`UNITED STATES
`. INTERNATIONAL TRADE COMMISSION
`
`
`
`In the Matter of:
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`CERTAIN MOBILE DEVICES
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`AND RELATED SOFTWARE
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`Investigation No.
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`337-TA—750
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`OPEN SESSION
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`Pages:
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`433 through 782
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`Place: Washington, D.C.
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`Date:
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`September 27, 2011
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`(”G {3.1
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`HERITAGE REPORTING CORPORATION
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`Ojficial Reporters
`1220 L Street, N.W., Suite 600
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`Washington, DC. 20005
`(202) 628-4888
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`contracts@hrccourtreporters.com
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`.
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`433
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`BEFORE THE
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`
`
`In the Matter of:
`
`CERTAIN MOBILE DEVICES
`
`AND RELATED SOFTWARE
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`
`
`Investigation No.
`
`337—TA—750
`
`)
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`)
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`)
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`Hearing Room A
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`United States
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`International Trade Commission
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`500 E Street, Southwest
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`Washington, D.C.
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`Tuesday, September 27, 2011
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`VOLUME II
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`The parties met, pursuant to the notice of the
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`Judge, at 9:00 a.m.
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`BEFORE:
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`THE HONORABLE THEODORE R. ESSEX
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`Heritage Reporting Corporation
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`APPEARANCES:
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`For Complainant Apple:
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`MARK G. DAVIS, ESQ.
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`BRIAN E. FERGUSON, ESQ.
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`ROBERT T. VLASIS, ESQ.
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`EDWARD S.
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`JOU, ESQ.
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`CHRISTOPHER T. MARANDO, ESQ.
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`Weil, Gotshal & Manges LLP
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`1300 Eye Street, N.W., Suite 900
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`Washington, D.C. 20005
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`JILL J. HO, ESQ.
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`BRIAN C. CHANG, ESQ.
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`Weil, Gotshal & Manges LLP
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`201 Redwood Shores Parkway
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`Redwood Shores, CA 94065
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`MATTHEW D. POWERS, ESQ.
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`STEVEN S. CHERENSKY, ESQ.
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`PAUL T. EHRLICH, ESQ.
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`ROBERT L. GERRITY, ESQ.
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`Tensegrity Law Group LLP
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`201 Redwood Shore Parkway
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`Redwood Shores, CA 94065
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`Heritage Reporting Corporation
`(202) 628—4888
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`APPEARANCES (Continued):
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`For Respondent Motorola Mobility, Inc.:
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`CHARLES K. VERHOEVEN, ESQ.
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`DAVID EISEMAN, ESQ.
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`Quinn Emanuel Urquhart & Sullivan LLP
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`50 California Street, 22nd Floor
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`San Francisco, CA 94111
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`EDWARD J. DeFRANCO, ESQ.
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`Quinn Emanuel Urquhart & Sullivan LLP
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`51 Madison Avenue, 22nd FLoor
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`New York, New York 10010
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`DAVID A. NELSON, ESQ.
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`Quinn Emanuel Urquhart & Sullivan LLP
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`500 West Madison Street, Suite 2450
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`Chicago, Illinois 60661
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`APPEARANCES
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`(Cont’d):
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`For ITC Staff:
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`LISA KATTAN, ESQ.
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`ANNE GOALWIN, ESQ.
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`U.S. International Trade Commission
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`500 E Street, S.W.
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`Washington, D.C. 20436
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`Attorney—Advisor:
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`GREGORY MOLDAFSKY, ESQ.
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`Attorney—Advisor
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`Office of Administrative Law Judges
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`U.S. International Trade Commission
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`500 E Street, S.W.
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`Washington, D.C. 20436
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`*** Index appears at end of transcript ***
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`P R O C E E D I N G S
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`(9:00 a.m.)
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`JUDGE ESSEX: Let’s come to order.
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`Do
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`we have housekeeping to do before we recall our
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`witness?
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`MR. DAVIS: One minor issue, Your
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`Honor.
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`The parties were able to come to an
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`agreement with regard to the expertise of the
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`various experts.
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`If you would like to handle
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`that now, we can do that, or we can do it at
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`another time.
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`JUDGE ESSEX:
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`If you are in agreement,
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`call your experts, and we will accept them for
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`whatever the agreement of the parties is,
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`just
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`see it is in the record,
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`I don’t need to hear
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`it.
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`I will be happy to hear the witnesses.
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`MR. DAVIS:
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`So one of the other
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`agreements that the parties have reached is
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`with regard to two of the economic experts,
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`so
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`they actually won’t be here, so it will be
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`easiest just to read into the record ——
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`JUDGE ESSEX: All right.
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`If you want
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`to proceed that way, do you want to do that at
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`this time?
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`MR. DAVIS: Yes, Your Honor.
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`JUDGE ESSEX: All right.
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`Is that all
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`right with Respondents and Staff?
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`MR. NELSON: That’s fine, Your Honor.
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`We had reached it.
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`I mean,
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`I think the witness
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`statements address it, but it’s all good.
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`JUDGE ESSEX: That’s fine.
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`MS. KATTAN:
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`It is fine, Your Honor.
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`JUDGE ESSEX:
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`Thank you.
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`Go ahead and
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`proceed.
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`MR. DAVIS: Yes, Your Honor.
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`So
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`Dr. Subramanian and Dr. Wolfe are agreed to be
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`experts in touchscreen design and touch sensing
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`technology. Dr. Balakrishnan is agreed to be
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`an expert in computer programming and software
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`development and touchscreen design and touch
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`sensing technology.
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`Dr. Locke is agreed to be an expert in
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`computer programming and software development.
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`And Ms. Mulhern and Mr. Bakewell are
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`acknowledged to be experts in financial
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`analysis and IP licensing and valuation.
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`JUDGE ESSEX: Very good.
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`Do we have anything else?
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`MR. VERHOEVEN: One other thing, Your
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`Honor.
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`JUDGE ESSEX: Mr. Verhoeven?
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`MR. VERHOEVEN: Actually,
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`two things.
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`First,
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`just for the record,
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`is that remember we
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`had the wrong exhibit in the tabs yesterday in
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`Dr. Balakrishnan’s cross binder. We
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`accidentally had put JX—3 under the tab for
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`JX-l.
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`We have replaced those in the binders
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`during the break, and now it contains the
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`correct JX for the record.
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`The second thing I would like to
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`raise, Your Honor,
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`is with respect to one of
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`the Motorola witnesses, and,
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`in particular,
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`Mr. Andy Rubin, who is one of the cofounders of
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`Android and is senior vice president at Google.
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`Complainant has indicated late last
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`night that they were prepared to waive cross on
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`Mr. Rubin and so we didn't have him get on a
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`plane, which he was going to do last night.
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`And we appreciate that. However,
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`they have
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`indicated that they have some objections to his
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`witness statement, and I think we need to
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`resolve those now so that we know if we need to
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`call him and get him back on a plane,
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`in light
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`of those objections.
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`And if I could briefly summarize that,
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`the issue for Your Honor.
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`JUDGE ESSEX: You may summarize your
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`side of it.
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`I will give Complainant a chance
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`to summarize theirs.
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`MR. VERHOEVEN:
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`Should they go ahead
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`and go first, since it is their objection?
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`JUDGE ESSEX: However you want to
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`proceed. Why don’t you go ahead and tell me
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`your objection.
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`MR. FERGUSON:
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`Thank you, Your Honor.
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`Our objection, very briefly,
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`is that
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`with respect to Mr. Rubin,
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`there are four
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`questions and answers that we believe are
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`inappropriate and have no relationship or no
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`relevance to any issue in this particular
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`investigation.
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`It is questions 57, 58, 60, and
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`61 of the ~—
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`JUDGE ESSEX:
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`Can one of you put them
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`up on the screen for me? Because, not
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`surprisingly,
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`I don’t have these memorized as
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`well as I’m sure counsel does. Are they
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`confidential?
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`MR. FERGUSON:
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`I don’t believe they
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`are.
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`I think the entire witness statement was
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`MR. VERHOEVEN:
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`I can summarize really
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`briefly.
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`summary.
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`JUDGE ESSEX:
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`Go ahead and give a
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`MR. FERGUSON: Here it is, Your Honor.
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`57, 58, questions 57 and 58.
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`MR. VERHOEVEN: Your Honor, should I
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`summarize for you? Basically here is the
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`issue. We had a prior ITC litigation.
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`JUDGE ESSEX: We did.
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`MR. VERHOEVEN: Brought by the same
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`Complainant, Apple, against a different
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`Respondent, a company called HTC.
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`It was the
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`710 investigation.
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`And the allegations were against the
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`same operating system, so you have the same
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`Complainant,
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`the same operating system. And
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`Mr. Rubin appeared in that case, was
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`cross—examined, and then in a later
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`post~hearing petition, petition for review
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`filed by Apple,
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`the statements were made to
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`suggest that Mr. Rubin’s work —— Mr. Rubin had
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`worked at Apple in the past.
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`And statements were made to suggest,
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`by Apple,
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`that Mr. Rubin developed or his
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`framework for Android was somehow influenced
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`from his work at Apple, with the inference that
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`somehow there was some sort of copying or use
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`of ——
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`JUDGE ESSEX: Was that in the actual
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`testimony?
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`I know that’s been in the public
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`domain.
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`MR. VERHOEVEN: Yeah, it was in a
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`petition for rehearing brief filed by Apple
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`that was publicly made available, Your Honor.
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`And so if we don’t ~~ so Mr. Rubin in his
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`witness statement here has a few questions
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`where he says that’s ridiculous,
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`I didn't —-
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`nothing that I came up with with Android had
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`anything to do with the work I did with Apple.
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`they are saying, well,
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`this isn’t
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`relevant, but what is to stop them from filing
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`a petition, a post-hearing brief in this case,
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`making the same allegation that they made with
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`respect to the same operating system and we
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`simply have these questions to refute that for
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`the record, so that we have something in the
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`evidence that refutes that and they can’t make
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`that allegation without ——
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`JUDGE ESSEX: All right. Hang on.
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`I
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`understand that part. Let me ask Apple.
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`Do
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`you have any witnesses that are going to
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`present any evidence regarding Mr. Rubin’s
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`service at Apple and whether or not he has a
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`basis for the Android system from those years?
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`My recollection is that the general journal
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`said it was not even related to iPhones in any
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`way, shape, or form.
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`MR. FERGUSON: Your Honor, we have no
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`witness who has offered any testimony, nor do
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`we have a witness who is going to offer any
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`testimony regarding Mr. Rubin’s employment at
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`Apple or any of the roles he played with
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`respect to his employment at Apple.
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`We did not raise this issue at all in
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`our pretrial brief.
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`So there is no ~-
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`JUDGE ESSEX: Yeah ——
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`MR. FERGUSON: There is no question it
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`is not going to be raised in our post—hearing
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`brief.
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`MR. VERHOEVEN: Your Honor ~—
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`MR. DAVIS:
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`If you want, Your Honor,
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`I
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`have a copy of the witness statement.
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`JUDGE ESSEX: Let me take a quick look
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`at those questions. You may approach.
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`MR. FERGUSON:
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`57, 58, 60, and 61,
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`Your Honor.
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`JUDGE ESSEX: All right.
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`MR. VERHOEVEN: Your Honor,
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`if I could
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`say one final thing?
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`JUDGE ESSEX: Yes, you may.
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`MR. VERHOEVEN:
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`If counsel for Apple
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`is willing to represent that they are not going
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`to make such an allegation in this
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`investigation, and they stand by that
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`representation,
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`then obviously this isn’t an
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`issue. We’re just simply trying to prevent
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`what happened the last time.
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`JUDGE ESSEX:
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`I appreciate your
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`concern, but I don’t recall this being in any
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`of the pretrial briefs or any notices that this
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`issue would be played at all. Has Apple raised
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`this at all in any way in its pretrial briefs?
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`MR. FERGUSON: We have not raised it
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`at all.
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`JUDGE ESSEX: And you do tell me it is
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`not going to be raised in your evidence?
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`MR. FERGUSON: That’s correct, Your
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`Honor.
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`JUDGE ESSEX:
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`So it would be totally
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`irrelevant, and impermissible for them to raise
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`it. Staff, would you like to be heard?
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`MS. KATTAN: No, Your Honor.
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`It seems
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`the issue is resolving itself.
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`MR. DAVIS: Your Honor,
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`I only have
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`one copy.
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`I should give her a chance to look
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`at the questions.
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`JUDGE ESSEX: All right.
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`MR. VERHOEVEN: Your Honor, with those
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`representations —~
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`JUDGE ESSEX:
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`They are not
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`representations.
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`Those are in the record here.
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`MR. VERHOEVEN: That's fine.
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`JUDGE ESSEX: And I would be very,
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`very upset if Apple were misrepresenting to me,
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`and I have ways of making it known when I am
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`unhappy, as you are aware.
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`So this is a
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`non—issue in this case.
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`They have no evidence.
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`It was not preserved in their pretrial
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`briefing.
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`If it should come in in some side door
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`and that,
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`I would slam that shut in a most
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`forceful way.
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`So I will not allow those
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`questions, because it is a non-issue.
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`And if Apple is not going to raise it,
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`as per their brief and as per their
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`representation here,
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`then there is nothing to
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`refute.
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`MR. VERHOEVEN:
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`Thank you very much,
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`Your Honor. And so I’m assuming that Mr. Rubin
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`does not need to appear and we're waiving cross
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`at this point?
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`MR. FERGUSON: As we said last night,
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`that’s correct.
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`MR. VERHOEVEN:
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`Thank you, Your Honor.
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`JUDGE ESSEX:
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`Thank you very much for
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`your cooperation. Apple as well.
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`I appreciate
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`it.
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`MR. FERGUSON:
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`Thank you, Your Honor.
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`JUDGE ESSEX:
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`Thank you. Respondents,
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`do we have anything else to take up?
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`MR. NELSON: One more.
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`JUDGE ESSEX: You don’t have to raise
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`your hand, Mr. Nelson. You can just stand.
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`MR. NELSON:
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`Too much time in school,
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`Your Honor. With respect to the exhibits
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`yesterday that we used on cross, we worked
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`everything out, as we have been, with the
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`exhibits. There is one issue with respect to
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`two of the demonstratives that Apple has an
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`objection to.
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`As we did in the previous case with
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`Your Honor,
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`in 744, we had been with the
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`witnesses, we were putting in the
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`demonstratives that were used, so that you have
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`those.
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`They were referred to in the
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`transcript.
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`They are obviously not part of the
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`evidence in the case, but we admit those.
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`And Apple has an objection to those.
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`We want those just because that —— if you want
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`to look back at that part of the record and you
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`want to have that context, it is there, but
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`Your Honor knows what is evidence and what is
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`not evidence.
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`JUDGE ESSEX: All right,
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`thank you
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`very much. And I don’t take —— demonstratives
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`are not evidence, but they are part of the
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`record, and they are attorney argument,
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`basically, which, as you know, we have to
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`listen to.
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`MR. DAVIS: Our only objection was if
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`you recall,
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`these were the University of
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`Delaware e—mails that Dr. Westerman was
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`questioned about and said that he had no
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`knowledge whatsoever about.
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`JUDGE ESSEX:
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`I think they are
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`appropriate in the record to show what it was
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`we were asking Dr. Westerman. As far as being
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`substantive for the truth within those things,
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`they are not, particularly when he said he did
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`not know what they were.
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`At that point,
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`they did not refresh
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`his memory,
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`therefore,
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`they would have no
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`come up in some other context.
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`I suspect,
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`perhaps, we will see them in some other place
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`later, but right now,
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`they have no substantive
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`value at all as far as I understand the law.
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`You can help me out if I am mistaken.
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`MR. DAVIS: Very good, Your Honor.
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`JUDGE ESSEX: All right.
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`Thank you.
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`All right. That takes care of the
`
`housekeeping.
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`MR. POWERS: Yes, Your Honor.
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`JUDGE ESSEX:
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`I believe that you are
`
`holding court on cross—examination, Mr.
`
`Verhoeven, but we had a witness at that time.
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`//
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`//
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`Whereupon——
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`RAVIN BALAKRISHNAN,
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`a witness, called for examination, having previously
`
`been duly sworn, was examined and testified further as
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`follows:
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`JUDGE ESSEX: Good morning, Doctor.
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`THE WITNESS: Good morning.
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`JUDGE ESSEX:
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`I am sure it is probably
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`not necessary. Doctor,
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`I will remind you, you
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`are still under oath from yesterday.
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`THE WITNESS: Yes,
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`I understand.
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`JUDGE ESSEX: Make sure your
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`microphone is on. Very well.
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`Go ahead.
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`MR. VERHOEVEN:
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`Thank you, Your Honor.
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`CROSS—EXAMINATION —~ Resumed
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`BY MR. VERHOEVEN:
`
`Q.
`
`A.
`
`Q.
`
`Good morning, Dr. Balakrishnan.
`
`Good morning.
`
`Ryan, could we put up RDX—15.03l.
`
`Dr. Balakrishnan, yesterday afternoon we were
`
`talking about the preamble.
`
`Do you remember
`
`that? And we had several questions about that.
`
`I would like to now move to a
`
`different subject, still on claim construction.
`
`And,
`
`in particular, step D that I have
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`highlighted in claim I of the ’430 patent,
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`adding support for the hardware and software
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`components to the operating system. Okay?
`
`A.
`
`Q.
`
`Okay.
`
`If we go to the next slide,
`
`this is
`
`slide 32,
`
`I simply put up the parties' claim
`
`constructions here. And the term on the left,
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`again, "adding support for the hardware and
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`software components of the operating system."
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`You understand Motorola’s position is that this
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`phrase is indefinite? Right?
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`A.
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`Q.
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`Yes,
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`I do.
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`And the Staff says that the phrase
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`should have its plain and ordinary meaning,
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`right?
`
`A.
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`Q.
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`Yes,
`
`I do.
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`And Apple has a construction that this
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`phrase should be construed as "facilitating
`
`access to the hardware or software components,"
`
`correct?
`
`A.
`
`Q.
`
`Yes.
`
`And in your opinion, you agree with
`
`Apple’s construction?
`
`A.
`
`Q.
`
`Yes,
`
`I do.
`
`Okay.
`
`Now, what I would like to do is
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`walk through the intrinsic evidence with
`
`respect to this term.
`
`So let’s start with the
`
`claim language itself.
`
`Now,
`
`I have highlighted on slide 33 a
`
`couple of the phrases from element D, adding,
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`and then it says, support for the hardware or
`
`software components, and then it says, "to the
`
`operating system "
`
`Do you see that?
`
`Yes,
`
`I do.
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`So the claim —— you would agree the
`
`A.
`
`Q.
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`claim expressly says that you are adding
`
`something to the operating system, right?
`
`A.
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`It says you are adding support to the
`
`operating system.
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`Q.
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`Right. And that’s something, right?
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`You are adding something to the operating
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`system?
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`A.
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`You are adding support for the
`
`hardware and software to the operating system,
`
`yes.
`
`Q.
`
`So you are adding something that
`
`didn’t exist before to the operating system?
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`A.
`
`Well,
`
`I think adding support is what
`
`it is, it is facilitating access to the
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`hardware and software.
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`Q.
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`A.
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`That’s my point.
`
`Go ahead, sorry.
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`And it doesn’t necessarily mean, you
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`know, putting something into the operating
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`system,
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`if that’s what you mean by that.
`
`Q.
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`Yeah,
`
`that's actually my point, sir.
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`Isn’t it true that under Apple and your
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`construction, facilitating access, you have
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`deleted adding something to the operating
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`system? You have deleted the word adding to
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`the operating system,
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`that's not in your
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`construction anymore?
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`A.
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`No, it continues to add support to the
`
`operating system.
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`Q.
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`But you dispute that you are adding
`
`anything to the operating system in this step,
`
`don’t you?
`
`A.
`
`No, we say facilitates access, which
`
`means equivalent to adding support, not just
`
`adding, but adding support.
`
`Q.
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`But under your construction of
`
`facilitating access, you don’t need to add any
`
`software or anything to the operating system,
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`you just need to facilitate? Isn’t that true?
`
`Let me ask it a different way, sir.
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`Under your construction, does that
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`still require that you add some software to the
`
`operating system?
`
`A.
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`I don’t think it requires adding
`
`software necessarily to the operating system.
`
`Q.
`
`Okay. Does it require adding any code
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`to the operating system?
`
`A.
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`To the extent that code is software,
`
`I
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`don’t think it needs to add code per se.
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`Q.
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`Isn’t it true that under your
`
`construction, facilitating access, you have
`
`written out the phrase adding to the operating
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`system? You are not adding anything to the
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`operating system?
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`A.
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`No. As I testified earlier, it is
`
`adding support. And that’s different, could be
`
`different from adding code or adding software.
`
`I can facilitate access, which is adding
`
`support, without necessarily adding code or
`
`adding software.
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`Q.
`
`A.
`
`Q.
`
`The operating system is code?
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`The operating system is code, sure.
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`It is what it is. You have got an
`
`operating system, it is a certain amount of
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`code, right?
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`454
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`A.
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`Q.
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`That’s correct.
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`And this says you are adding something
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`to that operating system. Well, since the
`
`operating system is 100 percent code, if you
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`are adding something to it, don’t you need to
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`be adding code?
`
`A.
`
`Not necessarily.
`
`I am adding support
`
`for that hardware and software components.
`
`I
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`am not necessarily adding something to the
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`operating system.
`
`Q.
`
`I guess my confusion is since the only
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`way you can add —— since the entirety of the
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`operating system is code, right ——
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`A.
`
`Q.
`
`Yes.
`
`—— and since this says you are adding
`
`something to the operating system, wouldn’t a
`
`person of ordinary skill in the art understand
`
`that you are adding code to the operating
`
`system?
`
`A.
`
`Q.
`
`Not necessarily ~—
`
`Whether you call it support or a
`
`component or anything else? You are adding to
`
`the operating system?
`
`A.
`
`I am adding support.
`
`MR. DAVIS: Your Honor,
`
`if I could
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`455
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`just —— if the witness be allowed to answer the
`
`question posed before a new question is posed
`
`to him.
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`JUDGE ESSEX:
`
`I will take that in the
`
`form of an objection. This is
`
`cross—examination.
`
`Do let him complete his
`
`answer here.
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`THE WITNESS:
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`I am not sure where we
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`are after the interruption, if we can reask the
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`question, please.
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`BY MR. VERHOEVEN:
`
`Q.
`
`I won’t belabor the point.
`
`I will ask
`
`it one more time.
`
`Isn’t it true that a person of
`
`ordinary skill in the art looking to this
`
`language, knowing that an operating system is
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`100 percent code, seeing that the claim says
`
`you are adding something to that operating
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`system,
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`isn’t it true that person of ordinary
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`skill in the art would conclude you are adding
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`some form of code to the operating system?
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`A.
`
`Q.
`
`That is not true.
`
`But you would agree, at least,
`
`that
`
`Apple’s and your proposed construction of this
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`phrase would remove any requirement that you
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`add code to the operating system, fair?
`
`A.
`
`It doesn’t preclude adding code to the
`
`operating system.
`
`It doesn’t require it,
`
`necessarily.
`
`Q.
`
`Okay. Let’s move on from the claim
`
`language. Again, we’re talking about claim
`
`construction of this element. Let’s move on
`
`from the claim language to another piece of
`
`intrinsic evidence,
`
`the prosecution history for
`
`this term.
`
`I would like to start —— and you can
`
`turn if you want to, again,
`
`into the binder.
`
`This is simply what we looked at yesterday,
`
`the
`
`original claim 1.
`
`A.
`
`Q.
`
`Yes, give me a minute.
`
`And I am depicting on the screen
`
`REX—15, slide 34, which contains JX—4, page 25.
`
`A.
`
`Q.
`
`Okay,
`
`I have got it.
`
`Now, you see there is no step D in the
`
`original claim, right?
`
`A.
`
`Q.
`
`That is correct.
`
`But there is something I want to note
`
`in element C, which states, "returning matched
`
`system components via the locator request to
`
`enable access to the one or more system
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`components."
`
`Do you see that?
`
`A.
`
`Q.
`
`Yes.
`
`I want to highlight, element C had
`
`this phrase,
`
`to enable access, right?
`
`A.
`
`Q.
`
`It has that phrase, yes, of course.
`
`If we turn to the examiner’s first
`
`rejection, again,
`
`this is just a cover page,
`
`JX—4, page 932, we looked at this yesterday, do
`
`you remember, March 22, 1994 office action?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes. Let me just get to that page.
`
`Sure.
`
`Okay.
`
`And then I would like to turn to page
`
`933 of that office action,
`
`this paragraph 3
`
`which we looked at a portion of yesterday,
`
`remember?
`
`A.
`
`Q.
`
`Yes.
`
`And you see —— I would like to look at
`
`a different sentence in paragraph 3 here,
`
`the
`
`last sentence. This is the examiner’s -— just
`
`to refresh,
`
`the examiner rejected for
`
`indefiniteness, right?
`
`A.
`
`I have got to look at that again just
`
`Q.
`
`Sure.
`
`Do you see where it says,
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`claims 1 through 41 are rejected under 35 USC
`
`Section 112, second paragraph, as being
`
`indefinite?
`
`A.
`
`Q.
`
`Yes,
`
`I do now.
`
`Okay. And then the next paragraph is
`
`statements explaining the examiner’s rejection,
`
`correct?
`
`A.
`
`Q.
`
`For portions of the claims, yes.
`
`Yes. And so I would like to focus on
`
`the highlighted language on the screen.
`
`It
`
`says, "in lines 7 through 8, it is not clear
`
`what enable access to the system component
`
`means."
`
`Do you see that?
`
`A.
`
`Q.
`
`Yes,
`
`I do.
`
`So the examiner rejected —— part of
`
`the rejection for indefiniteness was the
`
`examiner was saying I don't know what enable
`
`access to system components means, right?
`
`A.
`
`Q.
`
`That is the reason he gave, yes.
`
`Okay. And then if we could go forward
`
`to the amendment and remarks in the prosecution
`
`history, March 31st, 1994, do you remember we
`
`looked at this yesterday?
`
`A.
`
`I believe so.
`
`Just give me one second
`
`to get to that page. Yes.
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`Q.
`
`And then the next page, page 963 of
`
`JX—O4, which is depicted on the screen, depicts
`
`the first amendment for claim 1, right?
`
`A.
`
`Q.
`
`Yes, it does.
`
`And you will see that in response to
`
`what we just looked at from the office action,
`
`the patentee deleted that phrase that contained
`
`the phrase enable access?
`
`Do you see I have
`
`highlighted it there?
`
`A.
`
`Q.
`
`Yes,
`
`they did.
`
`So "via the locator request to enable
`
`access to the one or more system components"
`
`was deleted in response to the examiner saying
`
`I don't know what enable access means, right?
`
`A.
`
`Q.
`
`Yes.
`
`Okay. And then if we go forward to
`
`the second rejection,
`
`this is JX-O4.97l,
`
`the
`
`second office action dated June 9th, 1994, we
`
`looked at that yesterday, right?
`
`A.
`
`Yes,
`
`I believe we did look at this
`
`yesterday, yes.
`
`Q.
`
`And then if we go to page 972,
`
`just ——
`
`I’m sorry,
`
`take a step back.
`
`The examiner
`
`again rejected the claims as indefinite in the
`
`second office action, right?
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`460
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`A.
`
`So some have been canceled and a bunch
`
`have been rejected. And —~
`
`Q.
`
`If you look at paragraph 3, which I
`
`have depicted on the screen, you can sort of
`
`see it there.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes,
`
`that’s right.
`
`Do you see it?
`
`Yes.
`
`And the examiner stated, and I have
`
`highlighted it on the screen,
`
`this is page 972
`
`of JX~O4, "in claim 1,
`
`line 10 and" —— let me
`
`start over.
`
`"In claim 1,
`
`line 10 and claim 22,
`
`lines 10 through 11, returning hardware or
`
`software components is vague and indefinite.
`
`It is not clear what this means.
`
`How are
`
`components returned and where are they returned
`
`to?
`
`It is not clear what is done with
`
`components after they are searched for and
`
`returned."
`
`Do you see that?
`
`Yes,
`
`I do.
`
`And just to help tie this together,
`
`A.
`
`Q.
`
`let’s go back to the amendment again. This is
`
`element C that the examiner is referring to,
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`right?
`
`It says, as amended, it says,
`
`"returning hardware or software components
`
`meeting the target hardware or software
`
`component search criteria."
`
`Do you see that?
`
`A.
`
`Q.
`
`Yes,
`
`I do.
`
`And I forgot to mention when we were
`
`looking at this that this was added to replace
`
`the enable access language, right?
`
`A.
`
`Q.
`
`From the earlier claim, yes.
`
`Exactly.
`
`So enable access was
`
`deleted. This return hardware system —— excuse
`
`me, hardware/software components meeting the
`
`target hardware/software components search
`
`criteria was added, and then the examiner still
`
`rejected on indefiniteness, saying that the
`
`returning hardware or software components
`
`change is still vague and indefinite, right?
`
`A.
`
`Q.
`
`Yes,
`
`that’s what he is saying, yes.
`
`Okay.
`
`'Then the next thing that
`
`happened is there was the second amendment,
`
`right, we looked at this yesterday dated July
`
`27th, 1994?
`
`A.
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`Q.
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`That is correct.
`
`That’s when we see for the very first
`
`time adding support for the hardware or
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`software components to the operating system
`
`without rebooting the operating system, element
`
`D, right?
`
`A.
`
`Q.
`
`That’s one that was added, yes.
`
`And that’s the first time this
`
`limitation appeared in the prosecution history,
`
`right?
`
`A.
`
`Q.
`
`As far as I can tell, yes.
`
`And this is an attempt by the patentee
`
`to answer the last rejection and,
`
`remember,
`
`the
`
`rejection was it is not clear what happens
`
`after it is returned? Here, we will go back to
`
`it.
`
`We’re back at slide 40, page 972.
`
`"How are the components returned and where are
`
`they returned to?
`
`It is not clear what is done
`
`with the components after they are searched for
`
`and returned."
`
`Do you see that?
`
`A.
`
`Q.
`
`Yes.
`
`So in the amendment they added this
`
`step to address that objection or statement by
`
`the examiner. Fair?
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`A.
`
`Q.
`
`I would say at least partially, yes.
`
`Now, going back to the parties' claim
`
`constructions, you have said adding support
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`means facilitating access, right?
`
`A.
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`Facilitating access to the hardware or
`
`software components, yes.
`
`Q.
`
`Now,
`
`the original claim 1 we looked
`
`at,
`
`there was a step C that contained the
`
`phrase returning matched system components via
`
`the locator request to enable access.
`
`Do you
`
`remember that?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes. Could you put that back?
`
`Do you want to put it back on? Okay.
`
`Or just tell me where it is again.
`
`I will get it for you. Hold on a
`
`second. Let’s go to slide 34.
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`I have just put
`
`it on the screen for your ease of convenience.
`
`That's the original claim,
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`remember, it says to
`
`enable access?
`
`A.
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`Q.
`
`Right.
`
`And do you remember that was rejected
`
`by the examiner as indefinite?
`
`A.
`
`Q.
`
`That's correct.
`
`During the remarks, it says it is not
`
`clear what enable access to the system
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`component means, right?
`
`A.
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`Q.
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`That’s right.
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`And then the applicant deleted enable
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`access, right?
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`A.
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`Q.
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`Yes.
`
`We saw that right here, deleted enable
`
`access.
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`Now, you are saying that this new
`
`phrase that was added "adding support to the
`
`operating system" means facilitate access,
`
`right?
`
`A.
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`Q.
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`That’s correct.
`
`If we could go to slide 43 again.
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`Facilitate access.
`
`A.
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`Facilitating access to the hardware or
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`software components.
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`Q.
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`Now, sir, doesn’t facilitate access
`
`mean the same thing as enable access?
`
`A.
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`No,
`
`I think it is a bit more
`
`descriptive than enable.
`
`It is not exactly —-
`
`it is not a synonym per se.
`
`Q.
`
`A.
`
`Q.
`
`It is not a synonym?
`
`I don’t think it is exactly a synonym.
`
`Let’s look at the Doubleday Roget’s
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`Thesaurus.
`
`A thesaurus lists synonyms, right?
`
`A.
`
`I am not sure it lists exact synonyms,
`
`but words that are similar, sure.
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`Q.
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`I have brought out,
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`this is from
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`RX—l796.
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`The definition or the entry for
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`enable in the thesaurus, Roget’s Doubleday
`
`Thesaurus, and synonyms are empower,
`
`facilitate.
`
`Do you see?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes,
`
`I do.
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`It is a synonym,
`
`isn’t it?
`
`In this definition, it might be, yes.
`
`And the examiner says enable is
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`indefinite, right?
`
`A.
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`Q.
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`In that context of that claim, yes.
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`So why wouldn’t facilitate be just as
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`indefinite, sir?
`
`A.
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`To me,
`
`I see facilitate access being
`
`descriptive of adding support, which is a
`
`different term or part of the claims that’s
`
`been added subsequently.
`
`It is not referring
`
`back to the original claim that was deleted.
`
`This is ~— now we’re talking about facilitating
`
`access, which is describing what adding supp
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