WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 482

MOTION for Judgment as a Matter of Law [RENEWED] OF NO INVALIDITY OR, ALTERNATIVELY, MOTION FOR NEW TRIAL ON INVALIDITY by WI-LAN Inc.. (Attachments: # 1 Exhibit A - Tiedemann, # 2 Exhibit B - Gitlin, # 3 Exhibit C - Gilhousen, # 4 Exhibit D - IS-95-A, # 5 Exhibit E - Trial Transcript (July 12, 2013 Morning Session), # 6 Exhibit F - Trial Transcript (July 8, 2013 Afternoon Session), # 7 Exhibit G - Trial Transcript (July 9, 2013 Afternoon Session), # 8 Exhibit H - Trial Transcript (July 8, 2013 Morning Session), # 9 Exhibit I - Trial Transcript (July 12, 2013 Afternoon Session), # 10 Text of Proposed Order)(Weaver, David)

WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Doc. 482 Att. 5

Exhibit E

Dockets.Justia.com

1
1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

2
3

WI-LAN, INC.

)

4

DOCKET NO. 6:10cv521
-vs-

)

5

Tyler, Texas
9:01 a.m.
July 12, 2013

6

ALCATEL-LUCENT USA, INC.,
ET AL

7

******************************************************

8

WI-LAN, INC.

)

)
DOCKET NO. 6:13cv252

9
10

-vsHTC CORPORATION,
ET AL

)
)

11
12
13
14
15

TRANSCRIPT OF TRIAL
MORNING SESSION
BEFORE THE HONORABLE LEONARD DAVIS,
UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY

16
17
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19
20
21
22

COURT REPORTERS:

MS. SHEA SLOAN
MS. JUDY WERLINGER
211 W. Ferguson
Tyler, Texas 75702
[e-mail]

23
24
25

Proceedings taken by Machine Stenotype; transcript was
produced by a Computer.

5
1

P R O C E E D I N G S

2

(Jury out.)

3

COURT SECURITY OFFICER:

4

THE COURT:

Please be seated.

5

All right.

I understand the parties have

6

a matter before we bring the jury in.

7
8

MR. HILL:

That's correct, Your Honor.

There is some issue with regard to Dr. Lanning --

9

THE COURT:

10

MR. HILL:

11

With who?
Dr. Lanning, who will be the

next witness for the Defendants.

12

THE COURT:

13

MR. BORGMAN:

14

All rise.

Okay.

All right.

Yes, Your Honor, as part of

our meet-and-confer on the demonstratives, we --

15

THE COURT:

16

microphone, if you would.

17
18
19

Why don't you go to the

MR. BORGMAN:

Sorry Your, Honor.

Steve

Borgman.
As part of the meet-and-confer on the

20

slides for the demonstratives for the various witnesses,

21

there were a couple of issues we had with the slides for

22

Mr. Lanning, and I think we've resolved our objections

23

to those, but we haven't resolved our underlying

24

objection to some of the slides, which involves the

25

combination of two separate references for purposes of

6
1

anticipation.

2

And, essentially, there's a paper called

3

the Tiedemann paper.

And Mr. Lanning, we expect, will

4

testify that that paper incorporates by reference the

5

IS-95 standard or the IS-95-A standard, which are two

6

different standards.

7

And our position is that the Tiedemann

8

reference does not incorporate by reference either of

9

those two prior standards.

10

The Tiedemann reference does mention

11

IS-95, but it doesn't incorporate by reference.

12

under the Advanced Display Systems versus Kent State

13

case, deciding whether or not a reference incorporates

14

by reference another prior art reference is a question

15

of law for the Court.

16

says that in order to do that, there has to be some

17

language indicating that to one of skill in the art; and

18

also that to incorporate by reference, the document

19

that's supposedly incorporates by reference, another

20

document has to point out with specificity what's being

21

incorporated.

22

Honor.

23

And

And Advanced Display Systems also

And Tiedemann just doesn't do that, Your

THE COURT:

Okay.

So your objection

24

to -- it is with regard to anticipation but not as to

25

obviousness?

7
1

MR. BORGMAN:

2

THE COURT:

3

MR. APPLEBY:

Correct, Your Honor.

All right.

Response?

Your Honor, Mr. Lanning

4

will be testifying that the Tiedemann reference itself,

5

within the four corners of the document, anticipates the

6

claims of the asserted patents.

7

THE COURT:

Without having to rely upon

8

the incorporated reference?

9

MR. APPLEBY:

10

the incorporated reference.

11

incorporated reference, and he's also going to opine

12

that it would have been obvious to combine the two

13

references, given the fact that the Tiedemann reference

14

expressly references the IS-95 standard.

15

Without having to rely on
We are going to discuss the

So, basically, Tiedemann says as an

16

extension on IS-95 -- the -- the elements of the

17

asserted claims are expressly disclosed in Tiedemann.

18

We believe it can be properly

19

incorporated by reference.

20

it is IS-95, but Mr. Lanning will rely on the Tiedemann

21

reference itself, and he will opine that it would have

22

been obvious to combine that with the IS-95 standard.

23

MR. BORGMAN:

Essentially, Tiedemann says

Your Honor, if they stick

24

with the obviousness instead of the anticipation and

25

they stick with the IS-95-A reference, then we're fine

8
1

with that.

But Mr. Appleby just referred to the IS-95

2

standard, which came a year and a half before the

3

Tiedemann article.

4

year after Tiedemann.

5

you can put those together.

The IS-95-A standard came about a
So there's no way that you can --

6

You can't put IS -- well, if you want to

7

talk about IS-95 by itself, that's outside the scope of

8

Mr. Lanning's report and his testimony.

9

report deals with the IS-95-A standard.

10

All of his

So if Mr. Appleby and Mr. Lanning want to

11

talk about the combination of Tiedemann, plus IS-95-A

12

for purposes of obviousness, we're okay with that.

13

have no objection there.

14

THE COURT:

15

MR. APPLEBY:

We

Is that what you're doing?
Sir, what Mr. Lanning will

16

do is he will go through IS-95-A and show some

17

disclosure in IS-95-A.

18

Tiedemann and rely on the four corners of the document

19

to show the elements are found in Tiedemann.

20

then also opine that it would have been obvious to

21

combine those two documents.

22

We will then go through

MR. BORGMAN:

He will

And as long as they stick

23

with IS-95-A and Tiedemann for their combination, we're

24

fine with that, Your Honor.

25

THE COURT:

Okay.

Very well.

30
1
2

Q.

Okay.

Now I want to turn to -- kind of set

the stage for your invalidity analysis.

3

And you had mentioned that we're looking at

4

something called prior art, which is what is known

5

before the patents; is that right?

6

A.

Yes.

7

Q.

So I think the first thing I'd like to do is

8

talk about what that date is when the patents first

9

arrived at the scene.

10
11
12
13

When were the Airspan patents first filed?
A.

This is the earliest date for the Airspan

patents on the timeline, which is December 1996.
Q.

So when we're looking at prior art, we're

14

looking at things that existed prior to December of

15

1996; is that right?

16

A.

Yes, that were published and known.

17

Q.

Sir, let's set the stage here.

18

talk about what was generally known before this date.

19
20

And where I'd like to start is -- is -obviously, this case is about cellular systems.

21
22

I'd like to

Were there commercial CDMA cellular systems in
use before December of 1996?

23

A.

Yes, there were.

24

Q.

And can you give us an example of one of

25

those?

31
1

A.

Specifically, it's the IS-95 system.

2

Q.

And what is the IS-95 system?

3
4

MR. BORGMAN:

Your Honor, may we

approach?

5

THE COURT:

Yes, you may.

6

(Bench conference.)

7

MR. BORGMAN:

This is the exact same

8

issue we talked about earlier, IS-95-A.

9

THE COURT:

IS-95-A.

10

MR. APPLEBY:

11

THE COURT:

12

MR. BORGMAN:

13

(Bench conference concluded.)

14
15

Q.

18
19

Okay.
Thank you.

(By Mr. Appleby) So let's go back to where we

were.

16
17

I can say A.

MR. APPLEBY:

Can we put the slide back

up?
Q.
IS-95-A.

(By Mr. Appleby) I see on the slide it says
What was the IS-95-A system?

20

A.

21

IS-95 system.

22

Q.

23

The IS-95-A system was a first revision to the

And was the IS-95-A system in commercial use

before December of 1996?

24

A.

Yes, it was.

25

Q.

And, in fact, if we look at this -- the cover

36
1

construction of TDM techniques.

2
3

Could you -- could you tell us what that is?
A.

Yes.

The TDM techniques are creating time

4

slots or an interval of time within a specified frame

5

period.

6

I think the next slide I've provided gives a

7

more specific example of the TDM techniques, as the

8

Courts construed.

9

at the bottom of the slide.

10
11
12

Q.

And you see the Court's construction

So moving to the next slide, can you explain

what we're looking at here?
A.

Again, this is another figure and page out of

13

the IS-95-A specification, and it shows us two or three

14

pieces of information.

15

If you look at the top where it says 2047 and

16

then goes 0, 1, 2, 3, those are the different slots that

17

are defined in the paging channel.

18

Now, the paging channel has a frame, and

19

there's two different frames that we can use for this

20

claim.

21

The one frame you see by the arrow, and then

22

it's highlighted with the 12 -- 1.28 seconds, and then

23

there's even a longer frame that's shown by the line at

24

the top for all 2048 frames.

25

Now, a paging channel slot shows 6 in the

37
1

middle that you can see in the middle here.

2

explains that a phone here is assigned a specific paging

3

channel slot based on its identification.

4

Q.

And it also

So if we take a step back to the previous

5

slide, did you find within IS-95-A techniques for

6

allocating an interval of time within a predetermined

7

frame period to a data item?

8

A.

9

Yes.
So the interval of time would be the slots.

A

10

predetermined frame period would be the frame period --

11

one of those two frame periods.

12
13

You can take your pick.

There's two different frame periods there that
would meet the claim.

14

And the data item, based on one or more

15

characteristics, the one or more characteristics of the

16

data item is the phone's identity, which is the most

17

important thing if you're trying to page a mobile.

18
19

And maybe -- I don't know if I should explain
a little bit about what the paging channel is for.

20
21

Maybe you have that.

But I just realized

maybe --

22

Q.

Well, what is the paging channel for?

23

A.

I just dropped into that mode where I realized

24

what that is, and I don't know if y'all do.

But the

25

paging channel is used by the base station to page the

38
1

mobile when you receive a call.

2

phone knows it's receiving a phone call.

3
4

And that's how your

So if someone calls you on your mobile phone,
the base station sends a message to the mobile phone.

5

In this case, for IS-95, it sends it in a

6

specific slot of your mobile phone so the mobile phone

7

only has to look at one or more of those slots.

8

doesn't have to sit there and wait all the time to look.

9

Q.

It

And I think you mentioned that characteristics

10

associated with the data item you found was the mobile's

11

identity?

12

A.

That's correct.

It would be the -- one of the

13

pieces used is called equipment serial number, the

14

serial number of the phone when you buy it.

15

Q.

And in IS-95-A, the base station will use the

16

mobile's identity to determine the time slot in which to

17

allocate data for a particular mobile; is that right?

18

A.

That's correct.

It's not only the base

19

station but the mobile.

20

together and agree on the slot; and they choose the

21

slot, using a consistent method.

22
23

Q.

Both of them have to get

So let's return to our timeline.

And we see

here that IS-95-A was available in 1995; is that right?

24

A.

Yeah, that's correct.

25

Q.

Now, you also have on this timeline something

39
1
2

called IS-95 and 93.
A.

What is that?

That was the initial version of the standard

3

in 1993.

The dash A just denotes that there were some

4

modifications made to that standard.

5

If you were to look at the IS-95 standard and

6

if I were to hold it up, they both look essentially the

7

same.

8

more information provided to make -- for clarity

9

purposes.

10
11

There were just some editorial-type changes and

Q.

And in the course of your work, you've worked

with both the IS-95 and the IS-95-A standard?

12

A.

Yes.

13

Q.

And generally, could you describe what

14

differences, if any, exist between the IS-95-A and the

15

IS-95 standard?

16
17

MR. BORGMAN:

Your Honor, may we

approach?

18

THE COURT:

Yes, you may.

19

(Bench conference.)

20

MR. BORGMAN:

This is outside the scope

21

of his report.

He didn't address the differences

22

between IS-95 and IS-95-A apart from the fact that it's

23

a revision and it's an updated standard.

24

MR. APPLEBY:

25

THE COURT:

In his --

Speak into the mic.

40
1

MR. APPLEBY:

2

IS-95.

3

In his report, he discusses

Because of his work, he knows IS-95 and

IS-95-A --

4

THE COURT:

You need to speak up.

5

MR. APPLEBY:

In his report, he discusses

6

IS-95 generally.

7

knows from his own personal work that the two versions

8

have very limited modifications.

9

question.

10
11

That includes IS-95 and IS-95-A.

MR. BORGMAN:

I think it's a fair

Your Honor, if I might

respond?

12

THE COURT:

13

MR. BORGMAN:

14

He

Yes.
That was not in his report,

the distinction.

15

THE COURT:

16

He needs to stick to 95.

17

MR. APPLEBY:

18

(Bench conference concluded.)

19
20

Q.

Okay.

Objection's sustained.

Thank you, Your Honor.

(By Mr. Appleby) So as I was saying, IS-95

came out in 1993; is that right?

21

A.

That's correct.

22

Q.

Okay.

23

And IS-95-A is a subsequent version of

that standard; is that right?

24

A.

Yes, that's correct.

25

Q.

Okay.

So let's -- let's move on.

44
1

in this Tiedemann paper.

2
3

Did you find that Tiedemann describes CDMA
using orthogonal codes and orthogonal code generators?

4

A.

Yes, I did.

5

Q.

Can you explain that?

6

A.

As shown on this slide, you see the text

7

that's highlighted, and it says the orthogonal covering

8

codes are a set -- are the set of 64-ary Walsh

9

functions.

In English, that means that there are 64

10

squared, or they're a square box of 64, and that's the

11

same 64 Walsh codes that I showed you on the slide.

12
13
14
15

So that 64-ary is probably not a common word
many of us use, but that's what is meant by that.
Q.

And did you also find that TDM -- or that

Tiedemann described TDM techniques?

16

A.

Yes, I did.

17

Q.

And could you explain that?

18

A.

Yes.

And if this looks similar, this is very

19

similar to the language that I showed you for the

20

IS-95-A specification.

21

Mr. Tiedemann is describing the paging channel that I

22

talked about.

23

milliseconds' duration.

24
25

And here at the top,

It's divided into slots of 80

So this is the interval of time, are those
80-millisecond slots.

And then he describes that there

45
1

is a period of repetition, and that would be the frame.

2

And those are assigned slots.

3

And then he discusses that there's hash

4

functions that are used on the paging channel for a

5

specific slot that the mobile and the base station are

6

to use.

7
8
9

The mobile is to monitor.
So you can see -- and that is almost the exact

language out of the IS-95-A specification.
Q.

And so did you find that the Tiedemann

10

document itself described TDM techniques under the

11

Court's construction?

12

A.

Yes.

13

Q.

And did you also find that Tiedemann described

14

overlay codes?

15

A.

Yes.

16

Q.

And could you explain that?

17

A.

As you can see -- as you can see, it's pretty

18

easy to find.

19

called overlay encoding, and overlay encoding adds

20

additional orthogonal channels.

21

It actually says there is a technique

And then he actually refers to an overlay

22

encoder block to show how he's modifying IS-95, or

23

extending it to support these new PCS system

24

requirements.

25

Q.

And so there is a diagram in Tiedemann, Figure

49
1

A.

Yes, and I pointed to it.

2

again.

3

I'll point to it

That would be the Walsh code generator that you

see right there in blue.

4

Q.

So can I check the orthogonal code generator?

5

A.

Yes.

6

Q.

And did you find a first encoder?

7
8
9

This is the

first encoder element in the Tiedemann reference?
A.

Yes.

And I'll circle this one, and it is a

circle with a plus in it.

That's the encoder.

You see

10

the arrow that goes from the Walsh code generator,

11

that's where it goes down and it's encoded with other

12

codes.

13

That's what that means.
Specifically, it's an exclusive -- or a gate,

14

but we did put a circle with a plus in there.

15

That

means it's included.

16

Q.

And may I check that element?

17

A.

Yes.

18

Q.

And did you find a TDM encoder arranged to

19

apply time division multiplexing techniques in the

20

Tiedemann reference?

21

A.

Yes.

As I explained earlier, this slide shows

22

that this is the TDM techniques that they're explaining

23

here; that it has all three components.

24
25

It has -- it has the interval of time; it has
the predetermined frame; and it has one or more

50
1

characteristics associated with the data item, which

2

would be the actual identification of the cell phone.

3

Q.

And so can I check that off?

4

A.

Yes.

5

Q.

Now, moving down the Claim 2, did you find --

6
7
8
9
10

MR. APPLEBY:

Can I have the slide back

up?
Q.

(By Mr. Appleby) Did you find an overlay code

generator in the Tiedemann reference?
A.

11

One more slide.
Yes.

There it is.

If we can look -- if we look at this box

12

in purple, it actually says overlay code encoder as

13

required by the claim.

14

Q.

So may I check that box?

15

A.

Yes.

16

I should be clear.

This box has both the

17

overlay code generator, which is the first part of Claim

18

2, and it has the second encoder, which is the overlay

19

encoder.

20

Q.

So I can check both of those?

21

A.

Yes.

22

Q.

And Claim 2 is a preamble, a transmission

23
24
25

controller as claimed in Claim 1.
A.

Do we have that?

Yes, because we have the same transmission

controller in Claim 1 that I described.

61
1

cellular network is like.

2

And they also need to be familiar with the

3

second-generation and third-generation cellular --

4

cellular networks.

5

ordinary skill also has access to all the prior art.

6
7
8
9

And this hypothetical person of

It's like that they have a knowledge and know
that that prior art exists.
Q.

So let's turn to Claim 9 and -- of the '326

patent and Claim 11 of the '819 patent.

10

And are those dependent claims?

11

A.

Yes.

12

Q.

And Claim 9 of the '326 patent depends on

13

Yes, they are.

Claim 5?

14

A.

That's correct.

15

Q.

And we've already found that Claim 5 has all

16

the elements that Tiedemann shows, all the elements of

17

Claim 5; is that right?

18

A.

That's correct.

19

Q.

So what does Claim 9 require?

20

A.

Claim 9 requires that a -- that the control

21

channel, or the acquisition channel, as specifically

22

listed here, includes overlay codes instead of time

23

slots, or TDM encoders, or that TDM techniques as we

24

describe.

25

Q.

And is that disclosed by Tiedemann?

62
1

A.

No, it's not.

2

Q.

And why do you say that?

3

A.

Tiedemann applies the overlay codes only to

4

the traffic channels for increasing the data-rate or

5

slowing the data-rate down on the traffic channels that

6

I described that were used for either data connections

7

or voice connections.

8

applying overlay codes to a paging channel.

9

Q.

Tiedemann does not describe

Why do you believe Claim 9 -- I should say do

10

you believe that Claim 9 would be obvious in light of

11

Tiedemann?

12

A.

Yes.

This is the first test.

This would be

13

just a single reference, obviousness.

14

skill in the art, reading Claim 9 in Tiedemann, would

15

understand that it would be obvious to modify Tiedemann

16

to just apply the overlay codes to the paging channel,

17

because that -- or instead of the TDM encoder because

18

overlay codes are already being used.

19

is there.

20

diagram.

21
22

Q.

One of ordinary

All the circuitry

As you saw, that circuitry was in the block

And so is it your conclusion that Claim 9 is

obvious in light of the Tiedemann reference?

23

A.

Yes.

24

Q.

So let me move to Claim 11 of the '819 patent.

25

And Claim 11 depends from Claim 7 of that

63
1

patent; is that right?

2

A.

Yes, that's correct.

3

Q.

Now, looking at Claim 7, are -- the elements

4

in Claim 7, have we seen those elements already today?

5
6

A.

These are all of the elements -- these

elements are in Claim 5 of the '326, I believe.

7
8

Yes.

Q.

Yes.

And we have already found all of those

elements in the Tiedemann reference; is that right?

9

A.

That's correct, yes.

10

Q.

And Claim 11, what does Claim 11 add to Claim

A.

Claim 11 is like the opposite of Claim 9.

11

7?

12
13

And if we can read it, it says:

A TDM encoder

14

arranged to apply time division multiplexing techniques,

15

TDM techniques, to data items sent over the traffic

16

channel.

17

Well, remember Tiedemann puts TDM on the

18

paging channel, but he doesn't put TDM on the traffic

19

channels.

20
21
22
23

He put overlay codes.
So this is somewhat just the reverse of Claim

9.
Q.

And so did you find Claim 11 disclosed by

Tiedemann?

24

A.

No, I did not.

25

Q.

And why not?

64
1

A.

Because Tiedemann does not have a TDM encoder

2

that would be used for the traffic channels.

3

just the overlay encoder.

4
5

Q.

He uses

Do you believe that Claim 11 would have been

obvious in light of Tiedemann?

6

A.

Yes, I do.

7

Q.

And why is that?

8

A.

Because, again, the same circuitry is all

9

there.

If one of ordinary skill in the art wanted to

10

add that TDM functionality, all those slots that we saw

11

on the paging channel, if they wanted to just add slots

12

on the traffic channels, they would just simply use the

13

same circuitry to do that.

14

Q.

And what would the motivation or purpose of

15

one of ordinary skill in the art have for modifying

16

Tiedemann that way?

17

A.

If they wanted to actually divide the traffic

18

channels into different slots so that they could support

19

different users for each overlay code, that would be the

20

motivation to --

21

Q.

And --

22

A.

-- make that modification.

23

Q.

If Tiedemann shows that TDM encoder on a

24

control channel, why would it have been obvious to one

25

of skill in the art to use that on a traffic channel?

65
1

A.

Again, for the same reasons you have the TDM

2

encoder on the paging channel, so that you can actually

3

divide that orthogonal channel up into multiple time

4

slots.

5

Q.

If -- would one of ordinary skill in the art

6

recognize that if you could use a Tiedemann -- TDM

7

encoder on a paging channel, that you could also use it

8

on a traffic channel?

9

A.

10

essentially.

11

this encoder or this encoding circuitry for my traffic

12

channels.

13

Q.

Yes.

It's -- everything is the same

It's just the choice, do I want to engage

In looking back at Claim 9, would one of

14

ordinary -- Claim 9 of the '326 patent, would one of

15

ordinary skill in the art recognize that if you did

16

overlay coding on a traffic channel, you could also use

17

that on a control channel?

18

A.

Again, it's all the same circuitry.

Tiedemann

19

has described how you do it on a traffic channel.

20

there was a reason that I wanted to divide up the

21

channel for the paging channel using overlay codes, I

22

could do the same thing with the same circuitry, same

23

block diagram.

24
25

Q.

Okay.

reference.

If

So now I'd like to move to another

66
1
2
3

Can you describe what we're looking at here on
Slide 28?
A.

This was a patent that was -- the inventor is

4

Gitlin, Richard Gitlin.

5

Gitlin.

6

I should say Lucent.

7

He was an employee of Bell Labs.

8

pioneers.

9
10
11

You've heard of Dr. Richard

He was part of the Bell Labs or the Alcatel -I think it was in the Lucent days.
He's one of the

And this is a patent that describes how
CDMA -- how to combine CDMA with TDM.
Q.

12

So let's look forward -- move ahead one slide.
And can you describe what Gitlin -- what

13

Gitlin disclosure exists, if any, about CDMA plus TDM

14

techniques?

15

A.

All right.

If we look -- so the CDMA or the

16

orthogonal codes, the CDMA, is shown here.

And it's

17

labeled code space and it's C0 through C7.

Those refer

18

to 7 -- 8 different codes.

19

8 different codes.

20

Since we start at 0, there's

Then he also has time slots going sideways on

21

the horizontal from S0 to S6.

22

with slots.

23

Q.

24

by the Court?

25

A.

So he's combining codes

CDMA plus TDM.

And did you find TDM techniques as construed

Yes.

67
1

Q.

Could you explain that?

2

A.

You have TDM techniques.

So there's a frame.

3

So we need three pieces, right?

4

we need this slot, or we need the increment of time.

5

We need a --

And we see all kinds of different slots.

This

6

would be the slots (indicating) that are shown from S0

7

to S6.

8

through S6.

And then the frame period would be from S0

9

That's the frame period.

And the third thing we need for that

10

construction -- for the Court's construction for TDM

11

techniques is a characteristic of the data.

12

you look down at the bottom of Gitlin, you'll see that

13

the characteristics of data have to do with whether you

14

have high-speed users, medium-speed users, or low-speed

15

users, and also the user ID.

16
17

Well, if

So there's two different characteristics
associated with the data item.

18

Q.

And why would the users need different speeds?

19

A.

Users have different speeds, want to pay

20

different amounts, or they may only want to send a fax

21

part of the time, and then want lower speed for voice

22

calls or lower speed data connections at other times.

23

Q.

Okay.

So let's look quickly at the claim --

24

actually, yeah, let's look quickly at the claim

25

language.

68
1

And did you find a -- the preamble satisfied

2

by -- actually, it says Gitlin plus Tiedemann.

3

would you combine Gitlin and Tiedemann?

4

A.

Why

Because Gitlin doesn't have the overlay codes.

5

So, essentially, for at least the reason -- there's two

6

different reasons; but the main reason is that Gitlin

7

doesn't describe overlay codes.

8

earlier, Tiedemann does.

9

But as I showed you

So in combining Gitlin with Tiedemann, Gitlin

10

gives us the CDMA plus TDM; Tiedemann gives us the

11

overlay codes.

12

Additionally, Tiedemann also gives us the

13

Walsh codes, if we need to show for the orthogonal codes

14

or CDMA.

15

Tiedemann gives it -- gives us the orthogonal codes.

16
17

Q.

I have it in two places.

Okay.

Both Gitlin and

So does the Gitlin plus Tiedemann

combination disclose the preamble of Claim 1?

18

A.

Yes.

19

Q.

And may I check that?

20

A.

Yes.

21

Q.

And does -- did you find in Gitlin an

22

orthogonal code generator -- let me start over.

23

Did you find in a combination of Gitlin and

24

Tiedemann an orthogonal code generator and a first

25

encoder?

69
1

A.

Yes.

2

Q.

And can you explain that?

3

A.

That -- well, we can look at it two ways, but

4

it's at least in Tiedemann.

5

that there is an orthogonal code generator and the first

6

encoder.

7

As I've already explained,

And if you remember, it's the box with Walsh

8

encoder or Walsh generator, and then the circle with the

9

plus in it.

10

Q.

And we saw C -- CDMA in Gitlin, right?

11

A.

Yes.

12

Q.

Okay.

13

A.

Yes.

14

Q.

And did we find a TDM encoder arranged to

15
16

And Gitlin is for CDMA as well.
May I check those?

apply time division multiplexing techniques in Gitlin?
A.

17

Yes, we did.
As you can see with the slots that are here,

18

this would be the TDM encoder.

We also find a TDM

19

encoder in Tiedemann for the paging channels.

20

doubled up there as well for the TDM encoder.

So we've

21

Q.

And may I check that?

22

A.

Yes.

23

Q.

And the elements of Claim 2, the overlay code

24

generator and the second encoder, where do we find

25

those?

70
1

A.

Those are found in Tiedemann and not Gitlin.

2

Q.

Okay.

3
4
5

And why would it have been obvious in

your mind to combine Gitlin and Tiedemann?
A.

Because both of these patents are in regard to

cellular systems, specifically, CDMA wireless systems.

6

And Gitlin was from Bell Labs, AT&T Bell Labs.

7

Tiedemann was from Qualcomm.

8

the early 1990s, they were working together on CDMA

9

solutions.

10

And as you've heard, in

So there's multiple reasons why one of

11

ordinary skill in the art would combine Gitlin with

12

Tiedemann.

13

Q.

Okay.

So may I check the elements of Claim 2?

14

A.

Yes.

15

Q.

And so what is your conclusion about whether

16

Claim 2 of the '326 patent is obvious over Gitlin plus

17

Tiedemann?

18
19
20

A.

The combination of Gitlin plus Tiedemann

invalidates Claim 2 of the '326 patent.
Q.

And if we look at Claim 5 of the '326, we

21

found all of these elements in Gitlin and Tiedemann

22

already; is that correct?

23

A.

Yes, that's correct.

24

Q.

And would your opinion of obviousness,

25

combining Tiedemann and Gitlin, be to render obvious

74
1

he's way to the left.

2

1993 for these OVSF codes.

3

Q.

Gilhousen is way to the left in

And the Gitlin patent -- I don't know if I

4

asked you this -- but that was filed in 1994; is that

5

right?

6

A.

That's correct.

7

Q.

Now, you understand that Dr. Wells is

8

asserting that these OVSF codes contain an orthogonal

9

code and an overlay code.

You understand that?

10

A.

Yes.

11

Q.

Now -- and the jury will have to decide

12

whether an OVSF code, a single OVSF code, is an

13

orthogonal code and an overlay code.

14

that?

You understand

15

A.

Yes.

16

Q.

If the jury were to conclude that a single

17

OVSF code was both an orthogonal code and an overlay

18

code, do you have an opinion as to whether Gitlin, in

19

combination with Gilhousen, would disclose all of the

20

elements of the asserted claims?

21

A.

22

Yes.

So let me go through it just briefly.

If you agree with Dr. Wells that the OVSF tree

23

meets the limitations of the claims, then you also have

24

to reconcile in your own mind who really defined it

25

first.

And this was three years, at least three years

75
1

before the Airspan patents.

2

And then when you look at Dr. Gitlin from AT&T

3

Bell Labs, he has the CDMA plus the TDM here.

4

again, he's years before the Airspan patents.

5

And,

And, again, you have the combination of AT&T

6

Bell Laboratories and of Qualcomm, when they were

7

working together.

8

cellular systems.

9
10
11

Q.

Okay.

And both of these are wireless

So, Mr. Lanning, can you just quickly

summarize your opinions?
A.

All right.

As you can see, the first four

12

claims, as on this table, which are specifically the

13

'326, Claim 2; the '211, Claim 2; the '211, Claim 5;

14

'326, Claim 5 are all anticipated by at least Tiedemann.

15
16
17

And they're also obvious based on other
references, as I described.
However, if you look at '326, Claim 9 and the

18

'819, Claim 11, you'll see that I have not put

19

anticipated there.

Instead, I've said they're obvious

20

as I've described.

And they're obvious by at least

21

Tiedemann and other combinations that I've described.

22

MR. APPLEBY:

23

THE COURT:

24

Cross-exam?

25

MR. BORGMAN:

No further questions.

Thank you.

Yes, Your Honor.