Motorola Mobility, Inc. v. Apple, Inc.

Filing 159

RESPONSE/REPLY to 95 Affidavit, Supplemental Claim Construction Brief by Apple, Inc.. (Attachments: # 1 Affidavit Declaration of Christine Haskett, # 2 Exhibit #1- Hearing Transcript, # 3 Exhibit #2- Presentation, # 4 Exhibit #3- Contentions, # 5 Exhibit #4- EP0847654B1, # 6 Exhibit #5- Comparison, # 7 Exhibit #6- Translation, # 8 Exhibit #7- Rule 43)(Pace, Christopher)

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EXHIBIT 1 Page 408 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 10-23580-Civ-UNGARO MOTOROLA MOBILITY, INC., Plaintiff, -vAPPLE, INC., Defendant. ) ) ) ) ) ) ) ) ) ) VOLUME 2B Miami, Florida October 18, 2011 3:06 p.m. TRANSCRIPT OF MARKMAN HEARING BEFORE THE HONORABLE URSULA UNGARO U.S. DISTRICT JUDGE APPEARANCES: For the Plaintiff ASTIGARRAGA DAVIS MULLINS & GROSSMAN, PA BY: EDWARD M. MULLINS, ESQ. 701 Brickell Avenue - 16th Floor Miami, Florida 33131 -andQUINN EMMANUEL URQUHART & SULLIVAN BY: DAVID A. PERLSON, ESQ., ANTHONY PASTOR, ESQ., and JOHN DUCHEMIN, ESQ. 50 California Street - 22nd Floor San Francisco, California 94111 -andBY: RAYMOND N. NIMROD, ESQ. 51 Madison Street - 22nd Floor New York, New York 10010 (Continued) REPORTED BY: TAMRA K. PIDERIT, FPR, RPR, CRR (561) 832-7500 Prose Court Reporting 250 South Australian Avenue - Suite 1500 West Palm Beach, Florida 33401 acd2ea1c-87d5-4ec2-99da-78925274da0c Page 409 1 APPEARANCES (continued): 2 3 For the Defendant 4 5 WEIL, GOTSHAL & MANGES, LLP BY: MATTHEW D. POWERS, ESQ., JILL J. HO, ESQ., and ANNE M. CAPPELLA, ESQ. 201 Redwood Shores Parkway Redwood Shores, California 94065-1134 6 COVINGTON & BURLING, LLP BY: ROBERT T. HASLAM, ESQ., CHRISTINE S. HASKETT, ESQ., and CHRISTOPHER K. EPPICH, ESQ. 333 Twin Dolphin Drive - Suite 700 Redwood Shores, California 94065 7 8 9 10 11 12 (Call to order of the Court) THE COURT: Okay. You can have a seat. How are we doing this? 13 MR. HASLAM: 14 THE COURT: 15 MR. HASLAM: 16 It's me. Bob Haslam. I can do it in less. How much time do you need? I'm going to ask for an hour, but I think 17 THE COURT: 18 MR. HASLAM: 19 THE COURT: 20 MR. HASLAM: 21 As I have been sitting here the last two days, I have 22 had several thoughts, but two I thought I might share with you 23 as sort of an introduction on the '119 patent perhaps that's 24 going to be applicable to some of the other patents. 25 An hour a side? Do you want some rebuttal? Yes. Ten minutes? I will take 10 minutes. There is a judge in California who has done a lot of acd2ea1c-87d5-4ec2-99da-78925274da0c Page 410 1 patent cases. 2 THE COURT: 3 MR. HASLAM: That poor judge. He would sympathize and probably empathize 4 with what you are going through here yesterday, today, tomorrow, 5 and after we leave. 6 to other judges about the process. 7 examples was a claim that they had that had the term 8 "substantially parallel." 9 to myself, when I went to school there were parallel lines and He would give talks to the bench and also In one of his favorite When I heard him say that I thought 10 nonparallel lines, and I don't know what "substantially 11 parallel" means, so I empathize with him. The second thought that I had, and I did have more than 12 13 two thoughts the last several days, but the second thought is I 14 don't think the '119 patent is over there in the category of 15 substantially parallel. 16 spectrum. 17 It's actually at the other end of the I suspect you will either have or will wonder on this 18 one, as you did ask on a prior one, why do I need to construe 19 this at all. 20 my presentation is why these terms, which may seem like they are 21 ordinary terms even to the people who might sit in the jury, why 22 there is still a dispute that requires your resolution. 23 because we know what mischief, because of other discovery in 24 this case, we know what mischief Motorola will attempt to cloak 25 it's ordinary meaning in. One of the things I'm going to elaborate on during It's acd2ea1c-87d5-4ec2-99da-78925274da0c Page 411 1 THE COURT: 2 MR. HASLAM: They seem they are mischievous. The first page there it just has the 3 patent; again, it's for reference. 4 what the problem that the '119 patent was aimed at purportedly 5 solving. 6 user had multiple pagers, changes that were made on one pager 7 were not automatically synchronized with the other. 8 solution they came up with was automatic synchronization of 9 changes made on one pager -- with one user's pager with that 10 I want to start here with And the problem they faced was back in the '90s when a The user's other pagers. One of the slides that we use in the tutorial, and it 11 12 comes right off the specification, an example that the inventors 13 gave is the beach pager, the neon beach pager during the day 14 where the user is on the beach receiving and reading and 15 deleting or saving or protecting messages weren't being 16 automatically made those same changes on his evening black 17 pager. 18 avoid the tedious task of having to reread messages, resave 19 them, redelete them, or do whatever at home. 20 So they wanted to come up with a way that they could Next slide, slide 6, just graphically illustrates what 21 the problem was. 22 And the background of the invention, again, highlights what they 23 thought the problem was. 24 pager and, therefore, has to make the changes. 25 The specification, slide 7, is the background. The user is faced with a different At the end of that portion that I have put up on slide acd2ea1c-87d5-4ec2-99da-78925274da0c Page 412 1 7, they tell us what their solution -- what they were looking 2 for to solve the problem, and they stated, "Thus, what is needed 3 is a way to have message status changes made on any one of the 4 user's pagers automatically made on the user's other pagers." 5 The point I'm going to come back to, and we are going 6 to see it over and over again, is the word "automatically," 7 which is one of the terms that we believe should be included in 8 the Court's construction. 9 I have put up here Claim 1, and I have walked through 10 it, but I want to move on because I want to go through Claim 1 11 with an animation we have, which I think illustrates what the 12 invention is as described in Claim 1. 13 What we see here on the screen on slide 12 is in the 14 upper, left-hand corner is the neon beach pager, and down below 15 we see the black evening pager. 16 the beach, and a first message has been sent to me if I'm the 17 person at the beach and waiting to go home from my home pager. 18 In the terminology of the claim, we have both pagers, because we 19 have the same address, have received a message, and the first 20 status is unread. 21 Again, during the daytime at The claim goes on to describe a change in the -- there 22 we have the first message coming in, first status unread. The 23 claim goes on to describe a manual input, in this case, 24 causing -- what we see in here is on the first pager the person 25 read the message and then decided to delete it. That's the acd2ea1c-87d5-4ec2-99da-78925274da0c Page 413 1 second status going from unread to delete. 2 with that status was sent in the claim term the wireless 3 transceiver, which is a tower in the wireless network, the 4 paging network, and we have seen in the nighttime at that point 5 in time when the delete was made on my beach pager, it hadn't 6 yet been made on the nighttime pager. 7 A second message What we see here in the terms of the claim is in 8 response to the second message, a third message is being sent. 9 And in the third message the claim provides that the second -- 10 the third message has something that is indicative of the second 11 status, indicative, in this case, of the delete. 12 And the claim goes on in the last element to say in one 13 of the other pagers, in this case my home pager, in response to 14 receiving the third message, which is the one that came from the 15 wireless infrastructure, changing the first status of the first 16 message, which was the one that I had received the same as at 17 the beach, to the second status, which in this case is delete. 18 So what I put on the screen here are the proposed 19 constructions. 20 "responsive to receiving the second message, transmitting a 21 third message." 22 23 24 25 The claim term we are going to focus on is Our proposed construction is "upon receiving the second message, automatically transmitting a third message." THE COURT: So what would it be if it wasn't automatic? I mean, that's really the only concept that you introduce here, acd2ea1c-87d5-4ec2-99da-78925274da0c Page 414 1 right? MR. HASLAM: 2 It is. I can give you an example. 3 on I have got an example of the accused device that will 4 illustrate what the device is. 5 Later that might be a little more user friendly. I thought of another example If I'm at home at night and I hear somebody breaking 6 7 glass downstairs and I call 911, a policeman will be dispatched 8 as a result of or in response to my call -- 9 THE COURT: Right. 10 MR. HASLAM: 11 Now, suppose I'm not that smart, so I stay in my house, -- and will come to my house. 12 doorbell rings, a policeman comes to the door soliciting funds 13 for the Policemen's Athletic League. 14 door, but he did not come in response to the 911 call, and 15 that's an argument that Motorola is going to make in the accused 16 device. 17 The policeman came to my There is no third message within the context of the 18 claim that is in response to or upon receiving the second 19 message automatically sent. 20 talk later about where they are going to try to get that point 21 across in the claim language and out of the specification. They are going to, and I'm going to 22 I think you have hit the nail on the head. The patent 23 is all about, and I'm going to show you both in the 24 specification, in the claim language, and in the prosecution 25 history is all about in response to receiving the second message acd2ea1c-87d5-4ec2-99da-78925274da0c Page 415 1 there is a cause-and-effect relationship that is a result of 2 that or caused by the receipt of the second message that the 3 third message is dispatched. That's the essence of the dispute. So what I put up here is a big red question mark is 4 5 Motorola's proposed construction is to leave it to argument to 6 the jury to what "responsive to receiving the second message" 7 means. 8 are going to argue is the policeman who is coming to solicit 9 funds for the PAL is somehow in response to my 911 call when he 10 11 As my somewhat clumsy example of a 911 call, what they doesn't even know about the 911 call. So here is what the dispute -- one way of phrasing the 12 dispute, "when receipt of the second message causes automatic 13 transmission of the third message," or in Motorola's view, as we 14 believe their position to be, "whether receipt of the second 15 message need not cause transmission of a third message." 16 Here is an overview of the arguments I'm going to make. 17 We find support both in the claim language, specification, and 18 the prosecution history. 19 claim language. 20 three spaces and color coded them. 21 to" in three places in Claim 1. 22 of the first message to a second message responsive to an input 23 to the one transceiver. 24 for purposes of the patent was one of the pagers. 25 And let's look first of all at the I have up here Claim 1, and I have numbered We see the term "responsive First, is changing the status Transceiver is in this claim language As we saw the input in the example in the patent is me acd2ea1c-87d5-4ec2-99da-78925274da0c Page 416 1 at the beach, pushes a button to delete a message. The second 2 place we see it is where the claim dispute exists that we are 3 going to be resolving here, and that is responsive to receiving 4 the second message, transmitting a third message. 5 place is in the last element where the claim says, "responsive 6 to receiving the third message, changing the first status." And the last 7 We know from both parties' legal tutorials that as a 8 very general but very often almost always true, the same term 9 used in a claim should be given the same meaning. 10 When we look at how the -- 11 THE COURT: 12 understand this mechanically. 13 third message changing the first status of the first message to 14 the second status." 15 MR. HASLAM: 16 THE COURT: Could you go back. I'm not sure I "Responsive to receiving the Yes. This is we are still talking about in the 17 transceiver that is not the one that originally received the 18 message. 19 MR. HASLAM: Right. That's because since both pagers 20 have the same address, when the first message came in in the 21 claim term, which is, for example, an e-mail from my wife, or 22 today it would be, back then it would be a page from somebody, 23 that goes to both the neon pager and nighttime pager, and they 24 call that the first message. 25 THE COURT: So then when you open the message it's acd2ea1c-87d5-4ec2-99da-78925274da0c Page 417 1 read, so that sends a message to the other beeper saying it's 2 been read? 3 MR. HASLAM: 4 THE COURT: 5 6 Correct. And then there is a third message that's sent to the beeper itself saying change its status to read? MR. HASLAM: Right. And the second message -- to be 7 precise, the second message is the one that goes from my beach 8 pager to the wireless network. 9 around the third message which says change your status from the The wireless network turns 10 first status in your example which was unread to read, which 11 that's what the last element is talking about. 12 THE COURT: 13 MR. HASLAM: Okay. In those three places they use the term 14 "responsive to." 15 talks about some of those limitations, it uses words of 16 causation. 17 changing the status on the beach pager here, the act of 18 depressing the button causes the status of message 205, which is 19 the first message, to change from unread to read in pager 130. 20 In the parlance of the patent, pager 130 is my neon beach pager. 21 When we look at the specification, when it So Count 5, lines 45 and 46, it's talking about Likewise at column 10, lines 50 to 53, and this is on 22 slide 24, it says: When a first status in a transceiver is 23 changed to a subsequent status, as a result of a subsequent 24 input to the first transceiver, the invention provides a method 25 of automatically changing the first status in a second acd2ea1c-87d5-4ec2-99da-78925274da0c Page 418 1 transceiver to the subsequent status. So here again in the highlighted portion it uses words 2 3 of causation when it talks about what "responsive to" means. 4 Because in the claim, remember, in the first part it changes a 5 first message from a first status to a second status responsive 6 to an input, and the specification specifically is talking about 7 that change based on a subsequent input being as a result of. And if we look at the papers in your binder, it's 8 9 docket number 93-3, it's a notice of allowabilty. The examiner 10 in explaining why he was allowing the patent, among other 11 things, said that "wherein status changes made on a first pager 12 are wirelessly communicated to an infrastructure which 13 automatically communicates such status changes to other pagers, 14 thus causing the other pagers to make corresponding changes in 15 their status." That's in the third claim element I was talking about 16 17 responsive to receiving the third message changing the second 18 message. 19 So if we look at the claim language mapped up with the 20 specification, we see that the patentees use "responsive to" in 21 a variety of ways to mean something causing something else, as a 22 result of, caused by, or causing something. 23 Now, let's look at what the specification says about 24 "responsive to" receiving the second message transmitting a 25 third message. In the background of the invention, and I acd2ea1c-87d5-4ec2-99da-78925274da0c Page 419 1 alluded to this in an earlier slide, this is column 1, line 66 2 to column 2, line 2 on slide 28, in describing after laying out 3 what the problems with the prior art were, they state the 4 problem that they were going to solve. 5 to have message status changes made on any one of the user's 6 pagers automatically made on the user's other pagers." "What is needed is a way 7 I'm not going to belabor it, but both sides in their 8 tutorials said looking at the problem that the inventors were 9 trying to solve is a helpful way of defining or looking at what 10 should be the proper scope of the claim giving the inventor 11 nothing less than what they claimed, but also nothing more than 12 what they claimed. Then if we look at the abstract, and I know there was a 13 14 lot of discussion legally about the significance of the 15 abstract, and the cases do look at it. 16 thick book that the Patent Office has called the Manual of 17 Patent Examining Procedures. 18 THE COURT: 19 MR. HASLAM: 20 There is actually a very Where is the abstract? The abstract is on the front page of the patent. 21 THE COURT: 22 MR. HASLAM: Oh. Right. I have got it on. I have got it on the screen here, but it 23 is supposed to be a succinct statement of the technical 24 disclosure and of what is new. 25 specified at Section 608.018(b) of the Manual of Patent That's something that is acd2ea1c-87d5-4ec2-99da-78925274da0c Page 420 1 Examination Procedures. 2 need to go there, but there is guidance as to what it is. THE COURT: 3 I don't necessarily suggest that you Can I make a suggestion? Without 4 understanding what their argument is, it's kind of useless to me 5 because what you are saying makes perfect sense. 6 understand their position on why what you are saying doesn't 7 make perfect sense. MR. HASLAM: 8 9 sit down. I'm perfectly happy on this claim term to There is another term. 10 THE COURT: 11 MR. HASLAM: 12 THE COURT: 13 I need to There is, right. I'm happy to skip to that. Why don't we do that, and then I will give you a little more time in rebuttal if you have it. 14 MR. HASLAM: All right. 15 The second term which is in that same clause that we 16 were looking at earlier is what does it mean to be indicative of 17 the second status. 18 might look at this and say why should I have to construe this. 19 It seems to be reasonably clear what it means. 20 This is one I suspect that reasonable minds However, we believe it should be made clear that it is 21 descriptive of the changed status. 22 construction is ordinary meaning, or here they have given us a 23 proposed ordinary meaning definition, which is "providing an 24 indication of the second status." 25 Motorola's proposed What we think the dispute might be, but Motorola will acd2ea1c-87d5-4ec2-99da-78925274da0c Page 421 1 have to clarify this for us, we believe that the third message 2 contains the changed status. 3 is read, deleted, protected, or some other status. 4 that what Motorola is contending for is that the third message 5 merely indicates that a status change has occurred without 6 actually communicating what the new status is. 7 That is whether the changed status We believe What I have shown on slide 56, it's a rather busy 8 slide, but I have tried to condense some of the relevant 9 messages and some of the relevant claim terms in one graphic to 10 illustrate why we believe that the third message must contain 11 what the status change is as opposed to merely that a status 12 change has occurred. 13 beach pager, already having deleted the message, so that's the 14 second status. 15 THE COURT: Again, I have shown the first pager, the I don't get this. I mean, then it goes on 16 to say, "and responsive to receiving the second message, 17 transmitting a third message indicative of the second status." 18 So whatever the indication is it's got to be parallel to the 19 second message. 20 So it's got to have some informational content. MR. HASLAM: Precisely. If we actually look at the 21 claim, which I put up there at slide 58, the last claim element 22 says, "receiving the third message and responsive to receiving 23 the third message changing the first status of the first message 24 to the second status." 25 If you don't know what the second status is in that acd2ea1c-87d5-4ec2-99da-78925274da0c Page 422 1 third message, then the home pager doesn't know what to change 2 the status to. THE COURT: 3 4 If I -I'm not sure I understand this distinction between indicative and descriptive. MR. HASLAM: 5 If indicative means simply that the third 6 message says there has been some status change without telling 7 me what it is. As I said -- THE COURT: 8 Okay. I really need to understand how they 9 could take that position, because it's obvious, I think from it 10 here, that the third message has to be reflective in some way of 11 whatever the second message was. 12 words. Maybe it has to be -- 13 MR. HASLAM: 14 THE COURT: 15 MR. HASLAM: 16 Maybe it doesn't have to be A bit. Something. This is the example of the three bits, 0 was unread, 1 is read. 17 THE COURT: What difference does it make if they assign 18 a number to the information? 19 MR. HASLAM: It doesn't. But I believe what we believe 20 Motorola is contending for is the possibility that the third 21 message simply says some status has changed leaving the second 22 transceiver to guess whether I saved it, whether I deleted it. 23 If I have got a bank stock transaction that I get at my beach 24 pager that I want to make sure I save, and all I send to my home 25 pager is some status has changed, how does it know what to do? acd2ea1c-87d5-4ec2-99da-78925274da0c Page 423 1 How does it know whether to delete it? 2 Save it? Do something else? That's why I said at the outset this is one where the 3 4 Court might look at me like I have two horns because it seems 5 obvious that it has to say something in some fashion. 6 it's words or in digital data, it has to say something about 7 what the change was. Given that and given that I think it's reasonably 8 9 10 obvious that's what it has to mean, I'm prepared to sit down and let Motorola explain. THE COURT: 11 12 Whether Let me hear from Motorola. I need to understand Motorola's position. MR. PASTOR: 13 We also think that the dispute here is 14 really easy to solve. 15 issue, which is "responsive to receiving the second message, 16 transmitting a third message." 17 clear. 18 that a person of ordinary skill -- 19 20 21 I would like to start with the first The claim language here is very This is not an issue where there is any type of term THE COURT: If I don't add the word "automatic," how would Motorola construe this term? MR. PASTOR: You have the whole point there, if you 22 don't add the word "automatic." 23 add the word "automatic" to the claim at all? 24 not contain the word -- 25 THE COURT: Why is there a requirement to The claim does If I don't infer automatic from this acd2ea1c-87d5-4ec2-99da-78925274da0c Page 424 1 2 3 4 5 6 language, what is going on here? MR. PASTOR: Before you even reach that issue, you have to ask what they are really talking about with automatic. THE COURT: I think what I'm talking about is what is this invention about? MR. PASTOR: Let's go back to the background of the 7 invention. The background of the invention, if you look at 8 column, you know, we talked about this earlier on, we talked 9 about column 1. You can start at line 35: If the user reads, 10 deletes, or protects the message on the carried pager, the 11 message remains as unread. 12 So basically what this is talking about is the user 13 then has to manually put in the change in the status in the 14 message on all of his or her devices. 15 said is that you can have a change in the status amongst all 16 your devices without user intervention. 17 THE COURT: 18 MR. PASTOR: Now, what the invention Right, automatically. That is hey, wow, it's done automatically. 19 They are talking about adding the word "automatically" in a 20 particular part of the claim. 21 their alleged noninfringement position is that automatically -- 22 we don't do automatically because it's not immediate. 23 THE COURT: 24 MR. PASTOR: 25 What they have identified in I'm sorry, who says that? Apple. Apple says we don't infringe this claim because our system it doesn't have a third message acd2ea1c-87d5-4ec2-99da-78925274da0c Page 425 1 transmitted that's immediately sent. 2 automatically sent. 3 that word "automatically" here, we don't infringe because -THE COURT: 4 5 And they say it's not What they are really saying by including "Automatic" and "immediate" don't mean the same things. MR. PASTOR: 6 I agree what you have now identified is 7 there is a problem with their construction. 8 means? Who knows what it We are going to have a construction of a construction. 9 THE COURT: 10 MR. PASTOR: It means without using interaction. So if what they are proposing is that in 11 response to receiving the second message that there is a 12 transmission without user interaction? 13 proposing? 14 THE COURT: I don't know. 15 Is that what you are saying? 16 MR. HASLAM: 17 THE COURT: 18 MR. HASLAM: 19 THE COURT: 20 MR. HASLAM: Is that what they are I will ask them. No, Your Honor. You are saying it has to be immediate? No, we are not saying that either. Okay. It has to be caused by the receipt of the 21 second message, not caused by something else. For example, in 22 my 911 where the policeman gets to my house because he is next 23 door on another call immediately in response to my 911 call or 24 whether it takes him a minute, the fact is that he got to my 25 house is in response to, caused by, my phone call. acd2ea1c-87d5-4ec2-99da-78925274da0c Page 426 We are not arguing for immediate. 1 What we are going 2 for is it has to be caused by the receipt of the second message. 3 When I get back up I will show you. THE COURT: 4 5 So the issue is not the automatically. The issue is it's a response to the second message? 6 MR. HASLAM: It's caused by. 7 MR. PASTOR: Now we have gone down the rabbit hole of 8 what "automatically" means. 9 about a cause and effect. The claim language already talks It talks about responsive to 10 receiving the second message, transmitting a third message. 11 don't see how the word "automatically" adds anything but 12 confusion to the claim, because we have now heard that 13 automatically does not mean without user intervention, which is 14 the problem that the inventors were trying to solve. 15 something else, and this what they have just described, this is 16 the first time they have told us. THE COURT: 17 I It means They are saying once the second message is 18 input, there is no user intervention, they agree with that, it's 19 automatically sent. 20 automatic transmission is triggered by the receipt of the second 21 message. 22 MR. HASLAM: It's just that they are saying that the That's right. I think he just said that 23 this third message is caused by receipt of the second. If they 24 will stipulate that the third message is caused by the receipt 25 of the second message, we have no dispute. We can resolve that acd2ea1c-87d5-4ec2-99da-78925274da0c Page 427 1 and take that language. MR. PASTOR: 2 3 The third message is transmitted in response to receiving a second message. 4 THE COURT: 5 MR. PASTOR: I don't get the dispute. We are talking about -- there is no 6 dispute of the ordinary meaning. 7 responsive to receiving a second message transmitting a third 8 message. 9 there is causation, but there is nothing in between. 11 What they are trying to say is, and it's not just that THE COURT: 10 that. Well, they say -- no, they are not saying They are not saying automatic means immediate. MR. PASTOR: 12 The ordinary meaning says 13 again. 14 Now they are being a little bit tricky Now what they are saying in their noninfringement position -- 15 THE COURT: 16 MR. PASTOR: 17 18 They think you are mischievous. That's okay. I my be mischievous, but not today. The point is if you look at their noninfringement 19 position, I guess we can go to their slide 46 -- might as well 20 start at 45. 21 THE COURT: Is there some difference here between 22 "responsive" and "caused by"? 23 MR. PASTOR: Well, is there a difference between 24 "responsive" to and "caused by"? You know, I would have to look 25 at the ordinary meaning of "caused by." I don't have a acd2ea1c-87d5-4ec2-99da-78925274da0c Page 428 1 definition of "caused by." I generally think that we are 2 talking about that it is both of those terms would be talking 3 about one of the -- 4 THE COURT: 5 MR. PASTOR: It's a trigger. It's just a trigger. It's whether it's the sole trigger or 6 whether it's just part of the trigger. 7 responsive to something without being -- that something being 8 the sole reason why you have performed an action. 9 words -THE COURT: 10 11 12 Now, you can be In other In this context what else could it possibly be? MR. PASTOR: Well, because the patent specification 13 talks about transmitting the second message or a number of 14 different messages, and it talks about there could be delays in 15 the system. 16 invention is not talking about a system of synchronizing 17 messages where there is no delays in the system whatsoever or 18 whether, you know, after receiving one of the messages -- This goes back to what the invention is. 19 THE COURT: 20 MR. PASTOR: 21 22 The Do you think responsive connotes immediate? No, I do not. I do not. I don't think there is any requirement. THE COURT: Do you think that's why they are trying to 23 sneak this word "automatic" in, because they want to say that 24 responsive means immediate? 25 MR. PASTOR: You just heard that responsive does not acd2ea1c-87d5-4ec2-99da-78925274da0c Page 429 1 mean without user intervention -- I'm sorry, that automatic, 2 what they were trying to do does not mean without user 3 intervention, which was what the invention was, which is what 4 the references in the specification and prosecution history 5 referred to, what you understood it to be. 6 are trying to do. 7 That's not what they They are trying to say that responsive, automatic 8 somehow means that it's the sole causation, and that if you look 9 at their infringement or noninfringement position -- 10 THE COURT: 11 MR. PASTOR: 12 THE COURT: 13 MR. PASTOR: 14 THE COURT: 15 MR. PASTOR: What other cause could there be? What do you mean? What do I mean? I'm sorry, maybe I didn't hear you. What other cause could there possibly be? Perhaps we could resolve this issue if we 16 can ask Apple would they agree to adding "without human 17 interaction." 18 19 THE COURT: In other words, would they take out "automatic"? 20 MR. PASTOR: 21 THE COURT: 22 To which part? Where they wanted "automatic." "Upon receiving the second message transmitting a third message without human interaction." 23 MR. PASTOR: Exactly. 24 MR. HASLAM: No, that's not what the invention is. 25 That's what the invention was. When the patent wanted to talk about user intervention, it acd2ea1c-87d5-4ec2-99da-78925274da0c Page 430 1 specifically did so with respect to changing the first status to 2 the second status upon an input. 3 of the second message to the third message how that happens, 4 whether it's with or without user interface. 5 consistently says is it is caused by the receipt of the second 6 message. It doesn't say in the receipt What the patent You know, he danced around the question when you asked 7 8 him whether or not he thought we were trying to get instant or 9 instantaneously. As I inside my example of the 911 call, the 10 answer is no as long as what triggers the sending of the third 11 message is the second message. 12 THE COURT: 13 Everywhere in the patent -- But there is no human intervention in sending the second message. 14 MR. HASLAM: 15 They put their finger on it. 16 cause other than the second message trigger the third message. 17 THE COURT: 18 MR. PASTOR: 19 THE COURT: 20 MR. PASTOR: There isn't, but that is one aspect of it. They are going to have some other Give me an idea what would that be. Pardon? Give me an idea what would that be? First, I think he is misstating the 21 dispute. We are not saying that something else needs to be the 22 sole cause. 23 to the second message, that means that third message is not 24 going to be sent prior to receiving that second message that 25 it's in response to. Okay? What we are talking about is that responsive So the plain language of the claims here acd2ea1c-87d5-4ec2-99da-78925274da0c Page 431 1 is exactly what we are talking about, exactly what was 2 described. 3 What they are trying to do is say that there is nothing 4 intervening between receiving the second message and then 5 transmitting the third message. 6 noninfringement position clearly is laid out to be. 7 Okay? That's what their We are saying -- and that's why they add the word 8 "automatically." Again, it's what they are trying to say is 9 that there is nothing in between, nothing happens between 10 receiving the second message and transmitting the third message. 11 What we have really come out -- 12 THE COURT: 13 Nothing does happen, right? MR. PASTOR: See, now the claim does not require that 14 nothing else happens. 15 second message, a third message is sent. 16 enough to have other items, other steps occur, and that's the 17 real dispute here. 18 nothing else that occurs between receipt of the second message 19 and transmission of the third message. 20 state that no delay can occur between receipt of the second 21 message and transmission of the third message. 22 It just says that responsive to the The claim is broad This patent does not say that there is The patent does not This whole talk about the specification, the problem to 23 be solved, none of that was talking about transmitting the 24 second message without any delay after receiving the second 25 message -- transmitting the third message after receiving the acd2ea1c-87d5-4ec2-99da-78925274da0c Page 432 1 second message. That's the mischief. 2 mischief, Your Honor. 3 We are talking about adding the word "automatically." That's the mischief that's caused by 4 Now, we would stipulate -- 5 THE COURT: Let me make sure what it is this chart 6 says. "The accused systems do not transmit status changes 7 automatically upon receiving them. 8 transmitted only when the receiving device first requests them." 9 MR. PASTOR: 10 THE COURT: 11 MR. PASTOR: 12 Where are you reading from? I'm reading from the chart. That's their noninfringement position, I believe. THE COURT: 13 14 Instead status changes are Right. I'm trying to understand what that means. 15 MR. PASTOR: 16 THE COURT: They are saying -In other words, if I have two beepers, and 17 I get a message on my first beeper and I read it, under Apple's 18 product it would not necessarily change that status on the 19 second beeper unless I requested an update in status or 20 something like that? 21 MR. PASTOR: 22 THE COURT: 23 MR. PASTOR: 24 25 No. Is that the idea? No. Their system would have an update in status that does not require human intervention. Now what they would try so say is we have another acd2ea1c-87d5-4ec2-99da-78925274da0c Page 433 1 server involved or that this other severer sends a message to a 2 second server. 3 that occurs between receipt of the second message and 4 transmission of the third. 5 there is anything -- 6 7 There is an intervening step, in other words, THE COURT: The claim does not care whether Because this is a method claim, right? This is not an apparatus claim? 8 MR. PASTOR: 9 THE COURT: 10 the messages get transmitted? 11 MR. PASTOR: Right? It is. Right? So it doesn't define exactly how Correct. There could be other steps. You 12 know, a device can infringe a method claim even though it 13 performs -- I'm sorry, a method can infringe a claim, method 14 claim, even if that method is performed and then there is other 15 steps performed on top of that. 16 have here. 17 That's the instance that we In other words, an easy example is if you have a 18 computer, okay, and the claim says I have a computer with a CPU, 19 a keyboard, and a screen. 20 computer infringes that, and they say no, no, no, that doesn't 21 infringe because it also has a touch pad. 22 THE COURT: We go ahead and we say, oh, this This gets to a problem that I have been 23 having with some of these. I have a lot of trouble 24 understanding how these proposed constructions meet head on the 25 issue that one side or the other is trying to address. If acd2ea1c-87d5-4ec2-99da-78925274da0c Page 434 1 that's what Apple is trying to address here, and I don't mean to 2 put you in the position of talking to Apple, I don't really see 3 how adding this word "automatically" has anything to do with 4 whether or not there is some intervening communication device. 5 MR. PASTOR: Well, it's because, as we have identified 6 today, they didn't really just mean automatic. 7 defined as -- 8 9 THE COURT: Automatic is So, again, this is part of my problem here is that I don't understand how the choices of words that each 10 side is putting into these proposed constructions, I oftentimes 11 do not understand how the words chosen by each side address the 12 problem that each side is trying to also address. 13 MR. PASTOR: Well, in the case of Motorola, Your Honor, 14 that's why we have tried -- well, they don't here. 15 of Motorola, we have tried to explain, for instance, with moving 16 and unlock image. 17 required movement from one location to another, and it's our 18 position that our products don't have an image that moves from 19 one location to another. 20 In the case We tried to explain that our construction Now here, however, they have admittedly now come up 21 with a construction that is really just a predecessor to a 22 further construction. 23 "automatically," but what we are really going to say during the 24 infringement stage is automatically means something else. 25 That's the problem here. We want you to add the word This claim clearly does not require acd2ea1c-87d5-4ec2-99da-78925274da0c Page 435 1 any modification whatsoever. 2 some intervening step between receiving the second message and 3 transmitting the third message. 4 THE COURT: 5 MR. PASTOR: 6 THE COURT: 7 MR. PASTOR: There is no support for having What if said "simultaneously"? It could be simultaneous. But there could be a time lag. And that's the issue, is that this claim 8 is broad enough to include the instance where it's all 9 automatic, near automatic, or may happen an hour down the road. 10 But it's still -THE COURT: 11 12 So the real point from your perspective is it's without human intervention? 13 MR. PASTOR: 14 THE COURT: 15 MR. PASTOR: 16 THE COURT: 17 Exactly, Your Honor. Do you want to talk about the other issue? Unless you want to continue on this. I need to take a short recess. but something came up. I'm sorry, Let's take 5 minutes. 18 (Recess taken at 3:49 p.m.) 19 (Resumed at 3:54 p.m.) THE COURT: 20 21 Let's go on to the other issue. Maybe we don't have a dispute about this one. MR. PASTOR: 22 We certainty have a dispute, Your Honor. 23 Let me just get to that set of slides. 24 status. 25 literally to rewrite the claim. Indicative of second This is just another example of Apple's attempting The claim requires that the acd2ea1c-87d5-4ec2-99da-78925274da0c Page 436 1 second message be indicative of a second status. 2 say descriptive of a second status. 3 It does not Claim 5. That's in Claim 1, it's in 4 Now, we have provided a construction, we said, 5 "indicative of a second status means providing an indication of 6 the second status." 7 change the word "indicative" in the claims to read to be 8 "descriptive." THE COURT: 9 10 MR. PASTOR: THE COURT: MR. PASTOR: 19 20 Exactly. It has to have some kind of context, but enough context that's indicative of. THE COURT: 17 18 But it has to have some kind of content or else the user doesn't know what this means. 15 16 It needs to be some type of indication. It does not have to describe what the changed status was. 13 14 In other words what you are saying is delete equals ping, then the third message could be just a ping? 11 12 We don't think that there is any reason to So in other words like a ping? Ping means delete. MR. PASTOR: Ping could be indicative of it. It depends on the system. 21 THE COURT: Or ping could be message read? 22 MR. PASTOR: 23 Now, if you just look at what they have proposed here, Absolutely. That's indicative. 24 Your Honor, in the claim they basically just crossed out the 25 word "indicative" and replaced it with "descriptive." That's acd2ea1c-87d5-4ec2-99da-78925274da0c Page 437 1 2 not a construction, that's an actual rewriting of the claim. There is nothing in the claim language here that says 3 "indicative" should be changed to "descriptive." 4 have two separate meanings. 5 Indicative means serving to indicate. 6 to describe. 7 The two terms They are not synonymous. Descriptive means serving You can indicate something exists without describing 8 that something exists. 9 trying to narrow the claim so that it reads descriptive. 10 11 Indication is much broader, and they are There is no reason to change the words of the claim here. The examples in the specification are examples where 12 the second status is simply indicative -- the second message is 13 simply indicative of the changed status. 14 at the tech tutorial. 15 contains three bits, and those bits, again, a bit is just a 16 binary digit. 17 value of 1. 18 indicate to the rest of the system that there is a changed 19 status of some type. 20 We went through this The message status here basically It has two values, it has the value of 0 or a Those -- the change of whether it's 0 or 1 will The specification expressly states that these three 21 bits indicate the corresponding status. 22 specification does not say that the three bits somehow describe 23 the status. 24 It's just a 1 or a 0. 25 They don't say guess what? They don't say -- the You have a change. Now, during the tech tutorial, Apple's counsel admitted acd2ea1c-87d5-4ec2-99da-78925274da0c Page 438 1 that bits, like the ones in the embodiment of figure 3, merely 2 indicate a status change. 3 similar to, for example, the light on your phone. 4 have a light, and that would be an example of where you could 5 think of one bit of information, a 0 or a 1, an "on" or an "off" 6 as indicating a piece of information is relevant. They stated we can think of a bit Many phones 7 Now, you probably have a light on your phone. 8 THE COURT: 9 MR. PASTOR: Not anymore. On the Blackberry. Okay. On the Blackberry that light is 10 called a message indicator. These lights don't describe the 11 message that you have, they merely indicate that you have a 12 message, that's what this bit is. THE COURT: 13 I guess I have a little trouble with this 14 language "transmitting a third message indicative of the second 15 status." 16 second message indicative of a second status, and then 17 transmitting a third message indicative of the second status. 18 Somehow the third message has to convey, it seems to me, the 19 second status. 20 So it seems to suggest -- first it says transmitting a MR. PASTOR: What they are talking about is -- I know 21 it's confusing because there is a number of different status and 22 a number of different messages. 23 it's a message from a first transceiver. 24 25 What the second message is is Let me just point out here that what we are dealing with, what the claims require, and what the field of the patent acd2ea1c-87d5-4ec2-99da-78925274da0c Page 439 1 clearly states in the '119 patent is we are dealing with 2 transceivers, we are not dealing with pagers. 3 about how this is a pager patent. 4 receivers. 5 devices, i.e. a transceiver. 6 and address that this is not a pager patent, despite Apple's 7 best attempts to try to portray it as a pager patent. They keep talking The claims called for The field for invention were two-way communication I want to digress for one moment 8 So the claim requires after a first transceiver, a 9 first phone receives a message, that's a message from me to 10 Mr. Perlson. 11 message, and as oftentimes he does, immediately deletes it. 12 There is now a change in status of that message. 13 His phone receives my message. He looks at my Now, Mr. Perlson also has a second phone that's at home 14 that he uses when he goes out rather than when he is at work. 15 His first phone, the one at work, sends a status change message. 16 That's the second message, and that goes up to the system, and 17 the system then in response to receiving that second message 18 sends a third message back down to his phone at home. 19 the second message and the third message. 20 indicative of status changes. 21 just needs to indicate, guess what, I deleted this at work, I 22 don't need to delete it at home. 23 That's So they are both That's all it needs to be. It There is not a requirement that the second message or 24 third message needs to actually describe e-mail number 482 from 25 Anthony Pastor to David Perlson was just deleted. acd2ea1c-87d5-4ec2-99da-78925274da0c Page 440 1 THE COURT: 2 pings, it can all be pings. 3 MR. PASTOR: 4 THE COURT: 5 So under your construct, if it's Absolutely. The first -- the second and third notification can both be equivalent pings? 6 MR. PASTOR: 7 THE COURT: 8 Okay. It certainly could be. Because the third ping could be indicative of the second ping or the third ping. 9 MR. PASTOR: If the system understands it as thus, yes. 10 It needs to be indicative of. 11 the system does something upon that indication. If there is some indication, then 12 THE COURT: Okay. 13 MR. PASTOR: 14 THE COURT: 15 MR. PASTOR: 16 THE COURT: 17 because I'm totally confused. 18 because the way Motorola makes it sound is that you are being 19 very tricky and that you are trying to talk me into adding this 20 word "automatically" when really there is a centrifuge here. 21 we add the word "automatically," and we get to the jury trial on 22 infringement, you are going to be arguing somehow what I meant 23 by "automatically" is that there could not be any 24 intermediate -- another infrastructure conveying the message. 25 That might not at all be what I have in mind by adding the word Okay. Okay. Thank you. Now I really need to hear from Apple This makes me very uncomfortable, If acd2ea1c-87d5-4ec2-99da-78925274da0c Page 441 1 "automatically" if I were inclined to do that. 2 troublesome to me. 3 trap if that's what's going on here. 4 So that's very I don't want to fall into that kind of a MR. HASLAM: That's not what's going on here. I 5 wouldn't want to lead you into that trap any more than you want 6 to fall into it. 7 argument, I would be setting it up for reversal. If I did, and I then subsequently made that 8 THE COURT: 9 MR. HASLAM: And a really annoyed judge. The point, and the Court hit on it, and if 10 the Court is more -- we chose "automatically" because that is a 11 term that the inventors use frequently in the specification and 12 how they characterized it during prosecution. 13 If the Court is more comfortable, I will take what 14 Motorola's counsel said during his argument, "responsive" to 15 mean caused by. 16 the Court more comfortable, that the third -- the transmission 17 of the third message is caused by receipt of the second message. There is no mischief in saying, if it will make 18 THE COURT: Well, they didn't agree with that. 19 MR. HASLAM: He said causation was the point. 20 THE COURT: 21 22 He may have said that, but he specifically disclaimed "caused by" and "responsive" being equivalent. Now we are on to something it seems to me totally 23 different than what you were proposing in your construction, so 24 I'm very frustrated with your construction, because now I am of 25 the belief, perhaps, that your proposed construction has nothing acd2ea1c-87d5-4ec2-99da-78925274da0c Page 442 1 to do with what you are really proposing. MR. HASLAM: 2 Can we go to slide 45 in the deck. There 3 is a lot of discussion by Motorola of what they think the 4 mischief is going to be. 5 they are accusing of infringement, and I will show you where the 6 dispute lies and why we thought "automatically" addressed it. 7 The essential thing is I showed in my slide -THE COURT: 8 9 10 13 Where does the dispute lie? Does the dispute lie with whether or not there is another intermediate transmission tower? MR. HASLAM: 11 12 Let's run through what the system is No, it's whether or not what causes the status -THE COURT: What does that mean? Does that mean that 14 the direct cause is the second message and that excludes the 15 possibility of a second transmission tower or other structure? 16 MR. HASLAM: No. The second message can go through a 17 variety of transmission towers as long as, and they claimed it 18 this way, as long as the wireless infrastructure which is 19 ultimately responsible for sending the third message. 20 THE COURT: 21 the second message? 22 23 24 25 MR. HASLAM: So the third message has to be triggered by Yes. If it goes through four towers, that's fine. THE COURT: Does Motorola disagree with that, that the third message has to be triggered by the second message, acd2ea1c-87d5-4ec2-99da-78925274da0c Page 443 1 assuming it goes through 100 transmission towers in between? MR. PASTOR: 2 Frankly, I don't even know what they are 3 proposing construction is at this moment. 4 automatic. It's certainly not So if I could just -- 5 MR. HASLAM: Triggered by. 6 MR. PASTOR: Triggered by? That's certainly nowhere in 7 the claim. And, you know, if you want to give us a few minutes, 8 maybe we can try to work something out. THE COURT: 9 10 apart. 11 Goodbye. I really don't think you all are that far I'm getting off the bench and letting you work on this. I will give you 10 minutes. 12 (Recess taken at 4:07 p.m.) 13 (Resumed at 4:23 p.m.) 14 THE COURT: 15 MR. HASLAM: Okay. What did we achieve? I think we both agreed that we are both 16 right, unfortunately. 17 crystallize where the -- 18 19 20 THE COURT: I have five slides that I think will I don't think it's going to crystallize it for me until you tell me where you are going. MR. HASLAM: That's what I'm going to show you, where 21 the dispute is. I'm going to show you where the pings are, 22 where the accused device is, and you can see how each side is 23 going to argue its position, if you adopt their position. 24 THE COURT: 25 MR. HASLAM: Okay. Go to slide 45. This is part of what we acd2ea1c-87d5-4ec2-99da-78925274da0c Page 444 1 showed in the tutorial. I have stepped into the process here a 2 little bit. 3 the slide, somebody has sent me an e-mail, and I have gotten it 4 on both my iPad and on my iPhone, and I have deleted it on my 5 iPhone. So we have to imagine that before we see what's on That sends a message which they will call the second 6 7 message that says okay, I have now deleted a message. 8 go to this IMAP server, which is the particular server that 9 handles delivery of mail to the devices. 10 It will When it gets there no message is sent. This was the question Your Honor asked me in the 11 12 tutorial. Can it sit there for an hour? 13 sit there for an hour. 14 somebody sends me a new e-mail. 15 Internet, the mail server, goes to the IMAP. 16 is this notification server recognizes that a new message has 17 come in. THE COURT: 18 19 MR. HASLAM: 21 THE COURT: 22 MR. HASLAM: What happens, then, is at some point It comes in through the What happens then So basically something else has to happen in order to trigger? 20 It's possible it could Yes. I remember this now. Right. And the ping that goes out isn't a ping 23 that says delete, it just says -- it's like a tap on the 24 shoulder. 25 ping, the tap on the shoulder, the device will go to the IMAP It says contact the server. So in response to the acd2ea1c-87d5-4ec2-99da-78925274da0c Page 445 1 server, it will request the information that's there and will 2 pick up the new message, and if there were status updates, it 3 will pull down the status updates. 4 Our view, if I go back, is that the receipt of the 5 second message by the server, and it could have gone through a 6 variety of cell towers, but when it gets to where it's going to 7 be turned around, the third message which contains the status 8 change has to be triggered by or caused by the receipt of the 9 second message. 10 Their argument without human intervention, they one 11 point noted sole causation is going to be that they can say 12 well, this didn't happen with user intervention, but it also 13 didn't happen, in our view, as a result of or caused by the 14 status update. 15 That's where the dispute lies. "Automatically" may have been a poor choice of words. 16 "Triggered by" or "caused by" is more directly how the patent in 17 some places that I showed you. 18 their limitation is wrong. 19 THE COURT: There is other support for why It could have been in the wireless 20 infrastructure that you are receiving the second message and as 21 a direct result of receiving the second message transmitting a 22 third message? 23 MR. HASLAM: Yes, and that permits delays. Delays is a 24 red herring. I also think their argument about delay is wrong. 25 I want to show you that because it also -- where they didn't acd2ea1c-87d5-4ec2-99da-78925274da0c Page 446 1 want a message to be triggered directly by something, they knew 2 how to say it, and they said it in Claim 1 elsewhere. I'm going to go to page 37 of my slides, and this was 3 4 the argument -- this is how I think Motorola was initially going 5 to attempt to get initially in their argument to you today was 6 to say, well, our "automatically" could exclude delay. 7 indicated, it didn't, and delay is a red herring. Their argument about delay for the third message is 8 9 misplaced anyway. Here is their brief, responsive brief at 26. THE COURT: 10 11 As I Haven't we all agreed that delay is irrelevant? 12 MR. HASLAM: Have we? 13 MR. PASTOR: I don't think that delay is irrelevant for 14 the purposes of claim construction. 15 the -THE COURT: 16 They have now proposed that So I have a proposed construction. Okay? 17 How about "upon receiving the second message and as a direct 18 result of receiving the second message, transmitting a third 19 message"? 20 MR. HASLAM: That's fine. 21 MR. PASTOR: We would actually -- at the point what 22 that does is it adds the word "as a direct result." The claims 23 say "responsive to," not "directly responsive to." 24 back to the idea of being an immediate response to, responsive 25 to. This goes acd2ea1c-87d5-4ec2-99da-78925274da0c Page 447 1 THE COURT: 2 MR. PASTOR: 3 That has nothing to do with immediacy. Well, you say it's directly resulting it. So what that means -THE COURT: 4 That has nothing to do with immediacy. 5 just means there doesn't have to be an intervening message. 6 an intervening tower, just there doesn't have to be another 7 intervening message. 8 It other words, we are not at a fourth message, a fifth message. MR. PASTOR: That there is no intervening message. 9 Not In We believe that there could or does or 10 does not have to be an very intervening message. 11 broad enough to cover a system that does not have intervening 12 message or that do have an intervening message because it just 13 says "responsive to." That's the whole point. 14 The claims are This whole rabbit hole started 15 because they want "automatic" or some immediate action after the 16 second message. THE COURT: 17 18 There is nothing in the intrinsic evidence. I don't think this has anything to do with immediacy. MR. PASTOR: 19 I misunderstood. When I heard "in direct 20 response to," and you have to understand, again, this all goes 21 back to their noninfringement argument. 22 argument is they don't fringe because there is an intervening 23 act in between receiving the second message and transmitting the 24 third. 25 THE COURT: Their noninfringement Under their theory they are not infringing acd2ea1c-87d5-4ec2-99da-78925274da0c Page 448 1 because what happens is the second message is received, but 2 nothing happens in response so receiving the second message 3 until there is at least a third message, which then transmits -- 4 MR. HASLAM: The ping. 5 THE COURT: -- a ping. 6 MR. PASTOR: Your Honor, if you hook at page 48, all of 7 these actions, you know, this action from the IMAP to the SMTP 8 to the notification server back to the iPhone, all of those 9 actions are in response to receiving that new message, which is 10 the second message that is claimed. 11 THE COURT: 12 MR. PASTOR: 13 the claims infringe. THE COURT: 14 Not according to him. That's an issue of infringement, whether According to him the reason the 15 notification is going is not because of the second message, but 16 because of some independent message. MR. PASTOR: 17 See, that's, again, an issue of 18 infringement. 19 claim language needs to add the word "automatic," needs to add 20 the word "directed," "direct result." 21 to." 22 think they are going to admit that because they are worried that 23 our infringement construction is going to actually read on their 24 device. 25 We are here to determine whether the disputed It just says "responsive That language is broad enough, and that's what they -- I THE COURT: So let me just see if I understand your acd2ea1c-87d5-4ec2-99da-78925274da0c Page 449 1 position. So your position would be this infringes, what they 2 have got up on 48, right? 3 MR. PASTOR: 4 THE COURT: Yes. Because the ping, while it might be most 5 immediately responsive to the fact that a new e-mail came in, 6 would not have been sent at all if the second message hadn't 7 been received? 8 MR. PASTOR: It is still responsive to. 9 THE COURT: So it's still responsive to. 10 So there is like concurrent causes. 11 MR. PASTOR: Correct. 12 MR. HASLAM: The ping is sent based on the new message 13 whether or not there is a status update or not there. 14 the Court's proposed construction distilled the dispute to 15 causation or triggered by, or as the Court said, directly caused 16 by. 17 issue. 18 there and processes it and there is a delay because it's got -- 19 these towers are getting messages, it takes some time to turn 20 that message around. 21 I think As the Court said, the temporal or immediacy is not an If a status update gets to the tower, and the tower sits THE COURT: That's not the issue. So at least for the purposes of my 22 evaluating this proposed construction of Apple, can you just 23 agree that your proposed construction is not automatically, but 24 as a direct result of receiving the second message? 25 MR. HASLAM: Yes. acd2ea1c-87d5-4ec2-99da-78925274da0c Page 450 THE COURT: 2 Court's proposal is satisfactory. THE COURT: 5 6 I understand the Court's concern, and the means. 3 4 Otherwise I don't know what "automatically" MR. HASLAM: 1 I'm only proposing that's Apple's proposed construction now, and I will just have to reflect on it. MR. PERLSON: 7 The notion of surprise earlier today, I 8 mean you have raised that. 9 "automatically," we agreed "without human intervention," which I 10 We have agreed that they proposed think everyone here agrees that's what that means. 11 MR. HASLAM: 12 MR. PERLSON: I don't agree to that. That's what the ordinary meaning of it 13 is. Now it seems that there is an entirely new construction 14 that is actually construing a different term. 15 had "responsive to" in there. 16 thing, I mean, I think it would be appropriate for us to at 17 least have some sort of response, perhaps in writing or at least 18 some time to prepare, because the issue as teed up is completely 19 different than what was briefed. MR. HASLAM: 20 I mean, before we If we are going to have this new I don't know how they could have seen the 21 tutorial and these particular slides in my argument and not know 22 the causation was the principal issue. THE COURT: 23 Let me reflect on that. 24 things up tomorrow let's talk about it. 25 Okay? When we wind Just keep it in mind. acd2ea1c-87d5-4ec2-99da-78925274da0c Page 451 I think that this is really as far as we can go with 1 2 this at this point on this particular construction. What about the descriptive of the changed status issue? 3 4 Do you want to say anything else about that? MR. HASLAM: 5 I did want to say something. The patent 6 clearly requires, and if we start with the claim language, if we 7 go to the claim language, we have "indicative of the second 8 status." 9 receiving the third message, changing the first status of the 10 But look at the next claim limitation, "responsive to first message to the second status." If, as I understand, all it requires is hey, something 11 12 has changed, how can you change the first status to the second 13 status? 14 something at the beach, a little ping goes to my home computer 15 and it says, oh, okay, I'm going to delete it. 16 something descriptive. 17 It goes back to my problem. How do I -- I save It has to have The patent talks at column 6, lines 1 through 9 when it 18 describes the bits it says it has a read/unread bit, it has a 19 protect bit and it has a delete bit. 20 its it's a 0 or a 1, conveys information. 21 in the right place, if you've got three bits in a message, and 22 it's in slots 10, 11, and 12, the device knows that the bit in 23 slot 10 is a read/unread bit. 24 THE COURT: 25 So the bit, even though So if the 0 or 1 is So the language I guess that you would point to that really supports this within the claim is changing acd2ea1c-87d5-4ec2-99da-78925274da0c Page 452 1 the first status of the first message to the second status. 2 the device has to know something in order to change the status. MR. HASLAM: 3 4 status has changed. 5 Yes. So It has to know more than just a It has to know what it is in order to be able to change it. If we look at the abstract, slide 62: 6 Status changes 7 made on the first pager are wirelessly communicated to an 8 infrastructure which communicates the status changes to other 9 pagers so that the other pagers make corresponding status 10 changes. How can you make the corresponding status change if you 11 12 don't know what the status change was in the first place? 13 specification is replete with examples of it. 14 the patent in columns 6, lines 12 through 30, talk about the 15 process: 16 message via a third message, or message 255. 17 determines that message 255 has status change information due to 18 the status change control signal included in status field 258. 19 The Slide 65, it's The infrastructure transmits the status of the first Pager 150 And the slide below we have shown out of the patent 20 message 255 with a status change 258, and we have added, this is 21 not in the figure, at the bottom there we have added what we 22 think the specification means when it says there are three bits 23 of information in that status message. 24 25 And then the specification goes on to say: In response pager 150, and pager 150 is the home pager in this example, 130 acd2ea1c-87d5-4ec2-99da-78925274da0c Page 453 1 is the one at the beach, in response pager 150 changes the 2 status of the first message 205 to correspond to the status set 3 by the user placing inputs to pager 130 at step 220 and delay 4 230. There again it's talking about making corresponding 5 6 changes, and it can only do that if it has some piece of 7 information that tells you what it is. 8 it's a tap on the shoulder that says call him. 9 accused device the ping doesn't cause in that example the iPad A ping that just says And even in the 10 to make the change. It has to go back and get the new message 11 with the status update, get the status update, and because the 12 status update has information in it that says this is what I 13 changed the message on my iPhone, deleted in my example, then it 14 knows how to delete it. 15 that says I deleted this message, I didn't save it. 16 forward it. 17 message. But it knows it because of information I didn't I didn't do something else to the status of that The notion that because it's a 0 or 1 just connotes 18 19 something. The patent very specifically says those three bits 20 connote read/unread, protect, delete. 21 THE COURT: 22 Next? 23 MS. HASKETT: 24 25 Okay. I think enough of this. What are we doing next? Your Honor, next we are doing the '006 patent. THE COURT: Okay. So let me just find this on the acd2ea1c-87d5-4ec2-99da-78925274da0c

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