13, 2019
`____________
`
`
`
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD,
`Patent Owner.
`____________
`
`Case IPR2018-01257 (Patent 8,552,978 B2)
`Case IPR2018-01258 (Patent 8,441,438 B2)
`____________
`
`Record of Oral Hearing
`Held: September 13, 2019
`____________
`
`
`
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`
`
`
`
`
`
`Case IPR2018-01257 (Patent 8,552,978 B2)
`Case IPR2018-01258 (Patent 8,441,438 B2)
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`MATTHEW A. SMITH, ESQ.
`ANDREW S. BALUCH, ESQ.
`Smith Baluch, LLP
`1100 Alma Street
`Suite 109
`Menlo Park, California 94025
`(202) 669-6207 (Smith)
`(847) 863-1645 (Baluch)
`smith@smithbaluch.com
`baluch@smithbaluch.com
`
`JAMES SOBIERAJ, ESQ.
`JON BEAUPRE, ESQ.
`YEUSHONG FENG, ESQ.
`ANDRES SHOFFSTALL, ESQ.
`Brinks Gilson & Lione
`jsobieraj@brinksgilson.com
`jbeaupre@brinksgilson.com
`yfen@brinksgilson.com
`ashoffstall@brinksgilson.com
`
`NAVEEN MODI, ESQ.
`CHETAN BANSAL, ESQ.
`Paul Hastings, LLP
`875 15th Street, NW
`Washington, D.C. 20005
`(202) 551-1990 (Modi)
`(202) 551-1948 (Bansal)
`naveenmodi@paulhastings.com
`chetanbansal@paulhastings.com
`
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`Case IPR2018-01257 (Patent 8,552,978 B2)
`Case IPR2018-01258 (Patent 8,441,438 B2)
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`
`
`COLLIN PARK, ESQ.
`ANDREW DEVKAR, ESQ.
`JEREMY PETERSON, ESQ.
`ADAM BROOKE, ESQ.
`Morgan, Lewis, & Bockius, LLP
`collin.park@morganlewis.com
`andrew.devkar@morganlewis.com
`jpeterson@morganlewis.com
`adam.brooke@morganlewis.com
`
`KRISTOPHER REED, ESQ.
`BENJAMIN KLEINMAN, ESQ.
`NORRIS BOOTHE, ESQ.
`Kilpatrick Townsend & Stockton
`kreed@kilpatricktownsend.com
`bklienman@kilpatricktownsend.com
`nboothe@kilpatricktownsend.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JAY P. KESAN, ESQ.
`DiMuro Ginsberg PC
`1101 King Street
`Suite 610
`Alexandria, Virginia 22314
`(703) 684-4333
`jkesan@dimuro.com
`
`
`
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`
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`ARI RAFILSON, ESQ.
`Shore, Chan, DePumpo LLP
`Bank of America Plaza
`901 Main Street
`Suite 3300
`Dallas, Texas 75202
`(214) 593-9114
`arafilson@shorechan.com
`
`
`
`
`The above-entitled matter came on for hearing on Friday, September
`
`13, 2019, commencing at 10:00 a.m. at the U.S. Patent and Trademark
`Rocky Mountain Regional Office, 1961 Stout Street, Denver, Colorado.
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`P R O C E E D I N G S
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`10:00 a.m.
`JUDGE BOUCHER: Good morning. I am Patrick Boucher and
`appearing remotely today are Judges Kamran Jivani and Christopher Ogden.
`This is a consolidated hearing in two IPRs. IPR 2018-1257 and
`1258. Claims in two patents owned by CyWee are at issue, namely U.S.
`Patent Numbers 8552978 and 8441438.
`Because we granted various joinder motions, we have a number of
`petitioners, and so at this time, we'd like counsel for each of the petitioners
`to introduce yourselves at the microphone at the lectern and then please let
`us know who you have with you.
`So, first, who is appearing for Google?
`MR. SMITH: Thank you, your Honor. This is Matthew Smith.
`I have with me at counsel table Andrew Baluch, from the firm of Smith
`Baluch, LLP and we have with us Kara Specht from Google.
`JUDGE BOUCHER: Okay. Thank you. And --
`MR. OGDEN: I'm having trouble hearing that. Can we check the
`microphone?
`(Pause.)
`JUDGE BOUCHER: We can go off the record for the moment.
`(Whereupon, the above-entitled matter went off the record at 10:04
`a.m. and resumed at 10:20 a.m.)
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`JUDGE BOUCHER: Let's pick up from where we left off. Mr.
`Smith, if you wouldn't mind repeating your introduction, please?
`MR. SMITH: Thank you, your Honor. This is Matthew Smith
`and with me is Andrew Baluch from our firm, Smith Baluch, LLP, and we
`also have Kara Specht from Google here.
`JUDGE BOUCHER: Okay. And who is appearing for ZTE,
`please?
`MR. SOBIERAJ: Good morning, your Honor. James Sobieraj,
`appearing on behalf of ZTE USA.
`JUDGE BOUCHER: Okay. Thank you, Mr. Sobieraj. And you
`don't have anyone else with you today?
`MR. SOBIERAJ: Correct, I'm appearing solo.
`JUDGE BOUCHER: Okay. And who is appearing here today for
`Samsung?
`MR. BANSAL: Good morning, your Honor. Chetan Bansal on
`behalf of Samsung.
`JUDGE BOUCHER: Okay. Thank you, Mr. Bansal. And for
`LG, who is appearing, please?
`MR. DEVKAR: Good morning, your Honor. Andrew Devkar
`appearing for LGE.
`JUDGE BOUCHER: Okay. Thank you, Mr. Devkar. And my
`understanding is that Mr. Kleinman is appearing in San Jose for the Huawei
`entities. I don't know that we need to get Mr. Kleinman particularly to
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`introduce himself, but Judge Ogden, can you just confirm for the record that
`Mr. Kleinman is present in San Jose?
`JUDGE OGDEN: Yes. Mr. Kleinman is present.
`JUDGE BOUCHER: Okay. Thank you. And finally, for the
`patent owner, could you please introduce yourselves and let us know who
`you have with us -- with you here today?
`MR. KESAN: Good morning, your Honors. For the patent
`owner, this is Jay Kesan, along with Cecil Key and Ari Rafilson, Michael
`Shore, and Arlen Papazian.
`JUDGE BOUCHER: Okay. Thank you. Before we begin, there
`are just a few housekeeping issues I'd like to go over. First, I want to
`remind the parties that the hearing is open to the public and a transcript of it
`will become part of the record. I'm aware that we do have some members
`of the public in the gallery today.
`I know that we have some confidential information on the record, but
`my expectation is that we're probably not going to need to discuss the
`particulars of that confidential information at that level, but I want to caution
`the parties that if we do begin to discuss something that is confidential, it's
`incumbent upon the concerned party to bring that to our attention, so we can
`take some appropriate action.
`We have received objections to demonstrative exhibits filed by the
`patent owner. At this time, we're not -- we are going to reserve ruling on
`the objections. Demonstrative exhibits have not been filed on the record
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`and they are not evidence and merely argument and it's not apparent to us at
`this point in time which exhibits the parties will actually rely on.
`So, we will consider the written objections when we're deliberating
`after the hearing and determine at that time whether to sustain any of the
`objections that have actually been filed.
`During the hearing today, we'd ask counsel not to interrupt the other
`side to make objections. Any objections can be discussed during the
`response and rebuttal time. And also, I apologize for the technical
`difficulties that we had. One further point to make though is to keep in
`mind that whatever is projected on the screen is not viewable by Judges
`Jivani and Ogden, but they have copies of the demonstrative exhibits and
`they have a complete copy of the record that they can easily access.
`So, when you refer to an exhibit on the screen, please state the slide,
`exhibit or page number to which you're referring, and that will also help
`keep the transcript clean for clarity.
`As you know from a trial order, each party has 75 minutes in total to
`present its argument. Because the petitioner has the burden to show
`unpatentability of the original claims, petitioner will proceed first, followed
`by the patent owner and as indicated in our hearing order, both parties may
`reserve rebuttal time.
`So, Mr. Smith, if you would like to begin? How much time would
`you like to reserve?
`MR. SMITH: Thank you, your Honor. May I ask, do you want us
`to present on the petition arguments first and then address the motion to
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`amend and motion to terminate in our second presentation or everything at
`once?
`
`JUDGE BOUCHER: Everything at once.
`MR. SMITH: Everything at once.
`JUDGE BOUCHER: Whatever order you prefer to present it, but
`we'd like to, as you say, we kind of have three distinct issues here. There's
`the motion to terminate, the merits, and the motion to amend. We'd like a
`presentation on all those matters and then whatever rebuttal you have in your
`rebuttal time.
`MR. SMITH: Understood. Then I think perhaps 20 minutes for
`rebuttal.
`JUDGE BOUCHER: Okay. Okay. So, whenever you're ready,
`just go ahead and begin.
`MR. SMITH: Thank you, your Honor. May it please the Board,
`Matthew Smith for the petitioner, Google. Can Judges Ogden and Jivani
`hear me when I'm standing this distance from the microphone? I don't
`want to bend over if it's possible.
`JUDGE OGDEN: I can hear you fine.
`MR. SMITH: Great.
`JUDGE JIVANI: Yes, thank you.
`MR. SMITH: Thank you, so much. So, let me start with the
`petition itself, and then talk about the motion to amend briefing as a second
`issue, and then round it out with the motion to terminate. And we'll jump,
`obviously right into what I think are the heart of the issues. Obviously, we
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`have similar grounds in those cases, the Liberty reference is being -- has
`been instituted in the 1257 IPR, which relates to the '978 patent, but there's a
`lot of overlap between the arguments.
`There are three arguments in particular that I'd like to cover because
`those seem to be the ones where CyWee is putting forth the most effort. I
`think we identified perhaps six or seven independent arguments that CyWee
`made in the patent owner response, depending on the case, and certainly,
`we're available to answer any of the Board's questions on any subject in
`these cases, but I think we want to focus on these, simply because they seem
`to be the ones that CyWee cares about the most in terms of their briefing
`space and effort.
`The first is that Bachmann is allegedly not analogous art. The
`second being that the combination saying Bachmann allegedly does not
`provide a 3D pointing device, and then the final one being that the
`combination would not have been enabled, we believe, based on the inability
`of a person with ordinary skill in the art to rearrange a printed circuit board.
`I'm going to begin with the analogous art argument with Bachmann,
`and here CyWee seems to be making essentially the same argument on the
`two prongs that are required --
`JUDGE BOUCHER: The screen -- the screen went dark. I think
`that might just be a timeout. I'm not sure. Yes, okay. Thank you.
`MR. SMITH: The two prongs required, of course, for prior art to
`be analogous and either one can be met, and it would qualify the prior
`reference as an analogous reference, are that the reference is in the same
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`field of endeavor or reasonably pertinent to the problem faced by the
`inventors.
`The argument CyWee is making is essentially the same for both of
`those prongs. And it seems to be that when you construe the term 3D
`pointing device, as the claims of the '438 patent are directed to the 3D
`pointing device and the claims of the '978 patent are directed to the method
`that uses a 3D pointing device, when you construe that as CyWee wants to
`construe it, limit it to handheld and limit it to the capability of controlling an
`output on a display, Bachmann doesn't have either of those two things,
`according to CyWee, and therefore, it should not be considered analogous
`art. And we think CyWee fails on both of those accounts.
`First of all, you can't define the field by the claim language strictly or
`a specific construction of a term from the claim language. The claim
`language certainly informs the field, as one of a few things that informs the
`field, and we believe the Board's finding that the field is directed to
`orientation sensors and calculations that arise out of those orientation
`sensors and the institution decision was appropriate for that.
`JUDGE BOUCHER: Can we focus a little bit, though, on this
`disclosure in column 13 of Bachmann?
`MR. SMITH: Yes.
`JUDGE BOUCHER: Because the actual disclosure there, I think
`we've -- certainly the petitioner's putting a lot of weight on it and I think we
`put a fair bit of weight on it in our institution decisions, but the actual
`disclosure is fairly limited and so, I'd like to understand clearly what is
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`actually being disclosed by Bachmann here. And in column 13 looking,
`like around line 48, there's this sentence that says, examples include but are
`not limited to hand-held devices, swords, pistols, and simulated weapons.
`MR. SMITH: Yes.
`JUDGE BOUCHER: What is a hand-held device in the context of
`this disclosure in Bachmann? I mean, I'm concerned that because hand-
`held devices have been discussed in other art, that there may be some
`hindsight going on here in how we're looking at what Bachmann actually
`discloses.
`MR. SMITH: Right. So, in the context of Bachmann, and I think
`we can talk about the disclosure in column 13, and also answering what that
`really means in Bachmann within the context of Bachmann, and beginning,
`you know, just with the very first lines of text in Bachmann in column one,
`Bachmann states that the method of tracking orientation is applicable to
`tracking the orientation of an object. So, it's a fairly general disclosure of
`what the method can do.
`Of course, there's no dispute that hand-held devices would be
`objects. That's made more specific by the disclosure in column 13 that
`you've identified in column -- you know, lines 45 to 47, but certainly, when
`you look at the overall system of Bachmann, it's not describing this method
`as necessarily limited to a particular type of object.
`You know, we wouldn't divide objects by class necessarily and say it
`applies to one or it applies to the other, and there's no technical reason why it
`should or should not. As long as the orientation sensors are there and are
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`able to sense what they need to sense and the data can be calculated, there's
`no reason why it would not apply to any hand-held device, such as a pointer
`or Zhang or Liberty or a smartphone as we will see later on in the motion to
`amend briefing.
`JUDGE BOUCHER: Well, I have a question about that though --
`MR. SMITH: Yes.
`JUDGE BOUCHER: -- because in that sentence that I read, when I
`was referring to swords, pistols, and simulated weapons, it seems to me that
`what it's really referring to is stuff that is being held by the guy who is being
`rendered in the virtual environment.
`So, what's relevant there is the relative orientation of the hand-held
`object to the man. Whereas, in Liberty and Zhang, what seems to me to be
`relevant is the absolute orientation of the hand-held device.
`So, I'm concerned that there's not as precise a parallel there as might
`first seem.
`MR. SMITH: The hand-held device that is referred to in
`Bachmann, as long as it has the orientation sensors on it, is going to render
`the orientation that Bachmann gets at the output of its method. And it is
`the collection in the specific and disclosed embodiment with the person you
`see in figure four, who has multiple of these orientation sensors on different
`limbs, each of the sensors is outputting an orientation which allows the
`system to draw the posture of the body entirely on the screen. But that
`doesn't change the fact that at each orientation sensor, you are still getting a
`full orientation.
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`So, a person of ordinary skill in the art, understanding that would
`know that any particular segment of the body or anything that the user is
`carrying can be tracked in the same way and a hand-held device could be
`tracked in exactly the same way using the sensors independently of the
`system and that seems to be what Bachmann is saying, especially when you
`go back to the technical field where Bachmann says the invention described
`herein relates to methods and apparatus for tracking the orientation of an
`object.
`I mean, that's a pretty direct and general statement about what the
`disclosure Bachmann is directing to, and this is specifically column one,
`lines 15 to 17 of Bachmann.
`JUDGE BOUCHER: Okay.
`MR. SMITH: Okay?
`JUDGE BOUCHER: What about the -- I don't specifically recall it
`coming up in the briefing, but it was certainly in one of the depositions, this
`distinction between Bachmann disclosing sensors that are on an object, as
`opposed to in an object because Bachmann doesn't really disclose sensors
`within the objects, does it?
`MR. SMITH: Yes, it actually does, your Honor, I think. And
`that's because Bachmann uses the term, sensor, in two different ways. You
`know, first there's the specific MEMS sensors, which are part of the MARG
`package, which they're buying commercially, and second, there's the sensor
`device, which, you know, looks like a little smartphone shaped sort of like a
`puck that you can attach to the different parts.
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`The sensors there are actually inside of that housing. That entire
`sensor gets attached to a body element or something else. But it's, you
`know, clear from that that you can put the MARG sensors, which Bachmann
`says are available commercially, inside of a housing and track the
`orientation of that.
`Then you can -- if it's just a pure Bachmann-like sensor puck, if you
`will, you can attach that to something else and effectively track the
`orientation of the other thing. But it's absolutely clear those sensors can go
`inside of a housing, you know, just as a person with ordinary skill in the art
`would expect on those.
`JUDGE BOUCHER: Okay. Do we have any context as to why
`Bachmann is doing this rendering of this man on a display? Is this, like, for
`a game or . . . ?
`MR. SMITH: I don't have context beyond what Bachmann has said
`in the patent. I'm not privy to, you know, speaking with Bachmann or
`anything like that and it wouldn't have been available to a person of ordinary
`skill. But Bachmann does say that these sensors can be used to render the
`orientation of the posture of a body in a virtual environment.
`So, presumably, Bachmann is working toward some sort of 3D
`simulation or display of a human body on the screen, specifically.
`JUDGE BOUCHER: So, you would agree though that Bachmann
`does not really provide a whole lot of information about the context of how
`this would actually be used.
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`MR. SMITH: If you mean the commercial context? Yes. If you
`mean the technical context, obviously, we think there's a lot of information
`about that.
`JUDGE BOUCHER: Okay.
`MR. SMITH: And the second prong, of course, is, you know,
`equally applicable to Bachmann. Bachmann is certainly relevant to the
`problems facing the inventors, and I'm speaking, you know, specifically
`what CyWee even characterizes as the problems facing the inventors.
`CyWee is characterizing the patents as bringing forth this novel
`enhanced comparison method, which is essentially the method of taking the
`disparate output of the sensors, which are giving values in different units and
`somehow combining that to get an orientation and that's exactly what
`Bachmann is directed to. It's really an identical problem.
`CyWee's argument here is, of course, that Bachmann is not a hand-
`held device and doesn't control something -- the orientation or an output on
`the screen, but I think it's been directly contradicted by CyWee's expert and
`just the general disclosure in Bachmann itself.
`If you look at column 14, lines 20 to 26, and the other citations that
`we've provided in our patent owner -- sorry -- in our petitioner's reply,
`Bachmann is, of course, directly talking about rendering the posture of a
`body on the screen in connection with figure four. And I'm looking
`specifically at slide number seven right now, where we have Bachmann's
`figure four and the testimony of CyWee's expert, Dr. LaViola, side by side.
`And here, Dr. LaViola acknowledges, essentially, that when the person, the
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`figure in 402 in Bachmann's figure four changes posture, that the posture of
`the person on the screen is going to change in a corresponding way.
`So, this is directly meeting CyWee's construction of controlling an
`output on a display as we see on the previous slide, slide six, where Dr.
`LaViola, CyWee's expert, explains what does it mean to control an output on
`the display and it's basically, it comes down to the orientation of whatever is
`being tracked changes and that changes something on the display.
`What it is, we don't really know, but as long as it changes something,
`that's how CyWee interprets capable of translating detected motions to
`control an output on the display and that's exactly what Bachmann is doing.
`So, there can't really be --
`JUDGE JIVANI: Excuse me. Let me pause you for a moment.
`MR. SMITH: Yes.
`JUDGE JIVANI: I'm sorry to interrupt your sentence, but I'm not
`sure I fully understand your argument there.
`MR. SMITH: Yes.
`JUDGE JIVANI: So, I understand your argument based on column
`14 that you just characterized as rendering, to be that when the, we'll call it a
`soldier or a person, body, whatever, moves in Bachmann, the system then
`tracks that movement and the corresponding display element is changed.
`MR. SMITH: Yes.
`JUDGE JIVANI: Is that correct?
`MR. SMITH: That's correct.
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`JUDGE JIVANI: And so, by that same logic, right now I'm
`viewing you through a display, and you moving at the lectern are controlling
`my display. Is that correct?
`MR. SMITH: Yes. Now, we are lacking the element of
`orientation sensors producing an orientation, all right, but I am controlling
`the output on your display effectively by moving around. And that's how
`CyWee is interpreting the claim language.
`JUDGE JIVANI: All right. I understand. Please continue.
`JUDGE BOUCHER: My question is along the same lines --
`MR. SMITH: Yes.
`JUDGE BOUCHER: -- because when -- because I had been about
`to ask if we could kind of walk through this argument a little bit more
`carefully because it seems to me that when CyWee was proposing
`construction of a pointing device, that when it was referring to control, it
`was not referring to the kind of control that you're saying that Bachmann
`has.
`
`So, can you just walk through that step by step to make sure I
`understand exactly what the argument is?
`MR. SMITH: Yes.
`JUDGE JIVANI: Counsel, before you do that --
`MR. SMITH: Yes.
`JUDGE JIVANI: -- for some reason, the microphone at the bench
`might have cut out and we never quite hear the question Judge Boucher asks.
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`May I ask my colleague to please read it back into the record or repeat it,
`summarize it?
`JUDGE BOUCHER: Yes. You can hear me now okay?
`JUDGE JIVANI: Yes, now I can.
`JUDGE BOUCHER: Okay. I was asking if we could walk
`through the petitioner's argument that Bachmann discloses a pointing device
`under the construction proposed by the patent owner.
`JUDGE JIVANI: Perfect. Thank you. Counsel, please respond.
`MR. SMITH: Yes, thank you, your Honor. So, the construction
`put forward by the patent owner, and I think you can see this directly from
`Dr. LaViola's testimony in paragraph six, where we ask him what does
`JUDGE JIVANI: So --
`MR. SMITH: -- I'm sorry, it's slide six.
`JUDGE BOUCHER: It's slide six. Okay. Okay. Because
`there are multiple declarations by Dr. LaViola.
`MR. SMITH: Yes, yes.
`JUDGE BOUCHER: Okay.
`MR. SMITH: So, we're talking about slide six and this is actually
`his deposition cross-examination testimony from exhibit 1019, page 102,
`line 10 to page 103, line 12, where we ask him, what does it mean to control
`an output on a display, and he answers, to control an output on a display
`would be to be able to utilize the orientation information that you get from
`the device and use that information to manipulate elements on the screen or
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`on the display so that orientation would be affecting the movement of
`graphical entities or text or something on the display.
`That is CyWee's construction, and I'm pulling up on the screen right
`now the patent owner response and this is in the '978, so the 1257
`proceeding where CyWee acknowledges that this is the case. In fact, that
`Bachmann meets the claim language -- sorry, the construed claim language,
`as CyWee has put it forth, capable of controlling an output on a display.
`Now, CyWee's complaint about Bachmann is essentially Bachmann
`doesn't have enough disclosure on that, but they do acknowledge that the
`disclosure is actually there, and I'm going to page 11 of the patent owner
`response, eventually, and on page 11 of the patent owner response, CyWee
`states in the second paragraph of the first full paragraph of the page,
`Bachmann is merely concerned with tracking the position orientation of its
`multiple sensor devices, which was separately attached to various limbs, and
`it is capable of rendering the positions of each such device on a display.
`Now, combined with the actual text in Bachmann, in column 14,
`where it's actually taking the orientation of those sensors and using them as
`proxies for the orientation of the limb of the body, for example, and
`displaying that on the screen, you understand that Bachmann is taking the
`orientation of the sensors directly as that orientation is computed in space
`and rendering that on a screen in a very direct way and it's more direct than
`CyWee's claim construction would actually require.
`CyWee's claim construction would just require, take the orientation
`information and in some way change something on a screen. So, it could
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`be, for example, I'm holding a device and I rotate it and that signifies open a
`file. You know, it doesn't have to be a direct translation of the orientation
`to something that is orientation-like on the screen. Just to an action. That
`is how they're construing the claims. But Bachmann actually I think hits
`dead center in the bull's-eye on that because it's actually taking the
`orientation and using the orientation to render a sort of corresponding
`orientation on the screen as they describe in connection with figure four and
`column 14, lines 14 to 26 or 20 to 26.
`JUDGE BOUCHER: The word, control, I guess is this is where I'm
`getting hung up on and I realize that's the -- that's not the claim language,
`that's the language in the proposed construction --
`MR. SMITH: Right.
`JUDGE BOUCHER: -- of the claim, but it is kind of curious, isn't
`it? That if I wave my hand, I've just controlled what's on the screen, but it
`doesn't seem to comport to me with what I usually think of as control.
`I mean, I may have affected what's displayed on the screen perhaps.
`I don't know that I've controlled it.
`MR. SMITH: Yes. And so, you're asking the question almost
`from the perspective of the person 402 in Bachmann's figure four, right, and
`that person perhaps is not said to control those actions in the technical sense
`that we would think about it, but certainly, the overall system of Bachmann
`is doing that.
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`From end to end we have sensors, we have a sensor fusion method
`that produces an orientation. That orientation is used to render something
`on the screen. So, at least in Bachmann, that full sense of control is there.
`Now, it may be that CyWee's construction is too broad in that sense
`and it should be read to exclude simply a human being moving. That
`would fall under the concept of control and that you would actually need the
`algorithmic portions of the claims to do that control, but Bachmann hits that
`exactly.
`JUDGE BOUCHER: Okay. While we're on the subject of claim
`construction, do we need to construe the word, module? It seems -- like,
`the parties do not seem to be very well aligned on how they interpret module
`in their arguments.
`MR. SMITH: I think you may wish to construe that, your Honor.
`I think there is an at least an implicit dispute about the word module, and I'm
`hesitating a little bit in answering that because it seems to me that CyWee
`backed off the original implicit construction of module.
`The context of this is as follows. In the patent owner response, in
`the '438 case, CyWee argued that there isn't a six-axis motion sensor module
`attached to the PCB. In the '978 case, they argued something -- the
`language isn't quite as crisp on module and so, what they argued was, if you
`look at the patent as a whole, these sensors should really be close together on
`the board, okay, but there wasn't an actual claim construction argument
`made.
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`So, there's no extrinsic evidence, you know, at that point in time
`about what module means. There's no argument that there's a disclaimer or
`something like that.
`When we asked Dr. LaViola about this in his deposition, there was
`some conflicting testimony and there was also some conflicting testimony
`from a deposition in the Huawei case that we submitted. In the Huawei
`case, Dr. LaViola said, well module is kind of one of those words that, you
`know, it's sort of a placeholder. It means, maybe you've got some big
`functional connection, and this is all cited in our reply brief.
`In this case, he seemed to
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