{"id":2574,"date":"2010-07-08T19:22:15","date_gmt":"2010-07-09T01:22:15","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=2574"},"modified":"2010-07-08T19:24:31","modified_gmt":"2010-07-09T01:24:31","slug":"ad-lib-comments-from-the-bench","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=2574","title":{"rendered":"Ad lib comments from the bench"},"content":{"rendered":"

In the oral argument of Telcordia Tech., Inc.\u00a0v. Cisco Systems, Inc.<\/span>, 2009-1175 (Fed. Cir. 2010), Judge Rader expressed his concern in regard to the district court judge deciding claim construction based on ad lib comments by a Federal Circuit judge during a previous oral argument.\u00a0 You can listen to Judge Rader’s comments here: [Listen<\/a>].<\/p>\n

The following section from the opinion explains the ad lib comment further and how it was utilized by the district court:<\/p>\n

\n

The empty payload fields are \u201cempty\u201d of data packets and therefore have non-source bit signals only. The specification explains that \u201ca train of DTDM frames with empty payload fields . . . has a bit rate which defines a basic backbone transmission rate for the DTDM system.\u201d \u2019306 patent col.7 ll.27-30. Therefore, the bit signals help the DTDM system maintain a bit stream even when it is not transmitting data from an information source. The specification does not specify where in the frame the \u201cbit rate\u201d is stored nor does it specify the type of non-source bits used to maintain the bit rate. Therefore, nothing in the \u2019306 patent restricts the bit signals in the empty payload field to ones that serve no purpose other than place-holding. <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

The district court apparently took the explanatory phrase from an ad lib comment made during an oral hearing at the Federal Circuit. In Bell Communications Research, Inc. v. FORE Systems, Inc.<\/em>, Nos. 02-1083, 02-1084, 2003 WL 1720080 (Fed. Cir. Mar. 27, 2003), Bell Communications Research, Inc., now known as Telcordia, asserted the \u2019306 patent against another defendant. This court reviewed a district court\u2019s construction of the term \u201cempty payload field\u201d in the \u2019306 patent. Id. <\/em>In that case, the district court had explained that \u201ca frame\u2019s payload has zero data in it.\u201d Id. <\/em>at *6. During oral hearing, Bell Communications agreed with Circuit Judge Bryson\u2019s characterization of bits in the \u201cempty payload fields\u201d as \u201cgarbage:\u201d <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Judge Clevenger: Can we come back to the empty payload field? \u201cEmpty\u201d seems to me . . . the com-mon meaning of the word \u201cempty\u201d means there is nothing there. So, you are saying that there is something in the written description that tells me what empty means?<\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Bell Communications\u2019s Counsel: I am saying . . . . <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Judge Clevenger: Where in the written descrip-tion? <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Bell Communications\u2019 Counsel: A144, column 7, lines 29-35. And, what you will see there at that point . . . . <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Judge Clevenger: There is a bit rate. <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Bell Communications\u2019s Counsel: It says, \u201cthis train.\u201d It is talking about empty payload field. \u201cThis train 10 has a bit rate.\u201d In other words, it\u2019s empty, but it has a bit rate. Because in order to have . . . sometimes there won\u2019t be a packet ready. The stream must continue. There must be a bit in the stream. It just won\u2019t be a data bit, it won\u2019t be a source data bit. It will be a bit. And it will have information in it, but it won\u2019t be source informa-tion. <\/em><\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Judge Bryson: It would just be garbage<\/em>, I take it. I mean it will just be 1\u2019s and 0\u2019s that have no rela-tionship to the stream of any information that\u2019s coming in from the source<\/em>. <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

Bell Communications\u2019s Counsel: Exactly, Your Honor. <\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

The issue on appeal, at least initially, seemed to be whether the district court actually meant \u201cno bit signals of any kind\u201d when it said \u201czero data.\u201d Id. <\/em>At oral hearing, however, Fore Systems, Inc. stated its understanding that \u201c\u2018zero data\u2019 encompasse[d] various bit signals that might maintain the stated transmission rate of a bit stream, including \u2018placeholders\u2019 or \u2018garbage bits.\u2019\u201d Bell Commc\u2019ns<\/em>, 2003 WL 1720080, at *6. Because the parties\u2019 agreement on this broader interpretation of \u201czero data\u201d rendered the claim construction issue moot, this court declined to refine the district court\u2019s construction. Id. <\/em><\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

The claim construction issue on appeal in the present case\u2014whether the empty payload field only has bits that act as placeholders\u2014is different from the one in Bell Communications\u2014whether the empty payload field has any bits at all. Circuit Judge Bryson\u2019s comments, there-fore, are not directly relevant to the specific issue in the present case. The district court erred by limiting the claim scope based on the ad lib comment from the bench.<\/span><\/span><\/p>\n

\u00a0<\/p><\/blockquote>\n

The Federal Circuit is not shy in using in its opinions\u00a0admissions\u00a0by counsel that were\u00a0made during\u00a0oral argument.\u00a0\u00a0The court\u00a0has done\u00a0so\u00a0perhaps with increasing frequency since recordings of the oral arguments\u00a0were first\u00a0made\u00a0available on\u00a0the CAFC\u00a0website.<\/p>\n

You can read the entire opinion here: [Read<\/a>].<\/p>\n

You can listen to the entire oral argument here: [Listen<\/a>].<\/p>\n","protected":false},"excerpt":{"rendered":"

In the oral argument of Telcordia Tech., Inc.\u00a0v. Cisco Systems, Inc., 2009-1175 (Fed. Cir. 2010), Judge Rader expressed his concern in regard to the district court judge deciding claim construction based on ad lib comments by a Federal Circuit judge during a previous oral argument.\u00a0 You can listen to Judge Rader’s comments here: [Listen]. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/2574"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2574"}],"version-history":[{"count":13,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/2574\/revisions"}],"predecessor-version":[{"id":2588,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/2574\/revisions\/2588"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2574"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2574"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2574"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}