Case 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 1 of 119 PageID #: 2556
`
`1
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC
`
`VS.
`
`CIVIL DOCKET NO.
`6:14-CV-982-KNM
`TYLER, TEXAS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`)(
`)(
`)(
`)(
`)(
`DECEMBER 17, 2015
`)(
`9:00 A.M.
`)(
`CLAIM CONSTRUCTION HEARING
`BEFORE THE HONORABLE JUDGE K. NICOLE MITCHELL
`UNITED STATES MAGISTRATE JUDGE
`
`LG ELECTRONICS, INC., ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFFS: (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
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC
`
`VS.
`
`CIVIL DOCKET NO.
`6:14-CV-982-KNM
`TYLER, TEXAS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`)(
`)(
`)(
`)(
`)(
`DECEMBER 17, 2015
`)(
`9:00 A.M.
`)(
`CLAIM CONSTRUCTION HEARING
`BEFORE THE HONORABLE JUDGE K. NICOLE MITCHELL
`UNITED STATES MAGISTRATE JUDGE
`
`LG ELECTRONICS, INC., ET AL.
`
`APPEARANCES:
`FOR THE PLAINTIFFS: (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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 2 of 119 PageID #: 2557
`
`2
`
`I N D E X
`
`December 17, 2015
`
`Appearances
`Hearing
`Court Reporter's Certificate
`
`Page
`1
`3
`119
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 3 of 119 PageID #: 2558
`
`3
`
`COURT SECURITY OFFICER: All rise.
`THE COURT: Good morning. Please be seated.
`Ms. Hardwick, you'll call the case.
`COURTROOM DEPUTY: Yes, Your Honor.
`The Court calls Civil Action 6:14-cv-982, Cellular
`Communications Equipment, LLC versus LG Electronics, Inc., et
`al.
`
`THE COURT: Announcements?
`MR. HILL: Good morning, Your Honor. Wesley Hill, Ed
`Nelson, Brent Bumgardner, Ryan Griffin on behalf of the
`Plaintiff, CCE, and we're ready for our claim construction,
`Your Honor.
`THE COURT: Good morning.
`MR. RADER: Your Honor, my name is Mike Rader from
`Wolf Greenfield in Boston on behalf of Sony Mobile. My
`colleague, Chelsea Loughran, is also going to argue today. And
`I'll allow the other lawyers to introduce themselves.
`MR. KENNERLY: Your Honor, Chris Kennerly for AT&T
`Mobility from Paul Hastings. I have Jonas Herrell, Ryan Fabre,
`and our local counsel, Dallas Tharpe.
`THE COURT: Good morning.
`MR. SIDDIQUI: Your Honor, Saqib Siddiqui from Mayer
`Brown representing the LG Defendants. I have with me Kfir Levy
`from -- also from Mayer Brown.
`MR. NOTEWARE: Good morning, Your Honor. Daniel
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 4 of 119 PageID #: 2559
`
`4
`
`Noteware, and I'm here with LGE and Verizon. And with me from
`Verizon is Sarah Kalemeris.
`MS. SMITH: Good morning, Your Honor. Melissa Smith
`on behalf of T-Mobile. I'm joined by Mr. Zach Elsea, and we're
`ready to proceed, Your Honor.
`THE COURT: Good morning.
`MR. WEBER: Bob Weber and Carrie Baker for the Sprint
`and Boost Mobile Defendants, and we're ready this morning.
`THE COURT: Is that everybody? Okay. Well, good
`morning, everyone.
`Let's get to our Markman hearing. I typically allow
`the parties to go term-by-term. Plaintiff will choose the
`first term, Defendant will choose the next term, and we'll just
`go like that until we get through them all, unless you all have
`met and conferred and come up with a different path, which I'm
`all -- I'm all ears for.
`MR. NELSON: We have, Your Honor. I think the way
`we'll do it is we're going to start with the '966 patent.
`We're going to go through the claim construction issues and
`then the indefiniteness issue. Then we'll go to the '060
`patent, which I'll just always call the '060, and we'll do the
`claim construction issues, then the summary judgment issue.
`And then the '556, same way.
`And then what we've agreed is that -- I think there's
`either three or four terms, maybe there's just two on one of
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 5 of 119 PageID #: 2560
`
`5
`
`them -- in terms of the claim construction issues. The
`Plaintiff, CCE, will go first on each one, turn it over for the
`response, and then when we get to the summary judgment issue,
`Defense counsel will go first, and we'll respond.
`THE COURT: Okay. Perfect. All I'll ask is if you
`all would just make sure that you make your way to the podium
`before you start speaking. We've got a full room, and I want
`to make sure that we get you on the mic, so let's proceed.
`MR. NELSON: Oh, Your Honor, if I may, I'm going to
`point out one issue. We've tried three different laptops over
`here, and it will not allow us to go to a higher resolution to
`make this quite small enough to fit the screen. You've got the
`binder, but it should -- it's about 90, 95 percent on there.
`THE COURT: No problem.
`MR. GRIFFIN: Ready?
`THE COURT: I am.
`MR. GRIFFIN: As Mr. Nelson mentioned, the first
`patent we'll be discussing today is U.S. Patent No. 8,385,966,
`and we refer to this as the uplink power control patent. And
`this patent deals primarily with how do you set the power for
`transmissions on uplink shared communication channels and
`uplink control channels.
`So the first grouping of disputed terms that we're
`going to discuss are these wherein clauses. These wherein
`clauses are in each of the independent claims where the second
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 6 of 119 PageID #: 2561
`
`6
`
`power control adjustment state f(i) is initialized, and then
`there are Dependent Claims 3 and 12 where the first power
`control adjustment state g(i) is initialized.
`So I've shown Claim 1 up here, and you see from the
`first step that it says a processor -- using a processor to
`initialize for i=0, a first power control adjustment state and
`a second power control adjustment state f(i). The disputed
`terms relate to how this initialization is done.
`So to get a handle on what these terms mean, it's
`helpful to take a step back and look at what the problem was
`that the inventors were trying to solve. So at the time of
`this invention, the LP technical body that was responsible for
`establishing the LTE standards had agreed upon the formulas
`that would be used for uplink power, and those are cited
`verbatim in the specification. And that's what's shown here.
`Well, the inventors perceived a problem with how these
`formulas were initialized, so for the first subframe, that i=0,
`how should these things be set? And I've underlined these --
`the parameters f(i) and P0_PUSCH. Those are what are referred to
`as UE specific parameters. And the inventors said, hey, you
`know, we've got a problem here because when you're initializing
`your uplink power, you -- the terminal doesn't necessarily know
`what these parameters are.
`The way that the prior art technical standard dealt
`with this was they simply said you set f(0). Your power
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 7 of 119 PageID #: 2562
`
`7
`
`control adjustment state is zero.
`Well, the inventor said that's not a very smart way to
`do this because we've just gone through this random access
`procedure where we've -- where we've gleaned some information
`about how we need to adjust our power to get -- to make sure
`that our -- our transmissions get to the base station.
`In particular, during the preamble process, there's a
`parameter called the rampup power, and that's the amount of
`power by which you have to increase your power so that your
`message gets to the base station.
`And another parameter is this delta PPC that you see,
`and that is a parameter that comes back in the random access
`response from the base station to the user terminal. So the
`inventor said, hey, we've got this information, let's be
`smarter about how we're initializing this.
`What they did is they say let's initialize our user
`specific parameters P0_UE_PUSCH and f(0) so that it accounts for
`this information that we've derived from the preamble process.
`So that's these equations 4a and 4b.
`So let's take a look at what the specification says
`about these -- this relationship. If you turn to Column 7 of
`the specification, it says: These equations say that the sum
`of the UE specific power control constants, P0_UE_PUSCH or P0_UE_PUCCH
`and the power control initial states f(0) or g(0) are equal to
`the open loop power control error taken -- taking into account
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 8 of 119 PageID #: 2563
`
`8
`
`the preamble power rampup.
`So what he's saying is -- or what the inventors are
`saying is when you set f(0) and P0_UE_PUSCH, what you need to do
`is set these so that they account for the total open loop
`control error, so that they account for delta PPC, plus
`delta Prampup.
`So if you go further down in Column 7, the first
`sentence of the second paragraph says, okay. Well, here's how
`you could do this. If P0_UE_PUSCH is equal to zero, then you're
`just going to set f(0) and delta PC plus delta Prampup.
`And that makes perfect sense because the point of the
`invention is to account for this open loop error when you're
`setting your user specific -- or your UE specific parameters.
`So if P not UE_PUSCH is zero, the patent expressly says that
`equations 4a and 4b are read as f(0) equals delta PC plus
`delta Prampup.
`If you go a little bit further down, it says, okay.
`In another example, you know, you can -- you can account for as
`much of delta PPC and delta Prampup as you can with P0_UE_PUSCH, but
`the inventors point out these parameters have a limited range.
`So what they're saying here is P0_UE_PUSCH probably isn't going to
`be big enough to cover all of delta PPC plus delta Prampup.
`So it goes on to say anything that's not covered
`P not UE_PUSCH should be compensated by setting f(0) to the
`remainder. So the inventors, again, are just saying, look, you
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 9 of 119 PageID #: 2564
`
`9
`
`need to set f(0) so that it accounts for any portion of delta
`PPC plus delta Prampup that isn't covered by P0_UE_PUSCH.
`And then finally the last sentence of the second
`paragraph in Column 7 says: These two examples are not
`limiting examples, and the aspect of the invention is not
`limited to just these two.
`So the inventors are confirming, look, math and
`computer science are flexible. You can resolve this
`relationship in many different ways. What's important is that
`f(0) is set so that it accounts for any portion of delta PPC
`plus delta Prampup that's not covered by P0_UE_PUSCH.
`All right. So turning back to the parties' proposed
`constructions, CCE doesn't believe this term needs to be
`construed, but we have offered an alternative construction.
`And the parties' principal dispute is really whether this --
`these wherein clauses require the performance of a specific
`algorithm, and that's what the Defendants' proposed
`construction requires.
`CCE's position is that the claims are broad enough to
`cover initiating f(0) using any algorithm or any set of
`instructions so long as it's set so that P0_UE_PUSCH plus f(0)
`covers for the entire open loop control area -- that is,
`delta PPC and delta Prampup.
`So if you look at the disputed claim language in
`context, there's really nothing magical about this language.
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 10 of 119 PageID #: 2565
`
`10
`
`All the terms in the disputed phrase are pretty clear.
`Initialize has a plain meaning. It's to set a starting value.
`And although the disputed language uses the term "power control
`adjustment state" and has these parameters, you'll see that
`Claim 1 actually defines what each of those parameters are.
`So our position is that you really don't need to go
`any further than that because the claims mean what they mean,
`and they define these parameters.
`If the Court is inclined to construe this wherein
`clause, it should -- it should adopt CCE's proposed
`construction because it is consistent with the specification
`and the preferred embodiments.
`Now, I discussed this earlier, but at Column 7, the
`inventors describe a specific embodiment where P0_UE_PUSCH is set
`to zero. They say in that case, f(0) is initialized as
`delta PPC plus delta Prampup. And we know from the Federal
`Circuit that constructions that exclude preferred embodiments
`are rarely, if ever, correct. Defendants' proposed
`construction excludes this very preferred embodiment. So
`that's why we know it's not correct.
`Plaintiff's construction does account for the
`situation where f(0) is initialized as delta PPC plus
`delta Prampup.
`So I'm not the only one who's saying that f(0), the
`claims are broad enough to encompass the situation where f(0)
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 11 of 119 PageID #: 2566
`
`11
`
`is initialized as delta PPC plus delta Prampup. If you look at
`the declaration of Dr. Akl, who is LG/Kyocera's expert in
`their -- in their IPR proceedings, he says at Paragraph 45:
`The claims of the '966 patent are broad enough to cover the
`case where f(0) is initialized as delta PPC plus delta Prampup.
`And that's exactly what LG and Kyocera say in their IPR
`petition.
`
`And CCE's own expert has testified that the claims are
`broad enough to cover the situation where f(0) is initialized
`as delta PPC plus delta Prampup.
`Now, finally, we know that Defendants' proposed
`construction can't be correct because it renders the claims
`facially nonsensical. So one of the issues with Defendants'
`construction is that it requires calculating f(0) by
`calculating a sum of f(0) and P0_UE_PUSCH.
`So what they're saying is you need to initialize f(0)
`using the value f(0). The fact of the matter is when you're
`initializing f(0), you don't have that value yet, so you can't
`solve for it. That's like saying you need to solve for X by
`solving X plus three. You can't do that because X minus X
`equals zero, and we know that zero is not equal to three.
`And then finally, their construction requires
`initializing f(0) by equating two calculated sums. Well, that
`doesn't make much sense because we know this power control
`adjustment state is a value that's used to adjust an uplink
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 12 of 119 PageID #: 2567
`
`12
`
`power up or down. Well, equating two calculated sums doesn't
`result in any usable values, just that they're either equal or
`they're not, and I'm not sure how you could use that to set a
`power control adjustment state.
`Unless the Court has any questions, I'll turn the
`podium over to the Defendants.
`THE COURT: Let me hear a response.
`MR. RADER: Thank you, Your Honor.
`This is a little bit of an unusual claim limitation.
`It's an equation. It's not that common that you open up the
`claims of the patent, and you see that one of the limitations
`in and of itself is an equation. But that's what we have here.
`The -- the crux of the dispute, as we've seen it
`evolve through the briefing and in Plaintiff's argument is
`whether the limitation, the equation that's set forth in these
`claims is broad enough in its literal meaning, because that's
`what we're here today to talk about -- we're here to talk about
`in claim construction the literal scope, not -- not the
`equivalence -- whether the literal scope of that limitation is
`broad enough to cover equations that are different from the
`equation that the claims set forth.
`In the language that the Plaintiff used in its
`briefing, for example, they describe -- they argue that the
`equation limitation is broad enough to cover equivalent -- they
`use that word "equivalent" equations, equivalent algorithms, or
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 13 of 119 PageID #: 2568
`
`13
`
`algorithms that are different in various ways. It may be
`different in a small way or a large way. So, for example --
`and I'm going to talk about Column 7 in a minute -- but Column
`7 of the patent, the Plaintiff argues, describes a slightly
`different equation in which there's a pre-check to determine if
`one of the terms happens to be zero. And if that's the case,
`you take that term out of the equation.
`So now the equation involves a total of three terms
`instead of a total of four. So that's an equation that's a
`little bit different than the equation that's in the claim.
`But the equation could also be a lot different under the
`Plaintiff's construction as long as -- I guess the pointer
`doesn't work on the television -- but as long as -- I've
`highlighted the words -- the value of f(0) is set such that, or
`in the language they use in their brief, conforms to the
`condition of this equation.
`So you could use a totally different equation, not
`just a little bit different, a vastly different equation to
`determine f(0) or no equation at all. You could just set up
`zero equal to zero which is what the prior art did. And if the
`other terms happen to balance out in such a way that the
`relationship of the equation is satisfied, that, the Plaintiff
`says, ought to be covered by -- by the claim. It's, in the
`Plaintiff's words, an equivalent.
`So if we -- if we could flip for just a second to
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 14 of 119 PageID #: 2569
`
`14
`
`Slide 7, you know, so, for example, on Slide 7 in the -- in the
`first highlighted portion, it -- the Plaintiff argues that
`initializing f(0) within the meaning of this claim term can be
`achieved through a different algorithm, not the one that's set
`forth in the claim.
`And similarly -- actually, if you could flip to
`Exhibit 31, Page 22, which is the Plaintiff's opening brief,
`and bring up the last sentence there in the first part. Yeah.
`So in the opening brief, the Plaintiffs said:
`Moreover, even if the claims did require a calculation,
`Defendants' proposal rigidly interprets the claimed equation to
`dictate how they are solved. They go on to say in the last
`phrase that the -- that the claims permits different but
`mathematically equivalent solutions.
`Your Honor, that's the crux of the dispute. We are
`here today to talk about claim construction, and claim
`construction determines the literal meaning of claim terms, not
`what equivalents may or may not be encompassed within the claim
`term under Doctrine of Equivalents. That's a totally different
`question for another day.
`In this particular case, there won't be any
`entitlement to equivalents because this limitation was amended
`during prosecution. But the question of what could be
`encompassed within the scope of the Doctrine of Equivalents is
`a different question. We're here today to talk about 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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 15 of 119 PageID #: 2570
`
`15
`
`literal claim scope.
`And if you could flip to Slide 3.
`Your Honor, this slide shows what happened during
`prosecution of the patent. The equation didn't pop in there by
`accident. The original claim, which you can see by ignoring
`the underlined portion, which is what's being added in the
`amendment, but -- but crediting the struck-out portion is
`initialized with because that was in the claim before, the
`claim as originally drafted simply said that the -- it said
`initialized with the second power control adjustment state
`f(0). Full stop. It didn't say anything about how you
`could -- how you had to determine what f(0) was. It just said
`you had to use f(0) to initialize that -- that initial power.
`So you could determine f(0) any way you wanted. And
`then to distinguish the prior art, they added this lengthy
`limitation, the wherein clause, where they said this -- this is
`how we're getting around the prior art, we're adding this
`equation. And they said now there is a way that -- we are
`going to require a particular way to initialize f(0), and here
`it is.
`
`So rather than not requiring any specific method of
`initializing f(0), which is what the claim originally said and
`the prior art read on that, now they're telling you, okay, to
`get around the prior art, we're going to initialize it in a
`particular way, and this is the way we're going to use this
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 16 of 119 PageID #: 2571
`
`16
`
`equation.
`
`They did not say there's lots of ways that the claim
`drafter could have written this. The claim drafter could have
`said wherein f(0) is initialized by using the following
`variables. That would have left it open to use those variables
`any way you wanted.
`They could have said it's initialized in such a way
`that the following relationship is satisfied no matter how you
`picked f(0), which is -- which is the construction essentially
`the Plaintiff is offering, and they didn't say that either.
`You know, patent prosecution is an ex parte process,
`so the Defendants don't participate, the public doesn't
`participate, the patentee has complete and exclusive and sole
`control over how the claims get drafted. And so when the
`claims are drafted in a particular way, in this case, adding
`the equation, as the way of initializing f(0), they need to
`be -- the claim language needs to be credited the way it was
`written and not obviously rewritten by the Court.
`So the question, then, becomes, well, what does this
`exclude? Obviously, it must exclude something because it was
`added to get over the prior art.
`Well, if we could go to Slide 8.
`Professor Singer in his declaration offered a bunch of
`examples of different ways that you could set f(0) using the
`quote, unquote, different algorithms. These are, you know, 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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 17 of 119 PageID #: 2572
`
`17
`
`set of five different -- Nos. 2 through 6 are different
`algorithms, different equations that are different from the
`ones in the claim -- that you could use to set f(0). You know,
`for example, in Scenario 2, there's no delta Prampup, meaning the
`very first time you sent your preamble to the base station,
`everything worked out, and you didn't have to ramp up your
`power. And so if you assume that's not present, you can use
`this other equation.
`And similarly, all the way down to the simplest case
`of simply setting f(0) equal -- equal to zero.
`Now, in reply, the Plaintiff didn't address this at
`all. They concede that under their construction every one of
`these methods of setting f -- f(0) is covered by the claim
`under their construction, every one of them.
`And, in fact, this is the crux, under their
`construction, every conceivable method of setting f(0) that a
`mathematician or a scientist could possibly develop would be
`covered. Why? Because in every scenario, no matter how you
`choose f(0) or what its value is, there are going to be
`conditions, as Professor Singer explains, in which that
`relationship happens to be satisfied because the other terms
`balance everything out.
`That construction cannot be right under Mangosoft,
`under BenQ, under a litany of black letter cases from the
`Federal Circuit, because it not only fails to exclude 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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 18 of 119 PageID #: 2573
`
`18
`
`particular prior art the examiner was applying, it fails to
`exclude anything. It -- it offers no limitation to the claim
`whatsoever under the Plaintiff's proposed construction.
`All right. Now, if I could have Slide 10.
`So this -- this is the Column 7 issue, Your Honor.
`And actually -- actually if I could just flip to
`Column -- to Slide 17 for one second.
`Your Honor, so this is -- this is the language at the
`top in Column 7 that -- that counsel referred to describing a
`case where you do a pre-check of this one variable, and if it's
`zero, you say, okay, it's zero, so forget about that one.
`We'll just do the equation f(0) equals the other two terms and
`forget about the other one because it happened to be zero in
`this case.
`Now, if you interpret that as a different equation, it
`may not be. This is a little ambiguous. It may simply be
`saying that you use the full equation, but mathematically when
`you plug zero in to the P0_EU_PUSCH term, this is what you get.
`But if you regard this as a separate equation, this is an
`absolutely critical point. The Plaintiff has argued that the
`claim ought to be construed to cover this as a, quote, unquote,
`preferred embod -- as an embodiment or even a preferred
`embodiment. And there is a doctrine that says claims, all
`things being equal, ought to cover embodiments, let alone
`preferred embodiments.
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 19 of 119 PageID #: 2574
`
`19
`
`But the question is, how is the claim written? So if
`there's a claim term that's pretty broad and the Defendant, as
`Defendants sometimes do, says, well, that term ought to be
`construed narrowly and it's going to exclude a bunch of
`embodiments that prima facie would have been included, that's a
`problem. If the claim is written narrowly to cover one
`embodiment, it doesn't cover the others. And that's --
`Next slide, Slide 11.
`That's the Schoenhaus case which actually popped up on
`one of the Plaintiff's slides for a different proposition. So
`in the Schoenhaus case, there were -- the specification of the
`patent disclosed two embodiments or two classes of embodiments,
`one in which the -- the footwear insert was rigid, and the
`other in which it was semi-rigid. Plaintiff said you have to
`construe that claim to cover both. I mean, after all, the
`specification discloses semi-rigid. How could it not be
`covered by the claim? But it didn't.
`And the reason it didn't is that the drafter wrote the
`claim to use the word "rigid." So it disclosed A and B. They
`wrote the claim to cover A. It didn't cover B because of the
`way they wrote the claim. The limited literal meaning of the
`claim term is not necessarily determined by its construction.
`It's often determined by the term.
`So in this case, there were an infinite number of
`equations they could have written or different ways they could
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 20 of 119 PageID #: 2575
`
`20
`
`have written the limitation. And, in fact, they could, for
`example, have written this other equation in there, or they
`could have written it in such a way that it would cover both of
`these equations, or they could have written it in such a way
`that it would cover any equation, but they didn't. They wrote
`one equation into the claim, and that's the equation that has
`to be used to infringe that claim, and that -- that's all the
`Defendants are asking for. It is true. It's a very literal
`interpretation of the claim because it has to be, just like
`rigid was interpreted in Schoenhaus to be limited to rigid and
`not to cover semi-rigid.
`Your Honor, I think I'm going to rest there, unless
`you have questions for me.
`THE COURT: Okay. Let me get a response.
`MR. GRIFFIN: One of the points I'd like to address is
`this argument that the Plaintiffs concede that f(0) could be
`initialized using any algorithm. We don't concede that, and we
`certainly don't agree, for example, that f(0) could simply be
`set by setting it to zero.
`Our position is that what these equations, 4a and 4b,
`mean in the context of the claims is that when you're
`initializing f(i) for zero, what you're doing is you're
`performing some algorithm or set of instructions to set f(0) so
`that it acc -- that it accounts for any portion of delta PPC
`plus delta Prampup that isn't covered by PO_UE_PUSCH. So how --
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 21 of 119 PageID #: 2576
`
`21
`
`how -- whatever instructions or algorithm is performed to do
`this initialization, it's got to account for this relationship
`because the point of the invention was, look, when we're
`initializing uplink power, we need to set these UE specific
`parameters in -- in a way that accounts for our open loop
`control error. And what the inventors said was in many
`situations, you're not going to have PO_UE_PUSCH. So in that
`case, it makes perfect sense that you would attribute all of
`delta PPC plus delta Prampup to f(0), that is initializing f(0),
`according to this equation.
`So --
`THE COURT: What do you think about the construction
`that is -- uses your alternative construction, but instead of
`is set such that we say it is calculated such that and set
`forth that algorithm, how would you respond to that? I can
`read it all to you, but --
`MR. GRIFFIN: Yeah. No, my only hesitancy there would
`be that, you know, to the extent there's an argument, that, you
`know, you have to perform a specific calculation where you're
`adding --
`
`THE COURT: This specific one that's in the claim?
`MR. GRIFFIN: Right, right. Because, again, if it's
`set to zero, then we know from the spec that you can just
`calculate f(0). You can in -- you initialize f(0) by delta PPC
`plus delta Prampup. And alternatively, if -- if there was some
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 22 of 119 PageID #: 2577
`
`22
`
`value that was attributed to P not UE_PUSCH, so P0_UE_PUSCH was set
`to some value, then the actual way that you would -- you might
`calculate f(0) is say, okay, f(0) equals delta PPC plus delta
`Prampup minus P not EU_PUSCH. That would maintain the claimed
`relationship, and that would do exactly what the inventors
`said -- said this equation was intended to do, which is tell
`you how you need to attribute the open loop control error delta
`PPC plus delta P not UE_PUSCH. You divide it amongst these two
`variables. It could be all on one of P not UE_PUSCH, or all of --
`on f(0), or it could be attributed between both. And that's
`all this equation is saying is that the open loop power error
`is divided between these two values.
`Any other questions?
`THE COURT: No.
`MR. GRIFFIN: All right. Thank you.
`THE COURT: Final word?
`MR. RADER: May I just respond to your question about
`the alternative construction?
`THE COURT: Yes.
`MR. RADER: You know, Your Honor, we're not wedded to
`every word in our proposal. I think the -- the essential
`aspect is, one, there is a calculation, and, two, it needs to
`involve all of the terms that are included in the equation.
`So, for example, the simplest thing, we all know you
`can -- P0_UE_PUSCH is on one side of the equal sign. You subtract
`
`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 6:14-cv-00982-KNM Document 190 Filed 02/16/16 Page 23 of 119 PageID #: 2578
`
`23
`
`it from both sides. It ends up on the other side. I mean,
`there's no objection to having -- I mean, there's no objection
`to having the construction cover that because that is literally
`-- mathematically literally the same thing as the -- as the
`equation that's set forth.
`And, you know, we tried to be very literal in -- in
`the construction that we proposed because of the importance of
`being faithful to the equation, but there's no reason, if
`there's an objection that there's something nonsensical about
`taking the terms on the left side and equating them to the
`terms on the right side, moving P0-UE_PUSCH over, you know,
`resolves that problem. As long as the calculation includes all
`of the terms that are set forth in the equation, we -- we'd
`certainly be satisfied.
`THE COURT: All right. Let's go on to the next term.
`MR. GRIFFIN: All right. The next term we're going to
`discuss is this parameter delta PPC. We talked about it a
`little bit this morning indirectly.
`The dispute really is whether this term needs to be
`given a definition other than what is expressly provided in the
`language of the claim itself. So you'll see in each of the
`claims -- independent claims, delta PPC is defined as a power
`control command indicated in a second message that is received
`in response to the first message. This, to us, seems like a
`pretty clear definition. And if ever there was lexicography, I
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
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
