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Marshall Texas Markman Trial, Claims Construction - Calypso

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sirhaggus   Monday, 09/10/12 06:05:31 PM
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Marshall Texas Markman Trial, Claims Construction - Calypso vs Tmobile


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

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