Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Awesome!
Oh I think the patent definitely covers WiFi and any other short wave wireless technology. I was saying that WiFi was not prevalent during the time and two way paging technology was so this is why the patent specifically mentioned pagers.
That's all.
There is no conflict in our opinions. I agree with you.
Am I to understand by these comments that deerslayer took a photograph of the courtroom?
The opening comments consisted of introductions and a brief discussion of who was going to go first. There was no discussions of the infringement itself or whether t-mobile had other patents it was relying on or anything like that. Because we only had 3 hours in the schedule, both sides stayed very focused on getting through the claim construction.
I'm not sure that I am following your train of thought here regarding paging and it's relation to the conversation we were having about auto-switching.
Oh I agree that the mark man hearing has value, but I was just saying that you don't necessarily "win" it. Since it is really just both parties jockying for position and the judge ruling on any legal issues that may have come up in the claim construction.
I wasn't trying to water it down as much as you suggested.
There are quite a lot of documents I am sure that are not public relating to the specific software algorithms that are used in the auto-switching feature. Of note, the patent itself lists a unique identifier and distance but doesn't seem to restrict the auto-switching feature to just these two parameters.
There was some discussion in the court over this and T-mobile was trying to limit the scope of the patent by arguing for far more restrictive definitions regarding auto-switching, distance and "parameter(s)" applying a modern understanding of how smart-phone like devices work today. The judge generally brought the discussion back to a real world example or the patent language itself.
I myself have not seen any more technical documentation regarding the auto-switching feature itself and exactly how it worked. I suspect that Sharma and maybe Lance would be the only two guys in recent times who may have seen these documents.
Not that I know of. I have all of the patent documents and some of the technical supporting documentation and don't see any prior art for the "switching" mechanism. When our patent was filed, the WiFi alliance had yet to even ratify the standard. Auto switching at the time was restricted to cellular and paging traffic and was very different than it is today and certainly not between separate technologies - which is why the patent speaks specifically about paging technology. We take it for granted that wireless infrastructure is so readily available and that almost everyone is carrying around a smart phone in the US that is capable of GPS, Bluetooth, Multiple wifi technologies and most also have multi-band cellular capabilities as well. This was not even remotely the case in 2000.
Well you don't really "win" a markman hearing persay as some other folks have noted. And the markman hearing doesn't do a whole lot to validate the patent itself aside of forecasting how the court and potentially the jury will interpret the infringement.
BUT if the judge rules favorably and a number of the important claims fall more on the Calypso side, T-mobile may be encouraged to settle before it goes to a Jury.
I will say that the judge didn't seem to interested in the expert testimony and even said in court that as far as he was concerned it was far less credible then the intrinsic evidence in the patent language itself. Most of his questions directed towards both sets of attorneys directed the discussion back to the actual language of the patent.
What is as you expected and who is "at it again" - is this post about me or someone else? Can you be plain with what you are asserting and come out with it for the benefit of the group?
Yeah I will watch the video again and see what I can pull out.
I am home safe and sound. Thank you everyone for your encouragement and support and to those who have contributed financially as well. I will tabulate everything and let folks know what the trip costs. I will also try to get my hands on a cost for the transcript and will communicate that when I receive it.
How did you come to a 50/50 conclusion? You weren't even present in the courtroom for the most important testimony because you decided to wear shorts and sandals to a federal courthouse despite the warnings on this board about dress code and were not permitted into the courtroom until you showed up over an hour later with a wrinkled suit. Then with no notes and no facts, you come on this board and say its 50/50?!?
I don't know how anyone could come to the conclusion that we are at a 50/50 chance on this after sitting through the markman hearing and reading the briefs. We had an excellent argument on the distance/vicinity point and the judges seemed to favor Calypso's interpretation. I would give us 70/30 on that point alone.
I answered all of these questions in my previous posts and I did not sugar coat anything.
I was looking forward to meeting you and was bummed that you weren't able to make it. Deerslayer arrived a little later with another fella but should be able to provide additional details that I may have missed as well as a different perspective on the events of the day.
Thank you for posting this. These were cited a number of times during the presentation today. I will update the court documents sticky this week with this and all of the other pertinent documents that have been posted recently.
You are welcome. Thank you for your research and due diligence with posting articles and documents. It is a team effort.
I genuinely feel more optimistic after today. It is the first time working with Calypso that they seem to have done their due diligence and were prepared for court. Guy Matthews and his team must have worked out a heck of a deal with the receiver. I asked how many hours he and his team have spent preparing for trial and he said 3,000. It certainly showed. Guy Matthews provided me with a copy of Calypso briefs / exhibits for the trial. I will touch base with him later this week and get permission to share it. If it is granted I will scan the whole binder to PDF and make it available to all of you. It further shows the differences between terms and what Calypso argued for. I will also try to get my hand on the official transcripts as soon as possible. If I have to get them from the court they will be 5 dollars a page according to the court reporter.
Highrider pretty much hit the nail on the head there. The patent office really doesn't validate the patent. They are so busy pushing paperwork that they often approve patents with similar claims. It is up to the court system to sort out the finer points.
Generally speaking the plaintiff will negotiate for the broadest definition and the defendant will negotiate for the most restrictive definition - which is what i saw today for sure.
I wouldn't go as far as to say that T-mobile had a weak hand. They presented their arguments well and although they didn't have as much to say as Calypso, for the most part they were well prepared and considering the circumstances, also did as good as they could have. I think if they would have had additional time and their other attorney could have made it, they may have presented even stronger arguments. T-mobile did appear to be surprised at how many attorneys we had and for the number of people who were present at the hearing supporting Calypso. This is just a general observation though. Their counsel didn't really say anything to anyone and weren't all that "friendly".
No that would be appropriate for the trial, not the claims construction.
General feelings from the courtroom: Both sets of attorneys were well prepared and provided compelling arguments. Both sets of attorneys were respectful both of the opposing counsel and the court. At no point did anyone get out of hand or speak out of turn. The judge was straight forward and knowledgable. The technical consultant also appeared engaged the entire time and periodically took some notes. He seemed quite capable of providing the judge with additional clarification on anything that was discussed.
None of the shareholders or other attendees were addressed by the court, said anything during the hearing or caused any problems.
Marshall Texas Markman Trial, Claims Construction - Calypso vs Tmobile
Present:
Judge Payne
Court Deputy Jan Lockhart
Court stenographer Shelly Holmes
Court technical expert / consultant
4 shareholders and the president of Carnegie technologies.
Lawyers for Plaintiff (Calypso):
- Guy Matthews
- C Vernon Lawson (General Remarks)
- Matt Juren (Claim Construction)
- Andy Tinden
- Robert Mendina (from Williamson's office on behalf of Daic)
- Danny Domianna (sp?) (Legal Assistant)
Lawyers for Defendant (T-mobile):
- Bill Dawson (general remarks and introductions)
- Anne Champion (Claim Construction)
- Alison Watkins
- Jennifer Annsworth
The Judge entered the chambers at 8:59 and aside of a 10 minute break at roughly 11:00 am, the hearing went straight through for roughly 4 hours.
Guy Matthews provided introductions for the Calypso side, followed by Vernon Lawson who made a brief remark followed by Matt Juren who did most of the presenting and speaking.
Bill Dawson provided introductions for the T-mobile side while Anne and (I beleive) Alison did the claim construction.
Judge indicated at the opening of the hearing that he had spent a lot of time over the last few days reviewing all of the documents that were submitted and he had already came to some conclusions regarding most of the terms. The judge is going to indicate at the beginning of each term where he is leaning at the moment and will then give the attorneys the opportunity to structure their arguments accordingly. Both sides agreed to take turns and that the Plaintiff would go first followed by the Defendant.
Before we got started the judge indicated that even though he is leaning one way or another on certain terms that this does not indicated pre-judgement and that he will keep an open mind during the hearing to any evidence that could be presented to sway him one way or another.
Term 1: "Pre-established vicinity range": as meaning pre-determined maximum distance between wireless device and computer facility.
- Plantiff: Wanted to refer to some of the expert testimony. Approached the technical advisor to the court and provided him with a copy. Provided copies of the presentation to the advisor and court.
- Calypso argued that it is more important to consider power level, zones, environmental factors, and interference in addition to distance and argued for the following definition: "a zone or coverage area within which the at least two transceivers are able to recognize each other and communicate"
- The Judge needed convincing that this was supported by the wording of the patent.
- Discussed the preset power level and how it is related specifically to the pre-established vicinity range
- There are situations where a device is within a pre-defined range but due to environmental factors it cannot authenticate and transmit data. This is supported by the language in the patent.
- Defendant: T-mobile argued that the vicinity IS defined as a distance and specifically that the Calypso patent refers to a fixed-distance.
- Judge indicated that Tmobile's more restrictive suggested definition may exclude bluetooth and asked t-mobile to provide specific evidence from the patent application that would support their more restrictive definition. Also wanted to know if t-mobile had any objections to wifi and bluetooth being essentially the same. They had no objections.
- Plaintiff: would like to make additional remarks.
- further argued that the pre-determined range must be within an area of coverage
- Referred to the patent diagram and argued that item 24 is a piconet, not a fixed distance.
Term 2: "Communicative recognition between said computer and said wireless communication device within said pre established vicinity range"
- Plaintiff: no additional definition required
- Judge - is it a problem to define communicative recognition as mutual recognition?
- Plaintiff - No
- Defendant: Had no objections with the court's mutual recognition statement
Term 3: "Auto-switching capability",
- Plaintiff: suggested the following revision: "the ability to determine whether data communication with the wireless communication devices occurs over the computerized network or by the over air network."
- Judge: would like to see the word automatically added
- Defendant: did not object to the word automatically being added before "determine"
Term 4: "Automatically"
- Plaintiff: no claim construction necessary, self explanatory
- Defendant: would like it to say "Automatically without user input"
- Judge: both sides disagree, so perhaps more constructions are necessary
- plaintiff: may be required to provide credentials either initially or periodically and disagree with Tmobiles restriction of saying "without user input" since it could be determined that this would mean essentially "Automatically without user input EVER"
- Judge: Asked tmobile if they intended "Automatically without user input ever" and they said that this was not their intent. The judge then asked if both sides could agree to "Automatically but may require user intervention for initial setup". Neither side objected to this revised definition.
Term 5: "dependent on the establishment of said predetermined parameters"
- Plaintiff: no changes, but argued that patent supports multiple parameters and that the number of parameters depends on the technology being used. Also argued that there was case law that supported using "parameters" plural to mean a single parameter as well.
- Tmobile wanted to see this defined as always two or more parameters
- Plaintiff: In a real world situation, more than one would be used.
- Defense: argued that in situations where parameters is used in its plural, the definition should make it clear that at least two parameters are used. Argued that the case law that Calypso used for using the word "parameters" when only one parameter is being used was not applicable.
-Judge: seemed to side with t-mobile more on this point, but didn't wholly agree with requiring "two or more" in every instance
Term 6: Combination of terms: "scanner capability/scanning capabilities / conducting a scan"
- Plaintiff: no changes suggested, language is plain
- Tmobile tried to have the term amended to include plurality meaning that both the device and the access point both are doing scanning.
- Calypso indicates that the scanning itself could occur by the device or access point and therefore is not necessarily plural.
- T-mobile presented evidence in the patent language where the word plurality is used.
- Judge - In the contexts where plurality is used in the patent language, is calypso ok that it be used in those circumstances. Calypso responded that they were ok with this.
- Defendant: Feels like it is important to say transceivers due to the actual infringement and what part of the device is conducting the scanning.
- Judge - feels like a more general definition is appropriate for some of the claims
- Defendant :'the capability to scan and allow the mutual recognition of the first and second receivers" would like to revert to this definition in situations where plurality is not used in the original patent
- Plaintiff: agreed that for claims 24 and 25, that the revised definition is appropriate
Term 7: "Continuous searching"
- Plaintiff: no construction required.
- Judge feels additional construction is necessary so that the jury fully understands
- Continuous searching means searching until either the transceivers have recognized each other or the searching transceiver determines that it is not in range of another appropriately configured transceiver.
- Defendant: would like to discuss what happens after the searching and further specify that the searching ends when a connection is established
- Plaintiff: had a problem with tmobiles interpretation because it essentially meant that after a connection was established, the continuous searching was completed. Calypso favored a more general definition where searching was continuous and could be periodically interrupted or put on hold for a period of time. It is not practical for searching to be non-stop and forever.
- Judge - tended to favor calypso's interpretation
- Plaintiff - presented flow diagram from patent to illustrate that there are periodic intervals between searching.
Term 8: "Wireless communication devices consisting of pager assembly"
-Plaintiff: no construction required, but proposed the following if the court felt that it needed clarification: "Pager Assembly- wireless communication device comprising hardware and software neccesary for nmeric and or alphanumberic communication"
- Calypso argued that a pager refers to more software and hardware and could be applied to a cell phone. The Judge feels that calypso's proposed definition is too broad and that the average user will understand a Pager to be a Pager and not a more generic device.
- Defendant: Pager is a pager and not another device, their definition also included protocols which the Judge felt may cloud the issue and asked tmobile to provide evidence from the patent language to support the mentioning of particular paging protocols. T-mobile asked if they could review their notes and provide supporting evidence in a few minutes. The judge granted and a few minutes later they provided additional evidence. The judge didn't seem convinced that it was necessary to include the protocols in the definition but did seem to side with t-mobile in that a pager is a pager and not a more general thing.
Term 9: "Messaging Communication"
- Plaintiff: should be defined as data communication instead and they argued that in the patent, both data communication and messaging communication were used interchangeably. They also argued that t-mobile already accepted the fact that messaging communication are a subset of data communication.
- Defense: argued that messaging could be one way or two way and therefore should not be placed in the same category as general data communication which is almost always two way.
Term 10: "Over the air network"
- Plaintiff: agrees for the most part with Defendent, does not object to including "wireless"
- Defendant would like to use the following definition: "cellular, paging, satellite, and or other applicable wireless communication network."
- Judge: Both definitions are the same, except t-mobile suggested including wireless. Does calypso object to accepting t-mobiles definition with the additional word wireless.
- Plaintiff: No objection.
Term 11: "unique identifier"
- Plaintiff: no changes necessary
- Defendant:a unique identifier or code of the wireless communication device
- Plaintiff: Didn't feel like the words "of the" should be included because it painted a picture that the unique identifier had to be contained on the device, firmware or software.
- Some arguing back and forth about this, eventually T-mobile indicated that this was not instrumental to their case. Not sure how the Judge might fall on this one.
Term 12: "Computer configured for computerized network access"/"internet access facilities"
-Plaintiff: no changes necessary, feels term is self explanitory
- Defendant: no objections, will not be pursuing any changes
Plaintiff's closing remarks:
- reiterated that distance does not equal the vicinity range
- reiterated that a fixed distance interpretation would not be appropriate and cited expert testimony
Defendant's closing remarks:
- provided a copy of the slide deck
- no further remarks
What he said. :)
A different trial my friend. Not OUR trial. lol
I was just noting that the court is going to be busy and therefore may rule before wednesday.
I am off to the airport and will plug in my ipad when I get there. I will be able to answer questions there and will do what I can to dump my notes before I get on my plane to return to Philly tonight.
I appreciated the opportunity to meet you in person and enjoyed our conversations. I think like a lot of shareholders who have invested in this company, there is a lot of misinformation floating around. I am glad that you had an opportunity to experience this key event in our company history first hand. I'm sitting in a subway right now near the airport and have also shed my suit and tie. :)
I scanned this list pretty quickly but I believe all of these terms were discussed and the judge will be deciding on all of them.
I think the crux of the entire hearing today is how the judge will rule on the fixed-distance vs variable distance term. I also think the auto-switching, scanning and what automatically means are also important.
If the judge rules favorably with calypso on these points, we may see t-mobile make a settlement offer.
My gut feeling is that it would have to be for a couple hundred million for us to even consider it. That is of course pure speculation on my part.
I guess we will find out shortly. The courtroom deputy indicated that they start a trial on Wednesday that will last for a week and a half, so we may see a ruling before wednesday.
I recorded all of the terms that were discussed along with what each side and the judge had to say about them. There were a few instances towards the end where I couldn't simply type fast enough to record everything so I missed a few. For the most part though I was able to get the important ones. In my opinion, the most important phrases were discussed first. The ones that were left towards the end were not that big of a deal.
I feel that I have a strong understanding of the claims and technology involved and I felt that our legal time did an effective job at communicating to the court and describing things in layman's terms when it was not clear. Our power point deck was polished and we did a good job of answering questions on the spot from the judge. I didn't feel like anything "slipped through the cracks" or that our legal team missed any opportunities to clarify sufficiently or respond with an interpretation that would favor our position.
There was no fumbling for information, everyone was respectful. You could feel the tension in the room between the legal teams, but they were both cordial and respectful of each other. I think T-mobile was surprised to see how many people were present supporting Calypso. I also got the feeling that T-mobile expected the judge to side with them more than he did. There were a few situations where the judged pressed the t-mobile attorneys for more information or additional support for their position where they were unable to do so.
I was able to talk to our legal team afterwards for a few minutes. Generally speaking judging from their body language, I felt that they were satisfied with how well our presentation went. We didn't have any technical challenges or times where we were fumbling for information. I felt that we argued effectively and provided plenty of evidence from the patent language and expert testimony to support our interpretations of the definitions.
Most of the phrases resulted in compromises from both sides. Generally speaking I felt that the court did a very effective job with coming to definitions that represent the spirit of the invention without over reaching or being too broad.
Yes they agreed on the 11 phrases. I've recorded the agreed versions of most of them and will post later.
4 hours for 9 lawyers and a judge to agree on what 11 phrases and words really mean. That's all that was discussed today.
No it was not RPX corp.
I got his business card so I will do some research and let folks know.
Yes i feel that I thoroughly understood all legal and technical aspects of the hearing.
I may be young but I am old school too :)
Drago was not there, his emissary was. There were 4 shareholders present including myself and 1 other interested party from a tech firm. Plus about 9 lawyers.