`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`1
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`DOCKET 2: 18CV134
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`FEBRUARY 6, 2019
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`10: 04 A.M.
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`TEXARKANA, TEXAS
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`|||||||
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`OMNI MEDSCI, INC.
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`VS.
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`APPLE INC.
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`--------------------------------------------------------
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`VOLUME 1 OF 1, PAGES 1 THROUGH 66
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`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ROBERT W. SCHROEDER, III
`UNITED STATES DISTRICT JUDGE
`
`--------------------------------------------------------
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`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANT:
`
`THOMAS A. LEWRY
`CHRISTOPHER C. SMITH
`BROOKS & KUSHMAN PC - SOUTHFIELD
`1000 TOWN CENTER, 22ND FLOOR
`SOUTHFIELD, MI 48075
`
`JEFFREY P. KUSHAN
`SHARON LEE
`SIDLEY AUSTIN - WASHINGTON
`1501 K STREET NW
`WASHINGTON, DC 20005
`
`KELLEY ANNE CONATY
`CORY D. SZCZEPANIK
`SIDLEY AUSTIN LLP - DALLAS
`2021 MCKINNEY AVENUE, SUITE 2000
`DALLAS, TX 75201
`
`BOBBY LAMB
`GILLAM & SMITH, LLP
`303 SOUTH WASHINGTON AVENUE
`MARSHALL, TX 75670
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`Petitioner Apple Inc. – Ex. 1044, cover p. 1
`
`
`
`2-6-2019 Claim Construction Hearing
`
`2
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`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TX 77701
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`PROCEEDINGS RECORDED USING MECHANICAL STENOGRAPHY;
`TRANSCRIPT PRODUCED VIA COMPUTER- AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`Petitioner Apple Inc. – Ex. 1044, cover p. 2
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`
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`2-6-2019 Claim Construction Hearing
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`21
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`the frequency, the pulsing of the LED; whereas, varies
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`the light intensity dealt with other claim language.
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`If you could go over to Slide 7, please.
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`This is a similar -- this is Claim 1 of the
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`'040 patent. You' ll see a similar approach here where up
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`in one part of the claim, you see " the measurement device
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`being configured to generate" -- a beam -- " by modulating
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`at least one of the LEDs having an initial light
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`intensity." And then down later in the claim, it's got a
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`different clause for a different part of that apparatus
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`that says " increasing the light intensity relative to the
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`initial light intensity."
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`THE COURT: So, Apple's proposed construction
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`on this term was " varying the frequency of the light";
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`so, what is the construction you' re proposing now?
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`MR. KUSHAN: So, we would just take your
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`construction and remove the word " amplitude" from it.
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`So, what that would make clear is it's varying the
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`frequency. And I think " phase" isn't really addressed in
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`the patent, but what the patent does is differentiate
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`varying the frequency. That's what they attribute to
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`modulating. And they call varying the amplitude or the
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`intensity something else, which is why we think that's
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`what the claim is doing here. So, that's a modification
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`that we had proposed to your construction; and that would
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`25
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`Petitioner Apple Inc. – Ex. 1044, p. 21
`
`
`
`2-6-2019 Claim Construction Hearing
`
`22
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`get us there.
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`I just want to flag two things. There is a
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`lot of case law that holds that when a patent claim uses
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`different words to define different aspects of a device,
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`you presume that those things have different meanings.
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`And, so, parsing these claims -- and the case I' ll give
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`you is CAE Screenplates versus Heinrich. This is from
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`the Federal Circuit, 2 24 F.3d 1308 from 2000. And the
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`court basically said, " In the absence of any evidence to
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`the contrary, we must presume that the use of these
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`different terms in the claims connotes different
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`meanings." When you look at those claims I just walked
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`through, you can see that it's doing that exactly. It's
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`using one phrase to talk about varying the intensity or
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`amplitude and a different phrase to refer to modifying --
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`or modulating the light.
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`The next thing I want to just flag, there is a
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`little bit of confusion, I think, about pulsing and
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`modulation, how that connects. We think that pulsing is
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`pretty simple. That's just turning the light on and off.
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`If it's an LED, just turn it on; turn it off. That's a
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`pulse.
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`If you can go to Slide 8, please.
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`What the patent does in its specification --
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`these are a number of specifications -- but the patents
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`Petitioner Apple Inc. – Ex. 1044, p. 22
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`
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