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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`PARUS HOLDINGS INC.
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`VS.
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`
`APPLE INC.
`GOOGLE LLC
`SAMSUNG ELECTRONICS ET AL
`AMAZON.COM, INC.
`
`*
`*
`*
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`*
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`August 21, 2020
`
`CIVIL ACTION NOS.
`
` W-19-CV-432
` W-19-CV-433
` W-19-CV-438
` W-19-CV-454
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MARKMAN HEARING (VIA ZOOM)
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`APPEARANCES:
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`For the Plaintiff:
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`For Defendant Apple:
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`For Defendant Google:
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`Andrea L. Fair, Esq.
`Claire Abernathy Henry, Esq.
`Ward, Smith & Hill, PLLC
`PO Box 1231
`Longview, TX 75606
`
`Andrew H. DeVoogd, Esq.
`Michael J. McNamara, Esq.
`Mintz, Levin, Cohn, Ferris, Glovsky
` and Popeo P.C.
`One Financial Center
`Boston, MA 02111
`
`Bita Rahebi, Esq.
`Hector G. Gallegos, Esq.
`Matthew C. Callahan, Esq.
`Rose S. Lee, Esq.
`Morrison & Foerster LLP
`707 Wilshire Blvd., Ste. 6000
`Los Angeles, CA 90017-3543
`
`J. Stephen Ravel, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado Street, Suite 2000
`Austin, TX 78701
`
`Paige Arnette Amstutz, Esq.
`Scott, Douglass & McConnico, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017
`Apple Inc. v. Parus Holdings, Inc.
`IPR2020-00686
`Page 1 of 55
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`PARUS HOLDINGS INC.
`
`VS.
`
`
`APPLE INC.
`GOOGLE LLC
`SAMSUNG ELECTRONICS ET AL
`AMAZON.COM, INC.
`
`*
`*
`*
`*
`*
`*
`*
`*
`
`August 21, 2020
`
`CIVIL ACTION NOS.
`
` W-19-CV-432
` W-19-CV-433
` W-19-CV-438
` W-19-CV-454
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`MARKMAN HEARING (VIA ZOOM)
`
`
`APPEARANCES:
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`1 2 3 4 5 6 7 8 9
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`For the Plaintiff:
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`For Defendant Apple:
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`For Defendant Google:
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`Andrea L. Fair, Esq.
`Claire Abernathy Henry, Esq.
`Ward, Smith & Hill, PLLC
`PO Box 1231
`Longview, TX 75606
`
`Andrew H. DeVoogd, Esq.
`Michael J. McNamara, Esq.
`Mintz, Levin, Cohn, Ferris, Glovsky
` and Popeo P.C.
`One Financial Center
`Boston, MA 02111
`
`Bita Rahebi, Esq.
`Hector G. Gallegos, Esq.
`Matthew C. Callahan, Esq.
`Rose S. Lee, Esq.
`Morrison & Foerster LLP
`707 Wilshire Blvd., Ste. 6000
`Los Angeles, CA 90017-3543
`
`J. Stephen Ravel, Esq.
`Kelly Hart & Hallman LLP
`303 Colorado Street, Suite 2000
`Austin, TX 78701
`
`Paige Arnette Amstutz, Esq.
`Scott, Douglass & McConnico, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017
`Apple Inc. v. Parus Holdings, Inc.
`IPR2020-00686
`Page 1 of 55
`
`
`
`2
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`Darin W. Snyder, Esq.
`Bill Trac, Esq.
`O'Melveny & Myers LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111-3823
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`Marissa Ducca, Esq.
`Quinn Emanuel Urquhart & Sullivan LLP
`1300 I Street, NW, Suite 900
`Washington, DC 20005
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`Kevin P.B. Johnson, Esq.
`Victoria F. Maroulis, Esq.
`Joshua Scheufler, Esq.
`Quinn Emanuel Urquhart & Sullivan
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, CA 94065
`
`Michael E. Jones, Esq.
`Potter Minton PC
`110 N College, Suite 500
`Tyler, TX 75702
`
`J. David Hadden, Esq.
`Fenwick & West LLP
`801 California Street
`Mountain Valley, CA 94041
`
`Dargaye Churnet, Esq.
`Fenwick & West LLP
`555 California Street, Suite 1200
`San Francisco, CA 94104
`
`Barry K. Shelton, Esq.
`Shelton Coburn LLP
`311 RR 620 S, Suite 205
`Austin, TX 78734-4775
`
`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
`
`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`For Defendant Samsung:
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`For Defendant Amazon:
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`Court Reporter:
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`Parus Exhibit 2017, Page 2 of 55
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`3
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`(August 21, 2020, 10:05 a.m.)
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`MS. MILES: Markman hearing in Civil Action 6:19-CV-432,
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`styled Parus Holdings Incorporated versus Apple Incorporated
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`and others.
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`THE COURT: If I could hear announcements from counsel
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`starting with the plaintiff, please.
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`MS. HENRY: Good morning, Your Honor. Claire Henry of
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`Ward, Smith and Hill on behalf of the plaintiff. I'm joined
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`today by my co-counsel from Mintz Levin Mr. Drew DeVoogd and
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`Mike McNamara. Mr. DeVoogd -- excuse me, Your Honor.
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`THE COURT: You took the words out of my mouth. Who will
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`be speaking?
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`MS. HENRY: Mr. DeVoogd and Mr. McNamara will be handling
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`the arguments today.
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`THE COURT: Okay. Thank you, ma'am.
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`MS. HENRY: Thank you.
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`THE COURT: And next up -- I'm just going to do this in
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`the order of people I can see on the screen.
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`Mr. Jones, who are you representing?
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`MR. JONES: Your Honor, I represent Samsung, together with
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`Ms. Victoria Maroulis, Mr. Kevin Johnson, Marissa Ducca and
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`Joshua Scheufler. And also on the phone from Samsung itself is
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`Mr. Jong Choi, and, Your Honor, the argument for Samsung will
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`be made by Mr. Kevin Johnson.
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`THE COURT: Mr. Johnson, good morning. I haven't seen you
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 3 of 55
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`in forever, but welcome virtually to my court, and I want to
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`thank the person from Samsung for making time to be with us. I
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`appreciate that very much.
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`Mr. Ravel?
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`MR. RAVEL: Your Honor, Steve Ravel for Apple. With us
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`this morning from our client are Natalie Pous and Ben Huh.
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`From Morrison and Foerster are Bita Rahebi, Hector Gallegos,
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`Rose Lee and Matt Callahan, and Mr. Gallegos will be taking the
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`lead today.
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`THE COURT: Okay. Give me one second to write that down.
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`Ms. Amstutz?
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`MS. AMSTUTZ: Good morning, Your Honor. Paige Amstutz for
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`Google. With me are Darin Snyder and Bill Trac from O'Melveny
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`and Myers. We are also joined by our client representative
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`from Google Mr. Timur Engin, and Mr. Snyder will lead the
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`argument for Google.
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`THE COURT: Always a great day when I hear from my friend
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`Darin Snyder.
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`MR. SNYDER: Thank you, Your Honor.
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`THE COURT: And Mr. Shelton?
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`MR. SHELTON: Good morning, Your Honor. Barry Shelton for
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`Amazon. Mr. David Hadden will be arguing on behalf of Amazon
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`today, and he will introduce the other members for Amazon.
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`THE COURT: Okay.
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`MR. HADDEN: Good morning, Your Honor. Dave Hadden.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 4 of 55
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`Dargaye Churnet from my office of Fenwick will be joining as
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`will Scott Sanford, in-house counsel at Amazon.
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`THE COURT: Okay. And thanks to everyone who is in-house
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`counsel or a corporate representative. I think that gets
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`everyone, but if there's anyone who's appearing that I have not
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`heard from, please let me know at this time.
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`Okay. I'm starting to like this Zoom stuff. I'm starting
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`to figure it out.
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`Okay. It is my understanding that the first claim term
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`that we are to take up this morning is "voice enabled device."
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`The Court's preliminary construction is plain and ordinary
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`meaning, where the plain and ordinary meaning is not limited to
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`wireline or wireless telephone, IP phone, wireless PDA, or
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`other wireless device and where the voice enabled device
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`contains an audio input, e.g., a microphone.
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`Let me hear from counsel for plaintiff, I'm going to guess
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`Mr. McNamara, but I might be wrong, about what plaintiff's
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`position is with respect to the Court's preliminary
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`construction.
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`MR. DEVOOGD: Good morning, Your Honor. Drew DeVoogd from
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`Mintz Levin. Can you hear me okay?
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`THE COURT: I can hear you fine. Thank you for asking.
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`MR. DEVOOGD: Thank you, Your Honor.
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`It's Parus' position that the Court's preliminary
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`instruction is acceptable and we're happy to live with it.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 5 of 55
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`(Laughter.)
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`THE COURT: Well, that is a ringing endorsement. So
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`that's not the kind of Yelp score I usually like, but I guess
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`I'll live with that. So let me start -- well, let me ask you
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`this. I'll just ask -- again I'll pick on Mr. Ravel or Mr.
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`Gallegos. Who is going to be leading the conversation on
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`behalf of defendants in support of their proposed construction?
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`MR. JOHNSON: Your Honor, this is Kevin Johnson. It's
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`going to be me. I'll just cut to the chase if that is okay.
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`THE COURT: That's absolutely fine with me. Please.
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`MR. JOHNSON: All right. Well, thank you very much.
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`Again, Kevin Johnson on behalf of the defendants.
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`And, Your Honor, we believe that the term "voice enabled
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`device" is specifically defined in the specification, was
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`intentionally defined, but before we even get there, what I'd
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`like to point out, Your Honor, the issue with we believe the
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`Court's tentative and plaintiff's construction is that the
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`construction would cover wired and wireless devices that are
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`specifically disclaimed in the specification, including desktop
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`computers. Those are specifically disclaimed as I'll explain
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`in a minute. And the intrinsic evidence confirms that the only
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`wired devices that are covered are actually phones.
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`And if we go, Your Honor, to -- and we can put up our
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`slides if we can, please, Josh.
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`Why don't we -- why don't we start with -- why don't we
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 6 of 55
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`start with Slide 4?
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`Your Honor, can you see these okay?
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`All right. Great.
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`So what we have on Slide 4 is at the '431 patent
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`specification at Column 1, Lines 42 through 49, it starts -- I
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`mean, the purpose of the invention is to provide means to
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`access the Internet when the user, quote, does not have access
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`to a computer. And if you read right up front, it says
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`specifically disclaims wired devices like desktop computers.
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`It says, desktop computers are very large and bulky and are
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`difficult to transport.
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`The patent again relates to devices that can move around
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`like cellular phones, personal device assistants, PDAs, and the
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`preferred embodiment describes being able to browse websites
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`without access to computers with Internet access, and that's
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`what we see in that second highlighted box down below, you
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`know, accessing the web when they do not have access to
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`computers with the Internet -- with Internet access.
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`And if we look at the Court's tentative, the issue is the
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`tentative would cover, just as an example, the very desktop
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`computers that the patentees essentially wrote and said they're
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`disfavored, they're disclaimed, they're large, they're bulky,
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`they're difficult to transport. This invention -- the
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`inventions described in this patent are directed to other
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`aspects, and the voice enabled device, just thinking about the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 7 of 55
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`term "device" itself, is something that is much more specific.
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`And if we can turn to Slide 6, as we all know, it's black
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`letter law, when the specification explicitly defines the term
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`like it did here "voice enabled device," that is the
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`construction that should be afforded and given to the term
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`"voice enabled device."
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`And what we have in the specification at Slide 7, Columns
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`3, Lines 39 to 46, we have the very specification portion here
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`that's identified where it -- voice enabled device is defined.
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`And this tells a person of ordinary skill in the art reading
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`the patent specification and it says voice enabled device,
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`i.e., any type of wireline or wireless telephone, IP phone,
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`wireless PDA, or other wireless device. And it is, Your Honor,
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`black letter law that the use of i.e. means this is the
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`definition for voice enabled device.
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`And, Your Honor, we cited several cases in our papers
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`Slide 8. We cited the Edwards Lifesciences case, the TF3 case,
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`the Rembrandt case. The Federal Circuit has repeatedly said
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`that the use of i.e. means the applicant intended to define the
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`term, and that's exactly what the applicant and the patentees
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`did in this case.
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`Now, Parus argues that the patentee uses different
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`language in the specification when referring to voice enabled
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`device, and if we could, Josh, turn to Slide 9.
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`They cite to these examples as using different language,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 8 of 55
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`but when you look closely, the language is not different at
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`all, and a person of ordinary skill in the art would actually
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`understand this -- these references to voice enabled device to
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`all be identical and to be the same. When you look closely,
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`IP -- the first one, IP phone up top at Column 3, Lines 44 to
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`46, the next box down, Column 6, Lines 6 to 8, instead of IP
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`phone, it says Internet protocol, IP phone, and down below
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`Column 17, Lines 40 to 42, says Internet protocol, IP phones.
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`This is identical, and a person of ordinary skill in the art
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`would understand them to be identical.
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`So Parus refers to then the portions that are highlighted
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`in yellow to say the language is different.
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`Up top we see wireless device. The second box at Column 6
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`we see wireless units. We see special wireless units. Again,
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`a person of ordinary skill in the art would understand those to
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`be talking about the same thing, and, if anything, wireless
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`device, other wireless device, which is the construction that
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`defendants have proposed, is broader than other special
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`wireless units. And so, again, a person of ordinary skill in
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`the art would understand these things to be exactly the same.
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`The language is not different. And when you go back to the
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`construction that the defendants have set forth, each time here
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`over and over again the patentee used the term "i.e." when
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`talking about voice enabled device, and, as a result,
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`specifically defined it to be a wireless -- I just want to make
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 9 of 55
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`sure I read it properly. -- to be a wireline or wireless
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`telephone, IP phone, wireless PDA, or other wireless device.
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`It didn't -- the patentee didn't just do it once or twice. It
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`did it over and over again throughout the specification, and
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`the language is identical.
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`So again, the issue of just -- and I'll stop here in a
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`second. The issue for us is that the Court's tentative, with
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`all due respect, Your Honor, covers -- covers products and
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`devices that we believe are -- were specifically disclaimed in
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`the patent and the patentee acted as its own lexicographer in
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`defining voice enabled device in the specification repeatedly.
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`So with that I'll pause and see if Your Honor has any
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`questions that I can address.
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`THE COURT: No. I'm good, Mr. Johnson.
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`Anyone else have anything -- any other defendant have
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`anything they want to say before I shift over to the plaintiff?
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`I'll hear from Mr. DeVoogd.
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`MR. DEVOOGD: Thank you, Your Honor. Drew DeVoogd for
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`plaintiff Parus.
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`Respectfully, the patent owner did not specifically
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`disclaim wired devices capable of accessing the Internet. I
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`readily concede that in the background of the invention the
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`patentee is talking about the issues at the time 1999 to 2000
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`with bulky desktop computers or inconvenient laptops, but the
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`Federal Circuit is -- has been clear, and I'd point Your Honor
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 10 of 55
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`to the Thorner v. Sony case that mere criticism or discussion
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`of the drawbacks to certain known devices does not rise to the
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`level of a disclaimer which, as we all know, is required in
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`order to limit the scope of a claim term that would otherwise
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`encompass the device. And so when Mr. Johnson tells you that
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`the patent owner specifically disclaims wired devices, from our
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`perspective, the Federal Circuit law quite clearly contradicts
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`that.
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`I would also note that the use of the i.e. modifier is not
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`absolute, meaning that the Federal Circuit has been clear at
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`least in the SkinMedica case which is the most discussion of
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`that notion that the use of i.e. can be definitional, but it is
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`not, as Mr. Johnson stated, black letter law that it is always
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`definitional. And the SkinMedica case is clear that the
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`circumstances in which i.e. are not necessarily definitional
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`are when -- are only when -- let me back up, Your Honor. The
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`Federal Circuit has been clear that the modifier i.e. is
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`definitional when it comports with the inventor's other uses in
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`the specification and with each and every other reference in
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`that specification or where there's no other section of the
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`specification that addresses the meaning of the term.
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`And if I may try to pull up our slide deck a moment. Mr.
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`Scheufler, can you take down defendants' slides?
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`Thank you.
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`Can you see those, Your Honor?
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Parus Exhibit 2017, Page 11 of 55
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`Thank you.
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`I'd like to draw your attention to Slide 7 which you can
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`see here. And Mr. Johnson pointed you to a number of points in
`
`the specification where there are differing uses of the i.e.
`
`modifier, and I can see that those are present in the
`
`specification, but the broader point is that --
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`THE COURT: Mr. DeVoogd --
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`MR. DEVOOGD: -- there are other instances --
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`THE COURT: Mr. DeVoogd, let me -- I was looking for
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`1 2 3 4 5 6 7 8 9
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`exactly what you just brought up here because I think it was
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`sort of the basis of what we made our decision on here. I'm
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`12
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`looking at the '431 -- on your screen 002-7 you have a quote
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`from the '431 patent from Column 3, Lines 16 to 19, and I think
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`14
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`that was one of the key elements that we looked at in support
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`of the construction we came up with. Why don't you focus on
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`16
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`that and also the one that you cite from Column 3, Lines 39 to
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`17
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`46. I think those are the ones that we relied on in coming up
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`18
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`with our construction. And after you do that, I'll hear from
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`19
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`Mr. Johnson a response, but for me what you just pulled up on
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`the slide is basically the basis for the reason that we made
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`our decision.
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`22
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`MR. DEVOOGD: And I'm glad you pointed that out, Your
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`23
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`Honor, because I was going to take us right there. The
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`24
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`quotation from the '431 specification, Column 2 -- or, rather,
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`25
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`Column 3, 16 to 19, the patentee writes that another object of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 12 of 55
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`13
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`an embodiment of the present invention is to allow users to
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`browse websites on the Internet using conversational voice
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`commands spoken into wireless or wireline telephones or other
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`voice enabled devices.
`
`That is a clear example of the patentee contemplating a
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`broader definition of voice enabled devices than the specific
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`i.e. modifier from which respondents drew their proposed
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`construction verbatim. I would also note that that excerpt
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`from Column 3, Line 39 to 46 that discusses the use of the
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`1 2 3 4 5 6 7 8 9
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`voice enabled devices contemplated by the patent specifically
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`11
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`notes that it's any type of voice enabled device. And,
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`12
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`granted, it is followed by an id est modifier, but as I've
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`13
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`noted, the Federal Circuit has been clear that that is only at
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`14
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`times a definitional modifier. And the exception to that
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`15
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`notion is exactly as we have here where there are other
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`16
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`portions of the specification that discuss a broader scope of
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`17
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`the claim at issue.
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`18
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`And I would also note, Your Honor, that just as a matter
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`19
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`of common sense, I'm speaking to you on a laptop that is two
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`20
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`pounds and is connected to Wi-Fi. I'm also able to connect to
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`Wi-Fi from my desktop machine at home, and each of those, I
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`22
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`would submit, would qualify as a voice enabled device within
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`23
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`the meaning of the claim term.
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`24
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`THE COURT: And that was actually another thing I was
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`25
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`going to ask you about what you just exactly said with regard
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 13 of 55
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`14
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`to laptops being a wireless device. Despite the fact -- I
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`mean, if you look at what was in the background, you know, you
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`talk about computers. Certainly I think 100 percent of the
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`people on this call would consider a laptop to be a computer,
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`and it wouldn't have any of the detriments that were discussed
`
`in that, and it clearly qualifies, in my opinion, as a -- it's
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`possible to have conversational voice commands spoken into any
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`type of voice enabled device on a wireless device which is the
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`laptop. So I thought that was an important element of my
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`1 2 3 4 5 6 7 8 9
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`decision as well.
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`Mr. DeVoogd, did you have anything else you wanted to add?
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`MR. DEVOOGD: Not right now, Your Honor. Thank you.
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`THE COURT: Mr. Johnson?
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`MR. JOHNSON: Thank you, Your Honor. If we could, just
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`15
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`looking at the language that's up before Your Honor and on the
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`16
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`Parus slide, I mean, Column 3, Lines 16 to 19 refers to other
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`17
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`voice enabled devices. So and it's talking about up front in
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`the context of an object of an embodiment of the present
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`19
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`invention.
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`20
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`A person of ordinary skill reading that would -- and would
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`21
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`read further into the specification, and when it sees the very
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`22
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`next part of Column 3, Lines 39 to 46 and it says any type of
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`voice enabled device, i.e., any type of wireline or wireless
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`24
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`telephone, IP phone, wireless PDA, or other wireless device,
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`25
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`that's exactly what the SkinMedica case talks about and the TF3
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 14 of 55
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`15
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`case talks about. The definitions of voice enabled device are
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`being used the same way throughout the specification. I.e. is
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`being used here to define voice enabled device and is defining
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`it here any type of voice enabled device when you look at
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`Column 3, Lines 39 to 46. It's saying any type of voice
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`enabled device -- and this is just English language
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`construction -- i.e., any type of wireline or wireless
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`telephone.
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`So these are all being used exactly the same way, and it's
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`1 2 3 4 5 6 7 8 9
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`exactly what the case law references when you have a term
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`that's used consistently in the definition, is used
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`12
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`consistently with i.e. over and over again as we do in the
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`13
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`specification. It's defined by the patentee. And this is not
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`14
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`being used at times. It's being used consistently over and
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`15
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`over in the specification to define it.
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`16
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`And, Your Honor, when -- in the discussion of desktop
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`17
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`versus laptop, again, if we look at the discussion up front in
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`18
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`the patent, it says, desktop computers are very large and bulky
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`19
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`and are difficult to transport, and they're -- they're
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`20
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`disclaimed, they're disfavored.
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`21
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`It actually says in the next sentence, laptop computers
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`22
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`solve this inconvenience when many are still quite heavy and
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`23
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`are inconvenient to carry. But there actually is a dependent
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`24
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`claim, Claim 4, that covers laptops. And so laptops may be
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`25
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`disfavored in some respects, but they're still covered by a
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 15 of 55
`
`
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`16
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`claim that's in the patent potentially. We believe that
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`they're noninfringed for a lot of different reasons, obviously,
`
`but laptops at least are contemplated, and when you look at
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`it --
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`And, Josh, we could go back to our slides in Slide 11.
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`Thank you.
`
`This is Claim 4. It's dependent upon Claim 1, and it
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`further narrows Claim 1 by restricting and narrowing wireless
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`devices here to -- here you see in the middle a personal
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`1 2 3 4 5 6 7 8 9
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`10
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`computer. The personal computer that's being discussed there
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`11
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`is a laptop, and that's exactly what is discussed in -- because
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`12
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`it's a wireless device and doesn't have a wire. You can pick
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`13
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`it up. You can walk around with it. It's got a battery, et
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`14
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`cetera. So this is all consistent with defendants'
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`15
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`construction. Defendants' construction is --
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`16
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`THE COURT: Well, Mr. Johnson, you just -- what you said
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`17
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`there raised another question I have, which is -- and believe
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`18
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`me I'm not one skilled in the art, but it's -- when we're
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`19
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`talking about wireless, are we talking about no power cord, no
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`20
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`networking cable? I had assumed we were talking about, you
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`21
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`know, whether it was a network cable or not, but what you just
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`22
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`said indicated to me that maybe you're talking about something
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`23
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`that has to be plugged into a wall or something for -- in terms
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`24
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`of power. So what is -- what are the defendants referring to
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`25
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`as wireless?
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 16 of 55
`
`
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`17
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`MR. JOHNSON: I believe that it's referring to a situation
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`where it's not plugged into a wall. There's no cable in the
`
`back of it, whether it's a power or otherwise. So it's -- it
`
`can be picked up. It can be -- like a phone. I mean, that's
`
`really what the patent is about. You can walk around with it.
`
`It's not plugged in. And that's what wireless versus wired
`
`means. And again -- sorry.
`
`THE COURT: I can -- but I can pick up my laptop, right,
`
`which is a computer.
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`1 2 3 4 5 6 7 8 9
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`10
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`MR. JOHNSON: You can pick up your laptop which is a
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`11
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`computer.
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`12
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`THE COURT: And walk around with it, right? So would it
`
`13
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`be -- would it be covered by your construction or not? Would a
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`14
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`laptop be included or not?
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`15
`
`MR. JOHNSON: A laptop is contemplated by Figure 4. I'm
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`16
`
`sorry. By Claim 4. And when you look at the definition that
`
`17
`
`we proposed, a laptop -- defendants' construction is a wireline
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`18
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`or wireless telephone, IP phone, wireless PDA, or other
`
`19
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`wireless device. The laptop, you know, again, it's disfavored
`
`20
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`but potentially could be covered by the claims.
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`21
`
`THE COURT: I'm having a hard time believing that a person
`
`22
`
`skilled in the art would use wireless or wired to discuss
`
`23
`
`whether or not something was using a battery or not, and
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`24
`
`that -- I mean, it seems to me that -- I understand the
`
`25
`
`distinction you're trying to draw, and I actually might be more
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 17 of 55
`
`
`
`18
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`sympathetic to it were you talking about the -- a networking
`
`cable being wired or not wired, but I'm having a really hard
`
`time figuring out why a person skilled in the art would believe
`
`that wireless was meant to distinguish between a computer that
`
`was plugged into a wall and something that was not.
`
`MR. JOHNSON: Well, if we go back to -- if we go back
`
`to -- let me just pull up.
`
`THE COURT: Where is it --
`
`MR. JOHNSON: Slide 7 again.
`
`1 2 3 4 5 6 7 8 9
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`10
`
`THE COURT: Where is it in the specification it makes that
`
`11
`
`clear? Because it doesn't -- let me try it that way. Where in
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`12
`
`the specification does it make it clear that that's what
`
`13
`
`they're talking about? If it's plugged in, it's not included;
`
`14
`
`if it's not plugged in and that's what is meant by wired, where
`
`15
`
`would one either skilled in the art or one just like me who's a
`
`16
`
`government major would be able to read it and understand that
`
`17
`
`that's what they're talking about? Because I will tell you
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`18
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`that's not the way I read it --
`
`19
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`20
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`21
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`MR. JOHNSON: It's in the --
`
`THE COURT: -- not wireless.
`
`MR. JOHNSON: Yeah. It's in the context of the -- in the
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`22
`
`context of the wireless -- of the devices and in the
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`23
`
`background, right? So if we look at the section at Column 3,
`
`24
`
`Lines again 39 to 46 allows users to access and browse websites
`
`25
`
`where they do not have access to computers with Internet
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 18 of 55
`
`
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`19
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`access. This is accomplished by providing a voice browsing
`
`system, a method that allows users to browse websites using
`
`conversational voicemail -- voice commands spoken into any type
`
`of voice enabled device.
`
`So it's -- let me find the specific cite because I believe
`
`it's in the background and it's in the portion I just read
`
`where it's defining voice enabled device. It's, again, any
`
`type of wireline or wireless telephone, IP phone, wireless PDA,
`
`or other wireless device.
`
`1 2 3 4 5 6 7 8 9
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`10
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`And let me just -- since we've got a large team on the
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`11
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`phone for defendants, I want to make sure -- we've got a quote
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`12
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`that where the -- in the brief where it referred to wired as
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`13
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`plugged into the wall. And that was a -- that is -- I believe
`
`14
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`was referenced in plaintiff's brief. So let me just if I
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`15
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`could, Your Honor, just have somebody help me pull that up.
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`16
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`17
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`Josh or Marissa?
`
`MR. SNYDER: Your Honor, while we're waiting for that, is
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`18
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`there one small matter I could add?
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`19
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`20
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`21
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`THE COURT: Yes, sir.
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`MR. SNYDER: Thank you, Your Honor.
`
`Much of this argument really depends on the importance of
`
`22
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`the letters "i.e." in indicating that it's being definitional,
`
`23
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`and that's used repeatedly throughout the specification.
`
`24
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`There's even example of that on which the Court relied in
`
`25
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`coming to its proposed definition for recognition grammar.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 19 of 55
`
`
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`20
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`In the '431 patent at Column 6, Lines 21 to 24 the
`
`specification says, the natural speech recognition grammars,
`
`i.e., what a user can say that will be recognized by the speech
`
`recognition engine were developed by Webley Systems. And what
`
`is -- follows the i.e. is basically verbatim what the Court
`
`adopted as its proposed preliminary construction for
`
`recognition grammar. So here's a situation in which the Court
`
`has relied on the use of i.e. in the specification to find a
`
`definition and to treat it as lexicography which is exactly
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`1 2 3 4 5 6 7 8 9
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`what the defendants are arguing in the context of voice enabled
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`11
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`device.
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`12
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`13
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`THE COURT: Anyone else? Mr. Johnson?
`
`MR. JOHNSON: Yes, Your Honor. I -- we're looking for
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`14
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`that quote. And I -- perhaps if we can move on, we'll find it,
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`15
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`and I hate to ask your permission to do so, but I don't have it
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`16
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`right in front of me, but I know it's in one of their briefs
`
`17
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`and so we just want to pull it.
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`18
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`THE COURT: Okay. Before I jump back to plaintiff's
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`19
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`counsel, is there anything else any defense counsel would like
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`20
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`to add?
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`21
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`22
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`Mr. DeVoogd, is there anything else you'd like to add?
`
`MR. DEVOOGD: Two quick points, Your Honor. First, to the
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`23
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`point that Mr. Snyder made, Mr. McNamara will get into that in
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`24
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`more detail, but you'll note that in the specification at least
`
`25
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`as I understand it, that's the only place where the patentee is
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Parus Exhibit 2017, Page 20 of 55
`
`
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`21
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`seeking to define the term. So that is in fact a circumstance
`
`where it is appropriate to view the i.e. modifier as
`
`definitional, and as we pointed out on our slides earlier,
`
`there are a number of different areas in the patent where the
`
`patentee discusses what it views as a voice enabled device.
`
`Second, to the extent there is a debate about whether a
`
`device that is plugged into the wall no longer is a voice
`
`enabled device or becomes a voice enabled device when it's
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`unplugged and used but is not a voice enabled device when it's
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`1 2 3 4 5 6 7 8 9
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`charging, I don't think anyone skilled in the art would take
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`11
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`that view of the claim scope.
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`12
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`As for whether or not wireless refers to a hard wired
`
`13
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`Ethernet connection in the patent, I'm not sure it's
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`14
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`necessarily clear, but to the extent there is a definition of
`
`15
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`wireless that may adhere, I think it's referring to that
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`16
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`concept of a hard wired Ethernet connection, but coming back to
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`17
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`what we discussed earlier, Your Honor, we all have Wi-Fi
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`18
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`enabled laptops. Our desktops all h
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