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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`AXON ENTERPRISE, INC.,
`Petitioner,
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`v.
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`DIGITAL ALLY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00375
`Patent 8,781,292 B1
`____________
`
`Record of Oral Hearing
`Held: February 23, 2018
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`Before PHILLIP J. KAUFFMAN, MINN CHUNG, and ROBERT L.
`KINDER, Administrative Patent Judges.
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`Case IPR2017-00375
`Patent 8,781,292 B1
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`MICHAEL D. SPECHT, ESQUIRE
`RICHARD M. BEMBEN, ESQUIRE
`Sterne Kessler Goldstein & Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`ON BEHALF OF PATENT OWNER:
`
`
`JENNIFER C. BAILEY, ESQUIRE
`ROBIN A. SNADER, Ph.D.
`Erise IP
`7015 College Boulevard
`Suite 700
`Overland Park, Kansas 66211
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`
`
`The above-entitled matter came on for hearing on Friday, February
`23, 2018, commencing at 2:04 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00375
`Patent 8,781,292 B1
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`P R O C E E D I N G S
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`JUDGE KAUFFMAN: Good afternoon. I'm Judge Kauffman.
`I'm joining you from my duty station in Pennsylvania. Also joining you
`remotely is Judge Chung from his duty station in California and with you
`in the courtroom today is Judge Kinder.
`I guess, first, I'd like to say I'm sorry that we're starting late and
`I appreciate your patience.
`Patent Owner, could you please come to the podium and
`introduce yourself and anyone else that you'd like to introduce for today.
`MS. BAILEY: Yes, Your Honor. My name is Jennifer Bailey
`and with me is my colleague, Robin Snader, and we're from the law firm
`of Erise IP.
`JUDGE KAUFFMAN: Thank you, Ms. Bailey. And did you
`give a business card to the court reporter?
`MS. BAILEY: Yes, Your Honor, I did.
`JUDGE KAUFFMAN: And how much time would you like to
`reserve for rebuttal on the Motion to Amend?
`MS. BAILEY: 10 minutes, please.
`JUDGE KAUFFMAN: All right. Judge Kinder will keep the
`clock for you there in the room so that you're able to see it. Thank you,
`Ms. Bailey.
`And, Petitioner, would you please come and introduce yourself
`and anyone else from your group that you'd like to.
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`MR. SPECHT: Yes, Your Honor. This is Michael Specht. I'm
`a partner with Sterne Kessler Goldstein & Fox here on behalf of Axon
`Enterprise, the Petitioner. With me today is Richard Bemben also from
`our firm and backup counsel in this matter and we are also pleased to
`have with us Pam Petersen, a representative from Axon Enterprise.
`JUDGE KAUFFMAN: Thank you. And how much time
`would you like to reserve?
`MR. SPECHT: I would like to reserve 35 minutes, Your
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`Honor.
`
`JUDGE KAUFFMAN: And did you give a business card to the
`court reporter?
`MR. SPECHT: I did, Your Honor.
`JUDGE KAUFFMAN: Thank you.
`I do want to let you know that I can see the courtroom and so
`can Judge Chung, but I cannot see the visuals that you have. We each
`have your demonstrative exhibits and a file that allows us to see
`everything, but if you would just please be careful to say I'm on slide 5 or
`I'm on slide 7. That also gives us a better transcript for the record and is
`helpful when we're writing the final decision.
`I note that there were no objections to demonstratives, so there's
`no need for us to talk about that. At this proceeding please do not object
`to the other party if there is something you really need to talk about.
`Once they're done, please be recognized and we can talk about what you
`need to talk about.
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`I tend to ask a lot of questions. Please don't be thrown by that.
`We just want to make the best decision we can and there are certain
`things that I want to know more about.
`I do have one question I'd like both parties to hear so you can
`think about it and comment on it when it is your turn to speak. It looks to
`me like the Patent Owner argues that speed sensor 92a must operate by
`continuously recording because it needs to compare speed to a threshold
`speed, and that's in the Patent Owner Response at pages 27 through 30. I
`don't think that the Petition relied on speed sensor 92a as the second
`recording device and so that argument looks unresponsive to me and I'd
`like a comment from either party about that, please.
`For the court reporter, I do want to let you know we're going to
`talk about Pierce today, P I E R C E, and the other reference that you'll
`hear numerous times will 20/20-W. Two other proper names you may
`hear are Dr. Houh -- I hope I'm pronouncing that correctly -- H O U H,
`and Dr. Madisetti, M A D I S E T T I.
`And with that, I believe that we are ready for Petitioner to start
`and I think that the clock should be set for 25 minutes. Judge Kinder, if
`you would just, please, let him know when you have the clock ready to
`go.
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`JUDGE KINDER: Right. Just to confirm, you wanted 25 and
`reserve 35?
`MR. SPECHT: That's correct.
`JUDGE KINDER: Okay. The clock is ready whenever you are
`ready to begin.
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`MR. SPECHT: Thank you. Again, good afternoon, Your
`Honors. I have displayed on the Elmo Petitioner's slide 2. I'll begin by
`stating that, Your Honors, it is our view that we have demonstrated in our
`Petition that all claims were unpatentable and that Patent Owner has
`failed to rebut that showing. Rather, during the course of the trial, Patent
`Owner has disregarded some of the explicit disclosures of the Pierce
`reference as well as attempted to support their position with testimony
`from alleged experts that we don't think is particularly credible.
`As I indicated, we have slide 2 on the Elmo. Just as a reminder,
`there are two instituted grounds that all of the challenged claims were
`obvious over Pierce as well as obvious over the combination of Pierce
`and the 20/20 reference.
`We've highlighted on this slide the challenged claims. The
`good news, Your Honor, is that the focus of this trial really has been only
`on Independent Claim 1 which we've highlighted in red. The Patent
`Owner has not challenged our positions on any of the dependent claims
`or dependent features.
`And with respect to Independent Claim 1, really the dispute
`focuses on two claim elements. Those I am now putting up. It's
`Petitioner's slide 10. Those elements are what I refer to as the first
`communication signal element and the second communication signal
`element. Those are the core of the dispute in terms of the primary case
`here.
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`Now, I want to give some context to those elements, so I'm now
`placing on the Elmo Petitioner's slide 11, which is Figure 1 from the '292
`patent.
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`And for the remote judges, if I'm going too fast, not allowing
`you to get to the slide, just let me know and I'll slow down my pace here.
`I wanted to highlight, as I said, give some context to the two
`elements or the two features in Claim 1 that are in dispute. With respect
`to Figure 1, Figure 1 there are three elements that are relevant, one being
`element 12 which is the recording device manager, the second one being
`element 14 which is referred to as the vehicle recording device and
`element 18 is the personal recording device. Those three elements are the
`primary structure of the system of '292.
`And with respect to the communication signals that I just
`alluded to, in one embodiment what you have is that personal
`communication -- or personal recording device 18 will send a first
`communication signal to element 12. That indicates that it's recording.
`In response to that, the recording device manager 12 sends a second
`communication signal to, in this case, element 14, the vehicle recording
`device, and vehicle recording device 14 then begins recording.
`As you can see, it's pretty straightforward. Our view is that
`essentially what is being argued is the allowable feature here is
`something that was known in the art for decades. It is simply sending a
`first communication signal to a device and that device in response
`sending a second communication signal to another device. We think
`that's generally been out there for a long time, decades, and we certainly
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`believe that it has been demonstrated in our Petition that Pierce and the
`20/20 reference disclose and render obvious element -- these elements
`and, thus, Claim 1.
`Now, to bring that to the primary reference here or one of the
`primary references, I'm placing Petitioner's slide 13 on the Elmo.
`Petitioner's slide 13 is Figure 3 from Pierce which displays the
`system that is disclosed in Pierce. And while this is more detailed than
`the disclosure in the '292 patent, it is a very similar system. I wanted to
`highlight a couple items that we have annotated here in various colors.
`You have in green the controller 31, the central unit 30, which
`is the equivalent of the recording device manager of the '292 patent. You
`have element 68b which is a first recording device. It's a wireless
`microphone 68b. And then you have a series of second recording devices
`that we've highlighted, camera 62a, 62b, internal microphones, etcetera,
`and this system works precisely the same way as the '292 patent, only
`Pierce came out approximately eight years before the '292, earliest
`potential priority date of the '292 patent.
`What you have here and what we've identified in our Petition is
`that you have a first recording device such as wireless microphone 68b.
`It sends a signal to controller 31, the recording device manager. Lets it
`know it is recording. Then the recording device manager sends a second
`signal, the second communication signal, to one or more of these second
`recording devices to start those devices recording. So, as you can see, the
`disclosure here in this figure is very similar and the operation is very
`similar to that that's in the '292 patent.
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`And I wanted to jump back to Judge Kauffman's question about
`whether we relied on the speed sensor 92a. We did not in our Petition, so
`just to answer your question, Your Honor.
`JUDGE KAUFFMAN: Thank you.
`MR. SPECHT: Now, I'm putting up Petitioner demonstrative
`slide 3 and this is kind of a summary of our views, sort of a repeat of
`what I've said previously and why we believe all claims are unpatentable.
`Pierce and the Pierce-20/20-W combination teaches or suggests
`all the claim limitations and certainly teaches the first and second
`communication signal. Beyond that, we think throughout the proceeding
`that the Patent Owner has mischaracterized and simply disregarded some
`explicit statements in Pierce as to what it's teaching and what it's
`disclosing.
`And, lastly, with respect to the relative weights that the Board
`may place on the testimony of the experts, we think the weight placed on
`our expert should be far greater than on their expert's testimony,
`primarily because we do not believe that Captain Ayers qualifies as an
`expert and Dr. Madisetti's testimony often was inconsistent --
`JUDGE KINDER: Did you file any kind of Daubert motion or
`Motion to Exclude?
`MR. SPECHT: We did not. We're not attempting to exclude
`his testimony. We're going to the issue of how much weight this panel
`should place on it.
`And so now I want to get right to what we think is the heart of
`the issues with respect to the two claimed elements that are being
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`disputed. So I'm putting up Petitioner's slide 14 and this is our
`demonstration that Pierce teaches or suggests the first communication
`signal limitation.
`You can see on the left side of the figure is Figure 9 from
`Pierce which is the recording device 68b and microphone and there is a
`help button identified 72b. We've highlighted an excerpt from Pierce,
`paragraph 68, which explicitly discloses the first communication signal.
`And just to highlight that, starting near the top where it's
`highlighted in yellow, the operator depresses the help button 72b, as
`shown in the figure, to send a distress signal to a transceiver to the
`controller 31, and recall the controller 31 is what we've likened to the
`recording device manager, and recording media 44. When the button is
`depressed, a signal is sent from the second microphone 68b to the
`controller and the recording media and the junction box or otherwise.
`The controller 31 and the recording media 44 then record the distress
`call.
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`So in this one paragraph which we cited to in our Petition and
`explained, pages 41 and 42 discloses a signal, this distress signal being
`sent from the microphone or the radio to the controller 31. That's your
`signal. And then as shown here, the controller and the recording media
`starts to record the call, the event.
`JUDGE KINDER: When you say starts to record in this
`particular embodiment here in paragraph 68, is the event being
`pre-recorded at this time?
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`MR. SPECHT: It is not and I will come to that. That issue is
`certainly more germane to the second communication signal and the
`arguments and, really, that is the principal issue in this case which I will
`turn to now.
`JUDGE KINDER: No, you can stay on track.
`MR. SPECHT: Actually unless there's questions, we believe
`the disclosure there is absolutely crystal clear in terms of what Pierce
`teaches and shows the first communication signal, the distress signal and
`that there's recording of the event, the call itself occurring at that point.
`So now I'm placing Petitioner's slide 16 and we're moving onto
`the second communication signal limitation. So, again, in the left-hand
`side of the figure we show Figure 9 from Pierce. In the right-hand side
`we show an excerpt from Pierce, paragraph 84, which we refer to and
`relied on in our Petition on page 26 and here what we're highlighting is,
`again, when the call button from our previous slide, right, when that's
`depressed during the event recording, the controller 31 automatically
`record data from two predetermined cameras 62, 62a, 62b. So these are
`-- it's automatically starting the recording at the second, third, fourth
`recording devices.
`And we support -- and from our perspective that discloses the
`second communication signal being sent to these additional recording
`devices to begin recording. We support that with our expert's
`declaration. I'm now placing Petitioner's slide 17 on the Elmo where
`highlight in yellow where he notes paragraph 84 teaches one skilled in
`the art by pressing the help button, the controller records sound data from
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`that particular microphone and then activates the internal microphone to
`record, activates at least two predetermined cameras to record video data.
`So it sends a signal to those devices.
`So, furthermore, in his declaration Dr. Houh indicates in
`paragraph 178 and about the second line, and I'm going to read from that,
`in particular, to the extent that the function of the recording device
`manager requires transmitting a second communication signal to the
`second recording device instructing the second recording device to
`record, Pierce implicitly teaches or suggests to a person of ordinary skill
`in the art such a function.
`Dr. Houh then goes on in that paragraph to support that, for
`example, a person of ordinary skill in the art would understand the
`combined teachings of a series of paragraphs from Pierce as implicitly
`teaching or suggesting to a person of ordinary skill in the art that the
`recording -- sorry, that the recordings by the second recording device are
`activated by a communication signal sent to the device.
`Now, why is that statement important? It's important because it
`implicitly discloses this second communication signal being sent which is
`what was found in the Institution Decision as well.
`A comment on implicit disclosures in terms of their teaching
`and showing for rendering an element obvious, as we all know, the
`MPEP guides our world, or at least that of the Examiners. The MPEP
`2144.01 discusses implicit disclosures and, in particular, a quote, "In
`considering the disclosure of a reference, it is proper to take into account
`not only specific teachings of the reference, but also the inferences which
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`one skilled in the art would reasonably be expected to draw therefrom,"
`and the MPEP is citing to In re Preda, P R E D A, 401 F.2d 825. It's a
`CCPA case from 1968, right? So the notion of implicit disclosure has
`been with us for a long time. And based on that --
`JUDGE KINDER: So you cited something from the MPEP
`that's an In re case for the Examiner for that implicit type of disclosure,
`how based upon the burden that the Examiner has versus the burden that
`you have to prove by a preponderance of the evidence. Can you discuss
`that real quick?
`You have to prove by a preponderance of the evidence that it
`teaches or suggests. Obviously the In re Preda case is based upon
`somewhat of a different standard before the Examiner on a prima facie
`case. So it seems to me that you're relying upon an implicit type of
`argument here to actually reach that limitation, so I'm wondering how the
`standard of review that you have to meet is impacted by what you just
`said.
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`MR. SPECHT: Yeah. So certainly the MPEP is provided to
`give guidance to Examiners. The In re Preda case, as I understand it, is
`guiding us as practitioners and demonstrating that sort of the distinction
`of this gradient, right, from an inherent disclosure to an implicit
`disclosure to -- explicit disclosure to a person of ordinary skill in the art
`would understand it to be obvious and I think from our perspective by
`demonstrating the perspective of a Petitioner by demonstrating that there
`is this implicit disclosure, we have met our burden to show by a
`preponderance of evidence that a person of ordinary skill in the art
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`certainly -- this would implicitly disclose to them, as In re Preda teaches
`us, that the element, the second communication signal is present.
`And additionally, as we argued in our Petition, a person of
`ordinary skill in the art looking at this, it would be obvious to them that a
`second communication signal is being sent in light of these disclosures
`and given Dr. Houh's expert testimony.
`JUDGE KINDER: Presuming that you've met your burden,
`should we then weigh it on the Patent Owner to come back with evidence
`to essentially rebut that or essentially shift the burden to the Patent
`Owner then?
`MR. SPECHT: I believe that's correct, right.
`JUDGE KAUFFMAN: Mr. Specht.
`MR. SPECHT: Yes, Your Honor.
`JUDGE KAUFFMAN: When you move away from the
`microphone, it becomes more difficult to hear you and I'm sure for the
`court reporter as well, so if you could please stay close.
`I'm looking at paragraph 86 of Exhibit 1014 which is Pierce,
`and in that first sentence it says, "To ensure the controller 31 and the
`recording media 44 record as much relevant data as possible, in some
`constructions, the data acquisition and display system 10 is programmed
`to continuously record video data," and it goes on to list some other kinds
`of data that can be recorded. That is, I think, the only portion of the
`reference that you've identified with regard to the implicit disclosure; is
`that correct?
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`MR. SPECHT: I think here in terms of identifying or talking
`about this section, paragraph 86, it's our view that when we talk about --
`it goes to the issue of is Pierce always continuously recording, right, and
`we have this statement here that to ensure the controller which I believe
`you just read -- and, by the way, for the remote judges I have
`demonstrative slide 20 which is an excerpt of the paragraph that you just
`read from Pierce, paragraph 86, on the Elmo.
`And the first sentence there, to ensure that the controller and the
`recording media 44 record as much relevant data as possible, in some
`constructions, the data acquisition is programmed to continuously record,
`so as we've argued previously that's in some constructions suggesting,
`again, other constructions, it's not continuously recording and that's a
`fundamental issue here as we all know.
`Patent Owner's position is that Pierce is always recording and
`they disregard this language of some constructions. Our position is that
`if you look at Pierce, first of all, we don't mention continuously recording
`or discuss it until we get to, I think it's like paragraph 84, the bulk of
`Pierce does not contemplate or discuss continuous recording, but then
`here it's clear that you have some constructions where it's continuously
`recording and some constructions where it's not.
`And that was our position. That was supported by our expert.
`That is in your Institution Decision which you identified as -- I mean,
`supporting the notion that there are situations where there's not
`continuous recording going on and, therefore, that second signal would
`trigger the recording device to begin recording, right?
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`JUDGE KAUFFMAN: And what do you say to Patent Owner's
`argument that, well, Pierce gives a lot of praise to this continuous
`recording and for that reason it doesn't disclose on-demand type
`recording?
`MR. SPECHT: That it's largely irrelevant. Frankly, this
`disclosure here in some constructions discloses that both exist. There
`also is references in Pierce, or at least a reference in Pierce that talks
`about in paragraph 70, I believe it was, where it talks about the need to
`not be continuously recording in some instances in order to conserve
`memory.
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`JUDGE CHUNG: Counsel.
`MR. SPECHT: Yes, sir.
`JUDGE CHUNG: Can you hear me?
`MR. SPECHT: Yes.
`JUDGE CHUNG: This is Judge Chung. So I just want to
`clarify your position on implicit disclosure. So by implicit disclosure,
`you're not arguing inherency or inherent disclosure; is that right?
`MR. SPECHT: That's correct, Your Honor.
`JUDGE CHUNG: Okay. Thank you.
`JUDGE KAUFFMAN: And, Mr. Specht, I did not see your
`argument about MPEP Section 2144 in your Reply. Is it there and I
`missed it?
`MR. SPECHT: It is not. It is just case law that I was
`introducing to support our position.
`JUDGE KAUFFMAN: Okay. Thank you.
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`MR. SPECHT: And just to continue on on this thought with
`respect to the second -- I mean, this is our Petitioner's slide 21. Digital
`mischaracterizes Pierce and I have slide 21 up there, as I indicated, and
`the Board had found certainly, however, the disclosure that data may
`alternatively be continuously recorded indicates that there is an
`embodiment that is not recording, and we agree with that as well as that's
`supported as we put in our Petitioner Reply.
`The Fed Circuit agrees with that. We cite here to the
`Upsher-Smith case and we note in that case the European Application's
`"optional inclusion" of antioxidants teaches vitamin supplement
`compositions that both do and do not include antioxidants. That's the
`same situation we have here where we say in some constructions it's
`always recording, implying that in others it's not.
`That position is also further supported by the 20/20 reference.
`I'm putting up Petitioner's slide 23. The third bullet down, which is
`highlighted, talks about the officer help button and it says, also, when
`depressed it activates video and audio recordings if not previously
`activated, suggesting that they are not on. They're not active, therefore,
`we have to turn them on, and that's consistent with additional disclosures
`in Pierce which I'm placing on -- or not in Pierce, in the 20/20 reference.
`I put up our slide 24 where, again, it talks about recordings can be started
`or initiated by a number of triggers such as, for example, a microphone
`trigger. Additionally it talks here about DVR activation. The recording
`system is activated by any of the following and it identifies remotely
`activating an audio transmitter which would be -- one example would be
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`the microphone, and this was disclosed or addressed in our Petition at
`page 29.
`So, Your Honors, it is our view that Pierce alone and Pierce in
`combination with the 20/20 reference very clearly renders obvious both
`of these elements, the first communication signal element and the second
`communication signal element. And in that, those were the only two
`elements that were argued in this case by Patent Owner. We stand by our
`Petition that we have demonstrated that all claims are invalid and
`encourage you to find the same.
`I will rest and respond on rebuttal. If you have any -- go ahead,
`Your Honor.
`JUDGE KAUFFMAN: I do have a question for you. So I read
`Federal Circuit law to say there's a pretty strong presumption in favor of
`using the plain and ordinary meaning of a term, unless the spec is going
`to steer you elsewhere and I see that Patent Owner puts forward from
`their expert at Exhibit 2001 -- it's in paragraphs 41 and 42 -- an ordinary
`meaning from IEEE.
`I don't see a lot in your Reply about why we shouldn't follow
`that ordinary meaning. I do see you put forth from your expert your own
`ordinary meaning and kind of interestingly to me it's not from a
`dictionary or from the knowledge of skill in the art but from the '292
`patent itself. Can you talk about that a little bit?
`MR. SPECHT: I'm sorry, which term are you referring to?
`JUDGE KAUFFMAN: I am referring to the definition of
`recording. And the question is, and I'm sorry I didn't tee this up well for
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`you, is whether or not it requires storing of the data and your definition
`says, no, you're either collecting or creating the data, generating the data
`and the Patent Owner says, no, it has to be stored.
`MR. SPECHT: You know, we stand by our position in our
`Petition and the support by our expert from -- and from the perspective of
`the arguments with respect to the first communication signal and the
`second communication signal. I think in either instance the reference
`would disclose that, right? These references are so close that these
`distinctions are the distinctions in terms of how the experts view the
`terms. We've demonstrated under either way that the claim is obvious.
`JUDGE KINDER: So what you're saying is no matter how we
`construe the terms that it should not impact --
`MR. SPECHT: That's correct.
`JUDGE KINDER: -- at least from your case-in-chief --
`MR. SPECHT: That's correct. It's more -- I'm sorry.
`JUDGE KINDER: Yeah, if it impacts the Motion to Amend, I
`think you should highlight that during your rebuttal.
`MR. SPECHT: And we will, Your Honor. It is much more of
`an issue. Well, it's more of an issue on the Motion to Amend. Again,
`even in the Motion to Amend, it is not dispositive in our view. Thank
`you, Your Honors.
`JUDGE KINDER: All right. Thank you.
`JUDGE KAUFFMAN: Thank you. Judge Kinder, I
`understood Ms. Bailey to ask for 50 minutes in her first set of time.
`JUDGE KINDER: That's correct.
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`Ms. Bailey, whenever you're ready.
`MS. BAILEY: Thank you, Your Honors.
`May it please the Board. The invention claimed in the '292
`patent is quickly becoming an industry standard requested by Police
`Departments across the nation. The industry has recognized the value of
`this invention and so did Axon. This is why Axon preemptively filed the
`reexamination on the '292 patent. This is why Axon filed two Petitions
`against the '292 patent and two Petitions against the parent '452 patent.
`JUDGE KINDER: Did you submit any evidence of secondary
`or, excuse me, objective indices of nonobviousness in this case?
`MS. BAILEY: No, Your Honor. We evaluated it. It's very
`high standard in front of the Board and we feel like Pierce clearly doesn't
`teach the communication signals that we've discussed and decided to rely
`on that.
`
`JUDGE KINDER: Okay.
`MS. BAILEY: For the '292 patent alone, Axon has introduced
`four different, four different primary references amongst the various
`proceedings and Pierce is the best that they can do. Yet even with Pierce,
`Axon's own expert in his declaration stated that Pierce and the 20/20 may
`not expressly disclose the point of novelty. Pierce is nothing more than
`what Digital discussed in its related art section as prior art. Axon relies
`on supposed implicit teachings in Pierce, but Axon's arguments evidence
`that it's really unsure what Pierce teaches and so today I'm very glad to be
`here and to talk about what Pierce teaches. I invite your questions. I
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`firmly believe this art does not disclose these limitations, so let's get into
`the technical discussions.
`So, first off, you can look at our response as three different
`arguments, two for the second communication signal, one for the first
`communication signal, and I'm looking at DX-2. So with respect to the
`second communication signal, we have two arguments. The first is that
`Pierce does not disclose an embodiment that excludes pre-event
`recording and, consequently, there is no embodiment that would send or
`transmit a second communication signal to the input devices.
`The second argument with respect to the second
`communication signal is that even in a hypothetical embodiment that did
`exclude pre-event recording, all of the input devices in Pierce are still
`continuously transmitting their data back to the controller and, therefore,
`no second communication signal is needed. And then with respect to the
`first communication signal, which I'll get to in a little bit, the distress
`signal that Axon relies on is not an instruction to record.
`So turning to DX-3, we have a paragraph, paragraph 178 of Dr.
`Houh's declaration that counsel just referenced, and in this you can see
`that Dr. Houh stated in the deck Pierce alone, or as modified by 20/20,
`may not provide an express disclosure of the entire function of the
`recording device manager. In particular, to the extent that the recording
`d
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