73.
`
`The word ”flow” was correspondingly added three times in the claim for
`
`the functional limitations. As shown above, the inclusion of ”flow” was a deliberate
`
`choice, added for the first time in the claims in this amendment.
`
`74.
`
`The addition of "for the purpose of drawing DC current” provides an
`
`intended use for the path, namely, to draw DC current.
`
`75.
`
`"Flow” was added to the existing word "current” to impart a different
`
`meaning than merely "for the purpose of drawing DC current.” It connotes that current
`
`is actually flowing.
`
`76.
`
`This is further confirmed by the context in which the term "current flow”
`
`is used. Consistent with the earlier explications of the need to use the path to draw
`
`current in accordance with the asserted invention, the Ethernet terminal equipment was
`
`amended ”to draw different magnitudes of DC current flow,” different magnitudes of
`
`current flow ”result from at least one condition applied,” and further that at least one of
`
`the magnitudes of DC current flow to convey information.”
`
`77.
`
`The changes from ”to draw current” to ”to draw different magnitudes of
`
`DC current flow,” from ”current comprises information” to "DC current flow to convey
`
`information,” and the addition of "at least one condition applied” all confirm that
`
`specific actions are required by the claims.
`
`DISPUTED PHRASES
`
`(A)
`
`The Use of the Infinitive ”To
`
`”
`
`78.
`
`The following phrases in the asserted claims of the Patents-in-Suit use the
`
`infinitive ”to _”: "to draw different magnitudes of DC current flow”; ”to detect at
`
`least two different magnitudes of the current flow”; "to detect current flow”; ”to detect
`
`different magnitudes of DC current flow”; "to detect distinguishing information within
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`the DC current”; ”to distinguish one end device from at least one other end device”; "to
`
`distinguish one network object from at least one other network object”; ”to distinguish
`
`the piece of Ethernet terminal equipment from at least one other piece of Ethernet
`/r_ 1/
`terminal equipment ,
`n_ 11
`other end device ,
`
`to distinguish the powered-off end device from at least one
`
`to distinguish the piece of BaseT Ethernet terminal equipment from
`
`at least one other piece of BaseT Ethernet terminal equipment”; "to control application
`
`of at least one electrical condition”; ”to control application of the at least one DC power
`
`signal”; ”to convey information about the piece of Ethernet terminal equipment”; ”to
`
`convey information about the powered-off end device”; ”to provide at least one DC
`
`current”; and ”to result from at least one condition applied to.”
`
`79.
`
`The prosecution history of the ’107 patent demonstrates that the use of ”to
`
`” for these limitations and "current flow” (as opposed to ”current”) in the claims of
`
`the ’107 patent and continuation ’838 and ’760 patents requires that the functional acts
`
`must be performed, as opposed to only being capable of being performed.
`
`80.
`
`The asserted independent claims of the ’107, ’760, and ’838 patents are
`
`reproduced below with the infinitive ”to
`
`” clauses shown below in italics for
`
`context.
`
`1. A piece of Ethernet terminal equipment comprising:
`
`an Ethernet connector comprising first and second pairs of contacts used to carry
`Ethernet communication signals,
`at least one path for the purpose of drawing DC current, the at least one path
`coupled across at least one of the contacts of the first pair of contacts and at
`least one of the contacts of the second pair of contacts,
`the piece of Ethernet terminal equipment to draw difierent magnitudes of DC
`current flow via the at least one path, the different magnitudes of DC current
`flow to result from at least one condition applied to at least one of the contacts of the
`first and second pairs of contacts,
`
`wherein at least one of the magnitudes of the DC current flow to convey
`information about the piece of Ethernet terminal equipment.
`
`104. A powered-off end device comprising:
`
`an Ethernet connector comprising first and second pairs of contacts,
`at least one path for the purpose of drawing DC current, the at least one path
`coupled across at least one of the contacts of the first pair of contacts and at
`least one of the contacts of the second pair of contacts,
`the powered-off end device to draw diflerent magnitudes of DC currentflow via
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`the at least one path,
`
`the different magnitudes of DC current flow to result from at least one condition
`applied to at least one of the contacts of the first and second pairs of contacts,
`
`wherein at least one of the magnitudes of the DC current flow to convey
`information about the powered-off end device.
`
`’107 patent, claims 1, 104.
`
`1. A BaseT Ethernet system comprising:
`a piece of central BaseT Ethernet equipment;
`a piece of BaseT Ethernet terminal equipment;
`
`data signaling pairs of conductors comprising first and second pairs used to
`carry BaseT Ethernet communication signals between the piece of central
`BaseT Ethernet equipment and the piece of BaseT Ethernet terminal
`equipment,
`
`the first and second pairs physically connect between the piece of BaseT Ethernet
`terminal equipment and the piece of central BaseT Ethernet equipment,
`
`the piece of central BaseT Ethernet equipment having at least one DC supply,
`
`the piece of BaseT Ethernet terminal equipment having at least one path to draw
`difierent magnitudes of current flow from the at least one DC supply through a
`loop formed over at least one of the conductors of the first pair and at least
`one of the conductors of the second pair,
`
`the piece of central BaseT Ethernet equipment to detect at least two different
`magnitudes of the current flow through the loop and to control the application of at
`least one electrical condition to at least two of the conductors.
`
`73. A BaseT Ethernet system comprising:
`Ethernet cabling having at least first and second individual pairs of conductors
`used to carry BaseT Ethernet communication signals, the at least first and
`second individual pairs of conductors physically connect between a piece of
`BaseT Ethernet terminal equipment and a piece of central network
`equipment;
`
`the piece of central network equipment having at least one DC supply,
`
`the piece of BaseT Ethernet terminal equipment having at least one path to draw
`diflerent magnitudes of current flow via the at least one DC supply through a
`loop formed over at least one of the conductors of the first pair of conductors
`and at least one of the conductors of the second pair of conductors, the piece
`of central network equipment to detect at least two different magnitudes of
`currentflow through the loop.
`
`’760 patent, claims 1, 73.
`
`1. A central piece of network equipment comprising:
`
`at least one Ethernet connector comprising first and second pairs of contacts used
`to carry BaseT Ethernet communication signals; and
`
`the central piece of network equipment to detect different magnitudes of DC current
`flow via at least one of the contacts of the first and second pairs of contacts and
`
`to control application of at least one electrical condition to at least one of the contacts of
`the first and second pairs of contacts in response to at least one of the magnitudes of
`the DC current flow.
`
`’838 patent, claim 1
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`81.
`
`The infinitive ”to
`
`” is used in the claims shown above to identify the
`
`function to be performed by the claimed Ethernet terminal equipment, end device, and
`
`central piece of network equipment.
`
`82. Mr. Baxter concedes that these clauses specify a function. Baxter Decl. at ‘E
`
`16. Mr. Baxter also concedes that "current” and ”current flow” do not constitute
`
`structure in the claims. Baxter Decl. at HI 64.
`
`83.
`
`I agree with Mr. Baxter to the extent that the claim language ”at least one
`
`path coupled across [claimed contacts] for the purpose of drawing DC current” alone
`
`does not require current to be flowing through the path. Id. The ”path coupled across”
`
`and related limitations provide the claimed structure necessary for current flow.
`
`84.
`
`However, Mr. Baxter is incorrect that ”claim 1 merely requires a path that
`
`is configured to draw DC current.” Baxter Decl. at ‘H 65.
`
`85. With respect to claim 1 (then pending claim 72) of the ’107 patent,
`
`Applicants’ remarks to overcome the cited Blair and Davis prior references twice
`
`explained that the claims as amended allegedly overcame the prior art because
`
`"although Davis et al. not usage of an Ethernet network, Davis at al. are completely
`
`silent with regard to using the at least one path coupled across contacts to carry Ethernet
`
`communication signals, and to draw current via the at least one path coupled across the
`
`recited contacts ....” ’107 Prosecution History at 1066-67 (CMS050950—51) By both
`
`amending the claim to require action and arguing that that action (the drawing of
`
`current) was not present in the cited prior art, the applicants made it clear that actual
`
`current (current flow) was required in the claim.
`
`86.
`
`Applicants further amendment of claim 72 adding the requirement that
`
`the current results from a condition applied and the addition of the word "flow” after
`
`”current” for all the functional claim limitations further clarifies that performance of the
`
`actions is required. The addition of the word ”flow” was deliberate and suggests a
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`different meaning for ”current” and ”current flow.” Specifically, ”current flow” is
`
`suggesting that the current is actually flowing.
`
`87.
`
`Applicants also amended the claims to add ”for the purpose of drawing
`
`DC current” for the path. Where applicants wanted to assert an intended use or
`
`capability to perform an action, for example, they drafted the claim language
`
`accordingly. Mr. Baxter does not suggest any change in the configuration or design of
`
`the path to allow it to do the rudimentary task of ”drawing DC current”
`
`88.
`
`In View of the remarks in the prosecution history, amendment of the
`
`claims to add "flow,” and functional limitations being tied to the claimed device itself,
`
`Applicants make it clear that the infinitive phrases "to _” should be interpreted to
`
`require that the specified functional limitations are actually performed.
`
`89.
`
`For example, claim 1 of the ’107 patent (then pending claim 72) was
`
`amended to add specific functional limitations tied to actions that would only occur
`
`when current is
`
`resent:
`
`’107 Prosecution History at 1151 (CMS051035).
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`90.
`
`This claim is directed to Ethernet terminal equipment comprising
`
`structural limitations provided by the Ethernet connector and path coupled across the
`
`claimed contacts of the Ethernet connector. This path already has the ability to draw DC
`
`current as evidenced by its intended use.
`
`91.
`
`The remainder of the limitations recite what actions the clamed Ethernet
`
`terminal equipment must do with that structure. Specifically, while the structure is
`
`already provided for drawing DC current Via the path coupled across, the acts of
`
`drawing different magnitudes of DC current due to a condition applied and in which
`
`one magnitude conveys information about the Ethernet terminal equipment must occur.
`
`92. Mr. Baxter asserts that each instance of ”to _” be construed to read in
`
`”configured to” or ”designed to” perform the function recited in the claim. Baxter Decl.
`
`at ‘H 16. In doing so, he is merely rewriting the claims to suit his needs. Had this been
`
`the intent, the drafter of the claims could easily have used the appropriate language.
`
`93. Mr. Baxter's interpretation renders ”the piece of Ethernet terminal
`
`equipment to draw different magnitudes of DC current flow via the at least one path,
`
`the different magnitudes of DC current flow to result from at least one condition
`
`applied to at least one of the contacts of the first and second pairs of contacts, wherein
`
`at least one of the magnitudes of the DC current flow to convey information about the
`
`piece of Ethernet terminal equipment” superfluous.
`
`94.
`
`One of ordinary skill in the art would know that the ”path coupled
`
`across” inherently possesses the ability to draw DC current (including different
`
`magnitudes of DC current) when connected, to have the magnitude of DC current
`
`measured, and to be affected in accordance Ohm’s law. Ethernet terminal equipment
`
`already including the path coupled across does not add any further configuration or
`
`design already present in the path itself.
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`95.
`
`The functions were provided overcome the prior art without imparting
`
`any additional structure to the claim, ”flow” was added, and the remarks by the
`
`Applicant make it clear that ”to
`
`” requires the actions to be performed.
`
`(B)
`
`Current / Current Flow
`
`96. Mr. Baxter and I agree regarding the definition of "current” as a flow of
`
`electrons (or electric charge). We also agree that the use of "current” and ”current flow”
`
`in the patents generally refers to direct current (DC), as opposed to alternating current
`
`(AC). Baxter Decl. at ‘MI 57, 59.
`
`97. Mr. Baxter asserts that "current" and ”current flow” mean the same thing.
`
`Baxter Decl. at ‘H 57. His argument is that because ”curren ” and ”current flow” are both
`
`preceded by ”DC,” they are both "being used in connection with direct current.” Baxter
`
`Decl. at ‘][‘][ 61-63. I agree that ”current” and ”current flow” both refer to direct current
`
`(DC) in the asserted claims.
`
`98.
`
`However, from the fact that both "current” and ”current flow” are
`
`preceded by DC as a modifier, Mr. Baxter wrongly concludes: ”Thus, a person of
`
`ordinary skill in the art would understand that the terms ‘current’ and ‘current flow’ to
`
`mean the same thing in the context of the claims, namely a flow of electric charge.”
`
`Baxter Decl. at '31 63. Mr. Baxter's conclusion does not logically follow and fails to
`
`consider the manner in which "flow” was added in the prosecution history.
`
`99.
`
`As noted above, ”flow” was deliberately introduced in the claims, which
`
`previously only mentioned "current.” This addition was made to distinguish the
`
`functional limitations (i.e., the actions) that the Ethernet terminal device/ end device
`
`must perform from the structural limitations (i.e., the Ethernet connector and the path).
`
`In this respect, ”current flow” connotes that current is actually flowing to satisfy the
`
`claim limitation.
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`100.
`
`For example, in contrast with the path’s structure having an intended use
`
`”for the purpose of drawing DC current,” the applicants specifically amended their
`
`claims to require that the piece of Ethernet terminal equipment draw different
`
`magnitudes of DC current flow via the at least one path.
`
`101.
`
`Following Mr. Baxter's logic, the functional limitations in the claims
`
`reciting ”current flow” become superfluous. The path coupled across has the structure
`
`for DC current to flow and is expressly defined with an intended use of drawing DC
`
`current. The Ethernet terminal equipment as claimed is already defined to include this
`
`path. Applying Mr. Baxter's interpretation, the Ethernet terminal equipment is merely
`
`configured (or designed) to draw different magnitudes of DC current flow in response
`
`to at least one condition applied to a contact. However, such a capability must already
`
`be present in the path through the operation of Ohm’s law.
`
`102. Any ambiguity concerning ”current flow” is resolved by the prosecution
`
`history as discussed above. Applicants specifically added "flow” multiple times for the
`
`functional limitations. Applicants explained that the distinction over the prior art was
`
`”using” the path to draw current, not any structural difference.
`
`103.
`
`The ”at least one path” provides the structure to carry a DC current
`
`presented from one contact in one pair to another Contact in another pair, and that
`
`current is governed by Ohm’s law. Under the claim language, the Ethernet terminal
`
`equipment must have not just the capability to draw different magnitudes of DC current,
`
`it must actually draw different magnitudes of DC current.
`
`(C)
`
`Path Coupled Across
`
`104.
`
`The word ”path” is used only once in the specification:
`
`The output of signal modulator 7 is diode OR’d with the
`output of isolation power supply 8 and then connects to one
`of the transmit data lines that connect to remote module 16.
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`The return path for current from PC 3A is the pair of receive
`data lines.
`
`‘012 Patent, 7:31-53; ’107 Patent, 7:37-61.
`
`105. Mr. Baxter does not propose a plain and ordinary meaning of “path.“ The
`
`plain and ordinary meaning of “path" as used in the claims is the route or course over
`
`which the signal travels. Specifically, the “path" is the course that the signal travels
`
`from one claimed contact to the other claimed contact.
`
`106. Variations of the word “couple” are used 16 times in the specification:
`
`FIG. 10 is a detailed schematic diagram which illustrates a remote
`module and a central receiver module coupled to a network in
`accordance with the third embodiment of the present invention.
`‘O12 Patent, 4:4-7.
`
`Each pair of transmit and receive wires are internally coupled to an
`associated personal computer via two windings of an internally located
`isolation transformer (not shown). Each pair of transmit wires and each
`pair of receive wires thereby form a current loop through one of the
`personal computers 3A through 3D which is advantageously employed
`in accordance with the approach described herein.
`‘O12 Patent, 5:25-32.
`
`Within central module 15 a, high pass filter 62 prevents the encoded
`signal from being conducted through the data lines to hub 1. The signal
`couples through transformer 72 to low pass active filter 74 which filters
`out normal network communications signals. The filtered signal is
`squared-up by comparator 76 and outputted to Manchester decoder 5.
`‘012 Patent, 8:59-65.
`
`It is also within the scope of the invention to couple the signal from the
`receiver data lines through an isolating device into a microprocessor
`wherein the low pass filtering and decoding functions are implemented.
`‘O12 Patent, 9:14-18.
`
`The tether 150 includes two conductive lines 152 and 154 coupled
`between a pair of connectors 156 and 158. An attachment status signal is
`conducted through the conductive lines 152 and 154 for indicating
`whether the tether 150 remains attached to the protected equipment. The
`first conductive line 152 includes pads P1 and P2 inline to provide a
`means of shorting a break in the line. The second conductive line 154 is
`coupled directly between the connectors. An external jumper 160 is
`connected to the output connector 158 of the tether 150 to complete the
`electrical connection.
`
`‘O12 Patent, 11:26-36.
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`The system transmits a signal over pre-existing network wiring or cables
`without disturbing network communications by coupling a signal that
`does not have substantial frequency components within the frequency
`band of network communications. The system is particularly suitable for
`high-frequency networks such as Ethernet operating at speeds of 10
`megabits per second (Mb / s) and higher. For purposes of this invention
`the term "high frequency information” means the band of frequencies
`needed to carry data at 10 Mb / s or more. Coupling a lower frequency
`signal to the data lines of such a network permits increased utilization of
`the available transmitting medium without a commensurate increase in
`the cost of the network.
`‘O12 Patent, 11:64-12:9.
`
`Further suppression of harmonics results from the lowpass filtering
`provided by the resistors used to couple the low frequency signal to the
`data lines acting with the capacitors used for the highpass function
`mentioned above.
`‘O12 Patent, 12:43-47.
`
`A decoder plug 206 attached to a computer port is electronically coupled
`to the sender tag 202. The decoder plug 206 receives the serial stream,
`and then converts the serial stream into a signal format that is
`compatible with the port to which the decoder plug 206 is connected.
`Although, in the presently preferred embodiment the decoder
`lug 206
`is connected to a computer parallel port 210, the principles of the
`invention may be readily extended to other types of ports, such as USB,
`Firewire, keyboard, and serial ports. In addition, the scope of the
`invention includes coupling multiple ID senders 202 to a single decoder
`plug 206 so that multiple objects can be monitored with the decoder plug
`206. Also, connecting multiple decoder plugs 206 in series is within the
`scope of the invention.
`‘O12 Patent, 13:30-44.
`
`Although the presently preferred embodiment of the invention includes
`a port reader 218 and a control manager 216, the principles of the
`invention may be practiced with merely an ID sender tag 202
`electronically coupled to a decoder plug 206.
`‘O12 Patent, 13:59-63.
`
`The buffered serial stream is coupled from the output of the signal
`receiver 230 to an input of the processor 232 which converts it into a
`parallel stream. Firmware in the processor 232 implements an ID reader
`module 236 to provide the conversion function. A tri-state buffer 233
`coupled to the processor 232 permits unobstructed passthrough
`communication from the interface port 210 to a peripheral device
`coupled to the decoder plug 204 through a connector 235.
`‘O12 Patent, 14:64-15:5.
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`Continuing to refer to FIGS. 19 a and 20, during network management
`information mode a network manager determines the location or
`configuration of assets that are coupled to the network by interrogating
`ID senders 202 and decoder plugs 206 attached to assets.
`‘O12 Patent, 16:5-9.
`
`Although, in the preferred embodiment the comparison function of the
`control manager and database is executed on a network server
`electronically coupled through a network to an ID sender tag 202, the
`scope of the invention includes conducting the comparison locally on a
`computer that is being scanned, in a central database over a network,
`over a corporate intranet, and over the world wide Internet.
`‘O12 Patent, 16:28-34.
`
`107. Mr. Baxter cites to the McGraw-Hill Electronics Dictionary definition of
`
`”coupling.” Baxter Decl. at ‘]I 89. I agree that ”coupling” or ”coupled circuit” can be
`
`defined as allowing energy transfer between points along the specified path.
`
`108.
`
`In the context of the claims, ”couple” is used as a verb to connote that a
`
`signal will travel along the claimed path from one claimed contact to the other.
`
`Applying the definition of ”couple” to the claims, an acceptable construction of ”path
`
`coupled across” is a ”path permitting energy transfer between,” which uses Mr.
`
`Baxter's own definition.
`
`109. However, Mr. Baxter seems to believe that the term ”connection” is
`
`somehow more restrictive. It appears that he is interpreting that term to require a direct
`
`connection (e.g., through a single wire), with no intervening components, such as
`
`resistors, inductor windings, etc. Defendants’ construction is not so limited. For
`
`example, Newton's Telecom Dictionary defines ”connection” as ”An electrical
`
`continuity of circuit between two wires or two units, in a piece of apparatus.” There is
`
`no restriction, express or implied, about the connection being direct, without
`
`intervening devices. All that is required is continuity along the path.
`
`110. Mr. Baxter's statements concerning "an important distinction for devices
`
`using DC current, like Power over Ethernet (‘POE’) equipment” are irrelevant. Baxter
`
`Decl. at ‘]I 91. POE products have nothing to do with the Patents-in-Suit or any aspect of
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`the intrinsic evidence. This is merely what Chrimar asserts is infringing, and has no
`
`bearing on how one would understand the plain meaning of the claim.
`
`111.
`
`The configuration suggested by Mr. Baxter in paragraphs 91 and 92
`
`describes passing a DC current through the windings on one side of a transformer. The
`
`piece of coiled wire constitutes an electrical connection through which a DC current
`
`may travel. Contrary to his assertion, Defendants’ proposed construction would not
`
`limit the claim to direct electrical connections; as stated above, a connection may be
`
`achieved through the winding of a transformer, as he states.
`
`112. Mr. Baxter's proposed use of "coupling” is, in fact, too broad for the
`
`context of the Patents-in-Suit. As discussed above, Mr. Baxter and I agree that the use of
`
`"current” and ”current flow” in the patents refers to direct current (DC), as opposed to
`
`alternating current (AC). Baxter Decl. at ‘][‘]I 57, 59. However, Mr. Baxter's proposed
`
`construction using ”coupling” would include (according to his own cited definition),
`
`"inductive [coupling] through a transformer or choke, or capacitive [coupling] through
`
`a capacitor.” Baxter Decl. at ‘]I 89. DC cannot be inductively coupled through a
`
`transformer (mutual inductance), nor can it pass through a capacitor. Indeed, in many
`
`places in the disclosed circuits in the patents, capacitors are strategically placed
`
`specifically to block DC and contain it within the boundaries of the claimed invention.
`
`Smgmaw%Fgs&&10
`
`113.
`
`The use of the term "coupling/’ as defined by Mr. Baxter, would
`
`improperly expand the scope of the claim to paths that could convey alternating current
`
`as well as direct current.
`
`114.
`
`It should be noted that the isolation transformers in Figures 6 and 10 pass
`
`a constant net DC current through the secondary wiring of the transformer, which is
`
`sent back to the central module via two wires operating as a pair. The amount of DC
`
`current on each wire is the total, constant net DC current plus or minus the induction
`
`current supplied across the transformer. The changes in current sent across the
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`magnetic coupling of the transformer themselves are AC signals, but the overall flow of
`
`current through the Ethernet connector and wiring will not change in polarity.
`
`(D)
`
`Loop Formed Over
`
`115. Claim 1 of the ’760 patent recites:
`
`1. A BaseT Ethernet system comprising:
`
`a piece of central BaseT Ethernet equipment;
`
`a piece of BaseT Ethernet terminal equipment;
`
`data signaling pairs of conductors comprising first and
`second pairs used to carry BaseT Ethernet communication
`signals between the piece of central BaseT Ethernet
`equipment and the piece of BaseT Ethernet terminal
`equipment,
`
`the first and second pairs physically connect between the
`piece of BaseT Ethernet terminal equipment and the piece of
`central BaseT Ethernet equipment,
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`the piece of central BaseT Ethernet equipment having at least
`one DC supply,
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`the piece of BaseT Ethernet terminal equipment having at
`least one path to draw different magnitudes of current flow
`from the at least one DC supply through a loop formed over
`at least one of the conductors of the first pair and at least one
`of the conductors of the second pair,
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`the piece of central BaseT Ethernet equipment to detect at
`least two different magnitudes of the current flow through
`the loop and to control the application of at least one
`electrical condition to at least two of the conductors.
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`116. Mr. Baxter asserts that "loop” is "a round trip path formed over [the
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`claimed contacts].” Baxter Decl. at ‘H 78. Mr. Baxter asserts that "the only limitation in
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`the loop as stated in the asserted claims is that the loop is formed over at least one of the
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`conductors of the first pair and at least one of the conductors of the second pair when
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`the first and second pairs are physically connected between the piece of BaseT Ethernet
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`terminal equipment and the piece of central BaseT Ethemet equipment.” Baxter Decl. at
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`‘j[ 82.
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`-37-
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`117.
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`I fail to see the distinction between a round-trip path and a complete
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`circuit. Newton's Telecom Dictionary defines a ”circuit” as ”[A] closed path through
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`which current can flow.” This seems indistinguishable from a round-trip path, and Mr.
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`Baxter never shows, by example or otherwise, how a ”round trip path formed over” is
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`somehow different from a ”complete circuit.”
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`118. Mr. Baxter incorrectly asserts that Claim 1 of the ’760 patent ”merely
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`requires the claimed device be configured to draw different magnitudes of current flow
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`through a loop.” Baxter Decl. at ‘II 82. The Claim additionally requires that ”the piece of
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`central BaseT Ethernet equipment [] detect at least two different magnitudes of the
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`current flow through the loop
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`.” ’760 Patent, Claim 1.
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`(E)
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`Powered Off
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`119. The ”powered-of ” limitation is introduced in claims 103 and 104 of the
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`’107 patent and claims 72 and 145 of the ’760 patent. ”Powered-off” in the claims
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`directly modifies the ”Ethernet terminal equipment” (”end device” in claim 104 of the
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`’107 patent.) Accordingly, the claims attempt to read on an Ethernet terminal equipment
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`or end device that is powered-off.
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`120. Mr. Baxter incorrectly asserts, ”None of the asserted claims says that no
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`power is applied to the Ethernet terminal equipment or the end device.” Baxter Decl. at
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`31 111. In contrast, this is precisely what the claims assert, e.g.:
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`”Claim 103: The piece of Ethernet terminal equipment of any one of claims 1, 17, ...,
`wherein the piece of Ethernet terminal equipment is a piece of powered-off Ethernet
`terminal equipment.”
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`121. The plain and ordinary meaning of ”powered-of ” is that no power is
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`applied. This is exactly the meaning of ”powered-off Ethernet terminal equipment” and
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`”powered-off end device” as used in the claims. There is no ambiguity.
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`122. Any time there is DC current flowing through real-world components in a
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`piece of Ethernet terminal equipment (or any other device), there is power being drawn
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`by that device, equal to the square of the current multiplied by the effective impedance
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`(resistance) of the device. That is, P = I2 x R. Such a device is not powered-off, it is in fact
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`consuming power (regardless of the level of power consumed).
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`123. Mr. Baxter instead asserts that ”powered-off” means "without its
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`operating power.” Baxter Decl. at ‘][‘]I 108, 109, 112. To the extent that his construction is
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`directed to the claim limitations recited, he offers a distinction without a practical
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`difference. The operation being performed by the Ethernet terminal equipment (and
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`end device) is that of drawing different magnitudes of DC current. That operation
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`requires power in order to be performed. A device ”without its operating power” is a
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`device without the power necessary to perform the claimed function.
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`124.
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`Such a claim can never be infringed because there will be no DC current
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`flow when the device is ”powered-off” (under either a construction of "without power
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`applied” or ”without its operating power”). Notwithstanding the poor drafting of these
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`claims, this is their plain meaning. Neither Mr. Baxter or myself is allowed to rewrite
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`this unambiguous claim language.
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`125.
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`It appears that Mr. Baxter's reading of ”powered-off” requires an
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`additional, unclaimed power source that its present somewhere, and which provides
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`”operating power”, but which is turned off at the time the claim is infringed. In other
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`words, ”powered-of ” according to Mr. Baxter does not apply to any of the claim
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`limitations recited to be part of the Ethernet terminal equipment (or end device).
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`126. There is no antecedent basis in the claims for such a separate source of
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`”operating power.” Neither the Ethernet terminal equipment nor the end device are
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`claimed to include a separate source of power beyond the drawing of current recited in
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`the claims. For example, the Ethernet terminal equipment (or end device) as claimed
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`does not recite one portion operable with power from one source, and another portion
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`that is "powered-off.”
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`-39-
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`DECLARATION OF RICH SEIFERT
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`127. A person of ordinary skill in the art would not interpret the claims to
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`require an unwritten claim limitation that is both present and non-operational. Nothing
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`about