Trials@uspto.gov
`571-272-7822
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`Paper No. 38
`Entered: January 6, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`LBT IP I LLC,
`Patent Owner.
`_________________
`
`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
`_________________
`
`Record of Oral Hearing
`Held: December 9, 2021
`_________________
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`
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`Before JOHN A. HUDALLA, SHEILA F. McSHANE, and
`JULIET MITCHELL DIRBA, Administrative Patent Judges.
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`

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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ADAM P. SEITZ, ESQ.
`JENNIFER C. BAILEY, ESQ
`ROBIN SNADER, ESQ.
`Erise IP
`7015 College Boulevard
`Suite 700
`Overland Park, KS 66211
`(913) 777-5611 (Seitz)
`(913) 777-5600 (Bailey)
`(913) 777-5647 (Snader)
`adam.seitz@eriseIP.com
`jennifer.bailey@eriseIP.com
`robin.snader@eriseIP.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`SHAUN GREGORY, ESQ.
`Butzel Long PC
`1909 K Street NW
`Suite 500
`Washington, DC 20006
`(202) 454-2882
`gregorysd@butzel.com
`
`BRIAN SEAL, ESQ.
`Taft Stettinius & Hollister LLP
`200 Massachusetts Avenue NW
`Suite 500
`Washington, DC 20001
`(202) 664-1543
`bseal@taftlaw.com
`
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`The above-entitled matter came on for hearing on Thursday, December 9,
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`2021, commencing at 10:00 a.m. EST, via Video-Teleconference.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`P R O C E E D I N G S
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`(9:59 a.m.)
`JUDGE HUDALLA: This is the consolidated oral hearing in
`IPR2020-01189, 1191, and 1192. I'm Judge Hudalla. I have with me
`Judges McShane and Dirba. I'd like to start with appearances first. Could
`we start, please, with the Petitioner?
`MR. SEITZ: Good morning, Your Honor. This is Adam Seitz on
`behalf of Petitioner, Apple. Also with me in the room, but off screen right
`now, is Jennifer Bailey and Robin Snader.
`JUDGE HUDALLA: Okay. Good morning to you all. And for
`Patent Owner?
`MR. GREGORY: Good morning, Your Honor. This is Shaun
`Gregory. And also present is Brian Seal.
`JUDGE HUDALLA: Okay. Good morning to you as well. So
`per our trial hearing order, each side is going to have two hours total
`argument time today. However, we had a teleconference last Friday and
`we talked about breaking the hearing up into two sections. So what we'll
`do is we'll start with the 89 case, original and amended claims. Petitioner
`will go first and may reserve some rebuttal time. And then Patent Owner
`will go second and may reserve a brief sur-rebuttal. After that, we will turn
`to the combined 91 and 92 cases and repeat the process. But I do want to
`just ask Counsel to be cognizant that you're going to be held to the two hour
`limit across all of those cases.
`And I do want to mention that we are going to keep the same record
`going throughout all of these hearings today. So you will be able to refer
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`back to things in the earlier parts of the hearing. I'll remind you that this is
`a public hearing and the transcript will be made public as well. We do
`have a public line, so please do not discuss any confidential information --
`proprietary information, although I do not believe we have any of that in this
`case.
`
`We are obviously in a virtual environment here, so please mute
`yourself when you're not speaking. And also it helps if you would give us
`a bit of time after you speak to interject with questions. It also will help the
`Court Reporter if you can identify yourself by name when you start
`speaking.
`I think that's all we have before we start the hearing. So I'm going
`to turn to Petitioner's Counsel. I don't know if it's going to be you, Mr.
`Seitz or Ms. Bailey speaking in the beginning here.
`MR. SEITZ: It will be me, Mr. Seitz, Your Honor for the ’774 and
`the -01189 proceeding. And then Ms. Bailey will handle the -01191 and -
`01192.
`JUDGE HUDALLA: Okay. Thank you, Mr. Seitz. We usually
`just ask you how much time you'd like for rebuttal. But I'm going to ask
`you both, how much for an opening and how much for a rebuttal, so we can
`kind of keep the schedule going here?
`MR. SEITZ: Yes, absolutely. So I'd like to have 45 minutes of
`total time and leave Ms. Bailey 75 minutes or an hour 15. Of the 45, Your
`Honor, I'd like to split it up in 35 and 10 for opening and rebuttal if that
`makes sense.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`JUDGE HUDALLA: Okay. No, that sounds great. Mr. Seitz,
`you may begin. We have the slides by the way, so we'd probably prefer
`just to see you on the screen if we could.
`MR. SEITZ: Understood, Your Honor. That was how I was
`going to proceed. May it please the Board -- and Your Honor, I ask just for
`-- my apologies in advance. I have a cold -- luckily just a cold that's settled
`in my throat. My voice has been holding up this morning, but my
`apologies if I become hard to hear or need to take a pause to grab some
`water. But as I mentioned, I'm going to be covering the ’774 patent, which
`is the 1189 proceeding, both the original and the amended claims. Ms.
`Bailey will be covering the other two.
`So if we jump right in, I'll start on Slide DX-3. The ’774 patent is
`slightly different in context from what you're going to hear from Ms. Bailey
`later, specifically because it's a CIP of the other patents in the suit. The main
`new idea behind the ’774 patent is depicted in Figure 4, which is repeated on
`Slide DX-3. Now the concept or the main problem here that presented
`itself was that when you use GPS, especially in a mobile device, GPS is a
`big drain on power. It can cause the battery to run down quickly.
`So as we said in our declaration, for the state of the art, there had
`been many different options and solutions to the problem of GPS. Figure 4
`presents the solution proposed by the Applicant in this manner. The basic
`idea shown in Figure 4 is a user-definable adjustable power (audio
`interference). That's a mouthful, but basically what we're looking at in
`Figure 4 is that the user is presented with an ability to see what their battery
`power is, depicted in Box 406. You see an estimate or a prediction of how
`much battery life or battery level that gives you, shown in Box 414 as three
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`days. And then the user is presented with an option of moving the slider
`across the screen -- slider 419, where they can then value the tradeoff
`between more frequent updates by the GPS, which means you'll have a more
`accurate location set of coordinates or less frequent updates, which will of
`course not be as accurate. The tradeoff there is that you'll have more
`battery with less updates and less battery with more updates.
`Once the user selects, then that selection results in an updated set of
`network communications signaling protocols that are then going to active
`and deactivate certain circuitry by deactivating or essentially going to cut
`power off. And by cutting power off to the GPS circuitry, you're going to
`save power. That's the basic idea of what we're going to be discussing
`today.
`Moving to Slide DX-4, I've repeated claims 1 and 8 here. We see
`that concept that I just described laid out in the claims. Claim 1
`specifically has a battery power monitor. For example, how does what I
`just described work in the claims? Claim 1 has a battery power monitor.
`It's going to measure in real time, the battery charge. It's going to give the
`user a prediction of the estimated remaining battery charge level. Then you
`have what the patent calls in Claim 1, a local battery power adjustment
`mechanism that is going to generate an updated set of network
`communication signaling protocols. These are going to dictate how often
`you request or listen for your GPS coordinates, the location coordinate
`packets. And that is going to be in response to the user input request. For
`example, the slider that we just discussed. And then based on that user
`input, we see in the final limitation, certain circuitry will be activated or
`deactivated.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`Claim 8 is nearly identical. There's two things that I want to call
`out today. The parties have not addressed these significantly different in
`our briefing. But one initial difference in Claim 8 is the electrical power
`resource management includes what's called an adjustment to the cycle
`timing. The cycle timing is essentially the same as the updated set of
`network communications signaling protocols. There also is a dispute, Your
`Honors, that we're going to jump into in just a moment with Claim 8 where
`you have an adjustment of power level. And that power level comprises a
`multitude of threshold values determined by a user. The multitude of
`threshold values only appears in Claim 8, but it is a dispute between the
`parties that we'll be addressing.
`Let's move to Slide DX-5. The reference that you're going to be
`hearing discussed quite a bit today from both myself and Ms. Bailey is
`Sakamoto. Now we're going to be -- Because of the difference between the
`claims, we're going to be talking about different aspects of Sakamoto. But
`let me just briefly give an introduction to Sakamoto. I know the Board is
`familiar with it based on its decision so far. Sakamoto is a Japanese
`application -- patent application that relates to the use of a GPS positioning
`system with a remote server and a portable terminal. For the portable
`terminal, think of it as a phone or some other mobile device that allows you
`to track the location of that mobile device. Sakamoto then discloses a
`number of ways to adjust how much battery power is being used based on
`the draw of the GPS.
`For purposes of the ’774 patent, we're focused on two different
`implementations in Sakamoto, which are depicted here on Slide DX-5.
`And what I've repeated on the right side of DX-5 is Figure 1 from Sakamoto.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`So the positioning control unit in orange, Box 13 at the top of Figure 1 is
`essentially the brains of the operation. It controls what's going to take
`place. We see on the bottom left, a battery control unit. That battery
`control unit in Sakamoto is going to monitor the battery level and then it's
`going to provide an alert when that battery level reaches the threshold that's
`been set in advance by a user. Once that alert is generated, it is set to the
`positioning control unit. And one of two things happens that we've -- that
`we've mapped in our petition.
`First, the man machine interface control unit, which is the red Box
`14 at the top left of Figure 1, that alert -- that battery warning will be
`provided by the control unit to the man machine interface where the user
`will then see that they have a battery alert. And as described in the
`specification, upon receiving that warning, the User A will operate the man
`machine interface control unit to select from what Sakamoto describes a
`normal sensitivity positioning mode, a high sensitivity positioning mode, or
`cutting power off completely to the positioning information. Which is
`essentially -- and we'll get into this a little more -- but the high sensitivity
`and normal sensitivity and off relate to how often the GPS is powered.
`The second option that we're presented with in Sakamoto has the
`same basic setup. The battery control unit monitors the battery level for a
`threshold that's been set by the user in advance. When it reaches that
`threshold level, it sends an alert to the positioning control unit. But this
`time, instead of the user selecting the specific protocol, it is going to
`automatically -- the system, Sakamoto will automatically shift the
`positioning mode to the normal sensitivity positioning mode. The result of
`changing the mode in both of these scenarios is deactivation of certain
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`circuitry within the Sakamoto system with the GPS module. The result of
`that is that it ultimately preserves power coming from either your normal
`operation or your turn completely off operation where the GPS is no longer
`operating.
`So looking at Slide DX-6, to briefly orient where I'm going to go
`with you, Your Honors, we have a number of issues that are in dispute.
`Three specifically that I'm going to talk about on the original petition today.
`The first issue rests on a claim construction dispute and that is, what is a
`multitude. How many thresholds are within a multitude? The second is a
`question of what the actual disclosure of Sakamoto is. Is changing position
`modes; the high, normal, off that I just discussed in Sakamoto, an updated
`set of communication protocols? Tied in with that is the question of is this
`perform responsive to user input? Finally, it's just the difference from
`Claim 1 to Claim 8. We'll be looking at whether the changing of position
`modes also adjusts cycle timing.
`We'll start with the claim construction question on Slide DX-7. So
`Claim 8 is the claim that implicates this multitude. And it includes, I've
`repeated just a short bit of the language here on Slide DX-7 from Claim 8, it
`"includes a multitude of threshold values to intermittently activate or
`deactivate the location tracking of the GPS device in response to the
`estimated charge level of the charging unit." Now the Board in its ID and the
`Petitioners in the subsequent briefing have proposed that "multitude" should
`be construed to be two or more, a plurality. Patent Owner has contended
`that "multitude" in the context of the 774 patent is necessarily more than
`two. They've not put a specific number on that, but I believe they're saying
`three or more.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
`
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`JUDGE HUDALLA: Mr. Seitz?
`MR. SEITZ: Yes, sir?
`JUDGE HUDALLA: It's Judge Hudalla. I wanted to ask you
`about this slide. I know that Petitioner has criticized Patent Owner for not
`coming forward with any intrinsic evidence supporting their three or more
`proposed construction. And then I look at your papers and I don't really
`see any intrinsic evidence that it supports necessarily your two or more
`construction. So I was wondering if you could address that and tell me if
`there's any evidence in the patent that supports that.
`MR. SEITZ: Yes, Your Honor. If we look at Slide DX-8, there is
`not much intrinsic evidence that's provided to us as far as defining
`specifically what "multitude" would be outside of its common usage. I've
`included the two specific parts that provide us the best guidance on Slide
`DX-8. The first is from column 13, line 60 to 64 where it talks about the
`adjustments. And this is the adjustments that the user can make to include
`a multitude of threshold values. The specification does not provide any
`number to what it means by a "multitude" in that instance as far as whether
`it's two or more, five or more, or ten or more. The specification is silent in
`that regard.
`We also have Figure 4, which shows us active display 432, which
`has been identified as where the multitude of threshold values are. And we
`see the figure disclosing clearly here, two or more threshold values that the
`user can select with Slider 419. So that is the guidance that's provided to us
`by the specification, Your Honor, as far as what a multitude could mean.
`Perhaps more to the point, when we've been briefing, when we've been
`briefing, we argued -- Let me take a step back. So one of the disputes
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
`
`between the parties that arose was whether you should take that broad value,
`what's disclosed in Figure 4 of a broad range, up to 7 -- potentially more
`than 7, depending on how and where that slider can be placed, and picking
`where the starting point is.
`So fundamentally, we're presented with two questions, Your Honor.
`One is that there is the plain and ordinary meaning of multitude and has that
`meaning been modified by the specification. It has not. From the portion
`that I showed you, and from portions that no one has found because they're
`not there, there's no change to the plain and ordinary meaning of multitude,
`which is a large number or a plurality, which also defines itself as a large
`number.
`But what we do see is a problem that arises in the law when we
`begin to try and pick and choose a number to start at that is greater than two.
`The precedent that we cited in our reply brief makes clear that you run into a
`written description problem when you have a range disclosed and then pick
`a random number within that range to start at. Which is what I believe
`Patent Owner is doing here by picking three. Unless there is a specific
`disclosure in the specification that says we must start at three or five or
`seven in our broad range, then the normal rules of claim construction would
`apply. The specification does not limit multitude. And that takes us to
`where the Board landed, where we have landed, which is to look at the
`extrinsic evidence, which tells us, as I already noted from the dictionaries,
`that multitude is a large number synonymous with plurality, which also
`defines itself as a large number, which has been universally defined as two
`or more.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`Moving to Slide DX-9, one of the arguments made by Patent Owner
`in this case is a question of prosecution disclaimer. Patent Owner argues
`the prosecution history disclaimer precludes a claim construction that
`includes two or more. This relates to what is called the Huang, H-U-A-N-
`G reference, which an amendment was given during the prosecution to get
`around the Huang reference. I've depicted on Slide DX-9, the amendment
`that was added. And the limitation shown at the bottom underlined -- and
`then I've also colored some key limitations here -- that limitation was added
`in response to a rejection under Huang was from an existing dependent
`claim that the Examiner had already allowed.
`The Patent Owner simply took that dependent claim and
`incorporated that dependent language into the independent claim and it was
`allowed. We do not have any language from the Examiner or any
`statements from the Patent Owner in the prosecution history as to what
`specific component of this amendment was the basis for its allowance.
`And before I get into the specific aspects of what was added in this
`amendment, I do want to set our understanding of what the law requires for
`prosecution history disclaimer. And there, you must have a clear and
`unmistakable disclaimer. The Federal Circuit has said you cannot have
`multiple reasonable interpretations. If there are multiple reasonable
`interpretations, then you are not in the land of prosecution history
`disclaimer. I start there because next we see in the colored aspects in Slide
`DX-9, what we believe to be multiple reasonable interpretations of why this
`reference -- why this limitation -- this added limitation could have gotten
`around the Huang reference.
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`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`We see that there are four specific items that were added, each of
`which could carry patentable weight for purposes of overcoming Huang.
`The first we see is a multitude of thresholds. We see next, determined by
`user or system administrator. We see next, to intermittently activate or
`deactivate. Finally, we see that all of this is done in response to the
`estimated charge level of the charging unit. So immediately we're
`presented with four options, each of which is a reasonable assumption for
`why it proved itself to be patentable over Huang, which takes us directly out
`of the prosecution history disclaimer land. But here, Your Honors, we
`actually have more. We know that the reason that Huang was overcome is
`not because of a multitude of threshold. It actually is undisputed that
`Huang teaches more than two thresholds.
`Let's move to Slide DX-10. Depicted on DX-10 are the arguments
`that led the parties to this space. Patent Owner contends that Huang has
`disclosed two thresholds. On the bottom right side of Slide DX-10, you see
`Figure 2A repeated from the Huang reference, which was overcome. Now
`we had our expert, Dr. Andrews, analyze the Huang reference. And what
`his opinion was, which is unrebutted at this point and unchallenged by
`Patent Owner, is that Huang actually teaches far more than two thresholds.
`And looking at Figure 2A on the bottom of Slide DX-10 from Huang, we see
`the X-axis, which relates to a speed -- for example, miles per hour. And
`then on the Y-axis, we see a time in seconds for how often the GPS is going
`to update. As your speed changes and increases, your updates -- the
`frequency of those updates are going to change as well.
`Patent Owner has contended that Huang discloses only the 50 and
`100 thresholds, but our expert said that a POSITA would look at this and
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`understand that Huang is actually disclosing that you could have any number
`of different thresholds between five and ten or frankly below 50 as well.
`So as you move along this line as we've depicted in red and blue, you could
`arrive at 60 miles per hour and have a different threshold. You could arrive
`at 80 miles an hour and have a different threshold. So we see that Huang
`itself discloses more than two thresholds, which going back to the prior slide
`is important. It tells us that the amendment itself was not done to overcome
`Huang as it relates to a multitude of thresholds because Huang actually
`discloses a multitude of thresholds. So for those reasons, Your Honor, we
`contend that there cannot be any prosecution history disclaimer in this case.
`So let's go forward to Slide DX-11. I want to just briefly stop here
`because there was some confusion that arose in the sur-reply. I think it's
`clear up to now, Your Honors, that we would disagree, but Patent Owner
`seemed to ascribe to us that we had agreed that the construction for a
`multitude should be a number larger than four. We disagree with that.
`Multitude should be a plurality, two or more. And that should be done for
`all the reasons that we just discussed. But I did want to at least pause there
`momentarily because that is not our position.
`JUDGE HUDALLA: Mr. Seitz?
`MR. SEITZ: Yes, Your Honor.
`JUDGE HUDALLA: It's Judge Hudalla, I wanted to ask you a
`little bit about that. I think what brought up all of these arguments that
`we're looking at in DX-11 here is your -- maybe it's an alternative position
`that Sakamoto actually teaches four thresholds. And I wanted to ask you a
`little bit about that. In your, I guess it's your reply brief, you additionally
`site third and fourth -- what you contend are third and fourth thresholds,
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
`
`which are GPS signal powers K1 and K2. So it's the GPS signal level
`thresholds that you're citing for the -- I guess -- the multitude of thresholds.
`And I wanted to ask you about that. Is that proper based on the
`claim language? And what I'm getting at is that I see the recitation power
`level described twice in Claim 8. In the first instance, it's said to be the
`power level of the charging unit. And in the second instance, it's said to be
`the power level applied to the location tracking circuitry. After that, the
`claim continues that the power level comprising a multitude of threshold
`values is determined. And it doesn't really say which of those two prior
`power levels it's referring to. So I'm wondering if you would address that.
`Is it proper for you to actually talk about a power level applied to location
`tracking circuitry as one of the multitude of threshold values?
`MR. SEITZ: To make sure I understand your question, Your
`Honor, you're specifically asking about in Claim 8, the signal levels that's
`responsive to the signal levels. And how our GPS signal level -- I can't
`speak that word today -- signal level applies to that aspect. Is that correct,
`Your Honor?
`JUDGE HUDALLA: I'm asking about your -- I guess it's an
`alternate position in the reply brief where you come up with Sakamoto's
`signal levels K1 and K2 and call them thresholds. My question is, is it
`proper for you to call them "power level thresholds" because I don't read it
`that way. I read it as applied GPS power.
`MR. SEITZ: Oh, I see. Yes, Your Honor. I see what you're
`saying. "Power level comprising a multitude of threshold values." I do
`think, Your Honor, if we're going to go into the question of broadening out
`"multitude", because those GPS signals specifically impact how much power
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`is going to be used, I do believe that, that is appropriate. The specification
`of Sakamoto discusses how the power levels are going to be adjusted based
`on the GPS signal levels. And so under that interpretation where we are
`expanding multitude to be four or more, the GPS signal levels are intricately
`tied into the power levels because those are indicative of how much power
`you are using. So I would contend in that situation, Your Honor, that the
`GPS signal levels are representative of or indicative of the power levels
`there.
`JUDGE HUDALLA: Could I ask you then, in the specification of
`the challenged patent, column 13 at about line 60, it talks about this power
`level we're speaking of. And it says, "power level e.g. battery power level
`406 adjustments include multitude of threshold values." And so I'm
`wondering, how do you square that position with this portion of the spec in
`column 13?
`MR. SEITZ: Well, if we're going to read in -- So two ways, Your
`Honor. One, I don't believe we should have to get to the question of four
`thresholds, but I understand that's what you and I are discussing.
`Secondarily, if you were to look at the column 13, the multitude of threshold
`values where you have -- sorry, I just lost it -- the capability of power level,
`e.g., battery power level, it would seem to me that you're running afoul of
`reading in very specific embodiments from the specification into the claims
`there. There's nothing in that situation that would dictate that your -- from
`column 13, that would limit the power level to only the battery power level.
`That seems to be an embodiment. And I think it would be improper to say
`that, that one embodiment should then be fully incorporated into Claim 8 in
`that instance.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`JUDGE HUDALLA: Okay. So just to wrap it up, I think your
`position then if I go back to the actual claim language is that the two power
`levels talked about in the wherein clause of Claim 8 could refer to -- I mean
`the multitude of threshold values could refer to either of those power levels.
`MR. SEITZ: Yes, Your Honor.
`JUDGE HUDALLA: Okay, thank you.
`MR. SEITZ: Anything further, Your Honor or may I proceed?
`JUDGE HUDALLA: Please proceed.
`MR. SEITZ: Okay, Your Honor. Let's move forward to what
`Sakamoto actually discloses. I'll cover these quickly, so we can cover the
`motion to amend as well. I'm focusing on Slide DX-12. Here with DX-
`12, we're going to talk about the question of does Sakamoto teach an
`updated set of communication protocols? And Claim 1 requires an updated
`set of network communication signaling protocols. And as we have
`mapped it, Sakamoto's positioning modes are the claims set of networking
`communicating protocols, which are updated when the system switches
`positioning modes.
`Let's move to Slide DX-13 and see how this works in practice. So
`DX-13 relates to Claim 1. It's the updated set of communication protocols.
`I've depicted on the bottom on DX-13, a chart that you saw in our briefing
`on this matter. But as we discussed prior or earlier in my argument,
`Sakamoto has a high sensitivity positioning mode, a normal sensitivity
`positioning mode, and it also has off, which is not depicted here for purposes
`of saving space. In the high sensitivity positioning mode, what we see is
`that there's a maximum GPS refresh rate, which our expert opined is
`approximately 1 hertz, one time a second for the listen rate.
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`IPR2020-01189 (Patent 8,497,774 B2)
`IPR2020-01191 (Patent 8,102,256 B2)
`IPR2020-01192 (Patent 8,421,618 B2)
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`When the user provides input, this would be an example where the
`battery level warning is provided -- provided to the user. The user will then
`select to move to a normal sensitivity positioning mode or off. And when
`the user selects to move to the normal sensitivity positioning mode, the
`system for the listen rate and the response rate or how often it's going to
`request the location coordinate packets, is going to change. It's going to be
`updated from the maximum GPS refresh rate, once every second, to either
`an irregular request rate -- whenever someone on the other end of the server
`is asking for the device to listen -- or what Sakamoto describes as a short
`cycle or a cycle that is set in advance. And then, of course, off, which is
`not depicted here, updates the signaling communication protocols by turning
`the GPS power off completely.
`In each of these situations, an updated set of protocols is being
`implemented in Sakamoto. And in each of these situations, it's based on
`user input -- through the user setting those thresholds when provided the
`warning. Or from the user setting the threshold at which it will
`automatically be done. Importantly here, Your Honor, our expert's
`testimony on these modes and how they swap is unrebutted. Dr. Andrew's
`testimony is unrebutted