LOL. Looks like we have a wolf in wolf’s clothing on board.

The only evidence that was received by the court during the Markman hearing were the following joint exhibits from CO_19 Doc360:

Exhibit 1: 774 patent

Exhibit 2: 737 patent

Exhibit 3a: 774 prosecution history. Jul 17, 1995 Examiner Interview Summary Record. (CO_19 Doc 296-9 on box.net)

Exhibit 3b: 774 prosecution history. Compilations of Exhibits A-O to July 20, 1995 Amendment. (CO_19 Doc 297-8, Bates numbers PTO0443-PTO0487 on box.net)

Exhibit 3c: 774 prosecution history. Popular Science’s 1994 Award for Audio and Video award to Norris Communications for the Flashback product. (CO_19 Doc 297-8, Bates number PTO0446 on box.net)

Exhibit 4: Prosecution history of the 737 patent

The above evidence is what the judge will review in rendering her decision, along with live testimony during the Markman and written briefs submitted by each side. DM asked that Exhibit 6 (sample of Flashback product) also be included but the judge said she would rule on that later. There is no other patent prosecution evidence the judge will use to base her ruling on.

Nowhere in the 774 patent/prosecution history evidence listed above does it use the term “main memory”. In order for Norris to overcome the Schroder prior art and the Microsoft dictionary, he used the term “sole memory”, which Norris meant as the flash memory module to store the received processed signal, but not the only form of memory (RAM) needed to process the received signal. The USPTO examiner agreed this would overcome Schroder and the MS dictionary and stated so in a USPTO document (Exhibit 3a, page 6 of 21). The exact verbiage from the pertinent paragraph of the 774 patent is: “a receiving socket electrically coupled to the memory control circuitry and configured for electrical coupling with a flash memory module which operates as sole memory of the received processed sound electrical signals and is capable of retaining recorded digital information for storage in nonvolatile form”.

The defense is trying to say that since we state “sole memory”, then RAM can’t be included in our patent. And if RAM isn’t included, there’s no way the defendants have infringed because their products use RAM. But Norris, a named inventor of the 774 and Flashback, contradicted this by stating under oath, that RAM is obviously a part of the 774 patent as seen in the patent diagrams. He stated under oath that in order for all the signal processing to occur (analog/digital conversion, compression, etc) there MUST be RAM. Furthermore, the Flashback device is the embodiment of the 774 patent (the word “embodiment” is actually used in the 774 patent and the use of the Flashback was demonstrated by Norris to the USPTO examiner in Jul, 1995). And finally, the defenses own expert admitted under oath he believes the Flashback does contain RAM (DRAM) based on a picture of the Flashback Mr. Yungwirth showed him (Exhibit 3a, page 14 of 21).

To see the picture of the Flashback with the RAM module circled in red (Exhibit 3a, page 14 of 21), go to CO_19 Doc296-9 on box.net. I’m pretty sure this was the picture Mr. Yungwirth showed Dr. Mihran during cross-exam and got Mihran to admit that it was a RAM module inside the Flashback. Remember Profundo posted that Mihran said he agreed it was a RAM module based on the number on the module.

After reading the obvious bashes of nosenothing, I reviewed my Markman report. I posted that I heard Mihran say the term “RAM” does not appear anywhere in the prosecution history but I may have heard wrong. However in contradiction of nosenothing’s assertion, clearly “main memory” doesn’t appear in the evidence above. “RAM” does appear in Exhibit 3a, pages 18, 19, 20 and 21. These are technical pages of the SMC88xxx microcomputer chip family which apparently Norris used in the Flashback and it clearly references RAM. Thanks for the additional confirmation nosenothing...much appreciated.

Nothing new on PACER.