As proven many times, it is not the validity of 336 patent, not the prosecution history what shown the negotiation between PTO examiners and our lawyers to get 336 claims allowed, it is the judge who had the most influence on the outcome of our cases without a check on his power. We were lucky last time in HTC case, since the very confused juries eventually came out of the confused state of mind to give a verdict in our favor. The check and balance system in HTC case that time limited his power. Both this time around and last time in HTC case, the judge was muddy the water, leaning to the side of infringers. This time again, the judge is repeating to similar error to give a wrong claim construction on “entire oscillator” term.

There is a misconception to say that judge reversed from HTC case. No, he did not change his mind. He is still sided with other side and try to nail us down. If we revisit to HTC case; review his claim construction terms and the instructions he gave to juries, we know that it was the juries who collectively voted down his claim constructions and did not follow his jury instructions. I attended last few days of the HTC case and wrote a letter addressing to him one day before we win the HTC case. I emailed this letter to Mr. Jim O. and also passed it to Patriot BOD members who attended the trail. The letter is to analyze what were wrong with judge’s claim construction and jury instructions. Through I’m not a lawyer, not a EE (I studied one your EE then switched to get computer science degree here. I also negotiated by myself with USPTO to get two US patents allowed) so I’m a little more than a layman. Here is the letter (if you have time for a long post) -

———————————————

Dear Magistrate Judge Grewal, Oct. 2nd, 2013

My name is Gary Lou. I has been following TPL/HTC case closely since I have an interest in Patriot Scientific Corporation who is also a joined defendant of this trial. In today'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 say “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? I also need more clarification. Since “generate” is the main word in contention, let's ask judge about what really generate means here.

I don't know is it right or wrong for me to write this, or is it right or wrong for me to give my opinion to you before jurors reach their determination. In any case, disregard it if above does not make any sense to you, or it is improper for me to write it or give it to you.

Yours truly

xxxx xxx

———————————————

After juries gave us a favarable verdict, I also talked to 5 juries in two places (briefly to one at a garage and second conversation in front of the building with 4 juries, including the lead jury second on in line for about 50 minutes. I also wrote up a summary and forward it to MR. Jim O. Many things I speculated in above letter actually happened (the merning of "generate" for example). Many juries were so confused about the language and sematic in judge's CC and jury instruction he handed to juries to guide them.

Now back to present case, from judge’s recommended construction argument -

“applicants distinguished their “present invention” from microprocessors that rely on frequency control information from an external source:

“The present invention does not similarly rely upon provision of frequency control information to an external clock, but instead contemplates providing a ring oscillator clock and the microprocessor within the same integrated circuit. The placement of these elements within the same integrated circuit obviates the need for provision of the type of frequency control information described by Sheets, since the microprocessor and clock will naturally tend to vary commensurately in speed as a function of various parameters (e.g., temperature) affecting circuit performance.

Sheets’ system for providing clock control signals to an external clock is thus seen to be unrelated to the integral microprocessor/clock system of the present invention.14”

Because the applicants referred to the “present invention” in this statement, their disclaimer applies to all claims.15

……..

The PTO nonetheless issued a second rejection based on Magar, and the applicants responded by emphasizing again that the claimed invention did not rely on an external crystal’s fixed frequency to set the clock’s frequency rate:

“The essential difference is that the frequency or rate of the . . . signals is determined by the processing and/or operating parameters of the integrated circuit containing the . . . circuit, while the frequency or rate of the . . . signals depicted in Magar . . . are determined by the fixed frequency of the external crystal.12”

The applicants also disclaimed the use of an external crystal to cause clock signal oscillation:

Magar’s clock generator relies on an external crystal connected to terminals X1 and X2 to oscillate . . . . It is not an entire oscillator in itself. And with the crystal, the clock rate generated is also conventional in that it is a fixed, not a variable, frequency. The Magar clock is comparable in operation to the conventional crystal clock 434 depicted in Fig. 17 of the present application for controlling the I/O interface at a fixed rate frequency, and not at all like the clock on which the claims are based.13”

I bold faced a few words and underlined two patents judge included from the prosecution history.

For applicant’s arguments against Sheet, two words were used by 336 inventors/their lawyers - similarly and obviates. First, “The present invention does not similarly rely upon provision of frequency control information to an external clock, but instead contemplates providing a ring oscillator clock and the microprocessor within the same integrated circuit.” What’s not similar? 1. Under sheet, the external clock and cpu are running in lockstep speed (same frequency), cpu cannot escape from the very low frequency of external clock. But using 336 patent, cpu can be clocked by RO 10 times faster (at the time of 336 got granted) or 100 time or more at present time. 2. Under Sheet, there is no internal clock that is on the same substrate with the cpu. All it has is an external clock to fix the cpu speed. Under 336 and all defendants’ products, the RO (PLL) is on the same substrate with the cpu. 3. RO (PLL) and cpu are varying together due to PVT variations under 336 and all defendants’ products so CPU will not run too fast or too slow, but under Sheet, the cpu speed is fixed by external clock, the PVT variations of cpu are non matter in cpu speed.

Second, the word obviates in

“The placement of these elements within the same integrated circuit obviates the need for provision of the type of frequency control information described by Sheets, since the microprocessor and clock will naturally tend to vary commensurately in speed as a function of various parameters (e.g., temperature) affecting circuit performance.”

means remove (a need or difficulty). Under sheet, cpu has to, need to use external clock to provide frequency control. Under 336, cpu dost not have to or need to use external crystal clock to provide clock signal. This does mean if anyone can use the 336 patent to achieve very high cpu speed and use an external clock to tightly control the cpu in a tight frequency range (at that high speed), and just by adding the external clock to provide additional frequency control information, anyone can be free from the infringe the 336 patent. In simple terms, if 336 is A (RO) and B (CPU and RO on the same substrate), defendants added C (external crystal clock) and D (PLL to enclose the RO and interface with C), it is obvious that add additional apparatus on a valid patent cannot avoid escape the claim scope of A and B. I know at this stage, we are not talking about the infringement but claim construction, but judge’s analysis and his claim construction bury a dangerous bomb here. In HTC case, the bombs were defused by juries (highly intelligent from bay area pool).

For applicant’s arguments against Maggar, “not all like” is used by 336 inventors/their lawyers to, this is easy to understand as it is similar to what we argue in case of Sheet (points 1, 2 and 3). How can the jude arrive this conclusion - “The applicants also disclaimed the use of an external crystal to cause clock signal oscillation:” All applicants said was this - “The present invention does not similarly rely upon provision of frequency control information to an external clock”. The applicants were just saying our cpu is clocked by RO that is on the same substrate of CPU, is not clocked by a clock that is external to the RO/CPU substrate and is running at the same frequency of cpu. Where did the judge find “applicants also disclaimed the use of an external crystal”? And “an external crystal to cause clock signal oscillation” is what happen in Sheet and Maggar, not in 336, not in defendants’ products (external clock signals never reach cpu, the PLL circuitry convert it to voltage variation to keep cpu speed in a tight range.) Is it very obvious that the judge was using distorted facts (statements), very out of logic way and confusing arguments to arrive his final claim construction.

I’m also alarm to see this :Because the applicants referred to the “present invention” in this statement, their disclaimer applies to all claims.: Again, the judge is not flipping from the HTC case, he is continue his course. I just hope that the jury effect (without juries this time) will somehow happen to have a check and balance of a single judge's power.

Win or lose, this case (and the struggle of 336 patent) is and will certainly be a remarkable piece of history with a time stamp of our era - big bussinesses lobbying our goverment to supress/alter the right of small inventors.