to be worried about the eight seconds flat thank you or i may it please the court i'd like to began if i may with the claim construction issue regarding band with the district court construction which of corporate the specification talks about bandwidth from two different perspectives and the claim construction must in compass them but it must be consistent between the two one perspective is from the base stations perspective when it is when it requests a band with it does so without a request for something that is temporal in the specification if requested and by bytes more specifically what it does is to report to the base station direct your honour's regarding the phones or subscriber units perspective regarding bend with the first figure eleven figure eleven expressly refers to as part of the flow chart unused bytes regarding the erroneous construction or first the question of whether they be a s r that is sent in the accused advice is a quote unquote request the argument that is made here is a semantic it's called a report not a request there is i think no fair dispute that in the context of the system because system the report is considered to be a request by the base station as professor min explained the entire purpose of the p s r is to tell the base station how many fights are in the uplink queue for the phone the phone has a certain number of bytes that it needs to send up to the base station and that is exactly what the base station has interpreted it to be this is the amount of bytes needed to be set up and the base station understands it these to allocate band with sufficient to transfer those files that is the entire purpose the semant argument that is made i think is a fallacy i see in the example that we gave below it is if my wife calls me at the end of the day and says we're out of milk that is technically a report not a request but i understand it to be and it is certainly intended to be a request that i bring the milk on the way home oh no it's not it's what it's intended to be in order even stronger than a request and the context here is even stronger than that because the context here is that this b s are the thing that erickson claims is not a request because it's called a report is typically sent only after a scheduling request has been sent the scheduling request is the one bit message that the phone says to the base station which character by the way can see this request because it's call saying i need fan was to send you a request that is the entire purpose of the one bit one has to work with the other but as a matter of claim construction the term band with does not itself have a temporal component obviously inherently everything we do in life is done in a period of time or over time that's true but that doesn't mean that the term pan must have within it embedded a temporal limitation it is of course true that bandwidth is allocated over time it is of course true that the data on the phone is sent over time that doesn't mean that the term band with as part of its definition a temporal imitation that's the point of play construction with regard to infringement and that these are i think totally consistent with regard to infringement the point is that even if you look at what there would be as our second and what they station understand it to be courting professor men it is asking for that bandwidth to be sent in the next fifty on which is the time interval so even if there were a couple limitation that's how the base station understands  p s r to be requesting which is that band with that band was sufficient to send that data in the uplink queue in the next to each other so they're there consist of the sense that temporal limitations are required but if it were it would be satisfied by that i portion the second point that i wanted to make were guarding this request issue which is the first disputed fact on infringement is that if the semantics map and i don't believe they do that what matters is how the base station in this context understands the b s are it understands it exactly the same way as the milk eggs analogy it understands it to be a request particular in the confidential and that will constrain my ability to discuss its details here just as a constraint the redactions that you saw in professor means report but that is all driven by and what professor min analyzed was that section of there are and which is how they as i say their proprietary algorithm by which they decide so with regard to the first question request i don't want to make one more point regarding the semantic issue of whether the report is in fact a request in context and that is that that's a good example of it's not a request that says give me a particular band with section according to the following time it is in the same format as the if used format so it is irreconcilably inconsistent for eriksson to claim with regard to this time interval question even if there is such a limitation is there a disputed fact we've covered professor men's report which i think by itself raises a question of fact but ericsson's response i think is interesting go to that that is only one of several inputs that the base station uses to decide how much bandwidth actually to allocate to the phone and that's true but irrelevant the claim itself says that the way this works is the phone tells the base station i need to send you x plates the base station of course has many competing phones competing for its band with it has to decide how much bandwidth it him allocate to each phone and it may do so by the type of transmission whether it's time sensitive or not or whatever and the base station based on those criteria then allocates to the phone a certain amount of bandwidth it maybe the full amount of bandwidth of the phone requested it may not be depending on the other competing demands of that base station at that time but that's not relevant to the client the plane specifically just says you're going to find a request of bandwidth it doesn't speak to that and there's certainly no requirement that the band with first hand over message not on a random access you know what mouli and just some standard itself make clear is that you do not need synchronization in order to send that first access burst over the dedicated channel access to you know the east what happens well there's two parts to the question we have for the purpose relevant i think to the claim is is it possible for that first handover reference quoting from only he sent the mobil station is forbidden to transmit data which is on a dedicated you know until the new timing is new timing advance in other words the synchronization is an issue the data exactly that's not the handshake that's exactly what professor had said elsewhere as well and the fact that and one of the points i wanted to make is that on this issue the district court improperly resolved credibility and spiels both of them said in no uncertain terms that synchronization has to ours i would put it differently i think that what he's relying upon is a portion of professor gates testimony which is as read inconsistent with all of the rest of his one stray comment or a couple of stray comments in a long deposition against ten other comments in the same deposition that are inconsistent with it and ten other statements in his declaration that are inconsistent with and that creates at most a credibility question  determined that the four thirty seven patent was invalid and that the band with patents were not infringed indeed the district courts only knew it was in badly misreading and indeed over reading this court's for earlier decision about the scope of the picture of the agreement the settlement granted against us based on this legal conclusion that the triggering patents and the asserted patents were the same and you know that's just wrong i think i mean obviously i can't tell this panel with this panel meant in its earlier decision i can just read it and it's a decision about a clause and the clause when it talks about patents only talks about the triggering paths and there is a separate dispute between the parties in the first case about if the clause is triggered what's the scope of the license that's granted and the way i read this court's decision is that you hold that is triggering have to has to be a pre agreement patent and that all the other issues that the parties were briefing for you don't what seven point one sets which is once you're triggered then there's a right on behalf of my client to get a non exclusive rights license and it covers the products and let me products and that's a defined  what i see is with reference to the patents it covers the product what with all due respect your honor i think you're reading those words into the scope part of seven point one seven point one says once the triggering  my friends on the other side don't even have an argument and in this round briefing that the triggering clause isn't satisfied by the seven fifty nine patent that asserted against you n t s his products so we're at the this for products so just stop there for a second it doesn't say with respect to the triggering patent law it's wait time and so i think they can actually get they can actually give a license to make except under one under what can they give a license to m because i don't have the right to allow you to make maybe you need f d a approval maybe there are one hundred other companies with patents on your product i can't give you a license to make all i can give you is what i have and the only thing this sentence is talking about i particular patents that i have with respect your honor first of all i mean i want to get back to this point but first i think that would basically read this this provision to be almost meaningless but second of all it's in the sounds like an argument  it wasn't you run or you didn't get this provision it was made it was made and it's one of the arguments that you didn't breach and i don't know but ok but it was made by both parties and i think we overwhelmingly have the better argument pursuit and with respect to your question more broadly judge moore i think sure they don't have a right to grant us a license to make irrespective of other federal laws what they have or it is going to other people's know where does it say that we're does it say that doesn't your honor but it doesn't say in that language into no i don't have time which is not there with all due respect your honor i don't need to read that and you need to read and my friend needs to read in with respect to the triggering patent and that's not in there it's his problem just it's a single sentence mr comment that's a one sentence and that one sentence begins by talking about patents they already own whether you agree with that or not that's where we are based on our own president absurd at all your honor if you're talking about somebody like how can i give you a license to make something that could be other people that have patents on it i can't insulate you from infringement absolutely your honor but if you have a whole basket of patents back there and you give me a license to make argument that they're making a different argument than the district court making he's making the argument you made the argument the assumption that this only applies to the very trigger patent now if you're saying that it applies to all of the whole patents but only the the basket of preexisting patents that's an argument that they don't haven't made and i don't see how you can read that in i mean that now you're reading kind of language in with a caviar whereas i mean this is a are there elements products that could just be a component of the compliant products in other words could that just be a component it could be a component but if you wanted to don't think so i mean i see the point you're making but i think that you know here and i think in other places in the agreement but i'd have to go back and look at the whole gamut i think when it's referring to element products including you  for products i don't think it's you know that that that including is like a modifier of the element products and i think that would sort of defeat in context the distinction because another way of putting it is i think the way you're reading it it effectively read out any products including because nobody's going to think that we're going to get a license to something that you know would switch with a restaurant i think so it's clearly got to be l m e that we're talking about so i think what it's saying and there was some ambiguity the way he dealt with it the first opinion so we went back and asked him to clarify it a clarifying opinion where he ruled against us on summary judgment on our chemicals and so that there's your answer we you know amended our notes for people to take that to sort of develop the case both against it and against the products more broadly i mean they were very negative reaction to that these were their lawyers they spent and we got the ok ok ok but my only point other than to give you a little wind up for this was to make the point that hisper products there are times when it uses the element products more broadly which is why that's also a defined term so i don't think that i don't think you can say the whole agreement is just about you know ts his products i think what i would say though is where i was going with this is just to say i don't think it's all that anomalous that this provision is drafted in a way that says look if you start asserting your other preexisting patents against this technology what we want is  actually my understanding the facts very sure but but at the time of the original agreement we were looking for a license a portfolio license of exactly the scope we're asking for you today and exactly the  scope that they gave develop their and so so we're not asking you for something today that we didn't ask for in the beginning and you know it as you would expect when one party comes in and says we really want these mccool lawyers will will will lay off you with these four patents and we come back and say that's not nearly good enough if you want our lawyers who were on record as basically saying if we can come to agreement they're walking away from while so we were in the driver's seat in the negotiations we said we want the whole thing we want to portfolio license that would that would cover everything and where the parties negotiated to is an arrangement that i think in the context that makes perfect sense which is all right we're not sure what's in the basket of currently existing patents but if it turns out that you're going to search those against your own ts hisper products then here's the deal we're going to basically get the license the portfolio license we were asking for and we will give you weil and and advantage that we wouldn't have if we were just negotiating this right now on a blank slate which is we'll let you essentially pick the terms so you know they don't have to go out and make this license with bel air and if i were advising them to the light of this agreement i would probably say don't do that make it a perp roddick license or something so you don't run into this clearer i think that's true as a general matter your honor i'm not sure i would have written this particular provision that much differently at least if what i was trying to accomplish is what i'm saying they were trying to accomplish because again with all the after this oral argument you wouldn't have written this provision differently even now at this point in our discussion well i mean sure i mean look but put your sleeve when your other comment and there i should add a comedy to address judge o'malley i mean look what you're saying is with the benefit of hindsight based on this or argument sure but what i'd be doing is i would be adding words that with all due respect i think would be to put superfluous because when i have a license or products that have don't you think it's as including your t s s p a products s h s p a technology that like it could start making dishwashers and if we land has a patent on a dishwasher and some triggering event occurs in a bizarre universe you've got a most favored license now on the dishwasher to make sure you understand the logical consequences of what you're asking for but absolutely aren't but you know what if bellairs got a dishwasher and there are no dishwasher pens but if they have a dishwasher they get to do it and they get to do it all with a license for else it's not a free pass it's a pass on the terms that they decide for themselves based on their negotiation with another disinterested party and with respect before you think that that's like too much to ask think about the dynamic of best gets you in particular which gets you back into a pearl evidence scenario for the contract because i'm certainly not going to sit here and evaluate the context of the negotiation that's not part of contract or predation for me ok but i guess the reason i think it's maybe relevant to you right now is just is i understand this colloquy i've charitably to my side i think what it's saying is yeah you might have a point on the plain language but that just seems like they've just given away the store and that seems crazy to me and i'm just telling you and if you need to send this back to the judge for him to get like you know more depositions on this it's a better result than where i'm sitting right now but the reality is that's not a crazy result given that bargaining power my client had the other aspects of this case and we're down to five thirty five and we're still on the most able question but i'm happy to move on and i take i take the hit to do just that so i will but i would say that we any of it all right i mean i just you know i'm struck by this court's cases to start with claim construction but once you construct it in the way that the district court did then i think this becomes a very straightforward case because the what we have is a buffer status report it's not a request and the difference is not just semantics because at the broader level here you have one technology the tries to do some of the allocation decisions with the handset you have our technology where that decision is being done by the ba station and the difference gets to the whole difference actually between reporting a request and it gets to you whether or not what's being requested this band with and it gets to whether you can identify it in the request and i don't think you can do any of those things and the reason i think it does start with report first request if i get a process where ultimately somebody else is going to make a decision based on an input what i'm looking for is a report of that input and that's what the buffer status report does and the thing that makes the milk sort of analogy work is because he's assumed that you know his family's got unlimited resources to buy the milk if they were resource constrained as all of these systems are and somebody said i of milk than that we develop a process about whether you can afford the milk whether you're also out of eggs whether you really can just respond in that one to one basis and that's the fundamental difference between these technologies those decisions are being made by the ba station in the accused products in the l t e standard and that's why it is just a report and it's not a request and what it's report of is bytes and those bytes are just individual pieces of data they're not  transmission resources and they're certainly not what is the point the the reference to the if it's not required then it's i mean that it's starting a process that in that i mean that's that's that's it's reason i'm not saying it's irrelevant to our quest but it's not a recurrence it's a report and i think that gets to this difference between if if if you're a product that basically is doing the calculation about exactly what it needs and when it should get you make a request if you are giving it input to the decision maker who's going to decide it based on a multi factor algorithm which give it is report and obviously get the buffer status report even when you have zero and that doesn't seem that seems like report but your doesn't seem like a request in the band with that request the amount of of a data request and that's just not how the buffer status report works that work is done in by the base station at best you could say that the base station drives it's ultimately allocation from the information the buffer status report but identify in and derive from are very different concepts and they map onto the fundamental different concepts between the two pieces of technology the two approaches  standard is is there a genuine dispute of material fact in the fact that you can get an expert to say something conclusory is not i don't think enough to create a genuine issue of material fact and i think on this particular point i mean it but you know that's the fundamental difference between reporting a request and it maps onto the technology because if i'm just looking for input from somebody i ask them for report you are sort of a cost i'd like to come home with seven people that's a record two it is and i think you know and i have to know well when and why i mean you know maybe some restaurant i don't have to ask why but at least have to ask when and that's again i think it maps onto the difference in the technology if you're expecting the ansett to do the work you want to request because they've already done the work if you want to base station to do the work based on an algorithm and a bunch of other factors restaurants i call and i say i have people and tell them how many because that's what you know happens here at the restaurant says how many you say seven and that's what happens here you've got a back and forth a ping tells me  that's how much being with you six seven the restaurant says here's a plot for seven people to eat and tonight if you'd like to come does not feel like your transmissions have amounted to a place because that actually better than mine actually corresponds to the back and forth that goes on here between the two percent b s that doesn't sound like our class no i mean it's sounds like a report and it seems like you know you expect the restaurant to figure out you know they'll look at the look at their resources but they'll also look at who else is requesting they'll also look at a variety of that of other factors and then maybe they'll tell you that you can't or maybe they'll tell you we can come at nine but not at seven which does get back to you know that the idea that you just have to have the time component to this or does it make can it make any sense i mean you know if i tell you you know if i ask you how many cars can be on a highway mean if you don't tell me it like during an hour during the day during the week it's a meaningless question i actually thought you meant the same time well i didn't actually see a time component in your critical question but i get it yeah well i mean i think the answer would be you know you would depend on whether it's in a specific time or essentially put her finger on at least an aspect of this which is look you know the district court judge essentially is asking the questions what would a position a person skilled in the art practitioner skilled in the art take from mouli on this question of whether or not when you have an asynchronous hand over whether you can do it we do it on the rapture where they do it on a dedicated channel and everybody in front of them are expert men and the two other later patterns all of them say you do it on a ranch and when pressed they tell him you do it on a ranch because there's no other way to do it because go on the record go on the rach and then he later says ok well you know you have asynchronous you have synchronous and then there's one kind of access first it goes in a dedicated channel i think he's clearly referring there to the s that i think that's maybe one place where it is but i guess you know that the way i've read mouli anyways is that if you if you read all of the various references you know either makes a nonsense statement for ten that they think is so critical or it makes it's although it's a little imprecise it makes perfect sense which is the way this works is that you essentially can't use a dedicated channel until you synchronize and so the general rule is that access bursts go on the random access channel and there's essentially one exception to that and that's when you've precinct arise and in that circumstance you don't have to have the access bursts on the rat you can send them on the dedicated channel but never the other circumstance if you try to do it in the dedicated channel it's going to get get you exactly what you're trying to avoid here which is you're trying to avoid dropped calls and confusion of people being on the same channel and the way you avoid those collisions if you have a special channel that deals with situations where not synchronous and that's the rach and that is what you need to use for the asynchronous handler and that's why you know when min is pressed on this in his deposition and he's cross examined he's does say repeatedly and once it's in response to a hypothetical but it's a fair hypothetical and other times it's just flat out there's just no way to do it you need to have the synchronization before you can use dedicated channel and looking know what is that yes and say there well you know that that particular specification i mean you know that i think there's some you know ambiguity in that specification to be perfectly honest because you know if i'm thinking about the same plate sa place it says you know on the main d c h but then it says that you know it's doing it in a random mode and does not follow the basic format so i don't know if that's just a different way to sort of talk about rats i mean you know i you know the responses one is you basically admitted it's like ambiguity squared we've got ambiguity in the underlying document now you think i should rely on all the deposition testimony even their expert which indicates that that sentence can't really mean what it says it means because if it does it's sort of inconsistent with the technology and how it operates and i understand all those facts but then it does there is a reference to this yes i'm stuck on twenty four twenty four and this you've just admitted also has what appears to be some ambiguity because of the what you'd like to see happen in this case so i'm a little nervous about the extent of the ambiguity on of that question yet and here's the thing your honor first of all i mean certainly i don't think it was i didn't hear you saying but it's to be clear i don't think that this is an in the u s in the way that my friend wants to have it say but you know what it says this message is the only case we're short access purser use on a dedicated channel i don't think she's clearly covering both in an unambiguous way and then i think as the district court did if you remove the as a whole conundrum that it doesn't seem like there's any way that you can have an access burst over a dedicated channel before synchronization he sees that and then he sees our experts say that he sees minn can see that and then he looks at these two bursts until it has received the actual timing advance to a plot now the question then put it so that establishes that the handover reference a set before the timing sequences are provided and so then the question is handover reference this message is the only case where short axis burst for use on a dedicated channel it's not just one sentence it's saying explicitly that's how it works but that's it that's wrong right now no you're your x and the expert on are two figures that should be read together and those two figures lay out a process a complicated one of medically but those two figures lay out to make quite clear that the handover occurs before the time of sequences the timing sequence is around two for  with that and do not that's this is what two twenty three ninety nine and twenty four and i mean and that figure is not to the contrary can you cite to be any expert testimony or anything other than your view that there is some like the notion that you would be asking us to send something back just because you think there are some a few sentences in a prior art reference that you think are confusing when you know full well that it's physically not possible i both that's what is set that is not confusing and to say this clear convincing that that clear statement of mooley as long as a matter of law i think that term summary judgment law an rationale of your decision clearly decides the same question so for example the main argument made by erickson is the product language and that is exactly the same argument that they made with regard to the covenant not to sue and your arse rejected that according to matt powers i feel like i would need for all evidence aside i thought you didn't need parole evidence in the first case to the side exactly the same question the coverup not to sit it was the same argument products being used based made exactly the same  there that they made to you here and you did reach that ish on the governor not to sit for exactly the same reason that you should we should hear and it's exactly the richly reasoned judge moore that you were took elated which is it's a single clause it's one sentence you can't read them as if it were two sentences one totally divorced from the other and read as a single clause the same argument that your honour's used to decide the first question you can send it back you decided it that same argument applies here with equal for you and your brain if you argue that well maybe what we're talking about in this clause is that you could have some products that are complying that would still like that and that's what we're having a license to that's what we would give them the most favored license to what we're giving them is if we were wrong about the fore if there were because i thought there were just four that simply those that are compliant same reason you did in the covenant not to sit and same result based on the same reasoning you have same language that i was products based as well ok well let's just assume i don't remember based grant and that and the only discussion of patents that's relevant is proceeding in the same sentence and you have to read it as a whole you can't separate it and read it divorced from the context of the part that came before and company and the circumstances were obviously quite different so it was a it was in consequential meaningless company and they did a deal that wasn't very often at all apparently i can't speak to that ok we gave him five minutes thinking that yes we'll see if i needed but i mean i you know limiting myself to the cross appeal rivaldo i think i'll really focus on the one argument he made which is that you've already decided this in the context of the nonassertive provision and i think that's wrong for a couple of reasons i mean first of all it's i mean you know and i've gone back and read that pain in a designer stand the nonassertive are going first well you know the text is different and in that context because you know i'm just not sure that you know the damages provision would have much force if you accepted his reasoning i also don't think that the provision would have much force and i'll get to that second but i do want to say you know so first of all the conflicts different is in the not a certain context if you accepted eriksson's reading of products you create another problem and interpret that to the agreement as a whole and that's just not present here at all so it's not the same reasoning second time around the second thing is the language i even the same and again one of the problems i think in erikson's argument the first time around and i guess it's easier for me to say that because i wasn't here the first time around is you know that the language is different and you know in the middle of  cert provision there's a reference to element element products or components there of infringe any while in paths and you know that's one instance where when you're talking about the products and you want to tie them to specific patents you add language that that and you just don't have the same language when you get to the you know the critical provision here the n f l where the talks about the products unmodified but it's worse for them that it's just unmodified you know it's in capital letters for a reason all the references to capital letters are to define terms if you go to the definition element products means what it sounds like it means it means and let me products and their principal protection against giving us a portfolio license based on this triggering pattern is their ability to control the terms that they negotiate with with any other party and the point that they've been given even when you keep using the term portfolio license that to people of skill in the art of portfolio license is a license to all patents related to this portfolio i e this technology like a standard or something ok but the way you've suggested this clause should be read is actually ok with the dishwasher discussion your idea of a portfolio doesn't comport with your proposed interpretation of this clause because a portfolio is understood to be a portfolio of patents related to a particular technology but if you said i need to read the six plus so broadly that if there is a triggering patent then there are unrelated patents pertaining to dishwashers you also get a most favored license treatment for those two those wouldn't be in the same portfolio the dishwasher patents could not possibly be in this portfolio in the way that normal people would understand that tough at least i don't think so but do you even that's why i'm having trouble with your argument because  creates such a law it's incredibly broad reading for the us and just what we're not in the dishwasher business bellairs not in the dishwasher business so in the context the portfolio licenses comport it does but in that's a different space well i think they're all principally in this case but i could be wrong about that but the point is we're not asking for something that they haven't given somebody we're asking for what they gave bellaire and in that context i mean again i'm not quite sure at the end of the day and your question almost sort of sounds like in the absurdity can it that they just couldn't possibly have given a license this broadly but then i mean we're not asking for anything they haven't given and they are so it's not that the contract is written and quake to be observed because it's so broad it's whether i should use the first half of the sentence to modify the second half of the sentence you say no you want me to treat them like two different countries and he says the second have the sentence is limited to what's at issue in the first half of the sentence and so to be fair i don't think it's in the absurdity camp i think it's in the camp of does a think you read patterns through to limit products to only those products that include that patent and if you look at the agreement as a whole there are other places where they talk about products involving the wyland patents by meaning the four and just to finish that my friend mr powers talks about like whether this fifth patent could arise as if it's a hypothetical it did they don't concede that there's a trigger based on a preexisting patent and so it's just a matter of interpretation that language and when it incorporates a defined term