UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`QUALCOMM INCORPORATED
`Patent Owner
`____________
`
`Cases IPR2018-01281 and IPR2018-01282
`Patent 8,768,865 B2
`____________
`
`Record of Oral Hearing
`Held: October 30, 2019
`____________
`
`Before DANIEL N. FISHMAN, MICHELLE N. WORMMEESTER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
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`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`QUALCOMM INCORPORATED
`Patent Owner
`____________
`
`Cases IPR2018-01281 and IPR2018-01282
`Patent 8,768,865 B2
`____________
`
`Record of Oral Hearing
`Held: October 30, 2019
`____________
`
`Before DANIEL N. FISHMAN, MICHELLE N. WORMMEESTER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
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`Cases IPR2018-01281 and IPR2018-01282
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BAILE XIE, Ph.D, J.D., ESQUIRE
`Fish & Richardson
`1717 Main Street
`Suite 5000
`Dallas, TX 75201
`
`W. KARL RENNER, ESQUIRE
`THOMAS ROZYLOWICZ, ESQUIRE
`Fish & Richardson
`1000 Main Avenue, SW
`Suite 1000
`Washington, D.C. 20024
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`EAGLE ROBINSON, ESQUIRE
`ERIC CONLEY GREEN, ESQUIRE
`Norton Rose Fulbright
`98 San Jacinto Boulevard
`Suite 1100
`Austin, TX 78701-4255
`
`
`DANIEL LEVENTHAL, ESQUIRE
`1301 McKinney
`Suite 5100
`Houston, TX 77010-3095
`
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday, October
`30, 2019, commencing at 1:02 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE WORMMEESTER: We have our final hearing in cases
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`IPR2018-01281 and IPR2018-01282, Apple Inc. v. Qualcomm Incorporated
`which concern U.S. Patent Number 8,768,865.
`I am Judge Wormmeester. Judges Wieker and Fishman are appearing
`remotely. Let’s get the parties appearances please. Who do we have for
`Petitioner?
`MR. RENNER: Good afternoon, Your Honors. This is Karl Renner
`from Fish & Richardson and I am joined by colleagues Tom Rozylowicz and
`Baile Xie, Dr. Xie.
`JUDGE WORMMEESTER: And who will be presenting?
`MR. RENNER: All three of us will have different pieces of the case,
`Your Honor. Dr. Xie will address the Wang reference and Dr., Mr.
`Rozylowicz will address Louch and I’ll be doing claim construction.
`JUDGE WORMMEESTER: Okay, great. Thank you.
`MR. RENNER: And if you, Your Honor, would please we will be
`reserving 25 minutes.
`JUDGE WORMMEESTER: 25 minutes. Okay.
`MR. RENNER: And would you like a copy, hard copy of the
`demonstratives?
`JUDGE WORMMEESTER: Sure.
`MR. RENNER: Okay. Thank you.
`JUDGE WORMMEESTER: Thank you. And for the patent owner,
`who do we have?
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`MR. ROBINSON: Good afternoon, Your Honors. Eagle Robinson
`with Norton, Rose, Fulbright. With me today are Daniel Leventhal and Eric
`Greene on behalf of patent owner. Mr. Leventhal will be arguing.
`JUDGE WORMMEESTER: Okay, great. Thank you so much.
`Welcome.
`MR. ROBINSON: And they would like to reserve 30 minutes for sur-
`rebuttal.
`JUDGE WORMMEESTER: 30 minutes?
`MR. ROBINSON: Please.
`JUDGE WORMMEESTER: Okay.
`MR. ROBINSON: Thank you.
`JUDGE WORMMEESTER: All right. We set forth the procedure for
`today’s hearing in our trial order but just to remind everyone the way this
`will work. Each party will have 90 minutes to present arguments. Petitioner
`has the burden and will go first and may reserve time for rebuttal. Patent
`Owner will then have the opportunity to present its argument or response
`and may reserve time for sur-rebuttal.
`Please remember that Judges Wieker and Fishman will be unable to
`hear you unless you speak into the microphone. And when referring to any
`demonstrative, please state the slide numbers so that they can follow along.
`Please also remember that the demonstratives you submitted are not part of
`the record.
`The record of the hearing will be the transcript and we will give you a
`warning when you’re reaching the end of you argument time. Any questions
`before we proceed? Okay. So, Counsel, you wanted to reserve 25 minutes,
`right?
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`MR. RENNER: Correct, Your Honor.
`JUDGE WORMMEESTER: Okay. So let me set the clock for you.
`Okay. I’ll set it for 65 minutes and you will get a five minute warning with
`the yellow light. Does that work for you?
`MR. RENNER: Thank you.
`JUDGE WORMMEESTER: Okay, great. And you may begin when
`you are ready.
`MR. RENNER: Well, I have dispensed with one of the formalities I
`was going to do off the bat. This is Karl Renner from Fish & Richardson
`and I wanted to introduce one of my colleagues, Dr. Xie who will be
`presenting on Wang in the beginning. She will start out with an explanation
`of some of the technical details that we think could benefit from the
`discussion today.
`I will be next with claim construction that will apply to both
`references and then Mr. Rozylovich will complete our presentation
`addressing Louch. We are pleased with the initiatives for younger attorneys.
`This will be Dr. Xie’s first presentation so I hope you welcome here.
`JUDGE WORMMEESTER: Welcome.
`MS. XIE: May it please the court. Good afternoon, Your Honors.
`Would you please your attention to Slide 8 of our demonstratives? So
`beyond its just variable claim construction theories, Qualcomm raised just
`one issue, one dispute regarding the Wang based ground.
`It is -- it argues Wang has not been shown to disclose the using of the
`Table 1 to detect the states, the user states. As a result, they argue Wang has
`not been established to satisfy the identifying of first patent and fixing by
`association limitations of the independent claims.
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`Qualcomm’s arguments however are far from the truth. Not only does
`the, does it revise a record, but also it is contradict[ed] by its own expert.
`And before we get too far along, I would like to say a few words about
`Wang.
`Here, I would go off of the slides and invite you to turn to our Exhibit
`1005. That’s our Wang reference. So here on the screen we show the first
`page of the Wang reference, Exhibit 1005.
`As we can see from the title, Wang disclosed a framework of energy
`efficient mobile sensing for automatic user state recognition. And in the
`abstract, Wang disclosed it used the, a user state to represent like user
`activities. And by using the user activity recognition you can provide a
`contextual information which would be helpful for the mobile applications
`such as social networking and location (inaudible) services.
`However, if you continue to capture the contextual information, that
`would be power consuming especially for a mobile device. So to address
`the issue Wang proposed an energy efficient mobile sensing system, they
`call it EEMSS for short.
`So this system will only power a user, or use a minimum set of
`sensors to detect a user states. And as such, it conserves the power and
`reduce a computational load of a mobile device as it -- that is -- as it
`explained in the abstract, Wang actually achieves a 75 percent battery life
`savings by using this EEMSS system.
`This all sounds kind of familiar, right. That is the very similar goal,
`the 865 patent was trying to achieve as described in their specification. So
`let’s get back to our slides.
`Slide 9 please. Here, I want to first assure you Wang as a reference,
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`as a prior art reference indeed disclosed using Table 1 to identify patterns, to
`detect user states.
`On Slide 9 you can see we reproduced the Table 1 which we relied
`upon in our Petition for example throughout our Petition on page 16 to 18.
`And I would like to draw your attention the title, the highlighted title of
`Table 1 which says the state and these features are captured by Wang’s
`system, EEMSS.
`So by this plain language, there is no dispute, no doubt that Wang
`system, the EEMSS system will use the features at state, shows in Table 1
`for the state detection. So either -- and as a result it will identify the patents
`and they also satisfy the fixing limitations as recited in the claim.
`JUDGE FISHMAN: Counselor, this is Judge Fishman. Can you help
`me identify in Wang whether it expresses this table as exemplary states or
`the entirety of all states captured by the system?
`MS. XIE: Sure, yes. It definitely is an exemplary state. I don’t have
`the exhibit handy but I can -- I think in the introduction portion of the 1005
`reference, if we go to the first page (inaudible).
`I think it mentioned in the specs it, they’re at different variety of user
`states you can use and the Table 1 is just an example, provided example of
`user states. I don’t have the citation off the top of my head.
`JUDGE FISHMAN: I didn’t want to stop your presentation but
`perhaps one of your co-counsel can help identify if there is such a disclosure
`in Wang. Thank you.
`MS. XIE: Sure. If there is no other question I will proceed to the
`next, the Slide 9. So yeah, beyond the table or the title of Table 1, Wang
`also confirms in the text that Table 1 shows the set of user states that will be
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`recognized by each system.
`And in fact, more specifically they show -- they say there are three
`characteristic features that defines each of this state. So we can look at the
`table shown in Slide 9. In the middle there are three columns which includes
`the location, motion and background sound. So those are the three
`characteristic features as identified by Wang and in the table they label it as
`state features.
`And on the left most column there is a list of different user states and
`have different state names. And on the right most column, those are the
`sensors are used to monitor corresponding different states. And to -- I think
`the best way to like understand this table will be just focus on one row of the
`table.
`For example, you would look at the final row of this table. It says the
`user state is a vehicle state. And this state is defined by three, actually two
`of the parameter values, the state features. One is the location and it has a
`value of a keep on changing and the second was the motion and it says the
`motion is moving fast.
`And then we will note in the third column, the background sound is
`denoted as N/A so it’s not applicable here. So here we are only use two of
`three characteristic features or state features trying to define the vehicle state
`and the based on this.
`And also on the right hand side, the sensor used it to detect vehicle
`state is a GPS sensor. And the other two sensors at least involve the
`accelerometer and the microphone are not used for this particular user state.
`And also one way not beyond this like explicit disclosure by Wang
`itself we also ask our expert, Dr. Allen and a person of ordinary skill in the
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`arts to be you on this Wang’s disclosure of the Table 1 user state how it can
`be used in Wang’s system.
`And Dr. Allen provided in his testimony that a POSITA will
`understand by reviewing the text in the table of Wang reference will
`understand a state for example as we walked through the vehicle state will
`be identified when the location features matches the designed criteria like
`keep on changing and the motion equals moving fast.
`In this way, a user state vehicle will be recognized. And hence the
`user state and the features listed in Table 1 is actually used by the EEMSS
`system for detecting a user state.
`And not only our expert says that, the next slide, Slide 10 please.
`Qualcomm’s own expert agree with us and in fact, more than once. So first
`in his, in Dr. Villasenor’s testimony, the affidavit it agrees that Wang defines
`the state and the group for state features as shown in Table 1.
`And again in his deposition testimony, Dr. Villasenor again says,
`Wang says the EEMSS systems will monitor the characteristic features as
`we just said in Table 1 which defining all those user state.
`The next slide please. Qualcomm seems to be confused or maybe
`misunderstand the Wang’s disclosure of the XML file which is used to
`describe the state -- it’s called the XML state descriptor. And also Wang’s
`disclosure of the Table 1 and the challenging and how one can use both the
`XML file and Table 1 for user state detection.
`And here, I would like to clarify this and to avoid any confusions so in
`Slide 11, on the right hand side, we reproduced the, as a Figure 3 of the
`Wang reference, which is cited in our Petition I think at page 19 and 20 to
`show the system architecture of the EEMSS system. And as we can show,
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`can see in the slide, the figures --
`JUDGE FISHMAN: If I can have you pause for a moment. I just
`have a technical problem. One of my monitors just went off.
`JUDGE WORMMEESTER: Sure.
`JUDGE FISHMAN: Just hold on one moment if you can.
`JUDGE WORMMEESTER: Sure.
`JUDGE FISHMAN: Judge Wormmeester, you might pause the clock
`for a moment.
`JUDGE WORMMEESTER: Yes. Let’s go off the record right now.
`OFF THE RECORD
`ON THE RECORD
`JUDGE WORMMEESTER: Okay, we can go back on record. Thank
`
`you.
`
`MS. XIE: Yeah, sure. So maybe I can use this chance to answer the
`Judge Fishman’s questions. So in Wang, the, our Exhibit 1005 on page 5, it
`actually the title start with for EEMSS implementation, a case study shows
`the whole like the description about the EEMSS system is exemplary like
`case study of the prototype or the system they are proposing to real life, to
`implement, to achieve the power saving goal for the mobile device user state
`detection. Okay.
`JUDGE FISHMAN: Okay, thank you.
`MS. XIE: Okay. So let’s go back to we are at Slide 11. As here as a
`reminder, I’m trying to help avoid any confusion and trying to establish that
`the record has shown the Wang has disclosed how to use both the XML file
`and the Table 1.
`So on the right hand side in Slide 11, we have this, we reproduced the
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`Wang’s Figure 3 which is relied upon in our Petition in, on page 19 to 20
`and Figure 3 shows us a system architecture of the EEMSS system.
`And the label, highlighted in Figure 3 on the right hand side actually
`there are two components highlighted there. The first one is the labeled one
`and the, as we can also say for them the top circle, red circle shows there
`that’s actually the XML file which is imported to the system and by the
`sensor management modules and the sensor management module will read
`the XML file to determine which sensors to turn on, to for different user
`state.
`And the system also includes a classification module as circled in the
`middle, number 6, and the classification module as highlighted in the label
`of the Figure 3 is what determined the user state.
`So the classification module is the one who detects the user sate. And
`how does it achieve this function? Let’s turn our attention to the left hand
`side, the text box which cited the disclosure on page 6 of Wang which says
`the classification module will return the user features such as moving fast,
`walking, home, and loud and by running classification algorithms.
`And the classification algorithms will result in determining the user
`state. And the -- notably the terms in the quotation, under the quotation
`mark moving fast, walking and home and loud, those are the terms quoted
`from the features shown in that Table 1.
`To help you visualize this better, I would like to ask you to turn again
`to our Exhibit 1005 the Wang reference, page 5 of our Wang reference,
`Exhibit 1005. Page six, I’m sorry.
`So on page six of the Wang reference, you will see on the right
`column this is our figure three and on the top there is a Table 1 and on the
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`left hand side is a text. And the text I just quoted is actually just right next to
`the Figure 3 so it’s in the second paragraph starting with in our case study
`and then the sixth line down.
`It start with the classification module returns user activity and the
`position features such as moving, walking, home, and loud are returning by
`running classification algorithms.
`And those quotations, the quoted terms as we can see are directly
`quoted from the state features shows in Table 1, right above the text. So
`from this page of Wang, we can -- we can understand Wang actually
`disclosed this EEMSS system which integrate both the XML file as well as
`the Table 1.
`So the first import is XML file through the sensor management
`module to determine which sensors to turn on to monitor the states and then
`they use the classification module which relies on the state and the features
`disclosed in Table 1 to detect the user states.
`So they, the both files are -- the XML file and Table 1 are used to in
`concert in the EEMSS system for user state detection. So I think up to this
`point we have reviewed our record which has established I think without
`doubt that Wang disclosed the EEMSS system or used the features and the
`state defined, shows in Table 1 for user state detection.
`And as such, the Wang reference will satisfy the identifying first
`patent and as well as fixing, fixate by association and imitations of the claim
`under the, our construction.
`So if there is no other question I would turn to my partner, Mr.
`Renner, for claim construction.
`JUDGE WORMMEESTER: Thank you.
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`MR. RENNER: Slide 15 please. So in our table of contents we
`outlined a few of the issues we are covering and Ms. Xie addressed item one
`with Wang and the articulation of how it’s structure is aligned with the,
`you’ll see the different references in particular, the XML file and the Table 1
`of the map to the claims.
`The next segment we wanted to talk about was this construction of
`fixing. This is something that has been hotly contested in the proceeding
`and so we wanted to make sure we gave voice to this.
`With the second argument, Qualcomm has attempted to distinguish
`the art through offering a construction of the fixing element that we believe
`to be unjustified and ultimately, even if adopted, met by the references.
`But before turning to addressing their construction, you will recall that
`we had addressed this term using plain meaning in the actual Petition and I
`wanted to review that from a few moments so that we had a solid foundation
`for what we were talking about there as we proceed.
`Looking at Slide 16 please. With Slide 16, we actually have the
`fixing element reproduced here so we can all ground ourselves in it. It’s the
`fixing subset of varying parameters in the top box associated with said first
`pattern. So you’re fixing these parameters, that’s the focal point of this
`element as its cast in the claim.
`Critically right after that it says by associating. So you’re fixing the
`parameters by associating and you’re by associating at least one parameter
`of said subset of ring parameter. So you’re fixing by associating X of
`parameter with Y, the first pattern to represent Z said at least one detected
`condition.
`So I wanted to break that down a little bit as we talk about it. Apple’s
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`Petition as you can see from the bottom of this slide, the bottom text box at
`page 13 it offers a plain meaning interpretation of what is being said here
`and it stays largely true to that language.
`It’s attempting to stay largely true to that language and also we will
`see that it’s mimicking of what we find in the prosecution history, arguments
`made to the patent office when this was offered by amendment, this
`language, as well as the specification.
`The plain meaning that’s offered here, I’ll quote is that the term, the
`fixing term is broad enough to encompass associating again X at least one
`parameter of a subset of varying parameters with Y, the first parameter to
`represent Z at least one condition.
`So you will see its parallel and tracking the claim. At edge, what this
`expression helps us to understand is that through the claim amendments that
`were offered by Qualcomm in prosecution, we know that the representation
`of a detected association, a detected condition is through the association of
`those parameters with a pattern. And this is very peculiar to this claim. The
`claim is as you can see quite detailed.
`If we go to the next slide please, we will look into other prosecution
`history where we see that the claim is quite detailed and made so by the
`amendment that was offered to gain it’s allowance in that it offers not just
`that you fix with some sort of an association and leaves general what that
`might look like.
`Instead it speaks exactly to what kind of association is necessary and
`it actually uses the word by to indicate that the fixing is accomplished by
`such an association, this very specific process of relating again X to Y to get,
`to represent Z.
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`The comments that were offered along with this amendment are
`telling and they are very important and they were put forth in the Petition as
`well, cited by Your Honors in the institution decision when earlier looking
`upon this.
`And I have reproduced those bottom Slide 17 to make sure we can all
`again put our head around it. And I will read from that. It’s Claim 1, 22 --
`the claims at issue have been amended says Qualcomm during prosecution
`to incorporate aspects of former claims to clarify, just to clarify that that
`fixing, that is the fixing with the subject of the fixing being the parameters,
`that it is done, that it is completed, it is done by associating. So it’s done by
`associating.
`At least one parameter X with a first pattern Y to represents at least
`one detected condition. We believe this to be highly probative and precisely
`aligned with the plain meaning that we get attributed to the term in the last
`slide.
`Slide 18 shows that this is not the only intrinsic record evidence
`however. It supports the claim meaning that was given to this term by
`Apple. Here we see in Slide 18 a quote from the specification itself that was
`offered in our Petition. And that we were quoting from the specification,
`forgive the bracketing, but its, if you look in, you will see its parameters on
`line 2, may be fixed for example by associating.
`So again we see this fixed by associating language, precisely the
`language that was in prosecution offered as something that completes or is
`makes done the fixing. Parameters X with pattern Y to represent certain
`detected conditions Z.
`The language here isn’t ambiguous we would submit. There is not a
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`need to go further than their language but it is true that we need to stay
`consistent with it, particularly since this was offered by amendment and
`supported with arguments to the office in seeking allowance of that
`amendment.
`JUDGE FISHMAN: Counselor?
`MR. RENNER: Please.
`JUDGE FISHMAN: Did the Examiner articulate a reason for
`allowance based on this amendment?
`MR. RENNER: I don’t believe so. I will check that on the, when I sit
`down and held the table to my colleague but I don’t believe so, Judge
`Fishman.
`JUDGE FISHMAN: Okay.
`MR. RENNER: In any event, it did follow however, immediately
`after the amendment and the offering here that allowance ensued so if that’s
`helpful to you. I will check that however to make sure that I’m not
`inaccurate in that.
`So if we could go to Slide 19, we would see and let’s go to Slide 20
`actually, sorry. We would see what does Qualcomm say about this plain
`meaning? There is an awful lot of record that’s presented to Your Honors
`with respect to the word associating.
`But associating as we saw when we were looking into the plain
`meaning and correspondingly the claim terminology that was put forth in the
`amendment and offered in the argument, associating isn’t left alone.
`Associating is very specifically laid out, this by association of X to Y to -- X
`with Y to get Z but there is a lot of discussion of associating may be or not
`be sufficient to itself, fix something.
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`And we would submit to Your Honors that that’s not the question at
`hand. The claim itself requires more which is why the plain meaning here
`speaks to associating the entirety of that which is in the claim itself in terms
`of associating the X parameter with the Y pattern to get to Z which is the
`ultimate product, a representation of the detected condition.
`And we don’t believe it’s proper to disregard that language. If you
`could back please to the prior slide. Because when you look into the
`deposition for instance of Dr. Allen, our expert, the questions were offered
`in multiple instances about what the word associating would mean and
`whether in fact it would have a fixing result to it.
`Left unchecked and alone, it’s not relevant what the answer to that
`question is. What’s important is in the context of the claim where you
`actually have an association of specifically parameter to pattern and the
`result commanded that is to represent at least one detected condition. We
`believe that to be more important.
`If I could now go to slide 20, please. I’m sorry, we’re at 20. The,
`stated otherwise, whatever the plain meaning of associated is or associating
`is, the claims require that the association be a specific one. And this is by
`again amendment offered under the aid of argument that speaks to the
`completion of the fixing.
`I hate to beat this to death but I just want to make it very clear on its
`arguments in the papers we are asked to look past the prosecution history.
`We are ask to look past the amendments, look past the plain meaning of the
`claim and look past frankly the specification itself. And in the absence of
`some reason to do that in the specification, it would not stand to reason and
`examples we would believe are not such a reason.
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`Slide 21 please. Another one of the issues that was brought up in the
`papers was a question of whether fixing so construed, so looked upon on its
`language but as a plain meaning would somehow interfere with or conflict
`with the step prior, the identifying step that these two couldn’t live in
`harmony is the sense, the essence of the augment as we understood it.
`Your Honors, we believe they cannot live in harmony and we believe
`that the mapping that we had given them puts them in harmony, identifying
`as it is stated here and shown in 21 is a step of identifying it’s just simply to
`understand the existence of something that’s identifying.
`In this case, the subject would be identifying a first pattern. And in
`this case you would do such an identification when you get a detected
`condition.
`Fixing on the other hand as stated in the claim and as we have talked
`about in several instances now, focusing on the parameter, is you are going
`to fix a parameter and you are going to do so by looking to the association
`between the parameter and a pattern, the pattern, first pattern to represent
`this at least one detected condition.
`A great deal more has to be done there is as it’s a consequence of not
`simply observing the existence of a pattern but actually yielding a
`representation of at least one detected condition for instance.
`So we would submit to you that the plain meaning that we have put
`forth has no conflict with these two living in harmony and with that, without
`questions we will move to Qualcomm’s construction and concerns that we
`have over it.
`Slide 23 please. With Slide 23, we see we reproduced at the top the
`actual construction that’s offered by Qualcomm in the papers and that is to
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`replace the word fixing with setting the scope of pattern recognition analysis
`to where and then later referenced to the matched parameters values.
`We’d actually submit to you that this is more than replacing fixing as
`I had just indicated. It’s really fixing a subset of varying parameters. Fixing
`the subject of it being a subset of varying parameters. It turns into setting
`the scope of an analysis to where a subset of parameters match.
`That’s, we believe quite a divergence and one that is not justified on
`the record, much less one that is necessary here. In fact, we would submit to
`Your Honors that this is the essence of importation of unclaimed subject
`matter at best put forth in examples in the specification.
`Worse is that with the prosecution history as it is, we would have
`injection of this in light of what was stated forth in the prosecution as a fairly
`clear, we thought articulation of what the fixing step was meant to be once
`there was an amendment made to it, an expensive amendment at that.
`If we could go to Slide 24 please we will see that in the briefing
`despite the dispute that’s been had over that construction and whether or not
`it is an appropriate one, there is a continued reliance on it and a continued
`pressing forth with it.
`Here we see that co-occurrence limitation which is tied to the
`articulation in that claim construction of where, the word where, there is the
`words when and co-occur that have been introduced there through that word.
`So the claim construction put forth has been then itself construed and
`again we would submit to Your Honors that that is injecting further meaning
`or limitation or changed meaning into the term.
`Your Honors, we don’t often refer to the institution decision because
`it is a preliminary writing but in this case, given that this argument stays
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`largely true to what was put forth in the POPR, we think it is important to
`look upon what was said there and there, the Board reviewed, considered
`and rejected and arguments were made with respect to the claim construction
`of the term fixing, so we do believe that would be appropriate.
`And I’ll quote from it just to make Your Honors, bring Your Honors
`back to the timeframe that was the decision there and its none of the
`challenged claims refer to a second pattern co-occurring with the first
`pattern. Co-occurring of course as you can see here is the essence of what is
`meant by the word where and what is being advanced here in this limitation
`that’s construed.
`If we could move to Slide 25, I’ll close and just noting that clearly as
`a motivation to construe the claim to make it narrower here, to try to avoid
`the prior art but we would submit to Your Honors that the terms have been
`changed quite dramatically by that construction and we see no reason to
`actually import the kinds of limitations that are here.
`That’s said on the paper and we will leave it to the papers. We
`believe that we have demonstrated that even the term if injected was
`satisfied by the art.
`So without further questions we would, I’ll leave my time to Mr.
`Rozylowicz and address questions further on redirect. Thank you.
`JUDGE WORMMEESTER: Thank you.
`MR. ROZYLOWICZ: Thank you, and good afternoon, Your Honors.
`My name is Tom Rozylowicz.
`Turning now to Slide 36 we will speak to how Louch grounds also
`satisfy the claim irrespective of whether the narrow construction was
`employed or the broader construction is employed.
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`Next slide please. Turning to Slide 37, first we take note of the
`similarities between the 865 patent and the Louch patent. And as is shown
`in the top portion, we see and the highlighted portion that the mobile device
`100 learns particular characteristics or the patterns of the state of the device
`and the user interactions with the device 100 in view of the state to
`determine which control action should be issued.
`And although not shown here, Louch then proceeds to note that
`various sensors can be used as inputs to develop t
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