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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`BLACKBERRY LTD.,
`Patent Owner.
`____________
`
`Cases IPR2017-00911 and IPR2017-00912
`Patent 8,745,149 B2
`____________
`
`Record of Oral Hearing
`Held: May 30, 2018
`____________
`
`
`
`
`Before SALLY C. MEDLEY, ROBERT J. WEINSCHENK, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`
`
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`Cases IPR2017-00911 and IPR2017-00912
`Patent 8,745,149 B2
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`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`NAVEEN MODI, ESQUIRE
`PHILLIP W. CITROEN, ESQUIRE
`JOSEPH E. PALYS, ESQUIRE
`Paul Hastings, LLP
`875 15th St NW #10
`Washington, DC 20005
`202-551-1990
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CHING-LEE FUKUDA, ESQUIRE
`Sidley Austin, LLP
`787 Seventh Avenue
`New York, New York 10019
`212-839-7364
`
`and
`
`SAMUEL A. DILLON, ESQUIRE
`SHARON LEE, ESQUIRE
`Sidley Austin, LLP
`1501 K Street N.W.
`Washington, D.C. 20005
`202-736-8298
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`May 30, 2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`MR. DILL: All rise.
`JUDGE WEINSCHENK: Be seated. All right. Good afternoon,
`everyone. This is a hearing for IPR2017-00911 and -00912, Google LLC v.
`BlackBerry Limited. Now, let's start with appearances. Who do we have
`here for Petitioner?
`MR. MODI: Good afternoon, Your Honors. Naveen Modi from Paul
`Hastings, on behalf of Petitioner Google; with me I have my colleagues
`Phillip Citroen, and Joe Palys.
`JUDGE WEINSCHENK: All right. Thank you, Mr. Modi.
`MR. MODI: Thank you.
`JUDGE WEINSCHENK: And who do we have here for Patent
`Owner?
`MS. FUKUDA: Good afternoon, Your Honors. Ching-Lee Fukuda,
`with Sidley Austin, representing the Patent Owner, BlackBerry, and with me
`are my colleagues Sam Dillon and Sharon Lee.
`JUDGE WEINSCHENK: All right. Thank you, Ms. Fukuda. As you
`know from our order, each side will have 60 minutes to present their case.
`We'll start with the Petitioner, and then follow up with Patent Owner. And
`Petitioner, before you begin, just let us know how much time you would like
`to reserve for rebuttal.
`I know that we do have two more hearings after these two today, so
`we'll take a 15-minute break after these hearings are concluded.
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`And just one more reminder for everyone, please refer to your
`demonstrative slide numbers, so that the Court Reporter can keep that
`accurate. Mr. Modi, you can begin when you're ready.
`MR. MODI: Good afternoon again, Your Honors. May I save 20
`minutes for rebuttal, please? May it please the Board? Based on the
`petitions and supporting evidence the Board instituted a review of all claims
`of the ’149 patent. The record now includes even more evidence than
`before, and that supports the Board's institution decisions. So we now
`request that the Board issue a final decision -- decisions cancelling all the
`claims. Let me explain why.
`Your Honor, I actually do have a copy, a hard copy of the slides,
`would you like a copy that I can hand out?
`JUDGE WEINSCHENK: Sure.
`MR. PALYS: May I approach?
`JUDGE WEINSCHENK: Yes. Thank you.
`MR. MODI: So, if you could go to slide 2, please? So, slide 2, shows
`you the grounds that have been instituted for the ’911 IPR proceeding. If
`you can go to slide 3? Again, I know the Board is already aware of the
`grounds, but slide 3 shows the grounds that are at issue in the ’912 IPR
`proceeding.
`I know we have lots of grounds here, but the issues have been distilled
`down to a few issues, some of which I'll address today. I'm of course happy
`to answer any questions you all may have, that you would like me to
`address.
`So, with that, if I could go to slide 4, please? So, if you look at slide
`4, this shows you one of the claims, it's actually the independent claim 1. As
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`the Board is aware there are actually 17 claims at issue in this case. Patent
`Owner does not make any specific arguments with respect to any of the
`dependent claims, and even when it comes to the independent claims it does
`not really distinguish one independent claim from the other, so for purposes
`of today, I plan to focus on independent claim 1.
`And if you look at claim 1, it recites a method of displaying an instant
`messaging conversation, and the method includes the number of steps
`including displaying a conversation of instant messages, displaying a first-
`time information for an instant message in the conversation in response to a
`first input. And then finally, it recites automatically changing the first-time
`information for the instant message to second-time information as time
`progresses, and displaying the second-time information instead of the first-
`time information.
`Again, I know the Board has read all of the issues really surround --
`around the last limitation, so that's what I plan to focus on today. Again, I'm
`happy to address any questions the Board may have.
`So, if you look at -- if you go to slide 5, please? Slide 5 lists the claim
`construction issues that are before the Board. Let me start with the easiest
`one, which is the last issue on the slide, the first input. There actually does
`not appear to be a dispute with respect to this limitation, so, again, unless the
`Board has any questions I do not plan to address that limitation today.
`And as for the "automatically" limitation, there are two issues. One is
`what does "automatically" mean? Does it -- should it be interpreted to
`preclude the manual initiation of prior operations, as the Board held in its
`institution decision? Or does it mean something else? And does
`automatically modify displaying, that's the second issue.
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`In our view, because the prior art discloses these claimed limitation,
`the "automatically" claim limitations under our construction, under the
`Board's construction, and even under the Patent Owner's construction, I plan
`to focus on these issues just briefly. Again, I'm happy to address any
`questions Your Honors may have.
`So, if you go to slide 7. So, slide 7 summarizes the party's positions
`with respect to automatically -- with one caveat, which we will probably get
`to in a minute.
`So, let's start with the Patent Owner's construction on automatically.
`The Patent Owner basically says automatically means not manually initiated.
`There's more to it when you look at their papers, I think at times it's really
`not clear what they mean by not manually initiated, but the Board in its
`institution decision did adopt the "not manually initiated" language, but with
`one clarification, and that's shown on the screen here.
`And that clarification basically says: the term "automatically" only
`applies to the specific operations of changing and then displaying the time
`information, and that other prior operations can be manually initiated.
`Now, it's our view, with respect to the Board construction, that it is
`similar to the Petitioner's construction, which is basically a plain and
`ordinary meaning of the term automatically, under the BRI standard, and
`that is by itself, with little or no direct human control.
`Again, given the only similarities in the Petitioner's construction, and
`the Board's construction, we believe the Board should adopt Petitioner's
`construction, and I'll tell you why. It's really simple. We believe our
`construction captures the meaning of this term in a positive manner, not in a
`negative manner, and second, we believe it's more clear.
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`As I indicated that Patent Owner, if you look at their papers in terms
`of not manually initiated, it's not very clear what they mean by not manually
`initiated.
`JUDGE WEINSCHENK: Mr. Modi, how is your construction which
`includes words like, little or no, more clear than our construction? It seems
`to me that the phrase "little or no" would require further construction?
`MR. MODI: Your Honor, that's a good observation. You know, I
`think from our perspective you certainly can even take that out of our
`construction if you wanted to. What we are trying to get at is, like you said,
`from a claim construction perspective, we were trying to recite the limitation
`positively, because it says, automatically changing, and then goes on and
`says displaying.
`So, from our perspective, I think the way we look at our construction,
`it's perhaps a flip side of what the Board has done. So, the Board looked at
`not manually initiated, and then clarified that phrase. If the Board wanted to
`keep that construction, like I said, from our perspective prior art teaches that
`construction -- the claim limitations under that construction, and I'll explain
`why in a few minutes. But we just think our construction captures the
`essence, the automatic concept in a more positive manner.
`So, if I could, with that, and I guess the other little point I'll make is,
`the parties are disputing whether automatically modifies displaying, it's our
`belief that it doesn’t. Petitioner -- or Patent Owner is arguing that it does
`modify displaying.
`And again, for purposes of today, that issue is well briefed. Unless
`you have questions, I'd like to go right to the prior art, because from a prior
`art perspective it doesn’t really matter.
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`JUDGE WEINSCHENK: Mr. Modi, I do have one question about
`this. How do you address the portion of the specification that's at column 7,
`about lines 37 to 50? And I'll read the portion that I think is most relevant.
`It says, "The first time stamp potentially could be configured to
`automatically change from being displayed as 2:44 p.m., to for instance 2:44
`p.m. Thursday." And the language I think is most relevant there, it says:
`configure to automatically change from being displayed. That seems to
`indicate that the word "automatically" refers to changing the display and not
`just changing time, as you seem to indicate.
`MR. MODI: Right. Your Honor, and I do recall the Board had this
`discussion in its institution decision as well, so from a displaying perspective
`we believe if you start with the claim language, the claim language says:
`automatically -- actually, if we can go to slide 4, please?
`So, if you look at the claim language, starting with the claim language
`as the Board is always required to do, if you look at the claim language it
`says, "Automatically changing the first-time information for the instant
`message to a second-time information." And it goes on to say, "And
`displaying," so if you just start with the plain language of the claim, we
`believe the plain language of the claim certainly suggest that "automatically"
`only modifies changing and not displaying.
`So, then when we go to the specification, as Your Honor pointed out,
`we believe that passage, again, if you look at column 7, and specifically the
`line -- the sentence you pointed out too, Your Honor, it says, "Automatically
`changed from being displayed." So, again, from our perspective, the way we
`look at it, it's saying it's automatically changing, and then it goes on and
`talks about displaying.
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`And as Your Honor, is aware, the specification has a number of ways
`in terms of how displaying could happen. For example, the time stamp
`could be displayed with the user manually going in and using, for example,
`the Figure 6A embodiment, and if I could actually jump to that.
`So, we can use this one as an example. So, if you go to slide 23. So,
`if you go to slide 23, one way displaying -- the patent teaches us that it
`displays a time stamp, yes, when you hover over the message, right? You
`can see the hand which is on slide 22, highlighted in red, and then you have
`the -- the time stamp 478.
`As you may recall this specification says that's one way to display it.
`Another way is the Figure 6 embodiment that I was referring to, that Your
`Honor is aware of. There, you actually have the user going in and actually
`pulling up a gooey interface, and inserting the time stamp. So, our reading
`of the specification is that it doesn’t necessarily limit automatically when in
`that passage to just both changing and displaying, and it's only changing.
`JUDGE WEINSCHENK: Does this embodiment -- that you are
`showing us here on the slide, does that describe automatically changing, but
`not automatically displaying? Where's the automatic change?
`MR. MODI: So, Your Honor, in this embodiment if you look at what
`they talk about, you can actually see it here, so they basically talk, about that
`this is activated by the cursor 474, but then it goes on right afterwards, in
`column 7, around line 59, and I'll let you get there. Let me know when you
`have it, at column 59 -- I guess, sorry, column 7, line 59.
`JUDGE WEINSCHENK: Okay.
`MR. MODI: So, as you may recall, BlackBerry actually likes to point
`to this passage in support of their claim construction, so if you look at this
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`passage, it's a continuation of the Figure 10 embodiment, and it goes on and
`says, "Such a time stamp 478, could be configured to be an active time
`stamp," meaning that it would change as time progressed.
`And it goes on, "Basically, it builds on this Figure 10 discussion, and
`suggest that you would actually change the -- it would progressively change,
`the time stamps would progressively change."
`So, in our view again, you know, if you look at the totality of the
`specification, and then of course, you know, if you look at the prosecution
`history, if I could go to slide 20. Can I go to slide 20, please? So, if you
`look at even slide 20, during prosecution when they added -- when it added
`automatically to the prosecution history, what they did was, again, every
`time they added or it would automatically, on in this case, claim 1, it was
`added in front of changing, and even if you go to slide 21, the statements
`related to the prior art also confirm automatically only modifies changing.
`But like I said, Your Honor, at the end of the day, it doesn’t matter. If
`the Board kept its preliminary construction to say, automatically modifies
`displaying as well, we think the prior art meets that as well.
`Did I answer your question, Your Honor?
`JUDGE WEINSCHENK: Yes. Thank you.
`MR. MODI: So, if I could jump to slide 26, so slide 26, again shows
`you the issues with respect to the prior art, so I hope to address at least the
`first three issues in my opening presentation today, but if time permits, or if
`the Board has any questions, I can address the others as well.
`As a preliminary matter though, before I get into the discussion of the
`prior art, I think it's worth noting that BlackBerry, when it attacks our
`arguments, and the combinations it Patent Owner's response, it really attacks
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`the references individually. We had put forward an obviousness set of
`combinations here, so I really do think the Board needs look at the
`obviousness combination, not at the references individually. But even if you
`look at them individually, again, we think that the claims are rendered
`obvious, as I'll explain now.
`So, if you go to slide 27, please? Let's start with the Graham set of
`combinations. And if actually, we could go to slide 28. So, if we zoom in
`on the Graham set of combinations, the Patent Owner makes a number of
`arguments with respect to Graham. And I'd like to address each of them.
`So, starting with the first argument with respect to whether Graham
`discloses that the mixed media messages are SMS instant messages, and let
`me address that first. So, if you go to slide 29, please. Going back to the
`claim, again, as the Board is aware; it's a method of displaying an instant
`message -- an instant messaging conversation, and it talks about instant
`messages.
`Graham simply discloses communicating mixed media messages via
`short message service as it's commonly known, which is a type of instant
`messaging service. I think it's undisputed from -- in this case that the SMS
`service is an instant messaging service. The issue before the Board is
`whether we have shown that the mixed media messages in Graham are
`communicated via SMS, and we believe the record contains plenty of
`evidence to support that showing. Let me get into that.
`So, if you go to slide 30. So, what we had done in our petition is, we
`had pointed to Figure 13D, and I apologize, it's pretty small on the screen,
`but it's on the bottom right of that screen. That figure, Figure 13D discloses
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`mixed media messages are communicated between users of the mobile
`device.
`So, what's Patent Owner's argument? The Patent Owner says, well, if
`you look at Figures 13A, B and C on the screen there, the top two and the
`bottom left figure. They argue that the text that's contained within those
`images, where it says, "Texting with Bob underscore text using email," they
`say because of that, the mixed media messages in Graham are
`communicated via email.
`We disagree with that and, you know, we believe Figures 13A
`through C are examples of screen shots. At most, even if you want to give
`them that perhaps mixed media messages in one embodiment are
`communicated via email, we don't think Graham is just limited to that. And
`let me explain why.
`So, if you go to slide 31. So, if you look at Graham, and when it talks
`about mixed media messages. What are they? It tells us they include,
`among other things, textual and image contents; it includes only textual
`content, and only image content. So, you can see that there are at least three
`types of content that a mixed-media message can include.
`That's precisely how Graham also describes SMS messages, and that's
`at Graham column 11, 20 through 61. So, if you go to slide 32. Graham
`does not limit the medium for communicating mixed media messages to
`email. In fact, Patent Owner does not actually argue that mixed media
`messages cannot be transmitted via SMS.
`And then Graham explains that the mobile device can actually
`transmit messages via SMS. In fact, if you look at Patent Owner's expert's
`deposition testimony in this case, the cross examination testimony, he
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`admitted that mobile device can transmit mixed media messages, and that's
`at Exhibit 1018, page 148, line 21; to 149, line 5.
`So our expert, after considering all these teachings, concluded that
`Graham discloses communicating mixed media messages via SMS, and you
`have to realize, Your Honor, this is an obviousness combination, so if you
`look at the totality of Graham's teachings, it certainly would -- one of skill in
`the art, as our expert did, concluded that Graham does disclose
`communicating mixed media messages via SMS.
`So, if you could go to slide 34? As the Board may recall, we also had
`a ground based on Deshpande where we said, well if -- and those grounds
`are 7 through (inaudible), by the way, for the record, and those grounds
`basically describe how the instant messaging terms would have been
`obvious based on Deshpande.
`So, if you go to slide 35 please. So, here Patent Owner's argument
`basically boils down to this. They say, "Well, Petitioner's reliance on
`Deshpande is insufficient because Graham's mixed media messages that
`embodiment does not use SMS messages." So, they say, basically that
`argument really, the premise of the argument falls apart.
`But this is precisely why we think the Board should look at the
`Deshpande grounds, they explain how different types of instant messages,
`including non-SMS instant messages were well known, and that they could
`have been used with a wide variety of devices, allow for presence awareness
`and other benefits.
`And even Graham recognizes the well-known benefits of non-SMS
`messages, and you can see that here. It says you can deliver messages faster,
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`there's a presence function that enables the instant messaging system to
`know when a particular user is online.
`So, in our view, Deshpande describes these benefits as improvements
`over both SMS and email, and that given these well-known benefits of non-
`SMS instant messaging, and whether the modification of those in replacing
`SMS or email is irrelevant.
`So, I could go to slide 36. So, what's their next argument? They say
`that Graham does now disclose automatically changing and displaying. So
`let's address that.
`I you go do slide 37. First of all, going back to the constructions it is
`undisputed, from our perspective, that Graham discloses these limitations
`under the Board's construction and our construction. So, the issue is whether
`Graham discloses the automatically-changing and automatically-displaying
`limitations as Patent Owner has construed it, and we believe it does. Let me
`explain why.
`So, if you go to slide 38. Actually we can just jump to slide 39. So,
`to set up Graham, again, just to -- as you may recall, Graham teaches
`displaying first-time information, that's the claimed first-time information in
`three ways. One, is teaches it as an elapsed time, second, it teaches it as
`color, and third it teaches it as in absolute time.
`JUDGE WEINSCHENK: Mr. Modi, I think Patent Owner points us
`to a portion of Graham that says that updates to that time information are
`manually triggered by a user, and not automatically. What is your response
`to that? Because I don't see it anywhere in the reference where, Graham
`actually says that the elapsed time is updated automatically. And then one
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`portion -- when we had to describe it one way or another is the portion that
`Patent Owner pointed us to and says it's manual.
`MR. MODI: Your Honor, let me address that. And so if I could
`actually jump right to it, and just what you said about the (inaudible) the last
`time, and I will get to color in a minute.
`JUDGE WEINSCHENK: Sure.
`MR. MODI: So, if you go to slide 41, I was actually going to go to
`that next. So, if we look at Graham, again you have to look at Graham's
`teachings in totality. So, if you look at Graham, starting with the abstract, it
`says, "Received image message to convey current information may be aged
`via time and/or color displays."
`Second, and I think this is probably the most important passage, from
`our perspective, which Patent Owner really doesn’t have to be responsible
`for, is the tracking and updating, or indicating.
`It says, "In yet another aspect, the invention is directed towards
`tracking and indicating the amount of time since the image messages have
`been sent or received." And there's testimony in the record as to what that
`means, how one of ordinary skill would understand that passage. In our
`view it says, tracking and then displaying, indicating meaning displaying,
`the amount of time since the image messages have been received.
`JUDGE WEINSCHENK: But why couldn’t we read that indicating to
`mean indicating when requested by a user?
`MR. MODI: And, Your Honor, I was going to go to that next which
`is, your point too, if you go to slide 42. This is, I think, what you're referring
`to in terms of their argument that they are saying that the update is manual,
`right, that the user is requesting the update.
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`We think that's incorrect, and it's a very simple answer. If you can go
`to slide 43? So, if you look at Figure 10 which actually talks about the
`updating, it tells you that the updates are for new messages and not for old
`messages, and in fact, Dr. Ligler confirmed that, and that's at Exhibit 1018,
`pages 165 line 14, to 166 line 18, and 173, 21; to 176, 12. So, if there was
`any doubt --
`JUDGE WEINSCHENK: What do you mean, Mr. Modi, by it's an
`update to a new message rather than an old message?
`MR. MODI: So then -- I perhaps misspoke, Your Honor. I said, it's
`an update for new messages. So, basically with the update functionality in
`Graham, if you look at Figure 10, what it's talking about is that there are new
`messages that are being retrieved by the system in Graham, and it's not
`updating the old messages, it's actually getting new message.
`So, Graham, you know, from the last time perspective what Graham
`discloses is exactly what we've said, which is that the updates are
`automatically done, and automatically displayed, and that the Figure 10
`embodiment actually tells you what they want to say is a manual update, but
`here, what's happening is Graham is actually getting new messages. It's not
`the same message; it's actually getting new messages. And like you said, Dr.
`Ligler confirmed that during his deposition.
`And then if there was any doubt, Your Honor, we believe -- if you go
`to slide 45 -- Graham actually teaches that the updates can automatic, and
`even if you want to take their argument at face value with respect to Figure
`10, Figure 11 shows you, this embodiment here shows you updates can be
`automatic. And again, Patent Owner's expert admitted as much, and that's at
`Exhibit 1018, page 171 line 8, to 172 line 4.
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`And, Your Honor, one point I do want to make is if you could go back
`to slide 41. The language that we see in Graham is similar to the description
`in the 419 patent that's relied on Patent Owner for its construction. So, the
`prior art is certainly as good as what the patent says, and --
`JUDGE WEINSCHENK: And which portion of the patent, the
`challenged patent, are you talking about?
`MR. MODI: Sure, Your Honor, that's a good point. So, if you
`remember, they like to point to the language that says, "As time progressed"
`and I'm talking about column 7, line 59.
`JUDGE WEINSCHENK: Yes.
`MR. MODI: To column 8, line 3, which we were looking at before, if
`you recall.
`JUDGE WEINSCHENK: Mm-hmm.
`MR. MODI: So, if you look at that language, in our view that
`language is similar to what we pointed to in Graham.
`JUDGE WEINSCHENK: But isn't that the language you just told us
`before doesn’t teach -- isn't referring to automatically displaying?
`MR. MODI: So, Your Honor, my point is this. They are pointing to
`that passage for support of their construction, right? So, if that passage
`supports their construction, these passages in Graham certainly support our
`construction. But I think there is more in Graham, it's not just this. So, if
`you look at, for example, if I could go to the color embodiment, Graham
`again makes it clear that different colors denote the age of received
`messages, and it goes on to say you could change the colors to yellow or red,
`to depict the age messages.
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`So, if I could go to -- Your Honor, do you have any other questions on
`the elapsed time, otherwise I was going to focus more on the color.
`JUDGE WEINSCHENK: Go ahead.
`MR. MODI: Okay. So, if you go to slide 46. So, what is their
`response to slide, -- to the color indicating age embodiment, they basically
`say again, it's a user input that it's in response to a manual change. Again,
`we disagree, so if you go to slide 47. Graham actually teaches that the
`illuminator remains active and on for specific periods of time, and until the
`device is powered on.
`So, in our view this rebuts Patent Owner's argument that the keys
`were only illuminated in response to a manual input. And in any event, I
`think you have to look at the Graham disclosure as a whole.
`And, you know, I'll sort of finish this patent -- this discussion on
`Graham with, I think another piece of evidence that came to light during the
`trial which is, if I could go to slide 48. So, if there was any doubt about
`what Graham teaches, we believe their statements to the European Patent
`Office about the Graham patent application publication, which has a similar
`disclosure, identical disclosure to Graham, we believe it resolves any doubt,
`to the extent there was any doubt.
`So, if you go to slide 49 -- actually we can go to slide 50, please? So,
`if you look at slide 50 -- actually why don't we this. Can we actually pull up
`their statements to the European Patent Office? So, it's Exhibit 1022.
`So, if I could go to -- can I have page 136, please, and if you could go
`to the bottom? And can you try to enlarge that for us, please? Okay. And if
`you can scroll down, please?
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`So, the last paragraph on page 136, it says, "The system of D1," which
`is Graham, "furthermore provides for indicating on the receiving mobile
`device, either the time that has elapsed since a particular image message was
`sent to the receiving device, or the actual time that a particular image
`message was sent to the receiving device."
`And then it goes on, I'm going to skip the next sentence, and then it
`says, "Furthermore, the relative age, that is how long the message has been
`sitting on the receiving device of each received message, may be indicated
`on the receiving mobile device by illuminating each message with a
`particular color, to colors being cued to the time that has elapsed since each
`message was received."
`It goes on and says, "The colors for each message may, over time, be -
`-" if you can go to the next page, "-- changed to depict the advanced stage of
`each received message." And then it goes on and says, "Of particular
`relevance here is the fact that in D1 this relative age information is output
`automatically, regardless of whether further communication has taken
`place."
`So, we believe if there was any doubt that, in terms of the Graham's
`teachings, BlackBerry itself told the European Patent Office what Graham
`teaches, and we believe that's completely consistent with the arguments we
`are making here, Your Honors.
`JUDGE MARSCHALL: Is it your position that that statement is
`binding in here, or it's just instructive?
`MR. MODI: Your Honor, I would say it's binding on them, and
`certainly, I think we both should look at it, and consider it, in light of the
`entire review of this, we believe it's an admission by them.
`
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