Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 1 of 40
`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 1 of 40
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`EXHIBIT 4
`EXHIBIT 4
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 2 of 40
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`AIRE TECHNOLOGY LTD.
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` Plaintiff,
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`vs.
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`APPLE INC.
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`Defendant.
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`No. 6:21-cv-01101
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`Jury Trial Demanded
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`DECLARATION OF DR. MICHAEL CALOYANNIDES
`REGARDING CLAIM CONSTRUCTION FOR
`U.S. PATENT NO. 8,174,360
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 3 of 40
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`I, Michael Caloyannides, Ph.D., hereby declare and state as follows:
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`1.
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`I have been retained by counsel for Apple Inc. (“Apple”) to prepare this
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`declaration addressing the proper constructions of certain claim terms. I provide this declaration
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`in support of Defendants’1 claim construction brief.
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`I.
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`QUALIFICATIONS AND EXPERIENCE
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`2.
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`I received my Doctor of Philosophy (Ph.D.) Degree in Electrical Engineering,
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`Applied Mathematics, and Philosophy from the California Institute of Technology (“Caltech”) in
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`1972. I also earned a Master’s of Science Degree in Electrical Engineering in 1968 and a
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`Bachelor’s of Science Degree in 1967 with the highest honors, from the same. During the latter
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`part of these studies, I taught graduate school classes in signal processing at California State
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`University in Pomona, CA.
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`3.
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`Upon receiving my Ph.D., I was hired at the top technical level (Member of
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`Technical Staff Level 4) by Rockwell Int’l Corp. (subsequently acquired by Boeing Corp) in
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`Anaheim, CA. In this role, I led efforts that included the following: (1) Signal processing for the
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`acoustic detection of cruise missiles; (2) Missile Guidance signal processing using terrain
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`mapping, (3) High Speed digital modem design (an effort for which I received a U.S. Patent
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`(US4032762A); (4) Analysis and Design of a complete SIGINT (Signals Intelligence) system for
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`a then U.S. ally nation, (5), Covert Communications signaling means, GPS signal processing and
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`receiver design; (6) Analysis and Design of a global satellite communications system called
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`“Ellipso” that was Boeing’s planned alternative to the Iridium satellite system; (7) Airborne
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`1 I understand that Google LLC (“Google”) is a Defendant in separate litigation against Aire Technology Ltd. and
`has formed a joint defense group with Apple. For purposes of this declaration I will refer to Apple and Google,
`collectively, collectively as “Defendants.”
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`Direction Finding systems for the U.S. Department of Defense, and multiple other signal
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`processing efforts.
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`4.
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`After 14 years in that role, I was hired as a Senior Scientist for an Agency of the
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`U.S. Intelligence Community. In that role, I oversaw the entire spectrum of developments by the
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`U.S. in the telecommunications signal processing areas. I also personally developed a classified
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`system for wireless covert communication. Additionally, I was awarded the coveted Scientist of
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`the Year Award, as well as five separate Exceptional Accomplishment Awards, and the
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`Meritorious Officer Award, all for various classified efforts in telecommunications and signal
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`processing. While serving in that role for the U.S. Government I created and delivered classified
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`courses in evolving communications and signal processing technologies. These courses were
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`attended by many hundreds of employees within the U.S. Intelligence Community. During part
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`of that time, I was also a paid consultant to NASA/NIAC tasked with evaluating the merits of
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`technical proposals in signal processing that were being submitted to NASA for funding.
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`5.
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`After almost 15 years in the above role for the U.S. Government, I returned to the
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`commercial sector as a senior scientist at Boeing Aircraft, then as chief scientist at Ideal
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`Innovations, Corp (a contractor to the U.S. Department of Defense during the 1st Gulf War). I
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`was then hired as Senior Fellow at TASC Corp (then a division of Northrop Grumman Corp) in
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`support of numerous classified efforts in telecommunications and signal processing.
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`6.
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`During roughly the same time period, I was also an Adjunct Faculty member at
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`George Washington University’s Department of Computer Science, followed by a few years as
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`adjunct faculty at Johns Hopkins University’s Whiting School of Engineering. I taught Graduate
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`School classes in digital signal processing and security.
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`7.
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`While in the Government, and in the specific discipline of RFID devices, I
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`designed and oversaw the development of an RFID-like device that was uniquely capable in that,
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`when illuminated by special RF energy, it would reflect back a signal that relayed the ambient
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`audio at the location of that custom-RFID device.
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`8.
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`I have published two textbooks, as the sole author, on digital signal processing
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`and security; one of those textbooks is in its second edition. Additionally, I was the monthly
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`columnist for the IEEE Journal “Security And Privacy” during its entire first year of publication.
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`I have published numerous technical papers in peer reviewed journals, such as a seminal paper
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`titled “Encryption” that appeared in two successive issues of the IEEE flagship magazine
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`“Spectrum”. Additionally, I have given countless invited presentations on RF
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`telecommunications to audiences including NASA’s Jet Propulsion Laboratory, the Nuclear
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`Research Center in Greece (“Demokritos”), and to technology business leaders in Singapore,
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`Dubai, Thailand, and elsewhere.
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`9.
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`Further to all of the foregoing, I designed and oversaw the development of a
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`unique radio frequency system and apparatus for locating buried earthquake victims who were
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`still alive by detecting their heartbeat under layers of rubble.
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`10.
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`In addition to the technological advances in wireless signal processing
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`summarized above, I have chaired an FCC Panel on cellular networks performance reporting
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`requirements and required cellular carriers to report to the US government all substantive
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`outages in service. That panel included top management representatives from all US cellular
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`carriers.
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`II. MY ASSIGNMENT
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`11.
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`I have been retained as an expert on behalf of Apple in the above captioned
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`litigation. I am being compensated for my time at my usual consulting rate of $300 per hour,
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 6 of 40
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`plus actual expenses. No part of my compensation depends on the outcome of this case or on the
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`opinions that I render.
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`12.
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`I have been asked to provide my opinion on how certain claim terms appearing in
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`claims of U.S. Patent No. 8,174,360 (“the ’360 patent”) would have been understood by a person
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`of ordinary skill in the art (“POSITA”) in the field of this patent, which the patent itself identifies
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`as “the use of communications elements automatically setting up a data communication in
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`intelligence devices designed for carrying out a data transmission…” (’360 patent at 1:7-10), in
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`the 2003-2004 time frame based on my technical understanding of those terms, in light of the
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`intrinsic and extrinsic evidence.
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`13.
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`Specifically, I have been asked to provide such opinions for the term of the ’360
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`patent: “measuring device for monitoring a property of the transmission oscillator which outputs
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`a control signal when ascertaining a change of the monitored property, the monitored property of
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`the transmission oscillator includes the frequency or impedance of the transmission oscillator in
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`resonance” (claim 1).
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`III.
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`SUMMARY OF OPINIONS
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`14.
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`It is my opinion that a POSITA would have understood that “a measuring device
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`for monitoring a property of the transmission oscillator which outputs a control signal when
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`ascertaining a change of the monitored property” is a means-plus-function term because a
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`POSITA would have recognized that a “measuring device” does not have a sufficiently definite
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`meaning as the name for structure. Moreover, a POSITA, reading the specification of the ’360
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`patent, would have been unable to identify in the specification adequate structure corresponding
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`to the claimed functions of this term. I understand that this renders asserted claims 1 and 15 of
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`the ’360 patent, along with the asserted dependent claims, indefinite.
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`15.
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`I base my expert opinions in this declaration on my expertise derived from my
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`experience in telecommunications and related fields, as described in Section II above, and my
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`review and analysis of the Asserted Patents, applications, and file histories of the Asserted
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`Patents, as well as any other material cited herein.
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`16.
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`I reserve the right to supplement or amend this declaration as necessary or
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`appropriate in view of information obtained through discovery or through other proper means
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`during the course of this litigation, and should I be asked to provide testimony in this action, I
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`may use as exhibits various documents produced in this litigation that refer to or relate to matters
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`discussed in this declaration. In addition, I reserve the right to use this declaration, its exhibits,
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`and documents and information identified herein in support of or as a summary of any testimony
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`I may give. I also may use demonstrative devices, including audio or visual aids and schematic
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`representations, animated or otherwise, enlargements of actual exhibits, and other information to
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`convey my opinions or illustrate the technology at issue or any other technology such as that
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`described in documents referred to herein.
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`17.
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`All emphases (such as bolding, underlining, or italics) in quotations herein are
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`added by me, unless otherwise stated.
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`IV.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`18.
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`Based on my knowledge and experience in the field and my review of the ’360
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`patent and its file history, and my first-hand knowledge of working with RFID systems and
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`applications, including concept, design, and implementation, at the time of the patent filing in
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`July 2003, I believe a person of ordinary skill in the art (“POSITA”) at the time of the earliest
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`possible priority date of the ’360 patent would have had a Bachelor’s degree in computer
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`science, computer engineering, electrical engineering or a similar field, with 2-5 years of
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`experience in wireless communications, short range communications or RFID technologies.
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`Additional education might substitute for some of the experience, and substantial experience
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`might substitute for some of the educational background. I understand that a person of ordinary
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`skill in the art is not a specific real individual, but rather a hypothetical individual having these
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`qualities.
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`V.
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`LEGAL STANDARDS
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`19.
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`I am not an attorney or a patent agent and offer no opinions on the law. I have,
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`however, been informed by counsel regarding various legal standards that may apply to this case,
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`and I have applied those standards where necessary in arriving at my conclusions.
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`A. Claim Construction Generally
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`20.
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`I have been informed of the following: patent claims are construed from the
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`viewpoint of a POSITA at the time of the alleged invention. This hypothetical POSITA is
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`considered to have the normal skills and knowledge of a person in the applicable technical field.
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`The factors that may be considered in determining the level of ordinary skill in the art include:
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`(1) the education level of the inventor; (2) the types of problems encountered in the art; (3) the
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`prior art solutions to those problems; (4) the rapidity with which innovations are made; (5) the
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`sophistication of the technology; and (6) the education level of active workers in the field.
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`21.
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`I understand that the most important evidence to consider in construing the claims
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`is the “intrinsic” evidence, which I understand includes the claim language, the patent
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`specification, and the prosecution history, including inter partes review (“IPR”) and other post-
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`grant proceedings with the United States Patent and Trademark Office’s (“USPTO”) Patent Trial
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`and Appeal Board (“PTAB”).
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`22.
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`I further understand that the POSITA must read the claim terms in the context of
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`the claim itself, as well as in the context of the entire patent specification. I understand that in
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`the specification and/or prosecution history, the patentee may specifically define a claim term in
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`a way that differs from the plain and ordinary meaning of the term. I understand that the
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`prosecution history of the patent is a record of the proceedings before the USPTO and may
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`contain explicit representations or definitions made during prosecution that affect the scope of
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`the patent claims. I understand that an applicant may, during the course of prosecuting the patent
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`application, limit the scope of the claims to overcome prior art or to overcome an examiner’s
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`rejection, by clearly and unambiguously arguing to overcome or distinguish a prior art reference
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`or by clearly and unambiguously disclaiming claim coverage.
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`23.
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`In interpreting the meaning of the claim language, I understand that a POSITA
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`may also consider “extrinsic” evidence, which consists of all evidence external to the patent and
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`prosecution history, including expert and inventor testimony, positions taken by the patent owner
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`in other litigations, dictionaries, and learned treatises. I understand that extrinsic evidence may
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`not be relied on if it contradicts or varies the meaning of claim language provided by the intrinsic
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`evidence, particularly if the applicant has explicitly defined a term in the intrinsic record.
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`24.
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`I also understand that a patent claim may not, like a nose of wax, be twisted one
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`way to avoid invalidity and another to find infringement. That is, I understand that a claim of a
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`patent must be read the same way for validity as for infringement.
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`B. 35 U.S.C. § 112 ¶ 6
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`25.
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`I understand that Section 112 of the Patent Laws requires that a patent claim
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`particularly point out and distinctly claim the subject matter that the applicant regards as his or
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`her invention. I understand that a patent claim is invalid for indefiniteness if it fails to inform,
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`with reasonable certainty, a person of ordinary skill in the art about the scope and bounds of the
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`alleged invention claimed. I understand that a claim is indefinite if its scope is not clear enough
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`that a POSITA could have determined with reasonable certainty whether a particular
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`embodiment infringes the claim. I also understand that when considering whether a claim is
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`indefinite, a POSITA may consider both the intrinsic and extrinsic record.
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`26.
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`I understand that 35 U.S.C. § 112 ¶ 6 states the following:
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`An element in a claim for a combination may be expressed as a
`means or step for performing a specified function without the
`recital of structure, material, or acts in support thereof, and such
`claim shall be construed to cover the corresponding structure,
`material, or acts described in the specification and equivalents
`thereof.
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`27.
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`I understand that the use of the word “means” in a claim term creates a
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`presumption that 35 U.S.C. § 112, ¶ 6 applies to that term. Similarly, I understand that if a claim
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`term does not use the word “means,” there is a rebuttable presumption that 35 U.S.C. § 112, ¶ 6
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`does not apply to that claim term. I understand that when a claim term lacks the word “means,”
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`the presumption can be overcome and § 112, ¶ 6 will apply if the challenger demonstrates that
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`the claim term fails to recite sufficiently definite structure or else recites function without
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`reciting sufficient structure for performing that function.
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`28.
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`I am informed that generic terms such as “mechanism,” “element,” “device,” and
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`other so-call “nonce” words that reflect nothing more than verbal constructs may be used in a
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`claim in a manner that is tantamount to using the word “means” because they typically do not
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`connote sufficiently definite structure and therefore may invoke § 112, ¶ 6.
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`29.
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`I understand that construing a claim term governed by 35 U.S.C. § 112, ¶ 6 is a
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`two-step process. The first step is to identify the claimed function. The second step is to
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`determine what structure, if any, disclosed in the specification corresponds to the claimed
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`function. I understand that where there are multiple claimed functions, as we have here, the
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`specification must disclose adequate corresponding structure to perform all of the claimed
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`functions. I understand that, to be corresponding, the structure in the specification must be
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`clearly linked to the claimed function(s). If the specification fails to disclose adequate
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`corresponding structure, I understand that the claim is indefinite.
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`30.
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`I understand that, for a means-plus-function claim term in which the disclosed
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`structure is a computer or microprocessor programmed to carry out an algorithm, the disclosed
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`structure is not the general-purpose computer, but rather the special purpose computer
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`programmed to perform the disclosed algorithm.
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`31.
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`I understand that the sufficiency of the disclosure of an algorithm must be judged
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`in light of what one of ordinary skill in the art would have understood the disclosure to impart. If
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`a POSITA cannot perceive the metes and bounds of the algorithm based on the specification,
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`then the claim is indefinite. The specification can express the algorithm in any understandable
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`manner including: a mathematical formula, in prose, as a flow chart, as a step-by-step
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`explanation, or in any other manner that provides sufficient structure.
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`32.
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`I understand that a specification passage that merely repeats or restates a claimed
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`function does not disclose structure corresponding to that function.
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`VI.
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`TECHNOLOGY BACKGROUND
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`33.
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`The ’360 patent is directed to a communication component for automatically
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`setting up a data connection between two devices using minimal energy consumption. ’360
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`patent, Abstract, 2:6-9. Specifically, the ’360 patent states that conventionally known
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`technology for setting up data connections between intelligent devices “causes a relatively high
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`constant power consumption,” id., 1:28-36. The ’360 patent states that it solves this power
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`consumption problem by emitting search signals in a communication mode only “when a
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`property change in a transmission oscillator. . . has been detected by a means of a measuring
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`device.” Id. at 2:11-15. In particular, the ’360 patent recites a switching element for connecting
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`and disconnecting the communication element from an energy source in response to a control
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`signal from the measuring device. E.g., id., cl. 1.
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`34.
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`According to the ’360 patent, “the inventive communication apparatus has a coil
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`for emitting search signals.” ’360 patent at 2:11-13. This “coil” is connected to a capacitor,
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`thereby forming a “transmission oscillator.” ’360 patent at 5:9-11. The capacitor (C) and coil
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`(which is an inductor (L)), together, form what is known as a “resonant circuit,” or an “LC
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`circuit.” An LC circuit is resonant, or “tuned,” by design, to a particular frequency.
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`35.
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`An LC circuit in a powered oscillator device emits electromagnetic signals,
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`typically in the form of sinusoidal waves, meaning a waveform with a smooth periodic function.
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`An example of a sinusoidal wave is shown further below. For simplicity, I will refer to this
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`sinusoidal wave as simply a wave for purposes of this declaration.
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`36.
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`Sinusoidal waves can be fully described by certain parameters that can be
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`observed and measured: amplitude, wavelength, phase, and frequency, each of which is depicted
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`below. Amplitude refers to the maximum extent of a vibration or oscillation of a wave,
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`measured from the position of equilibrium. Wavelength refers to the distance between
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`successive crests of a wave and is directly related to frequency by a simple proportionality
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`constant. Phase is the relative position within one complete oscillation referenced to a
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`postulated reference point in time, and is expressed in degrees (with one complete cycle being
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`360 degrees of course). Frequency refers to the number of oscillations (or cycles) of a wave
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`within a given time period (such as, per second).
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`37.
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`Another important concept in studying waves is phase shift, or phase change. As
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`shown below, when two waves of the same frequency differ in regard to the time that each
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`started, and are shown on the same graph during the same time period, the resulting graph
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`demonstrates the two waves having a “phase shift” with respect to each other. A phase shift is
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`measurable when two waves of the same frequency, measured at the same time, do not overlap
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`with one another. Some common basic electrical circuit components, such as inductors and
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`capacitors, can change the phase of the signal input to them on their output.
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`38.
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`Separately, most any network element (such as a simple resistor, inductor,
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`capacitor, or most complex electrical circuit’s input or output port) exhibit a property called
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`impedance. In the simplest case of a simple resistor, that impedance is simply its resistance to
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`the flow of electricity; a home electrical heater is basically a resistor that generates heat when
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`electrical power is applied to it. In more complex circuits, such as LC circuits, the “impedance”
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`is a more complex quantity and it depends, among others, on the frequency of the signals applied
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`to such circuits.
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`39.
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`Thus, as explained above, frequency, phase, and impedance are separate and
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`distinct properties that can be observed directly or indirectly in signals and circuits. Specifically,
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`frequency is a property of a sinusoidal wave whereas phase is most often (but not always) used
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`to compare the degree to which two concurrent sine waves having the same frequency are time-
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`shifted with respect to each other.
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`VII. “MEASURING DEVICE FOR MONITORING A PROPERTY OF THE
`TRANSMISSION OSCILLATOR WHICH OUTPUTS A CONTROL SIGNAL
`WHEN ASCERTAINING A CHANGE OF THE MONITORED PROPERTY, THE
`MONITORED PROPERTY OF THE TRANSMISSION OSCILLATOR
`INCLUDES THE FREQUENCY OR IMPEDANCE OF THE TRANSMISSION
`OSCILLATOR IN RESONANCE” (CLAIM 1)
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`Aire Technology Ltd.’s Proposed
`Construction
`No construction necessary or plain and
`ordinary meaning
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`Apple’s Proposed Construction
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`A means-plus-function term subject to §112,
`¶ 6.
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`Function:
`Monitoring a property of the transmission
`oscillator, and outputting a control signal
`when ascertaining a change of the monitored
`property, wherein the monitored property of
`the
`transmission oscillator
`includes
`the
`frequency or impedance of the transmission
`oscillator in resonance
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`Structure: Indefinite
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`40.
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`Asserted claim 1 of the ’360 patent contains the term “a measuring device for
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`monitoring a property of the transmission oscillator which outputs a control signal when
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`ascertaining a change of the monitored property, the monitored property of the transmission
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`oscillator includes the frequency or impedance of the transmission oscillator in resonance.” This
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`term is written in the form of a device that performs a function, and thus I understand that this
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`may be a means-plus-function limitation, if the claim term does not recite sufficiently definite
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`structure. However, I understand that, because the term in claim 1 does not use the word
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`“means,” there is a rebuttable presumption that it is not subject to § 112, ¶ 6. I have also applied
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`that presumption in rendering my opinion.
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`41.
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`I have reviewed claim 1 of the ’360 patent and have determined that the functions
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`performed by the “measuring device” are “monitoring a property of the transmission oscillator,
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`and outputting a control signal when ascertaining a change of the monitored property, wherein
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`the monitored property of the transmission oscillator includes the frequency or impedance of the
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`transmission oscillator in resonance.”
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`A.
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`The Claim Terms are Means-Plus-Function Limitations Because “Measuring
`Device” Does Not Recite Sufficiently Definite Structure
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`1.
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`This Claim Term Does Not Recite Sufficiently Definite Structure
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`42.
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`A POSITA would have understood that the term “measuring device” does not
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`disclose or describe any specific structure or class of structures.
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`43.
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`To a POSITA, the term “device” as used in claim 1 does not provide any
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`disclosure of structure.
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`44.
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`The addition of “measuring” to the term “device” would not have disclosed to a
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`POSITA any indication of structure, let alone sufficiently definite structure for performing the
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`function recited, but instead merely summarizes the function of this claim term. A POSITA
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`would not have recognized “measuring device” as a product or class of products.
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`45.
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`Claim 1’s recitation that the “measuring device for monitoring a property of the
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`transmission oscillator…” does not provide structure to the “measuring device.” From this
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`language, a POSITA would have inferred that there is either a physical coupling or logical
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`coupling (direct or indirect) between the “device” and the transmission oscillator. However,
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`such requirement does not provide any more certainty to the structure of “measuring device”
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`itself.
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`2.
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`The Specification Fails To Demonstrate That “Measuring Device”
`Has Sufficiently Definite Structure
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`46.
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`I also understand that I must turn to the specification to determine if the written
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`description imparts any structural significance to the term “measuring device.” In my opinion,
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`the specification does not. A POSITA looking to the ’360 patent’s specification would not have
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`found any description providing a sufficiently definite structure for what a “measuring device”
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`is.
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`47.
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`In particular, I have reviewed the ’360 patent’s specification and it contains no
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`definition or explanation of the structure of the “measuring device.”
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 17 of 40
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`48.
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`Figure 1, reproduced below, is described as showing “the structure and
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`arrangement of intelligent devices designed for automatic data connection set-up.” ’360 patent at
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`3:1-2.
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`49.
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`Figure 2 reproduced below, is described as showing “a simplified equivalent
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`circuit diagram of a communication apparatus.” Id. at 3:3-4. For example, “the measuring
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`device 14, 24 is connected to the coil 13, 12, 33,” provides no meaningful structural context. Id.,
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`at 4:12-13. The ’360 patent explains that “the components of the measuring device 14, 24 can be
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`realized discretely, as circuits or in the form of software programs.” ’360 patent at 4:66-5:1.
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`Figures 1 and 2 do include a box representing the “measuring device” (outlined in red in the
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`Figures above). However, these are proverbial “black boxes,” that do not connote an actual
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`structure or class of structure. Indeed, any “circuits” or “software” could be box 14, 24.
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 18 of 40
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`50.
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`Thus, these figures, and the accompanying description, fail to describe a
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`sufficiently definite structure for the claim terms at issue.
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`51.
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`Elements 50, 51, 52, and 47, depicted above, do not recite structures sufficient to
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`perform the claimed function. Specifically, element 50 is the “transmission oscillator”
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`(comprising a coil 13, 23 and a capacitor 48). ’360 patent 5:9-3. A coil and capacitor connected
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`together do not oscillate and do not transmit anything unless they are part of an electronic circuit
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`that provides electrical energy to them, directly or indirectly. The specification further clarifies
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`that “[i]n parallel with the transmission oscillator 50 but behind the switch 47 with respect to the
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`transmission oscillator 50, a further capacitor 51 as well as a resistor 52 can be disposed.” Id. at
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 19 of 40
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`5:13-16. The recitation of a transmission oscillator, a switch, capacitors and a resistor do not
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`impart structure to the “measuring device” sufficient to perform the claimed functions.
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`52.
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`Similarly, the recitation of a “measuring unit” in connection with Figure 2 does
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`
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`not recite structure sufficient to perform the claimed function. The specification states that “[t]he
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`measuring unit 46 is expediently likewise equipped with a certain intelligence and designed to
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`execute software program routines.” ’360 patent at 5:1-3. As above, the ’360 patent’s
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`specification does not disclose an algorithm and any “software” could be box 46. Further,
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`Figures 5 and 7 do not impart structural significance to the term “measuring device” because
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`those figures depict the “measuring unit,” and not the “measuring device.”
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`53.
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`Thus, based on my review of the ’360 patent, it is my opinion that nothing in the
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`specification would lead a POSITA to construe a “measuring device” as the name of a
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`sufficiently definite structure.
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`B.
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`The Claim Term Is Indefinite Because The Specification Fails to Disclose and
`Clearly Link Sufficient Structure to the Performance of the Claimed
`Functions
`
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`54.
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`I understand that because 35 U.S.C. § 112, ¶ 6 applies, for these claims to meet
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`the definiteness requirement, the ’360 patent’s specification must disclose sufficient structure for
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`the claimed functions of “monitoring a property in the transmission oscillator.” I understand that
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`is the claimed function.
`
`55.
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`I have reviewed the ’360 patent and have determined that it fails to disclose and
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`clearly link any corresponding structure to the performance of the claimed functions:
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`“monitoring a property of the transmission oscillator, and outputting a control signal when
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`ascertaining a change of the monitored property, wherein the monitored property of the
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`transmission oscillator includes the frequency or impedance of the transmission oscillator in
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`resonance.” In particular, the ’360 patent does not disclose circuits or an algorithm (in any form
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`Case 6:21-cv-01101-ADA Document 31-4 Filed 05/19/22 Page 20 of 40
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`including prose), for performing those claimed functions and that is clearly linked to the claimed
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`“measuring device.”
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`56.
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`As described in Section above, the specification’s disclosures pertaining to the
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`“measuring device” do not provide sufficient structure for the requisite functions.
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`57.
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`The specification states that “[t]he measuring unit 46 then monitors a property of
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`the transmission oscillator.” ’360 patent at 6:53-54. As an initial matter, a POSITA would not
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`have understood the claimed term “measuring device” to be synonymous with a “measuring
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`unit.” Moreover, the ’360 patent makes clear that the measuring unit is a separate element: “The
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`essential element of the measuring device 14, 24 is a measuring unit 46 which is switchable on
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`and off by means of the switch 44 of the switching apparatus…The measuring unit 46 is
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`expediently [] equipped with a certain intelligence and designed to execute software program
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`routines.” ’360 patent at 4:57-5:3.
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`58.
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`Figures 5 and 7, reproduced below, show embodiments of implementati