Trials@uspto.gov
`571-272-7822
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` Paper No. 42
` Entered March 2, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SQUARE, INC.,
`Petitioner,
`
`v.
`
`4361423 CANADA INC.,
`Patent Owner.
`_____________
`
`IPR2019-01649 (Patent 9,016,566 B2)
`IPR2019-01650 (Patent 9,311,637 B2)
`_____________
`
`Record of Oral Hearing
`Held Virtually: January 28, 2021
`
`BEFORE: JAMESON LEE, ROBERT J. WEINSCHENK, and
`KEVIN C. TROCK, Administrative Patent Judges.
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`571-272-7822
`
`
`
` Paper No. 42
` Entered March 2, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SQUARE, INC.,
`Petitioner,
`
`v.
`
`4361423 CANADA INC.,
`Patent Owner.
`_____________
`
`IPR2019-01649 (Patent 9,016,566 B2)
`IPR2019-01650 (Patent 9,311,637 B2)
`_____________
`
`Record of Oral Hearing
`Held Virtually: January 28, 2021
`
`BEFORE: JAMESON LEE, ROBERT J. WEINSCHENK, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
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`
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`IPR2019-01649 (Patent 9,016,566 B2)
`IPR2019-01650 (Patent 9,311,637 B2)
`
`
`A P P E A R A N C E S
`
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID M. TENNANT, ESQUIRE
`WHITE & CASE, LLP
`701 Thirteenth Street, NW
`Washington, D.C. 20005-3807
`
`And
`
`DR. GRACE WANG, ESQ.
`WHITE & CASE, LLP
`1221 Avenue of the Americas
`New York, New York 10020-1095
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JASON S. JACKSON, ESQUIRE
`KUTAK ROCK
`1801 California Street, Suite 3000
`Denver, Colorado 80202-2652
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`January 28, 2021, commencing at 3:02 p.m. EST, by video/by telephone.
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`IPR2019-01649 (Patent 9,016,566 B2)
`IPR2019-01650 (Patent 9,311,637 B2)
` (Proceedings begin at 3:02 p.m.)
` JUDGE WEINSCHENK: Good afternoon, everyone.
` This is an oral hearing for IPR 2019-01649 and
`01650. Square Inc. v. 4361423 Canada Inc.
` I'm Judge Weinschenk. With me are Judge Lee and
` Judge Trock.
` Let's start with some appearances. Who do we have
` for petitioner today?
` MR. TENNANT: David Tennant with White & Case.
`Along with me is Dr. Grace Wang, also from White & Case.
` JUDGE WEINSCHENK: All right. Thank you,
`Mr. Tennant.
` And who do we have on the line for patent owner
` today?
` MR. JACKSON: (Inaudible).
` JUDGE WEINSCHENK: I'm sorry. Could you repeat
`that? We're having a little trouble hearing you on this end.
` MR. JACKSON: Oh, yes. Sorry. It's (inaudible)
`choppy on my end. (Inaudible)
` (IT helps Mr. Jackson establish a better connection)
` JUDGE WEINSCHENK: I can hear you now, Mr. Jackson.
`Can you hear us?
` MR. JACKSON: Sorry about that. Yes, I can. Thank
`you. My apologies.
` JUDGE WEINSCHENK: No problem.
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`IPR2019-01650 (Patent 9,311,637 B2)
` All right. Just so that we have the record here
` clear, can you introduce yourself again for patent owner?
` MR. JACKSON: Yes. This is Jason Jackson from the
`firm of Kutak Rock representing patent owner today.
` JUDGE WEINSCHENK: All right. Thank you,
`Mr. Jackson.
` We appreciate everyone's flexibility in conducting
` this hearing by video today. We know that takes some
` logistical effort on your part, and we do appreciate those
` efforts.
` As always, our main concern is to make sure that
` everyone has a fair opportunity to be heard, so if at any
` time during the hearing you have any technical difficulties,
` whether audio or video, that you think are impairing your
` ability to represent your client, please let us know
` immediately. You can tell the judges, or more importantly,
` you should contact whoever sent you the connection
` information for the hearing today and let them know that
` you're having some trouble, and we'll get that sorted out
`for you.
` When you're speaking, please try to reintroduce
`yourself each time. That helps the court reporter keep the
`record clear.
` And also, when you're not speaking, please try to
`mute yourself, as well. That really reduces background
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`noise for all of us, as well as the court reporter.
` We do have everything that's in the record,
`including the demonstratives, but it's extremely helpful to
`us and for the transcript if you refer to specific page
`and/or slide numbers when presenting your argument.
` There is a public line today. I don't believe
`there's any confidential information at issue in this case,
`but please remember that anything you say today could be
`heard by the public.
` As you know from our order, each side will have 60
`minutes to present their argument for both cases. I will do
`my best to give you a reminder when you're getting close to
`the end.
` And when you start, please let us know how much time
`you'd like to reserve for your rebuttal.
` And lastly, I'll ask that when we end the argument,
` please stay on the line to see if the court reporter has any
` questions. I'll remind you of that at the end, but just
` keep that in mind.
` So with that, are there any questions before we get
` started for petitioner, Mr. Tennant?
` MR. TENNANT: No, sir.
` JUDGE WEINSCHENK: Okay. Any questions from patent
`owner, Mr. Jackson?
` MR. JACKSON: No, Your Honor.
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` JUDGE WEINSCHENK: Okay. And Mr. Jackson, I know
`you're on your phone now. I'm not sure if you're -- just
`remember to mute yourself when you're not speaking so that we
`don't get any background noise from your phone, as well.
` MR. JACKSON: Understood.
` JUDGE WEINSCHENK: Okay.
` All right. Mr. Tennant, you can begin when you're
` ready, and just let us know how much time you'd like to
` reserve for rebuttal.
` MR. TENNANT: Okay. Good afternoon, Your Honor.
` This is David Tennant for Square Inc., petitioner.
` We will reserve 15 minutes for rebuttal.
` And I will also present arguments on Grounds 1
` through 4, and Dr. Wang, who is also on, will present
` arguments on Ground 4 with respect to priority.
` My arguments will be 35 minutes, her arguments will
` be about 10 minutes.
` JUDGE WEINSCHENK: And did you say 15 minutes for
`rebuttal then?
` MR. TENNANT: Yes.
` JUDGE WEINSCHENK: All right. Thank you.
` MR. TENNANT: So we'll go ahead and start now, and
`I'll start by referring to our demonstratives.
` We'll start on Slide 2.
` All the patents from the various proceedings are
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`IPR2019-01649 (Patent 9,016,566 B2)
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` directed to a card reader of some form. The two patents
` that we're discussing today, they're directed to smart card
` readers.
` And what you see on Slide 2 is Figure 1 and Figure 2
` from the challenged patents.
` As you know, the disclosure is that the challenged
` patents are the same, so that why we see the same figures
` here.
` Referring to Figure 2 on the right-hand side of the
` slide, it shows a credit card reader that can read a smart
`card or a magnetic stripe card. That card reader produces
`an analogue signal with the card information and converts
`that analogue signal to a suitable format to be sent to the
`mobile phone, which is labeled 14, seen on the right-hand
`side of the figure.
` The channel over which the signal is sent is also
`analogue, and it's shown here in Figure 2 as a wire 30.
` The specification of both patents give very little
`guidance on how to attain the suitability of the signal for
`the jack for the mobile phone and really how the reader
`would necessarily be different between a mag stripe and a
`smart card credit card reader.
` This is by no accident. Much of the alleged
`invention is described in the background art of the patents.
` The provisional really is no help, either. And
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`patent owner has tried to fill the disclosures with gaps in
`the provisional with conclusory expert testimony.
` So it begs the question: What is the invention
`here?
` It's not a smart card reader; that was well known.
` It's not the ability to send information to a mobile
`phone; that was well known.
` And it's not the ability for the mobile phone to
`send smart card information to a processing facility; that
`was well known.
` And the problem here lies with the claim, and I'm
`going to -- or claims, I should say -- and I'm going to
`refer to Slide 3.
` What we see here is a combination of Claims 1
`through 4 of both patents. And as you can see, the claims
`have very broad terms, they use very generic terminology.
` Claim 1 is an apparatus claim directed to a portable
`smart card reader device. It has two elements; a sensor and
`an output jack.
` As you know, that sensor has to perform three
`functions; it reads the recorded information from the smart
`card, produces an analogue signal indicative of that
`recorded information, and then it converts the analogue
`signal to either a format suitable, which is from the '567
`patent, or an encrypted signal suitable for the '637 patent
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`for transmission to the jack in the mobile phone.
` The second element of Claim 1 is an output jack, and
`that output jack needs to be adapted to be inserted into the
`jack in a mobile phone.
` There's also a counterpart method Claim 3. It is
`substantially similar to Claim 1. It adds an additional
`element of further processing of that analogue signal or
`encrypted analogue signal which is by circuitry contained in
`the mobile phone.
` There's two dependent claims, 2 and 4, which recite
`various configurations of the smart card.
` Now, I'm going to move on to Ground 1, and I'll
`reference you to Slide 5.
` Slide 5 shows to correlate the combination of
`Proctor plus Vrotsos for Ground 1.
` Proctor was filed in 2001. It discloses a
`communications system that processes commercial
`transactions.
` And as we discussed yesterday, the credit card in
`Proctor is slid through the point of sale terminal 36 of
`Proctor. That point of sale terminal 36 outputs the
`analogue signal to the convertor 30. The convertor 30
`outputs a DTMF signal, which is also analogue. That is sent
`to the mobile phone. That mobile phone then does further
`processing and transmits the signal to a verification
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`facility where a transaction is completed.
` JUDGE WEINSCHENK: Mr. Tennant?
` MR. TENNANT: Yes, sir.
` JUDGE WEINSCHENK: This is Judge Weinschenk.
` In your petition -- and I believe for the 1649 case
` I'm referring to -- hold on a second here -- page 28 -- I
` read this portion of your petition as indicating that the
` convertor in Proctor is what produces the signal suitable
` for transmission to the jack in the phone.
` And I think we heard yesterday in the related cases
` that the terminal itself, regardless of whether the
` convertor is there, produces a signal suitable for
` transmission to a jack.
` So which one is it; do you need the convertor to
` have a signal suitable for transmission to a mobile phone
` jack or do you not need the convertor? Because it certainly
` seems like your petition indicates that you need it.
` MR. TENNANT: So in this patent, we have a sensor,
`which is a very generic claim term that has three functions
`of reading, producing, and converting. And unlike the
`patents that were discussed yesterday, you do not have those
`three requirements.
` But to answer your question on what produces the
` signal or what converts the signal into something that is
` suitable, the claim, at a minimum, requires the signal to be
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` suitable, and in the record, as we've established, any
` analogue signal is suitable.
` So the output of terminal 36, by definition, that
` signal is suitable.
` The convertor does some additional processing and
` puts that analogue signal into a DTMF format. That signal
` is always suitable. And that DTMF signal is then sent to
` the mobile phone.
` JUDGE WEINSCHENK: Okay. So either one is suitable,
`is what you're saying.
` MR. TENNANT: Correct, Your Honor.
` JUDGE WEINSCHENK: Okay.
` JUDGE LEE: Mr. Tennant, this is Judge Lee. I'd
`like to ask you a question.
` The Claim 1 here is an output jack inserted into an
` associated jack.
` My understanding of a jack is the end piece. Right?
` So if the claim requires a jack to be inserted into
` a jack, would that preclude there to be wiring between the
` two jacks?
` The figure on your slide shows two jacks connected
` by a cable, so why would that meet the claim limitation of a
` jack -- one jack inserted into another jack?
` MR. TENNANT: So the -- we look back to the
`specification of the patents to understand what an output
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`jack is. And in the specification, there's actually no
`detail of what that output jack is.
` The only disclosure of an output jack is the wire 30
` that plugs into the jack of the mobile phone.
` So any -- so a wire connection between the
` convertor 30 in the mobile phone would satisfy the
` limitation of the claim because that is the same embodiment
` that is disclosed in the patent.
` JUDGE LEE: Yeah. I can -- I understand on a
`broader level, but if you go down one level deeper, it's not
`just a wire there. Right? Because at the end -- two ends of
`the wires is actually a physical connector. That's what I
`consider a jack.
` So you actually have a jack, a wire, and another
` jack, not just two jacks without a wire in between.
` MR. TENNANT: So if you -- let me --
` That's correct, Your Honor.
` If you refer to Slide 17, we've identified the
`output jack as wire 32, which is the same disclosure as the
`embodiment in the patent. It has a wire 30 going into the
`jack to the mobile phone. The jack to the mobile phone here
`is identified as jack 26.
` JUDGE LEE: Right. So is a jack a jack or is a jack
`a wire? I'm confused.
` Usually, I think of a jack as not as the wire that
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`leads from the -- or to the jack.
` MR. TENNANT: Right. And I understand that, and I
`agree with your observation, but here we're faced with a
`disclosure that doesn't actually describe what the jack is,
`and we have to rely on the illustrations from Figure 2 -- or
`a POSITA would have to rely on the illustrations from
`Figure 2 to understand precisely what that output jack
`encompasses.
` JUDGE LEE: Yeah. If you look at the figure, why
`wouldn't the jack just be the end pieces, like the little
`thing that sticks out of the cell phone and the little thing
`that sticks out of the convertor, neither of which includes
`the wire in between. So --
` MR. TENNANT: Well, it has to be -- go ahead.
`Sorry.
` JUDGE LEE: So, I mean, technically speaking, the
`claim requires two jacks inserted into each other, you know,
`without any wire in between.
` MR. TENNANT: Right. And so let me refer you to
`Slide 8, and I think this can maybe better answer your
`question.
` We've identified here in the blue outline the entire
` portable smart card reader device, and it is inclusive of
` the output jack coming out of the convertor and inserted
` into the jack of the mobile phone.
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` It is -- here, I mean, this is a common element in
` mobile phones, and is not expressly disclosed in Proctor
` exactly the physical makeup of that jack. It is, however,
` shown in the figure as there is a jack going into that
` mobile phone.
` JUDGE LEE: Right.
` MR. TENNANT: And this is partly the reason --
` JUDGE LEE: Yeah. That I can understand. There you
`have a jack directly inserted into another jack. Right? The
`way you have it.
` MR. TENNANT: Right. Correct, Your Honor.
` JUDGE LEE: Is that what is required, or do you
`think it also -- the claim also reads on two jacks connected
`by a wire?
` MR. TENNANT: I think the claim reads on the jack
`that's at the end of the wire. Because if you refer back to
`Slide 3, it has to be a jack adapted to be inserted to a jack
`of the mobile phone. So the jack of the mobile phone would
`fit on the mobile phone, and you have to have a jack that is
`adapted to be inserted into it.
` JUDGE LEE: Okay. But you seem -- you've got to
`have two jacks plugging into each other, and if it requires a
`wire in between, then that wouldn't meet the claim.
` MR. TENNANT: It would -- I don't know if it
`doesn't -- I don't know if I would take it that far. It
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`definitely would -- it would require the jack at the end of
`the wire to be plugged into the mobile phone, as shown in
`Figure 2 --
` JUDGE LEE: Okay.
` MR. TENNANT: -- and also as shown in Proctor.
` JUDGE LEE: Thank you.
` MR. TENNANT: You're welcome.
` So I want to go back to Slide 5.
` And the reason why we rely on Vrotsos is for two
`reasons.
` Proctor is not explicit as to its portability, and
`in the petition, we've recognized that Proctor indicates
`that the elements that are bracketed by bracket 14 can be,
`quote/unquote, combined or integrated.
` That would lead one of ordinary skill in the art to
`look to other references to understand how the elements of
`Proctor could be combined or integrated, which leads us to
`Vrotsos, because, of course, a POSITA is understood to know
`all of the relevant prior art.
` Figure 1D of Vrotsos illustrates how to integrate
`the components, or combine the components, rather, into what
`it calls an attachment, and it labels the attachment as
`attachment 21. That attachment 21 fits around the phone and
`mates with the phone.
` Another reason why we rely on Vrotsos is, to the
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`extent that Proctor is not explicit as to the card reader
`circuitry, we have the disclosure of Vrotsos that discloses
`in Figure 1E specifically what that card reader circuitry is
`and how it's different from magnetic stripe circuitry. And
`we can get into that into more details later.
` Referring briefly to Slide 6, and this addresses
`Judge Lee's question.
` We rely on Morley as an alternative to Ground 1.
`Morley provides express disclosure of the makeup of the
`jack, the physical nature of the jack, how it would be
`adapted to be inserted into a mobile phone. This is the
`reason why we rely on Morley for Ground 4.
` And Dr. Wang will discuss issues with respect to
`Morley as it relates to whether or not there is provisional
`priority support.
` Let me go ahead right into the issues -- the
`disputed issues, rather.
` Referring to Slide 9, this concerns the definition
`of smart card, and the parties are in dispute as to what is
`a smart card.
` Square has taken the position that the plain and
`ordinary meaning applies to the smart card, and we really do
`not need to look any further than the claim itself to
`understand what that plain and ordinary meaning is.
` The claim indicates that the smart card has an
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`integrated circuit incorporated into the card and that
`integrated circuit has recorded information stored thereon.
` That is a smart card.
` Proctor satisfies this element. In the first bullet
` point, we've pulled a sentence from Proctor where Proctor
` indicates that his credit card has a memory chip that stores
` information such as card identifying information, balance,
` and available credit. That is the same type of information
` that is stored on the smart card of the patent on the IC.
` And while there is a slight difference in the
` terminology used by Proctor, and also used by the claim, our
` expert, Professor McNair, clarified this.
` If you look on Slide 10 -- and I'm going to refer
` first to Claims 2 and 4, which were shown here -- a smart
` card is necessarily broader than just an EMV and NFC smart
` card -- which I'll address shortly -- the smart card is
` inclusive of a chip card, EMV card, NFC card, contactless
` card, or any combination thereof, as required by the
` dependent claims. It's very broad.
` JUDGE WEINSCHENK: Mr. Tennant?
` MR. TENNANT: Yes.
` JUDGE WEINSCHENK: What does it mean to be a chip
`card? Is any smart card a chip card?
` MR. TENNANT: Not necessarily, because a chip card
`has to be -- it has to have memory, it has to have an
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`integrated circuit, and it has to have the recorded
`information stored on that card.
` Once it satisfies those elements, it meets the
` elements of the claim, and therefore, is a smart card.
` So any genetic card with a chip on it is not
` necessarily a smart card, it needs the recorded information
` on it so that you could effectuate the commercial
` transaction.
` JUDGE WEINSCHENK: All right. I understand an EMV
`card, for example, to be a card that complies with the
`specific standard, but a chip card doesn't have any standard
`for it; is that correct?
` MR. TENNANT: I think it's -- a chip card may or may
`not have a standard associated with it. You're correct.
` JUDGE WEINSCHENK: Okay.
` MR. TENNANT: So the testimony by Professor McNair,
`he testified that Proctor's use of the term credit card was
`commonly referred -- was the common usage.
` In his reference to a chip card -- I'm sorry -- his
`reference to a memory chip card that stores information
`regarding account information corresponds it a chip card or a
`smart card, and therefore, would meet the elements of the
`claim. So --
` JUDGE TROCK: Counsel, hold on one second. This is
`Judge Trock.
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` Does the Tang patent describe or limit in any
`fashion the term smart card?
` MR. TENNANT: That's a good question, Your Honor.
` No, it doesn't limit it in any fashion, and it
` really doesn't use the terminology smart card except in the
` claims, and in one passage in Column 7, line 54 and 55, and
` I'm referring to the '637 patent.
` There, it refers to digital signal readers that can
` read from innovative circuit or smart or EMV reader cards.
` And so this is the only passage in the patent that refers to
` smart cards.
` Now, when trying to understand the scope of the
` claim, the claim says that smart card has an integrated
` circuit and recorded information stored thereon. So,
` provided that you satisfy those elements, it would be a
` smart card.
` JUDGE TROCK: All right. Thank you.
` MR. TENNANT: And there is also a comment that the
`background of the invention refers to smart card readers as
`being well known in the prior art.
` And as I mentioned earlier, smart cards are not new.
`This has been admitted by both experts in this case, and also
`it is widely recognized in the art that smart cards are not
`new, and the patent owner did not invent smart cards.
` Going back to Slide 9.
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` Now, to the extent that Proctor does not disclose
` smart cards, Vrotsos does. Vrotsos discloses a credit card
` 51, which is shown in Figure 1E. It has the magnetic
` stripe, and it has a smart chip 53.
` This is the same as probably the credit card that
` many of you have in your wallet today, having both the
` magnet stripe and a chip on it for use in commercial
` transactions.
` So it should be without dispute that Proctor alone
` or in combination with Vrotsos discloses a smart card.
` Now, I want to move on to Slide 12, and here, we're
` going to get into the sensor element.
` And recall, the sensor element is very broad. It --
` there's no disclosure of sensor in the patent itself, it
` appears for the very first time in the claim.
` And so essentially, what the sensor element is is a
`functional claiming of an element of the claim to require
`reading, production, and converting.
` And this is met by the elements that we've
`highlighted in gold; the point of sale terminal and the
`convertor 30. Those two elements combined would satisfy all
`elements of the claim.
` The primary dispute between the parties is not
`regarding those three functions, it's rather the circuitry
`for reading the recorded information that's stored on the
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`smart card.
` Proctor doesn't have express disclosure of the
`precise circuitry for reading the recorded information, and
`that's not surprising because this is well within the scope
`of the prior art and well within the knowledge of a POSITA
`to understand what that circuitry would be.
` But to the extent that patent owner has argued that
`Proctor lacks that disclosure, we've relied on Vrotsos.
`Vrotsos discloses specifically the type of circuitry that
`could be incorporated into Proctor from reading both from a
`magnetic stripe and also from a smart card. And this is
`shown on Slide 13.
` And we have some passages here that quote the
`portion of Vrotsos that discloses both the circuitry for
`reading of the magnetic stripe as well as the circuitry,
`which is different circuitry, for reading from the smart
`chip of Vrotsos.
` So in combination of Proctor, Proctor alone or in
`combination with Vrotsos would teach the sensor for reading
`the recorded information from the smart card.
` Next, I want to go to Slide 16. And here, this is
`the encryption element.
` Now, the '637 patent added encryption. That is the
`primary difference between the '637 and the '566 patent.
`This slide focuses only on encryption.
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` Claim 1, as you see here on the slide, the sensor
`includes circuitry that converts the analogue signal to an
`encrypted signal that's suitable for the jack of the mobile
`phone.
` Claim 3 produces an encrypted analogue signal that's
`indicative of the recorded information stored on the
`analogue -- I'm sorry -- stored on the smart card.
` And so the question is, well, what is the disclosure
`of encrypting within the prior art?
` Proctor doesn't provide express disclosure for this
` element despite the fact that it is well known to encrypt
` data for commercial and financial transactions.
` Nonetheless, Vrotsos does. Vrotsos is the secondary
` reference, and here, it refers to the attachment.
` Recall, the attachment is the module that fits
` around the mobile phone that makes it all combined or
` integrated.
` And Vrotsos says that that attachment may encrypt
` transaction data captured by the reader. This means that
` Vrotsos encrypts smart card data.
` And both experts agree that encrypting smart card
` data was known and standard. Mr. Zatkovich, patent owner's
` expert, provided extensive testimony on how well it was
` known to encrypt smart card data.
` And this is not surprising because any person of
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` ordinary skill in the art would be motivated to encrypt
` smart card data so that the transaction that is being
` conducted at the point of sale remains secure.
` And keep in mind that --
` JUDGE TROCK: Counsel, if I could interrupt you just
`for a second.
` MR. TENNANT: Yeah.
` JUDGE TROCK: So you're describing encrypting smart
`card data, but the claim reads, "Converting the said analogue
`signal to an encrypted signal." So we're encrypting a signal
`here, are we not?
` MR. TENNANT: Well, that's not -- no, it can be one
`or two things; you can either encrypt the signal or the data
`that is read from the smart card can be -- can originate in
`encrypted form. And the reason I say that is because that's
`the way the patent specification describes it.
` And I'll refer you to the '637 patent, Column 8,
` line 7.
` And that passage says, "The transaction data,
` whether received originally in analogue form or in encrypted
` form, is converted by the NCU into an analogue signal
` suitable for transmission over the analogue communication
` link."
` This is the only disclosure of encrypting data. And
` here, the data originates in encrypted form.
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` And so when you convert the signal to an analogue
` signal, the underlying data, of course, remains in encrypted
` form.
` And so the claims of the '637 says, "converting the
` analog signal to an encrypted signal," it doesn't say
` encrypting that analog signal to output an encrypting
` signal.
` So as long as the data that's coming in is already
` encrypted, the conversion of the analog signal to something
` suitable would maintain the encryption of the underlying
` data that is being transmitted to the phone.
` JUDGE TROCK: Right. But then Claim 3 encrypts the
`analog signal, right?
` MR. TENNANT: So for Claim 3, you produce an
`encrypted analog signal indicative, but you have to look at
`Claim 3 in context.
` So the Claim 3 produces an encrypted analog signal
` indicative of the recorded information.
` So if recorded information read from the smart card
` is already in encrypted form, the production of an analog
` signal would maintain the encryption of the original signal
` that is being converted.
` The claims don't expressly require encryption. As
` long as the data originates in encrypted
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