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`Paper No. 28
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`INTEL CORPORATION,
`Petitioner,
`
`v.
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`HERA WIRELESS S.A.,
`Patent Owner
`_____________
`
`Case IPR2018-01700
`Patent 7,639,878 B2
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`____________
`
`Record of Oral Hearing
`Held: January 22, 2020
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`
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`BEFORE: THOMAS L. GIANNETTI, ROBERT L. KINDER, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
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`Case IPR2018-01700
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`APPEARANCES
`
`ON BEHALF OF PETITIONER:
`TYLER BOWEN, ESQUIRE
`CHAD S. CAMPBELL, ESQUIRE
`PERKINS COIE LLP
`2901 N Central Avenue
`Suite #20
`Phoenix, AZ 85012
`602-351-8448
`
`
`ON BEHALF OF THE PATENT OWNER:
`TIMOTHY DEVLIN, ESQUIRE
`PATRICK R. DELANEY, ESQUIRE
`DEVLIN LAW FIRM LLC
`1526 Gilpin Avenue
`Wilmington, DE 19806
`302-449-9010
`
`ALSO PRESENT: LAURIE CHARRINGTON
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`The above-entitled matter came on for hearing on Wednesday, January
`22, 2020, commencing at 1:00 p.m., at the United States Patent & Trademark
`Office, USPTO Madison Building, 600 Dulany Street, Alexandria, VA
`22314.
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` (Proceedings begin at 1:00 p.m.)
` JUDGE GIANNETTI: So good afternoon, everyone. We
`are here for a final hearing in Case IPR2018-01700, Intel
`Corporation versus Hera Wireless. This is the first of two
`arguments we're going to have today. One will follow the
`other, and there will be a 10 or 15 minute break between the
`two sessions.
` Let me begin by introducing the Panel. I am Judge
`Giannetti, I will be presiding at the first hearing. To my
`right is Judge Kinder, and on the screen to my left is Judge
`Ogden, appearing remotely.
` Let's start by getting appearances of counsel.
`Who's appearing today for the petitioner?
` MR. BOWEN: Tyler Bowen, Your Honor, on behalf of
`Petitioner, Intel Corporation, with my colleague Chad Campbell
`of Perkins Coie. And we have with us Intel's associate
`general counsel, Ms. Laurie Charrington as well.
` JUDGE GIANNETTI: Okay. Thank you and welcome back.
` MR. BOWEN: Thank you.
` JUDGE OGDEN: I'm having trouble hearing at this
`end.
` JUDGE GIANNETTI: Okay.
` JUDGE OGDEN: Is there a problem with the
`microphone?
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` JUDGE GIANNETTI: It is on, Judge Ogden. Can you
`hear me?
` JUDGE OGDEN: I can hear you; I just can't hear the
`podium.
` JUDGE GIANNETTI: Okay. Let's make sure the -- all
`right. I think one of the microphones was turned off. You
`should be able to hear it now. Why don't you test that, Mr.
`Campbell?
` MR. CAMPBELL: Can you hear us?
` JUDGE OGDEN: Yes, I can hear. That's better, thank
`you.
` JUDGE GIANNETTI: All right. I think we've solved
`our problem. So Judge Ogden is appearing remotely. And I'd
`like to get the appearances of the patent owner.
` MR. DEVLIN: Good afternoon, Your Honor. Tim Devlin
`of Devlin Law Firm on behalf of Hera Wireless. I'll be
`arguing the 1700 Petition. My colleague, Patrick Delaney,
`will argue the second argument today. Thank you.
` JUDGE GIANNETTI: Okay. All right. So we'll begin
`our argument in a minute. We do have a remote judge today,
`and so it is important that when you -- both sides have
`demonstratives, I believe. And so it would be important that
`if you are referring to a slide, please give the slide number
`so Judge Ogden can follow along. I think that's pretty much
`it.
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` Each side will have 15 minutes -- 45 minutes to
`present its argument. The petitioner can reserve time for
`rebuttal, Patent Owner can reserve time for surrebuttal.
` Any questions before we begin? Petitioner, any
`questions?
` MR. BOWEN: No, Your Honor.
` JUDGE GIANNETTI: Okay. And questions from the
`patent owner?
` MR. DEVLIN: Nothing, Your Honor. Thank you.
` JUDGE GIANNETTI: Okay. All right. So let's get
`started. Who is going to be making the argument on behalf of
`Petitioner?
` MR. CAMPBELL: This morning, Your Honor, I'm going
`to address two of the references, the Ishida reference and the
`Uhlik reference. And my colleague, Mr. Bowen, will address
`the Park reference.
` JUDGE GIANNETTI: All right. Okay. Whenever you're
`ready, Mr. Campbell.
` MR. CAMPBELL: I'd like to reserve 15 minutes for
`rebuttal.
` JUDGE GIANNETTI: Just set the clock here.
` All right. Whenever you're ready to begin.
` MR. CAMPBELL: Thank you, may I please the Board.
` I think it would be useful to start today by
`introducing just a couple of vocabulary terms that relate to
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`the specification in the '878 Patent. I think it will help
`both for any questions about claims construction that may come
`up, and also for the prior art discussion we'll have in just a
`second.
` If I could have Slide No. 3?
` JUDGE GIANNETTI: Can you hear, Judge Ogden?
` JUDGE OGDEN: Yes, I can hear. Thanks.
` JUDGE GIANNETTI: Good.
` MR. CAMPBELL: So we begin with this idea of a
`diversity reception operation. The '878 Patent describes a
`wireless system in which multiple base stations, which may
`have different transmission operations, are communicating with
`terminals, which may have different reception operations. And
`diversity reception is one type of reception operation
`described.
` The basic idea is you have two antennas in the
`terminal, and circuitry measures the level -- the reception
`level, the signal strength on each of the antennas, makes a
`comparison, and then decides to listen to the antenna that
`registers the highest. That's the idea of selective diversity
`reception that's described in the '878 Patent.
` If I could have Slide No. 4. The patent also
`describes a technique for transmitting from the base station
`called adaptive array transmission. And in adaptive array
`transmission, you have multiple antennas that are working
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`together in a control system that takes portions of the
`signal, assigns them various weights, combines them together
`in order to do what's called beamforming.
` An analog to that would be if I were shouting in the
`room, generally, and wanted to try to focus my voice a bit, I
`could put my hands up to my mouth. And that would have a
`tendency to direct the audio information in a particular
`direction in the same way adaptive array transmission or
`beamforming can channel the transmission. This leads to a
`problem in a system where you have multiple different types of
`reception operations.
` If I could have Slide No. 5, please? In Slide No.
`5, the patent describes that you've got a terminal performing
`the diversity reception. That's the one where you've got two
`antennas and you're trying to figure out which one is
`receiving more energy. And a base station that's using an
`adaptive array technique to transmit where it's trying to
`focus the transmission to a particular one of those antennas;
`and that leads to a problem.
` So we begin -- if I could have Slide 5? We begin
`with, in Figure 26B, two terminals that are adapted so that
`they can do the diversity reception. We have two base
`stations that are doing adaptive array transmission. And base
`station No. 1 is trying to form the beam and send it to one of
`the antennas, antenna No. 5a of terminal 5.
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` At the same time, because there's another base
`station No. 2 in the vicinity, there is an interference signal
`with the dash line U, extending up to the same terminal. And
`the risk is that the energy that's hitting the other antenna
`on terminal No. 5 is going to register higher so that you
`might have a situation where the receiver would actually get
`confused and listen to the wrong base station.
` And so what the patent teaches is to -- if I could
`have Slide No. 7, please? And just one other point before we
`move on, the patent also teaches that that same problem of
`antenna confusion can result if you're using a base station
`that's trying to do spatial multiplexing where you're trying
`to split the space and direct beams to different antennas to
`send different information.
` If I could have Slide No. 8. The solution that the
`patent proposes for this particular problem is to have
`terminals that will listen to signals from the base station
`about which reception operation to do. In the first
`embodiment, we've got terminal 7 and 8. They are capable of
`doing diversity reception, but when they get a signal from the
`base station that the base station's communicating using
`adaptive array technology, they transition to a different
`reception operation.
` If I could have Slide No. 9. At Column 15 with this
`first embodiment, the '878 Patent describes that when you --
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`when the base station indicates that it wants the terminal not
`to be using diversity reception, it will instead use a single
`antenna to receive. It will just pick one of the antennas,
`use that one. That's the one that the base station will focus
`the beam on.
` And instead of trying to decide which one has the
`higher energy; it will simply focus on that one. And that
`single antenna reception, in the context of the first
`embodiment with Figure 1 and the discussion at Column 15, is a
`reception operation that's adapted to the technique that the
`base station's using to transmit.
` If I could have Slide No. 10. A little bit lower in
`Column 15, the patent gives a few more details and explains
`that as a result of using the single antenna operation, you
`get an excellent condition to connect with the base station,
`which is using adaptive array transmission. Couple of other
`points about the '878 specification, if I could have Slide No.
`12.
` The patent includes a timing diagram that describes
`when the bit gets sent. You've got a link channel allocation
`request that comes from the terminal in Figure 5 of the
`patent, as shown on Slide 12. That's the first thing that
`happens. So the terminal says I want to talk. Please, let's
`establish a link channel. The base station responds with an
`allocation indication to the terminal, and that allocation
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`indication includes a bit that is an indication.
` And in this particular instance, when you have a
`base station like we saw in Figure 1, that was trying to use
`adaptive array technology, the bit value that's being sent
`would indicate to the terminal of Figure 1 that it -- instead
`of using diversity reception, it should use single antenna
`reception.
` Slide 13. The claims actually map fairly neatly to
`this description. We've got a receiver that's sending a
`connection request. We've got a transmitter for transmitting
`the frame to the terminal. And then, this signal that
`indicates a reception operation that's adapted to the
`transmission operation of the base station. And then, we've
`got first and second values of the bit, which specify first
`and second operations, and then one of those operations
`instructs the radio terminal to accept the frame in a
`prescribed manner.
` In the papers -- Slide 15 -- there really isn't any
`debate that the prior art that's been put forward in the
`petition satisfies the limitations, with the exceptions of
`Elements 1[c] and 3[c] in Independent Claim 1 and Independent
`Claim 3. So that's where the debate is focused in the papers,
`and that's what I'd like to focus on now with respect to two
`of the prior art references.
` I'm going to turn first to Ishida; the Ishida
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`reference. Slide 28. Ishida actually describes the same
`problem that's identified in the '878 Patent where you have a
`base station that's trying to send a spatially directed signal
`using adaptive array technology to a terminal that ordinarily
`would do diversity reception, where it's trying to figure out
`which antenna has the strongest signal.
` And it indicates, just as in the '878 Patent; Ishida
`does, that the -- one of the antennas might be selected by
`mistake because the diversity reception is simply looking at
`the signal level to make its decision. It proposes a solution
`in the summary of the invention on Slide 29. It indicates
`that the solution is when you have a radio base station that's
`performing communication with a plurality of mobile stations
`using space division multiplexing -- again, directing the
`beams, directing the information -- you can have a diversity
`reception stop instruction to each of the mobile stations
`where you're trying to direct the beams.
` That will stop the diversity reception and then have
`the terminal perform a reception using just one antenna. That
`is to say that the mobile station improves the communication
`quality by the diversity reception in the case of an ordinary
`base station, which isn't using spatial division, and by the
`one antenna reception in the other kind of base station that
`the patent's talking about where you are using spatial
`division with multiple antennas.
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` A couple of --
` JUDGE OGDEN: Counsel?
` MR. CAMPBELL: Yes.
` JUDGE OGDEN: Up until the point where, in Ishida,
`there's a receipt of the diversity reception stop
`instruction, can Ishida operate in any other way than
`diversity reception?
` MR. CAMPBELL: So the answer is, yes. There are two
`things -- two places to pay attention to in Ishida in response
`to that question. Let me go to the first one. If I could
`have Slide No. 31.
` So the terminal hardware is described in Figure 6 of
`Ishida. And it shows two antennas, and ordinarily, the switch
`19 during diversity operation would be trying to measure the
`signal strength and just picking the one that registers
`highest as the one that it would listen to. In reception
`operations other than diversity, that switch fixes on just one
`of the antennas and uses a single antenna. There's a flow
`diagram that shows how Ishida operates as these bits come in.
` If I could have Slide 32. In Figure 7 of Ishida, we
`begin the link establishment process, and the figure indicates
`that you've got a terminal that's operating in diversity mode
`if the receive -- excuse me. You've got the link
`establishment process at the top, it's transmitted first in
`Step 101.
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` Then the terminal receives the link channel
`assignment in Step 102. And then at Step 103, the bid is
`evaluated. And if it's a stop instruction, it stops and
`switches over to single antenna instruction. If it's the
`other value, if it's a zero, it doesn't stop and continues on.
` There's another part of Ishida later in the document
`that addresses what happens when the base station that's
`described in Ishida may be done using spatial division. For
`example, you may have a period, the patent suggests, where
`you've got many terminals that are listening to the base
`station. And then eventually, all of the terminals stop
`talking and you're just left with one.
` And in that circumstance, what the patent teaches is
`when it sees that there's just one terminal left, it will
`switch back to the diversity reception. So if I could have
`Slide 37? At Paragraph 90 of Ishida, when the radio base
`station is looking at the slot assignment table -- and that's
`the table indicating how many terminals am I talking to at a
`given time.
` When it gets to a spot where there's only one mobile
`station that's assigned to the transmission and reception
`timeslots, the radio station may instruct the mobile station
`to restart the diversity reception process. There's just one
`bit that does that, so that would be resetting the
`D flag to zero, which would restart the diversity operation in
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`that circumstance. So both moving from diversity to single
`antenna, and moving from single antenna back to diversity is,
`in fact, covered in Ishida.
` In the time that I have remaining to me before I
`turn it over, I want to talk briefly about Uhlik. The Uhlik
`reference -- if I could have Slide 58. The Uhlik reference,
`again, teaches a system in which you have multiple potential
`base stations that are speaking to multiple terminals.
` And in the context of Uhlik, there is something
`called a configuration message burst. This, again, is a
`message that gets sent from the base station to the terminals
`after the terminal has indicated it wants to have a
`conversation with the base station. And this configuration
`message burst, it is central to what we've explained in the
`petition.
` If I could have Slide 59. At Column 15 in Uhlik,
`there is a table, Table No. 8, that details what goes into the
`configuration message. There's a frame here with many
`different field and a number of different bits that have
`different pieces of information and control parameters that
`are assigned to them. The very last one at the bottom of
`Table 8 is a single-bit value; a hopping bit.
` Slide 60. Uhlik at Column 15 explains that if that
`hopping bit is equal to one, then the system is actually going
`to hop. There's a relationship between the physical and
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`logical carriers that hops each frame. As Dr. Wicker
`explained in his declaration, frequency hopping is well-known
`reception technique that's been used for a very long time.
` And the basic idea is that when you are going to
`hop, when that value -- that hopping bit value is one, the
`transmitter and the -- excuse me, the base station and the
`terminal are going to follow the same pattern both in terms of
`frequency values and time duration as they hop across the
`spectrum available to them. It's a spread spectrum technique
`that helps with interference.
` When the value is zero, there's no hopping that
`takes place. The zero value instructs the terminal that the
`base station is not going to be hopping around, and so if it
`wants to get the message, it needs to use a static frequency
`on the antenna. And so there again in Uhlik, as in Ishida, we
`have a bit that has two different values, and those two
`different values indicate two different reception operations.
` The one in the -- one case indicating hopping and
`the other case indicating the absence of hopping. And we find
`the claim language satisfied from that disclosure.
` JUDGE KINDER: How do you respond to their argument
`that, really, if it's in the negative it's not a separation
`operation, it's just taking the absence of the first
`operation?
` MR. CAMPBELL: So two responses. First, with
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`respect to Ishida, the terminals that are described in Ishida
`are only capable of doing two things. You can either do the
`diversity reception, or you can do single antenna. And if the
`receiver -- if the terminal's going to listen to the base
`station and it's told don't do diversity, it is, therefore,
`being told that it must do the single antenna operation
`because otherwise it can't receive anything.
` And Dr. Wicker explained that in that context the
`idea of stopping one, when you've only got two to use, means
`that you're going to have to use the other. There is a
`similar teaching in the '878 Patent in connection with Figure
`10. Figure 10 is an embodiment of a terminal in the '878
`Patent in which that terminal can only do two things.
` It can either do diversity reception where it's
`listing to find the highest signal, or it can fix one of them
`and just have a single antenna. And in the patent, the base
`station's just sending a zero or a one. When it sends the
`value that corresponds to adaptive array transmission to that
`terminal, the terminal can't do adaptive array reception and
`so it does single antenna reception.
` So in that case, the absence of one means you've got
`to do the only other thing that you can do. So in context
`because we're talking about digital systems and there's just
`one bit, that -- it's just a logic high or a logic low; the
`question becomes if I get the bit that indicates don't do one
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`thing, what does that tell me to do? And it tells you to do
`the only other thing that you can.
` I'm going to go ahead -- are there any other
`questions that I could respond to with respect to Ishida or
`Uhlik? If not, I'm going to go ahead and yield the floor to
`my colleague to speak about the Park reference.
` MR. BOWEN: Good afternoon, Your Honors. May I
`please the Board. As Mr. Campbell alluded to, I will speak to
`the third primary prior art reference that Intel identified in
`its papers; the Park prior art reference. And if I could
`start with Slide 44.
` Park discloses a communication system that uses a
`time switched transmission diversity mode of operation. And
`it's described in a quote on this slide that involves using at
`least two antennas that alternately switch in sending data.
`And that operation is shown in Figure 3, on the right-hand
`side of the slide where you can see two signals coming out of
`the two antennas.
` The black boxes that you can see represent data, and
`you can see that they switch back and forth between the two
`antennas. A terminal receives those two signals and then it
`puts the message together and decodes it. That's the TSTD
`mode. Can I have the next slide; Slide 45?
` Park also describes an alternative to the TSTD mode
`where the transmission in the reception are continuous. The
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`reference itself describes that the base station can elect to
`use just one of its antennas, either the first one or the
`second one to send the data in a single transmission. Just
`one. And Park describes, as shown in the second excerpt on
`this slide, that those are the type of implementations that
`are used in the non-TSTD mode, or the continuous alternative
`mode.
` Dr. Wicker described, as is shown on this slide,
`that a person of skill would understand these teachings to
`refer to a continuous reception of a one signal from one
`antenna; and that's the alternative to TSTD mode. May I have
`the next slide, Slide 46?
` Park takes a step further. It discloses that the
`base station sends the terminal a common control channel
`message that's shown in Figure 8C; it's on this slide. And
`that frame has a field in it called TSTD mode change. Park
`describes that when the system is planning to use TSTD mode,
`the base station has a final say as to whether that happens.
` And it says that the TSTD mode change information
`allows the base station to change to a non-TSTD mode; the
`continuous mode that we just talked about. When it doesn't
`want to use the TSTD mode, it uses this field. May I have the
`next slide, Slide 24? Or excuse me, Slide 47.
` Based on the teachings of Park and this TSTD mode
`change field, Park goes on to describe that after receiving
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`that CCCH message, the mobile station at Step 712, which is
`shown in Figure 7 on Slide 47, says that the mobile station
`using that message determines the transmission mode of the
`base station. Whether it's the TSTD mode or the alternative
`continuous transmission mode. So the signal indicates one
`operation, or it indicates a second operation.
` May I have Slide 48, please? Dr. Wicker describes
`that based on these teachings and the description of the field
`that's in the Park reference, a person of skill would
`understand that it's a single bit. There are only two
`options; TSTD mode or the alternative mode. Dr. Wicker also
`described that even if that weren't the case, it would've been
`obvious to use a single bit to indicate one option or a second
`option. That is an efficient way to signal to a mobile
`station, whether to use one mode or a different mode.
` In addition, as shown on Slide 49, during the
`prosecution of a European counterpart to the '878 Patent, the
`applicant there freely admitted that a single bit indicating
`whether a TSTD technique has to be used or not was part of
`Park's disclosure; and the Examiner agreed. May I have Slide
`50?
` A second part of the limitation that we're focused
`on --
` JUDGE GIANNETTI: Counsel, am I --
` MR. BOWEN: Yes, Your Honor?
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` JUDGE GIANNETTI: Am I correct here that, at least
`in Europe, Park was before the European Patent Office?
` MR. BOWEN: Yes.
` JUDGE GIANNETTI: They did consider Park?
` MR. BOWEN: Yes.
` JUDGE GIANNETTI: But not the U.S. Patent Office?
` MR. BOWEN: That's right. Well, actually, Your
`Honor, if you look at the first page of Park -- the first page
`of the patent rather, I believe Park was submitted to the U.S.
`Patent Office, but it didn't address that reference.
` JUDGE GIANNETTI: I see. So it was submitted in
`what, an information disclosure statement?
` MR. BOWEN: I believe so, Your Honor.
` JUDGE GIANNETTI: Okay. Thanks.
` MR. BOWEN: The other portion of the key limitation
`1[c] and 3[c] is about at least one of the bit values
`instructing the mobile station to perform an action that is
`adapted to the transmission operation. And I think the
`disclosure on Slide 50 here, describes -- in conjunction with
`Figure 7, that the mobile station detects the transmission
`mode of the base station by analyzing a message, and then it
`sets its reception mode according to the detected transmission
`mode.
` One last thought, Your Honors. If I could have
`Slide 51. So there was a suggestion in Hera's surreply that
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`somehow it's not the base station that's deciding whether to
`do TSTD mode or the alternative mode, but that it looks back
`at a message -- previous message that was sent by the mobile
`station in order to figure that out.
` The key passage that Hera points to is the second
`excerpt on this slide, which is referring back to the RACH
`message, which the base station receives at Step 604 in Figure
`6. And I just want to point out that later on in that same
`paragraph, it says that that determination depends on whether
`the base station has elected to change to the non-TSTD mode.
` And the highlighted sentence there is, "Here, it is
`assumed that there is no TSTD mode change." So it's actually
`the previous step, Step 610, that determines whether the
`mobile station, and in fact, that entire system, will perform
`TSTD or a continuous communication.
` And with that, Your Honors, I think that Intel will
`rest on its briefings for the remainder of the limitations;
`although, I do want to answer any questions that Your Honors
`may have about the Park reference.
` JUDGE GIANNETTI: Okay. I don't think we have
`anything further at this time.
` MR. BOWEN: I'll sit down. Thank you, Your Honor.
` JUDGE GIANNETTI: You have a few minutes left, you
`can add that to your -- you have 15 minutes of rebuttal time,
`we'll give you a few extra minutes since you're finishing
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`early.
` MR. BOWEN: Thank you, Your Honor.
` JUDGE GIANNETTI: So Mr. Devlin, do you want to
`reserve any time?
` MR. DEVLIN: I think just five minutes, Your Honor.
` JUDGE GIANNETTI: Okay.
` MR. DEVLIN: My guess is I won't go to this full 40
`the first time anyway, but if I could just get a warning
`before the last 5 in case something goes awry, that would be
`great.
` JUDGE GIANNETTI: Well, we'll set it for 40, and see
`when it runs down to zero, you'll have 5 minutes left.
` MR. DEVLIN: Thank you.
` JUDGE GIANNETTI: We don't have a clock here. I
`didn't realize that there isn't a clock here, so I'll give you
`a warning.
` MR. DEVLIN: Thank you. Thank you, Your Honor. I
`don't think we'll get there unless the Board has a lot of
`questions.
` JUDGE GIANNETTI: I'm used to being in a different
`hearing room. I didn't realize we didn't have a clock here.
` MR. DEVLIN: Understood. May I please the Board.
` JUDGE GIANNETTI: All right.
` MR. DEVLIN: Couple of high level points to start.
`I'm on Slide 2 of Hera's slide presentation.
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` There are two things going on here that are
`problematic. The first is the issue of the interpretation of
`the claims; what this element means. And I agree, by the way,
`we're going to focus on this one element that Petitioner is
`focused on in its argument. And the understanding and
`construction of what the language and words of that element
`mean and connote and require.
` The second is an issue of filling in the blanks.
`The references don't specify certain features recited in the
`claim element. And so the petitioner has sought to fill in
`the blanks, either through expert testimony, or
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