Legal Case Summary

It's for argument is 14 117 6 in traditional Christmas I T.C. We've extended the time so you're taking 14 and 6 for a bottle and the other gentleman on the other side was with it in town as that forever. Mr. Breast, whenever you're ready. Judge Prostin may please the court. I'd like to start with one moment of housekeeping before I move on to the substance, which is that as the court I'm sure saw, our interveners brief did not redact the specifics about how the H.E.S. products work. And we've confirmed with them that what they discussed in their brief was just essentially everything that's relevant to this appeal about how they accuse products work. Is there for public information that we can feel free to discuss in the courtroom today? Thank you. So two years ago, this court rejected the commission's claim constructions with regard to the related ramp up patents, our ramp up patents that were issued in that case where the commission erroneously imported limitations from the specification and specifically from the preferred embodiment in that case. The commission committed the same errors here and those errors were most blatant with regard to the power ramp up patents issue in this case where the commission once again imported a limitation here that short codes cannot carry data from the very same preferred embodiment that this court found to be non-limiting within the case. This is neither here nor there may be, but this seems quite a unusual claim constructions. And we're not even talking about claim language. We're talking about, I mean, we're almost three steps removed from claim language. And it seems quite peculiar. I mean, there's nothing anyone can do about it and I'm not as thriving any fault anyone. But this is quite unusual, is it not? Your Honor, I would grant that it is quite unusual and we're trying to apply this court's precedence and established law to the unusual circumstances. In this case, of course, the actual claim language is excessively sent transmissions. Right. And then that takes us to short codes

. And then with respect to short codes, we're talking about data within the short codes. That's right, Your Honor. The short codes. So this whole claim construction dispute comes down to the data question. It does, Your Honor. It's the summary of the invention as well as the abstract as well as the background section on explain that the invention has to do with short codes. And short codes are actually defined in the second sentence of the summary invention in words very similar to how they're defined at the beginning of the abstract. Essentially, as codes that are shorter in length than regular codes. This court held in, in the International One, which is what I'll call the earlier case, that codes are merely a sequence of chips. And the commission agrees at this point that a code without more can be modulated with data or not modulated with data. Although our court in that original opinion, I think, said even though they carry no data and are not intended to do so, that's in reference to the codes, right? Your Honor, know that specifically, that was a reference to short codes. And I'd love to explain that if I may. So the issue, what was it issue in that case was the commission's claim construction that all of the codes that are mentioned, just the word code that are mentioned in the claims, are spreading codes and in fact spread data signals. One of the arguments we made in response to that for an opposition to that construction, which the court agreed with, was that that can't really be the right construction because there are embodiments, including the preferred embodiment in the specification, that have short codes that don't carry data. And if they don't carry data, then they can't be spreading data. Now, all that the court had to agree with and all that we had to say is that some short codes by virtue of the preferred embodiment don't carry data. The court did not have to decide, we did not argue, the court didn't decide that all short codes don't carry data. And that's a basic mistake that the commission has made in this case, whereas part of its justification is, it just did hear what this court told it to do. Well, let me ask you, getting back to the claim construction issue, there's not an argument here that there's a clear and ordinary meaning that they short codes may have data and may not have that. So we have a real ambiguity, we don't know, right? You're on up the surface. I don't think that that's true for the following reason. We know that a code can be modulated or not modulated

. The commission has agreed with us on that and actually the expert for interveners, Mr. Landing, acknowledge that a code without more can be modulated or not modulated. What we have in the specification, and again, it's the second sentence of the summary of dimension, tells us what a short code is and in language that this court views as definition, it says short code is. And it describes it as a code that is shorter than a regular code and is detectable by the base station. So no, Your Honor, I would put forward to this court that that's what a short code is. And since we know that a code can be modulated or unmodulated, then simply a code that is shorter than a regular code can also be modulated or not modulated. In fact, the term short code is used 78 different times in the specification. In two of those instances, it's actually defined, as I've noted in the abstract and in the summary of the invention, in ways that are broad and that include no data limitation, the only place in the specification, there's one sentence that's talking about preferred embodiment. Where after it lays out what a short code is in the very same way, that it's defined in the summary of the invention, add the short codes for this purpose carrying no data. Now, their entire argument, their entire position, is saying that that one sentence about the preferred embodiment limits short codes to codes that are carrying no data. This court faced a very similar question, actually, and it is the one, because one of the claim constructions that was it issued there is the question whether the transmission of short codes, the power of those transmissions, increases continuously or instead increases stepwise and discrete steps. The commission had found that it increases continuously based on a sentence in the specification about 20 lines down from the language that's addition here in column 7. This court found that that was nearly language describing the preferred embodiment and therefore was not limiting of the claims themselves. It's very difficult, and I would say impossible, to say that the language that it issued here is any more limiting. It equally is describing the very same preferred embodiment. And there's a further point to be made here that I think adds to why it would make no sense to say that the short codes can carry no data. If you look at the claim language itself, all of the claims have language in them, to the effect that the signals, sorry, the sequence of chips does not increase bandwidth. They all have that limiting language in it, and they're talking about the short codes. Now, that language makes no sense in a world where short codes inherently are not modulated by data, because this court found on page 1326 of Interdigital One, a code that does not carry data cannot be used to increase bandwidth. So in other words, the limitation that's in these claims, not used to increase bandwidth, would have been entirely superfluous if short codes by their very definition don't increase bandwidth. Secondly, and I do believe contrary to my friends' views in their briefs, that this is quite relevant to the case, one of the ramp up patents that was it issuing Interdigital One is the 847 patent. And of course, the commission has based much of its decision making on how the court decided that case

. But if you look at the 847 patent, it includes claims that have express exclusions of successfully sent transmissions, or in that case, it's successfully transmitted signals, but same concept, that exclude data. There'd be no reason to have claim language saying that certain of the claims short codes exclude data if it was excluded inherently as a matter of what short codes are. So we've got both the fact that we've got a broad definition within the specification itself, telling us what a short code is in the summary of the invention, where it is talking about the present invention. That definition doesn't really tell us anything about whether it modulates data or not. But what it tells us, Your Honor, is that all we're telling you that a short code is a code, which again can modulate or not modulate data. We know that. That is shorter in length than a regular code. That's all it tells us, Your Honor. And to impose a limitation on that from one sentence in the preferred embodiment, would be inconsistent with an individual one, and would render claim language entirely superfluous. I submit that this is an easy case, where what is being asked of this court is completely contrary to this court's black letter law that we don't take a one sentence description of a preferred embodiment and limit the entire claim because of it. This is a part of the question. There's a lot to it, Your Honor. I will grant that. Can we move on? Because I want to make sure you cover the other two main issues. And I will, Your Honor. If I can add just one thing for this issue, because it's part of what the commission's reasoning was. The commission also found against us because it found, in its view, that our experts conceded that short codes cannot carry data. It's a blatant mischaracterization of what both experts were saying. The two experts, both explained very clearly their view that when they were saying that they were talking about payload data, in other words, the actual telephone call, the data that was being transmitted over the line, they were not talking about set up content or information, which they didn't believe to be data. And they contrasted the two and they said that the Pratch preamples that are an issue here, those unique signatures, are not data in their view, they're mere information about how to set the call up. And they said, but if you think of that as data, if you, the commission, decide that those Pratch preamples are data, then yes, the short codes of the claims carry that as well, or can carry that as well. So there is no disclaimer by our experts

. There is no admission by our experts. Our experts said, look, if you think that what the accused products are carrying is data, the short codes carry that as well, the only thing we don't think that they carry is the actual information in the call. And they explained the reasons for that as well. So it's not just sort of a general denial. They explained that the reason that payload data can't be used in the short codes is, when you're talking on a phone, the base station can't know ahead of time exactly what you're going to say. And for a short code to function, it's got to synchronize up with the base station. So the base station has to know what it's going to be told. But if the information that it's going to be told in the case of Pratch preamples is just, you're going to be told that one of 16 different signatures is coming your way. You can know ahead of time what those 16 are, and you can attribute a meaning to which one of the 16 comes. For example, this is a 9-1-1 call. So known data of that sort, if you will, that's being sent can be part of a short code as our experts explained. There is not only no admission by our experts, our experts both testified very specifically at 301782 and at 3997 respectively, that short codes under the commission's definition of data can carry data. Now, if I may move on to power control patents. The commission committed the same error with regard to these patents, although I'll acknowledge, not as blatant. In these as well, you've got claim language, and I'm talking specifically here about the language in, for example, 13 and 26, claims 13 and 26. That says that a power transmission level is adjusted in response to the same power control gets plural in the series. I'm reading from the claim language itself, so if you take a look at claim 7, just as an example. The language that I'm referring to is the language that says that a power transmission level is adjusted in response to. And it's in response to, so you've got a singular, the power control level, is adjusted in response to the plural series of bits. What that tells us is that you can have a multi-bit command. You can have a command, for example, where the base station is waiting to hear 5-0. And if it hears 5-0, then it will decrease power, or for instance, waiting to hear 5-1s in which case it would increase power

. So that level singular is being adjusted in response to the series of bits of plural. The ordinary reading of that would encompass us, as I've noted, multi-bit commands. And then to that stronger language, and this would be good to this patent when you did in your earlier patents and the specifications I think about that. And your honor, I would acknowledge that, and I would acknowledge that that's what makes this one a closer case than our ramp up, which, as I said, I think is actually a pretty easy case against reading and limitations. In this one, where I'd say that the area is your honor is, as follows, when you look at the detailed description of the preferred embodiments, you've got kind of a tri-partite structure in certain places, and the commissioner describes this well in its brief. In certain places, you've got language that makes clear that what's being talked about is the present invention, because it uses that language and says so. You've got other places where it's quite clear that what it's talking about is exemplary, and merely exemplary, and it says that too. The language that the commission relied on saying that you can only have a single bit of information, in other words, only single bit commands. Falls within neither of those. I think the best reading is they're talking about exemplary items. In fact, the key sentence on which they rely the sentence, where the word always is used, falls within a discussion of figures three and figures four, which specifically are called out to be merely exemplary. So we believe that certainly the best reading of this is that that language, single bit of information where it comes up is merely describing examples. But even if there's doubt about that, that doubt would have to be quite grave indeed, because you would need clear and unmistakable evidence in order to overcome the language of claims 13 and 26, as we've discussed, which is previewed by claims seven. I think this case is different from SkinMedica, your honor. One that we met earlier on. In the sense that in SkinMedica, every single time, the particular method that the accused products used was mentioned within the specification. It was contrasted with the method that was called out in the claim language, and that was four times. In this case, the language of bit and bits comes up a lot in the specification. It's used in the singular about 32 times. It's used in the plural in the sense of series of bits for bit streams 13 times. And certainly, we'll acknowledge that where they are describing specifically how the bits work. They do use as examples single bit of information, and that is consistent with the language of some of the claims, for example, claim one uses bit singular

. But that's inconsistent with how it's used in claim seven, claim 13 and 26. So you not only have a movement away from the plain language in this case. You've got a movement that also is contrary to the concept of claim differentiation. Yeah, but if that, well, typically we apply or we don't apply claim differentiation, but it's in the context of dependent and independent claims. And here you're kind of applying it for independent claims. What this court has said, and I'll acknowledge this court statements that you have the strongest claim differentiation arguments in certain instances where you've got an independent claim that it's dependent claim. And that's what this court has said, but in other cases, like Curtis Wright, this court has found that claim differentiation principles nonetheless apply. And let's face it, all the claim differentiation principles are really talking about is that you're rendering language of the claims super close. And that's really our point on that. It looks like I'm just about done with my time that I've got for my opening. Why don't you take a minute or two and tell us about the final issue, and we'll restore some time. Certainly. I guess my question there is, I mean, it seems quite straightforward. The ALJ didn't spend a lot of time on this. He just said there was one question about almost a definitional question. They used your claim construction. They used your experts, definitional statement and the story. How, why is that wrong? Well, Your Honor, we certainly agree with the claim construction, which the ALJ came to based on a description of the present invention. Where we think that he went wrong again was taking, in some ways, this is reminiscent of the issue we discussed earlier with our experts, taking a one liner from a transcript and turning it into an admission that it wasn't. So the language, certainly the one liner, cuts in the direction the commission found, which is equating use with allocate with a sign. But if you go back just a few pages where the expert is explaining what he means by those concepts, he's not really equating them. So if you look particularly at page 30497 of the J

.A. The question is, why do you say the subscriber unit is allocating the bandwidth? The answer is, well, the wireless bandwidth is allocated only when there's actual data present from the terminal. The unit, either the mobile or the base, the mobile is the one, knows whether there's data it has to transmit or not. The base doesn't know that, in other words, the base doesn't know when the mobile has information to transmit. So is there anything else in the record that you tried to put into establish what the definition was? I mean, the commission relied on the portion of the experts, just to understand that. But was there anything else you put on? You're on a, it's a matter of that what we put on was misread by the commission. In other words, all that the testimony makes clear that what's going on here is that the base, the subscriber unit, which has data descend, knows that it has data descend. And under this invention is the one that allocates. In other words, it's the site. How many channels it needs. Now, it allocates by using them. There's no question about that. And thus the confusion of the language. In other words, if it needs three, it uses those three thus allocating them. And the distinction between this and the prior art, which was key, is that under the prior art, the base, the, the subscriber unit would tell the base station, I'm ready to, to sense and data. And the base station would say you get three channels in order to do that. Under the inventions here, what's going on is that the base station assigns a number of channels to the subscriber unit and the subscriber unit decide how many it needs. That's what's being discussed in that testimony. And I'd submit that if the court reads through that testimony, it will understand that that's all that was being said. And in fact, equating use and allocate would make no sense of the claim construction that the commission did because the commission said, or the ALJ in this case, said that it is the subscriber unit and not the base station that's doing the allocating. That would be vitiated and frankly meaningless if you just said that that allocate means use because of course it's the subscriber unit that's using that which the subscriber unit is using. The entire claim construction is talking about how many how the channels are allocated for it to use

. And by equating the two, I do believe the rendered deconstruction and the meaningless. Okay, we are a couple minutes ahead. We'll restore three minutes of rebuttal and we'll give you each two more minutes on your side to even things up. Thanks. No, are you all going to discuss the case and its entirety of each of you or are you and you divided up the issues that you're having? We haven't. We have prepared to discuss any questions or court house. Yes. Good morning and may it please the court. If I may, it come back to the power ramp up happens. The admins of the successively sent transmissions, which is the only limitation that issue refers to the short code. No, there is a reason why the heavily contested that at the commission at the commission, the vigorously argued that the successively sent transmission should not refer to the short code. And there's a reason for that. The reason is because the overwhelming evidence is published, but if the successively sent transmissions is limited to the short code, then those same short codes do not modulate data. And if they don't modulate data, then there is no infringement. That is why they vigorously contested that at the commission. The commission fathered on press who is there. Well, let me ask you. To me, a lot of this, if you apply the rubric that we apply in our cases in terms of clear, plain language, when we go to the staff, then how have we rely on the staff? It's a matter of whether or not there's a clear and ordinary meaning for short codes in my mind. And therefore, can you point me in the record, is there a clear and ordinary meaning of short code that does not include that? I mean, the clear and ordinary meaning it does, it can or cannot include data. Or is it in your view that it's something narrower? Us use in this patent. Short code cannot, does not modulate data. And the patent explains why

. The entire purpose of the invention is they describe the problem they are trying to solve in the specification. And they describe the problem in figures 5 in figures 5. And they describe the problem as a power over ship. So what they are trying to do is they use a short code to minimize the power over ship. And the short code they use for that purpose, which is a claimed invention, does not modulate data. That is what the patent teaches. Well, as we all know that we've gone through it and there are really only two sections of the specification that you want is able to call out. Well, you say the patent teaches right? Is it beyond the two items that Mr. Brez and I have been discussing this morning? That's so much. You honor. The experts for both sides, both interligious experts and respondents, except all the experts agreed that the short codes do not modulate data. That was established below. It was even established in the prior, in the prior appeal before this code. Where the fourth found that these same short codes do not carry data. The court even went president that. The court said they are not even intended to carry data. And that is in reference to the claimed invention. What interligious all really want is scope for something that is in the event. The one patent protection for something they have not invented. One of ordinary skill in the art of reading this patent will understand that the short codes do not modulate data. That is the problem they set up. The problem they describe is a problem of power overshed by using the full-length access code

. And then they explain that through remedy that problem you use a short code. And they specifically states that the short code used for that purpose. The purpose of the claimed invention does not modulate data. And one of the reasons why they vigorously contested that as a commission is because ALS specifically found that if adoption of their interpretation of the short code carrying data will render this invention in opera. If the short code carries data then this invention will not work. Because for the invention to work as described the short code cannot and does not modulate data. That is taught in the specification. It is all the experts agreed. There was no expert who testified to the contrary. And this quote found the same in the prior and digital appeal before this quote. It is all consistent. The only thing that goes against it is the appellant appeal brief. If I may briefly turn to the power control patent. I mean, the power control patent. There the patent is acted as the only recovered and defined the express code of how power control information is conveyed. It specifically states that power control is always conveyed as a single bit. And it's a single bit either to increase or decrease the power. The power control command is conveyed as a single bit. It's an expert definition and the expert definition has to govern on the record rule. Well, if you look at where it is in the patent though, it's not quite as clear that it's a definition. Is that the 20,000? But there's a four or six in the red. Three three into it earlier. The light that you always language which we are focused on. And it's a column nine. And it's in the context of discussing. It's passing the power control. And it's it's a definition of sent in because the state that APC information, which is the power control information, is always conveyed as a single bit of information. I mean, they use the word always. And it's the specification is actually replaced with references to single bit one bit. It's not just this disclosure. The specification for the teachers that the power control information is conveyed in single bit either to increase or to decrease. And that's in a column six lines 47 to 51. So it's replete with references to that. I'm sorry. The this is in your free column. Callum, 47, 47, 51. Well, I don't know if two constitutes replete because there's no more than that. The more. Okay. That we can keep. And if we look at columns also column nine lines, eight to the mountain, the line 61 to 64 in the three three two patterns. We have column 64 line 11 and 12 and 13. Column 66 lines 42 to 45. We also have in the three three two patterns column 64 line 11 to 13

. The light that you always language which we are focused on. And it's a column nine. And it's in the context of discussing. It's passing the power control. And it's it's a definition of sent in because the state that APC information, which is the power control information, is always conveyed as a single bit of information. I mean, they use the word always. And it's the specification is actually replaced with references to single bit one bit. It's not just this disclosure. The specification for the teachers that the power control information is conveyed in single bit either to increase or to decrease. And that's in a column six lines 47 to 51. So it's replete with references to that. I'm sorry. The this is in your free column. Callum, 47, 47, 51. Well, I don't know if two constitutes replete because there's no more than that. The more. Okay. That we can keep. And if we look at columns also column nine lines, eight to the mountain, the line 61 to 64 in the three three two patterns. We have column 64 line 11 and 12 and 13. Column 66 lines 42 to 45. We also have in the three three two patterns column 64 line 11 to 13. So the specifications are replete with references to single bit one bit. And there's no disclosure anywhere in the past and square. Power control information is conveyed as a multi-bass, which is what happens in the in respondent product. I'm quickly turn to the ninth of N zero patterns with respect to that. In the digital argument that the base station can play no rules. That restriction is not present in the patent. All the patterns were granted for the subscriber unit to allocate and the own expert testify that allocate a sign. Alicate and assign have this and use have the same meaning. The experts testimony was on the big is. I know Mr. Breast mentioned that the testimony was this. I'm big is the testimony is clear. The experts stated. I mean. Council for respondents are repeatedly allocate a sign and use the mean the same thing. And the and and the expert repeated. And the statement that yes, they do mean the same thing. And this was in connection with in Frenchman's was with in connection with this in Frenchman testimony. Is this the one on three or four nine eight and nine nine referring to is that the test run because. Enough that I think it's ambiguous, but it's not quite as clear. I was I read it that you the answers my definition of assigned is to use the channel actually question. So allocate is use answer allocate use sign yes, yes

. So the specifications are replete with references to single bit one bit. And there's no disclosure anywhere in the past and square. Power control information is conveyed as a multi-bass, which is what happens in the in respondent product. I'm quickly turn to the ninth of N zero patterns with respect to that. In the digital argument that the base station can play no rules. That restriction is not present in the patent. All the patterns were granted for the subscriber unit to allocate and the own expert testify that allocate a sign. Alicate and assign have this and use have the same meaning. The experts testimony was on the big is. I know Mr. Breast mentioned that the testimony was this. I'm big is the testimony is clear. The experts stated. I mean. Council for respondents are repeatedly allocate a sign and use the mean the same thing. And the and and the expert repeated. And the statement that yes, they do mean the same thing. And this was in connection with in Frenchman's was with in connection with this in Frenchman testimony. Is this the one on three or four nine eight and nine nine referring to is that the test run because. Enough that I think it's ambiguous, but it's not quite as clear. I was I read it that you the answers my definition of assigned is to use the channel actually question. So allocate is use answer allocate use sign yes, yes. And we are not you is that is that is that is on ambiguous. I mean the the expert was an equivalent. And this is this was in connection to in Frenchman's mind. Where the thing because the commission adopted an individual construction and the expert testified that under that construction allocate and use and assign have the same meaning. And so the commission relied on that to find. None in Frenchman. I mean to find the patent in politics, using. I said, zero. I know I've asked the time, but is the court asking questions. Thank you. I'm going to talk about all three of the patent groups for both interveners. I want to start as everyone has with the power ramp up and I want to follow up start just where what you started with Mr. Brez which was we have this interesting situation where we've left long ago. The language of the claims and there's no longer an argument that we should be applying the plain meaning of the claim language. That was a position inter digital took at the below argued vociferously against use of short codes in the construction. Did not prevail for reasons that should be very clear and now abandoned that and there's some important consequences. We believe that come from abandoning that position and and and and the first thing is we consequence we should not be led into the trap of believing that this case is about now construing the plain meaning of the word short code. There are two reasons for that. They have to do with how the word and concept is described as the invention. In column one and three where we specifically say the invention what the invention is and this is the limiting language. Is this an 830? That's right. This is the 830 patent at column one lines 2932 and column three lines 18 to 24

. And we are not you is that is that is that is on ambiguous. I mean the the expert was an equivalent. And this is this was in connection to in Frenchman's mind. Where the thing because the commission adopted an individual construction and the expert testified that under that construction allocate and use and assign have the same meaning. And so the commission relied on that to find. None in Frenchman. I mean to find the patent in politics, using. I said, zero. I know I've asked the time, but is the court asking questions. Thank you. I'm going to talk about all three of the patent groups for both interveners. I want to start as everyone has with the power ramp up and I want to follow up start just where what you started with Mr. Brez which was we have this interesting situation where we've left long ago. The language of the claims and there's no longer an argument that we should be applying the plain meaning of the claim language. That was a position inter digital took at the below argued vociferously against use of short codes in the construction. Did not prevail for reasons that should be very clear and now abandoned that and there's some important consequences. We believe that come from abandoning that position and and and and the first thing is we consequence we should not be led into the trap of believing that this case is about now construing the plain meaning of the word short code. There are two reasons for that. They have to do with how the word and concept is described as the invention. In column one and three where we specifically say the invention what the invention is and this is the limiting language. Is this an 830? That's right. This is the 830 patent at column one lines 2932 and column three lines 18 to 24. We are told that the invention the invention is the use of short codes the utilization the word the verb used in that sentence. So the invention isn't short codes the invention is the use of short codes and that is one of the reasons why I think for very good reasons they made the decision to abandon the argument that we should be given the broadest possible meaning to the word successively sent for admissions. When we then look to the question of whether or not the use of short code which is defined in this invention has any use other than carrying no data we are called explicitly in column seven. A sentence that reads the short codes used for this purpose carries no data now what purpose are they talking about this is the paragraph that begins the preferring body of the present invention uses a two. Step process and then describes some details of the two step process it concludes with the sentence unqualified by the statement the preferred embodiment uses it simply says the short code used for this purpose this purpose is the purpose of the present invention. Now let me make an important point about the so called preferred embodiment there is only one embodiment in the pattern that uses short codes which are described as the invention that's the embodiment described in figure seven. The reason embodied it described in figure five but it is not an embodiment of the invention it is an embodiment of the problem the invention reports the solve there is no description no hints no any evidence at all to someone reading them. The answer is that the short codes used in this invention carry data now this was the position presented to the commission when we were reviewing the record where we have a construction of the calls out by the specification for the use of short codes because that was described in the invention. Text in the pattern that says when we use short codes in this invention they carry no data. Now in this case both experts were offered by both sides opinions as to what these claim terms mean and how they should be applied. An interdigital expert gave testimony about the proposed construction using short codes. Now this was a construction that at the time he opposed vigorously and my colleague was aggressive that his explanation was that we're talking about the payload data of the telephone call versus the payload data associated with setting up the call. That distinction cannot be found in that in these pages. If you look at the record where he testified that the short codes of the package do not carry data it begins at page 3176 and the very beginning is very clear we're talking about claim language. This is a cross examination on his opinions about the scope of the claims and it is in the course of that that we learn two things and it goes on through pages. He says 3182 he says two things he says I'm going to concede that short codes don't modulate data but what I'm going to fuss with you he hasn't said is from dispute is whether or not what the accused products do is modulated data. He tries to draw a distinction between conveying information and modulating data. Those are two different concepts a red light at a traffic stop conveys information but it's not a signal modulated by data it is simply a red light. A signal modulated by data can be data that is spread by a spreading code or in the example of the accused technology information about access service modulated changed by a spreading code. What is transmitted when a signal is actually modulated is data of some use altered or changed to buy some other signal a scrambling code or a spreading code which is then received and has to be extracted. It is as if you're going to send the number 4 to the base station. You take the number 4 and add the number 6 to it and what the base station receives is the number 10

. We are told that the invention the invention is the use of short codes the utilization the word the verb used in that sentence. So the invention isn't short codes the invention is the use of short codes and that is one of the reasons why I think for very good reasons they made the decision to abandon the argument that we should be given the broadest possible meaning to the word successively sent for admissions. When we then look to the question of whether or not the use of short code which is defined in this invention has any use other than carrying no data we are called explicitly in column seven. A sentence that reads the short codes used for this purpose carries no data now what purpose are they talking about this is the paragraph that begins the preferring body of the present invention uses a two. Step process and then describes some details of the two step process it concludes with the sentence unqualified by the statement the preferred embodiment uses it simply says the short code used for this purpose this purpose is the purpose of the present invention. Now let me make an important point about the so called preferred embodiment there is only one embodiment in the pattern that uses short codes which are described as the invention that's the embodiment described in figure seven. The reason embodied it described in figure five but it is not an embodiment of the invention it is an embodiment of the problem the invention reports the solve there is no description no hints no any evidence at all to someone reading them. The answer is that the short codes used in this invention carry data now this was the position presented to the commission when we were reviewing the record where we have a construction of the calls out by the specification for the use of short codes because that was described in the invention. Text in the pattern that says when we use short codes in this invention they carry no data. Now in this case both experts were offered by both sides opinions as to what these claim terms mean and how they should be applied. An interdigital expert gave testimony about the proposed construction using short codes. Now this was a construction that at the time he opposed vigorously and my colleague was aggressive that his explanation was that we're talking about the payload data of the telephone call versus the payload data associated with setting up the call. That distinction cannot be found in that in these pages. If you look at the record where he testified that the short codes of the package do not carry data it begins at page 3176 and the very beginning is very clear we're talking about claim language. This is a cross examination on his opinions about the scope of the claims and it is in the course of that that we learn two things and it goes on through pages. He says 3182 he says two things he says I'm going to concede that short codes don't modulate data but what I'm going to fuss with you he hasn't said is from dispute is whether or not what the accused products do is modulated data. He tries to draw a distinction between conveying information and modulating data. Those are two different concepts a red light at a traffic stop conveys information but it's not a signal modulated by data it is simply a red light. A signal modulated by data can be data that is spread by a spreading code or in the example of the accused technology information about access service modulated changed by a spreading code. What is transmitted when a signal is actually modulated is data of some use altered or changed to buy some other signal a scrambling code or a spreading code which is then received and has to be extracted. It is as if you're going to send the number 4 to the base station. You take the number 4 and add the number 6 to it and what the base station receives is the number 10. If the base station knows in advance that you have added the number 6 it can subtract 6 and get 4 but all you said is 10. That's an example of a signal modulated by data and there is no hint whatsoever in this pattern and the expert ultimately conceded this through those pages of cross examination. That only is talking about the pattern discloses a red light or a green light but there is not disclosed modulated by data. They put all their cards on arguing a factual question which was is the accused product more like the red light green light information only or is it modulated by data. There is a factual finding by the experts in view of conflicting testimony from the experts was resolved in the respondents favor against the individual and they don't even contest that finding that in fact the accused pretz preamble is a result of a signature modulated by a scrambling code which has to be demodulated and extracted at the base station. There is no hint of that process anywhere in this pattern. I want to mention one of the things about this that goes beyond what the ITC has noted. Even if the individual were to convince you that now that we have left the language reasonable question of what's the plain meaning of words we are talking about what the experts say and what is taught by this pattern about how the short code is used which is described as the invention. We have the finding by the administrative law judge that if the patents were as broad as the individual claims they are invalid for lack of written description support. That's a crucially important factor of the superior honors because the ITC rules are explicit. If some of those contingent findings is made by administrative law judge and you don't agree with it you have to explicitly list it on your petition for review otherwise it is waived. There is a list of their contention of the issues they want to review and it's found at page A5608 and 609 and the written description validity finding the contingent alternative finding made by administrative law judge is not present in that list. The ITC regulations could not be clear if it's not on that list it is gone. We are this court to say we are going to find a different claim construction and give a broader view. The first set of patents. Yes, this is just on the power amp of patents. Frankly reversing. It isn't our brief absolutely wrong. That means the pursuit of this is futile. I want to touch briefly on the power control of patents. There was a great discussion by my colleague and some questions about it about the claims that refer to multiple bits being sent. That claim language looking in isolation might arguably be amenable to a reading of either way

. If the base station knows in advance that you have added the number 6 it can subtract 6 and get 4 but all you said is 10. That's an example of a signal modulated by data and there is no hint whatsoever in this pattern and the expert ultimately conceded this through those pages of cross examination. That only is talking about the pattern discloses a red light or a green light but there is not disclosed modulated by data. They put all their cards on arguing a factual question which was is the accused product more like the red light green light information only or is it modulated by data. There is a factual finding by the experts in view of conflicting testimony from the experts was resolved in the respondents favor against the individual and they don't even contest that finding that in fact the accused pretz preamble is a result of a signature modulated by a scrambling code which has to be demodulated and extracted at the base station. There is no hint of that process anywhere in this pattern. I want to mention one of the things about this that goes beyond what the ITC has noted. Even if the individual were to convince you that now that we have left the language reasonable question of what's the plain meaning of words we are talking about what the experts say and what is taught by this pattern about how the short code is used which is described as the invention. We have the finding by the administrative law judge that if the patents were as broad as the individual claims they are invalid for lack of written description support. That's a crucially important factor of the superior honors because the ITC rules are explicit. If some of those contingent findings is made by administrative law judge and you don't agree with it you have to explicitly list it on your petition for review otherwise it is waived. There is a list of their contention of the issues they want to review and it's found at page A5608 and 609 and the written description validity finding the contingent alternative finding made by administrative law judge is not present in that list. The ITC regulations could not be clear if it's not on that list it is gone. We are this court to say we are going to find a different claim construction and give a broader view. The first set of patents. Yes, this is just on the power amp of patents. Frankly reversing. It isn't our brief absolutely wrong. That means the pursuit of this is futile. I want to touch briefly on the power control of patents. There was a great discussion by my colleague and some questions about it about the claims that refer to multiple bits being sent. That claim language looking in isolation might arguably be amenable to a reading of either way. There is no question it has to be read to cover the disclosed embodiment of a single bit. Maybe it doesn't be amenable to a broader construction standing alone. But what we have here is a very clear statement that the power control command is always one bit. No counter example whatsoever in the patent. No hint that there are other possible embodiments that could explain the always language. Now in the interdigital brief they argue that there are counter examples. They point first of all to the claim language we just talked about. Which is neither here nor there. They have a C also site to some testimony. That testimony does not relate at all to multiple power bits. It relates to multiple data rates. Not multiple power bits. So there is not even their own expert did not point to this is on page 27 of their grave brief. Their expert cannot even point to a counter example of multiple bits in the patent. The absence of a counter example combined with the unacquirical statement always puts the public on notice that to practice this invention you always use a single bit. The final point your owners in turn to the 970 patent. The dual mode patent. There is actually a point arranged in the last three pages of our brief. Which is unresponded to by the other side. The commission got the claim construction wrong. The term being construed is assign to fiscal channels written in deliberately written in the passive voice. Not requiring the handset to assign them or the base station to sign them or some other omission party to assign them

. There is no question it has to be read to cover the disclosed embodiment of a single bit. Maybe it doesn't be amenable to a broader construction standing alone. But what we have here is a very clear statement that the power control command is always one bit. No counter example whatsoever in the patent. No hint that there are other possible embodiments that could explain the always language. Now in the interdigital brief they argue that there are counter examples. They point first of all to the claim language we just talked about. Which is neither here nor there. They have a C also site to some testimony. That testimony does not relate at all to multiple power bits. It relates to multiple data rates. Not multiple power bits. So there is not even their own expert did not point to this is on page 27 of their grave brief. Their expert cannot even point to a counter example of multiple bits in the patent. The absence of a counter example combined with the unacquirical statement always puts the public on notice that to practice this invention you always use a single bit. The final point your owners in turn to the 970 patent. The dual mode patent. There is actually a point arranged in the last three pages of our brief. Which is unresponded to by the other side. The commission got the claim construction wrong. The term being construed is assign to fiscal channels written in deliberately written in the passive voice. Not requiring the handset to assign them or the base station to sign them or some other omission party to assign them. It does not matter under the claim who assigns them. We argue below to the commission that that was an unduly narrow construction. The commission disagreed with us. It gave the narrow construction of the individual urge. Unfortunately the prior art also met that requirement. But there is no dispute that if you give that term it is plain in ordinary meaning. Assigned in the physical channels irrespective of who does the assigning. This claim is invalid. And because we presented that issue to the commission, because the commission addressed it and rejected it, it is absolutely present here for your honors to decide. And interdigital did not address it at all and it is for the library. Simply ignored it because we made two arguments. One about how there can't be an infringement under their newest theory. And they said well that wasn't before the commission. And at that point they may have it. But the second argument we made which was absolutely unequivocal. Your time is up. So you want my signature session. That will be my end of my session. I would like to start again with power ramp up. I think that the starting place in this case with regard to short codes and what they mean. The honor has to start with what this court said in interdigital one is to what a code means. And what it said in interdigital was it is a sequence of chips

. It does not matter under the claim who assigns them. We argue below to the commission that that was an unduly narrow construction. The commission disagreed with us. It gave the narrow construction of the individual urge. Unfortunately the prior art also met that requirement. But there is no dispute that if you give that term it is plain in ordinary meaning. Assigned in the physical channels irrespective of who does the assigning. This claim is invalid. And because we presented that issue to the commission, because the commission addressed it and rejected it, it is absolutely present here for your honors to decide. And interdigital did not address it at all and it is for the library. Simply ignored it because we made two arguments. One about how there can't be an infringement under their newest theory. And they said well that wasn't before the commission. And at that point they may have it. But the second argument we made which was absolutely unequivocal. Your time is up. So you want my signature session. That will be my end of my session. I would like to start again with power ramp up. I think that the starting place in this case with regard to short codes and what they mean. The honor has to start with what this court said in interdigital one is to what a code means. And what it said in interdigital was it is a sequence of chips. In that case they could be spread or not spread. We have total agreement in this case that a code can be modulated or unmodulated. So that's step one. Step two. If we look at the summary of the invention at the first two sentences. And this is column three lines 18 through 24. The present invention comprises a novel method of controlling transmission power during the establishment of a channel in the CDMA communication system by utilizing the transmission of a short code from a subscriber unit to a base station. The first sentence. So it's about short codes. Second sentence. The short code is a sequence for detection by the base station which is a much shorter period than a conventional spreading code. In other words, a short code is just a code shorter in length than a regular code. So we do start out with plain language that a code can be modulated or unmodulated. A shorter code can be modulated or unmodulated. The only thing that the commission and that intervener's point to to say, oh, but there's this data modulation limitation is one sentence in the description of a preferred embodiment. Now, the this court held in inter-Judges one that other sentences in that same preferred embodiment are not limiting of the claim. They merely describe aspects of that presently preferred embodiment that may that are not encompassing the whole of the invention. There's no greater reason to read that sentence to be limiting of what short codes can or can't be than there was an inter-Digital one. The commission here argues and I'm not going to go into detail, but the invention would not work if short codes carry data. As we've explained, by the way, they said in a brief of 46 and 47 that they disavowed that nor relying on it today. They sought to resuscitate it. We explained in our brief with clinical citations to our experts that short codes can work if they're modulated by data

. In that case they could be spread or not spread. We have total agreement in this case that a code can be modulated or unmodulated. So that's step one. Step two. If we look at the summary of the invention at the first two sentences. And this is column three lines 18 through 24. The present invention comprises a novel method of controlling transmission power during the establishment of a channel in the CDMA communication system by utilizing the transmission of a short code from a subscriber unit to a base station. The first sentence. So it's about short codes. Second sentence. The short code is a sequence for detection by the base station which is a much shorter period than a conventional spreading code. In other words, a short code is just a code shorter in length than a regular code. So we do start out with plain language that a code can be modulated or unmodulated. A shorter code can be modulated or unmodulated. The only thing that the commission and that intervener's point to to say, oh, but there's this data modulation limitation is one sentence in the description of a preferred embodiment. Now, the this court held in inter-Judges one that other sentences in that same preferred embodiment are not limiting of the claim. They merely describe aspects of that presently preferred embodiment that may that are not encompassing the whole of the invention. There's no greater reason to read that sentence to be limiting of what short codes can or can't be than there was an inter-Digital one. The commission here argues and I'm not going to go into detail, but the invention would not work if short codes carry data. As we've explained, by the way, they said in a brief of 46 and 47 that they disavowed that nor relying on it today. They sought to resuscitate it. We explained in our brief with clinical citations to our experts that short codes can work if they're modulated by data. That's exactly how do you choose products work? They've got short codes that are modulated by 16 different signatures and which signature they choose tells you something. So we know short codes can be modulated by data. The argument is the ones in the invention can't be modulated by data, but that just takes them back to the one sentence on which they hang everything. There's no other reason to get there. Third, if everything in that embodiment we're limiting, we would know that a cell boundary has to be 30 kilometers. We would know that a pilot code has to be its only X length. We would know what the update rate's got to be. The ramp up rate's got to be in its downward particular number one decibel per millisecond. Those clearly are not required features in the invention. There's simply aspects features of a preferred embodiment again as this court has recognized. I think we're done. One last thing which is the written description, arguments that's being made here. As we pointed out in our brief on page 19, we did argue to the commission in our petition for review that that issue, that that the written description was sufficient that the ALJ was wrong on that. Whether that's enough or not enough is really to be determined by the commission on remand with its usual waiver and whether you comply or didn't comply rules. It's certainly nothing for this court to anticipate and decide under January. We can thank both all counsel and the cases for giving us action.

It's for argument is 14 117 6 in traditional Christmas I T.C. We've extended the time so you're taking 14 and 6 for a bottle and the other gentleman on the other side was with it in town as that forever. Mr. Breast, whenever you're ready. Judge Prostin may please the court. I'd like to start with one moment of housekeeping before I move on to the substance, which is that as the court I'm sure saw, our interveners brief did not redact the specifics about how the H.E.S. products work. And we've confirmed with them that what they discussed in their brief was just essentially everything that's relevant to this appeal about how they accuse products work. Is there for public information that we can feel free to discuss in the courtroom today? Thank you. So two years ago, this court rejected the commission's claim constructions with regard to the related ramp up patents, our ramp up patents that were issued in that case where the commission erroneously imported limitations from the specification and specifically from the preferred embodiment in that case. The commission committed the same errors here and those errors were most blatant with regard to the power ramp up patents issue in this case where the commission once again imported a limitation here that short codes cannot carry data from the very same preferred embodiment that this court found to be non-limiting within the case. This is neither here nor there may be, but this seems quite a unusual claim constructions. And we're not even talking about claim language. We're talking about, I mean, we're almost three steps removed from claim language. And it seems quite peculiar. I mean, there's nothing anyone can do about it and I'm not as thriving any fault anyone. But this is quite unusual, is it not? Your Honor, I would grant that it is quite unusual and we're trying to apply this court's precedence and established law to the unusual circumstances. In this case, of course, the actual claim language is excessively sent transmissions. Right. And then that takes us to short codes. And then with respect to short codes, we're talking about data within the short codes. That's right, Your Honor. The short codes. So this whole claim construction dispute comes down to the data question. It does, Your Honor. It's the summary of the invention as well as the abstract as well as the background section on explain that the invention has to do with short codes. And short codes are actually defined in the second sentence of the summary invention in words very similar to how they're defined at the beginning of the abstract. Essentially, as codes that are shorter in length than regular codes. This court held in, in the International One, which is what I'll call the earlier case, that codes are merely a sequence of chips. And the commission agrees at this point that a code without more can be modulated with data or not modulated with data. Although our court in that original opinion, I think, said even though they carry no data and are not intended to do so, that's in reference to the codes, right? Your Honor, know that specifically, that was a reference to short codes. And I'd love to explain that if I may. So the issue, what was it issue in that case was the commission's claim construction that all of the codes that are mentioned, just the word code that are mentioned in the claims, are spreading codes and in fact spread data signals. One of the arguments we made in response to that for an opposition to that construction, which the court agreed with, was that that can't really be the right construction because there are embodiments, including the preferred embodiment in the specification, that have short codes that don't carry data. And if they don't carry data, then they can't be spreading data. Now, all that the court had to agree with and all that we had to say is that some short codes by virtue of the preferred embodiment don't carry data. The court did not have to decide, we did not argue, the court didn't decide that all short codes don't carry data. And that's a basic mistake that the commission has made in this case, whereas part of its justification is, it just did hear what this court told it to do. Well, let me ask you, getting back to the claim construction issue, there's not an argument here that there's a clear and ordinary meaning that they short codes may have data and may not have that. So we have a real ambiguity, we don't know, right? You're on up the surface. I don't think that that's true for the following reason. We know that a code can be modulated or not modulated. The commission has agreed with us on that and actually the expert for interveners, Mr. Landing, acknowledge that a code without more can be modulated or not modulated. What we have in the specification, and again, it's the second sentence of the summary of dimension, tells us what a short code is and in language that this court views as definition, it says short code is. And it describes it as a code that is shorter than a regular code and is detectable by the base station. So no, Your Honor, I would put forward to this court that that's what a short code is. And since we know that a code can be modulated or unmodulated, then simply a code that is shorter than a regular code can also be modulated or not modulated. In fact, the term short code is used 78 different times in the specification. In two of those instances, it's actually defined, as I've noted in the abstract and in the summary of the invention, in ways that are broad and that include no data limitation, the only place in the specification, there's one sentence that's talking about preferred embodiment. Where after it lays out what a short code is in the very same way, that it's defined in the summary of the invention, add the short codes for this purpose carrying no data. Now, their entire argument, their entire position, is saying that that one sentence about the preferred embodiment limits short codes to codes that are carrying no data. This court faced a very similar question, actually, and it is the one, because one of the claim constructions that was it issued there is the question whether the transmission of short codes, the power of those transmissions, increases continuously or instead increases stepwise and discrete steps. The commission had found that it increases continuously based on a sentence in the specification about 20 lines down from the language that's addition here in column 7. This court found that that was nearly language describing the preferred embodiment and therefore was not limiting of the claims themselves. It's very difficult, and I would say impossible, to say that the language that it issued here is any more limiting. It equally is describing the very same preferred embodiment. And there's a further point to be made here that I think adds to why it would make no sense to say that the short codes can carry no data. If you look at the claim language itself, all of the claims have language in them, to the effect that the signals, sorry, the sequence of chips does not increase bandwidth. They all have that limiting language in it, and they're talking about the short codes. Now, that language makes no sense in a world where short codes inherently are not modulated by data, because this court found on page 1326 of Interdigital One, a code that does not carry data cannot be used to increase bandwidth. So in other words, the limitation that's in these claims, not used to increase bandwidth, would have been entirely superfluous if short codes by their very definition don't increase bandwidth. Secondly, and I do believe contrary to my friends' views in their briefs, that this is quite relevant to the case, one of the ramp up patents that was it issuing Interdigital One is the 847 patent. And of course, the commission has based much of its decision making on how the court decided that case. But if you look at the 847 patent, it includes claims that have express exclusions of successfully sent transmissions, or in that case, it's successfully transmitted signals, but same concept, that exclude data. There'd be no reason to have claim language saying that certain of the claims short codes exclude data if it was excluded inherently as a matter of what short codes are. So we've got both the fact that we've got a broad definition within the specification itself, telling us what a short code is in the summary of the invention, where it is talking about the present invention. That definition doesn't really tell us anything about whether it modulates data or not. But what it tells us, Your Honor, is that all we're telling you that a short code is a code, which again can modulate or not modulate data. We know that. That is shorter in length than a regular code. That's all it tells us, Your Honor. And to impose a limitation on that from one sentence in the preferred embodiment, would be inconsistent with an individual one, and would render claim language entirely superfluous. I submit that this is an easy case, where what is being asked of this court is completely contrary to this court's black letter law that we don't take a one sentence description of a preferred embodiment and limit the entire claim because of it. This is a part of the question. There's a lot to it, Your Honor. I will grant that. Can we move on? Because I want to make sure you cover the other two main issues. And I will, Your Honor. If I can add just one thing for this issue, because it's part of what the commission's reasoning was. The commission also found against us because it found, in its view, that our experts conceded that short codes cannot carry data. It's a blatant mischaracterization of what both experts were saying. The two experts, both explained very clearly their view that when they were saying that they were talking about payload data, in other words, the actual telephone call, the data that was being transmitted over the line, they were not talking about set up content or information, which they didn't believe to be data. And they contrasted the two and they said that the Pratch preamples that are an issue here, those unique signatures, are not data in their view, they're mere information about how to set the call up. And they said, but if you think of that as data, if you, the commission, decide that those Pratch preamples are data, then yes, the short codes of the claims carry that as well, or can carry that as well. So there is no disclaimer by our experts. There is no admission by our experts. Our experts said, look, if you think that what the accused products are carrying is data, the short codes carry that as well, the only thing we don't think that they carry is the actual information in the call. And they explained the reasons for that as well. So it's not just sort of a general denial. They explained that the reason that payload data can't be used in the short codes is, when you're talking on a phone, the base station can't know ahead of time exactly what you're going to say. And for a short code to function, it's got to synchronize up with the base station. So the base station has to know what it's going to be told. But if the information that it's going to be told in the case of Pratch preamples is just, you're going to be told that one of 16 different signatures is coming your way. You can know ahead of time what those 16 are, and you can attribute a meaning to which one of the 16 comes. For example, this is a 9-1-1 call. So known data of that sort, if you will, that's being sent can be part of a short code as our experts explained. There is not only no admission by our experts, our experts both testified very specifically at 301782 and at 3997 respectively, that short codes under the commission's definition of data can carry data. Now, if I may move on to power control patents. The commission committed the same error with regard to these patents, although I'll acknowledge, not as blatant. In these as well, you've got claim language, and I'm talking specifically here about the language in, for example, 13 and 26, claims 13 and 26. That says that a power transmission level is adjusted in response to the same power control gets plural in the series. I'm reading from the claim language itself, so if you take a look at claim 7, just as an example. The language that I'm referring to is the language that says that a power transmission level is adjusted in response to. And it's in response to, so you've got a singular, the power control level, is adjusted in response to the plural series of bits. What that tells us is that you can have a multi-bit command. You can have a command, for example, where the base station is waiting to hear 5-0. And if it hears 5-0, then it will decrease power, or for instance, waiting to hear 5-1s in which case it would increase power. So that level singular is being adjusted in response to the series of bits of plural. The ordinary reading of that would encompass us, as I've noted, multi-bit commands. And then to that stronger language, and this would be good to this patent when you did in your earlier patents and the specifications I think about that. And your honor, I would acknowledge that, and I would acknowledge that that's what makes this one a closer case than our ramp up, which, as I said, I think is actually a pretty easy case against reading and limitations. In this one, where I'd say that the area is your honor is, as follows, when you look at the detailed description of the preferred embodiments, you've got kind of a tri-partite structure in certain places, and the commissioner describes this well in its brief. In certain places, you've got language that makes clear that what's being talked about is the present invention, because it uses that language and says so. You've got other places where it's quite clear that what it's talking about is exemplary, and merely exemplary, and it says that too. The language that the commission relied on saying that you can only have a single bit of information, in other words, only single bit commands. Falls within neither of those. I think the best reading is they're talking about exemplary items. In fact, the key sentence on which they rely the sentence, where the word always is used, falls within a discussion of figures three and figures four, which specifically are called out to be merely exemplary. So we believe that certainly the best reading of this is that that language, single bit of information where it comes up is merely describing examples. But even if there's doubt about that, that doubt would have to be quite grave indeed, because you would need clear and unmistakable evidence in order to overcome the language of claims 13 and 26, as we've discussed, which is previewed by claims seven. I think this case is different from SkinMedica, your honor. One that we met earlier on. In the sense that in SkinMedica, every single time, the particular method that the accused products used was mentioned within the specification. It was contrasted with the method that was called out in the claim language, and that was four times. In this case, the language of bit and bits comes up a lot in the specification. It's used in the singular about 32 times. It's used in the plural in the sense of series of bits for bit streams 13 times. And certainly, we'll acknowledge that where they are describing specifically how the bits work. They do use as examples single bit of information, and that is consistent with the language of some of the claims, for example, claim one uses bit singular. But that's inconsistent with how it's used in claim seven, claim 13 and 26. So you not only have a movement away from the plain language in this case. You've got a movement that also is contrary to the concept of claim differentiation. Yeah, but if that, well, typically we apply or we don't apply claim differentiation, but it's in the context of dependent and independent claims. And here you're kind of applying it for independent claims. What this court has said, and I'll acknowledge this court statements that you have the strongest claim differentiation arguments in certain instances where you've got an independent claim that it's dependent claim. And that's what this court has said, but in other cases, like Curtis Wright, this court has found that claim differentiation principles nonetheless apply. And let's face it, all the claim differentiation principles are really talking about is that you're rendering language of the claims super close. And that's really our point on that. It looks like I'm just about done with my time that I've got for my opening. Why don't you take a minute or two and tell us about the final issue, and we'll restore some time. Certainly. I guess my question there is, I mean, it seems quite straightforward. The ALJ didn't spend a lot of time on this. He just said there was one question about almost a definitional question. They used your claim construction. They used your experts, definitional statement and the story. How, why is that wrong? Well, Your Honor, we certainly agree with the claim construction, which the ALJ came to based on a description of the present invention. Where we think that he went wrong again was taking, in some ways, this is reminiscent of the issue we discussed earlier with our experts, taking a one liner from a transcript and turning it into an admission that it wasn't. So the language, certainly the one liner, cuts in the direction the commission found, which is equating use with allocate with a sign. But if you go back just a few pages where the expert is explaining what he means by those concepts, he's not really equating them. So if you look particularly at page 30497 of the J.A. The question is, why do you say the subscriber unit is allocating the bandwidth? The answer is, well, the wireless bandwidth is allocated only when there's actual data present from the terminal. The unit, either the mobile or the base, the mobile is the one, knows whether there's data it has to transmit or not. The base doesn't know that, in other words, the base doesn't know when the mobile has information to transmit. So is there anything else in the record that you tried to put into establish what the definition was? I mean, the commission relied on the portion of the experts, just to understand that. But was there anything else you put on? You're on a, it's a matter of that what we put on was misread by the commission. In other words, all that the testimony makes clear that what's going on here is that the base, the subscriber unit, which has data descend, knows that it has data descend. And under this invention is the one that allocates. In other words, it's the site. How many channels it needs. Now, it allocates by using them. There's no question about that. And thus the confusion of the language. In other words, if it needs three, it uses those three thus allocating them. And the distinction between this and the prior art, which was key, is that under the prior art, the base, the, the subscriber unit would tell the base station, I'm ready to, to sense and data. And the base station would say you get three channels in order to do that. Under the inventions here, what's going on is that the base station assigns a number of channels to the subscriber unit and the subscriber unit decide how many it needs. That's what's being discussed in that testimony. And I'd submit that if the court reads through that testimony, it will understand that that's all that was being said. And in fact, equating use and allocate would make no sense of the claim construction that the commission did because the commission said, or the ALJ in this case, said that it is the subscriber unit and not the base station that's doing the allocating. That would be vitiated and frankly meaningless if you just said that that allocate means use because of course it's the subscriber unit that's using that which the subscriber unit is using. The entire claim construction is talking about how many how the channels are allocated for it to use. And by equating the two, I do believe the rendered deconstruction and the meaningless. Okay, we are a couple minutes ahead. We'll restore three minutes of rebuttal and we'll give you each two more minutes on your side to even things up. Thanks. No, are you all going to discuss the case and its entirety of each of you or are you and you divided up the issues that you're having? We haven't. We have prepared to discuss any questions or court house. Yes. Good morning and may it please the court. If I may, it come back to the power ramp up happens. The admins of the successively sent transmissions, which is the only limitation that issue refers to the short code. No, there is a reason why the heavily contested that at the commission at the commission, the vigorously argued that the successively sent transmission should not refer to the short code. And there's a reason for that. The reason is because the overwhelming evidence is published, but if the successively sent transmissions is limited to the short code, then those same short codes do not modulate data. And if they don't modulate data, then there is no infringement. That is why they vigorously contested that at the commission. The commission fathered on press who is there. Well, let me ask you. To me, a lot of this, if you apply the rubric that we apply in our cases in terms of clear, plain language, when we go to the staff, then how have we rely on the staff? It's a matter of whether or not there's a clear and ordinary meaning for short codes in my mind. And therefore, can you point me in the record, is there a clear and ordinary meaning of short code that does not include that? I mean, the clear and ordinary meaning it does, it can or cannot include data. Or is it in your view that it's something narrower? Us use in this patent. Short code cannot, does not modulate data. And the patent explains why. The entire purpose of the invention is they describe the problem they are trying to solve in the specification. And they describe the problem in figures 5 in figures 5. And they describe the problem as a power over ship. So what they are trying to do is they use a short code to minimize the power over ship. And the short code they use for that purpose, which is a claimed invention, does not modulate data. That is what the patent teaches. Well, as we all know that we've gone through it and there are really only two sections of the specification that you want is able to call out. Well, you say the patent teaches right? Is it beyond the two items that Mr. Brez and I have been discussing this morning? That's so much. You honor. The experts for both sides, both interligious experts and respondents, except all the experts agreed that the short codes do not modulate data. That was established below. It was even established in the prior, in the prior appeal before this code. Where the fourth found that these same short codes do not carry data. The court even went president that. The court said they are not even intended to carry data. And that is in reference to the claimed invention. What interligious all really want is scope for something that is in the event. The one patent protection for something they have not invented. One of ordinary skill in the art of reading this patent will understand that the short codes do not modulate data. That is the problem they set up. The problem they describe is a problem of power overshed by using the full-length access code. And then they explain that through remedy that problem you use a short code. And they specifically states that the short code used for that purpose. The purpose of the claimed invention does not modulate data. And one of the reasons why they vigorously contested that as a commission is because ALS specifically found that if adoption of their interpretation of the short code carrying data will render this invention in opera. If the short code carries data then this invention will not work. Because for the invention to work as described the short code cannot and does not modulate data. That is taught in the specification. It is all the experts agreed. There was no expert who testified to the contrary. And this quote found the same in the prior and digital appeal before this quote. It is all consistent. The only thing that goes against it is the appellant appeal brief. If I may briefly turn to the power control patent. I mean, the power control patent. There the patent is acted as the only recovered and defined the express code of how power control information is conveyed. It specifically states that power control is always conveyed as a single bit. And it's a single bit either to increase or decrease the power. The power control command is conveyed as a single bit. It's an expert definition and the expert definition has to govern on the record rule. Well, if you look at where it is in the patent though, it's not quite as clear that it's a definition. Is that the 20,000? But there's a four or six in the red. Three three into it earlier. The light that you always language which we are focused on. And it's a column nine. And it's in the context of discussing. It's passing the power control. And it's it's a definition of sent in because the state that APC information, which is the power control information, is always conveyed as a single bit of information. I mean, they use the word always. And it's the specification is actually replaced with references to single bit one bit. It's not just this disclosure. The specification for the teachers that the power control information is conveyed in single bit either to increase or to decrease. And that's in a column six lines 47 to 51. So it's replete with references to that. I'm sorry. The this is in your free column. Callum, 47, 47, 51. Well, I don't know if two constitutes replete because there's no more than that. The more. Okay. That we can keep. And if we look at columns also column nine lines, eight to the mountain, the line 61 to 64 in the three three two patterns. We have column 64 line 11 and 12 and 13. Column 66 lines 42 to 45. We also have in the three three two patterns column 64 line 11 to 13. So the specifications are replete with references to single bit one bit. And there's no disclosure anywhere in the past and square. Power control information is conveyed as a multi-bass, which is what happens in the in respondent product. I'm quickly turn to the ninth of N zero patterns with respect to that. In the digital argument that the base station can play no rules. That restriction is not present in the patent. All the patterns were granted for the subscriber unit to allocate and the own expert testify that allocate a sign. Alicate and assign have this and use have the same meaning. The experts testimony was on the big is. I know Mr. Breast mentioned that the testimony was this. I'm big is the testimony is clear. The experts stated. I mean. Council for respondents are repeatedly allocate a sign and use the mean the same thing. And the and and the expert repeated. And the statement that yes, they do mean the same thing. And this was in connection with in Frenchman's was with in connection with this in Frenchman testimony. Is this the one on three or four nine eight and nine nine referring to is that the test run because. Enough that I think it's ambiguous, but it's not quite as clear. I was I read it that you the answers my definition of assigned is to use the channel actually question. So allocate is use answer allocate use sign yes, yes. And we are not you is that is that is that is on ambiguous. I mean the the expert was an equivalent. And this is this was in connection to in Frenchman's mind. Where the thing because the commission adopted an individual construction and the expert testified that under that construction allocate and use and assign have the same meaning. And so the commission relied on that to find. None in Frenchman. I mean to find the patent in politics, using. I said, zero. I know I've asked the time, but is the court asking questions. Thank you. I'm going to talk about all three of the patent groups for both interveners. I want to start as everyone has with the power ramp up and I want to follow up start just where what you started with Mr. Brez which was we have this interesting situation where we've left long ago. The language of the claims and there's no longer an argument that we should be applying the plain meaning of the claim language. That was a position inter digital took at the below argued vociferously against use of short codes in the construction. Did not prevail for reasons that should be very clear and now abandoned that and there's some important consequences. We believe that come from abandoning that position and and and and the first thing is we consequence we should not be led into the trap of believing that this case is about now construing the plain meaning of the word short code. There are two reasons for that. They have to do with how the word and concept is described as the invention. In column one and three where we specifically say the invention what the invention is and this is the limiting language. Is this an 830? That's right. This is the 830 patent at column one lines 2932 and column three lines 18 to 24. We are told that the invention the invention is the use of short codes the utilization the word the verb used in that sentence. So the invention isn't short codes the invention is the use of short codes and that is one of the reasons why I think for very good reasons they made the decision to abandon the argument that we should be given the broadest possible meaning to the word successively sent for admissions. When we then look to the question of whether or not the use of short code which is defined in this invention has any use other than carrying no data we are called explicitly in column seven. A sentence that reads the short codes used for this purpose carries no data now what purpose are they talking about this is the paragraph that begins the preferring body of the present invention uses a two. Step process and then describes some details of the two step process it concludes with the sentence unqualified by the statement the preferred embodiment uses it simply says the short code used for this purpose this purpose is the purpose of the present invention. Now let me make an important point about the so called preferred embodiment there is only one embodiment in the pattern that uses short codes which are described as the invention that's the embodiment described in figure seven. The reason embodied it described in figure five but it is not an embodiment of the invention it is an embodiment of the problem the invention reports the solve there is no description no hints no any evidence at all to someone reading them. The answer is that the short codes used in this invention carry data now this was the position presented to the commission when we were reviewing the record where we have a construction of the calls out by the specification for the use of short codes because that was described in the invention. Text in the pattern that says when we use short codes in this invention they carry no data. Now in this case both experts were offered by both sides opinions as to what these claim terms mean and how they should be applied. An interdigital expert gave testimony about the proposed construction using short codes. Now this was a construction that at the time he opposed vigorously and my colleague was aggressive that his explanation was that we're talking about the payload data of the telephone call versus the payload data associated with setting up the call. That distinction cannot be found in that in these pages. If you look at the record where he testified that the short codes of the package do not carry data it begins at page 3176 and the very beginning is very clear we're talking about claim language. This is a cross examination on his opinions about the scope of the claims and it is in the course of that that we learn two things and it goes on through pages. He says 3182 he says two things he says I'm going to concede that short codes don't modulate data but what I'm going to fuss with you he hasn't said is from dispute is whether or not what the accused products do is modulated data. He tries to draw a distinction between conveying information and modulating data. Those are two different concepts a red light at a traffic stop conveys information but it's not a signal modulated by data it is simply a red light. A signal modulated by data can be data that is spread by a spreading code or in the example of the accused technology information about access service modulated changed by a spreading code. What is transmitted when a signal is actually modulated is data of some use altered or changed to buy some other signal a scrambling code or a spreading code which is then received and has to be extracted. It is as if you're going to send the number 4 to the base station. You take the number 4 and add the number 6 to it and what the base station receives is the number 10. If the base station knows in advance that you have added the number 6 it can subtract 6 and get 4 but all you said is 10. That's an example of a signal modulated by data and there is no hint whatsoever in this pattern and the expert ultimately conceded this through those pages of cross examination. That only is talking about the pattern discloses a red light or a green light but there is not disclosed modulated by data. They put all their cards on arguing a factual question which was is the accused product more like the red light green light information only or is it modulated by data. There is a factual finding by the experts in view of conflicting testimony from the experts was resolved in the respondents favor against the individual and they don't even contest that finding that in fact the accused pretz preamble is a result of a signature modulated by a scrambling code which has to be demodulated and extracted at the base station. There is no hint of that process anywhere in this pattern. I want to mention one of the things about this that goes beyond what the ITC has noted. Even if the individual were to convince you that now that we have left the language reasonable question of what's the plain meaning of words we are talking about what the experts say and what is taught by this pattern about how the short code is used which is described as the invention. We have the finding by the administrative law judge that if the patents were as broad as the individual claims they are invalid for lack of written description support. That's a crucially important factor of the superior honors because the ITC rules are explicit. If some of those contingent findings is made by administrative law judge and you don't agree with it you have to explicitly list it on your petition for review otherwise it is waived. There is a list of their contention of the issues they want to review and it's found at page A5608 and 609 and the written description validity finding the contingent alternative finding made by administrative law judge is not present in that list. The ITC regulations could not be clear if it's not on that list it is gone. We are this court to say we are going to find a different claim construction and give a broader view. The first set of patents. Yes, this is just on the power amp of patents. Frankly reversing. It isn't our brief absolutely wrong. That means the pursuit of this is futile. I want to touch briefly on the power control of patents. There was a great discussion by my colleague and some questions about it about the claims that refer to multiple bits being sent. That claim language looking in isolation might arguably be amenable to a reading of either way. There is no question it has to be read to cover the disclosed embodiment of a single bit. Maybe it doesn't be amenable to a broader construction standing alone. But what we have here is a very clear statement that the power control command is always one bit. No counter example whatsoever in the patent. No hint that there are other possible embodiments that could explain the always language. Now in the interdigital brief they argue that there are counter examples. They point first of all to the claim language we just talked about. Which is neither here nor there. They have a C also site to some testimony. That testimony does not relate at all to multiple power bits. It relates to multiple data rates. Not multiple power bits. So there is not even their own expert did not point to this is on page 27 of their grave brief. Their expert cannot even point to a counter example of multiple bits in the patent. The absence of a counter example combined with the unacquirical statement always puts the public on notice that to practice this invention you always use a single bit. The final point your owners in turn to the 970 patent. The dual mode patent. There is actually a point arranged in the last three pages of our brief. Which is unresponded to by the other side. The commission got the claim construction wrong. The term being construed is assign to fiscal channels written in deliberately written in the passive voice. Not requiring the handset to assign them or the base station to sign them or some other omission party to assign them. It does not matter under the claim who assigns them. We argue below to the commission that that was an unduly narrow construction. The commission disagreed with us. It gave the narrow construction of the individual urge. Unfortunately the prior art also met that requirement. But there is no dispute that if you give that term it is plain in ordinary meaning. Assigned in the physical channels irrespective of who does the assigning. This claim is invalid. And because we presented that issue to the commission, because the commission addressed it and rejected it, it is absolutely present here for your honors to decide. And interdigital did not address it at all and it is for the library. Simply ignored it because we made two arguments. One about how there can't be an infringement under their newest theory. And they said well that wasn't before the commission. And at that point they may have it. But the second argument we made which was absolutely unequivocal. Your time is up. So you want my signature session. That will be my end of my session. I would like to start again with power ramp up. I think that the starting place in this case with regard to short codes and what they mean. The honor has to start with what this court said in interdigital one is to what a code means. And what it said in interdigital was it is a sequence of chips. In that case they could be spread or not spread. We have total agreement in this case that a code can be modulated or unmodulated. So that's step one. Step two. If we look at the summary of the invention at the first two sentences. And this is column three lines 18 through 24. The present invention comprises a novel method of controlling transmission power during the establishment of a channel in the CDMA communication system by utilizing the transmission of a short code from a subscriber unit to a base station. The first sentence. So it's about short codes. Second sentence. The short code is a sequence for detection by the base station which is a much shorter period than a conventional spreading code. In other words, a short code is just a code shorter in length than a regular code. So we do start out with plain language that a code can be modulated or unmodulated. A shorter code can be modulated or unmodulated. The only thing that the commission and that intervener's point to to say, oh, but there's this data modulation limitation is one sentence in the description of a preferred embodiment. Now, the this court held in inter-Judges one that other sentences in that same preferred embodiment are not limiting of the claim. They merely describe aspects of that presently preferred embodiment that may that are not encompassing the whole of the invention. There's no greater reason to read that sentence to be limiting of what short codes can or can't be than there was an inter-Digital one. The commission here argues and I'm not going to go into detail, but the invention would not work if short codes carry data. As we've explained, by the way, they said in a brief of 46 and 47 that they disavowed that nor relying on it today. They sought to resuscitate it. We explained in our brief with clinical citations to our experts that short codes can work if they're modulated by data. That's exactly how do you choose products work? They've got short codes that are modulated by 16 different signatures and which signature they choose tells you something. So we know short codes can be modulated by data. The argument is the ones in the invention can't be modulated by data, but that just takes them back to the one sentence on which they hang everything. There's no other reason to get there. Third, if everything in that embodiment we're limiting, we would know that a cell boundary has to be 30 kilometers. We would know that a pilot code has to be its only X length. We would know what the update rate's got to be. The ramp up rate's got to be in its downward particular number one decibel per millisecond. Those clearly are not required features in the invention. There's simply aspects features of a preferred embodiment again as this court has recognized. I think we're done. One last thing which is the written description, arguments that's being made here. As we pointed out in our brief on page 19, we did argue to the commission in our petition for review that that issue, that that the written description was sufficient that the ALJ was wrong on that. Whether that's enough or not enough is really to be determined by the commission on remand with its usual waiver and whether you comply or didn't comply rules. It's certainly nothing for this court to anticipate and decide under January. We can thank both all counsel and the cases for giving us action