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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. 18CV1783-CAB-BLM
`)
`vs. )
`) SAN DIEGO, CALIFORNIA
`COOLPAD TECHNOLOGIES, INC. AND )
`YULONG COMPUTER COMMUNICATIONS, )
`) WEDNESDAY, JUNE 19, 2019
`Defendants. )
`--------------------------------)
`BELL NORTHERN RESEARCH, LLC, )
`)
`Plaintiff, ) CASE NO. 18CV1784-CAB-BLM
`)
`vs. )
`)
`HUAWEI TECHNOLOGIES Co., LTD., )
`HUAWEI DEVICE (HONG KONG) CO., )
`LTD., and HUAWEI DEVICE USA, )
`INC.,
`)
`Defendants. )
`--------------------------------)
`BELL NORTHERN RESEARCH, LLC., )
`)
`Plaintiff, ) CASE NO. 18CV1785-CAB-BLM
`)
`vs. )
`)
`KYOCERA CORPORATION and KYOCERA )
`INTERNATIONAL INC.,
`
`))
`
`Defendants. )
`--------------------------------)
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`Bell Northern Research, LLC, Exhibit 2007, Page 1 of 168
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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. 18CV1783-CAB-BLM
`)
`vs. )
`) SAN DIEGO, CALIFORNIA
`COOLPAD TECHNOLOGIES, INC. AND )
`YULONG COMPUTER COMMUNICATIONS, )
`) WEDNESDAY, JUNE 19, 2019
`Defendants. )
`--------------------------------)
`BELL NORTHERN RESEARCH, LLC, )
`)
`Plaintiff, ) CASE NO. 18CV1784-CAB-BLM
`)
`vs. )
`)
`HUAWEI TECHNOLOGIES Co., LTD., )
`HUAWEI DEVICE (HONG KONG) CO., )
`LTD., and HUAWEI DEVICE USA, )
`INC.,
`)
`Defendants. )
`--------------------------------)
`BELL NORTHERN RESEARCH, LLC., )
`)
`Plaintiff, ) CASE NO. 18CV1785-CAB-BLM
`)
`vs. )
`)
`KYOCERA CORPORATION and KYOCERA )
`INTERNATIONAL INC.,
`
`))
`
`Defendants. )
`--------------------------------)
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`Bell Northern Research, LLC, Exhibit 2007, Page 1 of 168
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`--------------------------------)
`BELL NORTHERN RESEARCH, LLC., )
`)
`Plaintiff, ) CASE NO. 18CV1786-CAB-BLM
`vs. )
`)
`ZTE CORPORATION, ZTE (USA) INC. )
`ZTE (TX) INC.
`
`))
`
`Defendants.)
`--------------------------------)
`BELL NORTHERN RESEARCH, LLC,, )
`)
`Plaintiff, ) CASE NO. 18CV2864-CAB-BLM
`)
`vs. )
`)
`LG ELECTRONICS, INC., LG )
`ELECTRONICS U.S.A. INC., and )
`LG ELECTRONICS MOBILE RESEARCH )
`U.S.A., LLC,
`
`))
`
`Defendants. )
`________________________________)
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`CLAIMS CONSTRUCTION HEARING
`DAY ONE, VOLUME 1, PAGES 1-168
`
`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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`COUNSEL APPEARING:
`For The Plaintiff: Sadaf Raja Abdullah, Esq.
`Steven W. Hartsell, Esq.
`Paul J. Skiermont, Esq.
`SKIERMONT DERBY LLP
`Thanksgiving Tower
`1601 Elm Street, Suite 4400
`Dallas, Texas 75201
`
`For The Defendants Thomas Nathan Millikan, Esq.
`Coolpad and Yulong: James Young Hurt, Esq.
`PERKINS COIE, LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`for the Defendants Joanna M. Fuller, Esq.
`Huawei entities:
`Jason W. Wolff, Esq.
`FISH & RICHARDSON P.C.
`12390 El Camino Real
`San Diego, California 92130
`Ethan J. Rubin, Esq.
`FISH & RICHARDSON, P.C.
`One Marina Park Drive
`Boston, MA 02210
`For The Defendants Jiaxiao Zhang, Esq.
`ZTE entities:
`McDERMOTT WILL & EMERY LLP
`18565 Jamboree Road, Suite 250
`Irvine, California 92612
`Amol Ajay Parikh, Esq.
`Thomas DaMario, Esq.
`McDERMOTT WILL & EMERY LLP
`444 West Lake Street, Suite 4000
`Chicago, Illinois 60606
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`San Diego, California; Wednesday, June 19, 2019; 9:00 a.m.
`(Cases called)
`MR. SKIERMONT: Good morning, your Honor. Paul
`Skiermont on behalf of the plaintiff Bell Northern Research,
`and with me are my partners, Ms. Abdullah and Mr. Hartsell and
`our client representatives, Mr. Fako and Mr. Dean.
`THE COURT: Thank you.
`MS. ZHANG: Good morning, your Honor. Jiaxiao Zhang
`appearing on behalf of ZTE with Amol Parikh and Thomas DaMario.
`THE COURT: Thank you.
`MS. FULLER: Good morning, your Honor. Joanna Fuller
`for Huawei with Fish & Richardson and appearing with me is
`Ethan Rubin and Jason Wolff.
`THE COURT: Thank you.
`MR. MILLIKIN: Good morning, your Honor. Tom Millikin
`and James Hurt of Perkins Coie representing Coolpad and Yulong.
`THE COURT: All right. Thank you very much for your
`joint proposal on presentation that you filed. It was very
`helpful to the Court to know the order you wanted to proceed
`in. I also appreciate the fact that the patents we're going to
`talk about today, as I have told if not this counsel other
`counsel in the past, I am never a person of ordinary skill in
`the art. I have no technical background. I am at best a
`POTAOTA, person of temporary appreciation of the art, as any
`jury would be, and the patents scheduled for today, the '889,
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`the '554, the '453 and the '156, were patents, I was able to
`read and generally felt comfortable understanding the subject
`matter, and while the nuances of what we're going to talk
`about, I'll need some background on, they were not as
`complicated as the ones that are scheduled for tomorrow. So
`forewarned and forearmed, tomorrow the tutorials will be
`significantly more important for the Court. I've read your
`briefs, I've read the patents and so we'll need to spend a
`little more time helping the Court understand all that math.
`With that, I am happy to have you proceed as you
`planned, and I welcome, I suppose, the plaintiffs to open with
`their tutorial.
`MR. SKIERMONT: Thank you, your Honor. May I approach
`to hand up...
`THE COURT: Yes. And if there's corresponding
`presentation material on at least the first few patents, let's
`get a set to them.
`(Pause in the proceedings)
`MR. SKIERMONT: Thank you, your Honor. So we're
`starting with the two Goris patents, the '889 and the '554.
`And as the joint submission on the order of argument indicated,
`I'm going to cover just a brief tutorial on the Goris patents,
`and I believe the defendants will do their brief tutorial, then
`dive into the handful of disputed terms.
`As your Honor mentioned, this tutorial will be a
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`Bell Northern Research, LLC, Exhibit 2007, Page 5 of 168
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`little shorter because the invention is fairly straightforward.
`The two Goris patents at issue, the '889 is the earlier of the
`two and it claims priority back to a priority date of June 17,
`2003, so about four years before the release of the first
`iPhone. There was a child that issued from the '889 which is
`the '554 Goris patent claiming priority to the same June 2003
`date, and the specifications of the two Goris patents at issue
`are identical.
`The Goris patents identify a problem that was in the
`prior art at the time of the invention as being the need to
`increase the battery life for multimode cell phones. And the
`specification explains that while one way to increase the
`battery life for a multimode cell phone would be to increase
`the capacity of the battery or make the battery bigger. There
`are, of course, drawbacks to doing that when you have a mobile
`device that is intended to be portable and lightweight and easy
`to use.
`
`As the patent describes at column 1, lines 27 to 37,
`in light of the need for increased cell phone life and not
`wanting to enlarge the battery, the inventors wrote that what
`is needed in the art is a way to prolong the lifetime of a
`mobile station without having used a battery with increased
`capacity.
`And on your screen and the hard copy deck that we
`handed up, we just put together a brief illustration of the
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`Bell Northern Research, LLC, Exhibit 2007, Page 6 of 168
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`problem in the prior art using actual devices and tests. So
`what is on your screen is we have a call that begins where the
`phone's battery is 100 percent. The call begins with a battery
`with a charge of 100 percent. After a call of 15 minutes, the
`battery has reduced to 99 percent.
`You can see that the phone has battery usage
`statistics, and from the 15 minutes of talk time where the
`display was not dimmed during the call, the screen consumed
`approximately 57 percent of the battery consumption during that
`15 minutes. And that's from -- it's actually not 57 percent of
`battery consumption, it's a little smaller than that because
`it's 57 percent of the 95 percent of the hardware contribution
`to the battery reduction.
`So when you -- okay. So in order to -- and the
`inventors even back then recognized not only is there
`significant battery consumption when a display is on during a
`call, but that it is significant. On the invention section of
`the '889 Goris patent, column 1, lines 38 to 54, the inventors
`described that: By reducing the power consumption of the
`display of an activated telephone set in case the display is
`not needed, the current is saved instead of needlessly
`consumed. And then importantly they note: The spared
`available battery power may be significant, especially for
`color displays resulting in overall increasement of the
`stand-by and/or talk time of the telephone set.
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`Bell Northern Research, LLC, Exhibit 2007, Page 7 of 168
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`And so how does that solution manifest itself in the
`illustration we just saw? So on your screen, we again start
`with a battery that starts at a charge of 100 percent. We have
`a call that lasts for 15 minutes, except this time, the screen
`has been -- the display has been dimmed as a result. The
`screen instead of consuming 10 percent of the battery is -- I
`mean, instead of consuming 54 percent, as we saw earlier, the
`screen consumes 10 percent of the battery consumption.
`So how is it that the patent goes about saving the
`battery life when a user, for example, puts their mobile device
`to their ear? Figure 2 of the patent explains how the
`proximity sensor in particular works. And so what is on your
`screen, your Honor, is figure 2 of the '889 patent juxtaposed
`to the specification's description of figure 2 at column 3,
`lines 12 to 39.
`So the passage starts: Where an incoming call is
`coming into the phone, and when that incoming call comes in,
`the proximity sensor 140, which you can see there in the
`drawing, is activated. And this is important: It is activated
`to monitor a proximity 230, which is indicated in the figure by
`the arrows, to an external object, not shown in the figure, for
`example, a range of about 5 centimeters. And it's preferably
`done, and, in fact, the inventors described that one of the
`advantages of the invention is that the proximity sensor that
`is used for the invention can be a standard low-cost proximity
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`Bell Northern Research, LLC, Exhibit 2007, Page 8 of 168
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`sensor. It doesn't need to be a fancy or expensive one. And
`they describe that as an advantage.
`So the call comes in and the proximity sensor is
`activated. And what that means is it's going to monitor a
`predetermined range, and the example in the patent is given of
`about 5 centimeters. If the proximity sensor when it's
`monitoring for this predetermined range, if it detects an
`external object within the range it is monitoring, the power
`consumption of the display 150 is reduced by either switching
`the display completely off or dimming it. And so you see how
`it interacts in figure 2.
`Once the sensor determines that an object has come
`within its field of range, of predetermined range, that then,
`the central processing unit -- it gives that data to the
`central processing unit, and the microprocessor tells the
`display, okay, we've got this thing in our predetermined range
`so power down the display.
`And the description of figure 2 in the specification
`goes on to explain that then when the call ends, and the user
`will typically move the phone away from their ear, that causes
`the proximity sensor 140 to move out of range of the external
`object. Accordingly, in response, the display 150 is switched
`back on. And so what that is describing and explaining is that
`when an object gets within the predetermined range, the
`proximity sensor sends a signal that says it's in range and
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`Bell Northern Research, LLC, Exhibit 2007, Page 9 of 168
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`power down the display. When the proximity sensor senses that
`the object has moved out of range, it stops sending the signal
`saying we have a target object that is within range, and when
`it stops sending that signal, the device knows that it can
`power the display back up.
`So there are three asserted claims -- or there are
`three claims, I should say, at issue for the Markman, and that
`is the '889 patent, claim 1 and the '554 patent, claims 1 and
`8.
`
`And and I won't go through this in painstaking detail,
`but to give you an idea of the context of the claim. So it
`starts with a mobile -- and again, we kind of use the same
`illustration, using the inputs and elements from figure 2. So
`you have a mobile station that has a display and a proximity
`sensor adapted to generate a signal indicative of proximity of
`an external object and a microprocessor that goes through
`several steps.
`The first one is that the mobile station determines
`whether a telephone call is active. If it is active, it
`receives a signal from the proximity sensor. And claim 1 --
`all the claims that are at issue for construction are directed
`to reducing the power display when an object comes within the
`predetermined range.
`And so the claim goes on in the final element to say:
`The proximity sensor begins detecting whether an external
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`Bell Northern Research, LLC, Exhibit 2007, Page 10 of 168
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`object is proximate. And so when you see that illustration --
`and I'll run it again -- when the phone gets moved into a
`location near an object, here we have the person's ear, you see
`when it gets into that predetermined range, the display dims.
`And so it reduces the power to display based on two
`things happening essentially is what the claim requires. If
`the microprocessor of the device determines that a telephone
`call is active and the proximity sensor has a signal -- has
`sent a signal or generates a signal indicating that there is an
`external object within the predetermined range.
`The '554 Goris patent, claim 1 is similar in its
`operation but it does use some different language. Instead of
`saying when the call is active and the sensor is with the --
`the proximity sensor indicates an object is within the
`predetermined range, the '554 patent couches that in terms of
`conditions that must be met for the device -- in order for the
`device to reduce power.
`So the language that it uses is: A signal indicative
`of the existence of a first condition. The first condition
`being that an external object is proximate.
`And the parties have agreed and briefed, as you know,
`your Honor, that these two proximity signaling indicative claim
`elements from the two different patents should be construed the
`same.
`
`And the remaining steps are essentially the same as
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`Bell Northern Research, LLC, Exhibit 2007, Page 11 of 168
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`'889. And with that, unless your Honor has any questions about
`just kind of the technology background or tutorial, that
`completes our overview of the tutorial, and we'll pass it to
`the defendants before moving on to the disputed terms.
`THE COURT: That's fine.
`MR. SKIERMONT: Thank you, your Honor.
`MR. RUBIN: Your Honor, I can just present the
`tutorial without the screen. Do you have a copy of the Power
`Points?
`
`THE COURT: I have the copies you handed up, and you
`can go ahead. If you can figure it out and catch up, that's
`fine, but why don't we proceed.
`THE CLERK: I'm sorry, your Honor. We did a test and
`it came up, but for whatever reason, I'm not sure why it's now
`not.
`
`MR. RUBIN: Your Honor, can we plug the laptop into
`plaintiff's connection?
`THE CLERK: You can actually attach it to that table
`
`as well.
`(Pause in the proceedings)
`MR. RUBIN: Your Honor, I apologize for the technical
`difficulties.
`THE COURT: No problem. Go ahead.
`MR. RUBIN: Again, my name is Ethan Rubin. I will be
`presenting the technical tutorial for then Goris patents for
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`Bell Northern Research, LLC, Exhibit 2007, Page 12 of 168
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`the defendants.
`So as my colleague mentioned, there are two Goris
`patents, the '889 patent and the '554 patent. The '554 patent
`is a continuation of the '889 patent. Both patents claim
`priority to the same application from June 2003.
`Both patents, same title, system and method for
`conserving battery power in a mobile station, and they have the
`same specification, aside from some cross-referencing language.
`So the Goris patents generally relate to mobile
`stations, which actually you can see in figure 1 include cell
`phones; as well as the snippet here of the specification, they
`include cell phones when paired at the base station. The Goris
`patents are directed to solving a pretty simple problem, and
`that's the problem of power consumption. The Goris patents
`explain what is needed in the art is the way to prolong the
`life of the mobile station without having to use battery with
`increased capacity.
`So powering a display obviously uses up a lot of
`battery solutions in the art to focus on reducing power to the
`display when the display is not needed. So as one example, one
`solution in the art is Perez. And that's this application
`shown in this slide.
`In Perez, you have a portable communications product,
`which is the cellular phone, and includes a sensor. And when
`the sensor detects that a user has placed the phone up to his
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`or her ear, the communications product determines that a call
`is likely active and reduces power to the display. The idea
`here is if you have the cell phone up to your ear, you're on a
`call, you're not going to be using the display so you might as
`well power it down or just cut the power completely to the
`display.
`
`So the Goris patents are directed also to reducing
`power to the display when the display is not needed. So the
`question is when is the display not needed? And in the Goris
`patents, the display is not needed when a call is active or
`when an external object is proximate.
`So if you have the mobile station up to your ear and
`you're on a call in that situation, the call is active and the
`external object is proximate, in that scenario, power can be
`reduced. Say you have a phone in your hand, you're on a call
`but it's on speaker phone, you don't have it up to your ear, an
`external object is not proximate, so in that scenario, the
`power just is not reduced.
`And then figure 3 here, just provides a flow chart of
`the mobile station and the method for reducing power to the
`display. In the Goris patents, you start at 301 at the top
`there, you determine if the telephone call is active. If it
`is, you activate the proximity sensor. If not, you go back to
`301. Once the proximity sensor is activated, the proximity
`sensor determines whether an external object is proximate. If
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`not, you just go back to 303. If an external object is
`detected, then you reduce the power to the display.
`And unless your Honor has any questions, that's the
`end of the Goris technical tutorial.
`THE COURT: That's fine. The first issue that was
`raised was the definition of "a signal indicative of proximity
`of an external object." And it is the Court's understanding
`that the parties have agreed, at least, to absent the "to or
`from" issue, that that is the same definition that "it's a
`signal that indicates an external object is approximate," which
`you have also defined as "within a predetermined range," and
`everyone agrees on that definition for claim 1 for the '889
`patent.
`
`MR. SKIERMONT: Correct, yes.
`THE COURT: Is that correct?
`MR. SKIERMONT: Yes. There is an agreed construction
`that is similar to the one you identified the "or not."
`THE COURT: So a signal indicative of proximity of an
`external object is the same as a signal indicative that an
`external object is proximate. And that makes sense to the
`Court and I'm happy to adopt that construction to that extent.
`I'm a little concerned about the "within a
`predetermined range." You all added that in. It's in the
`specification. It's not in the claim language. The claim
`language just says "proximate," and I wasn't exactly sure what
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`proximate meant. The claim suggests it's something within very
`close range and gives as an example, I believe, 5 centimeters.
`But a predetermined range is rather ambiguous. Who is
`determining that range and how? But if that's what you want.
`I guess I can hear discussion on it. I don't want that to
`become an issue later when two experts decide how a
`predetermined range gets determined.
`But let's go on to where the issue lies in this now.
`MR. SKIERMONT: Sure. I want to make sure, I think
`what you just said, your Honor, is exactly right. If you would
`put slide 35 up.
`So just to -- slide 35 that's on your screen, I think
`addresses the precise issue you were just raising, which is,
`there is a term that -- there are two places in the first Goris
`patent that have the phrases that are highlighted on your
`screen: The signal indicates the proximity of the external
`object. And what the parties have agreed is that that phrase
`that appears twice in '889, claim 1 should be construed to be
`"The signal is that an external object is within a
`predetermined range." And that is agreed by the parties.
`And so what is up for dispute, what we're arguing
`about today, the only term up for construction is the bolded
`language at the top of the claim is which is a signal -- which
`is slightly different, different by the article: A signal
`indicative of proximity of an external object. And, in fact,
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`Bell Northern Research, LLC, Exhibit 2007, Page 16 of 168
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`one of our arguments is that given the agreed construction of
`the highlighted phrase on slide 35, that seems to further, if
`not dispositively, support BNR's proposed construction of the
`bolded phrase on slide 35 because it tracks it and changes the
`introductory article just like the only difference between the
`phrase where there's been an agreed construction and the one
`that we're disagreeing about.
`So if you go back to 28.
`So focusing in now on -- go to 29.
`MR. MILLIKIN: You're using our clicker, I believe.
`MR. SKIERMONT: Oh, that's the problem. That won't
`
`work.
`
`MR. MILLIKIN: I don't mind you driving the bus.
`That's fine.
`MR. SKIERMONT: So you see now slide 29 is the -- are
`the -- there is a third claim, but it's basically got the same
`phrase as the '554, claim 1. So for ease of reading, I've put
`just these two up where we have these two phrases that are
`similar, and that's the disputed term "a signal indicative of
`proximity of an external object." And it's the same for the
`'554 except it talks about the same thing in terms of a first
`condition.
`And so for these phrases, BNR's position is that "a
`signal indicative of proximity to an external object" is
`straightforward and anybody can understand that, the jury can
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`Bell Northern Research, LLC, Exhibit 2007, Page 17 of 168
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`understand that, and you don't really need to construe the term
`at all. However, if there is something more that needs to be
`done to construe this phrase, BNR's proposal is that phrase
`means "a signal that an external object is within a
`predetermined range."
`And the only disagreement between the parties is that
`the defendants propose that the claim language means "a signal
`that an external object is or is not within a predetermined
`range." And BNR submits that that essentially violates the
`cardinal rule of claim construction by importing a limitation
`that is not in the claim and not in the prosecution history.
`And the defendants do not point to any support in the intrinsic
`record that evidences any requirement that the proximity -- the
`claimed proximity sensor be adapted to generate a signal that
`shows that something is not within a predetermined range or
`that an object is not there. It's just never said anywhere.
`On the contrary, the specification almost invariably
`refers to a determination that an external object is within a
`predetermined range. I want to put up --
`THE COURT: Wait. Can I?
`MR. SKIERMONT: Yes.
`THE COURT: Even if you look at figure 3, there is not
`a signal being generated by the proximity sensor saying that
`there's not something within a range. When you go through this
`flow chart, you have a phone call, it's determined to be
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`Bell Northern Research, LLC, Exhibit 2007, Page 18 of 168
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`active, the proximity sensor is then activated, and if it
`signals there is something within the range, then by having
`those two conditions met, you'll have this reduction in power.
`The proximity sensor doesn't generate anything. There's just
`no signal.
`MR. SKIERMONT: Correct, your Honor.
`THE COURT: It doesn't send a different signal going
`no, there's nothing proximate, therefore, don't reduce the
`power.
`
`MR. SKIERMONT: That's correct.
`THE COURT: That's your point?
`MR. SKIERMONT: That is our point. And just to go
`right where you went, on your screen, slide 33 because the
`defendants make an argument based on essentially figure 3 and
`relatedly figure 4 where they contend that this flow diagram
`actually supports their construction, but I think that -- of
`course, we disagree and think exactly the opposite, because to
`begin with, figure 3 and figure 4 -- that in their responsive
`claim construction brief, defendants rely heavily on the
`addition of figures 3 and 4 in prosecution somehow supports
`their construction that there has to be a signal from the
`proximity sensor in the absence of an object being within a
`predetermined range. And that just isn't true.
`And, in fact, figure 3 and 4 show it on their own
`terms. You can see there that when -- the red circling, just
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`Bell Northern Research, LLC, Exhibit 2007, Page 19 of 168
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`to orient you, your Honor, is what was in the defendants'
`brief. That's a figure from their brief at page 3. And what
`we've added is the highlighting on the "no" that essentially
`all that happens if there's a "no" based on figure 3 is that it
`circles back and continues monitoring to see if anything comes
`within the predetermined range. This figure does not indicate
`at all that when there is a "no," some different signal must be
`sent.
`
`And, in fact, just to close the loop --
`THE COURT: You get the better part of this argument,
`so you can sit down. I want to hear -- I think you're reading
`a limitation into the claim that's not there. I don't see
`anything in the specification that indicates that this is sort
`of an on/off thing, that there is an object proximate or
`there's not an object proximate. If there is one, the signal
`generates and then it takes the rest of the steps and when that
`proximate object moves away, that signal is no longer
`generating. That's not generating a different signal, that's
`just the signal ends. So I don't see a justification for
`reading into this signal "indicative of proximity of an
`external object" a reason to say that that proximity is present
`or if it's not present, some signal is generated. There
`doesn't appear to be anything in the patent that justifies that
`from the Court's perspective.
`MR. SKIERMONT: With that, I will sit down.
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`Bell Northern Research, LLC, Exhibit 2007, Page 20 of 168
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`THE COURT: You can sit down. And whoever has this
`one can come back and tell me what I've missed. What I found
`surprising about all this is I had no idea phones did this. I
`was kind of surprised that my phone somehow when I put it near
`my ear does this act. I didn't even know that phones had that
`capability. But I assume because they're accusing your phones
`of infringing, there is at least something your phone does that
`does this. But, okay.
`MS. ZHANG: I guess on that note, I will start, your
`Honor. My name is Jiaxiao Zhang. I'm representing the ZTE
`defendants and presenting on behalf of the joint defense group.
`So as discussed, yes, there is agreement as to the
`signal indicates the proximity of the external object as being
`"is within a predetermined range," and we would like to talk
`about the "indicative" aspect, which is slightly different
`phrasing than even what opposing counsel has said.
`So there is intrinsic support if the proximity sensor
`detects an external object as long as the proximity sensor
`detects proximity, the proximity sensor again detects an object
`even if the proximity sensor moving out of range back to that
`flow.
`
`And, again, with respect to figures 3 and 4, there are
`both the "yes" and "no" responses. So our position is that
`where there is that difference in the claims between
`"indicative" versus "indicates," this does suggest that there
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`Bell Northern Research, LLC, Exhibit 2007, Page 21 of 168
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`is a difference between those two terms even just on the face
`of the patent. And where the patent itself is directed at
`maintaining the battery level, it makes sense to have this
`"yes" and "no" response in order to reflect and be able to
`determine what to do there.
`This is also supported by the intrinsic evidence in
`terms of the prosecution history. These specific conditional
`limitations were added to get to allowance as well as the
`figures. If there were an issue with the figures where that
`"no" should not have been there, then why was that added within
`the prosecution of the '889 patent and then maintained with the
`respect to the '554 patent?
`THE COURT: But your proposed construction, at least
`the way the Court is reading it, suggests that there has to be
`an actual physical signal sent saying that no, that there is
`nothing proximate. And I don't think the patent teaches that.
`The patent teaches that when there is something proximate, when
`there's something within this predetermined range, the buzzer
`goes off, whatever the signal is.
`MS. ZHANG: Right. Absolutely.
`THE COURT: And to say generate a signal indicative of
`proximity because something is not present would suggest an
`actual signal has to be generated to say, no, there is nothing
`there. And there's nothing in the patent as far as I can tell
`that teaches that as an affirmative act. The signal may go
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`Bell Northern Research, LLC, Exhibit 2007, Page 22 of 168
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`away when the proximity goes away, but there is no signal
`generated to indicate the lack of proximity.
`MS. ZHANG: We're happy to tweak this if needed, your
`
`Honor.
`
`THE COURT: I just don't think you need it. The "is
`not" doesn't belong in this part of the claim.
`MS. ZHANG: What we were trying to get across here is
`there are both situations here, and we thought just to have the
`"is" doesn't completely capture that.
`THE COURT: What you have offered is suggesting there
`has to affirmatively be a signal generated when there is
`nothing proximate. And I don't think the patent supports that,
`I don't think the specification supports that, and I don't
`think the claims supports that, because the claim specifically
`talks about there being a signal that indicates the proximity
`of an external object, something proximate, not the signal that
`is generated because there is nothing proximate. Otherwise,
`the thing would be signaling all the damn time. So that
`doesn't make any sense to me.
`So how do you want to limit this in the independent
`claim? I know there's a dependent claim that talks about the
`signal ceasing. That's fine. But I don't see any reason to
`bring that up into the independent claim.
`MS. ZHANG: Well, we're not trying to bring it up to
`the independent claim, your Honor. What we're saying is that
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`Bell Northern Research, LLC, Exhibit 2007, Page 23 of 168
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`our construction is not inconsistent with the specification
`despite everything that the defendants would have you -- or
`what plaintiffs would have you believe. They do agree as to
`most of the construction that "or" is not -- is the only part
`that is at dispute. And they have
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