Trials@uspto.gov
`571-272-7822
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`
`Paper 19
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` Entered: October 5, 2020
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`MICROSOFT CORP.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`__________
`
`IPR2019-01026
`Patent 6,993,049 B2
`
`__________
`
`Record of Oral Hearing
`Held: September 10, 2020
`__________
`
`Before SALLY C. MEDLEY, JEFFREY S. SMITH, and GARTH D. BAER,
`Administrative Patent Judges.
`
`
`
`
`
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`
`
`
`
`571-272-7822
`
`
`Paper 19
`
` Entered: October 5, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`MICROSOFT CORP.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`__________
`
`IPR2019-01026
`Patent 6,993,049 B2
`
`__________
`
`Record of Oral Hearing
`Held: September 10, 2020
`__________
`
`Before SALLY C. MEDLEY, JEFFREY S. SMITH, and GARTH D. BAER,
`Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`IPR2019-01026
`Patent 6,993,049 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`SARAH E. JELSEMA, ESQ.
`ANDREW M. MASON, ESQ.
`Klarquist Sparkman, LLP
`World Trade Center, One
`121 SW Salmon Street
`Suite 1600
`Portland, Oregon 97204
`(503) 595-5300 (Jelsema)
`(503) 473-0804 (Mason)
`sarah.jelsema@klarquist.com
`andy.mason@klarquist.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`BRETT MANGRUM, ESQ.
`Etheridge Law Group, PLLC
`2600 E. Southlake Boulevard
`Suite 120-324
`Southlake, Texas 76092
`817-470-7249
`brett@etheridgelaw.com
`
`
`
`The above-entitled matter came on for hearing on Thursday,
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`September 10, 2020, commencing at 1:00 p.m. EDT, via Videoconference.
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`IPR2019-01026
`Patent 6,993,049 B2
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`P-R-O-C-E-E-D-I-N-G-S
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`1:01 p.m.
`JUDGE BAER: Hello, everyone. This is the hearing for IPR
`2019-01026, which is Microsoft Corporation v. Uniloc 2017 LLC. The
`patent at issue is patent number 6,993,049. I am Judge Baer and with me on
`the line is Judge Medley, as well as Judge Smith.
`If we could go ahead and get the parties appearances if we could,
`please? Who do we have for the Petitioner Microsoft?
`MS. JELSEMA: Sarah Jelsema for Petitioner Microsoft, and on the
`video conference today is lead counsel, Andrew Mason, who I understand
`will be turning off his video at Mr. Rogers' request earlier to save
`bandwidth.
`JUDGE BAER: Great, thank you, Ms. Jelsema, and you'll be
`presenting argument, is that correct?
`MS. JELSEMA: Yes.
`JUDGE BAER: Great, thank you. And who do we have for Patent
`Owner, please? Mr. Mangrum, are you there?
`MR. ROGERS: It looks like his microphone is muted. Stand by.
`MR. MANGRUM: Sorry, exactly, I had to unmute. I'll have to get
`in the habit of that. Brett Mangrum for the Patent Owner Uniloc 2017 LLC.
`I'll be speaking today, and with permission of Your Honors, I will present in
`a seated position just so I can stay on camera frame.
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`JUDGE BAER: Of course. Thank you, Mr. Mangrum. All right,
`we set forth the procedure in our trial hearing order, but just to make sure
`everybody knows how this goes, each side will have 45 minutes. You can
`divvy that up however you want as far as your reply, response, surreply.
`Rebuttal time is what I'm trying to say.
`We have the record in front of us, so if you would, tell us when
`you're referring to a particular piece of evidence, or a particular exhibit, or a
`particular slide number. That will also help us to keep the record straight.
`If you would, also please mute your phone when you are not
`speaking, and of course unmute when you are speaking, that would be
`helpful. And with that, I think we are ready to begin. Does Petitioner,
`Counsel for Petitioner have any questions?
`MS. JELSEMA: No, Your Honor.
`JUDGE BAER: Great, and Mr. Mangrum, any questions from you?
`MR. MANGRUM: None from Patent Owner, Your Honor.
`JUDGE BAER: Great, thank you. All right, Ms. Jelsema, we'll put
`-- first of all, do you want to reserve any time for rebuttal?
`MS. JELSEMA: Yes, please. I'd like to reserve 20 minutes.
`JUDGE BAER: All right, so we'll go 25 and 20 if my math is right.
`We'll put 25 minutes on the clock and you can begin whenever you're ready.
`MS. JELSEMA: All right, may it please the Board, thank you for
`your time today. Microsoft's petition demonstrated that Claims 11 and 12
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`of the 049 patent are unpatentable and should be canceled. The evidence
`developed for the petition has only further supported that conclusion.
`If you turn to slide two in Microsoft's demonstratives, it lists the
`grounds at issue in this IPR. Ground 1 is Larsson, Bluetooth, and RFC825,
`and Ground 2 is 802.11.
` As the Board and the parties are aware, the Board, in July of this
`year, issued a final written decision in an IPR finding Claims 11 and 12 of
`the 049 patent unpatentable as obvious over Larsson alone and Larsson
`combined with Bluetooth.
`The Board, in that final written decision, made several findings that
`are relevant to this IPR and I will refer to that IPR as the Apple IPR. If you
`click to slide three, two claim constructions are in dispute in this IPR.
` The first is inquiry message. This claim raised does not require
`construction, but it could be construed as a query for information or a
`message seeking information. In the Apple IPR, the Board construed this
`phrase as a message seeking information or knowledge, and that
`construction would also be acceptable.
`If you move to slide four, the other claim construction claim phrase
`whose construction is in dispute is additional data fields. This phrase does
`not require construction.
`Patent Owner proposed in its Patent Owner response that it should be
`construed to mean an extra data field appended to the end of an inquiry
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`message. Patent Owner also proposed this construction in the Apple IPR
`where the Board rejected it and declined to construe this phrase.
`As the final bullet point on slide four notes, Patent Owner also
`proposed another construction for this claim phrase on surreply. However,
`that construction not being raised until surreply was raised improperly late
`and is waived and the Board may not consider it. It was not raised until
`after the evidence in this IPR was developed.
`If you move to slide five, there are two disputed issues with regard to
`the Larsson ground. The first is whether Larsson discloses inquiry
`messages and the second is whether it discloses additional data fields.
`Moving to slide six, Uniloc only challenges with regards to the
`802.11 ground whether it discloses additional data field.
`If you click through to slide eight, in the prior final written decision
`in the Apple IPR, as I noted, the Board previously construed inquiry
`message and declined to construe additional data field. In that IPR, the
`broadest reasonable interpretation applied, and here, the Phillips standard
`applies.
`However, the dependent claim construction standards does not
`require a different claim construction for these phrases. There is no reason
`that the construction should be different and the parties have not put forth
`any arguments that would result in a different construction here.
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`As the Board has already addressed the claim construction of the
`terms at issue in this case, in this IPR, in the Apple IPR, unless there are
`questions about the claim constructions, I'll jump to discussing the grounds,
`so --
`
`JUDGE SMITH: Yeah, let me ask you just about the claim
`construction, I guess. Patent Owner does actually say the exact opposite of
`what you just said, that the two standards actually result in significantly
`different constructions, and you're saying they don't, and it's not really clear
`to me why the broadest reasonable interpretation would lead to the same
`result as the Phillips standard. Can you explain why you think that's the
`case?
`
`MS. JELSEMA: Yeah, I think the Federal Circuit has explained
`that in most instances, the standards result in, the different standards result in
`the same way.
`JUDGE SMITH: I mean in this case, in this case, why --
`MS. JELSEMA: Right, right.
`JUDGE SMITH: -- why it resulted in this case because I mean,
`here, Patent Owner is pointing to a district court decision where the district
`court actually said it understands inquiry message in the context of the
`disclosed embodiment in the claims as a message meant to identify other
`stations with which to communicate. I mean, that's what a district court
`said, and that's part of Petitioner's argument, and you're --
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`MS. JELSEMA: Yes.
`JUDGE SMITH: -- telling us that's not the case.
`MS. JELSEMA: That, I think in both IPRs, Petitioner's argued that
`that was our contention for -- I'm sorry. The district court did a narrower
`construction, and if the Board were to choose to find a narrower construction
`as the Phillips standard applies here, our argument would still be that the
`prior art still renders the patent unpatentable. I guess the question is about
`the claim construction, so --
`JUDGE SMITH: I'm asking you why should we, under the Phillips
`standard, come to the same result as under the BRI standard?
`MS. JELSEMA: Well, I guess, so if you look at slide, for example,
`21, even under the Phillips standard, you look to how a person of ordinary
`skill in the art would have understood the claim for them to mean its
`ordinary meaning.
`And we put forth evidence from Mr. Rysavy, which is excerpted at
`slide 21, that a skilled artisan would have understood it to mean a query for
`information or message seeking information, and not in a narrow Bluetooth
`context in which Patent Owner argues.
`If you look at slide 22, there's a dictionary excerpt about the word
`inquiry. Mr. Rysavy discusses that in his declaration and how that would
`impact the ordinary understanding of this term, and I think that under
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`Phillips, it's appropriate to look to dictionary definitions for a skilled artisan
`would understand it.
`And if you look at slide 23, what Patent Owner proposed is limiting
`inquiry messages based on the Bluetooth embodiment disclosed in the
`specification, and that's not appropriate because if you look at slide 24, the
`specification repeatedly says that the claims are not limited to Bluetooth
`embodiments.
`So, to incorporate the features the district court did improperly
`narrows the claim meaning beyond what a skilled artisan would understand
`it in the ordinary meaning of it under Phillips.
`JUDGE SMITH: Okay, thank you.
`MS. JELSEMA: All right, so if there are no further questions about
`claim construction, I will jump to slide, move to slide 25. The first ground
`at issue in this IPR is the Larsson, Bluetooth, RFC826 ground, and this
`ground, in the petition, Microsoft put forth an explanation very similar to
`Apple's explanation in the Apple IPR for why Larsson and Bluetooth render
`this use claim unpatentable.
`As in the Apple IPR, Microsoft's petition pointed to the request for
`route messages of Larsson as disclosing the inquiry message of the claims,
`and the broadcast message that Larsson discloses as being piggybacked to
`that request for route message as being additional field as cited in the claims.
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`And Microsoft additionally referred to RFC826 for implementation
`details regarding the ARP type of broadcast messages that Larsson discloses
`as being piggybacked to our request for real messages, and if you click
`through -- Uniloc only challenges whether or not Larsson discloses inquiry
`messages and whether Larsson discloses additional data field.
`And if you move to slide 27, in the Board's prior final written
`decision, it found that Larsson discloses inquiry messages under its
`construction of the term in that IPR, which was the broadest reasonable
`interpretation of a message seeking information or knowledge.
`And if the Board decides to maintain that construction here, we
`would submit that under the same or a very similar analysis, the Board
`should find that Larsson discloses inquiry messages here, but even if the
`Board decides to broaden that construction, Larsson still discloses -- or I'm
`sorry, narrow that construction as the district court said, Larsson still
`discloses inquiry messages.
`If you move to slide 28, Larsson discloses that if a route to the
`destination node is not known, then the source node broadcasts a request for
`route message in accordance with the step, that it requests -- it sends out a
`message that requests a route, so it's requesting information, and if you look
`at the district court's standard, I'll put that up quick --
`JUDGE SMITH: I think the district court said it's a message meant
`to identify --
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`MS. JELSEMA: Yeah.
`JUDGE SMITH: -- other stations with which to communicate. Is
`that right?
`MS. JELSEMA: Yeah, yeah, and so if you -- a message seeking a
`response to identify devices available for communication. So, if you look at
`that construction, even under that construction, Larsson discloses that
`because it's seeking a response that identifies whether or not the destination
`node can be communicated with, and it only requests a new route, as the
`second excerpt on slide 28 indicates, when the prior route that was used is
`broken.
`JUDGE BAER: Ms. Jelsema?
`MS. JELSEMA: Yes?
`JUDGE BAER: Can you flesh that out a little bit more? So, I
`understand that there's no dispute if it's just, if we construe the inquiry
`message just as seeking information. There's no dispute that Larsson
`teaches it, but could you go into a little bit more detail why Larsson
`discloses it, the discovery, excuse me, the inquiry message if we construe it
`the same as the district court?
`MS. JELSEMA: Yeah, so the source node in that Larsson is
`seeking to identify nodes along the path to the destination node so that it can
`communicate messages through those intermediary nodes, and we discuss
`this in our reply at pages 13 through 16 and our petition at pages 26 through
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`28 specifically how -- in our petitioner, we noted how, at note five, how the
`analysis that we were providing was even satisfying the district court's
`construction and --
`JUDGE SMITH: I'm sorry, which page of the petition is it?
`MS. JELSEMA: That's page 28.
`JUDGE SMITH: Okay.
`MS. JELSEMA: So, the request for route messages, Mr. Rysavy
`testified that -- at slide 33, Mr. Rysavy testified that, you know, because --
`this is a part of his original declaration cited in the petition, that a scatternet
`includes different nodes, so a person of skill in the art would have
`understood that a source node would send out a request for route messages
`to different destination nodes, and that this arises because nodes commonly
`leave and join the scatternet and that you would regularly send out request
`route messages to various destination nodes, and so you would send it to not
`just neighboring nodes that were both destination nodes and non-destination
`nodes, and --
`JUDGE BAER: So, is the sending node, the discovery device, is it
`discovering those intermediate nodes for the first time or does it already
`know of the existence of those intermediate nodes?
`MS. JELSEMA: I don't think it has any evidence that it was already
`aware of the existence of them. Is that -- the -- my understanding is that the
`piconet in a Bluetooth embodiment is often, you know, for scatternet, is
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`constantly changing of what potential nodes and devices they are to
`communicate with, and that's sort of the point of why you'd need to send that
`request for route messages to determine what --
`So if you look at, for example, slide 30, it talks about how when it's
`sending out a message, it's going to request to send its broadcast messages to
`all the neighboring nodes. It's not, you know, just sending it to like one
`specified one. I'm not sure if that answers the question.
`JUDGE BAER: That's helpful. Thank you.
`MS. JELSEMA: Okay.
`JUDGE SMITH: I guess what I'm trying to understand just, you
`know, looking at this in terms of what the district court said, the -- so the
`source node is sending out a request for route message, and then how do we
`go from the request for route message to say that this message identifies
`other stations with which to communicate?
`The request for route message, as I understand it, discovers the route
`for the sending device to be able to communicate with the destination
`device, but it's not actually discovering the destination device or it's not
`actually identifying the destination device. What --
`MS. JELSEMA: I'm not sure what -- sorry.
`JUDGE SMITH: Go ahead, go ahead, go ahead.
`MS. JELSEMA: I'm not sure if that's what the Board, or the district
`court for its interpretation of the claim because I'm not sure if that would
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`make sense with the claim itself. If you look at like slide 60, the method
`recites a method of operating a communication system that comprises of a
`primary station and at least one secondary station.
`The claim itself only requires a method that has two stations, so as
`far as the station between like discovering a new secondary station or like --
`JUDGE SMITH: Okay, why don't you --
`MS. JELSEMA: -- identifying a route to it, I'm not sure --
`JUDGE SMITH: Why don't you give me the district court's
`standard? What's the district court's standard for inquiry message?
`MS. JELSEMA: I think it's a message seeking a response to
`identify devices available for communication from Exhibit 1027 at 15 to 17.
`JUDGE SMITH: To identify devices for communication?
`MS. JELSEMA: Available for communication, a message seeking a
`response to identify devices available for communication.
`JUDGE SMITH: And how does the request for route message
`identify devices available for communication?
`MS. JELSEMA: It's a -- well, under Larsson, you send out a
`request for route message. It talks about sending them out until you get a
`response back, and I would presume that at certain times, you might send out
`those and just not get a response back and that device would not be available
`for communication then, right.
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`If it's moved outside the range of available networks or if it's turned
`off, if it's out of battery, that device would no longer be available if no route
`comes back for it, right. Whereas if you send a request for route message
`under Larsson and a message, a device responds and a route comes back to
`the same device, then you've identified that device is available for
`communication.
`JUDGE SMITH: Okay.
`MS. JELSEMA: So --
`JUDGE BAER: Maybe we could turn to the 802.11 reference and
`discuss the additional data field in the 802.11 reference at this point.
`MS. JELSEMA: Okay, that's on slide 55 of the slide deck and the
`petition explains how 802.11 discloses two types of probe requests, the
`broadcast probe requests and the targeted probe requests.
`And the broadcast probe requests are sent out and they lack the SSID
`information field, which is the field highlighted in yellow here, and the
`targeted probe requests which are intended to target a device that the, you
`know, the device sending out the target requests which communicate with,
`those include this additional SSID information field.
`So, the petition explains how these probe requests, the targeted and
`broadcast ones, correspond to the inquiry messages, and the SSID
`information field highlighted in yellow corresponds directly to the additional
`data field.
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`And Patent Owner only disputes whether this SSID information field
`constitutes an additional data field because it argues that it's still somehow
`existing with regard to broadcast probe requests, and the Board in the
`petition identified it as a factual dispute and invited the parties to provide
`further evidence and develop the record further with regard to that.
`If we move to slide 56, we've provided additional testimony from
`Microsoft's expert, Mr. Rysavy, where he explains that for broadcast probe
`requests, the probe request has nothing after the octet corresponding to the
`length field. He doesn't include anything for the SSID information field.
`There's a field in the protocol, but not a field in the actual requests.
`So, his testimony continues on slide 57 where he responds to some
`arguments that Patent Owner had put forth in their response, and in addition
`to this testimony from Mr. Rysavy, we've provided various background
`references that support Microsoft's interpretation of 802.11 and the fact that
`the broadcast probe request does not include that additional data field, the
`SSID information field.
`And two of those excerpts are excerpted on slide 58 and they were
`discussed both in our Petitioner reply and addressed by Mr. Rysavy in his
`declaration.
`If there are no further questions at this time, I can use the rest of my
`time for rebuttal.
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`JUDGE SMITH: Let me just -- oh, go ahead, Garth. Did you have
`a question?
`JUDGE BAER: No, go ahead.
`JUDGE SMITH: Yeah, I just had one question. I just want to
`follow up real quickly on this inquiry message from the district court. So,
`you pointed me to Exhibit 1027. I'm looking at Exhibit 1027. It looks like
`the district court in Exhibit 1027 framed it twice slightly differently.
`The first time, the court said inquiry message is a message seeking to
`discover stations with which to communicate, and then two paragraphs later,
`the court said an inquiry message is a message designed to identify stations
`that are available for communication.
`Is there a difference between a message seeking to discover stations
`and a message designed to identify stations or do those two sentences both
`mean the same thing?
`JUDGE BAER: I believe you're muted, Counsel.
`MS. JELSEMA: Oh.
`JUDGE BAER: We can hear you now.
`MS. JELSEMA: Okay, sorry. I was just -- sorry. I'm not sure if
`there's a difference between those. I was just looking at them at this
`moment, but --
`JUDGE SMITH: Well, I'm just bringing this up. Let me just tell
`you why I'm asking this question. If the request for route message is
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`designed to identify stations that are available, I mean, to the extent that it
`can establish a route that that other station isn't available, but seeking to
`discover stations.
`If the inquiring device is requesting a route to a destination device, it
`seems to me that it's already discovered there's another station that it wants
`to communicate with, so the request for route message wouldn't really be
`seeking to discovery that station as much as seeking to discover a route to
`that station.
`So, it seems to me there is a difference between these two, and I'm
`just asking you what are your thoughts on these two sentences? Do you see
`a difference or are they both the same in your view?
`MS. JELSEMA: Yeah, I guess, so if you look at -- I'm looking with
`you at Exhibit 1027, and if you look at the -- I'm sorry if this isn't directly
`responsive, but immediately before Section C on page 17, the Board
`construes the phrase inquiry message. I think it has a few sentences before
`then where it states, you know, inquiry message means this or that, but its
`actual construction is a message seeking a response to identify devices
`available for communication, and so I think --
`JUDGE SMITH: Okay.
`MS. JELSEMA: So, I think that it's seeking a response, I mean, to
`identify devices available for communication. I think in the context of the
`claim, which only requires a system with only two devices potentially, you
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`know, it could be identifying whether or not that second device is available
`for communication with a request for route message depending on whether it
`returns a response. It's a message seeking a response to identify whether a
`device is available for communication.
`JUDGE SMITH: Okay, yeah, I just bring that up just because it
`looks like in the Petitioner's reply, I'm reading on page 16 of Petitioner's
`reply, on page 16, Petitioner said the request for route messages in Larsson
`are indeed seeking to discover recipient or destination devices. So --
`MS. JELSEMA: Okay.
`JUDGE SMITH: I mean, Petitioner itself used the word discover --
`MS. JELSEMA: Discover, okay.
`JUDGE SMITH: -- rather than identify. That's why I'm -- I mean,
`so I guess, yeah, what I'm asking is where does the Petitioner come down on
`this? Is --
`(Simultaneous speaking.)
`JUDGE SMITH: Oh, go ahead.
`MS. JELSEMA: The question is whether or not discovering and
`identifying are the same? Is that --
`JUDGE SMITH: Is discovering in Petitioner's view, is Petitioner
`arguing that discovering is part of the narrower construction by the district
`court or is it just the actual construction by the district court of message
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`seeking a response to identify devices? Because the arguments from
`Petitioner include the word discover, but --
`MS. JELSEMA: Discover.
`JUDGE SMITH: -- the --
`MS. JELSEMA: I don't think we intended to narrow the district
`court's construction more than it narrowed it in our analysis in the
`Petitioner's reply where I believe it said the word discovery.
`JUDGE SMITH: Okay.
`MS. JELSEMA: I apologize if that was confusing.
`JUDGE SMITH: Okay, thank you.
`MR. MASON: And Your Honor, this is Andy Mason, lead counsel
`for Microsoft, if I may just step in for a second here? I know Ms. Jelsema
`does not qualify technically for the LEAP program, but this is her first
`argument, so I just wanted to clarify one point here and that's that whether
`it's discover or identify, the Larsson system in its request for out messages
`satisfy the claimed inquiry message.
`And if we look at slides 35 and 36 in the demonstratives, we have
`clear testimony from Mr. Rysavy explaining how you have devices leaving
`and joining the network at various times. You don't know which devices
`are in the network and available for communication at a given moment.
`That's why these request for route messages are sent out.
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`And in that testimony in Exhibit 1028, paragraph 37, as reflected in
`slides 35 and 36, paragraphs 37 and 38, Mr. Rysavy explained how, you
`know, you don't know if the destination node is available for
`communication, so you're seeking to discover or identify whether it's
`available for communication.
`Similarly, you don't know what intermediary nodes are available to
`help you reach your destination node, and so Mr. Rysavy explains on slide
`36 how even the intermediate devices themselves are devices that may or
`may not be available for communication, and their response to the request
`for route message will confirm, hey, I'm available for communication. You
`can send the message through me to get to your destination node.
`So, there are at least a couple of different instances that would satisfy
`even the narrower construction, and we would also note that in that district
`court decision, Uniloc itself argued against this narrower construction, and
`there is evidence of record in that district court, namely the Wells
`declaration, that is not of evidence here, and in fact, there is evidence on our
`side from Mr. Rysavy explaining why inquiry message should not have this
`narrowing meaning.
`So, hopefully that helps. I just wanted to step in to try to resolve
`
`that.
`
`JUDGE SMITH: Let me just follow up. At least one question is a
`follow-up to that. You know, I guess -- well, I guess two questions.
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`You know, in terms of discovering the device, to the extent that the
`source node is seeking a route to the destination device, it doesn't seem, at
`least to me, that the source node is seeking to discover the device. It actually
`is aware of the device, it's just seeking to discover a relative to that device.
`In what sense would the -- and I'd like to get your thoughts on that.
`And then the second question I have is, these intermediate nodes, to the
`extent that all they're doing is just passing mail from the source to the
`destination, are they really -- is the source node really communicating with
`these intermediate nodes if all they're doing is just passing the mail so to
`speak? Can you comment on those two points?
`MR. MASON: Yes. So I think on the first point, where there is
`discover identified, I think it still satisfies the claim language, I think we
`look at the full context of the claim term. It's not just that you're seeking to
`discover a device out there and then determine if it's available for
`communication.
`I think if we look at the context of the term you're seeking to
`discover that it's available for communication. You know, I might know that
`there is a person that exists out there, I might know of their existence, but I
`still might go and seek to discover them and seek to locate where they are
`such that I can talk to them or communicate them.
`And Uniloc has not raised any argument that there is a distinction
`between discovery and identify or that, you know -- and so here we would
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`submit that the request for route messages is satisfied even -- you know,
`whether it's discover or identify.
`And I will add too again that the district court construed it as
`identify. So, I'll pause there and see if you have any questions or -- on that
`first question. And I'll turn to you.
`JUDGE SMITH: Okay, okay, I'm interested in the second question.
`MR. MASON: Yes. And then I would say --
`JUDGE SMITH: About intermediate nodes.
`MR. MASON: Yes. And, again, Mr. Rysavy has explained how
`these intermediate nodes themselves, you -- the request for route messages,
`they receive them, and then look and see what they are and then they will
`pass them on trying to identify or locate the destination node.
`And then once the destination node is located, if it is, those messages
`will come back through those intervening nodes. And so those intervening
`nodes in fact are responding to that request for route message and
`identifying themselves as part of the route.
`So, yes, they -- those intervening nodes are actually responding to
`the request for route message as well. And I --
`JUDGE SMITH: But I mean -- and I guess the question was more,
`you know, in what sense is the source node communicating with
`intermediate?
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`I mean, it seems to me that the communication is -- to the destination
`device not to the -- in what sense are the intermediate nodes communicating
`with the source nodes?
`MR. MASON: They are sending messages back. I don't think --
`my understanding of the district court claim construction is it's not requiring
`that these devices available
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