PLAINTIFF VOIP-PAL.COM’S REPLY IN SUPPORT OF ITS OPPOSED MOTION FOR RECONSIDERATION OF FINAL JUDGMENT OF NON-INFRINGEMENT
CIVIL ACTION NO. 6:21-cv-672-ADA and CIVIL ACTION NO. 6:21-cv-674-ADA Document 214 Filed 10/03/24
Mr. Hudnell vehemently challenges Judge's recent order of noninfringement that he arrived using a wrong precedent case In re Varma. Why the judge ignored a more recent and a more appropriate precedent case: ABS Global, Inc. v. Cytonome/ST LLC?
Mr. Hudnell says that the judge did not explain the appropriateness of the precedent used, how he arrived at the judgment of noninfringement. A ruling based on a wrong precedent could amount to errors of law.
If the judge has the conscience and a sense for justice, he would realize his mistake of using a wrong precedent and reverse the ruling. If not, the case might as well go to the Appeals Court and if we prevail there, it would be remanded back to Albright.
At one point Mr. Hudnell calls arguments of defendants and the judge nonsensical. It shows clearly that Mr. Hudnell is terribly upset by the Judge’s erroneous judgment, taking words “right” out of defendants’ motion for the summary judgment of noninfringement.
Investors following the IP cases, watch that USPTO and PTAB rely on PRIOR ART and plaintiff due diligence to validate or invalidate a patent application or a claim. In US courts, judges and attorneys arguing IP cases, often use PRECEDENT CASES and seek refuge in those precedents for supporting their rulings and arguments. When a judge uses a wrong precedent, his conclusion is likely to be subjected to error of law. That is exactly Mr. Hudnell’s main point.
Not all judges rely on precedents. Judge Brantley Starr in TX Dist court independently performed the Alice tests as set forth by Justice Roberts of SCOTUS in the Huawei's case and ruled in VPLM's favor. REAL judges are out there!
A review of Mr. Hudnell’s arguments follows.
Mr. Hudnell:
“... Contrary to what Defendants claim, VoIP-Pal has a sufficient basis for seeking reconsideration because the Court’s Order granting Defendants summary judgment of noninfringement fails to address the Federal Circuit’s decision in ABS Global, Inc. v. Cytonome/ST LLC.
It also fails to address intrinsic evidence showing that the ACRM limitation does not require at least one message that contains both a callee identifier and a location identifier. Although VoIPPal presented arguments based on ABS Global and the intrinsic record at the Final Pretrial Conference, the Court’s Order does not address those arguments. Consequently, the (Judge's) reasoning in the Order cannot be squared with the precedent set by ABS Global, Inc. v. Cytonome/ST LL, which shows that the ACRM limitation can be construed to mean one or more messages that collectively include a callee identifier and a location identifier.
It also cannot be squared with the intrinsic record, which shows that the ACRM may be composed of multiple messages.
The manifest errors in the Court’s reasoning led to an incorrect outcome and warrants reconsideration. Thus, this Motion should be granted..."
Mr. Hudnell's ARGUMENTS:
"A. The Court’s Order Does Not Address VoIP-Pal’s Arguments
B. The Court’s Order Is Erroneous Because Reasoning Behind Several Consequential Legal Conclusions Is Not Explained
C. The Reason Why The Asserted Claims Are The Same As The In re Varma, Salazar, and Convolve Claims Is Not Explained
D. The Intrinsic Record Supports VoIP-Pal’s Interpretation Of The ACRM Limitation"
"A. The Court’s Order Does Not Address VoIP-Pal’s Arguments.
... Defendants’ Opposition does not show where in the Court’s Order the Court explained how it arrived at a result that is plainly incongruous with Appellants ABS GLOBAL, INC., GENUS PLC, v. CYTONOME/ST, LLC, Appellee (precedent)...
...Because ABS Global is never mentioned, it is impossible to tell what reasoning distinguished the facts of this case from the holding in ABS Global (precedent).
VoIP-Pal is not arguing that a court must “formulaically distinguish” every case cited by a party against which an adverse ruling is made.1 But in this case addressing ABS Global (precedent) would not be formulaic; it is necessary for correcting an erroneous decision now...
... Defendants mischaracterize ABS Global (precedent) as “merely restating” the holding of Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338 (Fed. Cir. 2008). Such short shrift Defendants give to ABS Global (precedent) is belied by its status as a precedential opinion, which is assigned when the issuing panel “determines that its decision will add significantly to a body of law.”2
... The relevance and importance of ABS Global... the guidance it provides to district courts about when that default rule should remain undisturbed.
Neither Defendants nor the Court’s Order identify any language in the asserted claims requiring a departure from the default rule...
(Comments: VPLM patent did not require departure from the default rule.)
More importantly, neither Defendants not the Court identify any language in the asserted claims that forecloses interpreting the ACRM limitation to mean one or more ACRMs that collectively include a callee identifier and a location identifier..."
(Comments: All possible ways of communicating and receiving a response using the ACRM are explained in plain English language in the first few paragraphs under SUMMARY OF INVENTION SECTION IN 234 AND 721 PATENTS when the patents were issued!)
...B. The Court’s Order Is Erroneous Because Reasoning Behind Several Consequential Legal Conclusions Is Not Explained..."
"...Several aspects of the Order that Defendants themselves point to as addressing VoIP-Pal’s arguments in fact highlight the deficiency in the Order. (Comments: What say you, Judge?)
First, Defendants note that the Court acknowledged that “a single message can be broken up into multiple transmissions (and vice versa).”3 VoIP-Pal agrees... .However, nowhere is it explained how VoIP-Pal is conflating (combining) “message” and “transmission.” How can it be true that a single message can be broken up into multiple transmissions,” and yet a message is not a type of transmission?...
... in the instances in which a single message is not broken up into multiple transmissions, it must consist of a single transmission....
... In that case, the transmission is the message. It would be nonsensical to say otherwise.
So how is saying a message is a type of transmission “conflating” the terms? If that statement is deemed to be incorrect, then there must be an unstated construction of those terms that is being applied that renders them incompatible. Applying this unstated construction to render a decision is a manifest error of law. Defendants do not point to anything in the Order that resolves this issue...
(Comments:Is a faulty claim construction under Albright the issue? IMPORTANT ISSUE! Albright only spent half day on Claim Construction and accepted 95% of the terms proposed by VPLM. Was he not paying attention until pre-trial? Was it a sloppy hearing? Did the Judge understand what ACRM was?)
...Defendants also do not show where the Order addresses the fact that the specification describes embodiments in which an ACRM may be sent “using any suitable technique” over a phone/voice network, including via “Short Message Service (SMS) messages” plural.4 If there is an unstated construction under which the claims are not being read to cover a disclosed embodiment, then once again applying this unstated construction to render a decision is a manifest error of law... (Comments: Judge’s poor supervision of claim construction?)
Defendants furthermore do not show the Order addresses why messages “cannot be aggregated to satisfy the ACRM limitation.” If a message can consist of one or more transmissions, why cannot a message consist of multiple messages, each of them consisting of one or more transmissions? This inconsistency also appears to be based on an unstated construction of “message” that makes it incompatible with aggregation. (Comments: Judge’s poor supervision of claim construction?)
What is that construction? Applying this unstated construction to render a decision is a manifest error of law.
(Comments: Judge’s poor supervision of claim construction? Remand likely? Atrocity began with Claim Construction! Here comes more “blows” at Federal Circuit level )
When some aspects of a district court’s construction leaves the Federal Circuit “puzzled,” the matter is frequently remanded for further consideration.5 The Court should clarify and render explicit an unclear and implicit claim construction that must be addressed to resolve a dispute between the parties concerning the scope of the claims.6...
(Comments: challenging the use of a wrong precedent: Varma, Convolve, etc. dealing with poor Claim Construction to be at the Appeals court.)
C. The Reason Why The Asserted Claims Are The Same As The In re Varma, Salazar, and Convolve Claims Is Not Explained.
[color=blue(Comments: Here comes the HAMMER!)[/color]
... If ABS Global’s admonition that context matters is adhered to, then there ought to be an explanation of what the context is in this case that requires the ACRM be singular. (Comments: Claim construction issue AGAIN? Appeals Court has addressed the sloppy Claim Construction in cases cited by Mr. Hudnell: Salazaar, Varma, ABS Global cases against two PTAB/USPTO and one Dist Court rulings‼!)
Defendants point to no explanation in the Order of why In re Varma, Salazar, and part of Convolve are controlling despite using different claim language that thus provides a different context, as discussed in the Opening Brief. Rendering a decision without addressing what context in the claims requires the singular interpretation of ACRM is a manifest error of law...
... Defendants’ fail to make a reasoned argument about why the present claims are like the claims in Convolve that were held to be singular. The present claims do not “repeatedly refer back” to a functionality that the ACRM is providing like the claims in Convolve held to be singular. Thus, they are in fact more like the claim held in Convolve to not require a singular processor performing all functions.
D. The Intrinsic Record Supports VoIP-Pal’s Interpretation Of The ACRM Limitation.
... Defendants assert that VoIP-Pal has conflated (combined) the terms “transmissions” and “messages” without explaining how they are being conflated.7 VoIP-Pal uses both terms as per their ordinary meaning in light of the patent’s disclosure.
(Comments: Claim construction issue AGAIN? Appeals Court would love this sloppiness. Did the Judge understand claim terms discussed?)
Defendants give no reason as to why a set of information that is transmitted on a network cannot be both a “transmission” and a “message.”
For example, the patent specification discloses that a phone may include a port for “transmitting information to, and receiving information, from” one or more networks.8 But these transmissions of information could include, for example, “access code request message(s)” or SIP messages (if VoIP communications are supported).9 Thus, the intrinsic evidence demonstrates that “transmissions” and “messages” are not mutually exclusive. Rather, “transmissions” can include “messages.”
(Comments:All of these are stated in plain 8th grade English language in the 234 and 721 patents under SUMMARY OF INVENTION SECTION - a few paragraphs)
Defendants never attempt to show otherwise.
Defendants also assert that “conflation” occurs because multiple messages allegedly cannot be aggregated into an ACRM.10 On this point, the Order seems to misunderstand VoIP-Pal’s argument.
(Comments:Claim construction AGAIN - was the Judge paying attention or understand the tech? Need help from the Appellate Court. The Judge does seem to be lost like a guy ordering chicken parmiginia wonders if it includes spaghetti. Does he understand the tech or the terms used?)
The Court opined that “regardless of how many transmissions those (DNS and SIP Invite) messages may be transmitted in, they cannot be aggregated to satisfy the ACRM limitation.”11 But VoIP-Pal’s argument is not that DNS or SIP messages can be split into multiple transmissions; rather, VoIP-Pal argues that a single ACRM can be split into multiple transmissions that include DNS and SIP messages. If an ACRM can be aggregated from multiple transmissions, there is no apparent reason why it can’t be formed from multiple transmissions that include messages providing parts or portions of the ACRM.
(Comments: Where is the actual claim language? Defendants’ dirty trick sly shifting the burden onto VPLM. A new term "silence". Did the Judge miss this part during claim construction, did he have no questions then?)
When Defendants eventually turn to the actual claim language, instead of identifying actual language that would preclude VoIP-Pal’s interpretation, they slyly shift the burden of proof onto VoIP-Pal, by appealing to the claims’ silence on possibilities that VoIP-Pal argues are covered by the claim. A claim’s silence, however, is not evidence the claim excludes that possibility. Even if the claims “nowhere… disclose [recite] sending or receiving the ACRM as multiple partial messages,”
that is not evidence these possibilities are outside their scope.12 For example, even if claim 1 of the ’721 patent is silent about timing, it does not ipso facto exclude from its scope the possibility of sending the ACRM in multiple, separate transmissions, as this Court recognized by applying claim differentiation.13
(Comments: claim construction issue running throughout pre-trial What kind of a Judge who permits sloppy claim construction?)
Again ignoring the “actual language” of the claims, Defendants read restrictions into the claims that simply are not there: “the ACRM [is] … sent from and received at a single node”; “nor do [the claims] disclose receiving partial ACRM messages at separate nodes…”; and “[Claim 30 says nothing about receiving the ACRM in multiple parts at multiple locations.”14 The claims, however, do not limit the ACRM to actions at a single node. Defendants attempt to sidestep VoIPPal’s arguments showing that many of the claims (e.g., claims 30 and 62-63 of the ’234 patent), place little or no restrictions on what destination, device, or component of the system does the receiving step.15 Regarding claims 62-63 of the ’234 patent, [color=red]Defendants argue that the recitation of “said processor circuit”, under Salazar, would “require[] at least one microprocessor capable of” receiving the access code request message.”16 But Defendants’ argument equivocates by jumping from the recited claim term “processor circuit” to the term “microprocessor,” which is not even recited in claims 62-63. Moreover, based on intrinsic evidence, the single “processor circuit” could be implemented by multiple microprocessors, which need not be integrated into any particular single device or server or node.[/color]17 This evidence supports VoIP-Pal’s view: the claims do not require a particular destination, device, or component as the location at which the message must be received. And Defendants’ only response to claim 30 being agnostic as to where the ACRM is received is another argument about what the claim does not say, which proves VoIP-Pal’s point—the claim never says that a single message must be sent from and received at a single node.18
...Defendants respond to VoIP-Pal’s arguments that the patent specification discloses examples of splitting the ACRM up into packets and/or messages by flatly denying this notion: “nowhere does the specification… state that the ACRM can be sent in multiple messages.”19 A more relevant inquiry is where does the specification state that the ACRM is limited to a single transmission. In fact, the patent states that the phone and the access server may communicate, including transmit an “access code request message”, using “Short Message Service (SMS) messages” (plural).20 It is known in telephony to split longer messages into multiple short SMS messages. With respect to VoIP-Pal’s citation of intrinsic evidence that shows that the ACRM transmittal may involve a complex and discontinuous “back-and-forth” process due to the need to send encryption keys or hash codes,
Defendants contend that this disclosure has anything to do with the ACRM,21 overlooking the immediately preceding two sentences that expressly refer to the ACRM three times.22 Failing to explain why the intrinsic record forecloses an ACRM being formed by the transmission of multiple underlying messages,
Defendants add yet another unstated requirement to the claims that the messages must be related despite acknowledging that the transmission can be split into packets: “Packetized transmission of messages is a far cry from saying that two unrelated messages can be combined by linguistic whim to be called one message.”23 But even if relatedness were a requirement of the claim, which it is not, it is simply untrue that the accused transmissions that make up the ACRM are unrelated. As VoIP-Pal pointed out in its opposition to Defendants’ summary judgment motion, “[t]he communications identified by VoIP-Pal as including these multiple parts/portions forming the ‘access code request message’ as recited in the asserted claims are not made in isolation and are not unrelated to each other as they all naturally flow together and/or are triggered in the sequence and process of setting up and initiating a VoWiFi call in the Defendants’ technology.”24 Defendants’ accused systems are engineered precisely so that this sequence of related messages cooperate with their VoWiFi infrastructure to effectively transmit an “access code request message”, which in turn, is used to obtain an access code and to establish the call. The claims, when properly construed, are broad enough to cover the series of actions...
CONCLUSION
In conclusion, a sufficient basis exists for the Court to reconsider its final judgment of noninfringement.
The Court’s Order granting Defendants’ summary judgment of non-infringement fails to address controlling precedent that issued after briefing closed on Defendants’ summary judgment motion and after the authority relied on by the Court.
The Court’s Order also fails to address the intrinsic evidence presented by VoIP-Pal showing that the asserted claims do not require a single access code request message having both a callee identifier and a location identifier.
Consequently, the reasoning in the Court’s Order led to a manifestly erroneous outcome, which should be reversed.
(We'll review the precedent cases (PTAB/USPTO, US Dist Court) later to see how the Appeals Court handled them. It may help us guess our chances of prevailing at the Appeals Court level.)
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