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`8:19-CV-01805-DOC - 11/17/2020 - Volume I
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`HONORABLE DAVID O. CARTER, JUDGE PRESIDING
`- - - - - - -
`)
`PINN, INC.,
` )
` Plaintiff/Counter defendant, )
` )
` vs.
` ) No. 8:19-CV-01805-DOC
` ) Volume I
`APPLE, INC.,
`)
` )
` Defendant/Counter Claimant. )
`___________________________________)
`
`
`
`
` CERTIFIED
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`COUNSEL APPEARING VIA ZOOM VIDEOCONFERENCE
`Hearing on Motions/Claim Construction
`Santa Ana, California
`Tuesday, November 17, 2020
`
`
`
`
`
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`United States District Court
`411 West 4th Street, Room 1-053
`Santa Ana, California 92701
`(714) 558-8141
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`APPEARANCES OF COUNSEL:
`FOR PLAINTIFF/COUNTER DEFENDANT PINN, INC.:
`
`Ryan E. Hatch (via Zoom videoconference)
`LAW OFFICE OF RYAN E. HATCH PC
`13323 Washington Boulevard
`Suite 100
`Los Angeles, California 90066
`310-279-5076
`ryan@ryanehatch.com
`Cabrach J. Connor (via Zoom videoconference)
`(pro hac vice)
`CONNOR KUDLAC LEE PLLC
`609 Castle Ridge Road
`Suite 450
`Austin, Texas 78746
`512-777-1254
`cab@connorkudlaclee.com
`David A. Skeels (via Zoom videoconference)
`(pro hac vice)
`WHITAKER CHALK SWINDLE & SCHWARTZ PLLC
`301 Commerce Street,
`Suite 3500
`Fort Worth, Texas 76102
`817-878-0500
`dskeels@whitakerchalk.com
`Jennifer A. Tatum Lee (via Zoom videoconference)
`(pro hac vice)
`CONNOR KUDLAC LEE PLLC
`609 Castle Ridge Road
`Suite 450
`Austin, Texas 78746
`512-777-1254
`jennifer@connorkudlaclee.com
`Kevin S. Kudlac (via Zoom videoconference)
`(pro hac vice)
`CONNOR KUDLAC LEE PLLC
`609 Castle Ridge Road
`Suite 450
`Austin, Texas 78746
`512-777-1254
`kevin@connorkudlaclee.com
`
`
`
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`
`
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`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
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`APPEARANCES (continued):
`FOR DEFENDANT/COUNTER COMPLAINANT APPLE, INC.:
`
`Christopher S. Marchese (via Zoom videoconference)
`FISH & RICHARDSON PC
`633 West 5th Street
`26th Floor
`Los Angeles, California 90071
`213-533-4240
`marchese@fr.com
`John W. Thornburgh (via Zoom videoconference)
`FISH & RICHARDSON PC
`12860 El Camino Real
`Suite 400
`San Diego, California 92130
`858-678-5070
`thornburgh@fr.com
`Joy B. Kete (via Zoom videoconference)
`(pro hac vice)
`FISH & RICHARDSON PC
`One Marina Park Drive
`Boston, Massachusetts 02210
`617-542-5070
`kete@fr.com
`Seth M. Sproul (via Zoom videoconference)
`FISH & RICHARDSON PC
`12860 El Camino Real
`Suite 400
`San Diego, California 92130
`858-678-5070
`sproul@fr.com
`Tucker Nephi Terhufen (via Zoom videoconference)
`FISH & RICHARDSON PC
`12860 El Camino Real,
`Suite 400
`San Diego, California 92130
`858-678-5070
`terhufen@fr.com
`
`
`
`ALSO PRESENT:
`
`David Keyzer, Technical Special Master
`
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
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`I N D E X
`PROCEEDINGS PAGE
`HEARING ON MOTIONS/CLAIM CONSTRUCTION
`
`Initial remarks by the Court
`
`Disputed Terms "Wireless Pairing," etc.
`(Terms 1, 5, 12)
`
`Argument by Mr. Connor (Pinn)
`
`Argument by Mr. Sproul (Apple)
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`Rebuttal by Mr. Connor (Pinn)
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`Rebuttal by Mr. Sproul (Apple)
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`Further rebuttal by Mr. Connor (Pinn)
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`Further rebuttal by Mr. Sproul (Apple)
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`Ruling by the Court
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`"Smartphone" (Terms 2, 7 13)
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`Argument by Mr. Hatch (Pinn)
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`Argument by Mr. Marchese (Apple)
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`Rebuttal by Mr. Hatch (Pinn)
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`Rebuttal by Mr. Marchese (Apple)
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`Court's Construction of "smartphone"
`(Terms 2, 7, 13)
`
`"Mobile Application" (Terms 3, 9, 14)
`
`Argument by Mr. Hatch (Pinn)
`
`Argument by Mr. Marchese (Apple)
`
`Court's Construction re "Mobile Application"
`(Terms 3, 9, 14)
`
`"Response to pressing user button" (Term 6)
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`10:59
`10:59
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`8:19-CV-01805-DOC - 11/17/2020 - Volume I
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`SANTA ANA, CALIFORNIA, TUESDAY, NOVEMBER 17, 2020
`Volume I
`HEARING ON MOTIONS/CLAIM CONSTRUCTION
`(10:59 a.m.)
`THE COURT: Okay. Well, thank you.
`Then we'll call the case to order, Pinn v. Apple.
`It's Case Number 19-0105. And first, I hope all of you are
`well and I hope your families are well, and we'll try this
`with multiple parties; and if it doesn't work, then we'll
`all get together. But we're trying to proceed in these
`difficult times.
`I've asked David Keyzer to join me. Hopefully,
`he's viewable to you. He's right behind me. A multitude of
`law clerks are also listening and in the Court, but you
`can't see them at the present time.
`INITIAL REMARKS BY THE COURT
`THE COURT: By way of background, the
`patents-in-suit involved the '491 patent, titled "Electronic
`Device With Wireless Earbud" issued on October 31st of 2017.
`(To court reporter:) And Deb, let me know if I go
`too fast. Some of these will be technical terms.
`The '066 patent titled "Mobile System With
`Wireless Earbud" issued on October 22nd, 2019. The
`'198 patent titled "Personal Media System Including Base
`Station and Wireless Earbud" issued on March 31st, 2020.
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`All three of the patents-in-suit bear an earliest priority
`date of April 3rd, 2015.
`Defendants submit that the '491 and the
`'198 patents share essentially identical specifications,
`while the specification of the '066 patent overlaps to some
`extent with two other patents but also omits and adds some
`figures and features.
`DISPUTED TERMS "WIRELESS PAIRING"/"WIRELESS
`PAIRED"/"WIRELESS PAIRING" (TERMS 1, 5, 12)
`THE COURT: So we are going to start with the
`disputed terms. And so I'm not jumping back and forth in a
`multitude of documents submitted to the Court, we're going
`to start with the first disputed term: Wireless pairing,
`wirelessly paired, wireless -- I'm sorry. Let me say that
`again:
`
`"Wirelessly pairing/wirelessly
`paired/and wireless pairing, which are
`Terms 1, 5, and 12, as set forth in the
`numberings by the parties in the Second
`Joint Claim Construction Docket
`Number 97." (Verbatim.)
`Plaintiffs proposed construction is as follows:
`First, no construction is necessary.
`Alternatively, "wirelessly pairing" and "wireless
`pairing" mean: Establish or establishing a wireless
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`8:19-CV-01805-DOC - 11/17/2020 - Volume I
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`connection between two devices to relay information.
`Plaintiff previously proposed: "Establish or
`establishing a connection between two devices to relay
`information."
`"Wirelessly paired" means a wireless connection is
`established between two devices to relay information.
`Plaintiff previously proposed: "A connection is
`established between two devices to relay information."
`Defendant's proposed construction: "Wirelessly
`pairing" and "wireless pairing": Establishing a trusted
`relationship between two devices that allows them to connect
`wirelessly, such as Bluetooth pairing.
`"Wirelessly paired": A trusted relationship is
`established between two devices that allows them to connect
`wirelessly, such as Bluetooth pairing.
`Defendant's previously proposed: "A trusted
`relationship is established between two devices that allows
`them to connect wirelessly."
`I'd like to hear from Pinn first.
`MR. SKEELS: Thank you, Your Honor. This is David
`Skeels on behalf of (inaudible) --
`THE COURT: We're going to do that again. And
`could you please slow down.
`I'm going to strike that, Deb.
`MR. CONNOR: Uh, this is Cabrach Connor on behalf
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
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`8:19-CV-01805-DOC - 11/17/2020 - Volume I
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`of Pinn, Your Honor.
`THE COURT: Now, just a moment.
`THE REPORTER: I just heard two different people.
`THE CLERK: Try it again, Counsel.
`THE COURT: One more time, Counsel.
`MR. CONNOR: Good morning, Your Honor. Cabrach
`Connor on behalf of Pinn.
`THE COURT: Thank you.
`ARGUMENT BY MR. CONNOR (PINN)
`MR. CONNOR: The key issues in this claim
`construction were two-fold: Whether the Bluetooth standard
`and artifacts of that standard, especially the trusted
`nature of the relationship between devices, should be
`imported into the claims. Bluetooth standard is cited in
`the specification as one and the only protocol that's
`discussed; however, the specification explicitly states that
`"other wireless protocols may be used."
`The second issue is whether -- if there is a
`relationship, whether "wirelessly pairing" means that the
`two devices must, in fact, be connected and communicating.
`Pinn's contention at claim construction was that no trusted
`relationship should be part of the construction, that that
`is something from the Bluetooth standard that is not part of
`the claimed subject matter. And Pinn further contended that
`the connection should be part of the construction that two
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`8:19-CV-01805-DOC - 11/17/2020 - Volume I
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`devices (unintelligible) --
`(Court reporter requests clarification for the
`
`record.)
`THE COURT: No. We're going to strike that.
`We missed that. Unfortunately, you cut out.
`(To court reporter:) So, Deb, what was the last?
`(Record read.)
`THE COURT: "Part of the construction that two
`
`devices."
`
`MR. CONNOR: Thank you, Your Honor.
`-- that two devices would be, in fact, connected
`and communicating. That was Pinn's contention.
`The reason for that position by Pinn is that
`context of the inventions in the specification that refer to
`"pairing" synonymously with "communicating."
`THE COURT: All right. Now, just a moment. Stop.
`Deb, did you get that?
`COURT REPORTER: I did.
`THE COURT: All right. Thank you.
`MR. CONNOR: And secondly, Your Honor, that the
`specification describes "turning off pairing," and "turning
`off pairing" to mean, in context, that the two devices stop
`communicating.
`THE COURT: All right. Just a moment.
`Deb, did you get that.
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
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`COURT REPORTER: I did.
`THE COURT: All right.
`Thank you. Please continue.
`MR. CONNOR: Those were Pinn's contentions and
`argument at claim construction.
`The Special Master found that the proper
`construction does indeed require a trusted relationship and
`does not necessarily require that the devices be in
`communication. The Special Master's construction is that
`the devices be allowed to communicate such that they are in
`a relationship, trusted under the Special Master's
`construction -- and we took issue with that -- and in a
`relationship where they are able to communicate -- or
`"allowed to communicate" are the precise terms in the
`Special Master's construction.
`We objected to only a part of the Special Master's
`construction: The part that requires the relationship
`between the devices to be trusted. And the basis for our
`objection is that a trusted relationship which is a quality
`that is (audio interference) --
`(Court reporter requests clarification for the
`
`record.)
`THE COURT: We lost you again. I apologize.
`"We objected to that."
`MR. CONNOR: -- on the grounds that the
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`relationship, a trusted relationship is not discussed or
`disclosed in the intrinsic record.
`The trusted nature of the relationship between
`devices is something that the Bluetooth standard calls for.
`And we submitted that it was improperly reading an extrinsic
`limitation into the claim to require the trusted nature of
`the relationship between the two devices (unintelligible) --
`(Court reporter requests clarification for the
`
`record.)
`THE COURT: You cut out again. I apologize.
`(To Court Reporter:) Deb, the last words you got.
`(Record read.)
`THE COURT: "Between the two devices."
`MR. CONNOR: -- does not require the trusted
`requirement that the Special Master's construction sets
`forth.
`
`The rest of the Special Master's construction we
`do not take issue with and Pinn does not object to it.
`THE COURT: So it would read what?
`MR. CONNOR: Our proposal is that the construction
`would read:
`"Establishing a relationship between
`two devices that allows them to
`communicate wirelessly."
`THE COURT: Okay. All right. Thank you.
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
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`Now I'd like to hear the opposing viewpoint from
`
`Apple.
`
`MR. SPROUL: Good afternoon, Your Honor. Seth
`Sproul from Fish & Richardson on behalf of Apple.
`May I share a PowerPoint presentation through
`
`Zoom?
`
`THE COURT: If you can see it.
`MR. SPROUL: How about I -- well, it says that I
`am disabled from screen sharing. Is there any way to enable
`that?
`
`THE COURT: Well, if you'd come out here and help
`us, there would be. I'm just joking.
`THE CLERK: Counsel, I'm going to make you as a
`host. Okay? I'll make you a cohost. Go ahead and see if
`you can share.
`MR. SPROUL: And I'm on the "Apple" counsel feed
`here, and I -- it's still saying I'm disabled.
`THE CLERK: Okay. Sorry.
`THE COURT: All right. Why don't you make your
`oral presentation.
`MR. SPROUL: All right.
`ARGUMENT BY MR. SPROUL (APPLE)
`MR. SPROUL: Your Honor, two points on the
`construction of "wireless pairing." (inaudible.) I know
`there are three different terms (unreportable).
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
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` (Court reporter requests clarification for the
`
`record.)
`THE COURT: Way too fast. I can hear you and
`understand you. The record can't. Please start again and,
`please, slowly.
`MR. SPROUL: Understood.
`The Special Master, in construing wireless
`pairing, got it right. He largely adopted defendant's
`proposed construction, which read:
`"Establishing a trusted relationship
`between two devices that allows them to
`communicate wirelessly."
`Pinn offers two arguments: One, in its objection
`to the Special Master's Report and Recommendation, and a
`second different argument in its opposition to Apple's
`Motion for Summary Judgment. This "wireless pairing" term
`is dispositive of one of Apple's non-infringement grounds
`that it moves on.
`The Special Master, in construing "wireless
`pairing," found that it was a term of art and he credited
`the evidence put forward by Apple that showed "wireless
`pairing" was a term of art.
`Apple relied on two patents that disclosed
`wireless Bluetooth features and define wireless pairing.
`The first -- and I'm referring to Report and Recommendation
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`ECF-159 (unintelligible) --
`THE COURT: I'm sorry. You'll have to repeat
`
`that.
`
`MR. SPROUL: I'm referring to the Report and
`Recommendation --
`THE COURT: No. I know that. You need to be more
`distinct. You're referring to the --
`MR. SPROUL: Report and Recommendation on claim
`construction ECF 159-1.
`THE COURT: All right. Deb?
`MR. SPROUL: At pages 12 to 13.
`THE COURT: Okay.
`MR. SPROUL: The Special Master credited Apple's
`reliance on two prior art patents that defined "wireless
`pairing." He also credited Apple's expert that explained
`"wireless pairing" as a term of art.
`Important in these definitions of "wireless
`pairing" found in these prior art patents is the aspect that
`their relationship is trusted. Pinn asks that "trusted" be
`removed from the definition adopted by the Special Master.
`That would vitiate the common understanding of what the term
`"pairing" means.
`For instance, one of the prior art patents that
`Apple relied on, credited by the Special Master, was a
`patent issued to Broadcom. It can be found at ECF
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`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`(unintelligible) --
`THE COURT: Once again the number, please.
`MR. SPROUL: 102-4.
`THE COURT: Do you have that, Deb?
`COURT REPORTER: I do. Thank you.
`THE COURT: Okay. Thank you.
`MR. SPROUL: And I will read it into the record:
`"Pairing quite simply is the act of
`introducing two wireless devices to one
`another so that they can...communicate.
`Pairing enables the two or more wireless
`devices to join and become a trusted
`pair. Within a trusted pair, each
`device recognizes the other device.
`Then each device can automatically
`accept communication and bypass the
`discovery and authentication process."
`(As read.)
`The second patent, the '219 patent issued to
`Apple, also a prior art patent, found at ECF 102-5, states
`something similar:
`When two Bluetooth devices initially connect, they
`first share some general information with each other -- I'm
`paraphrasing that part. Quote:
`"-- in order to enhance the
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
`8:19-CV-01805-DOC - 11/17/2020 - Volume I
` 16
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`connection, the devices can establish a
`trusted relationship by using a secret
`passkey. This passkey is typically
`provided by a user or stored on memory
`in a device. According to a known
`Bluetooth standard, the process of
`establishing this trusted relationship
`is called 'pairing.'"
`When Pinn asks for "trusted" to be removed, it
`guts the common understanding one would ascribe to "wireless
`pairing." "Trusted" cannot be removed.
`We would refer to our briefing on the evidence
`submitted by Dr. Jonathan Wells and the argument as to how
`Pinn's experts don't actually dispute that it is and was a
`term that had a common understanding.
`Now, Pinn submits that the definition adopted by
`the Special Master has two parts: One, the relationship
`part; and, two, the requirement that the devices actually
`connect and communicate. This was not put forward by Apple
`as part of the definition that was ultimately adopted by the
`Special Master. That was Pinn's interpretation during the
`first round that was expressly rejected by the Special
`Master in his Report and Recommendation.
`Pinn -- Pinn's view that the claim, as construed
`by the Special Master, "requires connection" is wrong and is
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`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`not what the Special Master ordered. I refer to the Special
`Master's Report and Recommendation, again ECF 159-1, at
`page 15, where he addresses Pinn's argument that
`communication and connection are required in addition to the
`relationship. He states, quote:
`"Plaintiff notes that above-reproduced
`Claim 1 of the '491 patent recites,"
`quote, "'turning off the wireless
`pairing with the smartphone when the
`wireless earbud is being charged,'" end
`quote, "which plaintiff interprets as
`implying that," quote, "'pairing,'" end
`quote, "refers to a connection rather
`than a relationship."
`But whereas plaintiff argues this disclosure
`demonstrates that turning off "pairing" -- as opposed to
`turning off "communication" -- the use of the word "pairing"
`rather than "communication" in the claim is consistent with
`understanding that the patentee used "pairing" to have a
`meaning different than "communication."
`Plaintiff Pinn had argued that "wireless pairing"
`was only the communication, the temporal connection that is
`turned off and on when you connect/disconnect from the
`devices and not the long-term relationship argued by Apple.
`So the Court -- excuse me -- the Special Master,
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`rejecting this "communication" argument from Pinn, rejected
`their new argument they put forward today and in the summary
`judgment briefing, which is that the sum -- the definition
`adopted by the Special Master inserts that active
`communication requirement at the end. That's not what the
`Special Master said. He rejected that argument directly.
`That was not part of the proposal put forward by Apple.
`And so we ask, Your Honor, that you adopt the
`Special Master's construction that he put forward in his
`Report and Recommendation.
`THE COURT: All right. Thank you.
`A brief rebuttal, then, by Pinn, please.
`REBUTTAL BY MR. CONNOR (PINN)
`MR. CONNOR: Cabrach Connor on behalf of Pinn.
`Your Honor, I'll take the last point first. Pinn
`is not objecting to the portion of the Special Master's
`(audio interference) --
`THE COURT: No, I'm sorry. For some reason your
`connection is extraordinarily bad. We keep picking up an
`echo that my court reporter is unable then to transcribe
`you.
`
`Is there anything you can do on your end?
`Apple's counsel is much clearer.
`MR. CONNOR: Is that better, Your Honor?
`THE COURT: A little bit, yes. Thank you. Let's
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`try again.
`MR. CONNOR: Yes, sir.
`Pinn does not take issue with the second part of
`the Special Master's construction that says -- and I'm
`quoting from the Report and Recommendation -- "that allows
`them to communicate wirelessly."
`The issue is -- that Apple is raising is not that
`construction. Both of the parties are on the same page with
`respect to the requirement that "the relationship between
`the devices be established and allow them to communicate
`wirelessly." Pinn does not contend that the construction
`requires the devices to actually communicate.
`With respect to the part of the construction that
`Pinn has objected to, the "trusted" modifier for the word
`"relationship," as you heard from Apple, that limitation is
`intrinsically sourced limitation from the Bluetooth
`protocol. And that is the basis for our objection.
`The relationship between two devices is what the
`patent is describing when it recites the devices being in
`communication or pairing so that they can communicate. The
`specification does not describe a passkey or other
`information that would establish a trusted relationship.
`But we do not disagree that a relationship between the
`devices is required.
`A relationship between the devices would be
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
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`required to allow them to communicate. And that part of the
`construction, the parties agree on. And Pinn does -- has
`not objected to and agrees with the Special Master's
`construction.
`THE COURT: All right. Thank you.
`Apple, a brief rebuttal.
`REBUTTAL BY MR. SPROUL (APPLE)
`MR. SPROUL: I'm unclear what Mr. Connor's
`position is, given that their summary judgment opposition
`was clear that they were requiring -- that they viewed the
`Special Master's construction as having an active
`communication requirement.
`I deposed their technical expert. He said that
`was the portion that was met by the "turning off" provision.
`It was clear that they were arguing, rearguing,
`reinterpreting the construction adopted by the Special
`Master to mean what they originally proposed and lost.
`So if they're withdrawing that now, that's fine.
`But the papers, I think, are clear, Your Honor, that they
`advocated that position.
`With regard to "trusted": The basis of the
`Special Master's adoption of the meaning of "wireless
`pairing" as "the establishment of a trusted relationship"
`was not pulled from thin air. It was pulled from multiple
`references showing that one of ordinary skill understood
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`this term to have a very specific meaning in the art. Those
`two patents that I read existed well before this litigation,
`and it shows how those of skill in the industry, working
`with wireless devices understood wireless pairing.
`THE COURT: Is that the '219 patent, the 8,401,219
`of which Apple's the assignee?
`MR. SPROUL: Yes, Your Honor.
`THE COURT: Okay.
`MR. SPROUL: That's one of them.
`THE COURT: Okay.
`MR. SPROUL: The other is the Broadcom
`'151 patent.
`THE COURT: Now, just -- Counsel, thank you. Just
`a minute. I want to reread a number of things as we go now.
` I'll be with you in just a moment. I want to look at a
`number of documents for just one moment.
`(Pause in the proceedings at 11:35 a.m.)
`
`(Proceedings resumed at 11:46 a.m.)
`THE COURT: All right. Thank you for the time.
`I'd like to turn back to Pinn, if you have any final
`comments. And then one more very brief summary by Apple.
`FURTHER REBUTTAL BY MR. CONNOR (PINN)
`MR. CONNOR: Cabrach Connor for Pinn. Thank you,
`Your Honor.
`One comment on what (audio interference) most
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`likely hear more of in the context of the summary judgment
`motion today. Pinn is not arguing now or on summary
`judgment nor since the claim construction hearing --
`THE COURT: Now, just a moment. We couldn't get
`you. Debbie, my court reporter, says you need to possibly
`"turn down his speaker." Not his microphone, his speaker."
`Could you try that and see if we can hear you.
`MR. CONNOR: Is that better, Your Honor?
`THE COURT: A little bit. Please.
`MR. CONNOR: I can turn it down even more, if that
`
`helps.
`
`I'll --
`
`THE COURT: Better.
`MR. CONNOR: I'm tempted to try even more, but
`
`All right. I'll start over if the Court prefers.
`THE COURT: Yeah, I would prefer that. I want you
`to have a full and fair argument, and I'm worried about the
`feedback.
`
`MR. CONNOR: Thank you, Your Honor.
`Cabrach Connor for Pinn.
`In response to Apple's assertion that Pinn is
`arguing that the claim construction requires active
`communication, we disagree. It is not Pinn's position on
`summary judgment, or since claim construction in the context
`of these objections, that pairing requires active
`
`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
`
`
`
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`communication.
`The Special Master's construction requires,
`however, that the devices be allowed to communicate. In
`other words, communication must be enabled, but need not be
`actually done between two paired devices.
`I expect that Your Honor will hear more about this
`in the context of the summary judgment briefing; but that,
`on claim construction, is an important point that I wish to
`make clear on behalf of Pinn: That Pinn's proposed
`modification to the Special Master's construction merely
`removes the word "trusted" and leaves intact the second part
`of the construction regarding the capability of the devices
`to communicate, that they are allowed to communicate.
`Pairing is a predicate, among other things, for those
`devices to be allowed to communicate.
`Thank you, Your Honor.
`THE COURT: And then Apple, please.
`FURTHER REBUTTAL BY MR. SPROUL (APPLE)
`MR. SPROUL: Two brief points, Your Honor.
`One, just to summarize the problem with removing
`"trusted." "Trusted" is part of the definition of the term
`as understood by one of ordinary skill. You can't remove
`"trusted." It's like cutting out the mouth of Mona Lisa and
`saying, Well, we have her painting. It's inextricable.
`It's part of it.
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Reporter
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`And so what you see Pinn trying to do is, is gut
`the construction adopted by the Special Master and negate
`essentially the definition that one of ordinary skill would
`hold that term to have.
`And a second point I wanted to address,
`Your Honor, was this confusion, I guess, over what Pinn is
`actually advocating with respect to the second part of the
`Special Master's adopted construction.
`Clearly, in their briefing they break it down into
`two parts. They say there is an "establishing relationship"
`part; there is an "allowing communication" part. And this
`is from their briefing in opposition to the summary judgment
`motion.
`
`Now, what they've argued today is, is a flavor or
`a gloss on what they lost at claim construction because
`they're going to say, Well, with the Bluetooth radio turned
`off, you're not allowed to communicate. But that was
`exactly their position put forward in claim construction
`that the Special Master properly rejected. And we may
`address this again in the summary judgment argument.
`But Pinn's position that active communication is
`not required is not entirely true given that they've read
`disallowing communication, which they say is the second part
`of the construction. The second part of the construction
`that reads -- that allows for communication was not an
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`Certified for Fish & Richardson PC
`Debbie Gale, CSR 9472, RPR, CCRR
`Federal Official Court Rep