Trials@uspto.gov
`571-272-7822
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` Paper 34
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`Date: September 23, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TCL INDUSTRIES HOLDINGS CO., LTD., HISENSE CO., LTD., and
`LG ELECTRONICS INC.,
`Petitioners,
`
`v.
`
`PARKERVISION, INC.,
`Patent Owner.
`____________
`
`IPR2021-00985 (Patent 7,292,835 B2)1
`IPR2021-00990 (Patent 7,110,444 B1)2
`_____________
`
`Record of Oral Hearing
`Held: September 8, 2022
`_____________
`
`
`Before MICHAEL R. ZECHER, BART A. GERSTENBLITH, and
`IFTIKHAR AHMED, Administrative Patent Judges.
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`
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` LG Electronics Inc., who filed a petition in IPR2022-00246, is joined as
`petitioner in IPR2021-00985.
`2 LG Electronics Inc., who filed a petition in IPR2022-00245, is joined as
`petitioner in IPR2021-00990.
`
` 1
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`571-272-7822
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` Paper 34
`
`Date: September 23, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TCL INDUSTRIES HOLDINGS CO., LTD., HISENSE CO., LTD., and
`LG ELECTRONICS INC.,
`Petitioners,
`
`v.
`
`PARKERVISION, INC.,
`Patent Owner.
`____________
`
`IPR2021-00985 (Patent 7,292,835 B2)1
`IPR2021-00990 (Patent 7,110,444 B1)2
`_____________
`
`Record of Oral Hearing
`Held: September 8, 2022
`_____________
`
`
`Before MICHAEL R. ZECHER, BART A. GERSTENBLITH, and
`IFTIKHAR AHMED, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
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` LG Electronics Inc., who filed a petition in IPR2022-00246, is joined as
`petitioner in IPR2021-00985.
`2 LG Electronics Inc., who filed a petition in IPR2022-00245, is joined as
`petitioner in IPR2021-00990.
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
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`APPEARANCES
`
`ON BEHALF OF THE PETITIONER:
`
`
`EDWARD J. MAYLE, ESQUIRE
`KRISTOPHER L. REED, ESQUIRE
`MATIAS FERRARIO, ESQUIRE
`KILPATRICK TOWNSEND & STOCKTON LLP
`1400 Wewatta Street, Suite 600
`Denver, Colorado 80202
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JASON CHARKOW, ESQUIRE
`STEPHANIE R. MANDIR, ESQUIRE
`DAIGNAULT IYER LLP
`8618 Westwood Center Drive, Suite 150
`Vienna, Virginia 22182
`
`ALSO PRESENT:
`Richard Harlan
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`September 8, 2022, commencing at 10:08 a.m. EST, by video/by telephone.
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`
`
` P R O C E E D I N G S
` JUDGE GERSTENBLITH: Good morning, everyone.
` We are here for oral arguments in IPR2021-00985, TCL
`Industries Holdings Company, Limited, and Hisense Company,
`Limited, as well as joined party, LG Electronics, Inc., v.
`ParkerVision, Inc. This case was joined with IPR2022-00246,
`and with me today are Judges Zecher and Ahmed.
` Who do we have on the call and video for Petitioner, please?
` MR. MAYLE: Good morning, Your Honor. This is Ted
`Mayle of the Denver office of Kilpatrick Townsend. I will be
`speaking for the Petitioners. And I'm joined today by
`Kristopher Reed, who is the lead counsel for the TCL
`Petitioners, and Matias Ferrario is joining us from Los
`Angeles. He is the lead counsel for the Hisense Petitioners.
` JUDGE GERSTENBLITH: Excellent. Is there someone on
`the line for LG?
` (No verbal response.)
` JUDGE GERSTENBLITH: Okay. Do you know, Mr. Mayle,
`if anybody's here on behalf of LG? It's not required.
` MR. MAYLE: Oh, I'm sorry. I'm sorry. I believe
`that they have a representative from Ropes & Gray on the
`public link.
` JUDGE GERSTENBLITH: Okay. Okay. No problem.
` And who do we have on for Patent Owner?
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
` MR. CHARKOW: Morning, Your Honors. Jason Charkow
`for ParkerVision, as well as I have Stephanie Mandir, as
`well, both from the Daignault Iyer law firm. Ron Daignault
`should be joining, if he's not already on, and I have two
`client representatives on the -- I think the public link.
` JUDGE GERSTENBLITH: Excellent. Excellent. Welcome,
`everybody.
` I just want to mention that the panel was discussing
`this morning's case as well as this afternoon's case. And
`given the significant overlap in arguments and technology and
`patents and everything else that's involved, we would like to
`propose that we make one transcript that runs from now
`through the argument this afternoon for the '990 case, which
`we think will help everybody avoid -- the parties and us --
`having to circle back and effectively make the same
`arguments all over again this afternoon for the issues that
`overlap.
` That being said, obviously, the '985 and the '990
`case are not consolidated. We would just be making this
`transcript for ease of reference, and it would be entered
`into both cases.
` Is there any objection to doing that, Mr. Mayle, from
`Petitioners' side?
` MR. MAYLE: No, Your Honor.
` JUDGE GERSTENBLITH: Okay. And, Mr. Charkow, is
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`IPR2021-00990 (Patent 7,110,444 B1)
`there any objection to doing that from Patent Owner's side?
` MR. CHARKOW: No objection, Your Honor.
` JUDGE GERSTENBLITH: Okay. Great.
` So the way that we are envisioning this working is
`that we will begin with the arguments from Petitioner. We will
`take a five-minute recess after Petitioners' opening. Patent
`Owner will proceed with its opening. We'll take a
`five-minute recess after Patent Owner's opening, and then we
`will have the rebuttal arguments from each side without a
`break in between.
` Once those have concluded for the '985 case, we'll
`see what time it is. We'll take either a 45-minute or an
`hour break so everybody can get some food, and then we will
`come back and proceed through the same procedure for the '990
`case.
` I will go into a little bit more detail.
` We set forth today's procedure in our Oral Argument
`Order, which granted the parties' request for oral argument,
`which is Paper 35 in the '985 case. Each party will have 90
`minutes of total argument time for this particular case. As
`I said, we'll begin with Petitioner who will present its case
`in chief regarding the challenged claims. Petitioner may
`reserve time for rebuttal. Thereafter, Patent Owner may
`respond to Petitioners' argument and may also reserve time
`for rebuttal. Petitioner will then present its rebuttal,
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`followed by Patent Owner's rebuttal.
` In this video format, I don't have a timer that I can
`share on the screen, but when it's your turn giving your
`opening, if you would like to let me know how much time --
`how much time -- if I said 90 minutes, I apologize. I
`thought that I said 60 minutes, but if I said 90 minutes, I
`apologize. It's 60 minutes per -- per side for the '985
`case.
` Let me see here.
` So a couple things to keep in mind while we're on
`video, which is -- my understanding is that we do not have
`any confidential information in the record. So we do have a
`public line. If anybody has confidential information that
`we're not aware of, please don't say anything until we can do
`something to seal the -- the hearing.
` But just to be sure, Mr. Mayle, from your
`perspective, there's no confidential information being
`discussed today; is that right?
` MR. MAYLE: That's correct, Your Honor. There's
`nothing confidential in our presentation.
` JUDGE GERSTENBLITH: Okay. And, Mr. Charkow, from
`your perspective, there's nothing confidential being
`discussed either; right?
` MR. CHARKOW: Correct, Your Honor.
` JUDGE GERSTENBLITH: Okay. Perfect.
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
` The next thing just to keep in mind is to try to be
`as clear as possible as to which slide, demonstrative slide,
`exhibit, paper, whatever you are pointing to in the case
`file, to, please, be clear on the record. Call out the
`number. Call out the slide. Call out whatever you need to
`so that we can track it in the transcript and keep the record
`as clear as possible.
` I think everybody knows this, but when it's not your
`turn to speak, please have everybody go on mute so that we
`don't have background noise. And, also, what you'll see is
`there's sometimes a delay when somebody else is coming in to
`speak, so we may try to interrupt nicely or vice versa, but
`we will sort of pause so that the computer can basically
`catch up, and then speak. So if you can give, like, a half
`second when you're about to start talking, it will catch up
`and the transmission will hopefully be clear.
` Also -- and this is important -- if either side
`experiences any technical or other difficulties, please
`immediately contact the I.T. personnel with whom you've been
`in touch to set up this hearing and your connection so that
`we can make whatever adjustments are needed as quickly as
`possible.
` Again, I apologize. Each side has 60 minutes,
`six-zero, for the '985 case.
` Are there any questions about how we're going to
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`proceed or anything else before we get started from
`Petitioners' side?
` MR. MAYLE: No, Your Honor.
` JUDGE GERSTENBLITH: Okay. Great.
` Mr. Charkow, are there any questions about anything I
`said or how we're going to proceed or anything else that we
`need to handle ahead of time from Patent Owner's side?
` You're -- you're on mute, which I know I said to do,
`but I apologize.
` MR. CHARKOW: Sorry. No. No, Your Honor.
` JUDGE GERSTENBLITH: Okay. Great.
` All right. With that, I will turn it over to
`Mr. Mayle, and you can proceed when you're ready, and let me
`know if you'd like to reserve any time for rebuttal out of
`your 60 minutes.
` MR. MAYLE: Thank you, Your Honor.
` Let me first see if I can get the technology to work.
`Does Your Honors see the slide show now that I'm trying to
`share?
` JUDGE GERSTENBLITH: Yes, we do. Yes, we do.
` MR. MAYLE: Okay.
` ORAL ARGUMENT ON BEHALF OF PETITIONERS, IPR2021-00985
` MR. MAYLE: May it please the -- may it please the
`Board. Again, this is Ted Mayle. I'm joined with -- for
`Petitioners -- I'm joined with Kristopher Reed, Matias
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`Ferrario.
` I'd like to reserve 15 minutes for rebuttal, so if
`you could remind me, that'd be very helpful.
` Slide 2. I'd like to begin with a summary of the
`argument.
` Moving to slide 3. The alleged invention of this
`'835 patent is a well-known receiver architecture, and it's
`shown on this slide. The left -- the left side of slide 3
`shows Figure 54B from the '835 patent. And at a high level,
`this is a receiver architecture where a modulated signal
`comes in, which is shown in purple, the receive signal. That
`modulated signal may have what the patent calls complex
`modulations.
` Are we on slide 3?
` JUDGE GERSTENBLITH: Counsel, this is
`Judge Gerstenblith.
` I would just say your slides haven't progressed
`through, but we also have all the demonstratives from each
`side. So if you --
` MR. MAYLE: Okay.
` JUDGE GERSTENBLITH: -- if you need to share, that's
`fine, but we're following along as well on the --
` MR. MAYLE: I'm going to -- I'm going to stop sharing
`and just look at it on my end.
` I'm on slide 3. The receive signal has what the
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`patent refers to as complex modulations, and that would
`include quadrature amplitude modulation, or QAM, pronounced
`"Quam," which has an in-phase component called I, which is
`the upper branch of the receiver, and a quadrature-phase
`component, called Q, which is in the lower branch.
` And you see on this slide that the received signal
`comes in in the upper branch. It goes through a
`down-conversion module, shown in red, and that
`down-conversion module down-converts the high-frequency
`modulated carrier signal down to the baseband in-phase
`signal, which is shown in yellow.
` In the bottom branch, the received signal comes in to
`the second down-conversion module, which is the same as the
`first one, and it down-converts to the quadrature in-phase
`component, which is shown in gray.
` Now, how does this down-conversion work? You see in
`the middle of the left-hand side there's a -- there's an
`oscillator, sometimes called a local oscillator, in pink, and
`that puts out a control signal. It could be a rectangular
`wave. In the preferred embodiment, it would be at the same
`frequency. The oscillator signal would be at the same
`frequency as the carrier frequency of the modulated incoming
`signal, and the oscillator ports that control signal up to
`the first frequency down-conversion module.
` And the inner workings of the -- of that module are
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`shown on the right side of this slide 3, which is taken from
`Figure 28 of the patent.
` And all the down-conversion module is is a switch
`that opens and closes according to the control signal from
`the local oscillator. When the switch is closed, the
`modulated signal comes in from the left, and it transfers
`charged, enhanced energy to the capacitor, shown in brown,
`and then the capacitor down -- generates the down-converted
`signal.
` On the bottom branch, it's the same thing, except for
`the phase shifter, shown on the left of the screen in orange,
`shifts the local oscillator signal by 90 degrees in phase,
`without changing the frequency.
` The prior art of record shows that this -- this
`architecture was well known.
` Moving to my slide 4, the Hulkko prior art, which is
`Exhibit 1004.
` Figure 2 of Hulkko is shown on the left of my slide
`4, and it shows the exact same architecture as Figure 54B of
`the '835 patent. You see an incoming signal. It could be a
`QAM signal, in purple, being split into the two branches.
`There's two down-conversion modules: the upper one, red,
`which generates the in-phase down-converted signal; and the
`lower one, green, which generates the quadrature-phase
`signal.
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
` There's a local oscillator shown in pink and the PHI
`3 and the PHI 4. The PHI 3 and the PHI 4 boxes on the bottom
`are 90 degrees separated, which generates the difference
`between the in-phase and the quadrature phase.
` And on the right of the slide, Figure 4 of Hulkko
`shows how the down-conversion modules work, exactly like
`Figure 20 of the patent. It's a switch opened and closed by
`the square wave local oscillator signal, which allows the
`energy to be transferred from the input to the capacitor,
`shown in brown, and generates the output.
` That's the primary reference of Ground 1 of the
`Petition.
` Moving to slide 5, which is a summary of Ground 2.
`Ground 2 of the Petition combines the Gibson reference,
`Exhibit 1005, shown on the left, and the Schiltz reference,
`Exhibit 1006, shown on the right.
` On the left, Gibson, again, has this notoriously
`well-known IQ receiver architecture where the carrier -- the
`modulated carrier signal is split into the two branches, and
`the top down-converter generates -- you see after the top
`mixer in red, you'll see I, which means in-phase, and on the
`bottom, the bottom mixer 12, green. You'll see coming out of
`that a symbol Q, which means the down-converted quadrature
`signal.
` And here, again, we have a local oscillator in
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`Gibson, shown in pink, which controls the upper mixer, and
`that signal, that local oscillator signal is shifted by π/2 radians,
`which is 90 degrees, shown in orange, which
`controls the bottom down-conversion module.
` Now, Gibson uses those symbols for the mixers 10 and
`12, shown in red and green, but does not further explain how
`those mixers work.
` The secondary reference, Schiltz, is shown on the
`right, and Schiltz has the switch capacitor mixer, exactly
`the same as Figure 20 of the '835 patent.
` So that's the combination.
` If there's no questions on the overview, I would like
`to move to claim construction, slide 6.
` JUDGE GERSTENBLITH: Please do. Thank you.
` MR. MAYLE: The main dispute here is on the storage
`module term, which the Board has seen before in other IPRs,
`and the difference here between the parties' proposals is
`that ParkerVision wants to read in the language of an energy
`transfer system while Petitioners do not think that that
`language is appropriate.
` Two sub-bullets here. Both parties agree that the
`construction should include the phrase non-negligible amounts
`of energy. There's dispute about what that means when it's
`applied to the prior art. Petitioners argue that if the
`Board deems it necessary to further construe the construction
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`and come up with a precise meaning of non-negligible, it
`means distinguishable from noise. And as the Federal Circuit
`has found, and as I will discuss, a successful
`down-conversion is proof of the non-negligible energy.
` Moving to slide 8, Patent No. 6,061,551, the '551
`patent, is incorporated by reference into the '835 patent as
`well as the '444 patent we will discuss later today.
` And column 66 of the '551 patent includes the
`inventor's lexicography for the definition of storage module,
`and it says that storage modules and storage capacitances, on
`the other hand, refer to system that store non-negligible
`amounts of energy from an input EM signal.
` Now, the Federal Circuit holds in numerous cases that
`the language “refers to” in a patent signals lexicography. I
`can give you one case cite for that: Vasudevan Software v.
`MicroStrategy, 782 F.3d 671 at 679, Federal Circuit, 2015.
` Moving to my slide 9. Now, this Board has already
`determined in IPR2020-01265, which concerns the related '444
`patent, that the '551 patent on my previous slide does have a
`lexicographic definition for storage element.
` Now, here the word is storage module, but the parties
`have agreed that storage element and storage module should
`have the same definition.
` And in that proceeding, the Board considered
`ParkerVision's argument, which it's repeating here today,
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`that the construction should also refer to an energy system
`-- excuse me, energy transfer system, and the Board heard
`those arguments and rejected those arguments in that IPR, and
`we feel that they should do the same thing here today.
` Moving to slide 10, what is more --
` JUDGE ZECHER: Mr. Mayle, this is Judge Zecher.
` Can I ask a quick question about this.
` MR. MAYLE: Of course.
` JUDGE ZECHER: I'm familiar with the '948 case, and I
`understand Patent Owner to argue that given the difference of
`claim construction in that case, that case was under the
`broadest reasonable interpretation construction that we used
`to have here for AIA trials. We have since switched over to
`the district court construction, otherwise known as the
`Phillips construction, and there's somehow -- this difference
`in standards somehow implicates a different way to read this
`term.
` Now, my question -- I guess I'll be direct here --
`is, when you -- when we're determining whether or not a
`specification explicitly defines a claim term, does our
`assessment of that change when you're under BRI versus, say,
`the district court, Phillips, or is it the same?
` MR. MAYLE: Well, excellent question. It's the same.
` And I want to skip to my slide 11. I don't know if
`you have access -- access to that. I've actually prepared a
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`IPR2021-00985 (Patent 7,292,835 B2)
`IPR2021-00990 (Patent 7,110,444 B1)
`slide in that, actually, '948 IPR.
` The left side shows snippets from pages 6 and 10 of
`the Board's institution decision, and the Board there on page
`6, which is shown on the top, referred to the BRI standard,
`broadest reasonable interpretation, and said that there's a
`presumption under that standard that the terms carry their
`ordinary meaning, but the Board said that that presumption
`may be rebutted when a patentee acts as its own
`lexicographer.
` And on page 10, the Board there stated that the
`parties agreed that the storage module term was defined.
` Now, that's what happened there.
` So -- and on the right, I have a screenshot from a
`Federal Circuit case, Nestle v. Steuben, that held, of
`course, giving claims their broadest reasonable
`interpretation does not include giving claims a legally
`incorrect interpretation. Here the specification twice
`defines the term. That is binding lexicography.
` So the answer to the question is, if -- if there is a
`lexicography, then it controls under every claim construction
`standard -- Phillips and BRI.
` JUDGE ZECHER: Thank you.
` MR. MAYLE: So, with that, I'll move to slide 12. We
`also note that Petitioners' proposed construction is also
`consistent with -- rather, ParkerVision's now IPR position is
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`inconsistent with its previous litigation positions; where, in
`the complaints for the TCL and Hisense cases, ParkerVision
`alleges that a module that has one or more capacitors is a
`storage module. They didn't do any sort of calculations or
`say anything more than that.
` And when this Board denied ParkerVision's motions to
`strike the Petitioners' Reply, the Board noted that the reply
`position was substantially the same as ParkerVision's
`assertions in the district court cases.
` Moving to slide --
` JUDGE GERSTENBLITH: Counsel, Judge Gerstenblith.
` Question for you before you go to the next slide. If
`you're going to get to this later, that's fine. I don't see
`it specifically mentioned in the slide; that's why I'm
`jumping in to ask you this.
` So in the -- this is, I guess, somewhat connected to
`your slide 8, where you have this paragraph or part of the
`paragraph from the '551 patent. What -- what is the
`significance, if any, of the concept that this discussion is
`comparing two or more aspects of the disclosure of that
`patent?
` In other words, if somebody is looking to see does
`this section define a term, what impact, if any, is there
`based on it also, or separately, or even don't assume that
`it's defining a term, what significance is there at all to
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`saying, oh, this is a comparison, it's not a definition? Or
`what impact does that have, if any?
` MR. MAYLE: Thank you, Your Honor.
` I think the fact that it's a comparison actually
`underscores and bolsters the conclusion that it's
`lexicography because the two things that are being compared
`are the amount of energy.
` So I'm back on my slide 8. I have that sentence, the
`last sentence that's underlined and bolded. The sentence
`prior to that is talking about holding modules, and it says
`that they store negligible amounts of energy. The final
`sentence says, on the other hand, storage modules, which is
`the term at issue here, refers to systems that store
`non-negligible amounts of energy.
` So the comparison that's being made is negligible
`versus non-negligible.
` JUDGE GERSTENBLITH: And where is this energy being
`stored?
` MR. MAYLE: In the capacitor -- well, the storage
`module. It uses the word storage, and, you know, the
`preferred embodiment in all of the figures of the patent is
`the capacitor. In the prior art, we're relying on a
`capacitor. So, technically, the capacitor sets up an
`electric field, and the energy is stored inside of the
`electric field of the capacitor.
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` JUDGE GERSTENBLITH: So why do you think -- and I
`know you didn't write this patent, but why do you think this
`sentence says, "refer to systems that store," as opposed to
`saying, you know, something like, an element or repeating a
`general term or something else? In other words, why do you
`think it says -- they're saying for each of these last two
`sentences "identify systems" that do something and then the
`last sentence "refer to systems" that do something?
` Is there any significance or -- I'm just, also,
`trying to wrap my mind around why these bring in systems.
` MR. MAYLE: The answer to that is the -- first off,
`the term -- the term systems there does not mean the entire
`circuitry.
` So what the patent here -- they didn't want to be
`limited to capacitors. Obviously, they're talking about a
`capacitor, capacitance. So they could've just said capacitor
`and had the claims say capacitor. They have some dependent
`claims that do.
` But they wanted to leave -- leave them room later in
`litigation to find some other structure and say, ah, that's a
`storage module. So they used all kinds of these made-up
`words, really made-up words, like storage module; that's a
`made-up word, kind of a nonce term. But -- and when they say
`a storage module is a system that stores energy, that's just
`referring to a capacitor.
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` JUDGE GERSTENBLITH: Okay. Thank you.
` MR. MAYLE: You're welcome.
` JUDGE AHMED: Counsel, let me follow up on that a
`little bit regarding where this discussion appears in the
`specification of the '551 patent.
` If you look at the specification, starting on column
`13, there's a section titled General Terminology. And under
`there, the patent seems to define various terms, including
`different signals and other things.
` The fact that this section, the discussion that we're
`talking about, appears in column 66 under a section titled
`Introduction to Energy Transfer, what significance does it
`have on our decision to decide whether it's a definition or
`not given that there's a separate section in the
`specification called Terminology?
` MR. MAYLE: Thank you, Your Honor.
` Well, under the Federal Circuit precedent, a
`lexicography definition could appear anywhere. There's no
`magic place to put it.
` And here, the fact that they use the phrase "refer
`to," that signals lexicography, and I cited you a case
`earlier for that, a Federal Circuit case, and there's many
`cases that -- that hold a sentence like this, which has a
`term, a claim term, and it says refers to, and then what
`follows is the definition.
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` And here, as to the other judge's prior question,
`this -- this section, which is Figure 8 of my slide, it sets
`up the clear distinction between negligible and
`non-negligible. That's the difference between -- that's the
`defining characteristic of a storage module.
` JUDGE AHMED: Okay. Thank you.
` JUDGE GERSTENBLITH: Counsel.
` MR. MAYLE: And I would just -- yep.
` JUDGE GERSTENBLITH: Oh, go ahead. I didn't mean to
`interrupt you if you were going to --
` MR. MAYLE: I was just also going to add that
`ParkerVision argues that there is not lexicography. So it's
`not like they're relying on some other definition. Their
`main argument is that there's no lexicography whatsoever.
` JUDGE GERSTENBLITH: So, counsel, this is
`Judge Gerstenblith.
` Couldn't the argument be made that the General
`Terminology section, column 13 of the '551 patent, when the
`terms are being defined there, it doesn't only use the term
`refers to. It says, when used herein. So it looks like each
`time in this section, it starts, it gives a term, the term
`whatever, when used herein refers to something. So couldn't
`it be said that this is a difference in column 66 because in 66 it
`doesn't say when used herein, or does that not make a
`difference?
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` MR. MAYLE: Well, first, I would note that
`ParkerVision never made this argument, so they forfeited --
`if they tried to argue along the lines that you just
`indicated, that's been forfeited and waived.
` This is now their -- they've had several district
`court cases. This is now the second or third -- third or
`fourth IPR with the storage module terms, and they have never
`argued that column 13 has lexicography. And, in fact, their
`entire argument in this case, which they got the magistrate
`judge in Texas to agree with, is that there's not
`lexicography.
` So that's really the issue. The issue is not where
`-- where is the lexicography; the issue is whether there's
`lexicography.
` So I would have to look to that column 13. I don't
`believe it's been -- I would hate to do it on the fly here,
`but all I can say is that the column 66 has the clear
`distinction between the terms, and that's -- that's the part
`that's been briefed.
` JUDGE ZECHER: Mr. --
` JUDGE GERSTENBLITH: So -- oh, go ahead.
` JUDGE ZECHER: Mr. Mayle, this is Judge Zecher.
` I'm glad you brought up that order from the
`magistrate judge in the Western District of Texas because it
`seems clear to me that Patent Owner's aligning themselves
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`with that analysis and -- and construction that
`particular judge arrived at.
` How do you suggest we handle that order?
`What significance should we accord it?
` MR. MAYLE: Thank you, Your Honor.
` Well, I agree that you should -- you should consider
`it, and I'm sure that you are. I believe it's Exhibit 2039,
`and I can give you a couple points out of it if you have it
`handy. But if not, I'll just -- I'll just say them.
` JUDGE ZECHER: Yeah, this -- I have -- this is
`Judge Zecher. I have it open.
` MR. MAYLE: Right. But as initial matter, it's not
`binding. It's not binding at all. At most, it would be
`entitled to persuasive value according to its reasoning.
` And we -- we believe that the magistrate judge has
`gotten it wrong. That was a case with LG Electronics. It
`didn't involve any -- any of the TCL or Hisense Petitioners,
`and we did not participate in those proceedings, so another
`reason it doesn't bind against us.
` But if you turn to page 16 of that order, you'll see
`some paragraphs -- first, second, third -- and they're all
`kind of making the same point.
` On page 16 of the order, it says, first, the court
`does not believe that the last sentence, which we referred to
`on my
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