Apple Computer Inc. v. Burst.com, Inc.

Filing 157

Declaration of Nicholas A. Brown in Support of 156 Reply Memorandum filed byApple Inc.. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit A part 3# 4 Exhibit A part 4# 5 Exhibit A part 5# 6 Exhibit B part 1# 7 Exhibit B part 2# 8 Exhibit B part 3# 9 Exhibit C# 10 Exhibit D# 11 Exhibit E# 12 Exhibit F# 13 Exhibit G# 14 Exhibit H# 15 Exhibit I# 16 Exhibit J# 17 Exhibit K# 18 Exhibit L# 19 Exhibit M# 20 Exhibit N# 21 Exhibit O)(Related document(s) 156 ) (Brown, Nicholas) (Filed on 9/6/2007) Modified on 9/18/2007 (gba, COURT STAFF).

Apple Computer Inc. v. Burst.com, Inc.

Doc. 157 Att. 1

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Exhibit A

Dockets.Justia.com

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PAGES 1 - 255 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE MARILYN HALL PATEL, JUDGE APPLE COMPUTER, PLAINTIFF,
) ) ) ) )

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vs

*

NO. C 06-0019 MHP

BURST.COM. DEFENDANT. SAN FRANCISCO, CALIFORNIA THURSDAY, FEBRUARY 8, 2007
TRANSCRIPT OF PROCEEDINGS APPEARANCES :

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FOR PLAINTIFF: BY:

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MATTHEW D. POWERS GAFUAND T. STEPHENS NICHOLAS A. BROWN

WEIL, GOTSHAL & MANGES 201 REDWOOD SHORES PARKWAY REDWOOD SHORES, CA 94065

ATTORNEYS AT LAW

ATTORNEYS AT LAW

PARKER C. FOLSE I11 IAN B. CROSBY FLOYD G. SHORT

SUSMAN GODFREY LLP 1201 THIRD AVENUE SEATTLE, WASHINGTON

98101

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

REPORTED BY:

JAMES YEOMANS, CSR #4039, RPR' OFFICIAL REPORTER

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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COMPUTERIZED TRANSCRIPTION BY ECLIPSE

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APPEARANCES :

(CONTINUED)

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FOR DEFENDANT :

BY:

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ATTORNEYS AT LAW

HEIMPAYNE CHORUSH 6710 CHASE TOWER 600 TRAVIS HOUSTON, TEXAS 77002 MICHAEL F. HEIM LESLIE V. PAYNF,

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THURSDAY, FEBRUARY 8, 2007

9:00 A.M.

(THE FOLLOWING PROCEEDINGS WERE HEARD IN OPEN COURT:)
THE CLERK:

CALLING CASE NUMBER C 06-0019, APPLE

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COMPUTER VERSUS BURST.COM, INC. WILL COUNSEL PLEASE MAKE THEIR APPEARANCES FOR THE RECORD.
MR. POWERS:

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MATT POWERS, GARLAND STEPHENS AND

NICHOLAS BROWN FOR APPLE.
MR. FOLSE:

PARKER FOLSE ON BEHALF OF BURST.

WITH ME

AT COUNSEL TABLE ARE MY CO-COUNSEL MIKE HEIM, LES PAYNE, RANDALL GARD AND FLOYD SHORT. AND AS THE COURT REQUESTED, DR. HEMAMI IS ALSO HERE AGAIN WITH US, IN THE EVENT THE COURT HAS QUESTIONS, AS IS MR. LANG, THE INVENTOR, AND HIS WIFE AND CO-FOUNDER LISA.
THE COURT:

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THANK YOU.

GOOD MORNING.

NOW, YOU DIVIDED UP THE PRESENTATIONS INTO GROUPINGS, AND WHO'S GOING TO START WITH RESPECT TO YOUR FIRST GROUP? AND WHAT IS THAT GROUP, FIRST GROUP YOU'RE GOING TO DEAL WITH?
MR. POWERS:

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IF IT HELPS, WE HAVE A SHEET OF PAPER

THAT DESCRIBES THE GROUPS AND HOW WE'RE DIVIDING THEM UP.
MR. FOLSE:

I WAS GOING TO COME TO THAT.

ONE OF THE

SLIDES WE'LL SHOW WHEREIN THE HEARING BINDER THE DIFFERENT GROUPINGS OCCUR.
THE COURT:

WHAT YOUR GOING TO ESSENTIALLY USE THIS

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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POWER POINT, OR SLIDE, WHATEVER, FOR THE PURPOSE OF THE HEARING, CORRECT?
MR. FOLSE:

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YES, I HAVE BINDERS. WE HAVE BINDERS IN CHAMBERS, I DIDN'T

THE COURT:

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BRING THEM OUT, BUT AM I GOING TO NEED THEM, DO YOU THINK? ARE YOU GOING TO PRETTY MUCH HAVE EVERYTHING HERE?
MR. FOLSE:

WHAT I HAVE HERE, THE BINDERS OF THE

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SLIDES WE'RE GOING TO USE TODAY, THAT THE COURT DOES NOT YET HAVE.
THE COURT:

WHY DON'T WE SEE IF WE NEED, AND THOSE ARE

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NOT AS EXTENSIVE AS THE BINDERS WE HAVE, I ASSUME THEN, THAT YOU SUBMITTED EARLIER, OR ARE THEY?
MR. FOLSE:

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THIS JUST THE BINDER OF THE SLIDES.

WE

MAY NOT COVER ALL THE SLIDES, PROBABLY WON'T.
THE COURT:

OKAY.

LET'S SEE IF WE REALLY NEED THOSE A LOT OF OTHERS THEY'RE

BINDERS.

IF SO, WE'LL BRING THEM OUT.

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BOXES IN THERE, TOO. WE'LL SEE.
MR. FOLSE:

WE NEED ALL THAT OUT HERE, I DON'T KNOW,

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I'M NOT -- THESE MAY BE MORE OF

DISTRACTION AS WE TALK TODAY THEN ANYTHING ELSE.
THE COURT:
MR. FOLSE:

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WHY DON'T YOU LEAVE IT DOWN THERE. THE COURT WILL HAVE THEM. I GOT THIS AND I GOT THAT, PRESUMABLY

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THE COURT:

THEY'RE BOTH GOING TO LOOK ALIKE, BUT GO AHEAD. ARE YOU THE ONE THAT'S GOING TO START? JAMES YEOMANS - OFFICIAL REPORTER
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[phone]

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MR. FOLSE:

I'M GOING TO START. AND REALLY WHAT

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AND WHAT I'M GOING TO DO, IS EXPLAIN HOW WE INTEND TO DIVIDE THIS BETWEEN MYSELF AND MY CO-COUNSEL. I'M GOING TO PROVIDE A

BRIEF INTRODUCTION THAT WILL CONSIST OF COVERING THREE TOPICS. THE FIRST, IS TO GIVE THE COURT AN OVERVIEW OF THE PRESENTATION. THE SECOND, ARE SOME COMMENTS BY WAY OF BACKGROUND. AND THE THIRD, VERY BRIEF REVIEW OF KEY CLAIM CONSTRUCTION PRINCIPLES AND THE LAW.

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SO THE OVERVIEW -THE COURT:

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HASN'T CHANGED IN THE LAST WEEK, HAS IT? IT HAS NOT CHANGE. I THINK, THE COURT IS

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MR. FOLSE:

QUITE FAMILIAR WITH IT.
THE COURT:
MR. FOLSE:

YOU SPEND LESS TIME ON THAT.
SO HERE'S HOW WE DIVIDED THE PRESENTATION

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WITH REGARD TO CLAIM TERMS. THE FIRST GROUPING CONSISTS OF THE COMPRESSION TERMS AND TERMS RELATING TO BURST TIME PERIOD. COVER THAT. MR. HEIM IS GOING TO

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HE WILL THEN SIT DOWN AND APPLE'S COUNSEL WILL

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THEN COVER THE SAME GROUP OF TERMS. THEN THE SECOND GROUP OF TERMS, WHICH I WILL COVER, CONSISTS OF TRANSMISSION TERMS AND TERMS RELATING TO THE HANDLING OF AUDIO/VIDEO INFORMATION. AND THEN, AGAIN, I'LL SIT DOWN, APPLE WILL RESPOND. AND THEN THE THIRD GROUPING CONSISTS OF MEANS PLUS JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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FUNCTION ISSUES AND TERMS. AND TO LOOK AT THE HEARING BINDER, AGAIN, NOT THAT THE COURT NEEDS IT, BUT I PREPARED THIS IN THE EVENT THE COURT WANTED TO BE LOOKING AT IT DURING THE PRESENTATION. BUT THIS FIRST GROUPING MR. HEIM WILL COVER ARE THE TERMS LISTED UNDER SUBPARTS A AND B OF THE CLAIM TERMS AND THEN THE GROUPING I WILL COVER. I'M NOT AT ALL SURE THAT I'M GOING

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TO COVER EVERY ONE OF THESE BECAUSE IN THE INTEREST OF TIME, BUT THAT'S THE GROUPING THAT I WILL COVER. AND THEN THIS THIRD GROUPING WHICH WILL BE COVERED BY MR. PAYNE AND, ACTUALLY, MR. HEIM WILL COVER, SIMPLY BECAUSE THEY'RE COMPRESSION MEANS ISSUES IN THAT THIRD GROUPING WHICH ARE RELATED TO THE CLAIM CONSTRUCTION TERMS THAT HE'LL BE DISCUSSING IN THE FIRST SET. ONE QUESTION, I DID THAT IN ORDER TO DETERMINE THE COURT'S PREFERENCE. WE WOULD LIKE SOME OPPORTUNITY TO RESPOND,

TO PROVIDE A REBUTTAL TO APPLE'S ARGUMENTS, AND I CAN THINK OF TWO WAYS, IF THE COURT PERMITS, THAT IT COULD BE DONE. ONE IS, AS APPLE SITS DOWN, MODULE BY MODULE, WHAT MAY ACTUALLY HOPEFULLY SAVE TIME AND BE FASTER TO HAVE ONE REBUTTAL NEAR THE END.
THE COURT:

I THINK, PROBABLY THE LATTER OPTION.

BUT

IF YOU HAVE REBUTTAL ARE WE GOING TO HEAR ABOUT SURREBUTTAL?
MR. POWERS:

DEPENDS ON THE REBUTTAL. WE MAY WANT TO STOP THE TENNIS MATCH

THE COURT:

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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BEFORE WE GET TO REBUTTAL THEN. HERE.

SEEMS TO ME PLENTY OF PAPER

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PLENTY TO GO THROUGH, AND SO I THINK -M R . FOLSE:

THAT WAS OUR FEELING. FORGET REBUTTAL. FORGET REBUTTAL, NO

THE COURT:

REBUTTAL.
MR. FOLSE:
THE COURT:

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ALL TOGETHER? ALL TOGETHER. OTHERWISE IT JUST KEEPS

GOING ON AND ON.
MR. FOLSE:

WE CERTAINLY DIDN'T THINK IT MADE ANY

SENSE TO HAVE REBUTTAL IN THE MIDDLE OF A TENNIS MATCH. WHAT WE DID HOPE, IF THERE WAS SOMETHING IN ORDER OF 15 AND 20 MINUTES AT THE VERY END, WE COULD, IF WE FELT THERE WERE ISSUES.
THE COURT:

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I THINK NOT. OKAY.

I THINK NOT.

IF I THINK WE

NEED IT I'LL LET YOU KNOW.
MR. FOLSE:

LET ME TURN TO THE BACKGROUND COMMENTS

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THAT I WANTED TO MAKE TO THE COURT BY WAY OF OVERVIEW BEFORE WE GET INTO THE CLAIM CONSTRUCTION TERMS. AND THE COURT HAS HEARD SOME OF THESE POINTS BEFORE. IT'S DISCUSSED IN OUR BRIEF, DR. HEMAMI DISCUSSED IT. WE DO

THINK IT IS IMPORTANT THAT THE COURT SHOULD APPRECIATE THE CONTEXT IN WHICH THESE INVENTIONS OCCURRED. WE BELIEVE THAT THEY REPRESENTED A TRUE PARADIGM SHIFT IN THE EDITING, STORAGE AND DELIVERY OF AUDIO/VIDEO INFORMATION. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AND IN 1988 WHEN THE PATENT APPLICATIONS WERE FILED, THE APPLICATION FIRST TO THE ISSUED PATENTS AUDIO AND VIDEO, AT THAT TIME WERE BEING TRANSMITTED PRIMARILY THROUGH BROADCAST IN REAL TIME, WHICH MEANT THAT THE TIME REQUIRED TO TRANSMIT THE AUDIO AND VIDEO WAS NOT DIFFERENT THEN THE TIME REQUIRED TO VIEW OR LISTEN TO IT. THERE WAS A CONTINUOUS TRANSMISSION OF CONTENT AND CONSUMERS WOULD TUNE IN AS THE TRANSMISSION WAS OCCURRING AND VIEW OR LISTEN TO IT AS THE TRANSMISSION WAS OCCURRING. THERE WERE TECHNOLOGIES IN THE ART AT THAT TIME THAT PROVIDED OR DIGITIZING ANALOG AUDIO/VIDEO AND FOR COMPRESSING IT, BUT THOSE TECHNOLOGIES WERE NOT APPLIED IN A WAY AT THAT TIME THAT ALTERED THE TIME REQUIRED FOR TRANSMISSION. THE TRANSMISSION TIME STILL, EVEN WITH THE USE OF THOSE TECHNOLOGIES, DID NOT DIFFER FROM THE TIME REQUIRED FOR VIEWING OR LISTENING. INSTEAD, SYSTEM DESIGNERS USED THOSE TECHNOLOGIES TO PERMIT MORE CHANNELS TO BROADCAST OVER IN REAL TIME OVER THE SAME GIVEN AMOUNT OF BANDWIDTHS. THE BURST INVENTION, MR. LANG'S INVENTION DID WERE TO ESTABLISH A NEW MODEL FOR DIGITAL MEDIA DELIVERY. THEY REFLECTED THE INNOVATION THAT DELIVERY OF AUDIO AND VIDEO WORKS COULD BE ACCOMPLISHED FASTER THAN REAL TIME. THAT IS, MORE RAPIDLY THAN THE TIME REQUIRED TO VIEW OR LISTEN TO THE CONTENT AND THE REPRESENT -- THE INNOVATION JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THAT CONSUMERS COULD BE RECEIVED COMPRESSED WORKS THAT THEY COULD THEN SAVE, EDIT, PLAYBACK OR TRANSMIT TO OTHER DEVICES, RATHER THAN SIMPLY VIEWING THE AUDIO AND VIDEO AS THE TRANSMISSION OCCURRED. AND THOSE INNOVATIONS REFLECTED, WE

BELIEVE, NOT ONLY IN THE PATENTS THEMSELVES, BUT ALSO IN THE PROSECUTION HISTORY. AND I'VE JUST PUT ONE EXAMPLE ON THIS SLIDE FROM THE PROSECUTION HISTORY OF THE '705 PATENT, WHICH DISCUSSES EXACTLY THE KINDS OF CHANGES AND INNOVATIONS THAT I JUST SUMMARIZED. IT REFERS TO THE SYSTEM DESIGNERS FROM THE ADVENT OF COMPRESSION TECHNIQUES, NOTING THAT A SYSTEM IMPLEMENTING COMPRESSION COULD SERVICE MORE CLIENTS IN REAL TIME THEN A SYSTEM WITHOUT COMPRESSION. AND THAT BETTER COMPRESSION ENABLED THE SYSTEM TO SERVICE EVEN MORE CLIENTS, BUT SYSTEM DESIGNERS DID NOT RECOGNIZE THAT TIME-COMPRESSED REPRESENTATIONS COULD BE SENT IN A BURST TIME PERIOD THAT IS SHORTER THAN THE TIME PERIOD NEEDED FOR REAL TIME VIEWING BY RECEIVING
THE COURT:
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I HAVE TO STOP YOU RIGHT THERE.

I HAVE A

PHONE CALL I HAVE TO TAKE, SO I'M GOING TO TAKE A MOMENT AND HOPEFULLY WON'T TAKE VERY LONG. IN THE MEANTIME I DO HAVE A QUESTION, THOUGH, SO YOU CAN TAKE A LOOK. YOU KNOW, THE SUMMARY OF THE INVENTION GIVES YOU AN IDEA OF WHY IS THIS NEW OR WHAT'S, YOU KNOW, WHAT'S IMPORTANT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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ABOUT AND SO FORTH, IS THERE ANYTHING IN THE SUMMARY OF THE INVENTION THAT TELLS US THAT? IF YOU CAN TAKE A LOOK THROUGH WHILE I TAKE THIS PHONE CALL AND THEN YOU CAN ANSWER THAT QUESTION FOR ME WHEN I GET BACK.
MR. FOLSE:
THE COURT:

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THANK YOU. THANK YOU. (RECESS TAKEN.) (PROCEEDINGS RESUMED.)

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THE COURT:

SORRY ABOUT THAT.

BUT NOW DID YOU

UNDERSTAND MY QUESTION?
MR. FOLSE:

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I THINK SO. AS I GAVE YOU HOMEWORK AND LEFT THE BENCH. I THINK I DO. IF I'M NOT ANSWERING THE

THE COURT:

MR. FOLSE:

QUESTION YOU ASKED, PLEASE LET ME KNOW. BUT LET ME REFER THE COURT, I GUESS, IN SEQUENCE, IN THE CONTEXT OF THE '995 PATENT. IN THE ABSTRACT THE FINAL

SENTENCE REFERS TO THE FACT THAT THE RECORDER TRANSMITTER HAS CAPABILITY TO TRANSMIT AND RECEIVE PROGRAM INFORMATION IN EITHER COMPRESSED OR DECOMPRESSED FORMAT OVER FIBEROPTIC LINES.
THE COURT:

NOW, WHICH -- WHERE IS THAT?

IN WHICH

MR. FOLSE:
THE COURT:

THAT IS

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OF THE '995? THAT IS IN THE ABSTRACT OF THE '955 PATENT

MR. FOLSE:

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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ON THE FIRST PAGE, AND I'M GOING TO JUST MOVE THROUGH A COUPLE OF PASSAGES, BUT THAT'S AN APPROPRIATE PLACE TO START.
THE COURT:
M R . FOLSE:

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OKAY. THEN TURNING TO COLUMN ONE IN THE SUMMARY

OF THE INVENTION, WHICH BEGINS AT LINE 64, IT REFERS TO AN IMPROVED AUDIO/VIDEO RECORDER BEING PROVIDED ADDED FEATURES AND FUNCTIONS WHICH SIGNIFICANTLY ENHANCED ITS USEFULNESS AND FUNCTIONALITY. THEN IN VOLUME TWO THE OBJECT OF THE INVENTION ARE DESCRIBED. I WILL REFER THE COURT TO LINE 46 IN COLUMN TWO

WHICH STATES: "A STILL FURTHER OBJECT OF THE INVENTION IS TO PROVIDE AN AUDIO/VIDEO RECORDER UTILIZING A DATA COMPRESSION TECHNIQUE FOR EFFICIENT STORAGE, TRANSMISSION AND RECEPTION OF A DIGITIZED AUDIO/VIDEO PROGRAM OVER TELEPHONE LINES OR BY OTHER EXTERNAL DIGITAL MEANS, SUCH AS SATELLITE TRANSMISSION OR RECEPTION." AND IN MOVING, FINALLY, TO COLUMN 7, AND THIS TIES BACK TO THE REFERENCE TO FIBEROPTIC LINES. THIS IS THE

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DISCUSSION OF THE PREFERRED EMBODIMENT IN COLUMN 7 BEGINNING AT LINE 55, IT STATES: "THE FIBEROPTIC LINE CARRIES DIGITAL SIGNALS IN THE FORM OF LIGHT WAVES OVER GREAT DISTANCES WITH A HIGH DEGREE OF ACCURACY AND RELIABILITY AND AT A HIGH JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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SPEED.

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AND GIVES AN EXAMPLE.

THE VCRET CAN RECEIVE THE VIDEO

PROGRAM AT AN ACCELERATED RATE VIA FIBEROPTIC PORT 18 E.G. FROM A VARIETY OF SOURCES. FOR EXAMPLE, A VIDEO PROGRAM MAY BE COMMUNICATED AT AN ACCELERATED RATE FROM THE FIRST VCRET TO A SECOND VCRET IN LESS TIME THEN IT WOULD TAKE TO VIEW THE PROGRAM, THUS, IT IS NOT NECESSARY TO ACCESS THE OPTICAL FIBER FOR LONG PERIODS OF TIME TO TRANSMIT A LONG VIDEO PROGRAM. IT'S ALSO ENVISIONED IN THE FUTURE A VIDEO LIBRARY MAYBE ESTABLISHED WHICH DOWN LOADS VIDEO PROGRAMS AT AN ACCELERATED RATE VIA OPTICAL FIBERS TO SUBSCRIBERS VCR DT, SO I THINK THOSE PASSAGES MOST DIRECTLY
THE COURT:
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THOSE PASSAGES DO, BUT I JUST FOUND IT

INTERESTING, I DIDN'T SEE ANYTHING IN THE SUMMARY OF THE INVENTION THAT REALLY HIGHLIGHTED -- I MEAN, THE PORTIONS YOU READ ARE FAIRLY OPAQUE, OPAQUE AND NOTHING REALLY SORT OF FOCUSED ON, HEY, THIS REALLY IS TRANSMISSION MUCH FASTER, THINGS OCCUR IN A MUCH -- IN MUCH LESS TIME IN REAL TIME, ET CETERA, AND PLACING EMPHASIS ON THAT. AND BECAUSE SO I WONDER IF WAS -- THIS ENDED UP -- DID THIS END UP -- BECAUSE IN THE PROSECUTION HISTORY BEING A PATCHWORK WAS DONE AND MAYBE SOME -- MAYBE THE CLAIMS WERE CHANGED, BUT OTHER PARTS OF IT WEREN'T CHANGED OF THE APPLICATION. JAMES YEOMANS
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MR. FOLSE:

I THINK NOT, YOUR HONOR.

I THINK, PART OF

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THE EXPLANATION, IS THAT THIS INVENTION PULLED TOGETHER A LOT OF IDEAS. THE APPARATUS AND THE METHOD BEING DESCRIBED IN HERE INCLUDES INFORMATION ABOUT THE RECEPTION OF INFORMATION IN ANALOG FORM AND DIGITAL FORM, THE CONVERSION OF ANALOG TO DIGITAL. DESCRIBES USING DATA KEPT COMPRESSION TO COMPRESS THE

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DIGITAL CONTENT, REFERS TO STORING IT. THERE'S A LOT IN THE PREFERRED EMBODIMENT AND IN MANY OF THE CLAIMS THAT DISCUSS THE ABILITY TO THEN EDIT AND SEGMENT BY SEGMENT BASIS, TO TAKE CONTENT FROM DIFFERENT SOURCES AND MIX THEM TOGETHER AND CREATE NEW WORKS, AND THEN TO TRANSMIT THE PROGRAMS OVER A VARIETY OF COMMUNICATION CHANNELS, INCLUDING THESE VERY HIGH SPEED FIBEROPTIC LINES, IN WHAT -- IN ORDER TO ENABLE RECIPIENTS TO HAVE THE CONTENT, SAVE IT, STORE IT, EDIT IT THEMSELVES ON SIMILAR DEVICES AND, OF COURSE, VIEW IT. AND SO, I THINK, THE PATENT TALKS ABOUT A LOT OF THINGS FROM THE STANDPOINT OF WHERE WE STAND HERE TODAY IN 2007. LOOKING BACK CLEARLY THE PART OF THE INNOVATION THAT

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MAYBE THE MOST SIGNIFICANT IS THE PART WE'RE TALKING ABOUT TODAY. WHETHER OR NOT THE PATENT, THE DRAFTERS OF THE PATENT SPECIFICATION, THE ABSTRACT SHOULD HAVE DONE A BETTER JOB HIGHLIGHTING IT, PROBABLY, IN HINDSIGHT I WOULD SAY, YES, FROM JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MY INTERESTED PROSPECTIVE HERE, BUT I THINK THE INNOVATION IS DISCLOSED IN THE PATENT AND MORE POSSIBLY IN THE PATENT CLAIMS.
THE COURT:

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OKAY.

I WON'T KEEP YOU ON THIS ANYMORE.

I'LL LET YOU MOVE ALONG.
MR. FOLSE:

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OKAY.

SO WE REALLY BELIEVE WITH THAT

BACKGROUND, THAT APPLE'S CLAIM CONSTRUCTION POSITION IN A NUTSHELL REPRESENT AN ATTEMPT TO REWRITE THE PATENTS. THEY HAVE IN FAIRLY OBVIOUS WAYS DEVELOPED CLAIM CONSTRUCTION POSITIONS, BECAUSE OF THE ABILITY OF THOSE POSITIONS IF ADOPTED BY THE COURT TO PROVIDE A DEFENSES TO INFRINGEMENT. THEIR POSITIONS AS WELL EXPLAIN TODAY WE THINK ARE WRONG, AND IN PART THEY CANNOT BE SUPPORTED BECAUSE APPLE DEFENDS THEM IN LARGE PART BY TURNING A BLIND EYE TO THE BEST EVIDENCE, WHICH IS THE PATENT DOCUMENT ITSELF. THEY PROPOSE CONSTRUCTIONS THAT ARE DIRECTLY AT ODDS WITH WHAT THE PATENT DISCLOSES, AND THEY HAVE MISCHARACTERIZED AND TAKEN OUT OF CONTEXT THE PROSECUTION HISTORY. AND MUCH OF THEIR APPROACH TO CLAIM CONSTRUCTION WE THINK RUNS AFOUL OF SOME KEY LEGAL PRINCIPLES, AND I WILL GO THROUGH THESE VERY QUICKLY, AND ACTUALLY EXTRACTED THEM FROM THREE OPINIONS OF THIS COURT. AND I DON'T THINK THE COURT WAS PURPORTING TO MAKE ANY NEW LAW, BUT WAS COLLECTING VERY CLEAR LAW FROM THE FEDERAL CIRCUIT APPLICABLE TO CLAIM CONSTRUCTION. THE THREE DECISIONS JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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BEING:

COLLABORATION PROPERTIES, IXYS CORPORATION AND NIKON

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VERSUS ASM LITHOGRAPHY.
THE COURT:

ALL OF WHICH, I THINK, SETTLED SHORTLY

AFTER.
MR. FOLSE:

SORRY? ALL OF WHICH SETTLED AFTER CLAIM

THE COURT:

CONSTRUCTION.
MR. FOLSE:

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I'M SURE THE COURT KNOWS THAT IS A

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UNCOMMON PHENOMENON. BUT, AGAIN, VERY, VERY QUICKLY, THE COURT HAS RECOGNIZED, AGAIN, THESE ARE ALL PASSAGES FROM THE COURT'S OPINION AND THE INTERNAL QUOTES VARIOUS FEDERAL CIRCUIT'S DECISION THE COURT QUITE CLEARLY RECOGNIZED IN ALL THREE

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DECISION THE FOCUS ON INTRINSIC EVIDENCE. IT ACTUALLY PROVIDES A HIERARCHY, REFER TO IT AS KIND OF ORDER OF OPERATIONS IN CLAIM CONSTRUCTION, WHICH IS TO LOOK AT THE CLAIM LANGUAGE THEN USE THE SPECIFICATIONS TO AID IN DEFINING THE TERMS USED IN THE CLAIMS. IF THAT IS NECESSARY, IF THE CLAIM LANGUAGE IS AMBIGUOUS IN SOME RESPECT AND, FINALLY, TURNING TO THE PROSECUTION HISTORY IF THAT IS NECESSARY. AMONG THE SOURCES OF INTRINSIC EVIDENCE THE COURT HAS RECOGNIZED THAT THE SPECIFICATIONS THE SINGLE BEST GUIDE AND MAY ASSIST IN RESOLVING THE AMBIGUITY. THE COURT HAS ALSO RECOGNIZED THAT A CLAIM JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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CONSTRUCTION THAT WOULD NOT COVER A PREFERRED EMBODIMENT IN THE SPECIFICATION IS RARELY, IF EVER, CORRECT, AND WOULD REQUIRE HIGHLY PERSUASIVE EVIDENTIARY SUPPORT. THAT IS CLEARLY AN ISSUE WITH REGARD TO SOME OF THE COMPRESSION TERMS HERE, WHERE BY ITS OWN ADMISSION APPLE PROPOSING A CLAIM CONSTRUCTION THAT WOULD EXCLUDE THE PREFERRED EMBODIMENT. AND THE CASE LAW DOESN'T SAY THAT IS NEVER PROPER, AND APPLE CITED THREE CASES IN THEIR BRIEF IN WHICH THAT OCCURRED, BUT IN EACH OF THOSE CASES THERE WERE VERY, VERY CLEAR AMENDMENTS THAT WERE ADOPTED DURING THE PROSECUTION HISTORY, IN ORDER TO OVERCOME PRIOR ART AND THE CLAIM LANGUAGE. AND THE DISCLAIMER OF SUBJECT MATTER, SCOPE IN THE PROSECUTION HISTORY WAS EXTRAORDINARILY CLEAR, THAT IS NOT OUR CASE, AS MR. HEIM WILL TALK ABOUT. ONLY DEFINITIVE STATEMENTS OF CLAIMS SCOPE ABANDONMENT ARE JUDICIALLY COGNIZABLE AT THIS STAGE OF THE PROCEEDING, AS FEDERAL CIRCUIT HAS DECLINED TO APPLY THE DOCTRINE OF PROSECUTION DISCLAIMER WHERE THE ALLEGED DISAVOWAL OF CLAIM SCOPE IS AMBIGUOUS. THE LAST POINT ON THIS SLIDE JUST SIMPLY REFERS TO EXTRINSIC EVIDENCE. AND, OBVIOUSLY, EXTRINSIC EVIDENCE AND EXPERT TESTIMONY CAN BE USEFUL TO HELP THE COURT COME TO A PROPER UNDERSTANDING, BUT IT CAN NEVER BE USED TO VARY OR CONTRADICT THE CLAIM LANGUAGE WHERE THE PATENT DOCUMENTS ARE JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AMBIGUOUS, EXPERT TESTIMONY REGARDING THE MEANING OF THE CLAIM 2
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IS ENTITLED TO KNOW WHY THAT IS IMPORTANT ALSO. BECAUSE APPLE'S POSITION WITH REGARD TO THE COMPRESSION TERMS REALLY STARTS WITH EXPERT TESTIMONY, THAT IS THE FOUNDATION FOR THEIR ATTEMPT TO CONVINCE THE COURT THAT THE CLAIMS MEAN SOMETHING ENTIRELY DIFFERENT FROM WHAT THE SPECIFICATION DISCLOSES. SKIP THROUGH THESE SLIDES. I THINK, WITH THAT
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OVERVIEW, YOUR HONOR, I'M NOW GOING TO TURN TO THE

TURNOVER

TO MR. HEIM TO ADDRESS THE FIRST MODULE OF CLAIM TERMS WHICH CONCERN COMPRESSION AND BURST TIME PERIODS.
THE COURT:
MR. FOLSE:
MR. HEIM:

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THANK YOU. THANK YOU. GOOD MORNING, YOUR HONOR. WOULD YOU SPELL YOUR LAST NAME? HEIM, H-E-I-M. OKAY.
SO YOU'RE NOT THE GENTLEMAN WHOSE

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THE COURT:
MR. HEIM:

THE COURT:

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NAME APPEARS AS THE ATTORNEY ON THE PATENT, THAT GETS VERY CLOSE.
MR. HEIM:

IT'S INTERESTING YOU SHOULD SAY THAT.

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WAS SHOCKED WHEN I SAW THE ATTORNEY PROSECUTED THIS WAS A WILLIAM HEIN, H-E-I-N. THE FIRST CONCERN I HAD WAS THAT

SOMEBODY WAS GOING TO THINK THAT WAS MY UNCLE, OR MY BROTHER, OR SOMETHING LIKE THAT. THERE'S NO RELATION WHATSOEVER, YOUR HONOR. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THE COURT:
MR. HEIM:

NOT EVEN SPELLED THE SAME. BUT THEY'RE CLOSE, PEOPLE MISSPELL MY NAME

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THAT WAY ALL THE TIME.
THE COURT:
MR. HEIM:

OKAY. IF I COULD JUST FOLLOW-UP ON ONE POINT

MR. FOLSE RAISED. HE WAS IDENTIFYING THE VARIOUS PASSAGES IN THE '995 SPECIFICATION THAT TALKED ABOUT TRANSMISSION FASTER THAN REAL TIME, THERE'S ONE OTHER THING WE NEED TO ADD TO THAT ANSWER. THAT IS, WE NEED TO LOOK AT THE ORIGINAL CLAIMS AS WELL. BECAUSE THE ORIGINAL CLAIMS RIGHT FROM THE GETGO WERE TRYING TO CLAIM THIS FASTER THAN REAL TIME CONCEPT. AND WE

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KNOW FROM THE CASE LAW FROM THE FEDERAL CIRCUIT THAT THE ORIGINAL CLAIMS ARE PART OF THE APPLICATION, THE SPECIFICATION AS FILED.
SO WE NEED TO TAKE A LOOK AT THOSE.

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WE'LL LOOK AT

THEM A LITTLE BIT LATER. PROSECUTION HISTORY.

WE'RE GOING TO TALK ABOUT THE

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IN PARTICULAR, YOUR HONOR, IF YOU'LL LOOK AT CLAIMS 1 THROUGH 4, AND THE OTHER CLAIMS, I THINK, ARE -THE COURT:
MR. HEIM:

WE'RE LOOKING AT THE '995? '995 PROSECUTION HISTORY CLAIMS 1 THROUGH 4 AND YOU CAN FIND THEM AS EXHIBIT A TO

AND 18 THROUGH 19.

APPLE'S BRIEF AND THE BATES NUMBERS ARE 038 THROUGH 042. AND THE THING THAT YOU'LL NOTICE IS THE CLAIMS ARE JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DRAFTED A LITTLE BIT INARTFULLY, BUT THEY'RE TRYING TO CAPTURE THE CONCEPT SENDING FASTER THEN REAL TIME. THERE'S COMPRESSION TERMS IN THERE AND SENDING FASTER THAN REAL TIME. IN MORE DETAIL WHAT HAPPENED -- AND, AGAIN, WE'LL GET INTO IT WHAT HAPPENED THOSE CLAIMS WERE REJECTED AND

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THAT CONCEPT WAS REFINED AND THOSE ARE THE CLAIMS THAT ULTIMATELY ISSUED IN THE '995 PATENT. WE'LL TALK ABOUT THAT IN

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A LITTLE MORE DETAIL IN A FEW MINUTES HERE. WHAT I'D LIKE TO TALK ABOUT, YOUR HONOR, TODAY, THERE'S FIVE COMPRESSION TERMS, AND WE'RE GOING TO SPLIT UP THE PRESENTATION A LITTLE BIT BECAUSE THE LAST THREE ARE MEANS PLUS FUNCTION TERMS, AND SO WE'LL ADDRESS THOSE WHEN WE ADDRESS THE MEANS PLUS FUNCTION TERMS. WE'RE GOING TO FOCUS ON THE FIRST TWO COMPRESSING, THEN THE VARIOUS PHRASES, THE TIME-COMPRESS REPRESENTATION, I IDENTIFIED THREE VARIANTS OF THAT. WE'RE NOT GOING TO SPEND A LOT OF TIME ON THE DIFFERENT VARIATIONS, BUT IT IS IMPORTANT FOR THE COURT TO REALIZE, THAT THE TIME-COMPRESS REPRESENTATIONS THE PHRASE IS NOT ALWAYS THE SAME. WE'RE GOING TO ADDRESS GLOBAL ISSUES THAT APPLY ACROSS THE BOARD, BUT NONETHELESS THE TERMS ARE DIFFERENT. GLOBAL ISSUE, THIS IS THE BIG ISSUE, PROBABLY, THE BIGGEST ISSUE IN THE BRIEFING, AND CERTAINLY THE ISSUE THAT THE PARTIES SPENT THE MOST PAGES ON, AND THAT IS THIS: JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DOES COMPRESSING SOURCE INFORMATION MEAN THAT YOU DO DATA COMPRESSION? DOES IT INVOLVE DATA COMPRESSION TO REDUCE THE NUMBER OF BITS? OR IS IT THE SITUATION LIKE APPLE IS PROPOSING HERE, THAT YOU COMPRESS IN TIME WITHOUT DATA COMPRESSION? THAT'S THE LANGUAGE THAT THEY USE. LET'S TURN TO THE COMPRESSING TERM. INTERESTING SITUATION. WE HAVE AN

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THE COMPRESSING AUDIO/VIDEO SOURCE

INFORMATION IS ACTUALLY FOUND IN THE FUNCTION OF A LOT OF MEANS PLUS FUNCTION CLAIMS, ESPECIALLY THE ONES THAT REQUIRE COMPRESSING. YOU CAN THINK ABOUT THE CLAIMS, I GUESS, AT TWO DIFFERENT LEVELS. THERE ARE CLAIMS THAT REQUIRE THE

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COMPRESSING AND THERE ARE CLAIMS THAT RECEIVE A COMPRESSED REPRESENTATION, WHERE THE COMPRESSING HAS OCCURRED ALREADY. WITH RESPECT TO THE CLAIMS THAT REQUIRE COMPRESSION, SUCH AS '995 CLAIM 1, THE COMPRESSING IS PART OF THE FUNCTION
OF THE COMPRESSING MEANS.

AND THEN IN THE SITUATION OF THE '839 PATENT, CLAIM 1, WHICH IS NOT IN MEANS PLUS FUNCTION FORMAT, IT'S A METHOD CLAIM, IT'S THE ACTUAL ACT COMPRESSING THAT YOU'LL SEE IN THAT CLAIM.
SO THE LANGUAGE IN THE PATENT '995 CLAIM 1 IS THE

EXAMPLE IS COMPRESSING SAID AUDIO/VIDEO SOURCE INFORMATION INTO JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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A TIME-COMPRESSED REPRESENTATION, THE COMPRESSING OCCURS ON THE AUDIO/VIDEO SOURCE INFORMATION TO CAUSE THE TIME-COMPRESSED REPRESENTATION. THAT'S THE WAY THE CLAIM LANGUAGE READS. FIRST

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CONSTRUCTION OF THAT TERM IS FOCUSED ON DATA COMPRESSION, REDUCE THE NUMBER OF BITS NECESSARY TO REPRESENT THE AUDIO/VIDEO SOURCE INFORMATION. APPLE TAKEN A PASS ON THIS ONE. CONSTRUCTION IS NECESSARY. WHY? WHY ARE THEY NOT TRYING TO PROPOSE A DEFINITION FOR THIS TERM? AND, I THINK, THE REASON IS, YOUR HONOR, THEY'RE CAUGHT BETWEEN A ROCK AND A HARD PLACE A LITTLE BIT ON THIS ONE. THEY WANT TO SAY THE CLAIMS, THE TIMES REPRESENTATION THEY SAY THAT NO

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I THINK, WE HAVE TO ASK OURSELVES

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MEANS THEIR VERSION OF TIME COMPRESSION, BUT THEY REALIZE THE SPECIFICATION IS VERY CLEAR, THAT COMPRESSING MEANS DATA COMPRESSION. AND SO WHEN WE LOOK AT THE SPECIFICATION COLUMNS 4, LINE 63, CONTINUES ONTO CLAIM 5, IT'S REALLY CRYSTAL CLEAR WHAT'S BEING DISCUSSED HERE, IT'S DATA COMPRESSION THAT IS OCCURRING. WHAT THE PASSAGE SAYS IS VARIOUS ALGORITHMS MAYBE EMPLOYED IN THE COMPRESSION PROCESS, WHICH ENABLE THE REPRESENTATION OF A SERIES OF NUMBERS BY REDUCED NUMBER OF JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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BITS. LET'S TAKE THAT PASSAGE AGAIN. COMPRESSION PROCESS WHICH ENABLES THE REPRESENTATION OF A SERIES OF NUMBERS BY REDUCED NUMBER OF BITS. IT'S TELLING

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US WHAT THE COMPRESSION PROCESS IS IN THESE PATENTS. AND SO I'VE DONE A SIMPLE ILLUSTRATION AT THE BOTTOM. YOU HAVE A SITUATION WHERE YOU HAVE AUDIO VISUAL INFORMATION WITH LOTS OF ZEROES AND ONES. YOU DO THIS DIGITAL COMPRESSION

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AND THE RESULT IN REDUCED NUMBER OF BITS, THAT'S WHAT'S DESCRIBED IN THE PATENT. AND BURST CONSTRUCTION FOR COMPRESSED.
THE COURT:

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IS THAT NOW DATA COMPRESSION THAT YOU'RE

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TALKING ABOUT?
MR. HEIM:

ABSOLUTELY, YOUR HONOR, THAT IS DATA

COMPRESSION.
THE COURT:
MR. HEIM:

RIGHT. THE REDUCED NUMBER OF BITS IS DATA

COMPRESSION.

YOUR TAKING DATA OF A CERTAIN SIZE AND YOUR THERE S LESS DATA. THAT S WHAT'S OBVIOUS FROM THE BOTTOM.

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MAKING IT SMALLER.
THE COURT:

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NOW, WHAT DOES THE TERM "REPRESENTATION" REALLY MEAN IN THIS CONTEXT? WHY IS THAT TERM USED? IS THERE A TERM THAT COULD BE USED THAT'S BETTER, MORE ARTFUL? JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MR. HEIM:

WELL, THE TERM THAT BURST USED, WE'LL FIND

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IT IN A SECOND, IS A VERSION OF THE AUDIO/VISUAL SOURCE INFORMATION. APPLE IN THEIR CONSTRUCTION ON TIME-COMPRESSED REPRESENTATION JUST PARROTS THAT WORD REPRESENTATION. THAT TERM IS VERY IMPORTANT, YOUR HONOR. I THOUGHT ABOUT IT A LOT. I THINK REPRESENTATION HERE MEANS THAT SOMETHING HAS CHANGED. YOU KNOW, NOT THE EXACT SAME THING OR YOU WOULDN'T SOMETHING CHANGED ABOUT THAT I THINK

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IT'S VERY IMPORTANT,

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SAY IT'S A REPRESENTATION.

AUDIO/VISUAL SOURCE INFORMATION. WHAT CHANGED? IT'S GOTTEN SMALLER. IT'S SOMETHING THAT'S
SO I THINK THAT

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REPRESENTED WITH DIFFERENT ZEROES AND ONES.

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TERM IS VERY IMPORTANT AND WE CAN'T MAKE LIGHT OF IT. FIRST CONSTRUCTION WITH RESPECT TO COMPRESSING IS, REDUCING THE NUMBER OF BITS NECESSARY TO REPRESENT THE AUDIO/VIDEO SOURCE INFORMATION. THIS IS INTENDED TO PARROT REALLY WHAT IS STATED EXPLICITLY IN THE SPECIFICATION, THAT'S THE GOAL. APPLE'S EXPERT HAS ADMITTED DATA COMPRESSION IS THE

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ONLY THING.
THE COURT:
MR. HEIM:

BACK UP FOR JUST A MOMENT. ABSOLUTELY. WHAT YOU WERE JUST SHOWING THERE AND WHAT

THE COURT:

COLUMN?
MR. HEIM:

COLUMN 4.

THE SAME THING FROM THE PAGE

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BEFORE, COLUMN 4, 63 THROUGH 68, YOUR HONOR. OKAY.
SO WE TOOK IT RIGHT OUT OF THE SPECIFICATION.

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THE COURT:
MR. HEIM:

OKAY. IT'S ABOUT AS CLOSE TO EXPLICIT DEFINITION,

I THINK, AS YOU'LL SEE.
THE COURT:
MR. HEIM:

GO AHEAD, I'M SORRY TO INTERRUPT YOU. THE NEXT POINT I WAS GOING TO MAKE,

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SOMETHING, I THINK, WE ALL AGREE, DATA COMPRESSION WAS DISCLOSED IN THE SPECIFICATION. THE TIME COMPRESSION APPLE'S

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ADVOCATING HERE IS NOT DISCLOSED AT ALL IN THE SPECIFICATION. SPECIFICATION SAYS NOTHING ABOUT IT, THEIR EXPERT SAID THAT AND, I BELIEVE, MR. POWERS SAID THAT LAST WEEK. HE SAID

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BOTH SIDES ARE IN AGREEMENT TIME COMPRESSION IS NOT DISCUSSED OR DISCLOSED IN THE SPECIFICATION, FIGURE 2 OR ANYWHERE ELSE. NO DEBATE ABOUT THAT. FIGURE 2 ONLY DATA COMPRESSION, THE SPECIFICATION

I THINK, WE'RE IN AGREEMENT ON THAT POINT.

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ONLY DISCLOSES DATA COMPRESSION, IT DOESN'T DISCLOSE APPLE'S VERSION OF TIME COMPRESSION.
THE COURT:

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THEN WHY IN CLAIM 1, FOR EXAMPLE, AND

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THROUGHOUT THIS ONE USE THE TERM A "TIME-COMPRESSED REPRESENTATION?"
MR. HEIM:

YOUR HONOR, I THINK THE REASON THEY CHOSE

THAT PHRASE, IS THEY WERE ATTEMPTING TO EXPLAIN IN LAY TERMS EXACTLY THE FUNCTION THAT WAS BEING ACHIEVED HERE. YOU KNOW, LET'S TAKE THE WORDS APART. JAMES YEOMANS
-

YOU GOT A

OFFICIAL REPORTER - [phone]

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REPRESENTATION, IT S A DIFFERENT VERSION THEN THE ORIGINAL SOURCE INFORMATION IT'S SQUEEZED DOWN. IT'S COMPRESSED. IT'S REDUCED. IT'S DATA COMPRESSED.

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TIME-COMPRESSED TAKEN TOGETHER MEANS THERE'S SOME SORT OF TEMPORAL REDUCTION THAT OCCURRED. REDUCTION? THE CLAIM TELLS US WHAT SORT OF TEMPORAL REDUCTION, IT'S A TEMPORAL REDUCTION, SO THAT YOU CAN TRANSMIT IT FASTER THAN REAL TIME. IT IS THAT SHIFT, THAT PARADIGM SHIFT MR. FOLSE TALKED ABOUT TIME-COMPRESSED REPRESENTATION, WASN'T SOME SORT OF MAGICAL INVOCATION HERE TO BRING IN A COMPLETELY DIFFERENT FIELD. THAT'S NOT TALKED ABOUT IN THE SPECIFICATION, IT WAS AN ATTEMPT BY THE INVENTOR AND THE PATENT ATTORNEY TO EXPLAIN IN SIMPLE TERMS THE CONCEPT THAT THEY WERE TRYING TO CAPTURE.
THE COURT:

WHAT SORT OF TEMPORAL

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AND IS THERE IN THE

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IN THE

SPECIFICATION, IS THERE ANYTHING THAT TELLS YOU HOW TO ACHIEVE TIME COMPRESSION?
M R . HEIM:

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YOUR HONOR, I DON'T THINK IT'S IN THE

--

A

SINGLE PLACE, BUT WHEN YOU PIECE TOGETHER THE DIFFERENT PIECES FROM THE OBJECTS OF THE INVENTION FROM THE PASSAGES THAT 4 AND
5, THEY TALK ABOUT DATA COMPRESSION, TO THE PASSAGES THAT TALK

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ABOUT THE ACCELERATED TRANSMISSION TO THE ORIGINAL CLAIMS, ONE SKILLED IN THE ART COULD CERTAINLY PIECE TOGETHER THE CONCEPT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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YOU WERE COMPRESSING IN ORDER TO SEND FASTER THAN REAL TIME, YOU WERE TRYING TO ACHIEVE THIS PARADIGM SHIFT.
THE COURT:

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CAN YOU HELP ME OUT?

WHERE IN THE SPECIFICATION WOULD IT TELL SOMEONE SKILLED IN THE ART THAT THIS IS HOW YOU'RE GOING TO, NOT ONLY COMPRESSED THE DATA, BUT THIS IS HOW YOU'RE GOING TO TRANSMIT IT FASTER OR MOVE IT FASTER?
MR. HEIM:

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YOUR HONOR, IT'S ESSENTIALLY THE SAME IT'S THAT PASSAGE REALLY IN

PASSAGES MR. FOLSE IDENTIFIED.

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COLUMN 2, I THINK, IS ONE PRIME PLACE, WHERE IT INDICATES THE OBJECT OF THE INVENTION IS TO USE A DATA COMPRESSION TECHNIQUE, BUT IF YOU LOOK AT -- LET'S BACK UP FOR A SECOND. IF YOU'RE IN COLUMN 2 AND YOU LOOK AT LINE 42, THE FIRST THING IT SAYS IS THAT IT'S AN OBJECT OF THE INVENTION TO PROVIDE AN IMPROVED AUDIO/VIDEO RECORDER WHICH MAXIMIZES A GIVEN STORAGE CAPACITY, THROUGH THE USE OF A DATA COMPRESSION TECHNIQUE. USE DATA COMPRESSION YOU HAVE MORE MEMORY AVAILABLE

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TO YOU, YOU CAN STORE MORE AUDIO/VISUAL INFORMATION ON IT.
THE COURT:

THAT'S DOESN'T MEAN IT'S GOING TO MOVE

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FASTER.
MR. HEIM:

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YOU'RE RIGHT.

LET'S LOOK AT THE NEXT

PARAGRAPH HERE.
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UNTIL FURTHER OBJECT OF THE INVENTION PROVIDE

THE COURT:
MR. HEIM:

DON'T TIME-COMPRESS YOUR COMMENTS.

OKAY.

A STILL FURTHER OBJECT OF THE INVENTION IS

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TO PROVIDE AN AUDIO/VIDEO RECORDER, UTILIZING A DATA COMPRESSION TECHNIQUE FOR EFFICIENT STORAGE. THAT'S VERY SIMILAR TO WHAT THEY SAID IN THE PREVIOUS PARAGRAPH, RIGHT. AGAIN, THAT MAKES PERFECT SENSE, YOU

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COMPRESSED THE SIDES OF THE DATA YOU'RE GOING TO HAVE MORE STORAGE CAPACITY.
THE COURT:
M R . HEIM:

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RIGHT. NOW, LOOK WHAT IT'S SAYING, ALL FOR

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EFFICIENT TRANSMISSION AND RECEPTION.
THE COURT:

YOU KNOW, THIS IS ONE OF THE PROBLEMS.

THERE'S A COMMA THERE, RIGHT? IT DOESN'T SAY EFFICIENT STORAGE AND TRANSMISSION, IN WHICH CASE EFFICIENT WOULD MODIFY TRANSMISSION. IT SAYS

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EFFICIENT STORAGE COMMA TRANSMISSION AND RECEPTION, DOES EFFICIENT MODIFY RECEPTION ALSO?
M R . HEIM:

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YES, I BELIEVE SO, YOUR HONOR. WELL, ONE CAN BE ONE'S OWN, AS I SAID IN

THE COURT:

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OTHER CASES, ONE CAN BE ONE'S OWN LEXICOGRAPHER, WHETHER ONE'S OWN GRAMMARIAN I DON'T KNOW ABOUT THAT. BECAUSE THE WAY I READ THAT EFFICIENT MODIFIED STORAGE, BUT IT DOESN'T MODIFY TRANSMISSION RECEPTION. I MEAN,

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I'M JUST -- I'M PUZZLED BY THE FACT EFFICIENT SUPPOSE TO TELL
US AND THIS MOST -- FASTER -- EFFICIENT CAN MEAN A LOT OF

DIFFERENT THINGS.
MR. HEIM:

UNDERSTAND.

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THE COURT:

SAVINGS, YOU KNOW, ON POWER OR ALL KINDS

OF OTHER SAVINGS THAT MAYBE, YOU KNOW, RENDERED MORE EFFICIENT.
MFt. HEIM:

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RIGHT. MAYBE I DON'T KNOW WHAT OTHER KIND OF WHETHER YOU DON'T GET INTERFERENCE, OR COULD BE

THE COURT:

THINGS CAN HAPPEN.

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STATIC, OR ANYTHING LIKE THAT, WHATEVER IT MIGHT BE. RENDER IT MORE EFFICIENT.

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WHY NOT SAY FASTER IF, IN FACT, THAT'S WHAT HAPPENING?
MFt.

HEIM:

THEN THEY DID WHEN THEY GOT DOWN TO TALKING THE PASSAGES THAT

ABOUT THE TRANSMISSION IN COLUMN 7.

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MR. FOLSE JUST IDENTIFIED. COLUMN 7 LINE 58 THE VCRET CAN RECEIVE A VIDEO PROGRAM AT AN ACCELERATED RATE.
THE COURT:

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NOW, IS THAT SOLELY BY VIRTUE OF USING

FIBEROPTIC CABLES, OR FIBEROPTIC SIGNALS, OR IS THAT BY VIRTUE OF SOMETHING IN THE PATENT?
MR. HEIM:

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YOUR HONOR, IT'S BY VIRTUE OF A COMBINATION WHEN YOU COMPRESS YOU MAKE THE FILE

OF THE COMPRESSION.

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SMALLER, AND THE POINT, IF YOU FOLLOW THIS THROUGH, IS THAT EVEN FOR THE HIGH SPEED TYPES OF TRANSMISSION LIKE FIBEROPTIC YOU'RE GOING TO USE LESS OF THAT BANDWIDTH, YOU'RE GOING TO ABLE TO SEND IT FAST, NOT CONSUME A LARGE PART OF IT. AND WOULD SUGGEST, EVEN BACK ON THE PASSAGE THEY READ IN COLUMN 2, YOU'RE GOING TO BE ABLE TO SEND THIS INFORMATION, DEPENDING ON THE SIZE OF THE FILE, DEPENDS ON THE SIZE OF THE

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FILE HOW MUCH YOU COMPRESS IT, YOU CAN SEND IT BY OTHER MEANS JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AS WELL AND THE PATENT TALKS ABOUT S E V E M L OF THOSE THAT WE'LL DEVELOP A LITTLE BIT FURTHER. CERTAINLY TALKS ABOUT THE MICROWAVE AND SATELLITE AS WELL. ALSO, TALKS ABOUT TELEPHONE LINES. CLEARLY THERE'S

GOING TO BE SOME INSTANCES WHERE YOU CANNOT SEND IT FASTER THAN REAL TIME OVER THE TELEPHONE AND THERE'S GOING TO BE INSTANCES WHERE YOU CAN. OKAY. DEPENDS ON SIZE OF THE FILE, DEPENDS ON THE

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BANDWIDTH OF THE TELEPHONE LINE, BUT THE OTHER THING THAT -KEEP IN MIND -THE COURT:

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YOU'RE MIRACULOUSLY ABLE NOW, YOU KNOW, I

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DON'T KNOW WHETHER IT'S BY VIRTUE OF THIS OR BY VIRTUE OF SOME OTHER PROCESS, TO TAKE SOMETHING. I JUST DOWNLOADED PART I OF THE HISTORY OF THE PELOPONNESIAN WARS, WHY I DID THAT? VERSION NINE HOURS. INTENSE LISTENING. OKAY. I DON'T KNOW. BUT AUDIBLE

OF LISTENING.

NINE HOURS OF

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AND, I THINK, IT TOOK ALL OF ABOUT TWO AND

A HALF MINUTES TO DOWNLOAD IT. NOW, OBVIOUSLY, SOMETHING IS AT WORK HERE, SOME KIND OF TIME COMPRESSION, HOWEVER IT'S ACHIEVED. BUT IT JUST SEEMS

TO ME THAT THIS PATENT WOULD HAVE EMPHASIZED THIS IF, IN FACT, IT WAS ABLE TO DO SOMETHING ALONG THOSE LINES. AND SO, I THINK, THAT THE GRAMMAR HERE.
--

I THINK, YOUR STRUGGLING WITH

FOR EXAMPLE, GOING BACK TO THIS BUSINESS OF

EFFICIENT THAT WE TALKED ABOUT AND WHAT IT MODIFIES TO GET, BUT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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I DON'T SEE THAT THERE'S ANYTHING IN HERE THAT REALLY TELLS US THAT THAT'S WHAT THIS PARTICULAR INVENTION DOES, AS OPPOSED TO IT'S ENABLED MORE BY THE, YOU KNOW, THE HIGH SPEED TRANSMISSION LINES OF SOME SORT. ELSE.
M R . HEIM:

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WHETHER IT BE FIBEROPTIC OR SOMETHING

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I THINK, IT'S -- IS THE CASE WHEN YOU LOOK BURST WAS NOT

COMPRESSION ALGORITHMS THAT ARE DESCRIBED.

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INVENTING ANY NEW COMPRESSION ALGORITHMS, THEY WERE AMENDING TO USE EXISTING TECHNOLOGY. WHAT MR. LANG WAS TRYING TO DO WAS TO CHANGE THE BROADCAST PARADIGM. WHAT EXISTED BEFORE, WAS PEOPLE SENT

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AUDIO/VISUAL INFORMATION, THE DELIVERY MECHANISM WAS TO SEND IT IN REAL TIME. OKAY. YOU COULD USE COMPRESSION THERE, BUT YOU DIDN'T

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USE IT TO SEND IT FASTER THEN REAL TIME, YOU USED IT TO HAVE MORE CHANNELS ON YOUR CABLE.
THE COURT:

LET ME ASK YOU THIS:

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THE ALGORITHMS THAT ARE USED IN CONNECTION WITH OR WHAT ARE REFERRED TO AT, I GUESS, WHERE YOU WERE READING FROM, THE BOTTOM OF COLUMN FOUR, TOP COLUMN FIVE, THOSE ARE ALGORITHMS USED FOR DATA COMPRESSION IN THIS CASE?
M R . HEIM:
THE COURT:

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YES, YOUR HONOR. CAN THEY ALSO -- THOSE SAME ALGORITHMS BE

USED FOR TIME COMPRESSION?
MR. HEIM:

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REALLY DEPENDS WHAT YOU MEAN BY TIME

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COMPRESSION.

IF YOU MEAN, APPLE'S VERSION OF TIME COMPRESSION,

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THE ANSWER IS, NO.
THE COURT:
MR. HEIM:

NO, YOUR VERSION? YES. THOSE ARE EXACTLY THE COMPRESSION

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TECHNIQUES THAT ARE USED IN ORDER TO GENERATE THE TIME-COMPRESSED REPRESENTATIONS.
THE COURT:

WELL, THEY'RE, APPARENTLY, TO SOMEONE

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SKILLED IN THE ART, THEY WOULD UNDERSTAND WHEN IT SAYS ALGORITHMS, LIKE CCIDTT GROUP MAYBE USED, RIGHT?
MR. HEIM:

THAT'S ABSOLUTELY CORRECT.
SO THAT WOULD HAVE SOME MAGICAL

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THE COURT:

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CONNOTATION TO PEOPLE OF ORDINARY SKILL IN THE ART?
MR. HEIM:

THAT'S RIGHT. BUT CAN YOU USE THOSE SAME ALGORITHMS FOR

THE COURT:

THIS TIME-COMPRESSION FEATURE?
MR. HEIM:

YOU WOULD USE IT FOR THE TIME

--

FOR

GENERATING THE TIME-COMPRESSED REPRESENTATION. AS DR. HEMAMI EXPLAINED LAST WEEK, THERE ARE TWO DIFFERENT CATEGORIES OF COMPRESSION. DATA COMPRESSION THAT IS
--

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DESCRIBED IN THE BURST PATENTS, HER CATEGORY 1, WHICH IS

WHICH SHE REFERRED TO AS COMPRESSING A FRAME INDEPENDENTLY. MR. POWERS REFERS TO IT LATER AS INTRAFRAME TYPE COMPRESSION. THAT'S ONE SORT OF COMPRESSION THAT'S DESCRIBED

IN THESE PATENTS THAT SOMEBODY SKILLED IN THE ART WOULD RECOGNIZE. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THE SECOND TYPE OF COMPRESSION THAT IS DISCLOSED IN THESE PATENTS, IS THE DEPENDENT TYPE OF COMPRESSION. WHERE YOU

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LOOK OFF A TIME INTERVAL, YOU LOOK AT FRAMES SPACED IN TIME AND YOU CODE DIFFERENCES BETWEEN THE FRAMES. OKAY.
SO THAT'S THE SECOND TYPE.

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THAT'S THE CATEGORY

TWO TYPE OF COMPRESSION. ALSO, REFERRED TO, YOUR HONOR, AS TO -- ASKED A QUESTION ABOUT IT LAST WEEK, ALSO REFERRED TO IT AS TEMPORAL COMPRESSION, COMPRESSION OVER TIME. THOSE TWO DIFFERENT ALGORITHMS CAN BE USED TOGETHER OR THEY CAN BE USED SEPARATELY TO REDUCE THE AMOUNT OF DATA IN THE FILE, TO ENABLE TRANSMISSION FASTER THAN REAL TIME.
THE COURT:

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NOW, ARE BOTH OF THOSE ALGORITHMS REFERRED

TO IN THIS PATENT OR IN THE -MR. H E I M :
THE COURT:

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ABSOLUTELY.
-- IN THE SPECIFICATION?

MR. HEIM:

IN COLUMN 5, EVERYBODY AGREES ABOUT THAT.

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THAT BOTH THE INDEPENDENT AND THE DEPENDENT TYPES OF COMPRESSION WHICH APPLE HAS REFERRED TO AS INTRAFRAME, INTERFRAME ARE DISCLOSED IN THE PATENT.
THE COURT:

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OKAY.

GO AHEAD.

I'M SORRY TO INTERRUPT

YOU.
MR. H E I M :

THE -- ONE OF THE POINTS, I WAS JUST GOING

TO COMPLETE ANSWERING YOUR OTHER QUESTION YOU ASKED, AGAIN, ABOUT WHERE IT'S DESCRIBED, AGAIN, IT IS DESCRIBED IN THE CLAIMS. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THERE'S THE ATTEMPT TO CAPTURE THAT CONCEPT, THAT PARADIGM SHIFT.
SO IF WE LOOK AT CLAIMS 1 THROUGH 4 AND 18 AND

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19, WE'LL SEE THAT THEY ARE TRYING TO CAPTURE THE CONCEPT OF RECEIVING AUDIO/VIDEO INFORMATION AT A FIRST SPEED, AND THEN SENDING IT AT A FASTER SPEED TO AN AUDIO PORT, AND PART OF THE WAY THEY DO THAT IN THE CLAIMS, CLAIMS 1 AND 4, 18 AND 19 IS BY COMPRESSION. OKAY. GETGO.
SO THAT SPEED CONCEPT WAS THERE RIGHT FROM THE

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THAT'S NOT SOMETHING THAT CAME IN LATER. OKAY. TIME-COMPRESSED REPRESENTATION, WE CAN MOVE

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THROUGH THIS RELATIVELY QUICKLY. THREE VARIANTS I DESCRIBED. TIME-COMPRESSED REPRESENTATION. THE FIRST IS

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THIS IS IN THE FUNCTION CLAIM

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1 OF THE '995.

"A TIME-COMPRESSED REPRESENTATION HAVING AN ASSOCIATED TIME PERIOD THAT IS SHORTER THAN THE TIME PERIOD ASSOCIATED WITH THE REAL TIME REPRESENTATION." THAT'S THE FIRST VARIANT OF THE PHRASE "HAVING ASSOCIATED TIME PERIOD." NOW BURST HAS CONSTRUED THE PHRASE IN ITS ENTIRETY. THE REASON IS HAVING AN ASSOCIATED TIME PERIOD REALLY DESCRIBES THE TIME-COMPRESSED REPRESENTATION. WHEN THEY STARTED TO USE THE TIME-COMPRESSED REPRESENTATION, THEY PUT IN THIS OTHER VERBIAGE AS WELL TO REALLY MAKE CLEAR WHAT THEY WERE TRYING TO CAPTURE HERE. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THEY WEREN'T TRYING TO CAPTURE THIS OTHER VARIANT, APPLE'S VERSION OF TIME COMPRESSION, THEY WERE TRYING TO CAPTURE THIS CONCEPT OF BEING ABLE TO SEND FASTER THAN REAL TIME. TIME. NOW, AS I SAID, THERE ARE THREE DIFFERENT VARIANTS I GOT UP HERE ON THE TIME-COMPRESSED REPRESENTATION PHRASE. I THAT WAS THE TIME COMPRESSION, SENDING FASTER THAN REAL

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DON'T WANT TO TRY TO NITPICK BETWEEN THE DIFFERENT VARIATIONS HERE BECAUSE WE HAVE SUCH A LIMITED TIME. WHAT I'D LIKE TO DO

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IS TALK ABOUT THE TWO GLOBAL ISSUES THAT REALLY APPLY ACROSS THE BOARD. THE FIRST, OF COURSE, IS DATA COMPRESSION ISSUE, WE TALKED ABOUT ALREADY AND WE'LL DEVELOP FURTHER. THE SECOND ISSUE THAT COMES INTO PLAY, IS THAT APPLE'S DEFINITION REQUIRES A DEFINITE DURATION, THAT IS KNOWN AT THE TIME OF COMPRESSION, WE'LL PICK THAT UP A LITTLE BIT LATER. ONE OTHER POINT I NEED TO MAKE, YOUR HONOR, IS THAT WHEN YOU LOOK AT THE CHARTS AND THE DIFFERENT CONSTRUCTIONS, YOU'LL SEE BURST HAS CONSTRUED THE PHRASE TIME-COMPRESSED REPRESENTATION VARIANTS, IT'S CONSTRUED THAT ENTIRE PHRASE. APPLE'S TAKEN A DIFFERENT APPROACH, THEY'VE BROKEN IT INTO CHUNKS AND THEY CONSTRUED THE CHUNKS. I'M NOT HERE TO

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ARGUE ONE APPROACH OR THE OTHER, I'D LIKE TO FOCUS ON THE TWO DIFFERENT, YOU KNOW, THE TWO MAJOR DIFFERENCES BETWEEN THE PARTIES AND ADDRESS THOSE. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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SO SECOND VARIANT, THE BEING RECEIVED OVER OR IN AN

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ASSOCIATED BURST TIME PERIOD.

WE HAVE THE SAME TWO GENERAL

ISSUES HERE, SAME TWO GLOBAL ISSUES ABOUT COMPRESSING IN TIME WITHOUT USING DATA COMPRESSION AND WE HAVE THE DEFINITE DURATION ISSUE. AND THAT ALSO OCCURS IN THE -- IS CAPABLE TYPE OF LANGUAGE WHICH APPEARS IN '705 CLAIM 1. WE TALKED ABOUT THE VIDEO ISSUE. LET'S TALK ABOUT WHAT TIME-COMPRESS REPRESENTATION MEANS ACCORDING TO BURST, AND I GOT SOME GRAPHICS HERE TO DESCRIBE THAT. IT'S REALLY A TWO-STEP PROCESS. DESCRIBES A TWO-STEP PROCESS. THAT PHRASE REALLY

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FIRST, YOU DATA COMPRESS THE

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AUDIO/VISUAL INFORMATION TO REDUCE THE NUMBER OF BITS.
SO YOU START WITH THE LARGER AUDIO/VIDEO, ORIGINAL

AUDIO/VIDEO SOURCE INFORMATION. YOU GO THROUGH THE COMPRESS PROCESS, WHICH THE PATENT SAYS IS DATA COMPRESSION AND YOU GET THIS COMPRESSED REPRESENTATION. AND REMEMBER THEY USE THE WORD REPRESENTATION TO INDICATE SOMETHING HAD CHANGED HERE, THE BITS HAD CHANGED. THEN STEP TWO, WAS TO ALLOW THIS FASTER THAN REAL TIME TRANSMISSION TO ANOTHER DEVICE. THAT'S THE SECOND PART, AND

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IT'S A CRITICAL PART OF THE TIME-COMPRESSED REPRESENTATION PHRASE, THAT APPEARS IN THE LANGUAGE OF THAT PHRASE ITSELF. AND HERE THE POINT IS THIS: AUDIO/VIDEO SOURCE INFORMATION HAS A TEMPORAL ASPECT. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WHEN YOU TALK ABOUT SONGS, WHEN YOU TALK ABOUT A TV PROGRAM OR A MUSIC VIDEO IT HAS A TIME COMPONENT, IT HAS A COMPONENT. YOU

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KNOW, YOU CAN TURN ON THE STOPWATCH DR. HEMAMI SAID LAST WEEK, AND IT WILL TELL YOU HOW LONG IT PLAYS. TELLS YOU A MUSIC VIDEO IS THREE-MINUTES LONG, AND SO WHEN YOU START PLAYBACK, UNTIL YOU END PLAYBACK THERE'S A TIME COMPONENT ASSOCIATED WITH THAT. THE TIME-COMPRESSED REPRESENTATION, THE TEMPORAL REDUCTION THAT'S BEING DESCRIBED IN THAT PHRASE, IS THE REDUCTION RELATIVE TO THE TRANSMISSION TIME. YOUR ABLE TO SEND THAT DATA COMPRESSED FILE IN LESS TIME THAN IT WOULD TAKE TO PLAY IT BACK. INTENDED BY THAT PHRASE. THAT'S ALL THAT'S

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THAT'S BURST'S CONSTRUCTION.

APPLE'S CONSTRUCTION, APPLE'S POSITION IS DIFFERENT, OF COURSE. THEY SAY YOU HAVE SOURCE INFORMATION. IT GOES

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THROUGH THEIR COMPRESSION PROCESS, WHICH THEIR EXPERT DESCRIBES AS JUST INCREASING THE SIGNALING RATE. WHEN YOU READ OUT THE DATA FROM MEMORY AND YOU GET THEIR VERSION, THEIR SOURCE INFORMATION THAT HAS A HIGHER OR FASTER SIGNALING RATE, BUT THE DATA ITSELF IS IDENTICAL. IT IS

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BIT-FOR-BIT IDENTICAL. THERE HAS BEEN NO DATA COMPRESSION WHATSOEVER. IN FACT, IT'S NOT EVEN A REPRESENTATION AT ALL, IT'S NOT DIFFERENT AT ALL, IT'S THE EXACT SAME DATA. APPLE'S POSITION ON THE TIME COMPRESSION. JAMES YEOMANS - OFFICIAL REPORTER - [phone]
SO THAT'S

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OKAY.

AND, OF COURSE, THE EXAMPLE THEY GIVE IS THE YOU HAVE A 33 RPM ALBUM

CHIPMUNK-SPEED PLAYBACK OF AN ALBUM.

YOU PLAY FASTER, THAT'S WHAT THEY'RE TRYING TO MAKE THE ANALOGY TO. OKAY. WHAT I WANT TO DO NOW, I WA I TO FOCUS ON THE T INTRINSIC EVIDENCE. THE REASON IS, OF COURSE, THAT'S WHAT

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PHILLIPS TELLS US WE HAVE TO DO. BEFORE WE DO THAT, I WANT TO POINT OUT TO THE COURT, THE TERM TIME COMPRESSION DID NOT HAVE A SINGLE MEANING AS APPLE IS SUGGESTING HERE, THAT IS NOT THE CASE. DR. HEMAMI TESTIFIED THAT THERE WERE, AT LEAST, FOUR DIFFERENT
--

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FOUR DIFFERENT USES OF THE TERM TIME COMPRESSION

WHICH SHE HAD SEEN, AND THAT'S IN HER EXPERT REPORT PAGES 42 AND 43. JUST NOT IN THE BURST VERSUS MICROSOFT CASE, MOTZ DEALT WITH THIS ISSUE, AND JUDGE MOTZ CONCLUDED THE TERM TIME COMPRESSION HAD MANY USES. IN PARTICULAR, THE USE THAT JUDGE MOTZ THOUGHT WAS RELEVENT, THE MOST COMMON USE FOR TIME COMPRESS REFERRED DISCARDING VIDEO FRAMES SO YOU CAN SEND SOMETHING FASTER. YOU JUST DROP OUT THE VIDEO FRAMES, SO YOU THAT CAN SEND IT IN REAL TIME VIDEO, VERY LARGE.
SO IN ORDER TO MEET

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TO

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THAT REAL TIME PARADIGM, WHAT EXISTED BEFORE WAS TO COMPRESS BY JUST DROPPING OUT THE FRAMES.
SO THAT'S ANOTHER USE THAT YOU

SEE OF THE WORD TIME COMPRESSION. JAMES YEOMANS
-

OFFICIAL REPORTER - [phone]

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THE COURT:

NOW, BUT IS THAT, IN FACT, DATA

COMPRESSION THAT RESULTS IN TIME COMPRESSION?
MR. HEIM:

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IT

--

YOUR HONOR, I DON'T KNOW IF YOU WOULD

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CHARACTERIZE THAT AS DATA COMPRESSION, JUST TAKING OUT THE FRAMES. I GUESS, YOU COULD SAY IT IS, BUT IT DIDN'T RESULT IN TIME COMPRESSION. IT AT REAL TIME.
THE COURT:

THE REASON IT DIDN'T, IS THEY WERE SENDING

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BUT YOU'RE REMOVING -- YOU WOULD BE

REMOVING, IF YOU'RE DOING IT, YOU WOULD BE REMOVING X NUMBER OF BITS FOR EACH FRAME, RIGHT?
MR. HEIM:

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THAT'S EXACTLY RIGHT.

BUT THEY'RE DOING IT

TO MEET THE REAL TIME PARAMETERS.

THEY CAN'T GET THE

INFORMATION THERE FAST ENOUGH FOR REAL TIME, SO THEY'RE TAKING OUT BITS TO MEET THE REAL TIME PARAMETERS.
THE COURT:

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THIS WHOLE BUSINESS OF, YOU KNOW, WAS USED

THE OTHER DAY IN THE TUTORIAL, TIME COMPRESSION MULTIPLEXING. I KNOW I'M TAKING AWAY FROM YOUR TIME, RIGHT, WELL -MR. HEIM:

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IT'S MORE IMPORTANT.
-- YOUR TIME IS MY TIME, MY TIME IS YOUR

THE COURT:

TIME, RIGHT? THE WHOLE CONCEPT OF TIME-COMPRESSION MULTIPLEXING, IS THAT TERM USED ACTUALLY IN THE PATENT AT ALL?
MR. HEIM:

NO. AND WHAT IS MEANT BY THAT, AS FAR AS YOU

THE COURT:

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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UNDERSTAND?
M R . HEIM:
THE COURT:

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TIME-COMPRESSION MULTIPLEXING? YES. YOUR HONOR, THAT IS A TECHNIQUE THAT

MR. HEIM:

EXISTED.

IT WAS USED IN THE MULTIPLEXING ENVIRONMENT WHERE,

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FOR EXAMPLE, YOU MIGHT WANT TO SEND A LOT OF DIFFERENT TV CHANNELS ON THE SINGLE COMMUNICATION CHANNEL, IT'S A WAY TO SHARE THAT SINGLE COMMUNICATION CHANNEL AMONG MULTIPLE SOURCES. CAN ALSO BE USED IN THE DUPLEX, WHERE YOU'RE TALKING ON THE PHONE, YOU SEND IT BACK AND FORTH. WHAT IT MEANS IS,

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YOU GET THE INFORMATION IN, YOU STORE IT AND THEN YOU READ IT OUT FASTER. THAT'S THE WAY YOU DO THE -- THAT'S HOW YOU REDUCE THE TIME ASPECT. YOU CLOCK IT OUT FASTER. YOU HAVE A HIGHER

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SIGNALING RATE COMES OUT AND THEN YOU INTERLEAVED IT WITH A LOT OF OTHER PIECES, A LOT OF SOURCE INFORMATION AND IT TRAVELS DOWN THE PIPE IN REAL TIME. THAT'S WHAT WE MEANT.

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CAN WE PLAY, AGAIN, THE ANIMATION? JUSTIN, DO YOU HAVE THAT UP? THIS IS AN EXAMPLE OF TIME-COMPRESSION MULTIPLEXING. THIS IS ONE OF THE REFERENCES THAT APPLE WAS USING AT THE TUTORIAL, THE SKLAR REFERENCE. THE WAY THAT TIME-COMPRESSION MULTIPLEXING WORKED, YOUR HONOR, YOU WOULD HAVE THESE VARIOUS SOURCES OVER HERE ON THE LEFT, YOU HAVE THESE VARIOUS DIFFERENT SOURCES. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AND WHAT THEY DO, THEY HAVE DATA THAT'S COMING OUT AND GOING INTO A COMMON PIPE. THAT DATA IS -- WE CAN SEE ON THIS

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NEXT SLIDE IS BEING INTERLEAVED TOGETHER, SO ALL THE DATA BEING INTERLEAVED TOGETHER. OKAY. TIME SLOT. YOU
SO IT'S ALL BEING JAMMED TOGETHER IN A SPECIFIC
--

IT'S LIKE YOU HAVE A PRE-DEFINED TIME SLOT

WHERE YOU GET TO TALK, THEN YOU GET TO TALK, THEN YOU GET TO TALK, THAT'S WHAT MULTIPLEXING MEANS, WE'RE TAKING TURNS.
SO THEY'RE TAKING TURNS HAVING A PIECE OF THAT PIPE,

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AND THE WAY THEY FIT THEM ALL TOGETHER, THEY HAVE THIS THING GOING FASTER ON THIS SIDE THEN THEY DO ON THIS SIDE.
SO THAT DATA COMES IN, GETS STORED AND GETS RIGHT OUT

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FASTER.

GETS JAMMED TOGETHER WITH A BUNCH OF OTHER STUFF, THEN

IT GOES ACROSS THE PIPE. THE THING TO NOTICE ABOUT THIS, YOUR HONOR, IF YOU JUST SEND IT DIRECTLY ACROSS HERE, YOU KNOW, IN REAL TIME, THAT'S EXACTLY THE SPEED THAT THIS THING IS GOING ACROSS. IT'S

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NOT JETTING ACROSS HERE FASTER, IT'S GETTING INTERLEAVED AND GETTING SENT ACROSS THE REAL TIME. THAT'S THE WAY THESE TCM TYPE SYSTEMS WORK, THEY WORK IN REAL TIME. THEY'RE THE KIND OF SYSTEMS THAT THE BURST

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PATENTS WERE TRYING TO CHANGE THE PARADIGM FROM. YOU KNOW, THEY WERE THE REAL TIME SITUATIONS. HOW DO WE SHARE THAT COMMUNICATION CHANNEL? WE'RE GOING TO GIVE

EVERYBODY A SLOT, WE'RE GOING TO CLOCK THE DATA OUT FASTER, JAMES YEOMANS
-

OFFICIAL REPORTER

-

[phone]

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THAT'S THE WAY IT'S GOING TO WORK.
THE COURT:

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THESE OPERATE ONLY WITH FIBEROPTIC CABLE

OR COULD THEY USE OTHER TRANSMISSION MEANS AS WELL?
MR. HEIM:

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THEY COULD USE OTHER TRANSMISSION MEANS AS

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WELL. LET'S TALK ABOUT THE INTRINSIC EVIDENCE. WE WANT TO TALK ABOUT HERE TODAY. WE WANT TO TALK ABOUT THE SPECIFICATION; WE WANT TO TALK ABOUT THE CLAIM CONTEXT; WE WANT TO TALK ABOUT THE PROSECUTION HISTORY. THAT'S WHAT WE'RE GOING TO TALK ABOUT. FOCUS OF BURST'S CASE. THAT'S THE YOU THREE THINGS

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IT'S ALL CONSISTENT WITH THOSE.

USE DATA COMPRESSION TO ACHIEVE THE TIME-COMPRESSED REPRESENTATION. APPLE COMES AT IT A DIFFERENT WAY THAT'S INCONSISTENT WITH WHAT PHILLIPS TELLS US. THEY START BY GOING TO THE

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TREATISES, GOING TO THE THIRD-PARTY ARTICLES. WHAT THEY SAY, YOU USE TIME-COMPRESSED REPRESENTATION, THAT MUST MEAN THIS OVER HERE. THAT DOESN'T MEAN WHAT YOU HAVE

IN THE -- YOUR SPECIFICATION, THIS -- IT MEANS THIS OVER HERE. THE ONLY LINK, THE ONLY WAY THEY HAVE TO JUSTIFY IT, THEY TRY TO SAY, THERE WAS A DISCLAIMER, OCCURRED IN THE PROSECUTION HISTORY, AS WE SAY FROM MISSOURI "THAT JUST AIN'T THE CASE".
SO SPECIFICATION, WE'VE LOOKED AT THESE PASSAGES

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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BEFORE, AND I DON'T THINK WE HAVE TO SPEND A LOT OF TIME ON IT, YOUR HONOR, BUT THE POINT IS, DATA COMPRESSION. THE ONLY THING THAT'S DISCLOSED, I'M NOT GOING TO BEAT A DEATH HORSE, IT'S THE ONLY DATA COMPRESSION. ONLY COMPRESSION DESCRIBED IS DATA COMPRESSION. APPLE'S CONSTRUCTION THAT SAYS THAT YOU GOT TO DO THE COMPRESSION IN TIME WITHOUT USING DATA COMPRESSION, IS EXCLUDING THE PREFERRED EMBODIMENT. THEY ACKNOWLEDGE IT, THEY SAY THEY'RE TRYING TO MEET THE UNUSUAL CASE. QUITE FRANKLY, THEY JUST CAN'T DO IT. THAT'S -- THE

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CLAIM CONTEXT, YOUR HONOR, WE TALKED ABOUT THIS A LITTLE BIT. IMPORTANT. OPERATION. OPERATION. APPLE'S TIME COMPRESSION, THAT TCM TYPE COMPRESSION IS NOT.
SO IF WE LOOK AT THE CLAIMS, I JUST PICKED 9839 CLAIM 1,

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THE CLAIMS GIVE US A CONTEXT HERE THAT'S VERY THE REASON IS THESE CLAIMS DEFINE AN ORDER OF DATA COMPRESSION IS CONSISTENT WITH THAT ORDER OF

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THERE'S AN ORDER OF OPERATION THAT'S DEFINED BY THESE CLAIMS. THE FIRST LIMITATION, RECEIVING AUDIO/VIDEO SOURCE INFORMATION. THAT OCCURS FIRST. NEXT, COMPRESSED THE RECEIVED AUDIO/VIDEO SOURCE INFORMATION. COMPRESSING REFERS TO WHAT HAPPENED BEFORE, HAS TO COME AFTER. RIGHT.

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DOES IT MEAN YOU HAVE TO COMPLETELY RECEIVE EVERYTHING 25 BEFORE YOU START COMPRESSION, BUT COMPRESSING DOESN'T OCCUR JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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UNTIL YOU RECEIVE IT? YOU STORE. WHAT DO YOU STORE? YOU STORE THE

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TIME-COMPRESSED REPRESENTATION.

HAS TO COME AFTER COMPRESSING

BECAUSE THAT'S WHAT THE CLAIM TELLS US. TRANSMITTING. REPRESENTATION. STORED. YOU TRANSMIT THE STORED TIME-COMPRESSED

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INDICATES YOUR TRANSMITTING WHAT'S BEEN

THIS IS A SITUATION WHERE THE CLAIM CONTEXT IS VERY

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SPECIFIC AND SAYS, YOU GOT TO DO THEM IN THIS ORDER. THIS IS THE RIGHT ORDER. THE ORDER IS RECEIVED,

COMPRESSED, STORE THAT TIME-COMPRESSED REPRESENTATION AND TRANSMIT FASTER THAN REAL TIME. THE DATA COMPRESSION THAT IS DISCLOSED IN THE PATENT IS ENTIRELY CONSISTENT WITH THE CLAIM ORDER. WHAT THE

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SPECIFICATION DESCRIBES IS RECEIVING THE AUDIO/VIDEO SOURCE INFORMATION. UP HERE AT THE TOP, NEXT THING THAT HAPPENS IS GOES INTO THE COMPRESSOR DECOMPRESSOR 26. DR. HEMAMI REFERRED TO

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THAT AS CODEC, JUST TAKING THE FIRST COUPLE OF LETTERS FROM EACH OF TERMS. THAT'S A COMMON WAY TO REFER TO THAT IS CODEC.

THE THIRD STEP, YOU STORE THE COMPRESSED AUDIO/VIDEO REPRESENTATION IN MEMORY.
SO YOU RECEIVED IT, YOU COMPRESSED IT, YOU STORED IT,

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NOW YOU TRANSMIT THAT COMPRESSED REPRESENTATION FASTER THAN REAL TIME. THAT'S WHAT THE PATENT DISCLOSED, IT'S ENTIRELY YOU RECEIVE IT, YOU COMPRESS

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CONSISTENT WITH DATA COMPRESSION. JAMES YEOMANS
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OFFICIAL REPORTER - [phone]

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IT, YOU STORE IT, YOU TRANSMIT IT. WE LOOK AT THE TCM REFERENCES, DR. HEMAMI WENT OVER THIS LAST WEEK, AND I'M NOT GONG TO GO THROUGH IT IN GORY DETAIL, BUT THE ORDER IS DIFFERENT. WHAT YOU DO, YOU RECEIVE OVER HERE ON THE LEFT AT THE TERMINAL, THAT'S THE INPUT TERMINAL RIGHT THERE. IT. YOU RECEIVE

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GOT THIS SORT OF SIGNALING, RIGHT, GETS PUT INTO THE

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BUFFER WHERE IT'S STORED AND THEN IT'S READ OUT OF THERE. IT'S CLOCKED OUT AT A HIGHER SIGNALING RATE. SEE THAT THE SIGNALING RATE GETS HIGHER. FREQUENTLY THEN OVER HERE. TRANSMITTED. OCCURS MORE YOU CAN

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SPACED TOGETHER AND THEN IT GETS

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SO THE COMPRESSION IN THE TRANSMISSION REALLY

OCCUR TOGETHER, BUT THE ORDER -THE COURT:
MR. HEIM:

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THE COMPRESSION IN THIS CASE? YES, YOUR HONOR. IS REALLY WHERE THE MULTIPLEXING IS GOING

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THE COURT:

ON, SO TO SPEAK?
MR. HEIM:

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IT IS. WOULD IT BE INCONSISTENT WITH THE WHOLE

THE COURT:

NOTION OF MULTIPLEXING TO HAVE STORAGE AFTER THE MULTIPLEXING?
MR. HEIM:

IT DOESN'T MAKE SENSE AND HERE'S WHY.

WHEN YOU DO THIS SORT OF OPERATION, YOU KNOW, AT STEP THREE, WHERE YOU'RE DOING THE COMPRESSING, YOUR CHANGING THE SIGNALING RATE. CHANGE. IF YOU NOW GO AND STORE IT YOU LOSE THAT

BECAUSE ALL YOU'RE GOING TO STORE IN MEMORY, ARE

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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ZEROES AND ONES. THE SIGNALING RATE DOESN'T GET STORED, IT JUST GETS PUT IN THERE, IT FILLS UP THE BUFFER WITH ZEROES AND ONES. THAT WHOLE SIGNALING RATE TCM COMPRESSION IT'S GONE. IF YOU NEED TO COMPRESS THE -- YOU GOT TO DO IT AGAIN. WHEN IT'S STORED YOU DON'T HAVE THE TIME-COMPRESSED, YOU DON'T HAVE COMPRESS REPRESENTATION ANYMORE, YOU JUST HAVE THE ORIGINAL ZEROES AND ONES AND THAT'S IT. IS IT POSSIBLE THEORETICALLY THAT SOMEBODY MIGHT DO IT? I SUPPOSE THEY MIGHT, BUT THEN THEY HAVE TO COMPRESS IT AGAIN. YOU HAVE TO RECOMPRESS IT.
SO DOESN'T REALLY MAKE

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SENSE TO DO IT. AND THAT'S ONE OF THE KEY PROBLEMS WE HAVE HERE. THEY'RE TAKING TIME-COMPRESSED REPRESENTATION AND THEY'RE SAYING, LISTEN, THAT MEANS TIME COMPRESSION, LIKE THESE TCM REFERENCES. OKAY, WELL, YOU KNOW, OBVIOUSLY, WE DON'T LIKE
--

IS

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THAT EXCLUDES THE PREFERRED EMBODIMENT, BUT THERE'S OTHER PROBLEMS, TOO. THE OTHER PROBLEM IS INCONSISTENT TECHNICALLY THE CLAIM CONTEXT ORDER. IT DOESN'T MAKE ANY SENSE. AND WE GOT A

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THIRD PROBLEM WHEN WE GOT TO THE PROSECUTION HISTORY AS WELL.
SO IT'S OUT OF ORDER.

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DOESN'T MAKE ANY SENSE TO DO IT THAT

WAY. 25 AND ONE OF THE POINTS ON THE BTTCM WHICH I MADE JAMES YEOMANS - OFFICIAL REPORTER
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[phone]

Case 3:06-cv-00019-MHP

Document 157-2

Filed 09/06/2007

Page 48 of 52

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ALREADY I WANT TO REITERATE, '839 SAYS RECEIVED COMPRESSED STORE, TRANSMIT FASTER THAN REALTIME. TCM RECEIVES, STORES OUT IT'S QUITE

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OF ORDER, COMPRESSES, THEN TRANSMITS IN REAL TIME. A BIT DIFFERENT.

NOW, I BELIEVE LAST WEEK THAT MR. POWERS ADMITTED THAT, HE SAID CERTAINLY TRUE THAT THIS REFERENCE, I BELIEVE HE WAS REFERRING TO GITLAND, IT'S NOT ENTIRELY TRUE. THE SEQUENCE

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OF STORAGE AND COMPRESSION, THE CASE TIME COMPRESSING IS DIFFERENT FROM THE SEQUENCE IN THE CLAIMS OF COMPRESSING AND THEN STORING. THERE'S NO DEBATE ABOUT THAT, APPLE AGREES. WHAT I

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HEARD MR. POWERS SAY LAST WEEK IS, BUT YOU'RE TALKING ABOUT VALIDITY, WE'RE NOT TALKING ABOUT VALIDITY HERE. NOT TRUE WE'RE NOT TALKING ABOUT VALIDITY. WE'RE TALKING ABOUT THE SITUATION WHERE THEY'RE TRYING TO DRAFT A LIMITATION ONTO THIS CLAIM THAT EXCLUDES THE PREFERRED EMBODIMENT AND TAKES -- REALLY STANDS THE ORDER OF THE CLAIMED OPERATIONS ON THEIR HEAD. NOT A VALIDITY POSITION, AND THAT'S

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THIS IS THE REASON THAT THEIR TIME COMPRESSION IS JUST WRONG. LET'S SKIP THE ANIMATION WITH THAT. THE PROSECUTION HISTORY. THERE'S THREE PROSECUTION HISTORY WE NEED TO TALK ABOUT, THE '995, THE '932 AND THE '705. LET ME JUST GLOBALLY SUMMARIZE APPLE'S POSITION IN THEIR BRIEFS. THEY SAY, IN THE '995 AND THE '932 CLAIMS WERE I'D LIKE TO GO TO

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

Case 3:06-cv-00019-MHP

Document 157-2

Filed 09/06/2007

Page 49 of 52

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AMENDED. 2 3 4 5
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THEY EVEN TAKE THE POSITION THAT THE ORIGINAL CLAIMS

COVERED THE DATA COMPRESSION. THEY SAY, THAT THE CLAIMS WERE AMENDED TO GIVE UP THE DATA COMPRESSION. THAT'S THEIR POSITION OVERCOME DATA IT'S NOT THE CASE. WE'RE GOING TO LOOK

COMPRESSION PRIOR ART.

AT IT VERY CLOSELY, WE'RE GOING TO SEE IT'S NOT THE CASE. '705 PROSECUTION HISTORY, THEY PULL A SINGLE SENTENCE OUT OF A VERY LONG PROSECUTION HISTORY, AND THEY SAY, LOOK, THERE'S A DISCLAIMER HERE, THIS IS WHERE YOU GAVE UP DATA COMPRESSION. THAT. WHAT I'VE GOT UP HERE IS THE FAMILY TREE OF THE PATENT IN SUIT. I GOT THE '995 AT THE TOP, THE '932 IS THE CIP OF THE AGAIN, IT'S NOT THE CASE, WE'RE GOING TO LOOK AT

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'995, ADDED SOME NEW STUFF. ADDED, FOR EXAMPLE, THE MICROWAVE, USING THE MICROWAVE TRANSCEIVER TO SEND FASTER THAN REAL TIME. WE HAVE THE VISUAL OF THE '839 AND THEN WE HAVE ANOTHER DIVISIONAL THAT ULTIMATELY RESULTED IN THE '705 DOWN HERE.