Patriot Scientific

Notes Oct. 3, 2013 TPL vs HTC

If judge can accept a layman's opinion during this trial, this is what I like him to know -

In yesterday's jury deliberation, jurors asked you to get further assistance in understanding the meaning of word “generate”. If I read it right, they were referring “generates” in term 6 and “generate” in term 18 of jury instructions -

6. The term “oscillator . . . clocking” means “an oscillator that generates the signal(s) used for timing the operation of the CPU.”

18. The term “entire oscillator” (in claims 6 and 13) is properly understood to exclude any external clock used to generate the signal used to clock the CPU.

In following this case, I read many available public documents, either they are IEEE articles relate to PLL, ring oscillator, and external crystal clock, or expert testimonies regarding regarding whether or not an infringement of 366 patent had occurred by HTC phones. I tried to be on jury's shoes to arrive a convincing conclusion. I know perfectly that it is for these 9 jurors, not anyone else to determine the outcome of this trial. Nevertheless, I practice this so that when the final verdict is delivered, I'll accept it as a right one without doubt, or without being confused, regardless who is winning.

By reading the team 6 and team 18 in your instruction to jurors, I had been always confused all along during the trial. The term 18 is pretty hard to follow in the context of contentions by both side. After hearing juror's requests, I knew I was not along (I have doubt of my self since english is my second language, though I completed BS degree in computer science here.) Reading it again and again, I finally realized that why I had hard time understand this term in conjunction of claims that have this term in the wording. To my surprise, it is not related technical aspects things that kept me in confusing state; it's the semantic aspects - First,

in term 6, we have - “generates the signal(s) used for timing the operation of the CPU” and

in term 18, we have - “used to generate the signal used to clock the CPU”

What we have in common are - “generate”(s), “the signal”(s), “used”, “the CPU”.

The differences are - “for timing the operation of the CPU” vs. “to clock the CPU”.

If these two different ones don't have the same meaning as “to clock the CPU”, it may mean -

1. the first one means not only “to clock the CPU”, but also do other “timing operation” beside “to clock the cpu”. The existence of “signal(s)” and “signal” is also a little confusing.

2. the first one means to do other “timing operation' other than “to clock the CPU”.

If these two means the same in context of 336 claims and in the claim construction, it should be the same so jurors will not interpret them as two different things. From a layman's point of view, if the judge write them differently, they must have different meaning, which overturns the assumption that they are the same.

Second, the big contention between TPL and HTC is in what generate signal to clock CPU, the external fixed frequency crystal oscillator, or the variable frequency ring oscillator of PLL. TPL side say that signal generate by crystal oscillator stop at phase detector; this signal is transformed to affect the voltage (or current depend on type of PLL used) to influence the frequency of ring oscillator to clock the CPU. HTC side argue that signal generate by crystal oscillator is multiplied to be used to clock the cpu (and to keep CPU frequency fixed.)

Regarding term 18: “entire oscillator” (in claims 6 and 13) is properly understood to exclude any external clock used to generate the signal used to clock the CPU. “Jurors were given the task to determine which side is telling the truth. The confusing part for them, IMHO, is the term itself gave them a hint - “external clock used to generate the signal used to clock the CPU”. Why this can be interpreted as a hint? Throughout the claim construction and term definition, there is no same language or same wording regarding the internal ring oscillator, some thing like “internal ring oscillator used to generate the signal used to clock the CPU”.

Now, assume some jurors understood the whole thing and had made their mind but some were not during the deliberation. For those those who still confused may try to use the semantic of this term instead rely on vast evidences provided during the trial to reach the infringement verdict. This possibility increase as the time dragged on. If I were one of the juror, I would say to myself: if the term say “external clock used to generate the signal used to clock the CPU” but no other term say “internal ring oscillator used to generate the signal used to clock the CPU”, perhaps by definition, it's the external clock generate signal to clock the CPU. To eliminated my doubt, let me ask judge to clarify more about what generate means. In other words, the term itself can be interpreted as, you, as a judge, had an inclination on what component generates the signal to clock the cpu, even this interpretation is untrue in your mind.

If a juror more convinced that it is the internal ring oscillator generate signal to clock the CPU, when arguing with other jurors with different opinion, he/she may have a second thought on why the term says “to exclude any external clock used to generate the signal used to clock the CPU. “ He/she may say: “ok, external clock never generate signal to clock the cpu from what I understand, but why you say - “any external clock used to generate the signal used to clock the CPU” in term 18? He/she may also need more clarification. Since “generate” is the main word in contention, let's ask judge about what really generate means here.

In short, jurors could be confused in the semantics of the term definitions. It might lead them shifting from focusing on evidences towards focusing on semantics of term definitions, the inseparable part of claim construction. They might also think that you had an opinion at what generate the signal used to clock the CPU, contrary to your instruction to them that the decision is yours (juror's) to make. This could potentially generate prejudice to one party over the another party.

Oh God, I really don't want to see the semantics have a bigger say than it should in this case.