Legal Case Summary

. Dolby's engineer Grant Davidson testified that a tone is a signal of constant frequency stable. That's at A142.47. He also testified that noise-like signals have a flat spectrum. That's at A142.54. Then if you look at the Dolby AC3 documents, they say quite clearly that the D45 strategy goes to flat spectrum, which Grant Davidson testified in the way. The palm I had with your description is you take little snippets from a deposition, which may or may not support your point, and then link them all together with a attorney argument and an exceptionally difficult technology. They're not self-evident. And I'm wondering why you think that even though these snippets might seem in part to support your theory, why that's enough to go to a jury without an expert report? Well, here we're talking about a couple different things. First of all, I would agree with you in some respects that technology can be complicated in this area. But the question we're deciding is not complicated. The only issue the district court found we failed on in the 457 pattern is whether the stability or transience of a signal is associated with tonality. The witnesses admitted it was. It's not, we don't have to get into the technology. Dolby said in its description of the technology in the AC3 technical documents that stability is tonal and un-stability is noise-like. But if I'm talking about the same thing, the district court responds, it seems, unless I'm talking about something else, that there's no evidence that Dolby actually uses a spectral flatness measure. And in reference to your evidence about the section of a document setting the standard for AC technology, the district court said it's never been implemented. There's no testimony that's ever been implemented by Dolby. That's the missing leak. That's exactly where the district court went wrong

. Well, that's what the district court concluded. Here's what the district court ignored. The district court gave the, there's a document that was written by six Dolby engineers. The audio engineers who made this product, it was presented to the audio engineering society and it describes this technology. At deposition, we... Describing this technology as the technology that has been implemented by Dolby? Right. So let me tell you what the evidence is. That's exactly where I'm going. I just wanted to make sure that you understood what document I was talking about. Now the district court gave that document the back of its hand because in the district court's view, Todd testified it was more a marketing document than an accurate technical piece. That's what the part of Todd's testimony, the district court relied on. And then the district court disregarded that document entirely. What the district court didn't do was look at the balance of Todd's testimony. Where Todd testified, the technical description in that document was accurate. That's an A14310. But I've been... Maybe I'm just going to think something

. But let me interrupt. What I'm missing is it seems to me and maybe I'm not reading this correctly. What the district court concluded was that this reference standard, that even he refers to Todd's testimony and he says he also testified that Dolby did not actually implement what is described in them. Are we talking the same thing? Right. Let me be clear. There's two different documents. The court was wrong on both. You're talking about the standard. Let me go there first. The A152A stand. Yeah. Let me go there first. I was talking about the presentation. I understand. On the standard, the court yet again got it wrong because the court concluded there, as you said, that technology was not implemented. In order to reach that conclusion, the court... No, he didn't conclude it was..

. I mean, the question is whether or not you poured forth sufficient evidence to establish it was implemented. I don't know whether it was implemented. Well, I'm going to tell you what our evidence was on that particular point. First of all, if you look at the balance of Lewis Felders testimony, he testified. The relevant section of that standard is 8.2.8, which talks about how the exponent strategy is done in the products. Field or testified at A141.45 and at A141.46 about specific sentences and whether they were implemented in AC3 or not, who specifically said, is that sentence implemented? Is that sentence implemented, etc.? That's it. A141A141.45 and A141.46. He testified that it was implemented. Then, if you look at the presentation to the audio engineering society, it could... Can you, but when you're pointing me to Transpix, can you give me a..

. Yes, page 75. I've got line 13. Page 76, line 7. Okay. So, where did he say... If you look at page 75, line 13, through page 76, line 7, we specifically asked him whether the technology was implemented and he says it was... Let me turn to that page 2 so I can follow along. 75, line 13. Again, so he says, okay, we ask him if it's correct. He says yes. And then, if you go to 141.46, line, page 80, line 20. Are you there? He says, okay, again, looking at page 103 of exhibit 130, that's the standard. I'm now looking at the second full paragraph. Okay, it says here and then we quote it. Do you see that? Yes, I do. We're up on page 81, now, line 11

. The question, and is that the way the exponent strategy is implemented in AC3, I believe. So, and then we go through a bunch of questions continuing on page 82. And then if you jump up to the top of page 83, line 2. And that's true as implemented in AC3 implementation to answer as far as I know. So when you look at what the witness is actually said, they said it was implemented in AC3. And that's not it. That those sections of the AC3 standard are the same as the technical description in the presentation to the audio engineering society, which was written by Dolby Engineers and presented by Dolby Engineers. And we asked Todd at his deposition, are there descriptions in that document, AC3? He said yes, they're accurate. And that maps perfectly with the standard. So with the district court judge's data. But back to Todd now, the district court judge says, but he all referring to Todd, but he also has testified that Dolby did not actually implement what is described in that. So, can you get around? I mean, the, the, here's what happened when you look at the testimony. When the, when the document referred to the word tonality, which is the claim language, the witness has gave a conclusive denial. No, we don't do that because they've been sued for doing that. But then we asked him, when we pressed him, do you do this, do you do this? How was it implemented? They said yes, every single time. But you tried to. The judge is taking conclusive denials about the claim language and disregarding all the testimony about how the exponent strategy was in fact actually implemented. But you're equating transients with tonality. And while there appears to be some overlap, there's no expert or even engineering statement, which says the transients is the same as tonality. Sometimes yes, sometimes no. So every time you give a snippet, if you keep reading down the deposition page, then, then they say, well, sometimes it is, but sometimes it's not

. And so without you having an expert, how do you actually show tonality when Brandon Berg says that the two known measures were not met in the source code? In the documents that Dolby created that described their product, the presentation to the AES standards, excuse me, industry group and the standards body, they describe how the exponent strategy is set up. And they say very clearly that the D15 strategy is used for stable signals that are tonal, and the D45 strategy is used for unstable signals that are flat. And their engineers testified unequivically, and I have the site to grant a Davidson. He said, a tone is a signal with a constant frequency phase and noise refers to a flat spectrum. So why couldn't you get one expert in the United States of America to say this? We have an expert. In the expert reports have been filed. We didn't use them at the summary judgment stage, but we had to say that we don't have an expert. It's not true. Well, if you don't use an expert, then it's as good as not having an expert. Well, the expert will use, well, for summary judgment, we'll use them for the trial, obviously, but we're not going to use them at the summary judgment here. We have plans to use them for the trial. But we don't, at summary judgment, this court has held repeatedly at summary, and so I have courts in the night circuit, at summary judgment, there's no difference between fact, testimony and expert testimony. The question is, our evidence is to be believed if we have put in evidence, and you're not allowed to balance it against doles. We have put in evidence that clearly shows doleby admitted in their documents that the D15 strategy is for stable, total signals. They use the word total, and the D45 strategy is for unstable, flat signals, and they admit flatness is noise. If you believe that description of their technology, I have an issue of fact for a jury. That's what the legal standard is. The legal standard in the night circuit and in this court is not, do you folks evaluate the evidence and conclude what a reasonable juror will decide? The standard is, if I come forward with proof, and I have, it is to be believed in impetus is that a reasonable art can be drawn in my favor without regard to what doleby says, and I get beyond summary judgment. If I lose a trial, that's another question. Mr. Marris, you

... No. I'm sorry. No, go ahead. All right. You're into your rebuttal, and you want to re-serve your time? Yeah, I'll reserve my time for that. All right. Thanks. Mr. Cooper? Good morning. May I please the court? My name is John Cooper speaking on behalf of doleby laboratories. I'm here with my colleague, Andrew Leibnett. The problem here is that Lucent does not point to, does not address where the limitations in these two patents are located in the accused device. They don't cite to the doleby AC-3 source code at all, except a gang site at footnote three page eight of their reply brief, where they just cite to about four, whether you cite to about eight or ten pages of code with no explanation. Absolutely no explanation. The other side directed me to in the appendix in the testimony of Mr. Field, Field, Field Err, 14147 page. I'm referring to page 81 of the transcript, where the question is, is this the way the exponent strategy is implemented in AC-3 and he says, I believe so. He was making reference to, I believe, the test of 147 page 80. These are the sites I'm just referring, the ones we talked about

. He was making reference to the ATSC, the Advanced Television Systems Committee standard, and to section eight of that standard. It's clear in the record that section eight was informative and was not nominal. So, it was not a section that was required to be implemented. It was informative. That's at administrative or at the record 10560. The fact of the matter is that Dr. Brennanberg reviewed the code. He looked at the code, he looked at all of that testimony, and he is an expert in tonality. He's an undenied expert in tonality. He recognized that there are two measures of tonality. One is measure of spectral flatness. The other was his invention of polynomial predictor. And so, I submit, Dolby submits that the courts of ruling in CENTRICUT is controlling here. This is exactly what happened in CENTRICUT versus ESOP, which this court handed down in December of 2004. In that case, the court said the central issue in this case is whether the absence of relevant expert testimony resulted in a failure of proof. But it's just a little troubling to me. I mean, maybe I just misunderstood that you're responsive to my question. I mean, I was talking about Mr. Fieldler's testimony. The fact that Mr. Brennanberg, another expert, let's assume hypothetically, another of Dolby's experts, ties it all together, explains away what other people have said

. Why isn't that at least enough to give the other side defeat some rejudgment? I mean, if the question to me is if there's some things in the record that are enough to create questions, issues of fact, so the fact that Mr. Brennanberg may have put a gloss or restated or stated a different way, something that another expert said doesn't get rid of that. Does that for purposes of some rejudgment? But I think that from the point of view of centricity. Centricity stands for the proposition that you cannot just lay out a bunch of very complex evidence to a judge and then have the judge decide it. The fact was that the judge found that the portion of the testimony, which they were referring, was not in fact implemented by Dolby. And the citation that Mr. Demarest made to page 14146 of the record on page 77, the judge pointed out, and it is at page 77 lines 19 through 23, where he said, I want you to focus not on whether this is actually done and explicitly tested in AC3, but whether the sentences are reasonable and the court pointed out that they asked him not to address themselves to what was actually done, but to a hypothetical. The fact is that they have to point to where the limitations and each and every limitation in an asserted claim is found in the accused. No, I understand that and I appreciate that. And there's some discussion of that somewhere in the briefs about how they weren't asking, they took this information and it was based on a question. But I guess maybe I'm just misreading it. What do you make of the language on the question on page 81 of the transcript? That's on 14147, where the question is, is this the way the exponent strategy is implemented in AC3 and he says, I believe so. Is that the question? The question is. That seems to be talking specifically about the AC model. AC3 model. So maybe I'm just misunderstanding the context of that. It says the exponent would be used for only a single block then using the D45 strategy. If the new exponents will be used for two or three blocks then the D25 strategy is used. If the new exponents are used for four or five or six blocks they use a strategy D15. That doesn't say anything about tonality because the evidence is that the D15 codes a tone exactly the same way that it codes a steady state noise. So if you have an onset of a steady state noise and then a steady state noise it codes exactly the same as if you have the onset of a tone and then a steady tone. So that language doesn't say anything at all about tonality. That is the entire point I believe I respect and submit about centric. Because as Lucent says at page 14 of their reply brief a list of documents cannot stand in place of reasoned explanation. In centric at the court said in effect the district court cannot be left to conduct an analysis of the evidence and find infringement. In that case the the eSup submitted to the judge a list of work function values and said well half name has a lower work function than copper therefore conclude that there's been infringement. That's exactly what happened here. The Lucent points to some testimony from engineers who know about coding. Audio coding they are not experts in tonality. The claim term is tonality. These are not 702 experts in tonality. They do know about coding but they have testified each time that they didn't know about tonality or what the measures of tonality were. Lucent does exactly what this court found eSup could not do in the centric at case. That is and I will describe the quote from page 1368 of that case. He said eSup asserts that the testimony regarding the general properties of half name and silver and their use within the plasma arc torch welding field was sufficient to prove that the work function was satisfied. But the court pointed out that those engineers who knew about arc welding did not know they were not experts in work function. And the court said quoting again from page 1369 each of eSup's three theories suffers from the same deficiency. None is supported by expert testimony. And so we have that's exactly what Lucent has done here. They brought up some engineers, Dolby engineers who know about coding and who know about transients. And now they have said, aha, we put together some of this and that means therefore that there is infringement on tonality. And we call Dr

. So that language doesn't say anything at all about tonality. That is the entire point I believe I respect and submit about centric. Because as Lucent says at page 14 of their reply brief a list of documents cannot stand in place of reasoned explanation. In centric at the court said in effect the district court cannot be left to conduct an analysis of the evidence and find infringement. In that case the the eSup submitted to the judge a list of work function values and said well half name has a lower work function than copper therefore conclude that there's been infringement. That's exactly what happened here. The Lucent points to some testimony from engineers who know about coding. Audio coding they are not experts in tonality. The claim term is tonality. These are not 702 experts in tonality. They do know about coding but they have testified each time that they didn't know about tonality or what the measures of tonality were. Lucent does exactly what this court found eSup could not do in the centric at case. That is and I will describe the quote from page 1368 of that case. He said eSup asserts that the testimony regarding the general properties of half name and silver and their use within the plasma arc torch welding field was sufficient to prove that the work function was satisfied. But the court pointed out that those engineers who knew about arc welding did not know they were not experts in work function. And the court said quoting again from page 1369 each of eSup's three theories suffers from the same deficiency. None is supported by expert testimony. And so we have that's exactly what Lucent has done here. They brought up some engineers, Dolby engineers who know about coding and who know about transients. And now they have said, aha, we put together some of this and that means therefore that there is infringement on tonality. And we call Dr. Brandenberg, an undisputed world renowned expert in tonality. He invented MP3 players and he reviewed the code. His report is not conclusion. He reviewed the code of the AC3 code which is the accused device. He reviewed the testimony of the Dolby engineers. He reviewed the claims to construction. He reviewed the orders of the court. And he said there are two ways to measure tonality. And he recited it. Spectral flatness measure and polynomial predictor. And he said, I have reviewed this code and I find neither of those measures of tonality in this code. They rebut that in no way. They rebut that and come back and say, well, the engineers said maybe this or that about flatness where they said the same thing about. And they don't reach no conclusion about tonality. No expert to help this judge or to help in this court in terms of what tonality is. That the claim element in this claim is tonality. The claim element in centricut was work function. I believe that the centricut opinion is controlled in this case. Am I correct they had the source code for a while before the expert reports were due? Oh, they had the source code from early as 1996 when they licensed this technology from Dolby. And then we produced it to them substantially, substantially before. And what was that skirmish at the end? Was that had to do only with the licensee source code? No, no

. Brandenberg, an undisputed world renowned expert in tonality. He invented MP3 players and he reviewed the code. His report is not conclusion. He reviewed the code of the AC3 code which is the accused device. He reviewed the testimony of the Dolby engineers. He reviewed the claims to construction. He reviewed the orders of the court. And he said there are two ways to measure tonality. And he recited it. Spectral flatness measure and polynomial predictor. And he said, I have reviewed this code and I find neither of those measures of tonality in this code. They rebut that in no way. They rebut that and come back and say, well, the engineers said maybe this or that about flatness where they said the same thing about. And they don't reach no conclusion about tonality. No expert to help this judge or to help in this court in terms of what tonality is. That the claim element in this claim is tonality. The claim element in centricut was work function. I believe that the centricut opinion is controlled in this case. Am I correct they had the source code for a while before the expert reports were due? Oh, they had the source code from early as 1996 when they licensed this technology from Dolby. And then we produced it to them substantially, substantially before. And what was that skirmish at the end? Was that had to do only with the licensee source code? No, no. I know there was an expert issue. We produced the source code to Lucent in 1990s. March of 1996 and then again in July of 2003. And Lucent took Steve Vernon's deposition as a 36 witness on Dolby's source code. And the judge ruled that we answered the interrogatories correctly about the source code and the information that they asked for. And then Lucent refused to file an expert report. That's fully briefed in the time frame. They asked for that they wouldn't agree to a time when expert reports should be filed. And so the default position was January 10th according to the federal rules 90 days before trial. That Lucent asked for a claims construction or I mean a status conference on January 7th. That was the Friday before the Monday which was January 10th. And the evidence is very clear. They asked for a continuance of the time to file an expert report. And Judge Fogo told him over and over and over. I, Judge Fogo, will not decide that. If you bring on an emergency motion before the magistrate judge, Judge Seabord. If you bring it on an emergency motion and I'm now quoting from 7-840 of the record, if he, Judge Seabord, thinks that there is merit or potential merit to your motion, then he can in his discretion decide to extend the deadline, at least until the motion is decided, but I'm not going to make that decision for him. He, Judge Fogo said, I'm not going to make that decision. He made reference to a TRO and he said, bring on that motion on an expedited basis before Judge Seabord. And if Judge Seabord, not Judge Fogo, decides to extend it, that will be the situation. They did not bring on an expedited motion

. I know there was an expert issue. We produced the source code to Lucent in 1990s. March of 1996 and then again in July of 2003. And Lucent took Steve Vernon's deposition as a 36 witness on Dolby's source code. And the judge ruled that we answered the interrogatories correctly about the source code and the information that they asked for. And then Lucent refused to file an expert report. That's fully briefed in the time frame. They asked for that they wouldn't agree to a time when expert reports should be filed. And so the default position was January 10th according to the federal rules 90 days before trial. That Lucent asked for a claims construction or I mean a status conference on January 7th. That was the Friday before the Monday which was January 10th. And the evidence is very clear. They asked for a continuance of the time to file an expert report. And Judge Fogo told him over and over and over. I, Judge Fogo, will not decide that. If you bring on an emergency motion before the magistrate judge, Judge Seabord. If you bring it on an emergency motion and I'm now quoting from 7-840 of the record, if he, Judge Seabord, thinks that there is merit or potential merit to your motion, then he can in his discretion decide to extend the deadline, at least until the motion is decided, but I'm not going to make that decision for him. He, Judge Fogo said, I'm not going to make that decision. He made reference to a TRO and he said, bring on that motion on an expedited basis before Judge Seabord. And if Judge Seabord, not Judge Fogo, decides to extend it, that will be the situation. They did not bring on an expedited motion. They filed a motion on 35 days notice. We were now on the 90, less than 90 days away from trial. They filed a motion on 35 days notice. Judge Fogo, in hip properly, said, I'm entitled to manage my court room. I can set, I'm entitled to manage my court room according to my rules. And if Lucent doesn't obey the rules that I give him notice to, then there will be consequences. The consequences were that they did not and could not file an expert report. But it's very important to note that Lucent has said, as just as Mr. DeMarris said here this morning, Lucent told Judge Fogo they did not need to file expert reports in response to the motions for summary judgment. That's at page 15213, the court said to Mr. DeMarris, but all right, you're not seeking the right to have experts on summary judgment motions. Answered, Mr. DeMarris. Not for the infringement motions. On the infringement side, we have made our case on the testimony of the Dolby engineers. He stated that he was doing exactly what ESA did in Cintricant versus ESA. That he was relying, he was going to rely on engineers who were not experts in tonality to attempt to knit together some evidence, present it to the judge, then have the judge work as his own expert to conclude that maybe that that represented tonality. That does not, that is not sufficient under Cintricant. I would like to, if you have any other questions, I'll move on to another point. The second point is that in the prosecution history of the 457 patent, Lucent disclaimed that transient detection, constituted a tonality value or a tonality index. The application for the 457 patent was denied over a reference called Schroeder

. They filed a motion on 35 days notice. We were now on the 90, less than 90 days away from trial. They filed a motion on 35 days notice. Judge Fogo, in hip properly, said, I'm entitled to manage my court room. I can set, I'm entitled to manage my court room according to my rules. And if Lucent doesn't obey the rules that I give him notice to, then there will be consequences. The consequences were that they did not and could not file an expert report. But it's very important to note that Lucent has said, as just as Mr. DeMarris said here this morning, Lucent told Judge Fogo they did not need to file expert reports in response to the motions for summary judgment. That's at page 15213, the court said to Mr. DeMarris, but all right, you're not seeking the right to have experts on summary judgment motions. Answered, Mr. DeMarris. Not for the infringement motions. On the infringement side, we have made our case on the testimony of the Dolby engineers. He stated that he was doing exactly what ESA did in Cintricant versus ESA. That he was relying, he was going to rely on engineers who were not experts in tonality to attempt to knit together some evidence, present it to the judge, then have the judge work as his own expert to conclude that maybe that that represented tonality. That does not, that is not sufficient under Cintricant. I would like to, if you have any other questions, I'll move on to another point. The second point is that in the prosecution history of the 457 patent, Lucent disclaimed that transient detection, constituted a tonality value or a tonality index. The application for the 457 patent was denied over a reference called Schroeder. Schroeder wrote a paper on coding, audio encoding based of transients, on the detection of transients. What Schroeder said, and this is at page 9641 of the record, he said that he laid out a procedure for adjusting coding strategy based upon the detection of transients, the presence or action or absence of transients, and he proposed a change in coding strategy based upon whether or not transients were detected. Lucent told the patent office when their claim, when their patent was rejected because of Schroeder, they said, quote, and this is at 9388, Schroeder does not teach or suggest, or suggest, generating at least one tonality index. In fact, Schroeder does not even mention the word tonality, so they referred back to the necessary element in the 457 patent. The patent was granted over that, so Schroeder addressed different coding strategies based upon detecting or not detecting a transient. And Lucent told the patent office that did not constitute a tonality, generating a tonality value or a tonality index. Now, Dolby, now they're saying that Dolby, and this is at page 14 of their reply brief, and I'm quoting from their reply brief, the only question in dispute is whether AC3's transient based selection of the exponent strategy generates a value that reflects a tone like our noise like quality of the signal. So they told the patent office that changing a coding strategy based upon the detection or not lack of detection of a transient did not constitute generating a tonality value. Now, there before this court saying that detecting a transient and changing coding strategy does constitute generating a tonality value. Mr. Cooper, you have not mentioned your cross appeal, and you haven't reserved any time for rebuttal on the cross appeal. But I do have one question in that matter, and if you direct yourself to your reply brief, the question I have for you, you've signed this reply brief. I assume that you wrote this document. Yes. It says on page 2, the bottom paragraph, loosened, admitted the invalidity of the 938 patent over at least four prior references. You stand by that statement? Well, that was a statement that they made when they filed the reissue application. They made the to file reissue application, they did state the reissue application that the 938 patent was invalid, and that was part of the reason that they were citing. None of the citations here are two that reissue. Those citations are two interrogatory responses. The position that Dolby has taken, and I believe it was set forth, maybe that citation there is not complete, but the position that we had taken is that loosened had in making their reissue application stated that the patent was invalid in part, which is the basis for making a reissue application. That was a substantial article of our reference

. Schroeder wrote a paper on coding, audio encoding based of transients, on the detection of transients. What Schroeder said, and this is at page 9641 of the record, he said that he laid out a procedure for adjusting coding strategy based upon the detection of transients, the presence or action or absence of transients, and he proposed a change in coding strategy based upon whether or not transients were detected. Lucent told the patent office when their claim, when their patent was rejected because of Schroeder, they said, quote, and this is at 9388, Schroeder does not teach or suggest, or suggest, generating at least one tonality index. In fact, Schroeder does not even mention the word tonality, so they referred back to the necessary element in the 457 patent. The patent was granted over that, so Schroeder addressed different coding strategies based upon detecting or not detecting a transient. And Lucent told the patent office that did not constitute a tonality, generating a tonality value or a tonality index. Now, Dolby, now they're saying that Dolby, and this is at page 14 of their reply brief, and I'm quoting from their reply brief, the only question in dispute is whether AC3's transient based selection of the exponent strategy generates a value that reflects a tone like our noise like quality of the signal. So they told the patent office that changing a coding strategy based upon the detection or not lack of detection of a transient did not constitute generating a tonality value. Now, there before this court saying that detecting a transient and changing coding strategy does constitute generating a tonality value. Mr. Cooper, you have not mentioned your cross appeal, and you haven't reserved any time for rebuttal on the cross appeal. But I do have one question in that matter, and if you direct yourself to your reply brief, the question I have for you, you've signed this reply brief. I assume that you wrote this document. Yes. It says on page 2, the bottom paragraph, loosened, admitted the invalidity of the 938 patent over at least four prior references. You stand by that statement? Well, that was a statement that they made when they filed the reissue application. They made the to file reissue application, they did state the reissue application that the 938 patent was invalid, and that was part of the reason that they were citing. None of the citations here are two that reissue. Those citations are two interrogatory responses. The position that Dolby has taken, and I believe it was set forth, maybe that citation there is not complete, but the position that we had taken is that loosened had in making their reissue application stated that the patent was invalid in part, which is the basis for making a reissue application. That was a substantial article of our reference. That's a different matter than an admission in an interrogatory, and that's what this suggests. In fact, all of these references are two interrogatory responses, and none of those interrogatory responses indicate an admission of any sort. So, it best, it's a hypothetical situation, which is referenced here, it best. It best, they're talking about a hypothetical situation. Well, I believe also that the fact that they made assertions regarding composite curves, a composite between a masking threshold and an absolute hearing threshold, because now we're addressing the 938 patent, that was fully addressed in the prior art. And that a claim of a patent of a composite threshold, of the composite of the masking and the absolute hearing threshold, would be invalid over prior art. That may be your view in your position, the question I think that Judge Lindel is referring to is you claim in your briefs that Lucent admitted the invalidity of the 938 patent. Well, what I was referring to was the statement in the reissue application. Well, that's not what you cited, and I find this quite disturbing, because we have a lot of materials to sort through, and you make a flat-out statement like this. And we dig into the record with all of the citations, there are a number of citations here, there are six different citations, and digging through all of those citations, not a single one of them, represents an unqualified admission. Well, I may have overstated that in that use of that word, and I apologize. All right, let's hear from Mr. Dumeris. Thank you, Senator. Just picking up on that last point, and I think I need to point this out, that's not the only thing that's unsupported in Dolby's brief. If you look at page 50, they make the unequivocal proposition that their hearing threshold allows the coding of sounds that are inaudible, and they cite to fielders testimony, that is absolutely 100% opposite of what fielders testifies on those pages. In the district court relied on that, the district court found with respect to the 938 patent that Dolby's hearing threshold curve was different in purpose from the hearing threshold, and that it allowed the coding of inaudible sounds. Well, we haven't discussed that. Excuse me, we haven't discussed the 938 patent, so I think that's an inappropriate argument in rebuttal. I was bringing it up only because of your honours question to Mr. Cooper about what's in the brief

. That's a different matter than an admission in an interrogatory, and that's what this suggests. In fact, all of these references are two interrogatory responses, and none of those interrogatory responses indicate an admission of any sort. So, it best, it's a hypothetical situation, which is referenced here, it best. It best, they're talking about a hypothetical situation. Well, I believe also that the fact that they made assertions regarding composite curves, a composite between a masking threshold and an absolute hearing threshold, because now we're addressing the 938 patent, that was fully addressed in the prior art. And that a claim of a patent of a composite threshold, of the composite of the masking and the absolute hearing threshold, would be invalid over prior art. That may be your view in your position, the question I think that Judge Lindel is referring to is you claim in your briefs that Lucent admitted the invalidity of the 938 patent. Well, what I was referring to was the statement in the reissue application. Well, that's not what you cited, and I find this quite disturbing, because we have a lot of materials to sort through, and you make a flat-out statement like this. And we dig into the record with all of the citations, there are a number of citations here, there are six different citations, and digging through all of those citations, not a single one of them, represents an unqualified admission. Well, I may have overstated that in that use of that word, and I apologize. All right, let's hear from Mr. Dumeris. Thank you, Senator. Just picking up on that last point, and I think I need to point this out, that's not the only thing that's unsupported in Dolby's brief. If you look at page 50, they make the unequivocal proposition that their hearing threshold allows the coding of sounds that are inaudible, and they cite to fielders testimony, that is absolutely 100% opposite of what fielders testifies on those pages. In the district court relied on that, the district court found with respect to the 938 patent that Dolby's hearing threshold curve was different in purpose from the hearing threshold, and that it allowed the coding of inaudible sounds. Well, we haven't discussed that. Excuse me, we haven't discussed the 938 patent, so I think that's an inappropriate argument in rebuttal. I was bringing it up only because of your honours question to Mr. Cooper about what's in the brief. I think it's incumbent upon the court to actually look at the sites because, as you saw when you asked Mr. Cooper about the questions about what was actually implemented, he didn't actually address the record. He went off and said, well, Brandenburg said it's not. That puts his finger right on the issue in the case, which is, we are not allowed at this procedural posture to look at my evidence and see what Brandenburg said and conclude that I'm wrong. I'm entitled to a jury trial. Did you? Senator Cutt is not... I'm just... just to get to his allegation that you told the patent not you, but listen, told the patent and trade my dog with the transients weren't the same thing as tonality. There's no proof of that in the record. There is no statement ever by loosened that transients are not the same as tonality. If you look at what we cited to the patent office, it doesn't say that. Do you take the position now that they exact same thing? No, no, no. The tonality value that we're arguing in this case is the exponent strategy in AC3 is the tonality value. That exponent strategy looks at transients and if there are transients in the signal, one exponent strategy is adopted if there are no transients, another exponent strategy. So it's the exponent strategy that is the tonality. And sometimes tonality has transients, right? Tonal signals are non-transient. That's what Dolby tells us in their documents

. I think it's incumbent upon the court to actually look at the sites because, as you saw when you asked Mr. Cooper about the questions about what was actually implemented, he didn't actually address the record. He went off and said, well, Brandenburg said it's not. That puts his finger right on the issue in the case, which is, we are not allowed at this procedural posture to look at my evidence and see what Brandenburg said and conclude that I'm wrong. I'm entitled to a jury trial. Did you? Senator Cutt is not... I'm just... just to get to his allegation that you told the patent not you, but listen, told the patent and trade my dog with the transients weren't the same thing as tonality. There's no proof of that in the record. There is no statement ever by loosened that transients are not the same as tonality. If you look at what we cited to the patent office, it doesn't say that. Do you take the position now that they exact same thing? No, no, no. The tonality value that we're arguing in this case is the exponent strategy in AC3 is the tonality value. That exponent strategy looks at transients and if there are transients in the signal, one exponent strategy is adopted if there are no transients, another exponent strategy. So it's the exponent strategy that is the tonality. And sometimes tonality has transients, right? Tonal signals are non-transient. That's what Dolby tells us in their documents. That's what their engineers said. There are things that Dolby witnesses refer to about the onset of a tone where you're changing from one particular sound to another tone and during that transition, that's a noisy proposition. But once it becomes a tone, everybody has testified that that non-transient stable. But there's a portion of a tone that has transients. So there is a transition from non-tone to tone and in that transition region, which the experts call it, or the witness is called a transition or a burst or the change from noise to tone in the transition area, recall the onset of a tone, but it's not the tone. The tone is always constant and stable. That's what every witness is testified to. The center cut is totally in opposite to our facts here in the center cut. They tried to rebut expert testimony with fact witnesses who all said we don't understand the tonality, we don't know what we're talking about. That is nothing to do with this case. In this case, we're relying on Dolby's engineers who design the accused products, who are in fact the leading audio coding people in the country. The more apt case here is telemark, where in telemark, the court relied on inventors and the founder to contradict expert testimony and telemark, the expert conclusion was broad and conclusive. And the court said, we're not going to listen to a broad and conclusive expert report when we have fact witnesses who testify about what the facts are and they have a knowledge to base that on. Telemark controls this case, not center court. I just was going to ask an unrelated matter, which is, and we asked this quite often, because a lot of the attorneys that appear before us have these confidentiality markings, which we bump up against when we're trying to write opinions or analyze them. I mean, you've got the appendices from our confidential and there were certain transcript portions that are marked confidential, I believe. Is that off limits? Is that? In my view, there's nothing in there that we care about. I think that was done for Dolby's benefit. Okay, well, I don't believe there's anything in there that Lucent would care to keep confidential. Well, maybe while we're all together, we can get Dolby's comments on that. Any concerns about the confidentiality markings? I do

. That's what their engineers said. There are things that Dolby witnesses refer to about the onset of a tone where you're changing from one particular sound to another tone and during that transition, that's a noisy proposition. But once it becomes a tone, everybody has testified that that non-transient stable. But there's a portion of a tone that has transients. So there is a transition from non-tone to tone and in that transition region, which the experts call it, or the witness is called a transition or a burst or the change from noise to tone in the transition area, recall the onset of a tone, but it's not the tone. The tone is always constant and stable. That's what every witness is testified to. The center cut is totally in opposite to our facts here in the center cut. They tried to rebut expert testimony with fact witnesses who all said we don't understand the tonality, we don't know what we're talking about. That is nothing to do with this case. In this case, we're relying on Dolby's engineers who design the accused products, who are in fact the leading audio coding people in the country. The more apt case here is telemark, where in telemark, the court relied on inventors and the founder to contradict expert testimony and telemark, the expert conclusion was broad and conclusive. And the court said, we're not going to listen to a broad and conclusive expert report when we have fact witnesses who testify about what the facts are and they have a knowledge to base that on. Telemark controls this case, not center court. I just was going to ask an unrelated matter, which is, and we asked this quite often, because a lot of the attorneys that appear before us have these confidentiality markings, which we bump up against when we're trying to write opinions or analyze them. I mean, you've got the appendices from our confidential and there were certain transcript portions that are marked confidential, I believe. Is that off limits? Is that? In my view, there's nothing in there that we care about. I think that was done for Dolby's benefit. Okay, well, I don't believe there's anything in there that Lucent would care to keep confidential. Well, maybe while we're all together, we can get Dolby's comments on that. Any concerns about the confidentiality markings? I do. You're on our lead type of comment to Judge Sarah's, his question that she asked Mr. Cooper, which is, what was the skirmish at the end of the code and whether we had the code? Mr. Cooper has totally got wrong, the factual background here. It is true that Lucent licensed Dolby's code back in 1996, but that was under, we were a licensee, we used the technology as under the agreement that that code couldn't be used. There's no evidence in the record that that code was ever used for anything. We're not allowed to under the agreement. The issue about production in the case, it is true Dolby produced code during discovered. They refused it first, and this is all in the record in the briefs. We had to move to compel to get the code. When that commotion of compel was granted, they produced a room full of code. Thousands and thousands and thousands of pages of many different versions. They didn't identify what was in the commercial products, what wasn't in the commercial products. We had to bring a second motion to compel to say, tell us which of the room full of code is actually in the commercial products. They refused. The magistrate judge, shockingly, did not deny that aspect of the motion of the code without comment, without analysis, without opinion, did not tell them to tell us which code is in the commercial products. We appealed to the district court again without analysis. The district court said, well, it's not an abusive discretion. I'm not going to second guess the magistrate. So today, as I stand here today, Dolby has never answered interrogatory seven telling us which section of the produced code is in the commercial products. We don't even have that. We get your point here today

. Thank you Mr. Demarra, the case is submitted