brief mark confidential at all your honor when we marked our brief we marked it and sent h t c's counsel and asked them to the designate more portions of it they informed us they could not in part because there is hearty call that had some objections i understand that since then they work with caught and be designated more in their reply brief but i'm not i'm not in a position to say we can be designate what is in our read brief because that's really a speech to see and confidential information well at one point i have not labeled confidential of the version i have says pelleas confidential responsibility for  improper confidentiality markings in the blue brief and i'll give you an example on page fifty five there is it says that was arrogant because the recognition of equivalency by skill persons is significant fighting cases and part of that sentence is mar confidential that can't possibly be confidential we've sanctioned people for that kind of confidentiality mark your honor again counsel conferred about the so i think there was a concern originally that this is referring to the clock on a memo well it doesn't make any difference in this sentences is just reciting it well known legal principle you're not supposed to mark that sort of thing confidential so whatever the two of you decide needs and the random or pseudo random number now the claim language that we're dealing with here there are really sort of two limitations the first is that the evaluation unit asks when information signals have access offer zation data whether the access authorization data included access threshold value for comparison with a random number that limitation was construed as ordinary me the next limitation is the evaluation also ascertains as a function of an outcome of a comparison whether it's unable to out the access now we contend there's nothing in the claim that limits the comparison to a direct comparison in fact the way the claim is written in passive voice as a function of an outcome of a comparison you agree there's no direct comparison your honor i would i would agree there is no direct comparison in the sense that only the access threshold value is received no formula lies the access threshold value is put into a formula so on one side of the equation is a number  have to do a direct comparison now the only evidence intrinsic evidence the h c c cited to support the direct comparison argument was the embodiment and in the embodiment what the patten talks about as you send down what they call given one three nine zero one zero zero zero zero one one zero one and they say the access threshold value is encoded in binary format form by means of the access threshold value bits and then they talk about the priority value that says for the access their actual value s a value of eight thus results and then it goes on to talk about the eight being compared to a random number now we contend that right there shows that there is also in the embodiment not a direct comparison of exactly in only that which was received from the network they don't compare that pattern to a random number bit pattern instead there simply an example in fact the specification says earlier in column five you know it just gives a for instance the access threshold you can take on various numbers zero through in this bit pattern sent down to represent the in and then it converted into a decimal number for comparison to the random the trend as a straight translation right when you say that your honor that's true but when we think about it mathematically there's a formula way we pointed out that in this art people recognize and see all kinds of examples where patterns don't get converted one to one but can be set in any number so in fact as the pattern says they've included the eight as a bit pattern but they could use that pattern to represent some other number and it it patterns the only employee right in terms of doing a comparison with the random number well the bit pattern gets converted to decimal and then there's a comparison i think there are question is data it's used in that in fact there are in other environments your honor they're also within the scope of claim thirteen one of which is their priority values nobody in the in the zero they don't use anything from the net for access class one they use the dynamic persistence level from the network put into a formula calculate a value that values compare of a random number for levels two through eight they use the dynamic persistence level plus a scaling factor also sent from the network to calculate the number to compare to the random number in the scaling factor is not mentioned here in the plan no but your honor i would say that within this claim covers the embodiment in which two things are sent down from the network to make a comparison a the access threshold value and be the priority value so the the claimant compas is doing more than just comparing an access virtual value to grant or deny access and as our expert explain all the scaling value does for access classes three start to through eight is simply apply some of different some different constants to distribute the numbers so so in our view the claim construction with the air here in terms of the direct comparison you know they they say well  suggest that that's a very slim read given this embodiment and then effectively the direct district court read them by now but it is understand they're also arguing that this number is not used to determine access at all but also argument and made an analogy to the you know airport lines whether you get access to the airport versus what your priority is but your honor that was in the context of distinguishing the doctoral programs argument that we have for this issue in our position is that dr matter study provided ample evidence for an equivalency verdict here so so in fact if they did he refused to notion that they don't use this comparison for access purposes well absolutely or if you look at dr matter studies testimony of a fifty nine twenty in a fifty nine twenty one a fifty nine twenty he walks through his analysis as to  so your honor if you look at a fifty nine eighteen this is where he is addressing elements it just had no five an evaluation for ascertaining he's addressing the entire element there and discussing i believe there are some similar statements elsewhere in his paragraph here you honor i would like to move on just to the equivalency point we covered these points in our brief but we think the major error in the district court's decision was that she essentially read the equivalency test out and  the questions in of the day is whether any reasonable jury could accept that evidence drawing inferences in our favor i think it was improper for the district court to weight the evidence and discount the evidence it's admissible evidence it's probative on the issue of equivalency we would contain its admission there would be a fight about that at trial but that's for the jury away not for the district court and the mission that the legal standard to satisfy your honor if if you look at h t c's brief on this point they actually evidence that speaking about the legal standard but when a skilled person looks at the numbers they're using the dynamic persistence level calculation and says that could be equivalent to an access threshold value that's an admission from a skilled person of acquittal unsee you could you could argue equivalency just means addiction or definitely has many different definitions and something can be equivalent in layman's terms or even in engineering terms with that would be equivalent for the doctor in the first i understand i understand your honor has cases in involving the score has cases involving the five ten k submissions to the f d a i would submit this is different value which is the value calculated from the dynamic persistence level through the formula could be considered as equivalent to an access threshold so we would contend this is directly relevant to the equivalency i have a few minutes left before i'm into my rebuttal time and i do want to address the two sixteen patent briefly i think our essential contention there is that the district court unequivocally changed the claim construction now in reconsideration a district court denied that something that you're not now arguing that the district court's claim construction finally articulated is incorrect no your honor we do contend it's incorrect in all of that is based on an argument that there's a specification disclaimer now we've cited the cases in our brief with respect to one point two how it how was the going construction changed because the court said first thirteen a sixty five a one through eight and figure twenty two of his report where he explained that the way they rotate the samples they are utilizing the phase course in determining the start  frequency correction for now well i don't understand what is his affidavit or declaration have to do with the change in the sleep instruction my question to you was how is the claim construction change no one point two ok so he testified that the claim construction as articulated used the face course was met and we submitted evidence on that the district court rejected the evidence by saying well he didn't say that the phased course that was utilized was first capsulated by calculating each and they not understanding how does how does the show a change in the clean construction what did the district court say first and what did it and what the district court a what does it say how did it change the claim construction it changed the claim construction by saying the face course had to also be calculated with faith ingles that's a change in the claim construction otherwise that point irrelevant to assessing summary judgment where we've got expert testimony that they use the phase cores how are you saying that you use it you don't have to calculate of a force in order to use it that that is exactly that is exactly what our expert testified he sa don't have to calculate each phase angle within the phase course in order to utilize it because the frequency correction burst has a phase course pattern that the accused devices recognize and he pointed to the evidence of that and said you don't have to calculate each phase angle to determine that pattern all you have to do is look for the pattern in that sense you are utilizing the phase cores the district court said that evidence was not relevant because i'm going to construe phased course as requiring calculating each phase each individual phase angle within the phase force that is what we say is the change construction and what a c c says is justified based on the disclaimers in the specification we say there are no such disclaimers when you actually look at the specifications there's nothing in the specification distinguishing art there's no prosecution history distinguishing or so if we conclude that that the ultimate construction that that the court docket was the correct one and you're left with only an argument that somehow it was changed and you didn't have an appropriate opportunity to address it what else would you what would you have submitted starke supplemental report with our motion for reconsideration we came in and said hey you change the claim construction in two ways give away just so that i can see your point it's not that you needed an additional opportunity to address the claim construction as i understand it your point ultimate claim construction was going to be we went to a claim construction procedure she had originally rejected the notion that you had to calculate phase angles for anything they may try to put that in the preamble part of the claim she rejected that she came up with this correcting face for construction we say that's incorrect but then at the end of the day on summary judgment she said phase four for cars calculating savings we submitted dr stark's declaration at a seventy seven  say look if you're going to change the rules of the game as we tore at the summary judgment here we need an opportunity to supplement and provide doctoral equivalence evidence because for this particular limitation we agree we cannot show calculating every single one of the way that was one and limiting and if you look at his testimony that i cited he also says they utilize the face force now the patent says that  the patent explains that the hundred forty two fixed bits signify a phase cores and if you look at the statement in the patent what they are talking about they they talk about without taking account of face regression all that's talking about it it's three hundred sixty degrees you have to kind of adjust for the fact that it's a cycle that's repeating ok so what's a patent says is a phase course is the pattern of statements in the specification for example palm three why not in the synchronization method of the inventions is based on evaluations of continuously running a angles i agree that i agree the specification says that your honor it says the invention is based on does not say the invention is that is a subtle difference but it is one this court has found does not result in a disclaimer moreover claim to we've said that based on doesn't isn't the equivalent of saying it is the invention i i think you're correct that your are you've said similar terms for example the legal far shine case that talks about the principles of the invention the rambus case that talks about the something more you need to have distinguishing the art in the specification or in the prosecution history and you've got to look at the overall specification and as we pointed out the specification here says it's also useful to look as to why when they do you rotate the phase of the signals and do the summing procedures that are discussed that is utilizing the face course because only the hundred forty two fix bits will give them the signal that they found the frequency correction first that was his testimony the district court discounted it but that was sufficient to get to the jury even if you were to prevail on this particular point with respect to two sixteen patents there are at least two other findings of known infringement by the district court which would be individually sufficient to support an ultimate conclusion  there are some figures at page a seventy six thirty three through a seventy six thirty four and the figures are explained in a sixty five thirty nine and dr stark's report in a sixty five of six ok so if you would if you would just look at those figures so a sixty represent a range in which somewhere within those samples there is an f c b we don't know exactly where and the reason for that is shown in a seventy six thirty three if you look at the top of the diagram w so somewhere within that that sample of seven you know the s t v starts but you don't know exactly where that sample period is in fact a range it is not a point in time or a time index it is a range of samples that somewhere within the range to s t v will have started the argument you had in your four three yes your honor and in the in the reply br represent that can only represent seven bits or four bit depending on whether it's a t r or qualcomm device so it's doctors dr stark's description of the fact that the end out certainly certainly some of them are input but the ultimate output is validated by the fact that it can only identify a four bit range where a seven bit range where the f c c rules or else what you say but do you have expert you look at a this is where he is describing the process that resulted in the family if there isn't your honor i can't represent that he said the word output i don't understand it to be a limitation of the claim but he did testify that it only identifies a range of four to seven bit product you can start with two and six given that's where we just left off i want to first know in response to the question about this standard of review the main point that mr stossel seems to be arguing is that the judge can change your claim construction  after having a full day mark and hearing a full day's tauriel and an invitation from both parties to file motions for reconsideration on the kinds of struction and i made it very clear that one point two had to do with utilizing the ses course and if there was any doubt as to whether utilizing the fees course i learned that she didn't say using phase angle right right why did utilizing a corrective face course necessarily only  calculating faith ingles calculating and recalculating the the issue is a phase course is not downloaded from the network what's coming down from the network is just a waveform that you detect and then it and you get a bunch of the tought i n q samples ok from that point you have a choice you can either use the magnitudes of those i n q that i use to do the processing that you need to accomplish some kind of synchronization or with the invention of the patent is we won't will throw away the magnitudes by using it as a ratio instead there's a difference between you know five over four is equal to one point two five but we get different information when we say five over four versus one point two five and that's that that's the quintessential difference here you know another way to look at an easy math problem if we say eight times eight people sixty four i didn't utilize exponentials even though another way to do that would be to do the power three times to the power fairy and then add up the exponential but the point is it's math but it's math it's done in a different way well i understand that but that doesn't really address the question of whether it was a change in or in construct angles and what she was persuaded by is the fact that when we depose dr stark i think comes expert and ask dr stark how to define what a phase course is is it fair to say that it's a sequence of phase angles he said yes that's  she relied on that testimony at that time that's right your honor and i believe that that's that's in her summary judgment opinion and and so we so she said that in order to get full faith course you have to captivate the faith angles in order to create the course i understand how she got there and she went through back to say why she thought that was the case but their argument is that that even if it's true then that there is an erect infringement that they would have presented don't think they could prove that's true maccollins even if they had summited evidence but the court found properly that they had their chance that they submitted it actually what you're what you're saying as i understand it is that while she didn't use the word space angles in the original  infrastructure the testimony that she cited of their witness talked about the use of phase angle so they have notice that phase angles was part of this and if they wanted to present doc of equivalence testimony directed to that point they have the opportunity to do it that's right your honor that's right you are and they actually submitted after they submitted after she submitted its rebuttal report on an infringement they submitted supplemental reports but did not address this issue and they claim that they were surprised at the end and the judge disagreed that there was no surprise here they were on notice and they were trying to do an end run around the judge a summary judgment and this this concept of a phase course and the fact that what if they ask for a says a something that's one thing was just awful mention is that the prosecution history is a blank on this and there's an issue about that they weren't distinguishing over the prior art but what's important understand is that the patent itself is distinguishing over the prior art so if you turn to you turn to me appendix a one twenty six that someone says at the very beginning at a one twenty six column one lies fifteen through twenty it talks about the g s a recommendation that was already in existence and then the point of the just a recommendation is that you were going to maintain you that counters which was cumbersome and so they say that it had strict requirements relatively great complication and expense then in column two it says you've got all these timing of slots t d m a frames traffic channel frames that all have a common set of counters and they run continuously and then they say g s a recommendation sets when they say that in the prior art you had to maintain base counters a time encounters but here are the synchronization method of the invention is based on continuously running phase angles and it says that three times in the summer the invention issues your honor the last point is at a one point nine it then says we're distinguishing over the base of the time counter method by doing this with phase angles instead so with regard to to claim to there's two issues with it number one claim differentiation is a presumption that can be rebutted and there's plenty of cases that say that we take the patentee at his word when the patent he says with the invention is that's in the independent claims just just like the honeywell case where there was an issue about what a fuel system component meant and it was decided that it had to be the fuel filter so the doctrine of clinton for and she ation is not an end all rule it would be unfair if it were but the other problems that claim calculating the phase angle that doesn't make any sense that that's actually directly inconsistent with the teaching of the pattern the teaching of the pattern is that we're going to use the phase course in every single sub step that's how the sub steps are to be accomplished we if we did it before or as a separate step that wouldn't get us anywhere your honor some of the other points that were made about there are the i sense talk about the range for a moment  different first at different times as part of different procedures and that was word for word i believe what the district judge said so this we touch did address that the issue here of the claim construction ok exactly we proposed i believe the same verse construction for two point one and that that was not adopted i think that's what the issue is but under the court's going construction let's start with just the wording of the claim it says with and it puts it within the same step that's got to mean something and the district judge said it means while also we're going to do we're going to conduct a fine frame synchronization while also conducting a fine frequency synchronisation  why does while so mean on the same verse we just look to the patent when it describes the burst structure and it becomes clear what's happening is when your cell phone is on and you're talking to someone he can't be exactly simultaneous two processors within a phone which on i think anybody does so the issue is what would this actually means in accordance with the patent when we say while also and it has to mean on the same burst because otherwise you don't keep getting bursts when you're in this this neighboring cell monitoring phase you've only get it once every twenty six frames you get to listen to another neighboring cell and there's lots of the ring cells that you have to listen to so that next time the phone gets to listen to the same neighboring cell could be hundreds or even thousands of frames later and so if we were to say that that these two things fine frame synchronization with line frequency synchronization that that that could be accomplished even though they happen hundreds of frames later even though in the meantime in between those two where we've been on a phone conversation and we've had hundreds if not thousands of normal synchronization procedures that the phrase would be absolutely meaningless not only would with have no meaning in the claimed term but the fact that they were cited in the same step would have no meaning to the reconstruction that i become as is arguing is not only inconsistent with  specification it's directly inconsistent with the claim language itself in two parts or one the reading the limitation right out of the claim they're saying for them it would be that three point one three point two will be three point one three point two and three point three they're taking one of them and is putting them in a different step and the reason why that's inconsistent with the claim in other areas is the initial synchronisation steps one point one three one point four their fin them the other argument though is that if extended synchronization means anything it means that you're taking these parameters and you're using them you're using them in order to accomplish handover that is the whole point of this section and it's the patent says so add column eight when it says that line thirteen by means of this extended synchronization certain special cases of an issue in the middle synchronization are avoided in this case it is basically assured that upon leaving one radio cell the base ation of that cell will not interfere with the continuation of the connection and english what they're saying is the whole point extended to go to the action is that you get the information from a neighboring cell and then use it as you cross over the boundary so that way you don't have a license why isn't that the same as your product getting information from the neighboring cell on a periodic basis so that you should prepare for the process right so what's happening is we have we have evidence i'm stupid evidence from qualcomm's engineer who's who did the circuitry who did the code and he said we expressly considered whether to use frequency information from a neighboring cell when we go over to that cell and we decided not to use it it would be very difficult to code that and it wouldn't be effective because all the frequencies in one thousand nine hundred but you're not into my office are you can see that you do the information from the neighboring cell and you gather it is for us we ok the standard requires that you take power measurements of the different neighbors so that way the and then report that back to the network so that way the cell phone can know where it is if it's getting too far away from it serving cell and getting closer to another and it's time for the main network to indicate it's time to do a handover the issue is whether you then use these to accomplish the handover and the undisputed testimony is that we do not we do not because we don't need to because all the frequencies of all the base stations these days are very close and they're close enough of gathering the data from the surrounding stations if you  where you're using it just to get power measurements so i need to tell you know if you've heard of cell phone triangulation and ways that they can figure out where you are is being used to show where you are it's not being used to actually synchronize when i get handed over it's just being used to tell me i'm getting closer to this cell tower than i am to that cell tower and that's what's required by the standard extended synchronization is more than just taking power measurements it's ensuring that the handover will be successful that's what the specification says that's that's that's the extent asserts it is a sion is the terminology that they came up with only looked at specification of this patent it says this is how we ensure a handover will be successful should i  move on to the range data or the chip ok the range point i think is pretty simple there is a difference between if i know that i run about an eight minute mile i can say i run about an eight minute mile plus or minus a certain amount giving some degree of imprecision but i'm saying i think it's eight minutes i've given a point and then i've indicated the relative imprecision associated with it that's different from saying i'm going to run a mile between i should be more tha fascinate minutes between seven minutes fifty seconds and eight minutes ten seconds that's a range i'm now specified two points the question is can you take the first information to arrive at the second and you probably could i'm not saying that they're completely different concepts but the patent requires that you you find this beginning point in the center point that's the only thing they teach and when they say course frame synchronization that's that's a degree of imprecision not necessarily and definitely look to the associated with a degree of imprecision and that's what he's pointing to here saying we know that this corresponds to four points but only one point is actually being identified and that's what the differences and if we look at what we see is this the top of the hump and that's half of the hump that's what's telling us ok this is the point that we're going to report back to the processor and it might be associated with a degree of imprecision about direct comparison or indirect in paris and the issue is you can only when you take two numbers you compare them i compare eight is greater than five and there's this concept of all of the court change your claims instruction and now she's saying direct and that's not fair the only thing the patent is about is actually taking one number down on it from the networks and comparing it with a random number generators on the phone or they suggest specifications shows use  to actually this is that true what what they're talking about is and they give their example about what if you took a number that was downloaded in binary form and you converted it into decimal form so what that's not that's completely different than what's happening in the accused product and under the standard we have to keep in mind they wanted their their patent to cover the standard the standard didn't adopt the standard looked at that their system is completely different because it gives this entire range of flexibility that you can accomplish with a simple system that is disclosed and claimed in the seven five one patent that the big differences it's one of priority under their system everybody gets an equal chance it's very simple you download a number you compare it with a random number in the phone and everyone gets an equal chance and the whole point of the seven of of a c c's phones and the un ts requirement is  it is for you all these different range the flexibility if you're really important then you're going to be associated a s e zero and you're not going to get around number comparison at all you're going to get through but that's not all there's a seed a s e mapping which that there's more than one value that's being downloaded from the network there's that d p l value but there's a separate value and that's separate value is going to be used to determine how important you are and based on how important you are you get a different scaling factor and all that optional but the phone is configured to do it to always look for it and so therefore it's a necessary part of the functionality now that the  the points that he made about the elite and the judge didn't weigh the evidence for his persuasiveness and then determine i don't find it sufficiently persuasive she waited through the evidence and looked at it for relevance and determined that it was not relevant therefore they didn't meet their burden to show doctoral code once let's take them one at a time first with regard to dr mehta said his report what she found is that he didn't apply the steps that are necessary the particularized type steps that are necessary to do a deal we analysis because he didn't want to admit that there wasn't literal infringement so he didn't want to go through and then actually apply the differences there's lots of differences between just the general structure of how this persistence value is built then just downloading something from the network sometimes there's nowhere number comparison at all sometimes a scaling factor applied that scaling factor is going to differ there's more than one number that's being downloaded from the network and all these work together and the fact that what's actually being compared the number that's being downloaded is used in an exponential which gives you that different papers online he's ok why all of those differences and explain why all of them and the qualcomm memo doesn't say we qualcomm determined that this is equivalent to that no it says it could be considered doesn't say we consider it is that it could be considered they depose over the course of i think four days they deposed three witnesses they had all palms codes they never asked caulk on one question about this document so to my recollection they even the person who they deposed who was responsible for developing the code it had to do with ratch access which was what they fuse in french and never asked them what about the socket what was the circumstances of it what was applying what it says could be considered who would consider it and so as we said before and as germany and we want to make sure our customers are protected if it could be considered equivalent there's an easy design around to let everyone know that's not an admission and it's also not a mission by party opponent because qualcomm is not to defend in this case i was and probably at the time so on the question of the evidence so let me respond to a couple points and just focus back on the record so counsel said we could not have been surprised because the just relied on dr stark testimony that a face again this was not utilizing face value to correct the witness the first is utilizing faith there is a one to one relationship between aren't you in magnitude and phase and he goes on to explain that so so it's not you it's not that it is not using the face value it is using the face that the sages actually intimate part of this if you look at the equation he cites the equation that is using the accused phones what that is doing is basically doing a phase difference between the two is used to face course they didn't have to calculate the face values in order to do that that was the evidence we submitted to meet the construction counsel also said that well we could not have been surprised by what the district court did but i  and the district court it a seventy one and seventy two says i'm not adopting that construction that was what was in the market order later she said no you did have to calculate anything similarly page eighty four counsel missed three point t