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`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`BEFORE HONORABLE CATHY ANN BENCIVENGO, JUDGE PRESIDING
`________________________________
`BELL NORTHERN RESEARCH, LLC,,
`Plaintiff,
`
`))
`
`)
`
`) CASE NO. 18CV2864-CAB-BLM
`)
`) SAN DIEGO, CALIFORNIA
`)
`) THURSDAY, JANUARY 16, 2020
`)
`)
`
`vs.
`LG ELECTRONICS INC., LG
`ELECTRONICS U.S.A., INC., and
`LG ELECTRONICS MOBILE
`RESEARCH U.S.A., LLC,
`)
`Defendants.
`________________________________)
`
`))
`
`STENOGRAPHER'S TRANSCRIPT OF PROCEEDINGS
`CLAIMS CONSTRUCTION HEARING
`
`Proceedings reported by stenography, transcript produced by
`computer assisted software
`Mauralee Ramirez, RPR, CSR No. 11674
`Federal Official Court Reporter
`ordertranscript@gmail.com
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`LG 1032
`LG v BNR
`IPR2020-00108
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`BEFORE HONORABLE CATHY ANN BENCIVENGO, JUDGE PRESIDING
`________________________________
`BELL NORTHERN RESEARCH, LLC,,
`Plaintiff,
`
`))
`
`)
`
`) CASE NO. 18CV2864-CAB-BLM
`)
`) SAN DIEGO, CALIFORNIA
`)
`) THURSDAY, JANUARY 16, 2020
`)
`)
`
`vs.
`LG ELECTRONICS INC., LG
`ELECTRONICS U.S.A., INC., and
`LG ELECTRONICS MOBILE
`RESEARCH U.S.A., LLC,
`)
`Defendants.
`________________________________)
`
`))
`
`STENOGRAPHER'S TRANSCRIPT OF PROCEEDINGS
`CLAIMS CONSTRUCTION HEARING
`
`Proceedings reported by stenography, transcript produced by
`computer assisted software
`Mauralee Ramirez, RPR, CSR No. 11674
`Federal Official Court Reporter
`ordertranscript@gmail.com
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`1
`
`LG 1032
`LG v BNR
`IPR2020-00108
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`APPEARANCES:
`For The Plaintiff: Sadaf R. Abdullah, Esq.
` Steven J. Udick, Esq.
` SKIERMONT DERBY LLP
` 1601 Elm Street, Suite 4400
` Dallas, Texas
`
` Mieke K. Malmber, Esq.
` SKIERMONT DERBY LLP
` 800 Wilshire Boulevard, Suite 1450
` Los Angeles, California 90017
`
`
`For The Defendants: Michael McKeon, Esq.
`LG entities Andrew Schwentker, Esq.
` Laura Carnell Whitworth, Esq.
` FISH& RICHARDSON P.C.
` 1000 Main Avenue SW, Suite 1000
` Washington, DC 20024
`
` Joanna M. Fuller
` FISH & RICHARDSON, P.C.
` 12390 El Camino Real
` San Diego, CA 92130
`
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`Also Present: Afzal Dean, Bell Northern Research
` John Veschi, Bell Northern Research
` Kristen Choi, LG
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` San Diego, California; Thursday, January 16, 2020; 9:00 a.m.
`(Case called)
`MS. ABDULLAH: Sadaf Abdullah with the law firm
`Skiermont Derby on behalf of Bell Northern Research. With me
`is my partner, Mieke Malmberg, and my colleague, Steve Udick,
`and I would also like to introduce to your Honor my client,
`Afzal Dean, president of Bell Northern Research, and Mr. John
`Veschi, who is a board member of BNR.
`MR. McKEON: Good morning, your Honor. Mike McKeon of
`Fish & Richardson representing LG Electronics. With me today
`is Ms. Joanna Fuller, Andy Schwentker, and Ms. Laura Whitworth.
`And our client representative today, your Honor, from Seoul is
`Ms. Kristen Choi.
`THE COURT: Thank you. Good morning.
`All right. We are here for your claim construction
`and motions for related claim construction and, therefore,
`claims of indefiniteness. With regard to the claim
`constructions, there are two patents at issue and five claim
`terms. You have provided an outline of how you want to
`proceed. The Court is fine with that, so the floor is yours.
`Ms. Abdullah.
`MS. ABDULLAH: Thank you, your Honor. If I may, may I
`submit to the Court printed copies of our tutorial, as well as
`I have the presentation on USB because there's some animations
`that won't work if you print them.
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`THE COURT: All right.
`MS. ABDULLAH: U.S. Patent Number 7,945,285 which
`we'll refer to as either the '285 patent or the Cao patent is
`entitled Integrating a Digital Encoded-Audio Bit Stream Player
`in a Radio-Frequency Telephone Handset. Now for this patent,
`we're going to take you back to November 1999 which is the date
`that the priority application to which this patent claims
`priority was filed.
`I have up on the screen here the family tree which is
`going to become relevant later on, but just for illustrative
`purposes, the original application which issued as Patent '284
`was filed November 23rd, 1999. There was a continuation after
`that that resulted in the '363 patent. And the Cao patent, the
`'285 patent, is a continuation of that that issued on May 17th,
`2011.
`
`The prior art problem that is described in the '285
`patent is that essentially users have a need and a use for a
`number of portable devices, and these portable devices are
`useful but there's a point at which a user has to decide
`between which portable devices to carry around at any one time.
`And so the example given here is that you might want to have a
`telephone and you might also want to be listening to music and
`you might also not want to miss calls coming in when you're
`listening to music.
`This particular embodiment that is discussed here, or
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`this problem, is in the context of cordless phones. The patent
`though, as we'll see, and the particular claim that we're going
`to be discussing is drawn to RF telephone handsets. So again,
`what we're looking at as an example is that you might have a
`cell phone and then you have to carry around your MP3 player.
`Now In 1999 that was after -- I have the iPod up to the screen
`here. The iPod didn't actually come out until a couple of
`years after, but --
`THE COURT: You couldn't find an MP3 player?
`MS. ABDULLAH: Exactly. Around 1999, they were
`starting to get to somewhat popular. You had the Walkman
`before that. This is around the time when people are starting
`to switch more to those type of MP3 players.
`And so the solution that Cal delivers in the '285
`patent is one portable device for both the telephony and other
`functions. Figure 1 in the patent is a block diagram that
`shows an example of what that might be. You have in this
`example a cordless phone that has an MP3 player built into it.
`And here is Claim 1. Now Claim 1 is obviously very
`lengthy. A lot of what these limitations talk about are kind
`of the same events and things that are happening, but each
`limitation or each set of limitations might dig more into
`different pieces of the invention. So we're going to sort of
`take it one by one. We might go over some ground a few times
`just to kind of dig into the different components and parts of
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`the method. But generally it's a method of integrating the
`digital encoded audio bit stream player in a RF telephone
`handset. Audio bit stream player is basically the music player
`part.
`
`Now here I'm showing a couple of the key components
`that we'll talk about in a little bit more detail: The
`digital-to-signal processor, the digital-to-analog converter.
`Some of the other limitations go into a lot of detail about
`what these components do, what they're doing to the signaling,
`and how to accomplish this switching that we're going to see in
`a minute.
`So we start of with establishing an RF connection
`between the RF telephone handset and a RF unit connected to the
`network; wherein communications between the RF telephone
`handset and the network pass through the RF unit. So in this
`example since we're talking about a cell phone, you have your
`the RF unit, the cell tower, which is connected to AT&T or any
`other network, and your communication between the device and
`the network are going to pass through that RF unit.
`So generally, you know, we're viewing this as a phone
`first. So you've got this telephone handset and you're going
`to use it then to start playing your music. That music is what
`we're going to refer to as the digital encoded audio bit
`stream. Now the idea here is that we want to mute that music
`when a telephone --
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`THE COURT: Counsel, you know what? I know you took a
`lot of time to prepare all this, and it's all very interesting,
`but most of this is irrelevant to, I think, the issue of claim
`construction here. The question here is whether ten years
`after this patent was initially filed and the priority date
`you're claiming, you're saying that the RF unit -- both the
`unit and the handset can encompass a cellular network. And in
`light of the prosecution history when the cellular prior art
`was raised and cellular networks were known at the time this
`patent was filed, the patentee made an affirmative
`representation to the Patent Office that this patent was not
`about cellular art, that it was about cordless phones.
`And the fact that you wrote later a claim that is a
`little more generic -- it doesn't say cordless phone. It
`describes a cordless phone as an RF unit -- should you be
`allowed to recapture what you have affirmatively represented to
`the Patent Office was not the subject matter of this patent?
`Because I think it's a total end run.
`You say there's no new art, there's no new matter
`introduced in this patent and, yet, you're trying to claim even
`by the illustrations you gave me that this patent covers a cell
`tower as an RF unit and a cellular phone when very specifically
`in the prior prosecution, they said that the prior art here
`doesn't disclose or suggest a remote handset of a matched base
`unit that can switch between the performing of this these
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`functions. The prior art are within the cellular telephone
`art. They are not providing a motivation of application
`outside of the cellular telephone art, much less application to
`a cordless telephone.
`Now I know the earlier patents all use the words
`"cordless phone," but the fact that the cordless phone can be
`described as an RF unit doesn't allow you to recapture what you
`fundamentally told the Patent Office this patent is not about.
`MS. ABDULLAH: Your Honor, we did not ever tell the
`Patent Office that this patent was not about cellular phones,
`wireless phones, cordless hand units. What you're referring
`to, your Honor, are prosecution history from the other patents.
`And, yes --
`THE COURT: They're all in the same family. They're
`all based on the same specification. The material that was
`added was specifically represented as not new matter and was
`specifically added with a disclaimer because it was challenged
`as double patenting overt the '38 -- what's the earlier?
`MS. ABDULLAH: The '363.
`THE COURT: No, the one that's right before it.
`MS. ABDULLAH: Yes. That's the '363. The '284 is the
`grandparent. '363 is the one directly before it.
`THE COURT: Okay. And the Patent Office said, No, you
`can't have these claims. You're just double patenting. And
`you said, Well, we'll do a disclaimer because it's essentially
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`the same thing.
`MS. ABDULLAH: Yes, your Honor. And even there, the
`examiner allowed those claims.
`THE COURT: Right.
`MS. ABDULLAH: Didn't object to those claims based on
`the original specification without any amendments.
`THE COURT: Right. Because an RF unit was understood
`to be exactly what you have represented from 1999 going
`forward, for this patent to be a cordless telephone, not a
`cellular phone.
`MS. ABDULLAH: Your Honor, respectfully, if you look
`at the different aspects, it's not -- I'm sorry. I'm going to
`switch to my argument slides real quick since that's where I've
`got this material.
`THE COURT: Yes.
`MS. ABDULLAH: If we can go to slide 18, please.
`We had in those original applications, the '284 and
`the '363, there were election restriction requirements pulled
`by the examiner. And this is an example of where the examiner
`said, These are the different species that would be potentially
`supported by this specification. Species I is the one that
`applicant elected in both prosecutions, and that one
`specifically is drawn to a base unit of a cordless telephone.
`But not all of these species refer to a cordless phone.
`Species II, connected to a wireless local area
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`network. That's not a cordless phone.
`Species IV where it's generally referring to a
`wireless telephone. That's not necessarily a cordless phone.
`Maybe you could classify one as a wireless telephone. But this
`is talking about -- this is in that original history, and this
`is what the examiner said, here are all these different species
`you could potentially support.
`And if we could go to the next slide. He made the
`applicant select a single one. And on the following slide, we
`see that the applicant selected species I, which is the
`cordless phone one. So from the very restriction
`requirement -- and if we can go to slide --
`THE COURT: Okay. So you made that election. So how
`do you go back to say now we want -- because you were faced
`with prior art that was cellular.
`MS. ABDULLAH: Yes.
`THE COURT: And you avoided it by saying we're not
`talking about cellular. This patent is not about cell towers.
`The cellular telephone receiving a call signal from the cell
`tower is not a remote handset of a matched base unit that can
`switch between performing as a telephony device and an MPEG
`audio player.
`MS. ABDULLAH: But there's nothing wrong with the
`applicant distinguishing cordless phone telephone claims versus
`cellular art when they elected to limit the invention to just
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`cordless phones.
`THE COURT: So then you've elected that. So why do
`you get to change that later and then not have the same
`restriction?
`MS. ABDULLAH: Because the law is clear that the
`restrictions requirements do not carry to children
`applications. That is in the case law that we cite on page 17
`of our brief in footnote 3. And there's also case law on page
`19 of our opening brief that supports the idea that there is
`nothing wrong with a parent application claiming something much
`more narrow and then a child application broadening it if it's
`supportable by the claims -- I'm sorry, by the specification.
`And where we have an election requirement, that very
`specifically you know --
`THE COURT: So where is it supported by the
`specification? Where it the word "cell phone" or "cell tower"
`ever described in the specification?
`MS. ABDULLAH: There are a number of places.
`THE COURT: The word "cell" never appears in the
`specification.
`MS. ABDULLAH: You're right, your Honor. Right, the
`"cell phone" term does not appear. But RF telephone handset
`does, and that's a broad term. There are two specific
`embodiments that the specification contains that LG pretty much
`glosses over that are all about RF telephone handsets and
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`generation --
`THE COURT: Which embodiments? Where under the
`detailed description of illustrative embodiments is there a
`description of a handset that's a cell phone?
`MS. ABDULLAH: It's not a cell phone, your Honor.
`It's an RF telephone handset.
`THE COURT: And everything else in that entire
`embodiment talks about the present invention being a cordless
`phone. Is there no restriction based on the way it's described
`when at the time, cell phones existed. This isn't art that
`came into being later that couldn't have been anticipated and
`the inventor could have described or at least said somewhere
`this could equally apply to a cell phone or a cell tower. And
`it never appears. Everything in here is focused solely on
`cordless phones and how they operate, and base units, matched
`base units for those phones?
`MS. ABDULLAH: But, your Honor, again, the applicant
`decided to restrict it to the cordless phones, and so at that
`point, it didn't really matter whether you put cell phone or
`whatnot in there. I have up on the screen the embodiment
`portions that refer to the RF telephone.
`THE COURT: Those are just the claims recited.
`They're not embodiment portions. They're in the summary
`invention and they are word-for-word the claims of the patent,
`but they don't really -- they don't change the embodiment
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`portion of the patent. They don't amend it, they don't add to
`it, nor could they because it would be new matter. You simply
`wrote in an introduction and stuck the claims in the front, and
`it really doesn't add anything to the patent.
`MS. ABDULLAH: What it does is it goes back to one of
`the other species that we elected not to pursue with the '284
`and '363 patents. And there's nothing wrong with that.
`THE COURT: All right. The only way you're getting
`out of this problem is with that argument. And you need to
`respond to that.
`MR. McKEON: Okay, your Honor. Thank you.
`THE COURT: Defense.
`MR. McKEON: And, your Honor, we have some slides.
`Can I hand them up to you?
`THE COURT: Sure.
`MR. McKEON: Again, your Honor, Michael McKeon for LG.
`Good morning. So I gotta tell you, I was a little taken aback
`by the tutorial when I saw the cellular phone next to the
`claim. And this patent mentions cordless telephone 50 times
`and cellular telephone appears nowhere. Nowhere. And what
`happened here, your Honor, is that when they filed this in
`1999, it was all cordless telephone. The words "RF telephone
`handset" weren't there. And what we have on the screen, your
`Honor, is the amendment they filed in 2010 adding that column 2
`that your Honor referenced which is basically copying the
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`claim. And see, what was going on here, your Honor, was --
`what was happening in the early 2000s, the cellular
`technology--
`THE COURT: Okay. I get all that. I understand all
`that. If I read the claim in and of itself, I would say yes,
`they could cover a cellular phone. However, you have pointed
`out numerous places in the prosecution history as well as the
`language of the specification that is very direct and not just
`here as an example, but here is the present invention of the
`cordless phone.
`MR. McKEON: Absolutely. Absolutely.
`THE COURT: Now they have given me a statutory excuse.
`They had to make some election in 1999 that making that
`election doesn't preclude them from amending later to capture
`what they said this patent was not about.
`MR. McKEON: Let me address that, your Honor.
`THE COURT: So go to that.
`MR. McKEON: First of all, I want to just point to "no
`new matter added" so when that stuff was added in the patent
`case, nothing new here. And when go back to the original 1999
`claims "no new matter added," we're talking about cordless
`telephones here.
`But let me get to specifically your question, and
`that's an important question. So what we have on the screen,
`your Honor, are all the relevant prosecution histories. To the
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`left is the '284 patent, and that's the grandparent. The '363
`patent is the parent. And then of course, the patent in this
`case, the '285, is the child of '363. And then you have the
`Canadian and Europe.
`The election that she's talking about, my capable
`co-counsel here is talking about is -- it happened in the '363
`patent. So if you're going to make that argument, maybe you
`can toss out '284, but you certainly can't toss out '363. And
`if you go through the statements, your Honor -- let's start
`with the '284 just for completion. And, your Honor already
`knows the record because you're articulating it perfectly.
`These statements are so clear and unequivocal. I've never seen
`prosecution history so powerful here. A cellular telephone
`receiving a call signal from a cellular relay tower is not, I
`mean, bold, capped, underlined a remote handset.
`I mean, we can go through all this. But it's clear,
`again, a cellular telephone is not a remote handset of a
`cordless telephone. They just ran away from the prior art that
`had all this laid out.
`Now lets' move forward, your Honor. Let's go to the
`'363. This is where the election occurred, in this file
`history. So to give credit to that argument, okay, throw out
`'284, but let's look what they said in '363. Right here,
`again, your Honor. Okay. No all caps, bold, but: A cellular
`telephone is not a remote handset of a cordless telephone. And
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`then right here at the bottom here: Rather this prior art
`reference explicitly teaching is limited to a cellular
`telephone. This prior art reference teaches away from the
`present invention. Wow! and here we're talking about -- we're
`talking about the '363, which is after the election was made.
`And if I can have the Elmo for a second, I would like
`to show your Honor something from their brief which I think is
`interesting. This is at page 16 from the BNR brief. And what
`they do here is they take these statements that I just read to
`you, right, the one from '363 on the left, and on the right,
`are the claims that we're talking about "cordless telephone,"
`and then you see here "wireless handset." So when they made
`these statements, they were really making them with respect to
`wireless handset claims.
`So when they have this RF telephone handset -- and to
`their credit, that's not used -- that term is not used here,
`but they're disavowing a cellular telephone. They're
`disavowing a wireless telephone. That's how strong these
`statements are, your Honor, in this record.
`If I can go back to the slides, please.
`And let's go to the Canadian patent, your Honor.
`Again, the language here, we're talking about cordless
`telephone distinct in the art from cellular telephone. And
`it's interesting too, your Honor, in the specification, you'll
`see it, in the prosecution history, you'll see what they were
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`inventing here, they say we invented a simplistic, regular,
`normal cordless telephone combined with the MP3 player. And
`they disavowed combining it to a cellular telephone. And
`they're explicit here. You see the Canadian history here:
`Inventing a simplistic device.
`And, again, your Honor, to the European patent,
`compelling evidence here. Disclosure of features for a mobile
`telephone; i.e., cellular telephone, do not disclose or suggest
`the application of those features to a cordless telephone, much
`less to a -- and this one is underlined and highlighted for the
`examiner: Remote handset of a cordless telephone.
`Again, more references here on slide 45, your Honor,
`and I could continue to go through it, but you certainly get
`the point. This slide here on 47, this statement is made in
`all these patents. The invention, every one of them you see on
`the screen here relates generally to a cordless telephone.
`They said that in every one of these when they made these
`arguments about cell towers, cellular phones. Nothing to do
`with what we invented.
`And in the language, your Honor, we're talking about
`with these claims, wireless telephone, a remote handset of a
`cordless phone, this is pure and simple, your Honor, disavowal.
`It doesn't get stronger than this in the cases, in the
`Microsoft and all cited cases as examples, your Honor, where
`clearly the prosecution histories of the parent and the
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`grandparent. This is all relevant and very persuasive evidence
`that they ran from this.
`And we also cited, your Honor, the inventor testimony.
`I know that's sort of last on the list of evidence. But it is
`telling that when describing this, the inventors were not
`dealing with cellular technology. It's cordless telephone
`technology.
`And, your Honor, that's the gravamen of our argument.
`We have more slides on it, but you certainly get the points
`here. Unless have you any questions, I'll sit down.
`THE COURT: All right. Thank you.
`MS. ABDULLAH: May I respond?
`THE COURT: Yes. Briefly.
`MS. ABDULLAH: Your Honor, we are not denying that
`there was disavowal in the '284 patent or the '363 patent. And
`by the way, Mr. McKeon, I'm not -- is not correct that there
`was no restriction requirement in the original application.
`There was as well. That was -- if you could go to slide 18
`where we've cited -- these are portions of the '284 file
`history.
`
`But at the end of the day, there is nothing wrong.
`And Mr. McKeon never addresses the case law that says there is
`nothing wrong with choosing one of the species and then
`pursuing a broader species even in a later file application.
`And I want to address the points about the supposed
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`new matter real quick. If you could go to 28, please. First
`of all, this is an argument for another day. This a Section
`1.12 question, right? And Mr -- LG attempts to rely on this
`Schering case to say that basically you, the Court --
`THE COURT: The Schering case is not applicable in
`
`this.
`
`MS. ABDULLAH: The federal --
`THE COURT: It's a separate set of circumstances. The
`Schering case involved later technology that was then -- but
`this case involves known technology that existed at the time
`that when presented to the patentee as potential prior art, the
`patentee repeatedly affirmatively and unequivocally said this
`patent doesn't have anything to do with cell phones and cell
`towers. And I cannot, regardless of your species arguments or
`anything else, see either equities or rationale for why ten
`years later, you should be able to go back and claim that which
`you, over that entire ten-year period, said this patent is not
`about, particularly in light of the plain language of the
`specification.
`The fact that a cordless telephone can also be
`described as an RF telephone handset doesn't broaden what can
`be covered, in this Court's opinion. Your argument is fully
`briefed, it's fully preserved, you have it for appeal. It is
`certainly a de novo review. It's based on the intrinsic
`evidence.
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`But there is nothing you're going to tell me today
`that is going to convince me that in light of a prosecution
`history of this patent you could come back later and claim it
`covered a cell phone and a cell tower as the handset and the
`base unit. It is not covered by this patent.
`So with regard to the construction of RF telephone
`handset, the Court would construe it as: A remote handset of a
`cordless telephone using radio frequency technology, and the
`base unit: A cordless telephone using radio frequency
`technology, a matching base unit using cordless telephone
`using -- I'm sorry. The matching base unit of a cordless
`telephone using radio frequency technology.
`Now that could be further expanded to be high-powered
`digital spread spectrum. But I don't think it matters. It
`will not cover a cell phone. And I think you could probably
`stipulate to noninfringement at this point and take this right
`up on appeal because this patent cannot cover their phones.
`Because I don't think you're selling cordless phones with base
`units anymore...
`MR. McKEON: That's correct, your Honor.
`THE COURT: I don't think you have done that ever or
`at least for the last ten years.
`MR. McKEON: Right.
`THE COURT: So regardless of how one -- anyway, so my
`constructions are that it has to be for a cordless telephone
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`using radio frequency and the matching base unit of a cordless
`telephone.
`I don't know that I need to reach the muting because I
`think in light of those two claim constructions, the parties
`can, again, stipulate to noninfringement and preserve this for
`appeal. So I think we're done with the '285.
`MR. McKEON: That's right, your Honor.
`THE COURT: Let's go to the '792 because that's a
`little more interesting.
`MR. McKEON: Your Honor, did you want to hear a little
`tutorial on that from Ms. Whitworth?
`THE COURT: Yes.
`MS. WHITWORTH: Good morning, your Honor. Laura
`Whitworth for LG presenting the technology tutorial for the
`'792 patent. As you see on page 125 of LG's slide
`presentation, the background section of the '792 patent
`clarifies that the invention applies to both cordless
`telephones and cellular telephones. The problem disclosed in
`the patent is that a user of a traditional wire telephone would
`be used to picking up the handset from the base unit and
`automatically being connected to the call. The patent
`discloses that a typical cordless telephone would not operate
`this way, so it would be helpful for a user to have a wireless
`telephone operate in the same way as a wired telephone.
`The '792 patent proposes a solution on page 127 of our
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`brief of a controller recognizing motion of the handset through
`an output from an accelerometer to transition this device to an
`offload state.
`You can see here we have figure 2 which demonstrates
`the accelerometer 206 providing motion data to the controller
`204 which is connected to the transceiver 208 to affect the
`state of the device.
`THE COURT: Hang on. I'm sorry. I know you guys
`spent a lot of time preparing this, but this patent is not
`complicated, neither of them in terms of the technology, at
`least at a level for me to have a conversation, and maybe
`this question -- I do have to -- I'm going to, in the shadow of
`Rudie Brewster, give you an amusing anecdote where as I read
`this patent, all I could think about was an Ellen Degeneres
`show where she had a millennial who she brought on stage and
`had her dial on a rotary phone. And the girl, first of all,
`dialing the phone was like, two hands. And then she picked up
`the receiver expecting that it would be connected and not
`recognizing she had to pick up the receiver to get the dial
`tone before she dialed the phone. And so this whole delay in
`the dial tone thing made me think of that.
`Anyway, there is a claim asserted in this patent,
`claim 9, that is specific to a wireless handset which clearly
`would be more appropriate to cover the Defendant's devices than
`a cordless phone, so why are we trying in any way to extend the
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`definition of cordless phone, which is the plain language of
`the claim and is distinguished within the specification from a
`cell phone or other wireless devices as a cordless telephone to
`construe it in any way that would make it cover a cell phone
`when you have a claim that covers a cell phone? Who cares?
`Help me here.
`MS. MALMBERG: If I may, your Honor, I can address
`that issue. Mieke Malmberg for BNR. We're certainly not
`standing here today and trying to claim that cordless phones
`and cellular phones are the same. I think the specification is
`very clear on that, and as your Honor surmises, agrees with us.
`What we are saying simply is that the proposed construction
`given by LG just inserts complete ambiguity.
`THE COURT: But why are we even construing a claim of
`this patent that I can't rationally figure out what would ever
`be asserted in this case because it applies to a cordless
`phone, and they don't sell cordless stuff? They sell cell
`phones.
`
`MS. MALMBERG: Well, as your Honor also pointed out,
`we also additionally have claims on wireless handsets. But to
`your particular issue, what we think the issue is right now is
`that there's an issue of doctrine of equivalents possibly here.
`And that's an issue for another day down the line when we're
`dealing with infringement specifically and not to deal with
`claim construction. What the Defendants are trying to do is
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`handle the complete issue of infringement in claim construction
`by inserting this ambiguity into their construction.
`THE COURT: All right. I don't know whether it's an
`ambiguity or not. But again, the plain language of the claim
`says -- that the Court was following, that the specification
`describes cordless phones a s cordless phone comprising a
`handset and corresponding or matched base unit, that's what a
`cordless phone is. And if you want to make an assertion under
`the doctrine of equivalents that a cell tower is the equivalent
`of a matched base unit of a cordless phone to assert
`infringement, that is a matter for another day. But this
`patent does not have the same prosecution history and actually
`covers cell phones, and so they could make that argument.
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