Did a TM attorney wake up in the middle of the night with an "AHA!" moment of terrific insight and scribble down his new ideas for support of summary judgment? It sounds like it. Unfortunately they are the same back end thumb around elbow argument as before.
TM asserts:
The patent requires that switching, the "handoff".....
must be done automatically when the mobile handset reaches a predetermined maximum distance from the Wi-Fi router.
This is the addressed in Matthews (11/15/2012):
"Furthermore, the "maximum distance" required by the provisional order on claim construction is NOT the same as the "fixed distance" interpretation advocated in by TM prior to the Markman hearing...."
TM got beat down once in the markman on this issue but one black eye wasn't enough so they headline their latest attack with the very same argument!
Note TM's clever device of beginning an argument with Plaintiff's quote (obviously taken out of context) and coming to a different conclusion:
"Specifically, their [Plaintiff CLYW] letter to the Court says: 'T-Mobile's handsets do not measure the distance between the handset and the router,' and therefore, cannot auto-switch dependent on their distance from the router or whether they are inside or outside a specific distance from the router. Ps Resp. at 3.
Below is the partial excerpt of the Matthews letter with the above quote in context capitalized:
"The testimony of TM's witnesses and the requirements documents used to direct the manufacturing of accused routers make clear that the pre-determined parameters enabling auto-switching between networks in TM's accused system include a maximum distance between the wireless communication device (mobile handset) and the computer facility (Wi-Fi router). This distance is predetermined, as evidenced by the specifications used to design or build the Wi-Fi router. TM'S HANDSETS DO NOT MEASURE THE DISTANCE BETWEEN THE HANDSET AND THE ROUTER, nor do the claims require them to do so.
Two totally different conclusions.
Also, as Matthews (11/15/2012) states:
"The determination of Plaintiffs' allegation that the "predetermined maximum distance" limitation is met because each Wi-Fi router is designed and built for a maximum transmission distance is a FACTUAL DETERMINATION THAT MUST BE MADE BY A JURY."
Finally, let's look at TM's conclusion to "TM'S HANDSETS DO NOT MEASURE THE DISTANCE BETWEEN THE HANDSET AND THE ROUTER" which is this:
"[TM's handsets] cannot auto-switch dependent on their distance from the router or whether they are inside or outside a specific distance from the router."
Now, i'm being sarcastic here but maybe TM's phones can pick up router signals outside of a manufacturer's maximum "up to" router distance. Maybe the city is built of mirrors [skyscraper windows even] and there is one point where a router signal can be picked up a distance twice as far away. Is that how you want your phone to switch? Then if you move 1 foot in any direction, no more router signal!
Conclusion: At some point a phone must make a handoff. TM just cannot get around the fact that they must be within the maximum router range. My question is this: IF a TM phone and a CLYW phone are 5 feet from a router, how do they make the 'handoff'? I cannot believe that the nuts and bolts of how the handoff is made is important. Someone posted here that if both devices do the same thing then they are both using the patent.
AI
