`
`Regional Court Munich I
`
`File no.: 7 O 2141/17
`
`Translation
`
`IN THE NAME OF THE PEOPLE
`
`In the matter of
`ParkerVision GmbH, represented by its Managing Director Thomas Kober, Helmstedter Straße
`12, 10717 Berlin - plaintiff -
`
`Counsel:
`Attorneys at Law Noerr LLP Brienner Straße 28, 80333 Munich, ref.: M-0466-2017 court box. no. 272
`
`versus
`1) Apple Distribution International, represented by the directors Gene Daniel Levoff, Michael
`O’Sullivan, Cathy Kearney, Hollyhill Industrial Estate Hollyhill, Cork, Ireland
`- Defendant -
`
`2) Apple Inc., represented by the Chief Executive Officer (CEO) Timothy Donald Cook, Infinite
`Loop, Cupertino, CA 95014, United States of America,
`- Defendant -
`
`3) Apple Retail Germany B.V. & Co. KG, legally represented by its general partner Apple
`Holding B.V., in turn represented by the Directors Alexander Niemczyk and Michael Joseph
`Boyd Jr., Eschenheimer Anlage 1, 60316 Frankfurt a. Main
`- Defendant -
`
`Counsel for 1 - 3:
`Attorneys at law Freshfields Bruckhaus Deringer LLP, Feldmühleplatz 1, 40545 Düsseldorf, ref.:
`130239-0143 WPW
`
`Counsel for 1) - 3):
`Attorneys at Law HOYNG ROKH MONEGIER Partnerschaftsgesellschaft, Steinstraße 20, 40212
`Düsseldorf, ref.: 170807_4901_17_KE_DE
`
`for infringement of patent EP 1 135 853 B1 “Integrated frequency translation”
`Based on the hearing on 15 March 2019, by Presiding Judge at the Regional Court Dr. Zigann, Judge at
`the Regional Court Klein and Judge at the Regional Court Schmitz, the 7th Civil Division of the Munich
`Regional Court I, issued the following
`
`
`Intel v. ParkerVision
`IPR2020-01265
`Intel 1042
`
`

`

`Final judgement
`
`1.
`
`The action is dismissed.
`
`2
`
`3
`
`The plaintiff bears the costs of the legal proceedings.
`
`The judgment is provisionally enforceable for the defendants against provision of a security of
`110 % of the respective enforceable amount.
`
`Facts of the case
`
`The plaintiff is the registered proprietor of the European patent 1 135 853 (patent in suit) and
`is suing the defendants on account of patent infringement. Patent claims 1 and 10 are worded as
`follows in the English original:
`
`1. Apparatus for down-converting and filtering an input signal having a carrier frequency,
`comprising:
`a) sampling means for sampling the input signal at a sampling frequency of less than twice
`the carrier frequency to produce an input sample of a down-converted image of the input
`signal, wherein said sampling means includes a switch and a capacitor, wherein said switch
`undersamples said input signal according to a control signal, and wherein the control signal
`includes pulses having non-negligible pulse widths, wherein said pulses cause said switch
`to close and sub-sample the input signal over said pulses, wherein energy is transferred from
`the input signal and stored using said capacitor during said pulses, and wherein the
`downconvert- ed image is generated from the transferred energy;
`b) delaying means for generating one or more delayed instances of an output signal; and
`c) combining means for combining at least the input sample with the one or more delayed
`instances of the output signal to generate an instance of the output signal.
`
`10. Apparatus according to any preceding claim, wherein the storage of energy using said
`capacitor substantially prevents accurate voltage reproduction of the input signal during said
`pulses.
`
`The figures shown below (Figures 24, 45 and 53A) show preferred embodiments of the
`invention, which the plaintiff, however, claims is not true for Figure 24.
`
`
`
`
`
`2
`
`

`

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`
`
`
`
`
`
`
`
`
`3
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`

`

`The defendants sold smartphones of defendant 2) that were equipped with the attacked chip
`“PMB 5750”.
`
`The plaintiff asserts that the attacked embodiment literally infringes the patent in suit. This
`essentially results from the simulations it performed based on an extensive TechInsights report (see
`in particular Exhibit KE8 and KE11).
`
`The plaintiff requests, and clarifies that the request for injunctive relief is supposed to extend
`to all embodiments that are essentially the same:
`
`I.
`
`1.
`
`The defendants are ordered
`
`upon pain of an administrative fine due of up to EUR 250,000 for each case of non-
`compliance, alternatively administrative detention of up to 6 months, or administrative
`detention of up to six months, and in the event of repeated non-compliance
`administrative detention of up to two years, with the detention to be executed on the
`respective managing director, to refrain from
`
`offering, placing on the market, or using or importing for the above purposes in the
`Federal Republic of Germany, mobile telephones - in particular the mobile telephone
`“iPhone 7” (model A1778) -, which contain an apparatus for down-converting and
`filtering an input signal having a carrier frequency, comprising:
`
`a) a sampling means for sampling the input signal at a sampling frequency of less
`than twice the carrier frequency, to produce an input sample of a down-converted
`image of the input signal, wherein the sampling means includes a switch and a
`capacitor, wherein said switch undersamples said input signal according to a
`control signal and wherein the control signal includes pulses having non-negligible
`pulse widths, wherein said pulses cause said switch to close and sub-sample the
`input signal over said pulses, wherein the energy is transferred from the input
`signal and stored using said capacitor during said pulses, and wherein the
`downconverted image is generated from the transferred energy;
`
`b) a delaying means for generating one or more delayed instances of an output
`signal;
`
`c) a combining means for combining at least the input sample with the one or
`more delayed instances of the output signal to generate an instance of the output
`signal;
`
`(Claim 1)
`
`in particular if the storage of energy using said capacitor substantially prevents
`accurate voltage reproduction of the input signal during said pulses (claim 10);
`
`
`
`4
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`

`

`2.
`
`to provide information to the plaintiff regarding the scope within which the defendants
`have committed the actions referred to in no. I.1. since 07/02/2017, specifying
`
`
`
`a)
`b)
`
`c)
`
`the names and addresses of the manufacturers, suppliers and other previous owners,
`the names and addresses of the commercial customers and sales outlets for
`which the products according to I.1 were intended;
`
`the number of products manufactured, delivered, received or ordered according
`to no. I.1, as well as the prices which were paid for the relevant products,
`
`wherein
`
`•
`
`•
`
`as evidence of the information provided, copies of the relevant purchase vouchers
`i.e. invoices, alternatively delivery notes, order confirmations or clearance
`certificates have to be submitted,
`
`whereby on the purchase vouchers, details of any information above and beyond
`that required which is subject to secrecy may be blackened out;
`
`3.
`
`to render account to the plaintiff regarding the scope within which it has committed the
`actions referred to in I.1 since 07/02/2017, submitting a uniform and orderly statement
`specifying
`
`a)
`
`b)
`
`c)
`
`d)
`
`e)
`
`the quantity of products obtained or ordered as well as the names and addresses
`of manufacturers, suppliers and other previous owners, and - in the event of
`several partial orders - marking the parts of the orders which belong together;
`
`individual deliveries, broken down according to the quantities delivered, the
`delivery times and prices, including any type designations as well as the names
`and addresses of the customers and sales outlets;
`
`individual offers, broken down according to the quantities offered, the times and
`prices of the offers, including the type designations, and the names and addresses
`of the recipients of the offers;
`
`the nature of the advertising performed, broken down according to the advertising
`media, their circulation figures, dissemination period and area of coverage;
`
`the actual costs broken down on the basis of the individual cost factors and the
`profit made."
`
`wherein the defendants shall reserve the right to not communicate the names and
`addresses of the non-commercial customers and recipients of offers to the
`plaintiff, but to a chartered accountant registered in Germany and named by the
`plaintiff and pledged to secrecy, provided the defendants bear the accountant's
`costs and authorise him to disclose to the plaintiff, upon specific inquiry, if a certain
`customer, recipient of an offer and/or delivery is included in the accounts
`
`rendered;
`
`
`
`5
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`

`

`wherein proof has to be provided regarding the accuracy and completeness of
`the information provided under above items a) through to c) above by submission
`of bank, financial or commercial documents or appropriate access thereto,
`alternatively: by forwarding documentation (copies of invoices), wherein details
`of any information above and beyond that required which is subject to secrecy
`may be blackened out;
`
`4
`
`II.
`
`III.
`
`to recall the products referred to in I.1. in the possession of commercial third parties, by
`seriously requesting the third parties who were permitted to possess the products or
`who possess them with the defendants’ consent since 07/02/2017, to return the
`products to the defendant, making reference to the fact that the Court has established
`an infringement of the patent in suit 1 135 853, and to promise the third parties that the
`defendant will pay back any purchase price already paid as and take over any costs of
`the return of the products.
`
`The defendants are ordered to hand over the products referred to in I.1. above held in
`their direct or indirect possession to a bailiff to be commissioned by the plaintiff in order
`to be destroyed at the defendant’s own expense.
`
`It is established that the defendants are obliged to indemnify the plaintiff for all losses
`incurred from the acts listed under I.1. since 07/02/2017 and still to be incurred.
`
`The defendants request:
`
`1. that the action be dismissed;
`
`2.
`
`in the alternative, that the legal dispute be stayed pending a final decision in the nullity
`proceedings regarding the validity of the German part of the European patent EP 1 699
`718 B1 (DE 699 20 037.7).
`
`The defendants deny the patent infringement and essentially assert that the attacked chip is
`systemically structured as follows:
`
`The plaintiff provided a security for costs pursuant to Sec. 110 ZPO. At the hearings on 14
`and 15 March 2019, the Court heard the expert Prof. Dr van Waasen.
`
`
`
`
`6
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`

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`Moreover, reference is made to the briefs exchanged including exhibits, the minutes of the
`hearings of 14 and 15 March 2019 and the notifications provided by the Court (in particular
`regarding the preliminary interpretation of the patent in suit).
`
`Reasons for the decision
`
`The admissible action is without merit.
`
`The patent in suit concerns, according to its title, an integrated frequency translation and
`I.
`selectivity with a variety of filter embodiments. The subject matter of the patent in suit according to
`claim 1 is an apparatus for down-converting and filtering an input signal having a carrier frequency.
`Independent claim 11 provides a corresponding method.
`1.
`The relevant field is that of radio technology. The patent in suit deals with the translation
`of the carrier frequency into low-frequency information signals on the receiver side. The way a
`conventional receiver works is explained in the description of the patent in suit. Fig. 1 shows a block
`diagram thereof, and Fig. 2 a flow chart illustrating the operation of a conventional receiver.
`
`Generally, a receiver performs three tasks: Frequency selection, amplification, and
`frequency translation (para. [0068] of the description of the patent in suit in the English
`
`
`
`7
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`

`

`original, to which reference will be made hereafter). Accordingly, in a conventional receiver (like in
`Fig. 1), the mixer translates the frequency, the band select filter and the channel select filter select
`the frequency, and the LNA (= low-noise amplifier) and the amplifier amplify the signal [0068].
`
`The patent in suit criticizes that in the last step, the amplifier amplifies both the desired
`2.
`signal component and an undesired (spurious) signal component [0012]. Once the spurious
`component in the pass-band of the channel select filter has been generated, it follows the desired
`signal component in all downstream processing [0013]. This makes it difficult or even impossible
`to receive the desired component, which degrades the performance of the receiver and limits its
`applicability [0014].
`
`Moreover, the description cites four other prior art documents: The first one (DE-4 237 692
`C1) discloses a digital radio signal receiver which digitally converts an intermediate frequency
`signal, filters the digital signal with a digital all-pass filter and down-samples the filtered signal with
`a low-rate digital mixer [0015]. The second document (US-A-5 557 641) concerns a receiver and
`a transmitter where signal up-conversion and down-conversion is performed in part by a charge-
`coupled device [0016]. The third cited document (WO 96/02977) discloses an alias-driven
`frequency down converter using a sample and hold or track and hold circuit [0017]. WO 96/39750
`finally discloses a radio frequency reception circuit using a sample and hold circuit to sub-sample
`an analogue RF channel [0018].
`
`From this, the problem to be solved by the patent in suit can be derived, i.e. to provide
`3.
`an improved receiver.
`
`To do this, patent claim 1 in combination with the asserted dependent claim 10 proposes,
`broken down into its features and with the statements of purpose almost completely set apart (the
`remaining ones having been printed in italics):
`
`0.
`
`1.
`
`Apparatus for down-converting and filtering an input signal having a carrier
`frequency, comprising:
`
`a sampling means (45),
`1.1
`suitable for sampling the input signal (40; 18) at a sampling frequency of
`less than twice the carrier frequency,
`the sampling means (45) includes a switch (55) and a capacitor (65),
`
`1.2
`
`
`
`8
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`

`

`1.2.1
`
`1.2.2
`
`the switch undersamples the input signal (40; 18) according to the
`pulses of a control signal (35),
`1.2.1.1 the control signal (35) includes pulses with non-negligible
`pulse widths,
`1.2.1.2 said pulses cause the switch (55) to close,
`1.2.13 during said pulses, energy is transferred from the input
`signal (40; 18) and
`the capacitor (65) stores the energy (“energy is ... stored using said
`capacitor”),
`12.2.1 the storage of energy using said capacitor substantially
`prevents accurate voltage reproduction of the input signal
`(40; 18) (dependent claim 10);
`the sampling means can produce an input sample of a down-converted
`image (22) of the input signal (40; 18),
`1.3.1
`the down-converted image (22) is generated from the
`transferred energy;
`a delaying means (80),
`2.1
`suitable for generating one or more delayed instances of an output signal (50);
`a combining means (15),
`3.1
`suitable for combining at least the input sample with the one or more delayed
`instances of the output signal (50),
`to generate an instance of the output signal (50).
`
`1.3
`
`3.2
`
`2.
`
`3.
`
`4.
`
`There are three aspects of this teaching that need explaining:
`
`a) A sampling means according to feature 1 concerns a device, namely a means, that is
`functionally suitable to convert a high-frequency, time-continuous input signal into a time discrete
`output signal having a lower frequency.
`
`aa) The patent in suit does not define the term “sampling”. To the skilled person, sampling
`has this literal meaning, because it is a known and generally used technical term. The expert
`confirmed this understanding when he was heard on 14 March 2019 (minutes, p. 3 = p. 689 of the
`court files).
`
`Making use of an expert generally serves the purpose, and also did so in the present case,
`of enabling the Court to determine and understand the (technical) facts that are relevant for
`confirming or negating the questions of law
`to be answered (patentability, enablement,
`infringement).
`
`
`
`
`
`
`
`
`
`
`
`9
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`

`

`The facts that are relevant in this respect depend on what the subject matter of the patent
`claims is. The determination of the content of the patent claims is in itself a question of law, because
`it requires the patent claims to be interpreted in the light of the description and the drawings (Sec.
`14 PatG) (BGH GRUR 2015, 472 - Stabilisierung der Wasserqualität). The Court is aware of the fact
`that the court cannot simply adopt the findings of an expert opinion without further ado, and that the
`trial judge has to review the evidence of an expert independently as to whether and to which extent
`it contains information that may help to clarify questions that are relevant to the decision and that
`have to be answered by the Court seized of the matter alone (BGH GRUR 2006, 131, 133 -
`Seitenspiegel). The Court had no reason to doubt the explanations given by the expert in this
`respect. The Court was therefore able to base its own interpretation and decision on these
`explanations.
`
`The skilled person in this case is a telecommunications engineer with a university degree,
`i.e. a university graduate in electrical engineering specialising in the field of microelectronics or
`communications engineering, who has several years of experience in the field of mobile
`communications in a major development enterprise.
`
`bb) The patent in suit and its description are based on the understanding set forth above.
`
`(A) The skilled person defined in this manner finds his understanding confirmed by the
`features of claim 1. Feature 1.1 of claim 1 relates to the so-called Nyquist rate, para. [0193], which
`concerns a discrete-time, and not a continuous-time signal. This understanding is also confirmed by
`group of features 1.2.1 which relates to undersampling. In order to sample and downconvert, the
`patent in suit shows the skilled person at least one explicit possibility, namely a sample-and-hold
`circuit, para. [0224] and Figure 45. Feature 3.2 only makes sense for discrete-time signals, if
`instances of the output signal are to be generated. This is because the delaying and combining
`means according to the patent concern sampled discrete-time signals. Firstly, this is clear from the
`fact that instances of the output signal (generated by the delaying means) are addressed (feature
`2.1, 3.1 and 3.2). And secondly, feature 3.1 again addresses the input sample. It is clear from several
`passages of the description ([0078], [0144], [0222] that samples and instances can be equated.
`Therefore, the delaying means must be suitable to delay one or several delayed instances of a time-
`discrete output signal.
`
`
`
`
`10
`
`

`

`This is in line with the described embodiments [0222] ff. and Fig. 24 and 45. For this, the skilled person
`will provide a circuit arrangement that is able to process a time-discrete signal, such as the sample-
`and-hold circuit. A possible embodiment of a combining means according to the patent is an “adder”
`that combines the delayed and scaled input samples and the delayed and scaled instances of the output
`signal in order to generate instances of the output signal [0094]. Moreover, as the expert explained
`(minutes of 14 March 2019, p. 4 = page 690 of the court files), technically speaking the patent shows
`filters which are only valid if they are fed discrete-time signals for filtering, because the described filtering
`only makes sense for discrete-time signals.
`
`(B) The skilled person’s understanding is also confirmed by the description. The cited the prior
`art mentions documents which all concern a sampling in this sense. Para. [0083] also points in this
`direction.
`
`Figure 24 is of particular importance in this respect:
`
`The circuit shown for the module 45 is a track-and-hold circuit. This is how the expert
`categorized it (minutes of 14 March 2019, p. 9 = page 695 of the court files). This categorization is
`confirmed by line 2602 of Figure 15, as the expert also explained (minutes of 15 March 2019, p. 4 =
`page 700 of the court files). If on the left-hand side of the Figure 24, signals are supplied by an antenna,
`the embodiment shown allows a sampling by means of the switch 55A. By repeatedly opening and
`closing the switch 55A, a discrete-time signal is generated from the supplied signal. The values which
`the capacitor 65A adopts are samples. In the embodiment according to Figure 24, the samples can be
`passed on from the left to the right, i.e. from capacitor 65A to capacitor 65B in the moment that the
`switch 55B closes. Therefore, in Figure 24, the switch 55A does the sampling, and the opposite switches
`55A and 55B of the module 45, which are never open at the same time, generate the delay, as the
`expert also explained (minutes of 14 March 2019, p. 9 = page 695 of the court files).
`
`This understanding is in line with the embodiment disclosed in Figure 53A. This figure further
`explains the components 55A and 65A shown in Figure 24 (in the box 45 on the left). Only if a low-
`ohmic load (not shown) is added to the device according to Figure 53A on the right of the box 16, is a
`continuous-time signal generated, the shape of which changes when the switch opens and closes - as
`the expert stated in answer to a question by the plaintiff (minutes of 14 March 2019, p. 7 = page 693 of
`the court files). In this respect, the exception (continuous-time signal) confirms the rule (discrete-time
`signal), because in this special case, the energy simply “rushes through”, and cannot be retained in the
`capacitor for lack of sufficient resistance.
`
`
`
`
`11
`
`

`

`
`
`(C) Dependent claim 10 does not change anything about this interpretation of the term “sampling”.
`
`Dependent claim 10 does not further specify the subject matter of claim 1 in a restrictive way,
`but merely clarifies that certain (downward) quality tolerances should not be excluded from patent
`protection; these are swept up and also included, as it were. From the point of view of the Court, it seems
`reasonable to clarify to which extent protection should at least also be claimed for an inferior
`embodiment.
`
`According to the subject matter of dependent claim 10, the capacitor, when used for storing
`energy, can substantially prevent an accurate voltage reproduction of the input signal. Hence dependent
`claim 10 addresses an averaging during which no accurate image of the supplied input voltage is
`obtained. Therefore, this subject matter is an inferior embodiment compared to the embodiment of claim
`1 shown in Figure 24.
`
`But contrary to the plaintiff’s opinion, this subject matter neither excludes sample-and-hold
`circuits nor track and hold circuits, i.e. for the following reasons.
`
`Firstly, as the expert established (minutes of 15 March 2019, p. 3 = page 699 of the court files),
`Figure 24 itself already shows such an inferior embodiment, as the symbol “VI” is visible on the left-hand
`side, which symbolizes the voltage, and “R7 50” is written on the right thereof, which represents a
`resistance of 50 ohm. In connection with the capacitor 65A, the electrotechnical effect of this
`arrangement is that of a low-pass filter which contributes to the fact that only a blurred image of the
`voltage VI can be generated in the apparatus according to Figure 24 (minutes of 15 March 2019, p. 3 =
`page 699 of the court files). The Court agrees with these plausible findings.
`
`Secondly, it follows from the description in para. [0147] ff., in particular in para. [0151] that the
`apparatus according to Figure 55 can be operated as follows: The first switch is actuated such that e.g.
`four samples of the input voltage collect in the first capacitor, and the averaged value is not passed on
`until later by actuation of the second switch. The skilled person knows that forming an average can help
`to reduce interference caused by noise. This description can be applied to the embodiment according to
`Figure 24, even if it is tailored to Figure 55. From a technical point of view, the skilled person would make
`this attempt, as the expert established (minutes of 15 March 2019, p. 3 = page 690 of the court files).
`The Court agrees with this. One argument in favour of this is that the reference numerals and the names
`of the elements are the same in both figures.
`
`
`
`
`12
`
`

`

`On the other hand, if one ignores the merely facultative unity gain modules 75A and 75B in Figure 24,
`the module 45 consists of two sets of switches with capacitors, while Figure 55 shows one such set.
`
`Thirdly, it results from the description in para. [0221] which effects are obtained by
`manipulations of the time. It is not described, however, what the skilled person is supposed to do in
`order to increase the “power transfer”. Contrary to the plaintiff's opinion, this passage of the description
`does not oppose the present interpretation result. From a technical point of view, the expert also does
`not see any difference to the track and hold circuit shown in Figure 24 (minutes of 15 March 2019, p.
`4 = page 700 of the court files). The expert explained that from a technical point of view, an average
`developer faced with the job of developing an apparatus that shows the effect of dependent claim 10
`would primarily be guided by Figure 24 which is key to the patent, and would recognise that the 50
`ohm resistor is drawn into this figure (minutes of 15 March 2019, p. 4 = p. 700 of the court files). He
`would try to increase this resistance, because this prevents an accurate reproduction of the input
`voltage (minutes of 15 March 2019, p. 4 = page 700 of the court files). This would then merely be a
`“bad or inferior” track-and-hold circuit (minutes of 15 March 2019, p. 5 = page 701 of the court files).
`The Court concurs with these findings because they are plausible.
`
`b) Group of features 1.3 deals with the receipt of the input signal that arrives at the receiver
`via the frequency.
`
`The transferred energy in feature 1.3.1 is the energy transferred via the closed switch, which,
`according to the invention, is (essentially) stored using the capacitor, and from which the down-
`converted image is generated.
`
`The terms voltage and energy are used as synonyms here. This also applies to feature 1.2.2,
`because the skilled person knows that the capacitor can store energy when the voltage can be
`increased and built up. Accordingly, feature 1.3.1 can be read to mean that the down-converted image
`is generated from the transferred voltage. The expert confirmed this assessment from his technical
`point of view (minutes of 14 March 2019, p. 4 = page 690 of the court files).
`
`According to the patent in suit, the relevant energy is the one that is stored in the capacitor.
`This is not opposed by the fact that energy (regardless of which further measures are taken) can also
`flow past the capacitor, so that portions of energy that were previously in the capacitor, and portions
`of energy that were not, meet downstream of the capacitor. It is true that the amount of energy that
`contributes to the generation of the image can be influenced by making the resistance infinitely small.
`
`
`
`13
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`

`

`But then, the capacitor no longer acts as one, because the energy simply “rushes through”. As long
`as sufficient resistance is present, the energy is stored in the capacitor and is used for the generation
`of the image, as the expert confirmed from his technical point of view (minutes of 14 March 2019, p. 4
`= page 690 of the court files).
`
`During the sampling according to the patent, a sample is taken when the switch is closed, and
`is stored using the capacitor. When the switch opens, the time-discrete signal is generated from the
`energy stored in the capacitor. The input sample is this time-discrete signal which has been sampled
`and stored using the capacitor. The down-converted image of the input signal refers to the signal form,
`the curve image to be generated using the energy (charge) stored in the capacitor, which correlates
`with the signal portion taken.
`
`c) For the reasons set forth above and for the reasons still to be explained below, the Court
`does not agree with the plaintiff that feature 1.3.1 is the key to understanding the subject matter of
`claim 1, and that the subject matter of claims 1 and 10 is an “energy-transfer sampling”.
`
`aa) This energy-transfer sampling, according to the plaintiff, shows a way of generating the
`downconverted and filtered image directly from the energy of the input signal received from the
`antenna. Yet according to the invention, no discrete-time signal is generated, because the sampling
`means consists of a switch and a capacitor. Since this capacitor belongs to the sampling means
`according to the patent in suit, the circuit arrangement inevitably produces a continuous-time signal.
`According to the plaintiff, it is is clear to the skilled person that a low-ohmic resistor must be present.
`In an energy-transfer sampling, only a part of the transferred energy is stored in the capacitor, but not
`the entire transferred energy. In reality, the energy claimed in feature 1.3.1 is a mix of the energy
`coming from the capacitor and the energy flowing past the capacitor. These two streams of energy
`overlap. This is shown e.g. in Fig. 53A and is described in paras. [0205], [0206] and [0221]. The plaintiff
`alleges that the invention shows the energy transfer module in particular in para. [0206]. Moreover, it
`allegedly follows from paras. [0079] and [0246] that the invention is not limited to a discrete or digital
`operation, so that according to the plaintiff’s assumption, it could also be applied to discrete and
`continuous signals, or a combination of both. Therefore, sampling actually means conventional mixing,
`and the circuit shown in Fig. 24 is (according to the plaintiff) not in line with the patent. Due to
`dependent claim 10, the subject matter of claim 1 does not cover any sample-and-hold or track and
`hold circuits.
`
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`bb) The plaintiff’s interpretation is not convincing. In the opinion of the Court, and taking into
`account the explanations of the expert, with which the Court concurs, this interpretation is not free
`from errors in law.
`
`(A) Understanding sampling to be mixing, and taking the function of generating a time-discrete
`signal to be the generation of a time-continuous signal, violates a patent-law interpretation principle.
`According to the case law of the Federal Supreme Court (cf. judgment of 27 November 2018 - X ZR
`16/17 - Scheinwerferbelüftungssystem), the interpretation of a patent claim must take into account
`that the teaching of a patent tries to set itself apart from the prior art described in the patent, so that
`the latter is not claimed.
`
`The patent document describes in paras. [0008] ff. and shows in Figures 4D to 4G how in
`conventional receivers, a certain spurious signal component can not be filtered out once it has been
`generated, which is why it follows the desired signal component in all downstream processing steps,
`which makes receipt of the desired component difficult or even impossible, degrades the performance
`of the receiver and limits its applicability.
`
`This prior art is concerned with mixing, and according to the patent in suit, this is replaced by
`sampling. Both solutions are technically similar, because sampling a signal form with less than double
`the bandwidth (“undersampling”) results in a similar signal as when using a mixer. In both cases, the
`input signal is shifted into some kind of intermediate frequency. But this is achieved in different ways.
`It is true that the description of the patent in suit does not touch on the technical problem described at
`the beginning any more, and the connection between problem and solution is not explained to the
`Court. But the expert offered an explanation for this connection in his hearing (minutes of 14 March
`2019, p. 5 = page 691 of the court files). If the prior art mixing is replaced by sampling, the downstream
`filters can be dimensioned smaller (minutes, loc. cit.).
`
`(B) The plaintiff’s interpretation is not in line with the literal meaning of claim 1, but is only
`based on its wording. But an interpretatio