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. 3

Case 3:06-cv-00019-MHP

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THAN THE REAL TIME VIEWING TIME OF THE AUDIO/VIDEO SOURCE INFORMATION EXISTS AT THE TIME THE TIME-COMPRESSED REPRESENTATION IS MADE.
SO THAT WAS THE HOLDING BY JUDGE MOTZ ON THAT PART OF

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THE QUESTION.

WHICH, OF COURSE, IS PART OF THE QUESTION

PRESENTED HERE AND THAT IS THE SAME REASONING WE URGE HERE AS WELL. LET'S GO BACK TO WHERE WE WERE.
SO BURST'S ARGUMENTS

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TO YOUR HONOR TODAY ARE SQUARELY INCONSISTENT WITH WHAT THEY TOLD THE EXAMINE IN EUROPE. FIRST THEY TRIED TO MAKE THE SAME ARGUMENT, OH, NO, IT'S TIME COMPRESSION BACK THERE ON PAGE SEVEN, AND THEN THEY SAID, OKAY, YOU'RE RIGHT, IT'S JUST DATA COMPRESSION, SO WE'LL CHANGE THE CLAIMS TO MAKE CLEAR THAT IT'S DATA COMPRESSION, BUT THEN SEPARATELY, IT'S NOT JUST DATA COMPRESSION SEPARATELY CAPABLE OF BEING TRANSMITTED IN THE TIME-COMPRESSED REPRESENTATION. AND NOW HERE'S WHAT WAS ON PAGE SEVEN EVERYBODY WAS TALKING ABOUT IN THE EUROPEAN FILE HISTORY. IT JUST SAYS,

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REDUCED NUMBER OF DIGITS, EXACTLY THE SAME PORTION WE'RE TALKING ABOUT HERE. SO LET'S GO TO ASSOCIATED BURST TIME PERIOD BECAUSE, IN OUR VIEW, ASSOCIATED BURST TIME PERIOD IS DIRECTLY RELEVANT TO CONSTRUING TIME-COMPRESSED REPRESENTATION. BECAUSE, OF COURSE, THE LAW IS CLEAR, YOU HAVE TO JAMES YEOMANS - OFFICIAL REPORTER - [phone]
Dockets.Justia.com

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CONSTRUE ALL THE WORDS OF A CLAIM SO THEY'RE ALL CONSISTENT WITH EACH OTHER, THEY ALL FIT WITH EACH OTHER AND THEIRS DOESN'T REALLY FIT WITH ASSOCIATED BURST TIME PERIOD. A TRUE TIME COMPRESSION, AS THOSE IN THE ART USE IT, HAS, OF COURSE, AND ASSOCIATED BURST TIME PERIOD. AND IF YOU LOOK ANY -- BECAUSE YOUR SQUEEZING IT IN TIME, THE ASSOCIATED BURST TIME PERIOD, WHATEVER YOUR SQUEEZING IT INTO, THAT IS THE BURST TIME PERIOD BY DEFINITION. YOU HAVE AN ASSOCIATED BURST

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TIME PERIOD WHICH IS WHY TIME COMPRESSION MUST MEAN WHAT IT DOES. THE PROBLEM, OF COURSE, IS THAT BURST'S PROPOSED CONSTRUCTION OF TIME COMPRESSION HAS NO ASSOCIATED BURST TIME PERIOD AS REQUIRED BY THE CLAIM. WHY?

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BECAUSE IT'S -- THEY'RE JUST TALKING ABOUT DATA COMPRESSION, AND KNOWING HOW SMALL OR LARGE A FILE SIZE IS TELLS YOU NOTHING ABOUT HOW FAST IT'S GOING TO GO. NOTHING

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BECAUSE YOU HAVE TO KNOW BY WHAT PIPE IT'S GOING TO GO.
SO THEY EVEN ADMIT THAT, THEY ADMIT THAT IN THE REPLY

BRIEF.

THEY SAY, DURATION CAN ONLY BE KNOWN IF BOTH THE FILE

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SIZE AND TRANSMISSION SPEED ARE KNOWN, BUT YOU DON'T KNOW THE TRANSMISSION SPEED, OF COURSE, AT THE TIME YOU'RE DOING THE COMPRESSION.
SO THAT'S SQUARELY INCONSISTENT WITH THE WAY THE

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MODERN DICTIONARY ELECTRONICS AND THE OTHER PEOPLE USE THE WORD. BURST TRANSMISSION IS A RADIO TRANSMISSION SENT 10 TO A JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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HUNDRED TIMES MORE THAN NORMAL SPEED RECORDED AND RETURNED AT NORMAL RATE. I THINK, WE TALKED ABOUT THAT.

SO, REALLY WHEN YOU GET TO THE CLAIM, THE CLAIM WE'VE

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REPEATED ON THE LEFT, THEIR PROPOSED CONSTRUCTION FIRST, JUST READS TIME OUT. IF YOU JUST READ IT WITHOUT THE WORD TIME, IT

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WOULD BE DIRECTLY CONSISTENT WITH THEIR CONSTRUCTION. BUT, ACTUALLY, ACCORDING TO THEIR CONSTRUCTION WHOLE CHUNKS OF THIS CLAIM YOU DON'T NEED. YOU DON'T EVEN NEED

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HAVING ASSOCIATED BURST TIME PERIOD THAT IS SHORT, ET CETERA, ET CETERA. YOU DON'T NEED ANY OF THAT, ALL OF NEED ACCORDING

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TO THEIR CONSTRUCTION IS THIS. BURST UNDER THEIR VIEW TIME COMPRESSION MEANS SENDING IT FASTER THAN REAL TIME. FASTER THAN REAL TIME. BURST TIME PERIOD MEANS SENDING IT

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AN ASSOCIATED BURST TIME PERIOD MEANS

SENDING IT FASTER THAN REAL TIME. ALL THOSE THREE THINGS, THREE DIFFERENT SETS OF THAT CLAIM ARE ALL -- SHOULD JUST BE CONSTRUED TO MEAN EXACTLY THE SAME THING, RENDERING ALL SUPERFLUOUS AND NECESSARY, THAT'S EXACTLY WHAT THEY DO. THESE ARE JUST -- THESE QUOTES FROM THEIR REPLY BRIEF THEY SAY TIME AND TIME COMPRESSED JUST MEANS IT'S LESS TIME THEN PLAYBACK. THEM. OKAY.
SO THAT'S WHAT THAT MEANS ACCORDING TO

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BURST TIME PERIOD IS, ALL RIGHT, JUST LESS TIME THAN

PLAYBACK, AND ASSOCIATION JUST MEANS LESS TIME THEN PLAYBACK.
SO THEY -- THEIR PROPOSED CONSTRUCTION VIOLATES

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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SQUARELY THE RULE THAT YOU CAN'T INTERPRET A CLAIM THAT RENDERS IN THIS CASE ABOUT 30 PERCENT OF THE WORDS IRRELEVANT. OTHER CLAIMS. I THINK, WE COVERED THIS. THEIR OTHER

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CLAIMS, WE COVERED THIS PROPOSED CONSTRUCTION. CLEARLY IN THE DIGITAL WORLD REDUCED NUMBER OF BITS, THERE ARE NO BITS IN THE ANALOG WORLD, YET MANY OF THEIR CLAIMS HAVE NO CONVERSION. THERE'S NO COMPRESSION AND THERE'S NO DIGITALIZATION OF IT, YET THEIR PROPOSED CONSTRUCTION ACTS AS IF THEIR INVENTION IS PURELY DIGITAL, IT'S NOT TRUE AS WE DESCRIBED BEFORE. TAKE, FOR EXAMPLE, CLAIM 1, WHICH HAS NO A TO D CONVERSION, NO EXPRESSION OF DIGITAL ANYWHERE, YET THEIR PROPOSED CONSTRUCTION WOULDN'T APPLY TO IT. THERE ARE NO BITS,

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THERE'S NO BITS AT ALL IN THE REPRESENTATION. A BIT WHAT HAPPENS WHEN YOU CONVERT IT TO DIGITAL. NOW, INTERESTING ISSUES IS A SEPARATE CLAIM, NOW THERE'S A SEPARATE CLAIM THAT SAYS MERELY CAPABLE OF, DOESN'T HAVE AN ASSOCIATED BURST TIME PERIOD, BUT CAPABLE OF BEING SENT. AND I FOUND THEIR SLIDES INTERESTING BECAUSE ONE OF THE POINTS THEY TRY TO MAKE WAS, WELL, CAPABLE JUST MEANS JUST CAPABLE, THAT'S ALL IT MEANS, BUT THAT'S NOT WHAT THE CLAIMS SAY. THEIR CONSTRUCTION SAYS SUFFICIENTLY COMPRESSED TO PERMIT TRANSMISSION. AGAIN THAT DOESN'T MEAN ANYTHING.

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JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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ACCORDING TO THEM YOU COULD TAKE OUT ONE BIT OF A 17 BILLION BIT FILE AND THAT'S SUFFICIENT IF YOU HAVE A FAST ENOUGH MODEM OR YOU COMPRESS 200 TO ONE FASTER THAN MORE COMPRESSION THEN ANYBODY BEEN ABLE TO ACHIEVE COMMERCIALLY AND THAT'S NOT SUFFICIENT.
SO YOU DON'T REALLY KNOW WHAT SUFFICIENTLY MEANS EVER,

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YET THAT'S WHAT CLAIM CONSTRUCTION SUPPOSE TO DO.

THE PROBLEM

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IS, THERE'S A CLAIM THAT SAYS CAPABLE OF BEING TRANSMITTED, YET THEIR CONSTRUCTION SAYS ALL IT HAS TO DO IS BE CAPABLE. AND, OF COURSE, THAT VIOLATES A RULE OF CLAIM CONSTRUCTION THAT SAYS IF YOU WRITE DIFFERENT CLAIMS IN DIFFERENT WAYS, THOSE ARE PRESUMED TO MEAN SOMETHING DIFFERENT.
SO WHEN IT SAYS CAPABLE OF BEING TRANSMITTED, THAT

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MUST MEAN SOMETHING THAT HAVING AN ASSOCIATED BURST TIME PERIOD THAT'S SHORTER, YET BURST WOULD CONSTRUE THEM THE SAME. AND

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THEY CLEARLY MEAN SOMETHING DIFFERENT, ASSOCIATED CLEARLY HAS TO BE GIVEN MEANING. NOW, THE SPECIFICATION. SPECIFICATION, OF COURSE, IT'S

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WE'VE ALL AGREED IT'S IMPORTANT, YOU HAVE TO LOOK AT IT. SUPPOSE TO DEFINE THE CLAIM TERMS.

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IT DOESN'T HERE, DOESN'T

EVEN CONTAIN THE CLAIM TERMS AND THE QUESTION IS, WHAT ROLE DOES THE SPECIFICATION HAVE HERE? AND AS I FORESHADOWED EARLIER, THE ODD THING ABOUT THIS CASE, IS THAT NEITHER PARTY'S CONSTRUCTION SUPPORTED BY THE SPEC. AND BURST ARGUES THEIRS IS BECAUSE THEIRS RELATES TO

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DATA COMPRESSION AND THE SPEC HAS DATA COMPRESSION. 2 3
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THAT MUCH IS TRUE, BUT WHAT THE SPEC DOESN'T HAVE, DOESN'T DISCLOSE THAT ALLOWS POINT. THIS IS THE POINT I WAS

MAKING EARLIER, THAT THEY -- ISN'T THE CLAIM, THEIR CLAIM CONSTRUCTION MERELY DATA COMPRESSION PLUS THAT'S FASTER THAN REAL TIME. THEY ADMITTED THAT'S NOT WHAT THEY INVENTED, THAT

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WAS CLEARLY IN THE PRIOR ART. WHAT MEANING, WHAT EFFECT, WHAT TEETH DOES THAT WORD ALLOWS HAVE. WE STILL HAVEN'T HEARD THAT FROM BURST, BUT

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THAT'S WHAT A CLAIM CONSTRUCTION SUPPOSE TO DO, IT'S SUPPOSE TO DEFINE WHAT'S INSIDE THE CLAIM AND WHAT'S OUTSIDE THE CLAIM, BUT ALLOWS DOESN'T DO THAT. ANOTHER VARIANT IS THIS VARIANT I SHOWED YOU EARLIER, SUFFICIENTLY COMPRESSED. IS IT ONE BIT? BECAUSE YOU CAN CERTAINLY HAVE ONE BIT COMPRESSION OUT OF 17 BILLION AND SEND IT OUT FASTER THAN REAL TIME. THAT WELL, WHAT DOES THAT MEAN?

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DIDN'T ALLOW IT WOULD HAVE GONE FASTER THAN REAL TIME IF YOU HADN'T COMPRESSED AT ALL IF IT'S A FIBEROPTIC LINE. YOU

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COMPRESS IT A TONE AND THAT STILL WOULDN'T ALLOW IT IF YOUR TRANSMISSION MEDIUM WASN'T FAST ENOUGH. EVEN, PERHAPS, MORE THE POINT, LET'S SAY, YOU HAVE A NORMAL FORM OF COMPRESSION, STANDARD MP3 FOR AUDIO FILES, AND IF I AM TRYING TO DOWNLOAD OVER MY DSL MODEM, MY DSL MODEM IF IT'S FUNCTIONING WELL WILL DEFINITELY SEND IT OVER FASTER THAN JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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REAL TIME. IF MY DSL MODEM HAPPENS TO BE FUNCTIONING BADLY THAT DAY, AS IT IS OFTEN, IT WON'T.
SO UNDER THEIR CONSTRUCTION

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SOMETHING THAT'S IN OR OUTSIDE THE CLAIM RELIES ON THE VAGARIES OF WHAT'S HAPPENING DAY TO DAY, HOUR TO HOUR, MINUTE TO MINUTE ON THE WHOLE NETWORK SYSTEM, YET THAT APPEARS TO BE WHAT THEY'RE TALKING ABOUT. THEY NEVER TOLD US, AND CAN'T FRANKLY WHAT TEETH, WHAT MEANING, WHAT EFFECT SHOULD BE GIVEN TO THAT WORD ALLOWS. THEY

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USED THE WORD ENABLES AS A SYNONYM, BUT NOT THE SPECIFICATION SHOWS ENABLEMENT. WHAT THEY WANT TO DO IS JUST SHOW THE JURY THERE'S DATA COMPRESSION AND SHOW THE JURY THAT THERE'S FASTER THAN REAL TIME TRANSMISSION AND SAY, AHA, WE'RE DONE. BUT THAT ISN'T THEIR INVENTION, THEY ADMITTED THAT'S NOT THEIR INVENTION. BUT THEY'RE TRYING TO KEEP THE CONSTRUCTION SUFFICIENTLY VAGUE THAT WILL LOOK LIKE THAT'S THEIR INVENTION, BUT IT'S NOT.
THE COURT:

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WELL, IF YOU GO BACK THERE, IF YOU LOOK AT ESSENTIALLY A VERSION OF THIS

THE STRUCTURE OF THAT SENTENCE.

SOURCE INFORMATION THAT HAS A REDUCED NUMBER OF BITS AND SOMEHOW THAT ALLOWS, THAT IS WHAT IS ALLOWING THE DATA TRANSFER, ET CETERA, ET CETERA.
MR. POWERS:

THE SOMEHOW IS WHERE THE RUB IS, EXACTLY.

AND YOUR HONOR PUT YOUR FINGER ON EXACTLY WHERE THE AWKWARD JAMES YEOMANS
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OFFICIAL REPORTER - [phone]

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TENSION IS INSIDE THE BURST CONSTRUCTION IS BECAUSE, AS I SAY, THEY KNOW THEY CAN'T JUST SAY IT'S THE COMBINATION OF DATA COMPRESSION AND FASTER THAN REAL TIME. BECAUSE THERE WAS DATA

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COMPRESSION AND FIBEROPTIC LINES THAT WOULD HAVE SENT IT FASTER THAN REAL TIME. ADMITTED THAT.
SO THIS WORD ALLOWS OR ENABLES, WHICH IS THE OTHER

SO THAT'S NOT WHAT THEY INVENTED, THEY

FRAMING THEY USED IN THEIR SLIDES TODAY, REQUIRES BECAUSE THEY KNOW THEY HAVE TO SAVE THE CLAIM, SOME VAGUE LINK BETWEEN THE FACT OF THE COMPRESSION AND THE FACT THAT IT GOES FASTER THAN REAL TIME.
SO THERE'S SOMETHING ABOUT THE COMPRESSION, WE DON'T

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KNOW WHAT, THAT ALLOWS OR ENABLES IT GOING FASTER THAN REAL TIME, BUT THERE'S TWO PROBLEMS WITH THAT. THE FIRST PROBLEM, IT'S EITHER TRYING TO PATENT THE LAW OF NATURE WHICH SAYS YOU IF YOU GOT A FASTER COMMUNICATION LINK, OF COURSE, IT'S GOING TO SEND SOMETHING SMALLER FASTER THAN IT'S GOING TO SEND SOMETHING BIGGER. AND THEY DIDN'T INVENT DATA COMPRESSION, THEY CAN'T PATENT THAT. THEY NOW -- THAT'S WHY THEY GOT THAT WORD ALLOWS

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THERE OR THEY WANT TO KEEP IT, AS I SAID EARLIER, THEY WERE TRYING TO KEEP IT VAGUE TO SAY, WELL, WE'RE NOT JUST SAYING IF THEY WERE NAKED ABOUT IT AND SAID IT'S JUST DATA COMPRESSION FASTER THAN REAL TIME, THIS PATENT INVALID IN THE FIRST SUMMARY JUDGMENT MOTION THEY KNOW THAT. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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SO THEY HAVE TO HAVE SOMETHING TO SAVE IT, BUT THEY

DON'T WANT TO HAVE IT TOO CLEAN BECAUSE THEN THERE WON'T BE ANY INFRINGEMENT, BECAUSE THE FACT OF THE MATTER IS IN TODAY'S -MOST OF TODAY'S TRANSMISSION MEDIUMS, IT'S SO FAST THAT IT COULD BE COMPLETELY UNCOMPRESSED AND IT WILL BE FASTER THAN REAL TIME.
SO THERE'S NO LINK TODAY BETWEEN COMPRESSION THE LEAST

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NUMBER BITS AND FASTER THAN REAL TIME.
THE COURT:

MAYBE I MISSED SOMETHING.

THIS

ANGUAGE

GO BACK TO, WELL, THE WORD BURST ASSOCIATED BURST TIME PERIOD.
MR. POWERS:

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THE ONE IN EUROPE OR HERE? HERE. YES. DOESN'T SHOW UP IN THE '995, NOR IN THE FIRST SHOWS UP IN THE '839.

THE COURT:
MR. POWERS

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THE COURT:

'932, CORRECT?
MR. POWERS

IT HAS. AND IS THERE ANYTHING ABOUT THE

THE COURT:

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PROSECUTION HISTORY OF THESE PATENTS THAT TELLS US WHY THAT SHOWED UP IN THE '839?
MR. POWERS:

LET ME ANSWER FIRST, THAT IN THE '995 THE

VERY FIRST PATENT, THE WORD BURST IS NOT IN THE CLAIM, BUT AN ASSOCIATED TIME PERIOD THAT IS SHORTER THAN THE TIME PERIOD IS.
THE COURT:
MR. POWERS:

YES, RIGHT, RIGHT. EVERYBODY AGREES THAT THAT'S THE SAME

THING IN THIS CASE AS BURST. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THE COURT:
MR. POWERS:

IS THAT WHAT IS AGREED TO? I BELIEVE, THAT'S AGREED TO. CERTAINLY

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WHAT THEIR POSITION IS, BURST IS FASTER THAN REAL TIME AND THE ADDITION OF THE WORD BURST DIDN'T CHANGE THAT. I THINK, WHAT HAPPENED, THEY CHANGE THE NAME OF THE COMPANY BY THAT POINT.
MR. FOLSE:

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I REALLY APOLOGIZE FOR INTERJECTING. I

JUST WANT TO MAKE CLEAR, THE PHRASE ASSOCIATED BURST TIME PERIOD DOES APPEAR IN THE CLAIMS IN THE '995 PATENT, JUST NOT IN CLAIM 1.
THE COURT:
MR. FOLSE:

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NOT IN CLAIM l? RIGHT. REFERRING TO ESSENTIALLY THE SAME LANGUAGE

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THE COURT:

IN THE '839, BUT THE WORD BURST IS ADDED.
MR. FOLSE:

FOR EXAMPLE, CLAIM 17 OF THE '995. BUT IS, IN FACT, WHAT IS MEANT, DO YOU

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THE COURT:

AGREE, WHAT IS MEANT BY BURST IS SHORTER THAN THE TIME PERIOD OF ASSOCIATED WITH REAL TIME REPRESENTATION?
MR. FOLSE:

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I THINK, THAT THE ADDITION OF THE WORD

BURST, ALTHOUGH, IT IS NOT, I DON'T THINK THAT HAS BEEN A DISPUTED ISSUE AMONG THE PARTIES IN CLAIM CONSTRUCTION, THAT THE REAL ISSUE BE KNOWN.
THE COURT:
MR. FOLSE:

DOES THE TIME PERIOD FOR TRANSMISSION HAVE TO

I UNDERSTAND THAT. BUT, I THINK, THE REFERENCES YOU SEE IN

JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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THE CLAIMS TO ASSOCIATED TIME PERIODS AND THE ASSOCIATED BURST TIME PERIODS ARE REFERRING TO A TRANSMISSION THAT IS ACCOMPLISHED IN FASTER THAN THE REAL TIME PERIOD ASSOCIATED.
THE COURT:

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IN OTHER WORDS, WHAT THE DEFINITION IS IN

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THE FIRST, SO, IN ESSENCE, BY INSERTING IT THEN IN THAT PARTICULAR CLAIM IN THE '839 REALLY, THE TERM BURST, THEN IF THAT'S THE DEFINITION IS REALLY REDUNDANT, RIGHT?
MR. POWERS:

YES, UNDER THEIR CONSTRUCTION THAT'S

TRUE.
THE COURT:

IT ALREADY SAYS THAT. EXACTLY. SHORTER THAN PERIOD OF TIME. ALSO, TO

MR. POWERS:
THE COURT:

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WHAT EXTENT CAN A PARTY, IF A PARTY IS -- AND YOU CAN ADDRESS IF PART OF IT AS WELL OR YOU CAN ADDRESS IT LATER, CAN A PARTY GO BEFORE ONE COURT AND OFFER ONE CONSTRUCTION OF A TERM IN A CLAIM AND THEN INTERPRETING THE VERY SAME CLAIM, THE VERY SAME TERM, GO BEFORE ANOTHER COURT AND PROFFER A DIFFERENT INTERPRETATION?
MR. POWERS:

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WE HAVE NOT ARGUED ESTOPPEL IN THIS CASE

BECAUSE -THE COURT:

THAT WOULD BE THE MAGIC WORD, YES, I WAS

AVOIDING THAT.
MR. POWERS:

WE HAVE NOT ARGUED THAT BECAUSE WE

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THOUGHT THAT WHEN WE LOOKED AT THE WAY BOTH PARTIES ARGUED THE CLAIM CONSTRUCTION IN MARYLAND BEFORE JUDGE MOTZ, WE THOUGHT IT JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WASN'T ARGUED VERY WELL BY EITHER SIDE.
SO WE THOUGHT OUR JOB HERE TO GET IT RIGHT, AND SO

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WE'LL ARGUE IT RIGHT.

SO WE HAVEN'T OBJECTED TO THEM CHANGING

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THEIR CONSTRUCTION FROM WHAT THEY ARGUED BEFORE JUDGE MOTZ.
THE COURT:

I FIND IT TROUBLING BECAUSE -- AND THIS IS

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ONE OF THE PROBLEMS WITH HAVING, YOU HAVE CLAIM CONSTRUCTION FIRST AND NOW I KNOW THE CIRCUIT SAYS, WELL, YOU CAN TAKE A PEEK, YOU CAN EVEN LOOK AT IT AND CONSIDER, YOU KNOW, THE ACCUSED DEVICE. WELL, YOU KNOW, I FIND THAT TROUBLING AS WELL BECAUSE, WELL, THEY HAVEN'T QUITE SAID THAT, OKAY, BUT ALMOST. AND

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BECAUSE THEN IT'S LIKE PUTTING YELLOW OVER THE WALL, AS THEY SAY, IT BECOMES -- REALLY THE CLAIMS BECOME A MOVING TARGET

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BECAUSE THEY COULD MEAN ONE THING FOR ONE DEVICE AND ONE THING FOR ANOTHER. BUT IF IT'S THE VERY SAME CLAIM TERMS AND THE VERY SAME CLAIM, WHY SHOULD IT MEAN ONE THING IN CONNECTION WITH ONE DEVICE AND SOMETHING ELSE IN CONNECTION WITH ANOTHER? BECAUSE THEN YOU'RE DEFINING IT AND YOU REALLY ARE DEFINING IT IN TERMS OF THE, YOU KNOW, IN TERMS OF THE DEVICE, AND THAT'S NOT WHAT WE'RE SUPPOSE TO BE DOING.
MR. POWERS:

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OBVIOUSLY, NOT.

MEAN ONE THING IN

CONTEXT AND ANOTHER IN ANOTHER. CREDIBILITY OF THE POSITIONS.

WE VIEW THAT AS GOING TO THE

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WE GO THAT AS BEING FURTHER EVIDENCE OF BURST, BOTH JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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HERE, AND IN EUROPE, AND IN THE PTO, AND THIS COURT, SAYING AND DOING WHATEVER IT CAN SAY OR DO TO GET SOMETHING THAT WILL ACCOMPLISH ITS PURPOSES AT THE TIME. ESTOPPEL WE HAVE NOT ARGUED IT.
THE COURT:

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BUT AS A TECHNICAL

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BUT I'M ASKING YOU MORE IN TERMS OF JUST A

PHILOSOPHICAL AND THEN -- BUT IT SEEMS TO ME, IT DOES COME INTO PLAY IN CLAIM CONSTRUCTION BECAUSE, YOU KNOW, IT'S LIKE, WAIT A MINUTE, I JUST THOUGHT OF ANOTHER WORD, AND SORT OF MOVING AROUND. IT'S THE SAME PATENT, IT'S GOT TO MEAN THE SAME THING FOR ALL PURPOSES. CAN'T BE SOMETHING DIFFERENT FOR SOME OTHER, SOME PURPOSE AND NOT FOR OTHERS. NOW, THERE MAY BE DIFFERENT CLAIMS THAT ARE ALLEGED ARE INFRINGED, BUT THEN THAT WOULD IMPLICATE DIFFERENT TERMINOLOGY WITHIN A DIFFERENT CLAIM.
MR. POWERS:
THE COURT:

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THIS CASE THAT DOESN'T APPLY. BUT IF, IN FACT, YOUR
--

IT'S THE SAME

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CLAIM AND THE SAME TERMS YOU OUGHT TO HAVE ONE MEANING AND STICK TO IT.
MR. POWERS:

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WE DON'T DISAGREE.

WE THINK THERE'S A

PATTERN OF THAT OCCURRING.

WE LAID OUT IN THE FILE HISTORY IN

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THE COURTS IN EUROPE VERSUS HERE, AND WE THINK WHEN LOOKED AT PROPERLY SHOULD BE CONSTRUED AS WE ARGUE IT. BEFORE YOUR HONOR IN THEIR REPLY BRIEF HERE, THIS IS ON THIS LINKAGE POINT, THIS IS THEIR ENTIRE CITATION OF JAMES YEOMANS - OFFICIAL REPORTER
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[phone]

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PORTIONS FROM THE SPECIFICATION TO SUPPORT THE IDEA THAT QUOTE "THE DATA COMPRESSION ALLOWS OR ENABLES FASTER THAN REAL TIME TRANSMISSION.I' THIS IS THE PORTION FROM THEIR BRIEF WHERE THEY ATTEMPT TO ADDRESS THAT. YOU NOTICE THEIR THREE EXCERPTS THEY

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CITED, I'M GOING TO GO THROUGH EACH OF THE THREE QUICKLY, BUT NONE OF THE THREE DO THAT. THE FIRST, DATA COMPRESSION MAXIMIZES STORAGE CAPACITY. SAYS NOTHING ABOUT FASTER THAN REAL TIME, SAYS

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NOTHING ABOUT DATA COMPRESSION ENABLING FASTER THAN REAL TIME. THE SECOND ONE, ALSO FROM COLUMN TWO, THE ONE WE LOOKED AT EARLIER, DATA COMPRESSION FOR EFFICIENT STORAGE. JUST TALKED ABOUT THAT. TRANSMISSION AND RECEPTION BY SATELLITE OR TELEPHONE LINES, THAT SAYS NOTHING ABOUT FASTER THAN REAL TIME. AND, IN WE

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FACT, THE USE OF TELEPHONE LINES IMPLICIT WOULDN'T BE FASTER THAN REAL TIME NECESSARILY. THE THIRD AND LAST, THIS IS THEIR PORTION THAT THEY QUOTE, USING THE ABOVE COMPRESSION TECHNIQUES THE MEMORY WILL ONLY REQUIRES 250 MEGABYTES. WELL, THAT'S JUST SAYING YOU HAVE DATA COMPRESSION THAT REDUCES IT FROM A 50 GIGABYTE FILE 250 MEGABYTES, SAYS NOTHING ABOUT THAT ENABLING, OR FACILITATING, OR ALLOWING TRANSMISSION FASTER THAN REAL TIME. THAT'S REALTY, RIGHT, BECAUSE ALLOWING IT TO BE GIVEN
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TEETH MUST REALLY MEAN THAT.

BUT FOR THE COMPRESSION IT

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WOULDN'T HAVE GONE FASTER THAN REAL TIME, BUT IN THEIR OPTICAL FIBER THAT'S NOT TRUE TOTALLY, UNCOMPRESSED GO WAY FASTER THAN REAL TIME, UNDER MOST MODERN MEANS OF TRANSMISSION TOTALLY UNCOMPRESSED IT WILL GO FASTER THAN REAL TIME. THIS IS FROM THE SPECIFICATION, THAT 200-MEGABYTE 350-MEGABYTE MOVIE IT WILL GO IN FOUR MINUTES, TWO-HOUR MOVIE GOES IN FOUR MINUTES, TOTALLY UNCOMPRESSED, MUCH FASTER THAN REAL TIME COMPRESSED GOES IN ONE SECOND. BUT WASN'T THE

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COMPRESSION THAT MADE IT, THAT ALLOWED IT TO GO FASTER THAN REAL TIME, IT WENT REGARDLESS. NOW, PHONE LINES, TWO-HOUR MOVIE IF IT WAS UNCOMPRESSED TOOK 6,000 HOURS, IF IT'S COMPRESSED IT TAKES 29 HOURS. IN NEITHER CASE WAS COMPRESSION ENABLING, ALLOWING,
SO, I THINK,

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FACILITATING, SENDING IT FASTER THAN REAL TIME. WE'VE TALKED ABOUT THAT. WE DON'T NEED TO DO THIS.

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AND THIS IS -- THIS PART FROM THE TUTORIAL WHERE EXPLAINED THE DATA RATES FROM THE VARIOUS PARTS OF THE FIGURE 2 AND SET UP THIS PROBLEM. IF YOU HAD DRAM CHIPS OR SRAM CHIP OPERATING SLOW, RIGHT, GOING ON THE BUS OPERATING FASTER RATE, GOING OUT A FIBEROPTIC CHANNEL YOU CAN'T GET IT OUT FAST ENOUGH. WHEN THEY WERE BUILDING THE PROTOTYPE THEY CREATED, THIS IS THE ACTUAL WORDS THEY USED IN THEIR DOCUMENTS, A SEA OF JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DRAM.

NOT JUST ONE DRAM CHIP, THEY CALLED IT A SEA OF DRAM.
SO THEY GET IT UP TO A 500 MEGABYTES FOR SECOND

FIBEROPTIC LINE, THEY USE THAT MULTIPLEXER, THAT HOT HOD CHIP SET THEY TALKED ABOUT THAT HAD 40 BITS INSTEAD OF ONE, THEY CREATED A MULTIPLEX CHANNEL, THAT'S EXACTLY WHAT THEY DID.
SO LOOKING AT FIGURE 2 WHERE IT SAYS MEMORY RIGHT DOWN

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THERE, THAT BECAME THE SEA OF DRAM, BUT IT HAD A WHOLE BUNCH OF THOSE CHIPS. NOW, YOU HAVE TO MULTIPLEX IT USING TIME-COMPRESSION MULTIPLEXING TO GET IT OUT TO THE FIBEROPTIC PORT.
SO THEY HAD

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TO USE TIME-COMPRESSION MULTIPLEXING, ACTUALLY, IN ORDER TO MAKE THEIR PROTOTYPE WORK. TALKED ABOUT THAT FILE HISTORY. FILE HISTORY EXCLUDES

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ANY INTERPRETATION THAT WAS DISCLAIMED DURING PROSECUTION. AND YOU HAVE TO LOOK AT WHAT THEY'RE SAYING IS IN THEIR PATENTS AND IS NOT. I FOUND ONE COMMENT BY MR. HEIM INTERESTING. HE SAID,

THAT WHEN HE'S LOOKING AT THE BEGINNING OF THE CLAIMS, HE SAID, YEAH, SOMETHING WAS DISCLAIMED, BECAUSE THEY AMENDED THE CLAIMS TO TAKE OUT SOMETHING. NOW, WE'RE JUST DEBATING WHAT WAS DISCLAIMED. IT'S CLEAR THAT THE ORIGINAL CLAIMS COVERED DATA COMPRESSION AND FASTER THAN REAL TIME, THEY DROPPED THOSE CLAIMS. THEY'RE NOW TRYING TO GET THOSE CLAIMS BACK UNDER THE

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GUISE OF CLAIM CONSTRUCTION. AND THAT'S EXACTLY WHAT THE LAW JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DOESN'T ALLOW. HERE'S IZEKI. THIS IS THE QUOTE THEY'RE TRYING TO WHILE IZEKI

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DISTINGUISH, BUT IT'S UNAMBIGUOUS AND CLEAR.

MENTIONED DATA COMPRESSION, THAT IS NOT THE EQUIVALENT BY ANY MEANS. THEY'RE NOT JUST CASUAL ABOUT THIS, THEY'RE DRAWING A LINE IN THE SAND. DATA COMPRESSION IS NOT OUR TIME

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COMPRESSION, WHICH IS EXACTLY CONSISTENT WHAT THEY DO IN EUROPE. THEY SAY, OKAY, WE'RE CHANGING IT FROM TIME COMPRESSION TO DATA COMPRESSION, BUT WE'RE GOING TO ADD STILL SEPARATELY THE CONCEPT OF TIME COMPRESSION IN. THEY'RE

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SEPARATE DIFFERENT CONCEPTS, THEY'RE TRYING TO MAKE THEM THE SAME CONCEPT HERE. NOW, THERE'S, I THINK, WE COVERED THIS IN THE SPECIFICATION DISCUSSION AND THE FILE HISTORY DISCUSSION. THERE'S NO DEBATE IZEKI DISCLOSED DATA COMPRESSION. NOW, HERE'S THE ONE THING THAT I DO WANT TO ADDRESS, IS THEIR ARGUMENT THE EXAMINER INTERPRETED TIME COMPRESSION TO BE DATA COMPRESSION. AND IF YOU GO TO SLIDE 67 IN THEIR BOOK, I THINK, THAT'S WHERE THEY WERE MAKING THAT POINT. IF YOU GET THAT PARTICULAR SLIDE OUT.
THE COURT:

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WHAT NUMBER IS IT? 67, YOUR HONOR. YES.

MR. POWERS:
THE COURT:

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MR. POWERS:

NOT FROM THE -- IS THAT THE TUTORIAL?

THE ONE JUST HANDED YOU UP TODAY?
THE COURT:

I THINK, WE HAVE THAT.

DO YOU HAVE THAT?

YEAH.

THANK YOU.

OKAY.

MR. POWERS:

NOW, MR. HEIM ARGUED SEVERAL TIMES THAT

EVERYBODY KNEW THAT TIME COMPRESSION, DATA COMPRESSION WERE EXACTLY THE SAME THING IN THE FILE HISTORY, AND THAT'S THE TITLE OF THIS SLIDE, IS EXAMINER INTERPRETS TIME COMPRESSED AS DATA COMPRESSION. BUT IF YOU READ IT, THAT'S NOT WHAT'S GOING ON. AT THE FIRST PARAGRAPH. LOOK

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THE EXAMINER SAYS SQUARELY IZEKI FAILS

TO TEACH THE COMPRESSED AUDIO/VIDEO INFORMATION IS THE TIME-COMPRESSED INFORMATION.
SO FIRST OFF, IZEKI, WHICH IS DATA COMPRESSION,

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EVERYBODY AGREE ON THIS, THAT EXAMINER DOESN'T SAY EQUALS TIME COMPRESSION, EXAMINER SAYS IZEKI TEACH TIME COMPRESSION. THE NEXT PARAGRAPH MAKES OBVIOUS ARGUMENT HERE. EMPLOY MEANS FOR TIME COMPRESSING, ET CETERA, IS WELL-KNOWN AND AS ADMITTED BY THE APPLICANT SOMETHING OBVIOUS TO ONE OF ORDINARY SKILL IN THE ART, EMPLOY MEANS FOR TIME COMPRESS -HOWEVER, EMPLOYING MEANS FOR TIME COMPRESSING AUDIO/VIDEO INFORMATION, SO THAT THE COMPRESSED AUDIO/VIDEO INFORMATION CAN BE TRANSMITTED AT HIGH SPEED IN FLASH OR BURST PERIOD, AN INCREASE IN THE CAPACITY OF THE STORAGE MEDIUM IS WELL-KNOWN IN THE ART AND AVAILABLE IN THE MARKET, IN MARKET AT THE TIME THE JAMES YEOMANS - OFFICIAL REPORTER
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INVENTION WAS MADE. THAT IS ADMITTED BY THE APPLICANT IN THE SPECIFICATION, PAGE SEVEN AND EIGHT. THEREFORE, IT WOULD HAVE

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BEEN OBVIOUS TO ONE OF ORDINARY SKILL IN THE ART TO EMPLOY MEANS FOR TIME COMPRESSING AUDIO/VIDEO INFORMATION AS ALTERNATIVE COMPRESSED DEVICE FOR THE COMPRESSING MEANS OF IZEKI TO TIME COMPRESS.
SO WHAT THE EXAMINER'S SAYING, THERE IS NOT THAT DATA

COMPRESSION EQUALS TIME COMPRESSION.

HE'S SAYING IT WOULD,

OBVIOUS, TO USE IN HIS VIEW, TIME COMPRESS AS ALTERNATIVE OR INSTEAD OF DATA COMPRESSION. NOW, ULTIMATELY HE GAVE THEM CLAIMS TO TIME COMPRESSION, BUT THAT'S NOT WHAT -- THE EXAMINER WAS NOT SAYING WHAT BURST WAS SAYING HE WAS SAYING. THAT. NOW, BURST'S RESPONSE HERE TO YOUR HONOR IN THEIR REPLY BRIEF, SAYS THAT EXACT STATEMENT I JUST SHOWED YOU FROM IZEKI, SAYING IT'S NOT EQUIVALENT BY ANY MEANS, TIME COMPRESSION. THAT STATEMENT INDICATES DATA COMPRESSION ALONE INSUFFICIENT TO MEAN THE CLAIMS IF THE RESULTING COMPRESSION CANNOT BE SENT FASTER THAN REAL TIME. THAT GOES BACK TO THIS, WHERE THE LINE BETWEEN THE RELATIONSHIP BETWEEN DATA COMPRESSION AND SENDING FASTER THAN REAL TIME. THE SPEC DOESN'T GIVE YOU THAT LINE. TOTALLY
SO, I THINK, WE'VE DONE

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UNCOMPRESSED GO WAY FASTER OR REALLY SERIOUSLY COMPRESSED AND NOT GO WAY FASTER, NOT GO FASTER AT ALL.
SO THEIR BRIEF STILL DOESN'T HELP YOU DRAW THAT LINE.

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YET THAT'S WHAT THE CLAIM CONSTRUCTION MUST DO.

IT MUST GIVE

YOU A STAKE IN THE GROUND THAT SAYS, HERE'S WHAT'S INSIDE THE CLAIM AND HERE'S WHAT'S OUT. THEIRS JUST SAYS DATA COMPRESSION SOMEHOW ALLOWS IT TO BE SENT FASTER THAN REAL TIME. ABOUT WHAT'S IN OR OUT.
THE COURT:
MR. POWERS:

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THAT DOESN'T TELL YOU ANYTHING

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CAN WE WIND IT UP. YES. I THINK, WE COVERED THAT.

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AND, I THINK, WE COVERED THAT. THE ONLY OTHER POINT I WANT -- I WANTED TO SHOW YOUR HONOR, JUST REMIND YOU THIS CHART THAT WE SHOWED YOU IN THE TUTORIAL, WHICH DEMONSTRATES THERE'S NO RELATIONSHIP AT ALL BETWEEN COMPRESSION AND FASTER THAN REAL TIME. IT'S ALL DRIVEN

BY HOW FAST THE TRANSMISSION MEDIUM IS AT, I THINK, TIME IN ANY LEVEL OF COMPRESSION. ONE INTERESTING POINT FROM THEIR BRIEF, I THOUGHT THIS WAS WORTH MAKING, BECAUSE IT SHOWS THE INDEFINITENESS OF THEIR POSITION. THEY SAY, EVEN COMPRESSED DATA MAY REQUIRE MORE TIME TO TRANSMIT OVER CONVENTIONAL PHONE LINES. COURSE, THE SPEC. THEY SAY, THE CONTEXT SUCH COMPRESSED REPRESENTATION JAMES YEOMANS - OFFICIAL REPORTER - [phone] THAT'S FROM, OF

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WOULD NOT BE A TIME COMPRESSED REPRESENTATION BECAUSE THE 2
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TRANSMISSION TIME IS GREATER THAN PLAYBACK TIME. WHAT THAT MEANS, YOU'RE NOT GOING TO KNOW IN A CLAIM WHETHER IT'S TIME COMPRESSED UNTIL IT'S TRANSMITTED, MAYBE YEARS LATER, SO EVEN UNDER THEIR CONSTRUCTION, AND MR. LANG'S DEPOSITION IS QUITE FRANK ABOUT ADMITTING IT, YOU COULD HAVE COMPRESSION THAT EXISTS, SAY, IN THE 1950'S, NOTHING COULD GO FASTER THAN REAL TIME, AND JUST WAIT, YOU COMPRESS IT, YOU STORE IT AND WAIT 20 YEARS, LO AND BEHOLD, SOMEONE COMES UP WITH A NEW FIBEROPTIC CHANNEL, NOW THEY CAN SEND IT FASTER THAN REAL TIME UNDER THEIR CONSTRUCTION BECAUSE NOW IT'S BEING TRANSMITTED FASTER. THAT'S -- THE THING WAS NOT TIME

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COMPRESSED FOR 25 YEARS IS ALL OF A SUDDEN TIME COMPRESSED. MY STORED FILE, MY SONG I STORED IN COMPRESSED FORM, IF ANY DSL LINE IS WORKING WELL ON TUESDAY IS TIME COMPRESSED, BUT IT WAS WORKING BADLY ON WEDNESDAY IT'S NOT TIME COMPRESSED. WHY? BECAUSE IT'S NOT SENT FASTER THAN REAL TIME. THAT'S

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OBVIOUSLY, AND INDEFINITE CLAIM CONSTRUCTION, YET IT IS THEIR CLAIM CONSTRUCTION. IF I MAY SPEND ONLY THREE MINUTES ON THE ASSOCIATED BURST TIME PERIOD?
THE COURT: MR. POWERS:

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I THINK, WE TALKED ABOUT MOST OF THIS. YES. OKAY. THEIR PROPOSED

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THE KEY WORD IS HAVING.

CONSTRUCTION DOESN'T ADDRESS THAT, BUT THE KEY WORD IS HAVING. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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WHAT DOES THAT MEAN? JUDGE MOTZ SAID IN MARYLAND HAVING HAS TO BE GIVEN A MEANING, IT IS AN -- IN THE TENSE, AS WE GRAMMARIANS WOULD KNOW, THAT APPLIES EXISTED AT TIME, SO THEY'RE STUCK WITH THAT WORD, THEY'RE STUCK WITH THAT MEANING. WHAT DOES IT MEAN? THAT'S TOTALLY CONSISTENT WITH

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TIME COMPRESSION. WHEN YOU DO ACTUALLY TIME COMPRESS THE WAY ALL THE EXPERTS KNOW THAT TERM IS USED, DO YOU HAVE ASSOCIATED BURST TIME PERIOD, YOU KNOW EXACTLY WHAT IT IS, IT'S EITHER THE TWO, DIVIDED BY THREE, WHATEVER IT WAS, DATA COMPRESSION DOES NOT. WE'VE SHOWN THAT. I THINK, WE DON'T NEED TO DO THAT. WE COVERED THAT. NOW, THEIR PROPOSED CONSTRUCTION THAT REALLY READS OUT ASSOCIATED BURST TIME PERIOD AND PARTICULARLY HAVING ONE, BUT BECAUSE THEIR CONSTRUCTION SAYS IS EVENTUALLY, IF IT'S SENT FASTER THAN REAL TIME, THEN WE'RE GOING TO STAY BACK, HOWEVER LONG AGO IT WAS STORED IT HAD AN ASSOCIATED BURST TIME PERIOD. AND WE THINK THAT READS THAT LANGUAGE OUT OF THE CLAIM AND IMPROPERLY SO.
THE COURT:
MR. POWERS:

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WE THINK THAT'S THREE MINUTES. AND, I THINK, THAT'S THREE MINUTES. OKAY. I HAVE COUPLE OF -- I HAVE A

THE COURT:

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QUESTION OF THE EXPERTS.

START WITH DR. HEMAMI AND THEN IS IT

MR., OR DR., OR WHATEVER, HALPERN? JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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MR. HALPERN:

MR. HALPERN, YOUR HONOR. BY REDUCING THE NUMBER OF BITS THAT

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THE COURT:

OKAY.

INFORMATION THAT'S GOING TO GO BY, THAT'S GOING TO BE TRANSMITTED; IN OTHER WORDS, BY THIS DATA COMPRESSION, USING THE SAME EXACT SAME METHOD OF TRANSMISSION FOR THE UNCOMPRESSED AND THE COMPRESSED, WILL THE COMPRESSED GET THERE MORE QUICKLY, GET, YOU KNOW, TO THE RECEPTION POINT MORE QUICKLY? PROBABLY, SO THAT'S PROBABLY A GOOD IDEA.
DR. HEMANI:

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LET ME REPEAT THE QUESTION TO MAKE SURE I

HAVE IT CORRECT.
THE COURT: DR. HEMANI:

GOOD TEACHER DOES THAT. SORRY. WE HAVE THE FILE AND WE DATA

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COMPRESS IT, SO IT BECOMES SMALLER, AND THE QUESTION IS, WILL THE COMPRESSED FILE BE TRANSMITTED IN A SHORTER TIME PERIOD THAN THE UNCOMPRESSED FILE?
THE COURT:

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YES.

USING THE SAME METHOD OF

TRANSMISSION.
DR. HEMANI:

USING THE EXACT SAME DIGITAL SIMPLY BECAUSE IT

COMMUNICATION LINK, YES, IT WILL BE FASTER. IS SMALLER AND HAS FEWER BITS.
THE COURT:
OKAY.

BUT IS IT THEN A FUNCTION, WHETHER

IT GETS THERE FASTER OR NOT, IS IT A FUNCTION OF THE TRANSMISSION?
DR. HEMANI:

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THAT IS EXACTLY CORRECT.

IT'S THE

FUNCTION OF THE SPEED OF THE PIPE.

SO IF WE CONSIDER THE TWO
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EXTREMES, THE FIBEROPTIC LINK EVERYTHING GETS THERE FASTER THAN REAL TIME BECAUSE IT'S SO FAST, AND THE TELEPHONE EVERYTHING GETS THERE SLOWER THAN REAL TIME, WHETHER UNCOMPRESSED OR COMPRESSED BECAUSE IT'S SO SLOW. WHAT BECOMES INTERESTING, ARE THOSE TRANSMISSION BANDWIDTHS IN THE MIDDLE OF THE TWO EXTREMES, WHERE THE UNCOMPRESSED FILE IS SO LARGE THAT IT CAN'T GET THERE FASTER THAN REAL TIME, BUT THE COMPRESSION OPERATION GETS THE FILE SMALL ENOUGH SUCH THAT IT'S NOW GONE BELOW THE THRESHOLD AT WHICH IT CAN GET THERE FASTER THAN REAL TIME.
THE COURT:

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OKAY.

THANK YOU.

THAT'S VERY, VERY

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HELPFUL. MR. HALPERN, WOULD YOU ANSWER THAT ANY DIFFERENTLY? FINALLY WILL GET THEIR MONIES WORTH.
MR. HALPERN:
THE COURT:

THANK YOU, YOUR HONOR. I'M SURE THEY GOT THEIR MONIES WORTH. ALL

RIGHT.
THE WITNESS:

THE ANSWER IS STILL THE SAME ANSWER THAT ALL OTHER THINGS BEING EQUAL, A LARGER

DR. HEMAMI JUST GAVE.

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FILE WILL TAKE LONGER TO SEND THEN A SMALLER FILE.
SO, IF I TAKE A FILE AND I DATA COMPRESS IT AND I SHIP

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IT OVER A NETWORK WHERE EVERYTHING IS BEHAVING THE SAME WAY, AND SOMETIMES THAT'S A LOT OF DIFFERENT FACTORS, AND INTERNET IN PARTICULAR, PREDICTING HOW LONG THINGS WILL TAKE GETS VERY COMPLICATED, BUT ASSUMING EVERYTHING ELSE WAS THE SAME, THEN BY JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DEFINITION, A SHORTER FILE WILL GET THROUGH FASTER THAN THE LONGER FILE.
THE COURT:

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OKAY.

THANK YOU VERY MUCH.

AND, I

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GATHER, YOU KNOW, I HEARD YOU USE THE WORD, THE EXPERTS, INCLUDING THE EXPERTS, USED THE WORD PIPES, I GUESS, THAT WE'RE ALL LAUGHING ABOUT SENATOR STEVENS REFERRING TO COMPUTERS AND PIPES AND WE ALL HAD A CHUCKLE, BUT I GUESS MAYBE HE KNEW MORE THAN WE THOUGHT HE DID.
MR. POWERS:

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IT'S FREQUENTLY USED AS WITH SOMETIMES

TRYING TO EXPLAIN AS A WATER ANALOGY WHERE THE SIZE OF PIPE WILL ALLOW YOU TO PUMP MORE WATER THROUGH MORE BANDWIDTH.
THE COURT:

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BUT IT IS A TERM THAT IS USED BY EVEN THE

EXPERTS. NOW, THE NEXT PERSON IN LINE ON BEHALF OF BURST IS YOU. AND HOW LONG DO YOU EXPECT YOU WILL BE IN YOUR

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PRESENTATION ?
MR. FOLSE:

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I THINK, I CAN'T BE LONGER THAN 30

MINUTES.

AND STILL A LOW -THE COURT:

I THINK, YOU CAN'T BE.

SO WHY DON'T WE GO

AHEAD AND DO THAT NOW AND THEN WE'LL TAKE A BREAK AT 1:OO O'CLOCK FOR LUNCH AND COME BACK AND WE'LL JUST HAVE TO KEEP GOING UNTIL WE FINISH.
MR. FOLSE:

SO, YOUR HONOR, THE NEXT GROUP OF TERMS

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THAT WE'RE TURNING TO ARE TERMS RELATED TO TRANSMISSION.
THE COURT:

RIGHT.

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MFt. FOLSE:

THESE COME UP WITH A VARIETY OF FLAVORS.

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THERE ARE A COUPLE OF THREE OR FOUR TERMS THAT REFER TO TRANSMISSION OF SOMETHING AWAY FROM THE TRANSCEIVER APPARATUS. THERE IS A ONE CLAIM THAT REFERS TO TRANSMITTING USING THE PARTICIPLE "AWAY." THERE ARE SOME CLAIMS THAT REFER TO TRANSMITTING SOMETHING TO A SELECTED DESTINATION. AND SO WITH RESPECT TO THE TERMS, THE CLAIMS THAT USE THE TRANSMISSION AWAY LANGUAGE AND THE TRANSMISSION TO A SELECTED DESTINATION LANGUAGE, THERE'S AN ISSUE ABOUT WHERE IS THE INFORMATION BEING TRANSMITTED. THE PARTIES AGREE THAT TRANSMISSION REFERS TO SENDING INFORMATION OUTSIDE THE TRANSMITTING DEVICE. WHERE? FIRST POSITION, IS THAT WITH RESPECT TO THE CLAIM TERMS THAT REFER TO TRANSMISSION AWAY FROM THE DEVICE OR TRANSMISSION TO A SELECTED DESTINATION, THAT WHAT IS BEING REFERRED TO WITHIN THE CONTEXT OF THE PATENT IS AN EXTERNAL DEVICE THAT IS CAPABLE OF PLAYBACK. APPLE'S POSITION IS THAT TRANSMISSION UNDER ALL CIRCUMSTANCES IS SENDING TO A REMOTE LOCATION. THEN WE HAVE A THE ISSUE IS

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SPECIFIC CARVE OUT THAT THEY WANT THE COURT TO ADOPT, WHICH IS TO EXCLUDE TRANSFERS THROUGH AN INTERFACE TO A STORAGE DEVICE, WHICH IS NOT SUGGESTED BY THE CLAIM LANGUAGE OR THE SPECIFICATION AT ALL. AND WHAT I'VE DONE IS, AND THE INTEREST OF TIME I JAMES YEOMANS
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WON'T GO THROUGH THESE ONE-BY-ONE, BUT THE SLIDES INCLUDE THE VARIOUS ITERATIONS OF THESE TRANSMISSION TERMS AND THE PARTYS' PROPOSED CONSTRUCTION. THIS IS AN EXAMPLE OF CLAIM 1 OF THE '995 PATENT WHICH REFERS TO TRANSMISSION OF THE TIME-COMPRESSED AUDIO/VIDEO SOURCE INFORMATION THAT HAS BEEN STORED AND THEN TRANSMITTED AWAY FROM SAID AUDIO/VIDEO TRANSCEIVER APPARATUS. AN EXAMPLE OF THE TRANSMITTING AWAY TERM. AND THERE'S ONE, AS I SAID, ONE CLAIM THAT TALKS ABOUT TRANSMITTING AWAY, WHICH IS CLAIM 1 OF THE '705 PATENT, WHICH REFERS TO TRANSMISSION MEANS COUPLED TO STORAGE MEANS FOR TRANSMITTING SAID DIGITAL TIME-COMPRESSED REPRESENTATIONS BY SAID AUDIO/VIDEO SOURCE INFORMATION AWAY FROM THE APPARATUS IN SAID BURST TRANSMISSION TIME PERIOD.
THE COURT:

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SO THAT'S A

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BUT THAT TRANSMITTING AWAY ESSENTIALLY IS

THE SAME AS THE TRANSMISSION AWAY IN THE '995 CLAIM 1, IN THAT IT IDENTIFIES MOST OF THESE, EITHER IDENTIFY WHAT IT IS AWAY FROM, AND IT HAS TO BE TAKEN IN CONTEXT THEN, AWAY FROM SOMETHING, OR AWAY TO, OR TRANSMITTING TO SOMETHING.
SO WHEREVER YOU'RE USING THE WORD TRANSMISSION OR

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TRANSMITTING, IT CAN'T BE ESSENTIALLY CONSTRUED IN A VACUUM, YOU HAVE TO LOOK AT IT IN THE CONTEXT. NAMELY, WHAT IS BEING

TRANSMITTED AWAY FROM OR TRANSMITTED TO, RIGHT?
MR. FOLSE:

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I THINK, THAT IS CORRECT.

AND THE

PARTIES, FOR EXAMPLE, WE DO BELIEVE THE CLAIM TERMS WHICH REFER JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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TO TRANSMISSION AWAY -- LET ME FIND ONE THAT SHOWS TRANSMITTED TO A SELECTED DESTINATION. HERE'S AN EXAMPLE. CLAIM 1 OF THE '839, TRANSMITTING

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IN SAID BURST TIME PERIOD THE STORED TIME-COMPRESSED REPRESENTATION OF THE RESET AUDIO/VIDEO SOURCE INFORMATION TO A SELECTED DESTINATION.
THE COURT:
MR. FOLSE:

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SO THE ISSUE IS, WHERE?
IN BOTH CASES.

EXACTLY.

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I THINK, IN BOTH CASES. IT'S NOT WHAT, IT'S PRETTY CLEAR WHAT IT WHERE IS IT GOING?

THE COURT:

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IS, AND THAT'S NOT IN DISPUTE, I THINK.
MR. FOLSE:

SO LOOKING AT THE INTRINSIC EVIDENCE AT

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THE SPECIFICATION, THE BURST PATENT DESCRIBE TRANSMISSION TO PLAYBACK DEVICES. THE EXAMPLE GIVEN AT COLUMN 7, LINE 58 OF THE '995 PATENT REFERS TO A VCRET, WHICH IS THE NAME, SHORTHAND NAME FOR THE APPARATUS DESCRIBED IN THE PREFERRED EMBODIMENT, CAN RECEIVE A VIDEO PROGRAM AT AN ACCELERATED RATE VIA FIBEROPTIC PORT 18 FROM A VARIETY OF SOURCES. FOR EXAMPLE, A VIDEO PROGRAM MAYBE COMMUNICATED AT AN ACCELERATED RATE FROM THE FIRST VCRET TO A SECOND IN LESS TIME THAN IT WOULD TAKE TO VIEW THE PROGRAM. NOW, WHAT DOES THE SECOND VCRET DO? AT COLUMN 10, LINE ONE, ONCE SERVED IN THE SECOND VCRET MEMORY 13, THE DIGITIZED PROGRAM CAN EITHER BE VIEWED DIRECTLY FROM MEMORY OR TRANSFERRED TO STORAGE MEDIUM 23, EITHER IN ITS ENTIRETY OR IN RANDOM SEGMENTS BASED ON USER JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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PREFERENCE. THIS IS GOING TO BE IMPORTANT A BIT LATER IN MY DISCUSSION BECAUSE THE VCRET, AS IS CLEAR FROM THE SPECIFICATION, AS IS CLEAR FROM THE PATENT CLAIMS, IS A DEVICE THAT IS CAPABLE OF DOING MANY THINGS, BUT IT'S CAPABLE OF DOING TWO THINGS RELEVANT HERE. IT'S CAPABLE OF PERMITTING THE INFORMATION TO BE VIEWED THAT IS PLAYED BACK AND IT IS CAPABLE OF STORING IT, IT CAN DO BOTH THINGS. AND THAT'S THE CONTEXT IN WHICH

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TRANSMISSION IS DISCUSSED. THE PROSECUTION HISTORY ALSO SUPPORTS THE SAME IDEA. AND THESE ARE STATEMENTS FROM THE PROSECUTION HISTORY OF THE '705 PATENT. IN THE FIRST THERE IS A REFERENCE, AND YOU SEE THIS COMING UP ON MANY OCCASIONS, PARTICULARLY IN THE CONTEXT OF BURST'S EFFORTS TO DISTINGUISH THE IZEKI PATENT, WHICH I'M ACTUALLY GOING TO COME TO IN A SLIGHTLY DIFFERENT CONTEXT THEN THE ONE JUST DISCUSSED, WHEN THERE'S A CONSTANT EMPHASIS ON THE NOTION THAT THE PATENTS ARE BEING DIRECTED TO THE TRANSMISSION OF AUDIO AND VIDEO IN A BURST TRANSMISSION TIME PERIOD, WHICH IS SUBSTANTIALLY SHORTER THEN THE TIME ASSOCIATED WITH REAL TIME VIEWING OF THE PROGRAM BY A RECEIVER. IT IS THAT THE OBJECT OF THE INVENTION WAS TO TRANSMIT AUDIO AND VIDEO, SO THAT IT ULTIMATELY COULD BE VIEWED, AND THAT THE TECHNOLOGY THAT WAS BEING CLAIMED WOULD PERMIT THE JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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TRANSMISSION TO OCCUR IN A WAY THAT WOULD BE FASTER THAN IT WOULD TAKE TO VIEW THE PROGRAM IN A CONTINUOUS BROADCAST TYPE FEED. AND IN ADDITION, BURST DISTINGUISHED REAL TIME TRANSMISSION BY EXPLAINING, AND THIS IS, I THINK, SOMETHING I QUOTED AT THE VERY BEGINNING OF TODAY, THAT SYSTEM DESIGNERS DID NOT RECOGNIZE THAT TIME-COMPRESSED REPRESENTATIONS COULD BE SENT IN A BURST TIME PERIOD SHORTER THAN THE TIME NEEDED FOR REAL TIME VIEWING BY THE RECEIVER. AND IT REFERS TO THE ABILITY OF THE RECEIVER TO PAUSE OR REWIND THE PROGRAM WHICH, AGAIN, ASSUMES THE RECEIVING DEVICE IS CAPABLE OF PLAYBACK, SO IN THE CONTEXT OF TRANSMITTING TO SELECTED DESTINATION IS TRANSMITTING AWAY THE CONTEXT OF THE PATENT IS TALKED ABOUT A DEVICE THAT PLAYS BACK. IF YOU LOOK AT THE EMBODIMENT THAT'S REFLECTED IN FIGURE 2, THERE ARE A VARIETY OF PORTS HERE. I GOT YELLOW

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LINES NEXT TO 17, 18 AND 22 WHICH ARE DIFFERENT MECHANISMS FOR TRANSMITTING INFORMATION. LOOK AT TWO EXAMPLES, 18 AND 22, WHAT DOES THE PATENT SAY ABOUT THEM? IT SAYS, THE INCORPORATION OF FIBEROPTIC PORT 18 IN THE VCRET PROVIDES THE CAPABILITY FOR DELIVERING THE AUDIO/VIDEO SIGNALS FOR THE FIBEROPTIC LINE. FOR EXAMPLE, A

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VIDEO PROGRAM MAYBE COMMUNICATED AT AN ACCELERATED RATE FROM THE FIRST VCRET TO A SECOND VCRET IN LESS TIME THAN IT WOULD TAKE TO VIEW THE PROGRAM. THAT'S ONE OF THE THREE PORTS.

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SECOND OUTPUT PORT 22, IS DATA FROM MEMORY 13, IS THEN ROUTED TO LINE 43, TRANSMITTER RECEIVER 22 AND TO A PHONE LINE. AT THE OTHER END OF THE PHONE LINE THE SIGNALS RECEIVED ARE PROCESSED BY ANOTHER VCRET. ONCE RECEIVED IN THAT VCRET'S MEMORY THE DIGITAL PROGRAM CAN THEN BE VIEWED DIRECTLY FROM MEMORY. ABOUT PLAYBACK.
THE COURT:

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IT'S TALKING

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THE PATENT, AT LEAST, INSOFAR AS LOOK IN

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THE '995, HOLDING TO CLAIM 1 HERE FOR AWHILE, THE TRANSCEIVER OR TRANSMITTER RECEIVER WHICH, I ASSUME, THAT'S WHAT THAT MEANS?
MR. FOLSE:

YES. IS A DEVICE, WHICH BOTH HAS THE INPUT FOR

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THE COURT:

RECEIVING AND THEN ALL OF THESE OTHER THINGS ARE HAPPENING INCLUDING STORAGE, ET CETERA, ET CETERA, THEN TRANSMITTING IN THE OUTPUT MEANS, IT HAS THE OUTPUT MEANS ALSO?
MR. FOLSE:

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CORRECT.
IS ABLE TO TRANSMIT, BUT IT'S TRANSMITTING

THE COURT:

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AWAY FROM THE, YOU KNOW, THAT PARTICULAR DEVICE?
MR. FOLSE:
THE COURT:

YES.
SO CONTEMPLATES SOME OTHER KIND OF DEVICE

SOMEWHERE ELSE. RIGHT?

COULD BE RIGHT NEXT DOOR, COULD BE MILES AWAY,

MR. FOLSE:

EXACTLY.

BOTH SIDES AGREE TRANSMISSION IN

THE CONTEXT OF THESE CLAIMS MEANS SENDING THE INFORMATION AWAY, JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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AND WE THEN RUN INTO THIS DISAGREEMENT ABOUT WHERE? AND OUR POSITION WHICH IS, I THINK, YOUR HONOR JUST ARTICULATED QUITE WELL, IS THAT THE CLAIM TERMS WHICH USE THOSE REFERENCES, USE THAT TERMINOLOGY, ARE TALKING ABOUT SENDING THE OTHER DEVICES THAT ARE CAPABLE OF PLAYBACK, AND THERE'S NOTHING IN THE PATENT LANGUAGE THAT SUGGESTS IT HAS TO BE AT A QUOTE "REMOTE LOCATION," THIS IS JUST AN EXTRANEOUS GRAFTING ON.
THE COURT:

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WHEN YOU SAY CAPABLE OF PLAYBACK OR WOULD COULD

YOU SAY CAPABLE OF RECEIVING, WHATEVER IT DOES WITH IT.

BE RESTORING IT, IT COULD -- IT COULD PLAY IT BACK, DO ANY OF NUMBER OF THINGS.
MR. FOLSE:

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IT COULD DO ANY NUMBER OF THINGS.

IN

FACT, THERE ARE DEVICES SUCH AS THE VCRET ITSELF THAT CAN STORE, BUT THAT IS CAPABLE OF PLAYING BACK. AND WE THINK THAT GIVEN THE FREQUENT REFERENCES IN THE PATENTS THEMSELVES, IN THE PROSECUTION HISTORY THAT THE REAL OBJECT OF THIS FASTER THAN REAL TIME TRANSMISSION WAS TO ENABLE VIEWING, THAT THE DEVICE HAS TO BE CAPABLE OF PLAYBACK, REGARDLESS OF WHAT ELSE IT MIGHT DO.
THE COURT:

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NOW, IS THAT IN THE CLAIM OR IS THAT

ESSENTIALLY WHAT WE READ FROM THE SPECS?
M R . FOLSE:

IT'S WHAT WE READ FROM THE SPECIFICATION,

TO ANSWER THE QUESTION OF WHAT DOES TRANSMISSION AWAY FOR A SELECTED DESTINATION REFER TO.
THE COURT:

THAT WOULD EXCLUDE MR. POWERS' DEVICE
-

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WHERE HE'S GOING TO HOLD ONTO SOMETHING THAT HE RECORDED BACK IN THE 80's AND THEN WAIT FOR THE DAY WHEN HE CAN SPEED IT UP AND PLAY IT BACK AND -MR. FOLSE:

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YOUR HONOR, I HAVE --- AND JUST STORED FOR HALF AN ETERNITY.

THE COURT:
M R . FOLSE:

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I HAVE TO SAY AND I -I'M BEING SOMEWHAT FACTITIOUS HERE,

THE COURT:

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OBVIOUSLY.
MR. FOLSE:

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I FEEL LISTENING TO MR. POWERS I GO DOWN I WAS HEARING

THE RABBIT HOLES, UP WAS DOWN AND DOWN WAS UP.

DESCRIPTION THINGS REGARDING A 33 AT 45, THEN STORING IT ON SOME FORM OF DIGITAL FORMAT, AS IF ANYONE WOULD EVER WANT TO DO THAT, BUT IN FACT -THE COURT:

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HE WAS DOING THAT BECAUSE HE DIDN'T --

EXCUSE ME, HE WAS DOING THAT BECAUSE HE DIDN'T THINK I UNDERSTAND ANYTHING MORE COMPLICATED THAN THAT.
MR. FOLSE:

IT'S MORE THAN THAT.

IT'S THE ONLY

EXAMPLE THEY EVER TRIED TO COME UP WITH HOW THEIR VERSION OF TIME COMPRESSION COULD ACTUALLY MAKE SENSE IN OUR CLAIMS, WHICH REQUIRES STORAGE FIRST. AND NONE OF THE REFERENCES THEY CITE TO ESTABLISH THE MEANING OF THE TERM TIME COMPRESSION REFER TO ANYTHING REMOTELY LIKE THAT. THEY DON'T REFER TO THE ORDER OF STEPS THAT ARE

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REFLECTED IN THESE PATENT CLAIMS.
SO IF YOU ASKING, WELL, WHAT DOES TIME COMPRESSION

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MEAN?

ACTUALLY, THE WRONG QUESTION BECAUSE THE PATENT TERMS

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DON'T USE, THE PATENT CLAIMS DON'T USE THE WORD TIME COMPRESSION, WHATEVER THAT WAS MEANT IN THE ART. AND, IN FACT, I ALSO WANT TO CLARIFY SOMETHING ELSE MR. POWERS SAID, DR. HEMAMI DOES NOT AGREE, HE IMPLIED THE EXPERTS ARE IN AGREEMENT THAT THE TERM TIME COMPRESSION HAD THIS ACCEPTED MEANING IN THE ART IN 1988 AND IT IS APPLE'S DEFINITION -THE COURT:

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WE'RE NOT GOING TO GO BACK TO TIME I THOUGHT IT WAS

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COMPRESSION, SORRY TO INTERRUPT YOU THERE.

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PRETTY CLEAR AS TO WHAT TRANSMITTING TO AND TRANSMITTING AWAY MEANS, BUT SO GO AHEAD.
MR. FOLSE:

APPLE'S POSITION ON REMOTE LOCATION IS, I

THINK, AGAIN, AN ATTEMPT TO GRAPH A LIMITATION ONTO THE CLAIM, WHICH IS NOWHERE SUGGESTED IN THE LANGUAGE AT ALL. THERE ARE PLACES THAT THEY SAY PATENTS REPEATEDLY ASSOCIATED TRANSMISSION WITH REMOTE LOCATION, IN THEIR BRIEF THEY MADE THREE CITES FOR THIS NOTION OF REPEATED REFERENCE. ONE IS THE ABSTRACT WHICH IS DOES REFER TO TRANSMITTING PROGRAMS TO A REMOTE LOCATION USING A SECOND VCRET. THEY REFER TO THE '995 PATENT AT CLAIM 10, THAT LANGUAGE APPEARS IN THE SPECIFICATION OF THE OTHER PATENTS AS WELL, TALKING ABOUT AN OPTIONAL EMBODIMENT WHERE DIGITIZED VIDEO AND AUDIO SIGNAL FROM THE REMOTE VCRET AT THE FAR END OF

A PHONE LINE MAYBE RECEIVED.
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THAT'S AN EXAMPLE, WHAT THEY WANT TO DO IS TAKE THE REFERENCES TO REMOTE LOCATION IN THE PATENT AND ADD THEM ONTO THE CLAIM, SO THAT THEY MODIFY THE CLAIM LANGUAGE. IT'S A

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CLASSIC EXAMPLE OF TRYING TO TAKE SOMETHING FROM ONE EMBODIMENT AND LIMIT THE CLAIM BY THE LANGUAGE. THE THIRD CITATION I WOULD ADD, YOUR HONOR, DOESN'T ACTUALLY MAKE A REFERENCE TO REMOTE LOCATION AT ALL. THAT JUST

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UNDERSCORES THE TERM REMOTE DOESN'T APPEAR ANYWHERE IN ANY OF THE TRANSMISSION LIMITATIONS OF THE CLAIMS THEMSELVES. THE CLAIMS, OF COURSE, CAN BE BROADER THEN THE DESCRIPTION OF THE PREFERRED EMBODIMENT. THE OTHER PROBLEM THE WORD REMOTE IT INTRODUCE THESE AMBIGUITIES, WHICH THEIR EXPERT MR. HALPERN HAS AGREED WITH THE BURST PATENTS THEMSELVES REFER TO ON THE ONE HAND, RECEIVING DEVICE ON THE OTHER END OF THE PHONE LINE, BUT THEY ALSO TALK ABOUT A TRANSCEIVER COUPLED WITHIN THE SAME NETWORK, WHICH COULD BE NEXT DOOR IN YOUR HOUSE, COULD BE NEXT TO THE DEVICE ON A SINGLE DESK. THEY WANT TO CARVE OUT STORAGE DEVICES.

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AND THE REASON IS BECAUSE THEY ARGUE THE IPOD IS A STORAGE DEVICE. THEY'RE THE ONES INTRODUCING INFRINGEMENT THEY'VE BEEN FAIRLY OVERT

ISSUES INTO CLAIM CONSTRUCTION. ABOUT IT.

THEY WANT TO TAKE THE POSITION THE IPOD IS A STORAGE DEVICE, THAT'S WHY THEY WANT THE COURT TO EXPRESSLY CARVE OUT FROM TRANSMISSION, TRANSMISSION OF AUDIO AND VIDEO TO A STORAGE JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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DEVICE. 2 3 AND WE'VE GOT SOME LEGAL CITATIONS HERE WHICH POINT OUT THAT IS A FORM, THAT IS AN APPROACH TO CLAIM CONSTRUCTION WHICH IS FROWNED ON. DISAGREEMENT. IT'S A DIAGRAM, WHAT WE HAVE DONE IS TO SUGGEST THAT TRANSMISSION TERMS BE CONSTRUED IN THE WAY THAT MAKE REFERENCE TO TRANSMISSION TO DEVICE CAPABLE OF PLAYBACK. THEY SAY TRANSMISSION TO REMOTE LOCATIONS, SO ANY DEVICES THAT ARE LESS THAN REMOTE, WHATEVER THAT MEANS, GO OUT THE WINDOW, AND THE OTHER THING THAT GOES OUT THE WINDOW IS ANY DEVICE, ANY STORAGE DEVICE.
SO THERE ARE DEVISES LIKE THE VCRET THAT DO BOTH, I

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HERE IS THE REAL IMPACT OF THIS

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WOULD SUGGEST, BY THE WAY, I THINK, THE IPOD DOES BOTH.

BUT

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THEY WOULD TRY TO DO, I ASSUME, WHAT THEY'RE TRYING TO DO, IS TO DEVELOP A BASIS FOR ARGUING THAT ANY DEVICE THAT STORES, REGARDLESS OF WHAT ELSE IT DOES, IT IS EXCLUDED, EVEN IF IT ALSO PLAYS BACK. THEIR SOLE BASIS FOR THIS IS REPEAT OF MR. POWERS ATTEMPT TO TALK ABOUT LEFT TURNS AND RIGHT TURNS IN THE PROSECUTION HISTORY, WHEN IN FACT THAT IS NOT AT ALL SUPPORTED BY CAREFUL READING OF THE HISTORY, EITHER IN THIS CASE OR IN THE OTHER ONE. THE IZEKI INVENTION, BY THE WAY, THAT'S BEEN TALKED ABOUT A LOT, I DON'T THINK ANYBODY REALLY EXPLAINED TO THE JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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COURT WHAT THE THING WAS.

EXPLICITLY DESCRIBED BY THE INVENTOR

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IN THE BACKGROUND AS AN APPARATUS FOR EDITING INFORMATION, INCLUDING PICTURES, SOUNDS, CHARACTERS AND OTHERS AND PROVIDES FOR A FILLING SYSTEM. THE INFORMATION IS SOMETIMES EDITED AND PROCESSED BEFORE BEING FILLED INTO A RECORDING MEDIUM OR A STORAGE UNIT. THIS BECOMES A KEY POINT OF DISTINCTION WITH THIS PATENT ALL THE WAY THROUGH THE PROSECUTION HISTORY. THIS DEVICE, THIS

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INVENTION WAS NOT DESIGNED TO TRANSMIT AUDIO AND VIDEO OUTSIDE THE DEVICE FOR VIEWING BY OTHER USERS. AND THIS IS A -- THIS PREMASTERING UNIT AT THE BOTTOM HERE WHICH IS CONNECTED TO THIS INTERFACE 80, WHAT IS IT FOR? IT OUTPUTS THE INFORMATION FOR FILES IN THE FORM OF A MASTER TAPE. THE FINAL PROGRAM AND THE FINAL DATA FILES ARE TRANSFERRED FROM THE HARD DISK UNIT TO THE PREMASTERING UNIT VIA THE INTERFACES 79 AND 80, AND THE SYSTEM BUS IT PRODUCES A MASTER TAPE HOLDING THE TRANSFERRED FILES, WHICH IS THEN USED IN MANUFACTURING A RECORDING MEDIUM. THE ONLY WAY THE IZEKI DEVICE YOU COULD TRANSMIT INFORMATION IN FASTER THAN REAL TIME, I SUPPOSE, WOULD BE TO PULL THE MASTER TAPE OUT OF THE APPARATUS AND RUN REALLY FAST NEXT DOOR WITH IT. IT DID NOT TEACH TRANSMISSION AWAY FROM THE
SO IT DOES COME UP

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APPARATUS FOR EITHER STORAGE OR PLAYBACK. IN THE PROSECUTION HISTORY.

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THE VERY FIRST, THE FEBRUARY 27TH '95 OFFICE ACTION THE EXAMINER SIMPLY ASSOCIATED, THIS IS PORTION THAT IS CITED BY APPLE, THAT IZEKI DEVICES AN OUTPUT MEANS FOR OUTPUTTING THE EDITING INFORMATION AWAY FROM THE APPARATUS. MR. POWERS SAID, EXAMINER REJECTED INFORMATION AWAY FROM THE DEVICE. HERE'S IZEKI FIGURE ONE AND DOWN HERE THIS IS THE OUTPUT PORT 80, WHICH IS THE SOLE REFERENCE THAT APPLE REFERS
TO.

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DOESN'T SAY WHERE

ON THE BASIS TRANSMITTED

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AND WHERE DOES IT GO?

THIS PREMASTERING UNIT WHICH MAKES I'M GOING TO HAVE TO

THE TAPE.

SO BURST RESPONDED TO THAT.

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FLY THROUGH THIS.
THE COURT:
MR. FOLSE:

YES, YOU'RE RIGHT. WHAT HAPPENS IN A NUTSHELL, YOUR HONOR, IS

WHICH SEEMS TO HAPPEN A LOT, THE EXAMINER MAKES A REJECTION, THE APPLICANT COMES BACK AND EXPLAINS WHY IT'S NOT, WHY THE PRIOR ART, IN FACT, IS DISTINGUISHABLE. THE EXAMINER COMES BACK MAKES THE EXACT SAME REJECTION AGAIN, IT'S LIKE NO DIALOGUE HAPPENING AT ALL. THIS GOES ON

SEVERAL TIMES HERE, BUT WHAT BURST IS POINTING OUT IS THAT THE STORAGE DEVICE, WHAT IZEKI DOES TRANSFERRING INFORMATION FROM INTERFACE TO A STORAGE DEVICE SUCH AS A MAGNETIC TAPE. AND IT CONTRASTS THAT WITH THE BURST INVENTION WHICH DOES STORE BUT ALSO TRANSMITS A TIME-COMPRESSED REPRESENTATION OF THE INFORMATION AWAY FROM THE TRANSCEIVER, IN THIS BURST TIME PERIOD THAT'S SHORTER THAN THE TIME PERIOD ASSOCIATED WITH JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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REAL TIME VIEWING. EXAMINER REJECTS AGAIN, BURST AGAIN RESPONDS BY EMPHASIZING, COMES BACK AND MAKES SOME AMENDMENTS EMPHASIZING THAT THE INFORMATION CAN BE RECEIVED AND VIEWED BY A RECEIVER UNDER THE BURST PATENT. AND, IN FACT, THE EXAMINER AGREES THAT THAT AMENDMENT, WHICH ACTUALLY ADDED THE WORD RECEIVER, OVERCOMES THE ART. BUT GOES ON, BURST GOES ON AFTER MAKING THESE AMENDMENTS, TO EMPHASIZE THE INVENTION IS A DELIVERY TECHNIQUE THAT USES COMPRESSION TO TRANSMIT A TIME-COMPRESSED REPRESENTATION IN A BURST TIME PERIOD FOR VIEWING BY A RECEIVER. THE EXAMINER AGAIN REJECTS AND MAKES THIS POINT, THAT ACCORDING TO THE EXAMINER IT WOULD HAVE BEEN OBVIOUS TO MODIFY IZEKI BY PROVIDING SOME FAST TRANSFER MEANS THAT WOULD ALLOW DATA TO BE TRANSFERRED WITH HIGH SPEED. IN RESPONSE TO THAT BURST CANCELLED ALL ITS ORIGINAL CLAIMS AND ADDED NEW ONES AND SAID AS FOLLOWS: "THE PRESENT INVENTION TEACHES A SYSTEM AND METHOD FOR TRANSMITTING AUDIO/VIDEO SOURCE INFORMATION, NAMELY, FULL MOTION VIDEO PROGRAMS." REMEMBER THERE IS THE '705 PATENT BETWEEN DEVISES, IT'S TIME COMPRESSED TO ALLOW TRANSMISSION IN A BURST TRANSMISSION TIME PERIOD, WHICH IS SUBSTANTIALLY SHORTER THAN THE TIME ASSOCIATED WITH VIEWING. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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GOES ONTO STAY ABOUT WHAT IZEKI TEACHES, WHICH IS CONVEYANCE VIA INTERFACE TO A STORAGE DEVICE SUCH AS A TAPE, DOESN'T PROVIDE FOR BURST TRANSMISSION OF VIDEO PROGRAMS OVER COMMUNICATIONS CHANNEL, IT'S INTENDED TO FACILITATE PRODUCTION OF A MASTER TAPE. IT REFERS TO REPEATEDLY TO THE NOTION OF TRANSFERRING CONTENT THAT HAS AN INHERENT ELEMENT, YOU HAVE TO TAKE TIME TO PROCESS IT, TO LISTEN TO IT, TO VIEW IT, AND IT CORRELATES THAT WITH THE COMPRESSION AND THE FASTER THAN REAL TIME TRANSMISSION. AND IT SAYS IZEKI JUST DOESN'T TEACH THIS, NOT

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CONCERNED WITH TRANSMITTING AUDIO/VIDEO INFORMATION AWAY FROM THE APPARATUS TO ONE OR MORE RECEIVERS.
SO EVENTUALLY THE CLAIMS ARE ALLOWED AND THESE ARE THE

CONCLUSIONS, AND THE SLIDES LAYOUT THE FILE HISTORY IN SOME DETAIL, THOUGH, I'M NOT TAKING TIME TO READ THEM. BUT WHAT YOU SEE FROM IT, IS THAT BURST EMPHASIZED THE TEMPORAL ASPECT OF THE AUDIO/VIDEO SOURCE INFORMATION TO WHICH THE INVENTION WAS DIRECTED, IT HAS A TEMPORAL CONTENT. IT EMPHASIZED THE TRANSMISSION OF THE INFORMATION TO A RECEIVER FOR THE PURPOSE OF PLAYBACK OR VIEWING. IT EMPHASIZED

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THE INVENTION PROVIDED FOR TRANSFERRED INFORMATION BETWEEN DEVICES AND IT DISTINGUISHED IZEKI ON THOSE GROUNDS THAT IZEKI DID NOT TEACH TRANSMISSION OF TEMPORAL CONTENT BETWEEN DEVICES FOR VIEWING, BUT SOLELY PROVIDED FOR CREATION OF A STORAGE MEDIUM WITHIN THE APPARATUS. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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BURST DID NOT CLEARLY DISCLAIM TRANSFERS OF INFORMATION TO THE DEVICES CAPABLE OF -- ONLY OF STORING INFORMATION AND IT CLEARLY DID NOT DISCLAIM TRANSFERS TO DEVICES THAT WERE CAPABLE OF BOTH STORAGE AND PLAYBACK. IN FACT, THE PATENT AS I'VE SHOWN TALKS REPEATEDLY ABOUT TRANSFERS OF INFORMATION TO THE DEVICES THAT BOTH STORE AND PLAYBACK. THERE'S NOTHING IN THE PATENT THAT REQUIRES AN EXCLUSION OF TRANSFERS TO DEVICES THAT STORE. NOW, WHAT APPLE DOES IS TO SAY, WELL, THE STORAGE DEVICE YOU CAN DEDUCE FROM THE FIGURES OF THE IZEKI PATENT THAT IZEKI DID PROVIDE FOR TRANSFERS TO AN EXTERNAL DEVICE. LET'S LOOK. WE'RE GOING TO LOOK AT EACH OF THE FIGURES IN THE IZEKI PATENT, IN EACH OF THE FIGURES THAT DESCRIBE THE ENTIRE APPARATUS AND ALTERNATIVE EMBODIMENTS THERE ARE COMPONENTS THAT HAVE DOTTED LINES AROUND IT. IN FIGURE ONE I'VE GOT YELLOW
SO

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ARROWS THAT SHOW TWO COMPONENTS THAT HAVE DOTTED LINES AROUND IT. WHAT APPLE WANTS TO SAY THIS COMPONENT DOWN HERE ON THE LEFT-HAND CORNER IS A SEPARATE DEVICE BECAUSE IT HAS A DOTTED LINE AROUND IT. BUT I THINK ONE THING YOU CAN NOTICE

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FROM THIS FIGURE, YOUR HONOR, IS THAT ONE THING THAT DISTINGUISHES THESE COMPONENTS WITH DOTTED LINES AROUND THEM FROM EVERYTHING ELSE IS THAT THEY HAVE MULTIPLE COMPONENTS INSIDE THEM. JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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FIGURE 3 THERE'S AGAIN ONE COMPONENT THAT HAS A DOTTED LINE AROUND IT, IT HAS MORE THAN ONE COMPONENT INSIDE. SAME FOR FIGURE 4. FIGURE 5 HAS THREE COMPONENTS WITH DOTTED LINES AROUND IT. THE ONLY THING JUST LOOKING AT IT THAT THEY HAVE IN COMMON IS THAT THEY HAVE MULTIPLE COMPONENTS INSIDE THEM, WHICH ARE CLEARLY DESIGNED TO WORK TOGETHER. APPLE WANTS TO REACH THE CONCLUSION BECAUSE THEY HAVE A DOTTED LINE AROUND IT THEY MUST BE A SEPARATE DEVICE. SUGGESTED THAT IS NOT AT ALL A NECESSARY CONCLUSION. FIGURE 6, AGAIN, HAS GOT THE ONE THING THAT HAS DOTTED LINES AROUND IT, HAS MULTIPLE COMPONENTS.
SO GOING BACK TO THIS REPRODUCTION DEVICE 55, WHAT THE

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JUST

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IZEKI PATENT DOES IN DESCRIBING THE PRE-PRODUCTION DEVICE, IT PERFORMS STEPS THAT ARE OCCURRING WITHIN THE APPARATUS AS A WHOLE, AND IT TAKES FILES, IT THEN DOES CHECKS ON THE FINAL STORING SEQUENCE AND ARRANGEMENT, RETURNS THE FILES BACK TO THE HARD DISK UNIT AND TO THE PREMASTERING UNIT. THERE ARE SOME DEVICES DESCRIBED IN IZEKI THAT CLEARLY ARE EXTERNAL TO THE APPARATUS. IT REFERS TO AN IMAGE PICK UP

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DEVICE NOT SHOWN, SUCH AS A TELEVISION CAMERA GENERATING A VIDEO SIGNAL WHICH IS APPLIED TO THE VIDEO INPUT UNIT 43. JUST REMEMBER THAT NUMBER 43 IT REFERS TO AN EXTERNAL UNIT NOT SHOWN WHICH GENERATES A VIDEO SIGNAL REPRESENTATIVE OF JAMES YEOMANS - OFFICIAL REPORTER - [phone]

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A GRAPH ANIMATION AND ALIKE. UNIT 43.

WHERE DOES THAT COME?

IN INPUT

REFERS TO AUDIO REPRODUCTION DEVICE NOT SHOWN AS SUCH 4
5

AS AUDIO TAPE RECORDER, WHICH GENERATES AN AUDIO SIGNAL THAT COMES IN THROUGH AUDIO INPUT UNIT 45.
SO WE GOT 45 AND 43 WHICH IS WHERE TRULY EXTERNAL

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DEVICES CONNECT TO THE APPARATUS AND, THERE'S 43 AND 45 AND YOU CAN SEE THESE ARE EXTERNAL DEVICES THEY DON'T HAVE DOTTED LINES AROUND THEM. APPARATUS. HERE'S A DEVICE THAT ARGUABLY IS EXTERNAL, IT'S A PRINTER. YOU CAN CONCEIVE OF A MACHINE BEING BUILT WITH A THEY'RE CLEARLY DEEMED TO BE EXTERNAL TO THE

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PRINTER INSIDE THE HOUSING, SO DOESN'T NECESSARILY MEAN THAT IT'S EXTERNAL, BUT IT COULD BE. DOTTED LINE AROUND IT. AND YET IT DOESN'T HAVE A

THE POINT IS THAT THE DOTTED LINES IN

IZEKI DO NOT CLEARLY INDICATE EXTERNAL DEVICES. THE POINT OF WHICH IS THAT THIS, LIKE MANY OF APPLE'S ARGUMENTS, PUTS A TREMENDOUS AMOUNT OF WEIGHT ON A PROSECUTION HISTORY, THAT AT THE ABSOLUTE BEST FOR THEM IS AMBIGUOUS. AND, IN FACT, I THINK, IT IS NOT AMBIGUOUS, I THINK, IF THE PROSECUTION HISTORY AS READ IT'S QUITE CLEAR WHERE BURST IS DRAWING THE DISTINCTION WITH IZEKI PATENT, BOTH IN THE CONTEXT OF TRANSMISSION AND IN THE CONTEXT OF WHAT MR. POWERS DISCUSSED EARLIER. AND WHAT THEY'RE ATTEMPTING TO DO IS MANIPULATE THE
~

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PROSECUTION HISTORY, WHICH IF YOU READ IT IS ABSOLUTELY CLEAR THAT BURST WAS NOT EMBRACING THIS CONCEPT OF TIME COMPRESSION WHICH IS REFERRED TO NOWHERE IN THE PATENT, WHICH BURST DOES NOT REFER TO ANYWHERE IN THE FILE HISTORY AS A TECHNICIAN INTENDS TO EMPLOY. HE USED THE PHRASE TIME-COMPRESSED REPRESENTATION AND REFERS TO TRANSMISSION FOR THE PURPOSE OF PLAYBACK.
SO, YOUR

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HONOR, THAT CONCLUDES THAT SECTION ON TRANSMISSION TERMS. I THINK, THERE'S WAS A SECOND PIECE I WAS GOING TO COME TO, I THINK, IT'S -- PROBABLY SINCE IT'S FIVE AFTER 1:OO I'M GOING TO GO THROUGH IT IN MAYBE FIVE OR 10 MINUTES. IT

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RELATES TO AUDIO VISUAL SOURCE INFORMATION AND THE HANDLING OF THAT INFORMATION.
THE COURT:
M R . FOLSE:

WELL -I CAN DO IT NOW, IF YOU PREFER.
DO IT VERY QUICKLY.

THE COURT:
MR. FOLSE:

LET'S MOVE TO THAT.

THESE ARE THE FOUR

TERMS.

I THINK, FRANKLY, I'LL SAY NOTHING ABOUT THIS LAST

MAYBE TWO SENTENCES, ABOUT THAT ONE. AND SO THE AUDIO VISUAL SOURCE INFORMATION THIS IS A TERM THAT COMES UP OFTEN, THE PARTIES ARE IN AGREEMENT THAT AUDIO/VIDEO ARE THE SAME THING AND THEY MEAN AUDIO ONLY, VIDEO ONLY OR AUDIO AND VIDEO. VIDEO. AND I THINK THE PARTIES ALSO AGREE, IF I'M READING THE JAMES YEOMANS - OFFICIAL REPORTER - [phone] AND HENCE THE TERM AUDIO AND/OR

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Case 3:06-cv-00019-MHP

Document 157-4

Filed 09/06/2007

Page 45 of 51

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BRIEFS CORRECTLY, THAT AUDIO/VIDEO SOURCE INFORMATION AT A MINIMUM MEANS THIS. TEMPORAL DIMENSION.
THE COURT:
MR. FOLSE:

AN AUDIO AND/OR VIDEO WORK THAT HAS A

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SOMEBODY WENT TO GET THE LUNCH. LET ME GET BACK TO THAT. BOTH PARTIES

AGREE TO THIS EXTENT.

THAT IT IS AN AUDIO AND/OR VIDEO WORK

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THAT HAS A TEMPORAL DIMENSION. APPLE THINKS TEMPORAL DIMENSION REALLY ISN'T NECESSARY, THAT THE TERM AUDIO/VIDEO WORK