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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`* October 27, 2021
`PARKERVISION, INC.
` *
`VS.
`* CIVIL ACTION NOS.
`
`*
`
`HISENSE CO., LTD, ET AL
`*
` W-20-CV-870
`TCL INDUSTRIES HOLDINGS CO., LTD, ET AL W-20-CV-945
`BEFORE SPECIAL MASTER JOSHUA J. YI
`MARKMAN HEARING (via Zoom)
`
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`APPEARANCES:
`For the Plaintiff:
`
`For the Defendants:
`
`Ronald M. Daignault, Esq.
`Chandran B. Iyer, Esq.
`Jason S. Charkow, Esq.
`Daignault Iyer LLP
`8200 Greensboro Drive, Suite 900
`McLean, VA 22102
`Stephanie R. Mandir, Esq.
`Daignault Iyer LLP
`8618 Westwood Center Drive, Suite 150
`Vienna, VA 22182
`Raymond W Mort III, Esq.
`The Mort Law Firm, PLLC
`100 Congress Ave, Suite 2000
`Austin, TX 78701
`Steven R. Borgman, Esq.
`Kilpatrick Townsend & Stockton LLP
`700 Louisiana, 43rd Floor
`Houston, TX 77002
`Matias Ferrario, Esq.
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, NC 27101
`Kevin M. Bell, Esq.
`Kristopher L. Reed, Esq.
`Edward J. Mayle, Esq.
`Kilpatrick Townsend & Stockton LLP
`1400 Wewatta Street, Suite 600
`Denver, CO 80202
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 2 of 75
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`Court Reporter:
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`Steven D. Moore, Esq.
`Kilpatrick Townsend & Stockton LLP
`Two Embarcadero Center, Suite 1900
`San Francisco, CA 94111
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`Proceedings recorded by mechanical stenography, transcript
`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 3 of 75
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`(October 27, 2021, 9:39 a.m.)
`DEPUTY CLERK: Markman hearing in Civil Actions
`W-20-CV-870, styled ParkerVision, Incorporated versus Hisense
`Company, Limited and other, and Case No. W-20-CV-945, styled
`ParkerVision, Incorporated versus TCL Industries Holdings
`Company, Limited and others.
`SPECIAL MASTER: Counsel, could you introduce yourself,
`please?
`MR. CHARKOW: Sure. Good morning. This is Jason Charkow
`for the plaintiff ParkerVision. With me today I have Stephanie
`Mandir who'll be arguing with me today as well as Ron
`Daignault, Chandran Iyer all from Daignault Iyer firm. Also
`Ray Mort of the Mort firm as well as a client representative
`Jeffrey Parker, the CEO of ParkerVision.
`SPECIAL MASTER: Welcome.
`MR. CHARKOW: Thank you.
`MR. BORGMAN: Good morning, Dr. Yi. This is Steve Borgman
`with Kilpatrick Townsend & Stockton. We represent the Hisense
`defendants and the TCL defendants. With me today we have Steve
`Moore, Matias Ferrario, Kris Reed, Kevin Bell and Ted Mayle,
`and we also have some client representatives. I'll let Kris
`Reed introduce those for you.
`MR. REED: Yes. Representing the defendants on the 945
`case we have Sherry Zhi who serves as in-house IP legal counsel
`as well as Maggie Zheng who serves as head of IP business
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 4 of 75
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`management.
`SPECIAL MASTER: Welcome. If you guys are overseas, thank
`you for I guess staying up very, very late today.
`So the first term that -- well, I guess maybe the first
`thing we should do is to --
`(Clarification by the reporter.)
`SPECIAL MASTER: Okay. Let's first talk about the level
`of ordinary skill in the art. Are the parties still
`disagreeing as to what that is?
`MR. CHARKOW: I believe so, Dr. Yi.
`SPECIAL MASTER: Okay. Plaintiff, do you want to go ahead
`first?
`MR. CHARKOW: Sure. So I'm going to share my screen, and
`if you could just tell me, Dr. Yi, when you can see my screen,
`that would be great.
`SPECIAL MASTER: I can see it now. Thank you.
`MR. CHARKOW: Great. All right.
`So hopefully you can also see the level of ordinary skill
`in the art slide that we have up.
`SPECIAL MASTER: Yes.
`MR. CHARKOW: And so the construction -- the proposals by
`the parties are fairly similar, but there is one what we
`consider to be major difference, and so I tried to highlight
`that for you in this slide. So on the left we have our
`construction, and you see -- and, again, they're fairly
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 5 of 75
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`similar, so I really just highlighted the main difference. And
`our construction or our view is that one of ordinary skill in
`the art -- so while you can certainly have people that are
`intelligent and knowledgeable in the field of electrical
`engineering, you know, this is more of a -- you know, one of
`ordinary skill in the art is a legal standard, right? So just
`because the person has -- a smart person can read and
`understand the patent doesn't necessarily mean that person is
`one of ordinary skill in the art.
`So with regards to that, we looked at what -- you know,
`our expert looked at what he believed to be one of ordinary
`skill in the art would be or who he believed that would be, and
`we propose two years, which I believe defendants propose as
`well, of -- so sorry. A bachelor's degree in electrical
`engineering or computer engineering I think were similar. We
`proposed two years of experience. They proposed two years of
`experience.
`Where we deviate is the part of the -- where we're
`highlighted here. So you can see on our proposal we say
`"design and development of radio frequency circuits and/or
`systems."
`So we believe that not only do you have to have an
`education to be one of ordinary skill in the art of at least a
`bachelor's degree, but -- or at least experience -- work
`experience, but that experience has to be in a very particular
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 6 of 75
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`area, particularly in the area of design and development of
`radio frequency circuits or systems. And that's because, as,
`Dr. Yi, I'm sure you're aware by now after looking at this many
`times, is that these are complicated circuits. And these
`circuits -- to really understand these circuits, you -- you
`know, again, one of ordinary skill in the art is somebody who
`has experience in the design and development of radio frequency
`circuits.
`So if you look to the defendants' proposal, the
`defendants' proposal says "radio circuit design or radio
`frequency circuit design is optional," right? You could have
`two years of experience and then you could have just experience
`in the communications systems or in signal processing or in RF
`circuit, but our view is that without that RFA circuitry that
`at least to what the patent's directed to, what the claims in
`the patent are directed to require that RF circuitry. So it
`can't be just or RF circuitry. The person of ordinary skill in
`the art has to be -- and -- it has to be and/or circuitry or
`just RF circuitry in our proposal.
`And so that's the main difference with -- between the
`parties. And, again, you -- certainly you could have a person
`who's intelligent and certainly understands this technology,
`but that is different, we believe, than the one of ordinary
`skill in the art, the legal requirement based on the patent
`specification and the claims.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 7 of 75
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`SPECIAL MASTER: Defendant?
`MR. MAYLE: Thank you, Dr. Yi. This is Ted Mayle for
`defendant. I'd like to -- can I share my screen now as well?
`Jason, can you stop?
`MR. CHARKOW: Yes.
`MR. MAYLE: Dr. Yi, are you now seeing my screen as well?
`SPECIAL MASTER: I am. Thank you.
`MR. MAYLE: Okay. First off, to respond to the comments
`from the plaintiff, these circuits are actually not very
`complicated. The claims are directed to a switch that's
`coupled to a capacitor. The switch closes and energy from the
`input system charges the capacitors, and then the switch opens
`and the capacitor may or may not discharge to some degree.
`Those are all things that people -- every engineer learns in
`undergraduate school. There's nothing particularly complicated
`about that.
`I'd like to point out on my slide that ParkerVision now
`changed its position with respect to these same patents. At
`the bottom of my slide you can see in 2015 they had a different
`expert and three IPR proceedings involving the '518 patent
`which is one of the patents asserted here and two of the
`patents that are priority patents and/or incorporated by
`reference into all of the asserted patents here. So the exact
`same specification and similar claims. And back then the
`plaintiff said that with respect to the experience requirement,
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 8 of 75
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`you know, they agreed that was a bachelor of science in EE or
`equivalent. Then they said four or five years, but they just
`said in the wireless communications industry. They did not say
`specifically in RF circuits. And the wireless communications
`industry is certainly broader and it's aligned with what the
`defendants have proposed here.
`Also I think that the resolution of this dispute such that
`if there is one isn't particularly relevant at this stage of
`the case to claim construction. Their expert actually said
`that our expert is not a POSITA. I didn't feel the need to get
`into that, but I can if you would like to, Dr. Yi.
`SPECIAL MASTER: No. That, I think, will probably be
`something that the Court will need to resolve. I'm just more
`trying to figure out exactly what the proper level of skill is
`or one of ordinary skill in the art just so that when I'm
`writing the order I know exactly what that is to the extent
`that makes a difference in any analysis.
`MR. MAYLE: Thank you. I think our positions, as far as
`claim construction, are the same under either proposal.
`SPECIAL MASTER: Okay.
`MR. MAYLE: In other words, our construction would not
`change.
`SPECIAL MASTER: Okay. Understood.
`Plaintiff's counsel, any other comments?
`MR. CHARKOW: I guess just to address the -- they put up
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 9 of 75
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`the slide with positions from 2014 with regards to a subset of
`patents. There are many more patents in this case. And I just
`want to point that out, but I think that what I said before
`covers everything.
`SPECIAL MASTER: Okay. Understood. I will think about it
`a little bit. I don't think it necessarily -- what exactly I
`come up with -- it will obviously be one of the parties'
`proposal or just something in the middle, but I don't think
`it's going to necessarily affect anything that we talk about
`today.
`MR. CHARKOW: Sorry. Dr. Yi, one thing that just came to
`mind. I just -- sorry. In terms of the simplicity of the
`circuits, these -- while having a capacitor and a switch and
`loads, you know, they're saying it may be simplistic the way
`these things operate, and how these things -- how these
`circuits interact is certainly not. So I just wanted to add
`that. And that's all, Dr. Yi. Thank you.
`SPECIAL MASTER: No. I totally understand. I took,
`obviously, a lot of circuit classes myself, and definitely it
`can be complicated depending on how they are used.
`If there's nothing else on this point, let's go to the
`first term which is a "low impedance load."
`Defendant, I guess you wanted to argue this one. So,
`defendants' counsel, if you want to just go ahead.
`MR. MAYLE: Thank you, Dr. Yi. I will attempt to share my
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 10 of 75
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`screen once more. You have our slides as well.
`SPECIAL MASTER: Yes. I got them. Thank you.
`MR. MAYLE: And so I'd like to jump to Slide 3. Hold on
`one second.
`So we understand that you preliminaried out the plain and
`ordinary meaning. We'd like you to reconsider that.
`And turning to Slide 4, the Supreme Court instructs us in
`Nautilus to look to the intrinsic evidence, the specification
`claims and prosecution to see if the claims are reasonably
`certain in scope, and here we think that they are not.
`First off, there's basically a definition in the
`specification of low impedance load, quote: One that is
`significant relative to the output drive impedance of the
`system for a given output frequency.
`Now, unpacking that, there's kind of three levels of
`uncertainty here. First, the specification is just describing
`the subjective term of degree "low" with another subjective
`term of degree "significant." That just kind of shifts the
`uncertainty. Doesn't provide any objective boundary.
`And a second level of uncertainty is that not only does
`this impedance have to be significant, but it has to be
`relative to some other impedance that's not specified. Doesn't
`say -- it could have said, for example, that the load has to be
`five times less the impedance of the source impedance. It just
`says it has to be significant relative to it and doesn't define
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 11 of 75
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`what that means.
`And the third level of uncertainty is that impedance, as
`the specification expressly recognized, is a function of
`frequency, and the frequencies can change. So that means that
`the value of the impedance of the load will change based on its
`operating condition. Sometimes it could be low, if you can
`figure out what the word "low" means, and sometimes it could be
`not low.
`And turning to Slide 5, ParkerVision and its expert mainly
`focuses on these two examples from the specification from
`Figure 78 and Figure 82, and I see it's in their slideshow as
`well.
`And this is what they focused on the briefing. On the
`left you see in Figure 78 there was a massive one million, one
`megaohm load which the specification called high, and
`ParkerVision's expert put the red box around it.
`And on the other side in the Figure 82 there was a, you
`know, kind of three orders of magnitude smaller, 2,000 ohm
`load, which the specification gave as one example of low.
`But, again, in Nautilus the concern is about when there's
`a zone of uncertainty. And they're -- here is a massive zone
`of uncertainty between these two extremes. And ParkerVision
`acknowledges, and its expert, that in the context of this
`patent, it's a binary choice is the phrase that they used. We
`agree with that. The impedance either has to be low inside of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 12 of 75
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`the claim or high and then outside of the claim. And when you
`have a binary choice like that and there's no objective
`boundary between these widely disparate examples, the claim is
`just indefinite.
`SPECIAL MASTER: So, counsel, two things I guess that kind
`of prevent me from adopting your construction that I'd like to
`hear your thoughts on. So first of all, I've been an engineer
`for -- if you want to count even the time I was in graduate
`school and while I was working for 13 years, and I graduated
`before the -- with my undergrad before the priority date of
`these patents, I feel like I -- you know, I can't point to a
`specific time, but I'm virtually certain that I've heard the
`word low impedance, high impedance, high current, low current,
`high voltage, low voltage, things like that. That's what
`engineers say to each other. You know, that's how we're
`taught. You know, when you're designing a circuit, that's what
`you say. Why wouldn't one of ordinary skill understand what
`that is? I mean, somebody with a bachelor's and, you know,
`couple years of experience I feel like a student might
`understand -- you know, undergrad student might understand
`that. Why wouldn't one of ordinary skill understand that?
`MR. MAYLE: Thank you, Dr. Yi. That's a great point.
`The issue is not that the person of ordinary skill in the
`art don't understand these words or that they don't even
`understand the whole phrase. And, you know, of course they
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 13 of 75
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`might have heard these words, but in the context of when you
`claim these words in a patent and you -- and the patent
`drafters choose to use a relative term like "low," then the
`case law and the law requires that there need to be some
`objective boundary. They didn't need to necessarily specify
`with mathematical precision like a number, the ohms in the
`claim, but there needs to be some sort of objective boundary
`somewhere in the specification, if not the claims or the
`prosecution history, and in here there's not. ParkerVision
`tried as hard as they could. They pointed to these examples.
`And I'm going to show some other things that they said, but
`this doesn't satisfy the case law. And we've cited cases in
`our briefs that the other side did not address at all where
`terms like this were indefinite and they did have to do with
`voltage and things of this nature.
`And I'll get to the cases they cited in their surreply,
`but even those cases do not support an unspecified plain and
`ordinary meaning. At the minimum, there should be some sort of
`a construction with some sort of objective boundary. Just
`leaving it as plain and ordinary meaning really does not, in
`our view, resolve anything and would not be warranted, but I
`understand that's your preliminary construction.
`SPECIAL MASTER: So maybe you want to go through the rest
`of your slides. I'll hold off my second question until you
`kind of finish that just so that I can at least make sure that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`I'm customizing it in case there's anything in your slides that
`I want to kind of alter my questions for. So if you can please
`go on, that'd be great.
`MR. MAYLE: Thank you, Dr. Yi.
`So this was the example. There's a case we have on
`Slide 6. There was other cases in our brief, but we thought
`this was one particularly apt for your consideration. Because
`of the previous slide where there's really just the two
`examples in the specification, the million ohm load which was
`high and the 2,000 ohm load.
`And this is from the Central District of California. It's
`after Nautilus. So it should be considered persuasive. It was
`using the correct legal standard reasonably certain. And there
`the claim term was "relatively low vehicle torque demand." And
`the Court, you know, tried to construe that term and looked to
`the specification. And there was -- like here, there was
`examples that the extremely high and low ends of the spectrum,
`but there was nothing to help define the boundaries, the
`objective boundaries. The legal standard for claim terms like
`this is objective boundaries. The standard's not that a person
`of ordinary skill in the art has heard this phrase or every
`word in the phrase or knows what impedance is or in some other
`context has used low. The legal standard is objective
`boundaries and you have to look to intrinsic evidence for that.
`Moving to Slide 7 -- by the way, ParkerVision advocates
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 15 of 75
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`plain and ordinary meaning, but they're not even using the
`plain and ordinary meaning in all of their arguments against
`indefiniteness.
`ParkerVision frames the issue as -- tries to link low
`impedance load with discharging of the capacitor, and in our
`briefing we said, okay. That's fine. Every capacitor will
`discharge unless you have a, you know, theoretically possible
`infinite impedance. The question is, how much discharge to
`cross over from high to low? Remember it's a binary choice,
`according to ParkerVision. And ParkerVision says, as we show
`in this screen here, that the specification says non-negligible
`amounts of energy. As long as you have a non-negligible amount
`of energy, whatever that is, I guess anything slightly above
`zero, then it's a low impedance load. And our answer to that
`is on the next slide.
`That contradicts -- expressly contradicts the
`specification and leads to nonsensical results in other claims
`in this patent family.
`On the slide I'm showing a screenshot from the patent
`6,061,551 which was ParkerVision's seminal patent. This is the
`first one they got. All the patents-in-suit are either
`incorporating it by reference or claiming priority to it.
`So they went out and told the public in their very first
`patent and they actually claimed -- you see a method on the
`left of the slide which has a step for transferring
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`non-negligible amounts of energy, and on the right side it says
`a non-negligible amount of energy is sufficient to drive loads,
`including high impedance loads. That directly contradicts
`their main argument that this non-negligible amount of energy
`discharge somehow provides a boundary on low impedance. It
`does not.
`If their argument was accepted, then Claim 1 of this --
`sorry -- Claim 68 of this patent would be nonsensical --
`facially nonsensical, and the Federal Circuit says that that
`cannot be correct.
`SPECIAL MASTER: If I can jump in. Plaintiff's counsel,
`can you address this point?
`MR. CHARKOW: So, Dr. Yi, Stephanie Mandir will be arguing
`this term.
`So, Stephanie, please go ahead.
`MS. MANDIR: Yes, Dr. Yi. Would you specifically like me
`to address the point of the claim or go through my entire
`argument for low impedance?
`SPECIAL MASTER: No. Just this particular slide if you
`don't mind.
`MS. MANDIR: Yeah. So this claim says transferring
`non-negligible amounts of energy from the carrier signal which
`is not in the claim at issue -- claims at issue here. And
`particularly we're saying that the definition of -- or the
`construction of a low impedance load is whether it provides a
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 17 of 75
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`path for discharge of non-negligible amounts of energy from the
`storage capacitor which is different from the claim language
`seen on the screen right now.
`SPECIAL MASTER: So if I understand defendants' point
`correctly, and, defendants' counsel, please correct me if I'm
`wrong, you're basically saying that Claim 68 claims both high
`impedance and low impedance load with energy sampling system
`which transfers non-negligible amounts of energy, and,
`therefore, it's claiming both, and that doesn't really make
`sense. Does that kind of summarize your point correctly?
`MR. MAYLE: Well, we think the claim does make sense under
`our -- the only way it doesn't make sense if you -- is if you
`would adopt ParkerVision's construction or ParkerVision's
`argument that if I go to the previous slide, remember, they --
`the question here is, how much energy needs to be discharged to
`call the impedance low? And ParkerVision's answer is that, oh,
`just non-negligible. That's the answer. So that's their
`argument. And our response to that argument -- this is from
`their surreply -- is on Slide 8. That can't be correct because
`if non-negligible -- if only non-negligible amounts of energy
`are linked to low impedance load, and that's the definition or
`the key thing of a low impedance load, that would contradict
`this specification which is part of the specification of all
`the patents-in-suit, and it would make this claim nonsensical
`because a high impedance load can also be driven by
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 18 of 75
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`non-negligible amounts of energy, as the claim states. That's
`our position. Does that clarify?
`SPECIAL MASTER: Yeah. I think I probably didn't express
`myself correctly, but I think we're on the same page.
`So, plaintiff's counsel, did you have a response for that?
`MS. MANDIR: Yes. I would just like to add that this
`claim is not limited to a method that is performed only in an
`energy transfer system. And that is why Claim 68 recites
`drives loads, plural, and refers to high and low impedance
`loads. And the claim makes no mention of where the energy's
`going after being sampled from the carrier signal. And so we
`think that this claim is -- can be distinguishable from the
`claims at issue here.
`SPECIAL MASTER: Defendants' counsel, any response?
`MR. MAYLE: Yes. That's no distinction. The fact that
`this claim is not identical to the claims in this case is
`completely irrelevant to this issue of low impedance load.
`Again, on the previous slide ParkerVision's argument, other
`than those two examples that we talked about before with the
`million ohm load, their main argument is that, oh, if you want
`to know what a low impedance load is, it means that it will be
`driven by non-negligible amounts of energy. That's their
`argument. But that contradicts the specification and it
`renders claims nonsensical. That cannot be correct. It
`doesn't matter that these claims are different. The issue is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 19 of 75
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`the same.
`SPECIAL MASTER: So, counsel, why couldn't this -- it
`sounds like plaintiff's counsel at least is partially arguing
`the point that these claims are just totally different and is
`not claiming the same thing, so, therefore, there's no
`contradiction just because they're claiming a different type of
`system.
`MR. MAYLE: Well, they're not. Let's look at Claim 1.
`It's a method claim for down-converting a carrier signal to a
`low frequency signal just like all the claims in this case.
`The first step is to receive the carrier signal, okay? An
`antenna I guess. It says transferring non-negligible amounts
`of energy. That would be the switch. And it's the aliasing
`rate which is in the claims of this case which means that the
`switch is operating at less than twice the frequency of the
`carrier signal. And then the Step 3, it's a simple claim.
`Generating a lower frequency signal from the transferred
`energy, for example, the base band.
`That is exactly what we're talking about in this case, and
`the dependent claim proves beyond any debate, really, that
`non-negligible amounts of energy is not linked only to low
`impedance load. It's also high impedance load. And that is
`the issue that they've raised in their surreply. That is the
`exact issue, and their argument cannot be credited because it
`would contradict the specification and render these claims
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 20 of 75
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`nonsense.
`SPECIAL MASTER: Plaintiff's counsel?
`MR. CHARKOW: Sorry, Dr. Yi. This is Jason Charkow. If I
`could just respond.
`First of all, I think that Mr. Mayle is ignoring our --
`all our arguments and saying this is the only argument we have.
`So first off I just want to clarify that that is not true.
`Number two is, as Ms. Mandir stated, you know, if you --
`there's a lot missing in between Claim 1 and 68. They give you
`one in claim -- they show Claim 1 and 68, but Claim 68 -- just
`let's go back through this. Claim 68 depends on Claim 66.
`Claim 66 depends on Claim 64, and then Claim 64 depends on
`Claim 61.
`So what I'm saying is it's not just as simple as going
`from Claim 1 to all the way down to Claim 68 and just skipping
`all of these other claims.
`As Ms. Mandir also -- as Ms. Mandir pointed out that these
`claims are different, right? There is no -- you know, there's
`no storage element in Claim 1. This is talking receiving a
`carrier signal and transferring non-negligible amounts of
`energy from the carrier signal. The claims are in the -- even
`under both parties' constructions I believe it talks about,
`well, their construction is non-negligible amounts of energy
`from a -- their definition of storage element is they're
`focused on carrier signal which is not in the specification of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 21 of 75
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`the patents-in-suit. Again, the '551 is -- I don't believe is
`one of the patents-in-suit here.
`And so what Mr. Mayle is doing is he's kind of ignoring
`all of the other language before Claim 68, other than Claim 1,
`that makes this system different and -- you know, different
`than the claims we're dealing with. And so when you're talking
`about non-negligible amounts of energy, you have to put it in
`context, and that's what Mr. Mayle is not doing. That's what
`Ms. Mandir has expressed. And I think, Dr. Yi, that's what
`you're expressing as well.
`SPECIAL MASTER: Defense counsel, any other comments on
`this point? Or feel free to move on.
`MR. MAYLE: Yes. Just real quickly. First "Mayle." No
`offense taken.
`MR. CHARKOW: Sorry.
`MR. MAYLE: We're not trying to hide the intermediate
`claims. I'll be happy to put it on the screen later or one of
`my co-counsels could pull it up.
`It really has -- that has nothing to do with this issue.
`You can just read these claims right here on the screen. 68
`depends ultimately from 1. We'll put up the other claims
`later. There's nothing to hide there. They didn't really try
`to, you know, explain what those claims say anyway.
`And plaintiff's counsel just started talking -- most of
`his comments were about the second term, the storage module.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 6:20-cv-00945-ADA Document 47 Filed 10/31/21 Page 22 of 75
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`That