Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 1 of 6 Page ID #:1681
`
`
`
`
`
`
`
`
`
`
`
`
`William E. Thomson, Jr. (SBN 47195)
`BROOKS KUSHMAN P.C.
`601 S. Figueroa Street, Suite 2080
`Los Angeles, California 90017-5780
`Phone: (213) 622-3003
`wthomson@brookskushman.com
`
`Marc Lorelli (Admitted pro hac vice)
`mlorelli@brookskushman.com
`John P. Rondini (Admitted pro hac vice)
`jrondini@brookskushman.com
`Mark A. Cantor (Admitted pro hac vice)
`mcantor@brookskushman.com
`John S. LeRoy (Admitted pro hac vice)
`jleroy@brookskushman.com
`BROOKS KUSHMAN P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`Phone: (248) 358-4400
`
`Attorneys for Plaintiff
`Ancora Technologies, Inc.
`
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`Case No. 8:19-cv-02192-GW-ASx
`(LEAD CASE)
`
`Consolidated Case
`No. 2:20-cv-01252-GW-ASx
`
`JOINT STATUS REPORT
`REGARDING MARKMAN
`RULING
`
`Hearing Date: November 19, 2020
`Time: 8:30 am
`Before Hon. George H. Wu
`United States Courthouse
`Courtroom: 9D, 9th Floor
`
`
`ANCORA TECHNOLOGIES,
`INC.
`
`
`v.
`
`TCT MOBILE (US) INC.,
`HUIZHOU TCL MOBILE
`COMMUNICATION CO.,
`LTD., and SHENZHEN TCL
`CREATIVE CLOUD
`TECHNOLOGY CO., LTD.,
`
`
`
`Defendants.
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`William E. Thomson, Jr. (SBN 47195)
`BROOKS KUSHMAN P.C.
`601 S. Figueroa Street, Suite 2080
`Los Angeles, California 90017-5780
`Phone: (213) 622-3003
`wthomson@brookskushman.com
`
`Marc Lorelli (Admitted pro hac vice)
`mlorelli@brookskushman.com
`John P. Rondini (Admitted pro hac vice)
`jrondini@brookskushman.com
`Mark A. Cantor (Admitted pro hac vice)
`mcantor@brookskushman.com
`John S. LeRoy (Admitted pro hac vice)
`jleroy@brookskushman.com
`BROOKS KUSHMAN P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`Phone: (248) 358-4400
`
`Attorneys for Plaintiff
`Ancora Technologies, Inc.
`
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`Case No. 8:19-cv-02192-GW-ASx
`(LEAD CASE)
`
`Consolidated Case
`No. 2:20-cv-01252-GW-ASx
`
`JOINT STATUS REPORT
`REGARDING MARKMAN
`RULING
`
`Hearing Date: November 19, 2020
`Time: 8:30 am
`Before Hon. George H. Wu
`United States Courthouse
`Courtroom: 9D, 9th Floor
`
`
`ANCORA TECHNOLOGIES,
`INC.
`
`
`v.
`
`TCT MOBILE (US) INC.,
`HUIZHOU TCL MOBILE
`COMMUNICATION CO.,
`LTD., and SHENZHEN TCL
`CREATIVE CLOUD
`TECHNOLOGY CO., LTD.,
`
`
`
`Defendants.
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 2 of 6 Page ID #:1682
`
`
`
`Plaintiff’s Position:
`Plaintiff believes the present construction for “memory of the BIOS” identified
`by the Court in its November 12 Markman Order (“Markman Order”) is incorrect for
`several reasons. First, the Parties agreed to the construction of BIOS which is “the
`set of essential startup operations . . .” (Id. at 4, emphasis added.) Operations may
`occur at a location, but operations themselves are not stored. Defendants are
`attempting to change the agreed term BIOS to “BIOS software or code.” For this
`reason, incorporation of the term “store” in the claim is improper. Second, the claim
`phrase “memory of the BIOS” is part of a larger phrase that reads “the erasable, non-
`voltaile memory of the BIOS.” The term “the” is used to indicate an antecedent basis
`in the claim, which is “an erasable, non-volatile memory area of a BIOS of the
`computer.” The Parties agreed that “non-volatile memory area of a BIOS” should be
`construed as “memory area of BIOS…” (11/12/2020 Markman Paper at 4.) Thus,
`this is an admission that there is no ambiguity in this phrase and it need not be further
`construed.
`Third, during the Re-Examination of the ‘941 Patent filed by Microsoft, the
`Examiner explained that only those items used by the BIOS are part of the BIOS. (Ex.
`12 at ANCA2569: “one skilled in the art would consider any non-functional
`descriptive material, such as tables, to be part of the BIOS only if it is made and used
`by the functions of the BIOS itself.”) Fourth, even the Federal Circuit has described
`the “memory of [a/the] BIOS” as “memory space associated with the computer’s basic
`input/output system (BIOS), rather than other memory space.” Ancora Techs., Inc. v.
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`1
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 3 of 6 Page ID #:1683
`
`
`
`Apple, Inc., 744 F.3d 732, 733 (Fed. Cir. 2014) (pointing to various disclosures in the
`’941 Patent.)
`Lastly, the specification never states that BIOS is “stored” in memory. Instead,
`the specification refers to memory of the BIOS as memory that the BIOS operations
`use. For example, specification teaches that the verification structure may be
`established in a different BIOS memory area than the BIOS software. ’941 Patent at
`1:39-2:12 (teaching how, in one “non-limiting example” embodiment, the BIOS
`software is stored in a first BIOS memory area while the verification structure is stored
`in a second BIOS memory area); id. at 6:18-21; see also id. at 1:45-47; 1:65-2:1.
`Plaintiff further submit that there is no obligation of the Court to change the
`language of the claims. E.g. Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
`1207 (Fed. Cir. 2011) (holding that the district court did not err by rejecting
`defendants’ construction and instructing the jury to give the claim term its “ordinary
`meaning”); U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)
`(claim construction “is not an obligatory exercise in redundancy”). However, if it is
`so inclined, Plaintiff’s respectfully suggest that a more appropriate plain and ordinary
`meaning of the term “memory of the BIOS” is “a memory area that the BIOS uses”
`which is at least consistent with the claim language and specification.
`Defendant’s Position:
`TCL believes that the plain and ordinary meaning for “memory of the BIOS”
`identified by the Court in its November 12 Markman Order (“Markman Order”) does
`not need revision. The Court found the plain and ordinary meaning to be “a memory
`that stores the BIOS.” Markman Order at 14. Ancora criticizes that construction at
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`2
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 4 of 6 Page ID #:1684
`
`
`
`length, and then submits a brand new construction for the first time in the last sentence
`of its comments. The Court received briefing and extensive arguments on this term,
`see Markman Hearing Transcript at 24:9–29:5, and TCL submits that it is past time
`for Ancora to be submitting new proposed constructions.
`Ancora’s first criticism presents for the first time a sort of meta-construction of
`“operations” as necessarily different from “software” or “code.” Ancora provides no
`basis for that distinction. There is no conflict between BIOS being “operations” and
`BIOS being stored in memory. Ancora’s fifth criticism (discussed below) cites the
`specification as disclosing BIOS being stored in a memory. Ancora’s infringement
`contentions identify the alleged “BIOS” as UEFI instructions that are stored in TCL’s
`accused smartphones.
`Ancora’s second criticism tries to read more meaning into an agreed
`construction of “non-volatile memory area of the BIOS” than exists. The agree
`construction only modified “non-volatile,” which was construed as “whose data is
`maintained when power is removed.” Markman Order at 4. That agreed construction
`provides meaning to non-volatile not “memory area of the BIOS.” To the extent that
`Ancora is again raising the distinction between “memory” and “memory area,” the
`Court should again reject that distinction. Markman Order at 14 n.6.
`As to Ancora’s third criticism, Ancora does not explain why the Examiner’s
`description of “non-functional descriptive material, such as tables” somehow bears on
`“memory of the BIOS.” Is “memory of the BIOS” a “non-functional descriptive
`material, such as tables” that is “made and used by the functions of the BIOS”? It is
`not, and that citation is irrelevant.
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 5 of 6 Page ID #:1685
`
`
`
`As to Ancora’s fourth criticism, Ancora again relies a single passing phrase
`from the background section of a Federal Circuit decision. The Court should again
`reject that approach. Markman Order at 14. The other Federal Circuit decision
`regarding the asserted patent supports the plain and ordinary meaning determined by
`the Court. Markman Hearing Transcript at 26:2–27:11.
`As to Ancora’s fifth criticism, the cited portions of the specification do not
`provide the disclosure for which Ancora cites them. None of the cited passages of the
`specification state that BIOS software is stored in a first BIOS memory and not in a
`second BIOS memory. Ancora is belatedly presenting a new, and incorrect, factual
`interpretation of the asserted patent.
`As to Ancora’s newly presented construction of “a memory area that the BIOS
`uses,” Ancora does not cite to any portion of the asserted patent that actually uses this
`language. Moreover, memory that the BIOS “uses” is needlessly vague and overly
`broad. Part of the BIOS operations are hardware tests, Markman Order at 4, so is
`every memory that the BIOS operations test a “memory of the BIOS”? If so, then
`Ancora’s construction appears to convert every memory in the computer into a
`“memory of the BIOS.” The Court should reject this belatedly-raised and incorrect
`construction.
`
`
`Date: November 17, 2020
`
`
`
`BROOKS KUSHMAN P.C.
`
`
`By: /s/ Marc Lorelli
`Marc Lorelli (Admitted pro hac vice)
`mlorelli@brookskushman.com
`John P. Rondini (Admitted pro hac vice)
`jrondini@brookskushman.com
`Mark A. Cantor (Admitted pro hac vice)
`mcantor@brookskushman.com
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
`
`Case 8:19-cv-02192-GW-AS Document 67 Filed 11/17/20 Page 6 of 6 Page ID #:1686
`
`
`
`
`
`John S. LeRoy (Admitted pro hac vice)
`jleroy@brookskushman.com
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`Phone: (248) 358-4400
`Fax: (248) 358-3351
`
`William E. Thomson, Jr. (SBN 47195)
`601 S. Figueroa Street, Suite 2080
`Los Angeles, California 90017-5726
`Phone: (213) 622-3003
`wthomson@brookskushman.com
`
`Attorneys for Plaintiff Ancora
`Technologies, Inc.
`
`
`
`
`/s/ Kyle R. Canavera*
`John P. Schnurer, Bar No. 185725
`JSchnurer@perkinscoie.com
`Yun (Louise) Lu, Bar No. 253114
`LLu@perkinscoie.com
`Kyle R. Canavera, CA Bar No. 314664
`KCanavera@perkinscoie.com
`PERKINS COIE LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Tel.: 858.720.5700
`Fax.: 858.720.5799
`
`Attorneys for Defendants
`TCT Mobile (US) Inc., Huizhou TCL
`Mobile Communication Co., Ltd., and
`Shenzhen TCL Creative Cloud Technology
`Co., Ltd.
`
` *
`
` Pursuant to Local Rule 5-4.3.4(a)(2), the filing party attests that Defendants’ counsel
`concurs in the content of this Joint Status Report Regarding Markman Ruling and has
`authorized its filing with his electronic signature.
`
`
`
`Joint Status Report Regarding
`Markman Ruling
`Case No. 8:19-cv-02192-GW-ASx
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`
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
