trials@uspto.gov
`571-272-7822
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`IPR2015-00814, Paper No. 38
`June 9, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`KAPSCH TRAFFICCOM IVHS INC. and KAPSCH
`TRAFFICCOM HOLDING CORP.,
`Petitioner,
`
`v.
`
`NEOLOGY, INC.,
` Patent Owner.
`____________
`
`Case IPR2015-00814
`Patent 6,690,264 B2
`____________
`
`Held: May 10, 2016
`____________
`
`
`
`
`
`BEFORE: JUSTIN T. ARBES, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
` The above-entitled matter came on for hearing on Tuesday, May
`10, 2016, commencing at 9:02 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
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`571-272-7822
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`IPR2015-00814, Paper No. 38
`June 9, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KAPSCH TRAFFICCOM IVHS INC. and KAPSCH
`TRAFFICCOM HOLDING CORP.,
`Petitioner,
`
`v.
`
`NEOLOGY, INC.,
` Patent Owner.
`____________
`
`Case IPR2015-00814
`Patent 6,690,264 B2
`____________
`
`Held: May 10, 2016
`____________
`
`
`
`
`
`BEFORE: JUSTIN T. ARBES, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
` The above-entitled matter came on for hearing on Tuesday, May
`10, 2016, commencing at 9:02 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
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`Case IPR2015-00814
`Patent 6,690,264 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`NATHAN S. MAMMEN, ESQUIRE
`DAVID SCHLAIFER, ESQUIRE
`Kirkland & Ellis LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`
`NOEL C. GILLESPIE, ESQUIRE
`ROBERT H. SLOSS, ESQUIRE
`Procopio, Cory, Hargreaves & Savitch LLP
`525 B Street, Suite 2200
`San Diego, California 92101
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`ON BEHALF OF PATENT OWNER:
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`Case IPR2015-00814
`Patent 6,690,264 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE PERRY: Good morning. At issue this morning
`is U.S. Patent 6,690,264 in the case of Kapsch versus Neology,
`IPR2015-00814, and this afternoon we'll hear two related cases.
`So per our trial order, each side has 60 minutes to
`present oral argument based on the record and, of course,
`Petitioner has the ultimate burden and will go first.
`Petitioner, feel free to reserve time for rebuttal, if you
`
`wish.
`
`MR. MAMMEN: Thank you, Your Honor.
`JUDGE PERRY: So please identify yourself clearly for
`the reporter. And if you haven't already, please give the reporter
`your business cards so they can spell your name right in the
`record.
`
`MR. MAMMEN: Yes, Your Honor. Thank you.
`May I proceed?
`JUDGE PERRY: Please proceed.
`MR. MAMMEN: Thank you. Your Honor, I am
`Nathan Mammen on behalf of the Petitioners Kapsch TrafficCom
`and, Your Honor, I have -- I don't know if Your Honors have --
`may I hand them up?
`JUDGE PERRY: I would like it. Thank you.
`MR. MAMMEN: Sure.
`JUDGE PERRY: Do you want to reserve any time?
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`MR. MAMMEN: Yes, Your Honor. I'd like to reserve
`20 minutes, if I may.
`JUDGE PERRY: Okay.
`MR. MAMMEN: So this morning's argument as you
`mentioned, Your Honor, is about the 814 proceeding which
`concerns the '264 patent and the '264 patent relates to cloaking,
`what's called cloaking. The concept of cloaking, as I'm sure you
`understand and are aware, is basically to silence an RFID tag to
`allow other tags to be read that it doesn't interfere in the field with
`other RFID tags that are being broadcast with a signal. And all --
`the term cloaking is used in the '264 patent and the '144 Kruest
`reference, which is prior art in this proceeding.
`The concept has certainly been known and referenced
`elsewhere and used by other terminology in the prior art that's at
`issue in this proceeding.
`JUDGE PERRY: Counsel, is the term cloaking used
`itself and well-known prior to the invention of the '264 patent?
`MR. MAMMEN: Yes, Your Honor. And if we go to
`slide 3, and I think you could look at the format of Claim 1 as one
`indication that it certainly has been used. It talks about the
`improvement, the Jepson claim. So it's clearly the understanding
`that a cloaked RFID tag is something that's known in the art.
`And then the background to the '264 patent discusses
`and incorporates by reference the Kruest reference that is one of
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`Case IPR2015-00814
`Patent 6,690,264 B2
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`our grounds here, and that's terminology that Kruest also uses to
`describe the concept of silencing a tag or cloaking a tag.
`So as a preamble, one makes clear -- Claim 1 makes
`clear a cloaked RFID tag with an antenna is something that the
`prior art recognized and knows are new at the time of this
`invention and the '264 patent is about setting forth an
`improvement to that cloaked RFID tag.
`The '264 patent in the background talked about one of
`the deficiencies that was recognized with the Kruest arrangement
`was that Kruest would silence a tag for a period of time in which
`the tag would just remain silent and wait until an internal timer
`would run out before the tag would come back alive and be able
`to be communicated with.
`The deficiency in that approach is if you need to
`interrogate the tag before that timer runs out, then you'd have to
`wait and so the '264 patent was seeking to solve was there an
`ability to bring that tag out of a cloaked state and use it in further
`follow-on communications with a reader.
`And then as we'll talk about later, the Turner reference
`and other references, but Turner in this proceeding teaches that
`exact improvement as well, that the idea of wanting to bring a tag
`out of a cloaked or muted state was known in the art in a way of
`improving that tag.
`JUDGE ARBES: So, counsel, if we have just the word
`cloaked, was the usual understanding of that term that it would be
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`Patent 6,690,264 B2
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`for just a predetermined period of time? Was that the
`understanding in the art?
`MR. MAMMEN: I don't think the art reflects a usual
`understanding of what the term cloaked means. I think if you
`look at the Kruest reference, you know, Kruest does cloak for a
`predetermined period of time. That's the way the Kruest setup
`was designed to work with the internal timer.
`But I don't recall, I don't believe Kruest ever mentions
`that cloaked has a special meaning of that means of
`predetermined period of time, that the cloak aspect of it was, you
`know, covering or silencing or keeping a tag from interfering
`with other RFID tags in the field, and that's the concept that cloak
`was trying to capture was, you know, keeping an RFID tag from
`interfering after it's been read, in particular, so that other tags can
`be read.
`JUDGE ARBES: Wouldn't it have to be for a
`predetermined period of time, though? Because if it was not
`known before the end to receive a signal to take it out of the cloak
`state, wouldn't cloaking before this invention have always been
`for a finite period of time?
`MR. MAMMEN: Well, the cloak before this invention
`could have been -- and these are passive tags or generally the art
`here is in the concept of passive tags. And if you were to lose
`power for a certain amount of time, if you had a cloak state that
`you're maintaining your tag, you lose power, these tags would
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`Patent 6,690,264 B2
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`generally reset, so you'd go back at some point to a time where
`the tag is no longer maintaining a state. It's not permanently
`locked.
`
`You know, the art -- you know, the issue here may have
`had that concept where you would basically be able to
`permanently lock a tag in a state, but that's not here. So certainly
`the cloaking isn't permanently disabled. I don't think the '264 or
`the '144 or any of the references have the concept of permanently
`disabling a tag.
`As far as whether there had to be a predetermined
`emphasis on that word, predetermined period of time for cloaked,
`I don't think that the Kruest or the '264 have the concept --
`reflects the concept that you had to have a limited period of time
`for cloaking or for cloaked.
`If we go to slide 4, please. So these were the issues that
`we perceived as the Board may want to hear about. And
`obviously if the Board refers to -- could jump to any particular
`issue, we're happy to, but the logical order that we thought would
`be to address the claim construction issues and then address the
`four grounds with regards to anticipation and the one ground of
`obviousness with the Kruest reference and the teaching of Turner
`that I just talked about.
`And then if we go to the next slide with the claim
`construction issue, the cloak, cloaked and cloaking terms is not
`disputed in the concept of the language that the Board had
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`Patent 6,690,264 B2
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`adopted in its Institution Decision. You know, there are some
`questions I think Patent Owner raises with respect to
`interpretations of what the Board's construction was and we'll talk
`through that.
`And then there's additional terms that the Patent Owner
`proposed construing and we will talk through those as well and
`why we think that those are inappropriate constructions of these
`terms.
`
`So if we go to the next slide and you'll see here where
`we have the agreed construction, the construction that the Board
`had adopted that are in our petition and the Board adopted for the
`purposes of the Institution Decision.
`And it requires disabling for the period of time to Judge
`Arbes' point, but it doesn't require a predetermined nature of that
`period of time. And then, again, the concept of cloaking is that
`you are -- the tag is not responding to signals, even though it can
`receive signals -- receive commands.
`And on the next slide we talk about the cloaking period.
`Excuse me, if we could go back one slide, sorry.
`So the one thing that the Patent Owner in its response,
`on page 9 of the Patent Owner's response does do is try to
`interpret or add language we would say to what this construction
`provides, that the construction respond requires it means it
`backscatters, so the tag backscatters.
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`Patent 6,690,264 B2
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`You know, certainly the '264 patent does backscatter,
`but I don't think that the concept or the teachings of the '264, what
`it discloses was limited in these claims to a backscattering tag, so
`we don't think that additional interpretation on the construction
`was necessary or appropriate.
`And then cloaking period, which we'll go to next, but as
`what does it mean, you know, for this cloaking period and then
`the third thing that they add on page 9, interpretation is that a
`cloaked tag, you know, receive a command that lifts it out of its
`cloak state and certainly the tag has to be able to receive
`commands while being cloaked. That's clearly what the '264
`patent was intending to claim.
`But to the extent that there was an argument that the
`'264 patent has to be able to receive a command that lifts it and
`actually lift it out of a cloak state, our papers cite a continuation
`application, a patent, the '653 patent, which was a patent that was
`devoted to claiming that aspect.
`And there was a doubling patenting, and the file
`histories are part of the record in this proceeding, and there's a
`double patenting rejection in that later patent over the '264 of
`saying this is the same invention you're claiming and the
`distinction that was made in the prosecution history is, no, the
`'264 patent claims are about being able to receive the command.
`The'653 patent is about actually bringing it out of a cloak state in
`response to a command.
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`Patent 6,690,264 B2
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`So, again, these are just additional interpretations that
`we don't think are necessary or appropriate for the construction
`that the Board adopted in its Institution Decision.
`But go to the next slide and here's the first point that we
`have some significant disagreement with Patent Owner is on --
`Patent Owner proposes a construction of cloaking period, which
`is used in Claims 1 and 10, and the Board didn't construe or
`Petitioners didn't propose a construction for cloaking period in the
`petition, just because I think it's -- the plain language of the term
`is, you know, the period in which the tag is cloaked.
`I mean, there's really not much that it needs construed
`and, in fact, in a prior proceeding involving this patent, this was
`the proposed construction that the Patent Owner had proposed to
`a magistrate judge for how to construe this term.
`In those proceedings, however, Patent Owner has tried
`to submit a different construction that adds a lot more limitations
`to the construction, that the construction has to have a -- that it's a
`predetermined period of time, that the command has to be
`shortened by -- the cloaking period has to be shortened by a
`command, which, again, is inconsistent with the arguments made
`for the '653 patent and that the tag does not backscatter, which we
`would also say that the '264 patent isn't limited in its claims, its
`broadest reasonable interpretation of its claims to a backscattering
`tag.
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`And in the discovery --
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`Patent 6,690,264 B2
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`JUDGE PERRY: Counsel, if we were to adopt that
`construction on the screen, would the Patent Owner avoid the
`references?
`MR. MAMMEN: No, Your Honor, and actually we'll
`go through those as well. So this doesn't affect the construction
`of -- it certainly doesn't affect the grounds that were instituted for
`Atkins, which was anticipation for all the claim, and it doesn't
`affect the grounds for the Kruest and Turner combination as well.
`There's no dispute that Kruest actually discloses a
`cloaking period with the exception of the command, the
`command aspects which is what the Turner reference we submit
`teaches. So certainly those two grounds would still be maintained
`even under this construction.
`The cloaking period -- in the next slide I questioned the
`Patent Owner's expert about this and why the change of
`construction, and there wasn't really an explanation given for why
`based on the '264 file history or the '264 patent that it was
`appropriate to change its construction.
`Admittedly, you know, it was a change to reflect this
`Board's Institution Decision which instituted finding reasonable
`probability that there was art that read on these claims and so I
`don't think that the proposal has support or the Patent Owner
`hasn't identified support in the specification, in the file history for
`this patent for the reason for changing a cloaking period to add
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`these limitations to talking about predetermined period of time
`and to talk about all these other aspects.
`JUDGE PERRY: Counsel, is the related District Court
`case stayed pending outcome here?
`MR. MAMMEN: So there's somewhat of a history on
`this patent and these proceedings. So this -- what were identified
`here was from a District Court case that concluded in I believe
`2013. It wasn't Kapsch, my client. The Petitioner was not the
`party in that lawsuit. It was a different party.
`To answer your question now, this case -- this patent
`was in a District Court proceeding. It's no longer in that
`proceeding in Delaware, but the language that --
`JUDGE PERRY: Did that proceeding reach a final
`construction?
`MR. MAMMEN: Not a final construction, Your
`Honor. It was a tentative construction for purposes of a
`preliminary injunction and that was construction that the
`magistrate judge adopted at the preliminary construction stage or
`preliminary injunction stage, but it was not a final adopted
`construction of the Court.
`JUDGE PERRY: Thank you.
`MR. MAMMEN: And if we could go to the next slide,
`slide 9. We won't spend a lot of time on this, but, again, it's just a
`point that there was -- the construction of a term that needs to be
`based and the specification needs to be based in the prosecution
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`history of the reference. It shouldn't be one that is malleable
`based on what happens in litigation and so we submit that there is
`really no basis for adding or changing the construction of
`cloaking period.
`Go to the next slide. The other term that is at dispute in
`the sense that the Patent Owner proposed a construction of is the
`disabling communications element of the claims and the proposal
`that the Patent Owner submits is that disabling communications
`requires that you generate a signal and then not send it and that
`that's what was required under the broadest reasonable
`interpretation of disabling communications.
`And as Patent Owner's expert admits, there's different
`ways of disabling communication. You could generate a signal
`and then not send it or you could just stop the generation and
`formation of the data signal to begin with, and so we don't think
`that under the broadest reasonable interpretation of the claims
`disabling communications requires that you actually have
`generated the data signal first before sending it.
`And conceptually it doesn't -- in these passive tags you
`wouldn't want to spend the extra power of generating a signal if
`you're not going to send it. It's just the way these passive tags
`work, as our expert declarations and testimony explains, is you
`don't -- there's a power usage to generate a data signal in your
`circuitry and so you wouldn't want to have the tag to generate the
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`signal only for it to just remain in some hold because you've
`disabled the output.
`JUDGE ARBES: But, counsel, doesn't the claim
`language somewhat imply that? I mean, disable -- disabling
`communication of data signals during cloaking of said RFID tag,
`doesn't that imply that the data signals exist? They've been
`created. You've just disabled their communication.
`MR. MAMMEN: I don't think it implies that they have
`to exist. The focus of that is to disable the communication of data
`signals. So, again, as you could disable by not -- if you would
`otherwise have formed the data signal in the code generator or
`whatever mechanism and you just -- you don't turn on that aspect,
`you've disabled the communication of data signals.
`JUDGE ARBES: But I've also disabled the creation of
`the data signals.
`MR. MAMMEN: I'm sorry?
`JUDGE ARBES: I've also disabled the creation of the
`
`data --
`
`MR. MAMMEN: You may have done that as well, but
`you certainly have disabled the communications of them as well.
`I mean, if you look at the broadest understanding of what that
`would mean, the focus is on the disabling aspect. What you're
`trying to do there is prevent the tag from sending data signals
`back and so that's what the claim language is trying to achieve.
`It's not -- there's nothing in the patent that discusses a need to let's
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`generate the data signals but just not send them. That's not the
`concept that the patent was even concerned about.
`You know, if you look at the '264 patent, it's about not
`sending things. And so if you don't send things because you
`haven't generated a signal, that fulfills the objective of the '264
`claims.
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`JUDGE ARBES: I guess what I'm concerned about is
`your interpretation seems to be maybe a bit too broad in that if I
`had a tag that never created or sent signals for a period of time, it
`seems like that would meet your interpretation. If I've never
`created them, never created anything, I've never sent anything and
`in your view I've disabled communication of that thing that was
`never created.
`MR. MAMMEN: Your Honor, I think that it doesn't go
`that broad because you would still have to -- there has to be some
`meaning to disabling. So if you never would be generating or if a
`tag would never otherwise have been receiving a command that
`would otherwise have responded to and so, as I understand Your
`Honor's question, if, for example, the tag just doesn't -- wouldn't
`otherwise respond no matter what, there's no disabling that's
`occurring. It's not being interrogated by a reader, it's not being --
`you know, otherwise it would be asked to form a signal and
`respond. It's just nothing is happening.
`You know, we're not arguing it that broad. What our
`argument is, is you have to somehow inhibit or prevent the tag
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`from responding. But whether it's preventing the tag from
`responding is because you are shutting off the output at the
`antenna or because you're preventing the tag from generating the
`response in its logic to send, both of those are fulfilling the
`objective of disabling the communications.
`JUDGE ARBES: Okay. So you would acknowledge,
`then, if I have to prevent or inhibit it from being communicated
`that sometimes I do have to communicate it. There has to be
`some circumstances in which I do communicate the data signals.
`MR. MAMMEN: I think if I understand, I think I
`would say that, yes, if you have to prevent it from
`communicating, the result should be if you aren't preventing, if
`whatever you're doing to disable you don't do, the tag would
`otherwise respond. So if you didn't have this disabling function
`on the art or whatever, then the tag would otherwise respond to
`the interrogation of the reader, so I do agree with that.
`JUDGE ARBES: Okay. And is that concept part of
`your proposed interpretation for this language?
`MR. MAMMEN: So this is not language that we in our
`petitions had proposed construing, but I think it is part of our
`arguments with respect to the Patent Owner's construction that we
`don't think what they propose is too narrow, but what we think is
`-- but we don't think the term needs to be construed. We haven't
`proposed it. But to the extent the Board does, yeah, I mean, that
`certainly is part of what we think is construction of disabling that
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`it -- there is something in the tag that prevents a tag from
`responding when it otherwise would have.
`And if we go to the next one, there's also some
`discussion of switch. The Patent Owner would limit switch to an
`electrical and mechanical device used for opening and closing.
`And the Board addresses in the Institution Decision, we had
`proposed in -- that our prior art in the Marsh reference and the
`Turner reference -- Marsh uses a flip-flop and Turner uses a
`resettable flag -- but they met the limitations of dependent claims,
`which talked about a switching transistor, and the Board didn't
`institute on those grounds, but I think appropriately recognized in
`the Institution Decision that switch, while the dependent claim I
`believe is Claim 9 is narrower, switch as used in the independent
`Claim 1 is broader. It doesn't incorporate those limitations of the
`dependent claim and so, you know, we submit that it's too
`narrow, it's not the broadest reasonable interpretation to construe
`switch to require a particular electrical, mechanical device.
`And in this ground, again, Your Honor asked the point
`of what this applies to with regard to one of the other
`constructions. Really, the only dispute with regard to switch
`limitations is with Turner and Marsh. There is no dispute that
`certainly Kruest discloses a switch. It doesn't disclose in this
`exact way. That's the obviousness aspect of it. But in the Atkins
`reference it discloses the claim switch as well.
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`So we'll proceed, then, to the grounds that the Board
`instituted on. And if we go to the first ground, it would be Atkins
`in slide 14, please.
`And in our papers, petition, we showed the elements of
`Atkins and, you know, here is the claim as well on how those
`match up with the claim, Claim 1, and then slide 15 also shows
`there's an additional requirement of an input circuit. Atkins
`shows that as well. Again, this is in our petition.
`And then if we go to the next slide, we understand there
`would be basically four limitations overall in this proceeding that
`are disputed and they're not disputed for each reference the same
`way and so what we have here, which was in our reply, is a chart
`to try to orient us to what is actually at dispute for any particular
`reference.
`And in Atkins you could see that we have the question
`about the cloaking period, which we'll get to, and the disabling
`communications, again, does that require that you have fully
`formed the data signals before disabling them and then what it
`means to isolate signals as well.
`If we can go to slide 18.
`JUDGE PERRY: Before we leave Atkins, let's go back
`to slide 14. Are the signals the -- what is generated by that code
`generator inside the logic circuit, is that where the signals are
`coming from?
`MR. MAMMEN: Yes. So the signals --
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`JUDGE PERRY: -- the claim on Atkins?
`MR. MAMMEN: Yes. So the logic circuit enables the
`code generator to --
`JUDGE PERRY: So those are the signals that are either
`permitted or not permitted to be transmitted through the antenna.
`MR. MAMMEN: Yes. Those are the signals that are
`eventually -- would otherwise eventually be transmitted through
`the antenna. I mean, you have components going into -- I'm
`sorry, Your Honor.
`JUDGE PERRY: So how does the switch, the transistor
`switch prevent or enable signals to be transmitted? It appears that
`the code itself biases the switch. I don't see any other mechanism
`for controlling that switch. How do you read -- I'm asking for a
`little more detail on how you're reading the claim limitation on
`that switch, that transistor switch?
`MR. MAMMEN: So the -- if I could just refer Your
`Honors to orient us back to what Atkins does say on -- and it's
`Exhibit 1006. We don't need to bring it up, but 1006 on page 10,
`paragraph 5, talks about the code generator is enabled by the
`logic circuit which modulates a transistor Q1 with a code.
`The logic circuit, I mean, even in the -- so the logic
`circuit is controlling the code generator, which controls the
`switch. We don't understand the claim that would require that --
`again, to the disabling limitation that the data signals be generated
`in order for it to be disabled. We think that as long as the logic
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`circuit is disabling the generation of data signals, then the switch
`is being controlled and isn't sending the signals through the
`antenna.
`I don't know if I'm answering Your Honor's question,
`
`but --
`
`JUDGE PERRY: So the antennas are never switched to
`connect and disconnect from a ground to cause backscattering or
`not backscattering.
`MR. MAMMEN: I'm sorry, I was misunderstanding.
`The antennas are actually, but the only time the antennas are is if
`they've been enabled by the code generator to send the signal.
`And so if the code generator doesn't -- isn't sending the signal, the
`antenna isn't connecting to the ground at the bottom center there.
`You know, the switch is enabling -- there's no communications
`going through that switch. The necessity is that the code
`generator, you know, enabled by the logic circuit, the code
`generator will generate the signal, but then sends the switch,
`which will then connect and disconnect from the ground to
`modulate the signal that the tag sends.
`JUDGE PERRY: Thanks.
`MR. MAMMEN: Thank you, Your Honor.
`JUDGE ARBES: If the logic circuit is disabling the
`generation of the output signal, then it doesn't matter what
`happens with the switch, right? There is cloaking and disabling
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`the generation of the signal -- it doesn't matter what the switch is;
`is that right?
`MR. MAMMEN: I'm sorry, I'm just trying to think of
`the full implications of that. You know, the switch -- if the logic
`circuit is disabling the output, you're not sending anything
`through the switch. I mean, the switch is not connecting to
`ground, so it can't backscatter.
`I'm not sure I'm -- I want to think about the full
`implications of what Your Honor is saying because, you know,
`these tags, depending on what the nature of the switch is, you
`know, whether it's connected or not can have certain noise, if you
`will, to the background and so -- but I think to Your Honor's
`point, if the tag is not sending -- the code generator is not sending
`a signal to the switch, it's not connecting/disconnecting from the
`ground. It's being prevented from doing that and, therefore, being
`prevented from communicating.
`JUDGE ARBES: Okay. But, as I understand your
`position, that disable the output from said RFID tag during a
`cloaking period, your position is that's met by the logic circuit
`disabling generation of the output signal; is that right?
`MR. MAMMEN: Yes.
`JUDGE ARBES: Okay. So if that's the case, if it's
`solely up to the logic circuit to disable generation of the output
`signal, then it doesn't matter what the switch does or what
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`anything else does. If I never generate the output signal, I never
`communicate it.
`MR. MAMMEN: You don't, but the switch -- I mean,
`the concept that the claim is getting at is preventing the switch
`from connecting and disconnecting by sending a signal and so
`you've -- you could do it on two ends. You could do it on the end
`after the signal is generated or you could do it on the end before
`the signal is generated, but I don't think it changes what the '264
`is claiming or the concept of disabling the transfer of signals
`through the switch to the antenna.
`JUDGE ARBES: Okay. So there's two ways to do it,
`but your position is that the way that Atkins does it meets the
`claim language.
`MR. MAMMEN: Yes, Your Honor.
`JUDGE ARBES: Okay.
`MR. MAMMEN: And if I jump to slide 18, and here
`we -- again, as I mentioned in my opening remarks that, you
`know, the art uses different terminology and Atkins discusses this
`as mute. The concept we think is the same as cloaking is muting
`the tag and it mutes it by inhibiting the transponder from
`transmitting.
`So to Your Honor's earlier point, you know, this is not
`just you're not ever -- you would never otherwise generate a data
`signal, I mean, Atkins is talking about you -- inhibit implies that
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`you would otherwise have done something and you're stopping it
`from the generation of data signals.
`In the next slide, Patent Owner's expert -- there's no
`evidence in the record on this cloaking period limitation. We
`submit to -- that supports reading that and not reading Atkins on
`it if you don't adopt the Patent Owner's construction. You know,
`the expert, Patent Owner's expert analyzed the art of Atkins under
`the Patent Owner's construction.
`And then if we could go to the next slide. The dispute
`on cloaking period, again, was whether there's a predetermined
`period of time requirement to cloaking period. And
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