Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 1 of 109 PageID #: 11351
`
`1
`
`VS.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT
`)(
`
`LLC
`)(
`CIVIL DOCKET NO.
`)(
`2:17-CV-513-JRG
`)(
`MARSHALL, TEXAS
`)(
`SEPTEMBER 13, 2018
`)(
`1:36 P.M.
`)(
`CLAIM CONSTRUCTION HEARING
`BEFORE THE HONORABLE CHIEF JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`HUAWEI DEVICE USE INC.,
`ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`1
`
`VS.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT
`)(
`
`LLC
`)(
`CIVIL DOCKET NO.
`)(
`2:17-CV-513-JRG
`)(
`MARSHALL, TEXAS
`)(
`SEPTEMBER 13, 2018
`)(
`1:36 P.M.
`)(
`CLAIM CONSTRUCTION HEARING
`BEFORE THE HONORABLE CHIEF JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`HUAWEI DEVICE USE INC.,
`ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`FOR THE DEFENDANTS:(See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 2 of 109 PageID #: 11352
`
`2
`
`I N D E X
`
`September 13, 2018
`
`Appearances
`Hearing
`Court Reporter's Certificate
`
`Page
` 1
` 3
`109
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 3 of 109 PageID #: 11353
`
`3
`
`COURT SECURITY OFFICER: All rise.
`THE COURT: Be seated, please.
`All right. Counsel, this is the time set for claim
`construction in the AGIS Software Development versus
`Huawei/Apple, et al, matter. This is Case No. 2:17-CV-513.
`Let me call for announcements.
`What says the Plaintiff?
`MR. BAXTER: Your Honor, Sam Baxter, McKool Smith,
`along with Jennifer Truelove, Fred Fabricant, Peter
`Lambrianakos, Vincent Rubino, and Amy Park, and we're ready,
`Your Honor.
`THE COURT: All right. Thank you, Mr. Baxter.
`What's the announcement from Defendants, beginning
`with Huawei?
`MR. MANN: Good afternoon, Your Honor. Mark Mann
`on behalf of the Huawei Defendants. And my colleagues today
`with me are Kent Baldauf and Steven Geiszler from the
`general counsel's office at Huawei. And we're ready to
`proceed.
`THE COURT: All right. Thank you, Mr. Mann.
`Announcements from Apple.
`MS. SMITH: Good afternoon, Your Honor. Melissa
`Smith on behalf of Apple. I'm joined by Mr. Ameet Modi --
`MR. MODI: Good afternoon, Your Honor.
`MS. SMITH: -- Ms. Kerri-Ann Limbeek --
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 4 of 109 PageID #: 11354
`
`4
`
`MS. LIMBEEK: Good afternoon, Your Honor.
`MS. SMITH: -- Mr. Cosmin Maier --
`MR. MAIER: Good afternoon.
`MS. SMITH: -- Mr. Franco Silletta, and our
`in-house counsel, Ms. Tanya de la Funte. And, Your Honor,
`Apple is ready to proceed.
`THE COURT: Thank you, Ms. Smith.
`All right. Any other announcements?
`If not, I think the parties are aware that the
`Court's intention is to take these disputed terms up on a
`term-by-term basis.
`We'll hear from Plaintiff on each term, followed by
`argument from Defendants. Understanding we have multiple
`Defendants before the Court, the Court anticipates hearing
`one argument from the Defendants to correspond with one
`argument from Plaintiff.
`And I'm aware that some of the previously disputed
`terms have been resolved by agreement. When we come to
`those in the order that you have before you, my intention is
`to make sure that we have an announcement of what those
`agreed constructions are so that we can clearly identify
`those in the record.
`But we'll begin with the Claim 54 out of the '838
`patent and the related claims, and I'll hear from Plaintiff
`on this point of argument first.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 5 of 109 PageID #: 11355
`
`5
`
`And given that we're going to probably have
`multiple lawyers for each side arguing, let me ask everyone
`when they go to the podium, even if it's your second or
`third trip, just identify yourself for the record before you
`begin.
`
`Go ahead.
`MR. LAMBRIANAKOS: Good afternoon, Your Honor.
`Peter Lambrianakos on behalf of AGIS.
`THE COURT: Good afternoon.
`MR. LAMBRIANAKOS: The first set of claims that
`we're intending to address this afternoon are what we call
`the non-means claims. AGIS's position is that these claims
`are not means-plus-function claims, and they should be given
`their plain and ordinary meaning.
`Defendants' position is that these are
`means-plus-function claims, and they're indefinite.
`This is an exemplary claim. The claims are
`structured similarly. They're structured as devices that
`are programmed to perform certain algorithms.
`The steps in the algorithms include detail
`regarding the operation that needs to be performed, as well
`as the specific data which the operation is to be performed.
`I would just like to go over this claim quickly to
`demonstrate the algorithm.
`So the first step in the algorithm is joining a
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 6 of 109 PageID #: 11356
`
`6
`
`network corresponding to a group. In this step, a user
`joins a group of other users who have devices.
`In the next step, participating in the group, the
`user and other members of the group share their locations
`with one another.
`The third step in the upper right-hand part of the
`slide, the members of the group are shown their respective
`locations on a map.
`The fourth step, there is -- a request is sent for
`a second map on a second server.
`And the fifth step, receiving the requested -- the
`request at the second server for the second map.
`Finally, the sixth and seventh step, the sixth step
`is to present the second map, and now the -- the members of
`the group are shown on a dif -- on a different map at their
`respective locations.
`And then finally, the final step in the algorithm
`is that a user will select one of the symbols on the second
`map in order to transmit data to the selected device.
`Now, the Defendants contend in this Court that all
`of these claims are means-plus-function and indefinite. And
`they bear the burden of proving that to this Court by clear
`and convincing evidence.
`Now, some of the strongest evidence that we have
`that these claim terms are not means-plus-function and not
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 7 of 109 PageID #: 11357
`
`7
`
`indefinite is that Defendants filed 13 IPR petitions against
`the four claims here -- four patents here. And in each of
`those IPRs, the Defendants took the position that these
`claims are not means-plus-function, and they're not
`indefinite.
`THE COURT: Does that raise some kind of estoppel
`issue in your mind, counsel?
`MR. LAMBRIANAKOS: We believe it raises an
`evidentiary issue. Wouldn't necessarily raise it to
`estoppel, but certainly it is evidence to this Court that
`these same parties have read the same claims with their
`experts and determined that, yes, these are not
`means-plus-function, these are structural claims, and that
`the claims are to be accorded their plain and ordinary
`meaning, which is what they also told the -- the Patent
`Trial and Appeal Board.
`So this is strong evidence that the position
`they're taking in this case is incorrect, and, in fact,
`supports our position.
`THE COURT: All right. Continue with your
`argument, please.
`MR. LAMBRIANAKOS: So under the regulations that
`govern IPRs, petitioners are required to identify how the
`challenged claims are to be construed, identify which terms
`are means-plus-function, and identify the corresponding
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 8 of 109 PageID #: 11358
`
`8
`
`structure for each of those means-plus-function claims.
`In the Patent Office, Apple and Huawei did not
`argue that any of the claims that we're addressing now are
`means-plus-function which means they conceded that all these
`claims are structural.
`They also declined to propose any constructions for
`these terms which means that they believe the means -- the
`meaning of these terms was so clear that their plain and
`ordinary meaning should apply.
`The Defendants and their experts then went about
`applying the teachings of the prior art to these claims
`without any question whatsoever about the definiteness or
`meaning of those claims. So we contend that their
`unequivocal position before the Patent Office that these
`claims are not means-plus-function and that they understood
`the clear meaning of these claim terms enough to apply the
`prior art to these claims means that these claims are not
`means-plus-function and they're not indefinite.
`Now, we raised this issue in our opening brief, and
`the Defendants responded in a footnote with two arguments.
`Their first argument was that they could take
`contradictory positions regarding claim construction because
`of the differing claim construction standards that are
`applied in the PTAB versus the district court.
`But this is not the case. The question of whether
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 9 of 109 PageID #: 11359
`
`9
`
`a claim term is means-plus-function comes down to whether
`one of ordinary skill in the art would understand that a
`claim term is structural. That standard doesn't vary
`regardless of whether one is applying the broadest
`reasonable interpretation standard or the Phillips standard.
`And so the differing claim construction standard
`does not enter into whether or not a claim term is
`means-plus-function. And there's certainly no case law
`that's been cited to support that proposition.
`And the second argument, and I'd like to -- to use
`the ELMO for this. Referring to the last sentence of
`footnote 3, it says: And IPR petitioners argue that even
`though the claim -- the claims are indefinite, the prior art
`discloses at least as much as the challenged patents and,
`therefore, render those claims invalid.
`Now, they cite to their own petition for this
`statement. They're citing backup using id., they're citing
`backup to two petitions, but -- but they don't actually make
`this argument in either of those petitions. They don't
`imply that any claim term is indefinite or that any analysis
`was done despite the fact that a claim term was probably
`indefinite.
`All they did in these petitions was report to,
`quote, reserve the right to take an inconsistent position
`later based on differing claim construction statements.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 10 of 109 PageID #: 11360
`
`10
`
`So we'd like to just move on to an analysis of the
`claims themselves.
`THE COURT: That's fine. And as you do that, do
`you have any support to show me that the dominant word here,
`"device," is anything other than a nonce word that doesn't
`impart a structural component here?
`MR. LAMBRIANAKOS: We have a -- we have support in
`the specification for the device that's being referred to.
`But our primary argument in this case regarding why these
`claims are not means-plus-function is primarily that the
`algorithm in the claim itself imparts the structure. And we
`rely on the Gemalto case for that proposition.
`THE COURT: You believe that's your strongest
`authority in this context?
`MR. LAMBRIANAKOS: Gemalto, yes, in -- insofar as
`that the claim is very similar to our claim, and that it
`cites to Federal Circuit case law which says that if a claim
`includes structure, then it can't be means-plus-function.
`So here, in our claim -- firstly, we do have the
`presumption in all the claims that they're not
`means-plus-function. We do not use "means for" language in
`any of the claims.
`So that raises the presumption that they're not
`means-plus-function.
`Secondly, the claim terms are not written in -- in
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 11 of 109 PageID #: 11361
`
`11
`
`traditional means-plus-function language. So, for example,
`in the Williamson versus Citrix case, the Federal Circuit
`thought it was important that the claims were written in
`traditional means-plus-function format, except for the fact
`that the word "module" had been substituted for the word
`"means."
`And so after -- after the terms "means," there was
`a function, and then there was language following that that
`followed the typical means-plus-function format.
`Whereas here, what we have is simply a device
`that's programmed to perform an algorithm. There's no
`actual means-plus-function format there.
`And then the third reason why these -- these are
`not means-plus-function claims is that the claim itself
`contains structure. And according to the Gemalto case,
`where the structure is in the claim in the form of an
`algorithm, then the claim is not governed by 112(6).
`Turning to the -- to the claim in Gemalto, along
`with our Claim 54 from the '838 patent, in Gemalto, the --
`the claim recited a means for translating. The parties even
`agreed in the Gemalto case that the claim was a
`means-plus-function claim.
`But the claim provided an algorithm of six steps
`for performing the claimed translating function, and the
`algorithm is performed on what's called a programmable
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 12 of 109 PageID #: 11362
`
`12
`
`environment.
`The Court said that because the structure is in the
`claim, because the algorithm that is performed is in the
`claim, this claim is not means-plus-function.
`Now, the only distinction between our -- our claim
`and the Gemalto claim is that our claim is not even written
`in the means-plus-function format.
`We don't use the word "means," as I mentioned
`earlier. There's no specific function to be performed by
`the device, for example. Instead, the entire claim is to a
`device that is programmed to -- to execute a specific
`algorithm that gives the device structure.
`THE COURT: What's the precedential impact of
`Gemalto? I mean, it comes from this district. It's an
`opinion by Magistrate Judge Love. In the panoply of
`precedential possibilities out there, where does this fall?
`MR. LAMBRIANAKOS: It's persuasive authority, Your
`Honor. It's not binding. The Court is not bound to follow
`Gemalto. However, we believe it's properly decided, and we
`believe it should be persuasive on this point.
`THE COURT: All right.
`MR. LAMBRIANAKOS: Now, Defendants' argument as to
`why Gemalto shouldn't apply are essentially that this claim
`is written -- our claims are written less like
`means-plus-function claims than the Gemalto claim is.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 13 of 109 PageID #: 11363
`
`13
`
`The Defendants point out that our claims don't
`recite a single function, as did the claim. It doesn't have
`a -- a device for and provide a single function.
`But the Court didn't rule that the Gemalto claim is
`not means-plus-function because it calls out a single
`function. The point of Gemalto was that the algorithm is
`itself in the claim, and that's exactly what we have here.
`And the second issue that they bring up is that the
`AGIS claims don't recite a processor specifically. But,
`again, an ex -- explicit recitation of a processor is not
`required.
`In Gemalto, the Court found that the means for
`translating was executed on a, quote, programmable
`environment. And the Court said that this implied a
`processor.
`Here, the claims recite a device which is
`programmed to -- to perform certain operations. That also
`implies a processor. And, indeed, the specification
`discloses that the device includes a processor, and that's
`disclosed at Column 5, Lines 29 through 31, of the '838
`patent.
`
`Now, AGIS's expert reviewed these claims, and he
`opined that one of ordinary skill in the art would
`understand that the claims set forth the steps of an
`algorithm. And he opined that not only were the algorithms
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 14 of 109 PageID #: 11364
`
`14
`
`disclosed -- but not only was there an algorithm disclosed
`in each claim, but that the algorithms disclosed enough
`detail so that one of ordinary skill in the art would be
`able to program the algorithm, and, therefore, that the
`algorithm was sufficient.
`Now, Defendants' expert disagrees, but they carry
`the burden of proof by clear and convincing evidence. And
`on this record, there's simply a disagreement between them.
`They have not met their burden to show by clear and
`convincing evidence that these claims are
`means-plus-function.
`So unless there are any questions, Your Honor,
`
`that --
`
`THE COURT: No, I think I understand your
`arguments, counsel. Thank you.
`Let me hear a response from Defendants.
`MR. MODI: Good afternoon, Your Honor. Ameet Modi
`on behalf of the Defendants.
`THE COURT: Good afternoon. Please proceed.
`MR. MODI: Thank you, Your Honor.
`I want to jump in and respond specifically to this
`notion that the claims themselves recite an algorithm
`because that is the core of the dispute between the parties.
`An algorithm is an expression of how to achieve a
`particular result. Federal Circuit cases have explained
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 15 of 109 PageID #: 11365
`
`15
`
`that it cannot simply be the result itself. And I think
`this is most clear -- it's most clear why the language in
`these claims are not collectively an algorithm when you look
`at a couple of the limitations in particular because they
`are written purely in functional format. They don't provide
`any explanation of how -- they're written in result-oriented
`format, right? They -- they do not provide any explanation
`of how to achieve the result.
`And, specifically, this is on Slide 14 of the
`Defendants' presentation --
`THE COURT: So you don't believe the claims
`themselves recite algorithms?
`MR. MODI: Correct, Your Honor.
`THE COURT: Well, show me.
`MR. MODI: Okay. With respect to a limitation that
`is in each of these independent claims, it begins
`presenting -- we have interactive display of the first
`device, a first interactive georeferenced map. And then the
`claim language continues, and we have this highlighted later
`on in the limitation, a slightly different function, where
`in first georeferenced map data relate positions on the
`first georeferenced map to spatial coordinates.
`So what this is describing is a presentation of map
`data that relates positions to spatial coordinates, like X
`and Y. And what we know from the specification -- that --
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 16 of 109 PageID #: 11366
`
`16
`
`that's a result. What we know from the specification --
`Next slide, please.
`If we look at Column 6, Line 63 through 67, of the
`'838 patent, the software has an algorithm that relates the
`X and Y coordinates to latitude and longitude. Similarly,
`'838 patent, Column 7, Lines 58 through 62, the map, fixed
`entities, events, and cellular phone/PDA/GPS device
`communication participants' latitude and longitude
`information is related to the "x" and "y" location by a
`mathematical correlation algorithm.
`So the specification is telling us that it --
`this -- that the claim recites a result, the relation of
`positions on a georeferenced map, to spatial coordinates.
`There is no sufficient structure in the claim for performing
`that function. That's the -- that's the Williamson test.
`And, in fact, what the specification confirms is
`that it's an algorithm, a -- an undisclosed mathematical
`correlation algorithm that is actually performing that
`result. Because that correlation algorithm that's described
`in the specification is not in the claim, the claim lacks
`the recitation of sufficient structure to perform each of
`the claimed functions. And as a result, the presumption
`against means-plus-function is overcome.
`On Step 2 of the analysis, what is then the
`corresponding structure, if any, recited in the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 17 of 109 PageID #: 11367
`
`17
`
`specification -- again, the specification tells us what the
`structure ought to be. It's a mathematical -- mathematical
`correlation algorithm, but never discloses any such
`algorithm.
`And we pointed this out in the briefing. And if we
`go to Slide 19, the only recitation of structure in the
`specification with respect to this function is -- this is
`on -- this is in '251 patent. This is cited by the
`Plaintiff's expert in Column 5: The display x, y
`coordinates of the touched point are known by a CPU. That
`is only the recitation of a general purpose computer.
`As the Aristocrat case tells us, in the case of a
`computer-implemented invention such as this -- there's no
`dispute that that's what this is -- a function has to be
`supported by algorithmic structure, not general purpose
`computers.
`And so for those reasons, because specifically with
`respect to this function, there is no recitation of
`structure in the claim or algorithmic structure in the
`specification, the claims are indefinite.
`THE COURT: So what do you contend would be
`minimally necessary to cross those thresholds as far as --
`let's forego the claims themselves. Let's talk about the
`reference in the specification.
`Obviously, your argument is what's there is
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 18 of 109 PageID #: 11368
`
`18
`
`insufficient or inadequate. What would be minimally
`adequate to meet what you say the test should be?
`MR. MODI: I believe, Your Honor, the Aristocrat
`case has articulated what an algorithm can be -- for
`example, a flowchart, to perform the claimed function. It
`could be in prose. It could be -- it could be a series of
`steps, but the important point is regardless of how it's
`expressed, it has to articulate sufficient structure to
`perform the entirety of each claimed function.
`And that's the real issue with these claims is that
`they recite a number of highly specialized software-driven
`functions -- that's stated in the specification -- without
`any recitation of anything that resembles a -- a flowchart
`or -- or a series of steps for each specific function.
`And -- and, again, the specification confirms for
`us that it's this mathematical correlation algorithm that
`performs the relationship step that -- that I was referring
`to.
`
`THE COURT: What's -- what's your response to
`Plaintiff's argument that on an evidentiary basis, we've got
`competing declarations from competing experts and that a
`swearing match between competing experts doesn't rise to the
`level of clear and convincing evidence?
`MR. MODI: Your Honor, my response to that would be
`the specification, which Phillips tells us is the best guide
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 19 of 109 PageID #: 11369
`
`19
`
`to understand claim terms, unequivocally says that this
`function is performed by a mathematical correlation
`algorithm, and there is no dispute between the experts that
`there is no such mathematical correlation algorithm
`disclosed in the specification.
`So the intrinsic evidence is, of course, the most
`persuasive and deserves the most weight. The extrinsic
`evidence, which expert declarations are, should be given
`minimal weight, if -- if even considered in this context.
`THE COURT: All right. Now, it's true that
`latitude and longitude are disclosed as a part of the
`particular embodiment. And if so, should it be surprising
`that algorithms would be -- that an algorithm in the claim
`would be broader than that?
`MR. MODI: I beg your pardon, Your Honor. I -- I'm
`not sure I follow the question.
`THE COURT: Well, maybe I'm not asking the question
`clearly. The fact that latitude and longitude are disclosed
`as a part of particular embodiments, you're aware of that?
`MR. MODI: I believe, Your Honor, they are
`disclosed in every embodiment, but I think I follow the
`premise of the question so far.
`THE COURT: Okay. Given that as premise, should
`it -- should it be surprising or isn't it unsurprising, said
`another way, that the algorithms and the claims would be
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 20 of 109 PageID #: 11370
`
`20
`
`broader given that disclosure in the embodiment?
`MR. MODI: Your Honor, I think that I respectfully
`disagree insofar as I -- I don't think there is any --
`THE COURT: Was the question clear?
`MR. MODI: I believe so.
`THE COURT: From the expression on your face, I'm
`not sure.
`MR. MODI: Let me hopefully try my best to answer
`what I think -- as I understand the question.
`What I'm struggling with, Your Honor, is we don't
`believe that there is any algorithm with respect to this
`particular function anywhere in the claim. So I -- I'm not
`sure if I necessarily agree that an algorithm in the claim
`is broader than latitude and longitude. Does that answer
`Your Honor's question?
`THE COURT: I think it does.
`MR. MODI: Okay. Thank you.
`THE COURT: Do you have anything else for me?
`MR. MODI: No, Your Honor. Un -- unless Your Honor
`has any questions, that's it.
`THE COURT: No. I'm not going to do it on every
`term, we don't have time, but I am going to see if Plaintiff
`has any brief rebuttal on this.
`MR. LAMBRIANAKOS: I do have a --
`THE COURT: If you don't, that's fine.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 21 of 109 PageID #: 11371
`
`21
`
`MR. LAMBRIANAKOS: -- I do have a brief rebuttal.
`THE COURT: Make it brief, and then we'll move on.
`MR. LAMBRIANAKOS: Your Honor, the structure of the
`claim is the algorithm that is set forth in the claim.
`There's no -- there is no obligation that for each step of
`an algorithm that the specification then disclose an
`algorithm for each step of the algorithm such that we go
`down a rabbit hole where each step of an algorithm has to be
`explained by its own algorithm.
`THE COURT: Well, we've got one clear point of
`departure between the two of you because you say there is an
`algorithm in the claims, and opposing counsel says there's
`not. And it can't be both ways.
`MR. LAMBRIANAKOS: Well, what counsel has done is
`we've -- we view the entire claim as an algorithm because
`it's a set of ordered steps that accomplishes the -- the
`claimed operations.
`And what he's done is he's picked a single step in
`the algorithm and said there's no algorithm for this -- that
`step of the algorithm. And what we're -- and what our
`expert says is that the claim itself is sufficiently
`detailed that one of ordinary skill in the art would be able
`to program that step, and, therefore, it's sufficient.
`So for the step of presenting on an interactive map
`information whereby map data is related to a -- to a
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 22 of 109 PageID #: 11372
`
`22
`
`specific coordinate, our expert has said that one of
`ordinary skill in the art would be able to program that step
`of the algorithm, and, therefore, each of the steps is
`sufficient and that the claim itself is -- is -- has an
`algorithm which takes the claim outside of 112(6).
`There isn't a requirement, again, that we look at
`each step of the algorithm and then look to see whether
`there's an algorithm for that. That's not required under
`the analysis.
`That's all I have, Your Honor.
`THE COURT: All right. Thank you.
`MR. LAMBRIANAKOS: Thank you.
`THE COURT: Let's go on to the next term, however,
`my understanding is that we have an agreement between the
`parties as to a construction for this term. And I want to
`make sure -- well, let me just -- rather than me tell you
`what I think your agreement is, why don't you tell me what
`your agreement is in regard to this term.
`MR. RUBINO: Your Honor, Vincent Rubino for AGIS.
`THE COURT: Go ahead.
`MR. RUBINO: The term -- well, the function for
`this term is "facilitating the transmission of electronic
`files between said PDA/cell phones in different locations,"
`and we've agreed to a structure of a communication network
`server.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 23 of 109 PageID #: 11373
`
`23
`
`THE COURT: Defendants concur with that
`representation?
`MR. MAIER: Yes. Good afternoon. Cosmin Maier on
`behalf of Defendants. We concur with one exception, it's
`communications network server, I believe is the created
`construction.
`THE COURT: So it's communications with an "s"?
`MR. MAIER: Yes.
`MR. RUBINO: Yes, Your Honor.
`THE COURT: Okay. Thank you, counsel.
`That having been clearly set forth in the record,
`let's move on to the next term. And it looks to me like
`it's most efficient if we argue this term and the next one
`concurrently. "Means for attaching a forced message alert
`software packet," and then "means for requiring the forced
`message alert software on said recipient PDA/cell phone."
`Let me hear from Plaintiff on this first.
`MR. RUBINO: Your Honor, Vincent Rubino for AGIS
`
`again.
`
`THE COURT: Go ahead.
`MR. RUBINO: So the full text of this term or the
`two terms combined together, "means for attaching a forced
`message alert software packet to a voice or text message
`creating a forced message alert that is transmitted by said
`sender PDA/cell phone to the recipient PDA/cell phone,"
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 24 of 109 PageID #: 11374
`
`24
`
`well, that -- that portion of the claim, we contend, is one
`separate means.
`And then afterwards -- what comes after the comma,
`we contend, is not a means-plus-function limitation at all.
`So after the comma, which clearly sets apart what's in the
`means before it and what comes after, what's after the comma
`is a forced message alert software packet, which we contend
`is structure itself and not a separate means.
`Defendants have put that portion of the term, what
`comes after the comma, "said forced message alert software
`packet containing a list of possible required responses"
`into the means, and then contend that what comes after the
`word "responses" -- this is the full claim here on our Slide
`19 -- what comes after the word "responses," "and requiring
`the forced message alert software," and on to the end of the
`term, that that requiring is somehow an additional function
`attached to the means.
`But we contend that based on English grammar, that
`comma in the middle of the claim properly sets apart the
`software packet, which is a structure, from the means which
`comes before it.
`And that's our -- that's our first point.
`And then we go on to show how the means for
`attaching does have an algorithm in the spec. And so I will
`proceed on to the description of the algorithm.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Case 2:17-cv-00513-JRG Document 201 Filed 09/18/18 Page 25 of 109 PageID #: 11375
`
`25
`
`THE COURT: Do you have any grammatical support,
`other than just to say that a comma signals -- the comma
`signals the end of it, in effect?
`MR. RUBINO: Your Honor, other than the comma, we
`don't have any other grammatical support. What we do have
`is support from our expert who contends that a forced
`message alert packet -- tha
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
