IPR2015-00321, Paper No. 42
`April 13, 2016
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`trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`LG ELECTRONICS, INC.,
`Petitioner,
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`v.
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`ATI TECHNOLOGIES ULC,
`Patent Owner.
`____________
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`Cases IPR2015-00321
`Patent 7,095,945 B1
`____________
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`Held: March 21, 2016
`____________
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`
`
`
`
`BEFORE: BRIAN J. McNAMARA, RAMA G. ELLURU, and
`JAMES B. ARPIN, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`March 21, 2016, commencing at 1:01 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`April 13, 2016
`
`trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LG ELECTRONICS, INC.,
`Petitioner,
`
`v.
`
`ATI TECHNOLOGIES ULC,
`Patent Owner.
`____________
`
`Cases IPR2015-00321
`Patent 7,095,945 B1
`____________
`
`Held: March 21, 2016
`____________
`
`
`
`
`
`BEFORE: BRIAN J. McNAMARA, RAMA G. ELLURU, and
`JAMES B. ARPIN, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`March 21, 2016, commencing at 1:01 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Cases IPR2015-00321
`Patent 7,095,945 B1
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`
`ON BEHALF OF PATENT OWNER:
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`ROBERT G. PLUTA, ESQUIRE
`AMANDA K. STREFF, ESQUIRE
`Mayer Brown LLP
`71 South Wacker Drive
`Chicago, Illinois 60606-4637
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`MICHAEL B. RAY, ESQUIRE
`LESTIN KENTON, ESQUIRE
`Sterne Kessler Goldstein Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
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`P R O C E E D I N G S
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`JUDGE McNAMARA: Good afternoon, everybody.
`This is the oral hearing in the case of LG Electronics versus ATI
`Technologies ULC, IPR2015-00321.
`Judge Arpin is joining us remotely, so I would remind
`everyone during their presentations today to -- or their arguments
`today to please speak into the microphone, so that he can hear
`you. And if you are using any demonstratives, please make sure
`that you identify what demonstrative you're referring to.
`The first question, have the parties all given a copy of
`their demonstratives to the court reporter?
`MR. RAY: Yes, Your Honor.
`MR. PLUTA: Yes, Your Honor.
`JUDGE McNAMARA: Okay. Great. Thank you.
`All right. Well, beginning with the Petitioner, could
`you please introduce yourselves?
`MR. PLUTA: Good afternoon, Your Honor. Robert
`Pluta on behalf of LG Electronics. With me is Amanda Streff.
`JUDGE McNAMARA: Patent Owner?
`MR. RAY: Yes, Your Honor. Mike Ray for Patent
`Owner, ATI Technologies. With me today is my colleague
`Lestin Kenton, backup counsel. And also with me here today is
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`Kevin O'Neil, Managing Director of ATI Technologies and Vice
`President of Intellectual Property and Licensing of AMD.
`JUDGE McNAMARA: Okay. Great. Thank you very
`much. Welcome to the Patent Trial and Appeal Board.
`We have allocated 30 minutes of argument to each side
`today. We'll begin with the Petitioner because that's who has the
`burden of proof. The Patent Owner may then present his
`opposition, if the Patent Owner is going to present an argument
`on the motion for observations. That would be the time to do it.
`And then the Petitioner will have time to do a rebuttal
`and an opposition to the motion for observations. Patent Owner
`would be able to rebut the opposition to the motion for
`observations if, indeed, it is discussed. If not, we'll just dispense
`with that.
`Everybody ready to go? All right. Well, then let's
`begin with the Petitioner.
`Is there rebuttal you'd like me to reserve for you?
`MR. PLUTA: 10 minutes, Your Honor.
`I have two hard copies of the presentation if you'd like
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`them.
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`JUDGE McNAMARA: Sure. You can approach.
`MR. PLUTA: Good afternoon and may it please the
`Board, I'm on slide 2. The Board instituted on two grounds
`directed at Claim 18 of the '945 patent. The issues here are fairly
`straightforward, and Patent Owner's arguments are based entirely
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`on a narrow reading of the prior art, an attempted redrafting of
`Claim 18.
`The first ground is obviousness of Claim 18 by
`Hatanaka and ground 2 is obviousness of Claim 18 over Hatanaka
`and O'Connor.
`Slide 3. Independent Claim 18 recites a method
`comprising determining a mode. Claim 18 then goes on to recite
`three modes of operation.
`Slide 4. ATI disputes only two elements with respect to
`Claim 18. First, ATI disputes the receiving a multiplexed
`packetized data stream at a first demultiplexer. Second, ATI
`contends storing a second program portion of the first program
`simultaneous to the step of decoding is not shown in any of the
`prior art.
`Turning to the first on Claim -- slide 5, what ATI is
`really doing is attempting to severely narrow Claim 18. ATI
`argues that Hatanaka does not teach the first demultiplexer
`because, according to ATI, Hatanaka does not have a first
`demultiplexer that's used across all three modes of operation.
`That is not accurate, and the only way ATI can make
`that argument is to narrow Claim 18 to require that the first
`demultiplexer perform the selecting a first program from the
`multiplexed packetized data stream, a step of Claim 18. Claim 18
`only requires that the first demultiplexer receive the signal.
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`JUDGE McNAMARA: That would be in all three
`modes. Am I correct?
`MR. PLUTA: That's correct, Your Honor.
`The first demultiplexer -- I'm on slide 6 -- does not have
`to do the selecting. The '945 patent doesn't narrow the first
`demultiplexer in such a way and we know this at least for three
`reasons. We can look at the plain language of the claim. Nothing
`says that the first demultiplexer must do the selecting.
`We also can look at the third mode of operation
`described in Claim 18 where ATI specifically states that the
`selecting in that part of the claim must be done by the second
`demultiplexer. So, clearly, ATI knew how to explicitly claim
`when a demultiplexer is expressly doing the selecting.
`Dr. Schonfeld as well states at Exhibit 1012, paragraph
`5, that Claim 18 does not require that any particular element, let
`alone the first demultiplexer perform the selecting step. ATI's
`expert, as well, admitted that Claim 18 doesn't state that the first
`demultiplexer is selecting. That's Exhibit 1011 at page 60, line
`23, through page 61, line 3.
`And the only place other than the claims that a first and
`second demultiplexer is referenced in the '945 patent is in the
`abstract, and there's no disclosure that a first demultiplexer must
`do the selecting.
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`JUDGE McNAMARA: So, is it your contention that
`the first demultiplexer need not do the selecting in any of the
`three modes; is that right?
`MR. PLUTA: That's correct.
`JUDGE McNAMARA: Okay. So I could have the first
`mode, I could have the first demultiplexer doing it, and, in the
`second mode, I could have a different element. It's just as long as
`I perform the step of selecting.
`MR. PLUTA: Right. I think the first demultiplexer, for
`example, in the first mode, the interface 12 would be receiving
`the multiplexed packetized data stream and the selection would
`be done by demultiplexer 2, which we contend is the second
`demultiplexer.
`If we look at Figure 6, we can see the multiplexed
`packetized data stream, which I've highlighted in red.
`JUDGE McNAMARA: This is Figure 6 of Hatanaka?
`MR. PLUTA: That's correct.
`Interface 12, which as I just said we contend, is the first
`demultiplexer under a proper reading of Claim 18 and then it's
`also -- the stream is also received at demultiplexer 9, which we're
`contending is the second demultiplexer.
`The multiplexed data is received in interface 12. The
`signal 4 goes through elements 5, 6 and 7 and then outputs to
`both 12 and 9. And Hatanaka expressly states that it's doing this
`at column 3, lines 14 through 16, that the output from FEC 7 is
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`delivered to the playback changeover switch 8 and the interface
`12.
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`And ATI's expert agreed that the same stream is
`received at both interface 12 and demultiplexer 9. That's Exhibit
`1011 at page 96, line 20, through page 98, line 11.
`ATI's expert also agreed that nothing precludes
`interface 12 from receiving the signal in the play mode, that is the
`receive only or first mode, and that's Exhibit 1011 at page 98, line
`20, through page 99, line 2.
`ATI's expert also admitted that Hatanaka's
`demultiplexer 9 selects a program, Exhibit 1011 at page 101,
`lines 3 through 23. And this is supported by Hatanaka, which is
`shown on slide 9 at column 3, lines 16 through 22, where
`demultiplexer 9 is determining or determines a type, separates
`only packets of a video, then outputs those packets. In fact, both
`interface 12 and demultiplexer 9 select.
`So it's clear from the record that Hatanaka discloses the
`same first demultiplexer, that is interface 12, during all three
`modes of operation set forth in Claim 18. In other words, during
`all three modes, a multiplexed packetized data stream is received
`at interface 12.
`Now, ATI's next contention is that Hatanaka fails to
`disclose simultaneous record and playback, but simultaneous
`storing and decoding, which is what the claim requires, would
`have been obvious to a person of ordinary skill in the art in view
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`of Hatanaka because Hatanaka discloses a system that allows one
`to simultaneously record and decode different portions of a
`program.
`JUDGE McNAMARA: But to clarify, it's not your
`contention that Hatanaka actually discloses that simultaneously.
`MR. PLUTA: That's not -- we've relied on obviousness,
`but there is certainly evidence in Hatanaka that suggests that it
`does simultaneously store and decode. We raise these issues at
`the petition at page 26 as well as Hatanaka, column 3, lines 42
`through 63, column 1, 21 through 22, and Dr. Schonfeld's
`declaration, Exhibit 1004, paragraphs 188 through 191.
`And ATI argues that Hatanaka is limited to a VCR.
`That's simply not true. A VCR is just one type of storage media
`that's described in Hatanaka. On slide 10, Hatanaka at column 9,
`lines 6 through 8, states that while in the above the magnetic tape
`is used as a recording medium, a magnetic disk, an optical disk,
`semiconductor memory or other recording medium may be used.
`Slide 11. Importantly and particularly in view of the
`expressed disclosure of other types of storage media in Hatanaka,
`ATI's expert agrees that a person of ordinary skill in the art would
`know how to replace a VCR with any of the other storage devices
`expressly set forth in Hatanaka.
`And Dr. Schonfeld as well says that any of these storage
`devices could simultaneously record and play back video data.
`That's Exhibit 1012 at paragraphs 11 through 15.
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`Moving on to the next ground, Claim 18 is obvious over
`Hatanaka in view of O'Connor. A person of ordinary skill in the
`art would have been motivated to combine Hatanaka and
`O'Connor, and that's a point that's not disputed between the
`parties.
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`Petitioner relies on O'Connor only to the extent the
`Board would find that a person of ordinary skill in the art would
`not find simultaneous storage and playback obvious in view of
`Hatanaka alone.
`And Hatanaka -- excuse me, O'Connor couldn't be more
`explicit in this regard. Its very title is time-shifting by
`concurrently recording and playing a data stream and the
`Institution Decision recognized that O'Connor discloses a system
`in which the video stream is recorded simultaneously and
`retrieved from the storage unit for immediate playback or delayed
`playback.
`And O'Connor at column 3, lines 23 through 28, column
`3, lines 33 through 40 and column 3, line 62, through column 4,
`line 4, also illustrate this in reference itself.
`So now one of Patent Owner's unfounded criticisms of
`O'Connor is that O'Connor doesn't disclose a specific hardware or
`structure that's recited in Claim 18. But, as we see on slide 13,
`which juxtaposes Figure 6 of the '945 patent and Figure 1 of
`O'Connor, O'Connor discloses the same level of detail as to the
`structures of the '945 patent.
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`In fact, O'Connor goes even further at column 4, lines 9
`through 30. The structure of a hard disk is disclosed expressly in
`O'Connor and that's important because O'Connor describes a hard
`disk. Hatanaka says that it can use a hard disk and a hard disk is
`the very storage media that's disclosed by the '945 patent and
`Hatanaka says at that cite, the retrieval of the time-shifted video
`signal from the hard disk is performed at a first physical location
`or sector of the hard disk in the storing to the hard disk of the
`incoming video stream is performed at a different physical
`location or sector on the hard disk.
`And in slide 14 ATI's expert admits that O'Connor
`discloses simultaneous record and playback. So, in summary,
`Claim 18 is unpatentable because it is obvious over Hatanaka
`alone and obvious over Hatanaka in view of O'Connor, and I'd
`like to reserve the rest of my time for rebuttal.
`JUDGE McNAMARA: Okay. You'll have about --
`JUDGE ARPIN: Counselor, before you sit down, is it
`your position that the Claim 18 requires recording, simultaneous
`recording and decoding or simultaneous recording and playback?
`I see both on your slides.
`MR. PLUTA: Yes, Your Honor. The claim language
`requires simultaneous recording and decoding.
`JUDGE ARPIN: Can decoding be done for anything
`else other than immediate playback?
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`MR. PLUTA: I think where that would happen, Your
`Honor, would be, for example, in the play mode, which is
`different than the playback mode. Playback mode retrieves
`previously stored information from the storage device, sends it up
`and then, ultimately, it's decoded so it can be viewed or
`displayed.
`So in the situation of a play mode, you would have
`decoding without playback.
`JUDGE ARPIN: Could you store decoded material?
`MR. PLUTA: In a general matter, yes. If you're asking
`with respect to Hatanaka, that's what I was looking for.
`Is your question related to Hatanaka specifically or
`more generally?
`JUDGE ARPIN: Well, it's more generally related to the
`patent under review, the -- I'm wondering whether or not we
`should construe decoding as decoding for purposes of storage or
`immediate playback or whether decoding by its very nature only
`relates to immediate playback.
`MR. PLUTA: I think decoding would occur or could
`occur in any mode that's disclosed in the '945 patent. So any
`construction or interpretation of decoding would have to be broad
`enough to cover every remote. Because, otherwise, there would
`be no -- likely would not be any way to display the information to
`a viewer.
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`JUDGE ARPIN: Well, I'm thinking on column 7 of the
`'945 patent beginning at, for example, line 39, it says, “[a]n
`advantage of this mode is reduction of CPU cycles needed for
`A/V playback of stored data due to the PES format of the
`audio/visual data.” It seems to suggest there that at least elements
`of the decoded signal or packet could be stored.
`Am I misreading that?
`MR. PLUTA: No. I think elements of the decoded
`packet could potentially be stored, yes, Your Honor.
`JUDGE ARPIN: Thank you. I'm sorry for interrupting
`you and delaying your sitting down.
`MR. PLUTA: No problem at all.
`JUDGE McNAMARA: Actually I have one more
`question. The Patent Owner has made some arguments about
`claim construction and the construction of the term “portion,”
`portion of the program versus program, and I believe the Patent
`Owner has taken the position that the portion of a program can't
`be an entire program.
`If we were to agree with the Patent Owner, does that
`have any effect on the outcome of this proceeding?
`MR. PLUTA: No, Your Honor. Under either
`construction Hatanaka discloses the claimed program portions
`and, I mean, for the record, we agree with the Board's
`construction at Institution Decision; it's the broadest reasonable
`construction, so it wouldn't change the outcome, but we think it's
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`the correct interpretation because it's the broadest reasonable
`interpretation here.
`JUDGE McNAMARA: Okay. Thanks very much.
`You'll have about 15 minutes left for rebuttal.
`MR. PLUTA: Thank you.
`MR. RAY: Your Honors, may I approach with copies
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`of the --
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`JUDGE McNAMARA: Please. And do you plan to
`discuss the motion on observations?
`MR. RAY: No, Your Honor.
`JUDGE McNAMARA: All right. So then there will be
`no need for rebuttal. You will have 30 minutes.
`MR. RAY: Thank you. Your Honors, as an initial
`administrative matter, there's a typographical error on slide 10 of
`our demonstratives, and we made a written correction just to
`correct data clock 45 or fixed clock 46 to be data clock 45 at the
`top of that slide.
`JUDGE McNAMARA: Thank you.
`MR. RAY: Thank you. May it please the Board, Claim
`18 is directed to a method that includes a specific time-shifting
`technique is more efficient.
`I'm sorry, I have to -- give me a moment to switch our
`slides over.
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`I'm first referring to slide 4. As I was saying, Claim 18
`is directed to a method that includes a specific time-shifting
`technique that is more efficient.
`DVR technology is ubiquitous today. We use it, and we
`take it for granted, but it was not 16 years ago when the '945
`patent was filed and hardware performance and capabilities were
`a fraction of what they are today. So efficiency of processing was
`important.
`Described in the specification of the '945 patent are
`three modes of operation, a receive only mode, which is also
`called transparent mode; a record mode to support, for example,
`continuous time-shifting; and a part-time time-shifting mode. It
`is the part-time time-shifting mode that I will focus on because
`Hatanaka does not teach that, does not suggest that, cannot do
`that.
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`And a specific method and apparatus for performing
`these modes of operation is disclosed and is claimed, and it
`includes two demultiplexers.
`JUDGE McNAMARA: Okay. Let me ask the question
`at the outset because I want to make sure I'm clear. Your position
`is that Hatanaka does not disclose that and cannot do that.
`MR. RAY: Cannot do that, Your Honor.
`JUDGE McNAMARA: But is that really the inquiry? I
`mean, isn't the inquiry whether or not it would be obvious to do
`that based on Hatanaka?
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`MR. RAY: Yes, Your Honor.
`JUDGE McNAMARA: Okay. So why is it important
`whether or not Hatanaka can actually do it?
`MR. RAY: So, Your Honor, as we've explained in
`detail in our papers, Hatanaka teaches a VCR for recording
`whether it's on a magnetic tape, a magnetic disk, an optical disk
`for recording, for playing and doing playback. The circuit that is
`described and shown in the figures of Hatanaka cannot do
`simultaneous record and playback. It physically cannot do it.
`So a person skilled in the art -- if I could -- our expert
`said, for example -- and this goes to the issue of Hatanaka in
`combination with O'Connor. Our expert said, and I'll explain this
`in more detail, but, in paragraph 168 of his declaration, thus,
`given Hatanaka's deficiencies, O'Connor's general and high-level
`teachings regarding time-shifting would not have provided the
`necessary guidance needed by a person having ordinary skill in
`the art to combine Hatanaka and O'Connor and reasonably expect
`success in meeting the limitations of Claim 18.
`In fact, a person having ordinary skill in the art desiring
`to build a system according to Claim 18 would more likely have
`been motivated to create a system from scratch than to have
`started with the system of Hatanaka and attempted to modify it to
`provide the claimed functionality. In fact, O'Connor has nothing
`to the '945 patent that wasn't always already acknowledged as
`being in the prior art.
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`The '945 patent in the background section at column 1,
`in the first paragraph in the first few sentences acknowledge --
`acknowledges that simultaneous recording and playback was
`known in the art. Whether it's simultaneous recording and
`playback or simultaneous decoding in preparation for display, the
`'945 acknowledges that that was known in the art.
`What is described and claimed is a specific way of
`doing it. Okay. One that Hatanaka -- first of all, Hatanaka can't
`do it at all and O'Connor doesn't suggest this method. O'Connor
`never mentions the use of demultiplexers. The '945 patent talks
`about a more efficient way of doing things. It's simply not -- it's
`not taught. It's not suggested by these references.
`JUDGE McNAMARA: Okay. So what is it
`specifically about Claim 18, not necessarily what's in the spec,
`but about Claim 18 that is -- that limits the claim to this particular
`kind of -- I don't want to say implementation, but this kind of --
`for lack of a better word implementation you claim, that if you
`argue is distinguishable?
`MR. RAY: It's the two demultiplexers that are used to
`do this processing. While one demultiplexer is used to select a
`program from a first -- let me say that again. While the first
`demultiplexer -- I'm going to talk about the third mode of
`operation because that really highlights that it's different.
`JUDGE McNAMARA: Right. I'm assuming that's
`where we're going.
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`MR. RAY: Thank you. In that third mode of operation,
`again, it's called in the spec the part-time, time-shifting mode. It's
`the simultaneous recording and playback and there are two
`demultiplexers used, one -- the first demultiplexer is used to
`select a program from the incoming data stream and specifically
`in the third mode it's a first portion for recording while the second
`demultiplexer is used with a second portion of that program that
`had been retrieved from storage, for example.
`That second demultiplexer selects a video portion of the
`second portion for display. It's that structure using two
`demultiplexers that is not taught by Hatanaka and it's not taught
`or suggested by O'Connor either. A simple --
`Turning to the last slide in our slide deck, if it's useful to
`understand, I'm looking at slide 30. Slide 30 is something that
`was prepared by Patent Owner's expert just to try to show in
`simple terms operation.
`There's a first demultiplexer shown at the top of this
`figure, storage shown in the middle and a second demultiplexer
`shown at the bottom. And these -- this circuit operates
`simultaneous -- simultaneously on doing the -- on doing the
`decoding and on doing the recording. It's just simply Hatanaka
`cannot do that.
`Your Honor, I would point out in the petition, as
`originally filed by Petitioners, they recognized this shortcoming.
`Your Honors, give me one moment to find that.
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`JUDGE McNAMARA: Sure.
`MR. RAY: It was at page 49 of the petition. So from
`the outset, Petitioners recognize their weakness when they said --
`again, at page 49 of the petition -- to the extent that the Board
`finds that Hatanaka does not disclose the step of, and they refer to
`the simultaneous step, of Claim 18 it would have been obvious
`over Hatanaka in view of O'Connor.
`So from the beginning, Petitioners recognized the
`weakness and at institution the Board in the Institution Decision
`at page 18 said, the current record does not indicate that Hatanaka
`excludes this mode of operation or that it would not be obvious,
`and then instituted trial on Claim 18 on these two grounds.
`But, Your Honor, we have shown in the Patent Owner
`response that Hatanaka is incapable of having this functionality.
`The circuit simply cannot do it and to argue otherwise I think is
`incredible. It's very clear on the record that it can't do it. And if I
`could give an example.
`JUDGE McNAMARA: Please do.
`MR. RAY: An example of operation in the third mode
`would be, let's say that we're watching currently the NCAA
`basketball tournament.
`JUDGE McNAMARA: I was thinking exactly the same
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`thing.
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`MR. RAY: So let's say a game is expected to last 30
`minutes and you watch -- and in the first mode of operation of the
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`claim you're watching the game in real time as it is received from
`some source.
`In the second mode of operation you're recording the
`game while you're watching it or recording when you're not
`watching it. Okay. You could be recording it to be watched at a
`later time.
`In the third mode of operation you're watching the game
`in real time, you're recording it as you watch it. And let's suppose
`after watching the first five minutes of the game you'd like to
`leave the room and go to the kitchen for a snack. You press
`pause on the device. You pause it, and you freeze it right there.
`And you come back five minutes later, so now you're at minute
`10 of the game. You've just missed five minutes, but you paused.
`JUDGE McNAMARA: And they're the best five
`minutes that were ever played.
`MR. RAY: Most important. So you'd like to do two
`things. You'd like to resume watching the game from the
`five-minute mark, but you also would like to continue recording
`so you don't -- so you could afterwards watch from the 10
`minutes on to the end of the game.
`In order to do that, you must retrieve the stored portion
`between 5 and 10 minutes. You must play that while
`simultaneously recording from 10 minutes on. The first portion
`would be the 5 to 10-minute portion. The second portion cited in
`the claim is from 10 minutes on. Hatanaka cannot do that.
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`JUDGE ARPIN: Counselor, I asked a similar question
`to Petitioner. Where does it talk about displaying, where does it
`talk about playing back in this claim? I don't see that language.
`MR. RAY: Your Honor, it does not. It says decode and
`you're decoding -- typically you're decoding -- what it says
`specifically -- let me not paraphrase. It says in the third mode in
`Claim 18, decoding the video portion of the first program portion
`for display. Okay. It doesn't say for further storage.
`Typically you decode when you're going to display and
`you uncompress the data and format of whatever else you need to
`do for display. So it does say it's doing the decoding for display.
`To your question I guess you wouldn't have to. You
`could do something else with it.
`JUDGE ARPIN: Well, counselor, that is my question.
`It says storing a first program portion and then it says decoding to
`create a -- or decoding a second program portion and storing that.
`MR. RAY: No, Your Honor. What's happening --
`JUDGE ARPIN: Decoding a first program portion and
`storing the second program portion. So you're storing both the
`first program portion and the second program portion and you're
`decoding the first program portion. So you have to have
`something stored before you can decode it, correct?
`MR. RAY: No, Your Honor. As a general statement
`that's not true. For Claim 18 what is happening -- and to simplify
`it, so the first step storing a first program portion of the first
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`program. So you've paused and now you go to the kitchen for a
`snack. And between minutes 5 and 10 you're storing the first
`program portion.
`The next step is providing the first program portion to a
`second demultiplexer. So there's an inferred step there of reading
`that data back from storage. Okay. So the 5 minute -- you read
`that back from storage starting at minute 5. You provide it to a
`second demultiplexer. That second demultiplexer selects the
`video portion for decoding. It doesn't say it. It says it selects it.
`Okay. And then the next step is it decodes that video portion.
`So that's all on the first portion of the program, which is
`when you left to go to the kitchen, it's starting at minute 5 and
`you're going to be able to now watch from minutes 5 to 10. It's
`been stored.
`But in parallel with all that happening, that last step
`says, we better also store a second portion. Otherwise, when you
`get to minute 10, you've got nothing left because you haven't been
`recording for the last 5 minutes.
`JUDGE ARPIN: So as far as the storing the first
`program portion, that's nothing different from what's happening
`in the second mode, correct?
`MR. RAY: Your Honor, in the third mode we're storing
`a program portion. In the second mode we're storing the
`program. So, for example, the second mode would set you up to
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`do what's -- what in the specification is described as a continuous
`time-shifting mode.
`So you can't make the game. You're at work still. You
`record the entire game. You come home. You push play. It's not
`necessary in the second mode to do the simultaneous storage and
`decoding. You recorded the entire game.
`JUDGE ARPIN: Does this then go to Judge
`McNamara's question of Petitioner regarding whether or not our
`construction of first program portion and a second program
`portion matters?
`MR. RAY: Your Honor, it does matter. I think the
`third mode of operation is eviscerated and doesn't make sense if
`first program portion and second program portion could include
`the entire program.
`Your Honor, when a program is being received from a
`source, if you don't store it, it's gone. If you think about a live
`broadcast, if you were to store the entire program as the first
`program, where are you going to get it to store again? It wouldn't
`make sense to be doing that.
`JUDGE ARPIN: That only goes to the -- excuse me,
`I'm sorry, Judge McNamara.
`JUDGE McNAMARA: Go ahead.
`JUDGE ARPIN: Go ahead, please.
`JUDGE McNAMARA: When you talk about the -- in
`the second mode, you talk about storing the first program and
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`that's distinguished, then, from in the third mode where you say
`storing a first program portion. Is that the --
`MR. RAY: Yes, Your Honor.
`JUDGE McNAMARA: That's why you take the
`po
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