“[0004] A problem with such an ARQ scheme is that the consequences of errors in the ACK and NACK are significantly different. Normally the BS would re-transmit a packet if a NACK were received. If the BS receives a NACK when a ACK 11. was sent, then the packet is re-transmitted anyway, which only wastes a little system resource. If a NACK is sent, but received as a ACK, then no re-transmission is made. Without special physical layer mechanisms, this situation can only be recovered from by using higher layer processes, which adds delay and is a significant waste of system resources. Hence, the cost of an error in a NACK is much more serious than the cost of an error in a ACK. 12. [0005] In order to optimise system performance, it is desirable to control the relative probabilities of errors in decoding ACKs and NACKs. In one UMTS embodiment this is done by setting different detection thresholds at the BS, which requires the MS to transmit the ACK/NACK codeword with a specific power level (e.g. relative to uplink pilot power). This power level and the detection threshold can therefore be chosen to balance costs of ACK/NACK errors, interference generated by the MS, and battery power used by the MS. With DTX, the situation is a little more complex. However, the BS, as the source of the packet, is aware of when a ACK/NACK should be sent by the MS and it should therefore not normally be necessary to specifically detect the DTX state.”
“In one preferred embodiment, particularly suitable for UMTS HSDPA, the ACK/NACK power offset used by the MS 110, as well as the ACK power level would be determined by higher layer signalling from the network. Alternatively, the offset could be signalled using a single information bit, signifying ‘no offset’ (i.e. equal transmit power for ACK 206 and NACK 204) or ‘use offset’, signifying the use of a pre-determined value of power offset. More signalling bits could be used to indicate a larger range of values of offset.”
“In general, the power levels at which the ACK/NACK … commands are transmitted may be adjusted in order to achieve a required level of reliability. These power levels could be controlled by messages sent from the BS … to the MS …. These could specify the power level relative to the pilot bits on the uplink dedicated control channel, or relative to the current power level for the channel quality metric. In the case of the dedicated control channels of one MS … being in soft handover with more than one BS … the power of the uplink dedicated control channel is not likely to be optimal for all the BSs … involved. Therefore, a different power level, preferably higher, may be used for sending the ACK/NACK … commands. This power difference could be fixed, or determined by a message from a BS …. When the transmission of ACK/NACK … is directed to a particular BS …, the power level may be further modified to take into account the quality of the radio channel for that transmission. For example, if the best radio link from the active set is being used, the power level may be lower than otherwise.”
“[1] A secondary station [i.e. MS] for use in a radio communication system [2] having a communication channel for the transmission of data packets from a primary station [i.e. BS] to the secondary station, [3] wherein receiving means are provided for receiving a data packet from the primary station [4] and acknowledgement means are provided for transmitting a signal to the primary station to indicate the status of a received data packet, [5] which signal is selected from a set of at least two available signal types, [6] wherein the acknowledgement means is arranged to select the power level at which the signal is transmitted depending on its type [7] and in dependence on an indication of the power level at which each type of signal is transmitted, the indication being signalled from the primary station to the secondary station.”
“There is no dispute that the invention has a number of advantages, although the Defendants contend that the advantages can also be realised from Shad. In particular, the scheme is a flexible one that permits the powers of the ACKs and NACKs to be modified independently, allowing error performance targets to be achieved at lower average power and different data services to be handled differently; and it facilitates soft handover in the uplink when using HSDPA in the downlink. This is achieved with only a modest increase in system complexity.”
“i) The cost of a false ACK is more significant than the cost of a false NACK. ii) Signals sent at higher powers are more reliably detected at the BS, but the use of more power may increase interference between signals in a CDMA system. The probability of a receiver correctly interpreting a signal can be manipulated by varying the power at which the signal is sent, and increasing interference at a BS would decrease the total system capacity. This can be thought of as “Shout louder if you want to be more sure you will be heard”. iii) Reducing interference at the BS is beneficial in that it makes it easier for the BS to receive signals from the MSs it is serving. iv) In conventional modulation, the further away the received voltage of a signal from the decision threshold, the lower the probability of error. v) As discussed above, the generally accepted method of power control for uplink channels was for the BS to control the MS. vi) The way fast fading was dealt with in CDMA was by closed loop power control. This worked by the BS monitoring the uplink signal from the MS and comparing it to a target SNR, which was related to the number of errors (the higher the SNR, the lower the errors, and vice-versa). vii) At the Priority Date a new uplink control channel for HSDPA was proposed and specified in TS 25.308. viii) It had been decided that the HARQ protocol for HSDPA would use a Multi-Channel SAW process, which was asynchronous on the downlink and synchronous on the uplink. The acceptable error rates for the ACK and NACK messages in HSDPA had not been agreed at the Priority Date, however. ix) It was known that in UMTS Release 4 the closed loop power control mechanism ensured that a MS in soft handover with two or more BSs transmitted sufficient power to communicate with at least one BS (i.e. the BS(s) with the best uplink channel quality). x) It was known from UMTS Release 4 that uplink power levels could be set by the BS relative to the uplink power of the pilot bits sent on the DPCCH. xi) The skilled person would not be concerned by the possibility of errors due to DTX in the context of ACK/NACK signalling in HSDPA.”
“In this contribution the transmit gains for an antipodal signaling scheme in which the transmit probabilities are known a priori is jointly optimized with the receiver hard decision device threshold value in order to obtain the required error probabilities for a minimum bit SNR. This type of signaling for example applies to the Hybrid ARQ acknowledgement channel in which the average frame error rate is known to the transmitter, and certain false acknowledgement and false negative acknowledgement probabilities are prescribed by the upper layers.”
“The objective of this contribution is to obtain the optimal power allocations to an antipodal signaling scheme such that the required performance is achieved with a minimum bit SNR. This is done by applying unequal gains to the transmit voltages of the two possible signals. At the receiver, the threshold of the hard decision device is biased so that the required error rate is achieved for each of the two types of errors.”
“Due to the fading channel and power control, the actual EbNt requirement and optimal values of z, k, and l may be quite different from the values reported in Table 1. One possibleapproach for obtaining the correct values for z, k, and l … is as follows. The ratio of k to l can be determined by the measured FER on the Forward Shared Channel. The mobile keeps track of pfack and pfnack. It can gather these statistics based on the number of duplicate and missing frames that are observed. If either pfack or pfnack are too high, the values of k and l are scaled up by a constant. If both pfack and pfnack are too low, then k and l are scaled down by a constant. The value of z can be initialized based on a Gaussian channel assumption. Then it can be adjusted based on feedback from the mobile”
“Furthermore, as Mr Edwards also accepted, it can be seen from Table 1 that there is not just an advantage between the optimal detector and the MAP detector [a comparator]. Both detectors show that there is an average power saving for each detector of several dB as between the SNR required to achieve the error rate at p=0.5 and the required SNR at low or high p value. Thus Shad shows that power savings can be made by differentially powering the ACKs and NACKs depending on the probability of transmission.”
“Shad does not say, and the experts were agreed that the skilled person would be unable to tell, what overall benefit would be achieved by implementing Shad in a real system.”
“would see the potential benefits of applying differential gains to the ACKs and NACKs as proposed by Shad in that context, but would perceive problems in implementing Shad as proposed in section 4 and would realise that an obvious alternative way in which to implement Shad would be for the BS to set the gains”
“…In my judgment the arguments on obviousness are quite finely balanced. At first blush, at least with the benefit of hindsight, it appears that implementing Shad’s proposal for differential gains on the ACKs and NACKs at the BS rather than the MS would be an obvious alternative. On the other hand, the evidence with respect to Mr Gould’s proposed approach shows that changing Shad’s implementation is less straightforward than it appears. Moreover, the logic of Mr Gould’s reading of Shad actually points in a different direction if the skilled person is minded to do anything other than simply following Shad’s teaching. 260. Counsel for the Defendants submitted that the implementation issues did not matter, because the right question was how the skilled person would develop the HSDPA HARQ scheme after reading Shad with interest. I accept that that is a legitimate question, but Mr Gould’s evidence does not establish that the implementation issues would disappear from the skilled person’s mind on that hypothesis (let alone Mr Edwards’ evidence). Counsel for the Defendants also submitted that Philips’ case based on the implementation issues with Shad involved an inconsistency, because it was common ground that the skilled person could implement the Patent without difficulty. I do not accept this: Shad discloses differential gains for ACKs and NACKs in a highly specific context, which is Shad’s proposed optimisation algorithm. The Patent not only discloses the idea free of that context, but also discloses signalling the gains from the BS and adds the possibility of setting them independently. Furthermore, neither of these arguments meets the point that 46. the logic of Mr Gould’s reading of Shad points in a different direction. I would add that no less than 100 paragraphs and 34 pages of the Defendants’ written closing submissions are devoted to their arguments that claim 10 is obvious over Shad, which would hardly be necessary if it was really that simple.”
“increases the mobile station complexity with an insignificant, if any, performance improvement. So we recommend that the baseline approach using the same power levels for ACK and NACK be retained.”
“25. There is an intellectual oddity about anti-obviousness or anti-anticipation arguments based on “technical prejudice.”
“It follows that, although I do not consider the skilled person would simply put Shad to one side, Mr Edwards’ first point remains relevant to the Defendants’ obviousness case.”
“An object of the invention is to reduce the requirement for system resources.”
“The invention is based on the realisation that downlink closed loop power control may be operated by measuring the quality of received downlink non-predetermined data symbols instead of predetermined pilot symbols, and that in some circumstances, separate downlink pilot symbols for each active mobile station are not necessary for channel estimation. In some circumstances, downlink channel estimation is not required at all, and in other circumstances a common downlink pilot signal transmitted at a constant power level may be used instead of separate pilot signals. In some circumstances, the base station transmits a second, non-power controlled downlink signal, or a constant power level downlink signal, the mobile station being adapted to derive a channel estimate from this signal. Consequently, operation is possible using fewer downlink system resources.”
“[0018] So, in accordance with the invention the downlink fractional DCH can consist only of non-predetermined information bits multiplexed between users. A special case of interest is where these information bits carry TPC commands. The amplitude of individual TPC bits may be adjusted by the base station according to power control commands received from the relevant mobile station. The mobile station determines the radio channel phase characteristics from the appropriate common pilot signal, demodulates the TPC commands, and increase or decreases the mobile station uplink DPCCH power as required. In addition, the mobile station uses the amplitude of the received TPC bits to determine any TPC commands sent in the uplink.”
“In a nutshell, the invention is to dispense with the dedicated pilot bits in the fractional DCH and to use the common pilot signal or the TPC bits instead. This frees up system resources.”
“[1] A mobile station for use in a UMTS communication system in FDD mode operating HSDPA having a base station, the mobile station comprising: [2] receiver means for receiving from the base station a first downlink signal on a downlink dedicated channel configured as a fractional dedicated channel which comprises only second power control commands, with multiple users multiplexed on to the same channel code; [3] measurement means for measuring a parameter of the received first downlink signal; [4] power control means for generating first power control commands in response to the measured parameter; and [5] transmitter means for transmitting the first power control commands to the base station; [6] wherein the first power control commands are used by the base station to adjust the power of the part of the fractional dedicated channel corresponding to the mobile station; [7] wherein the measurement means is adapted to measure the parameter of the first downlink signal while the first downlink signal is modulated with non-predetermined data values [8] and is subjected to transmit power control in accordance with the first power control commands.”
“… allows a wider use of HSDPA by reducing the code limitation problem … and therefore is a good candidate technology for the HSDPA enhancement discussions”
“193. In my judgment the evidence of the experts shows that omitting the dedicated pilot bits from the F-DPCH proposed in Nortel October was a technically obvious choice for the reasons given by the Defendants which I have summarised above. Mr Kahtava agreed that the skilled person would be interested in Nortel October's proposal and would want to pursue the FDPCH. Moreover, he agreed that a skilled person who was developing Release 5 would want to maximise the number of MSs on a code. He also agreed that the skilled person would be able to implement a modified F-DPCH with no pilot bits using his common general knowledge, and would see benefits from omitting the pilot bits. Although Mr Kahtava made a point about performance issues in relation to the one-slot delay, this is not a requirement of the claim or something the Patent addresses. As for the point about the ratio of TPC bits to pilot bits, Mr Kahtava agreed that they have different functions and thus the ratio between them in Nortel October is not of any particular significance. It was clear from Mr Kahtava’s evidence that his reasons for saying that it would go against the grain of the skilled person's thinking to omit the dedicated pilot bits from the F-DPCH in Nortel October were because of the impact on backwards compatibility and implementation issues. The impact on backwards compatibility in term of the technical capabilities of the system would be limited for the reasons given by the Defendants, however. Moreover, as Mr Kahtava accepted, the skilled person would appreciate that it would be possible to have two slot structures for the F-DPCH, one with and one without pilot bits. That would enable the skilled person to retain the capability for user-specific beamforming and closed-loop transmit diversity with antenna verification if so desired. Thus the key factor in Mr Kahtava's reasoning was that of the costs of implementing the new channel without the pilot bits. When Mr Kahtava was asked to assume that the skilled person was not concerned with costs, he readily accepted that it would be obvious to remove the pilot bits. 194. Prof Purat’s evidence was that, given Nortel October's objective, the skilled person would naturally consider whether the number of users on a single code could be increased further. The skilled person would see that the only options to reduce code usage were to reduce the number of TPC bits to one or to remove the pilot bits. The skilled person would know that the pilot bits were not technically necessary and would be aware that cdma2000 did not have dedicated pilot bits. Accordingly, omitting the pilot bits would be an obvious choice. Although this would involve the disadvantage that user-specific beamforming and closed-loop transmit diversity with antenna verification could not be applied to the F-DPCH, the skilled person would consider that a minor disadvantage which was outweighed by the increase in the number of users for each code. Prof Purat accepted that the skilled person would appreciate that open-loop transmit diversity could not be used with the first three slot formats (“structures”) proposed in section 6.x.1.3 of Nortel October, but did not accept that this meant that it was not obvious that the dedicated pilot bits could be omitted. For the reasons explained above, I have approached Prof Purat's evidence in relation to Nortel October with caution because of the risk that his opinions may have been based on hindsight. Given that Mr Kahtava's evidence was largely consistent with that of Prof Purat, however, I have concluded that Prof Purat's opinions were not tainted by hindsight.”
“The word ‘obvious’ in section 3 is I believe directed to whether or not an advance is technically or practically obvious and not to whether it is commercially obvious. Although the law is encapsulated insection 3 of the Patents Act 1977 , the law on obviousness goes back many hundreds of years. The basis of the law is that the public are entitled to manufacture that which has been published, in the sense of made available to the public, with obvious modifications. By ‘obvious modifications’ are meant that which technically or practically would be obvious to the unimaginative skilled addressee in the art. Such a skilled man should be assured that his actions will not be covered by any monopoly granted to another if he does that which is part of the state of the art with modifications which are workshop alterations or otherwise technically or practically obvious alterations. He does not and should not have to look further and consider whether the step he is taking is obvious or not for commercial reasons. The prize for a good commercial decision or idea is a head start on the competition and not a monopoly for twenty years.Section 3 of the 1977 Act is directed to preventing patents being granted when the inventive step could or, in appropriate cases, would be obvious from a technical or practical point of view, even if the step was commercially not an obvious one to take.”
“If the plea of obviousness is to succeed, the court has to be satisfied that it would have appeared to the hypothetical technician, skilled in the art but lacking in inventive capacity, worthwhile to coat the helix of a self-pulling corkscrew with a friction-reducing material for purpose (a) or purpose (b) above or both of them. As cases such as Technograph and Beecham show, he is not to be expected to take steps or try processes which he would not regard as worthwhile. In using the word “worthwhile”, we mean worthwhile as a possible means of achieving or assisting in practice the objective which he has in view. This, we infer, was what the judge had in mind in saying that the word “obvious” in section 3 is directed to whether or not an advance is “technically or practically obvious”
“87. … it remains the case that the perceived limits of technical practicability are a matter of mindset, and that mindset is characteristically affected by awareness of need, of which commercial potential is both a function and an index. Just as it is highly improbable that the idea of the wheel would have occurred to anyone in a society which had no need to move loads, it is hard to believe that either the heretical idea of a heliocentric universe or the observations and calculations which eventually demonstrated its existence would have happened in a society to which chronology and marine navigation were unimportant. Historically there is always something which makes the inventive think the unthinkable and by the same token inhibits the unimaginative from doing so. 88. If then the intellectual horizon of practical research and innovation is in part set by the economic milieu, commercial realities cannot necessarily be divorced from the kinds of practical outcome which might occur to the law's skilled addressee as potentially worthwhile. It is one thing to accept that this technologically skilled but wholly unimaginative person is a lawyer's construct – a ventriloquist's dummy, Mr Hobbs calls him – who thinks only of how things work or could be made to work. It is another to expel him altogether from the real world, where ideas do not occur to people in (so to speak) a vacuum. 89. The present case, on the deputy judge's findings, is a very good illustration. The vacuum-cleaner industry was functionally deaf and blind to any technology which did not involve a replaceable bag. The fact that the handicap was entirely economically determined made it if anything more entrenched. The industrial perception of need was consequently, in the judge's happy coinage, bagridden. It is entirely in accordance with what we know about innovation that this commercial mindset will have played a part in setting the notional skilled addressee's mental horizon, making a true inventor of the individual who was able to lift his eyes above the horizon and see a bag-free machine.” 117. Arden LJ said this: “94. Insofar as that mindset reflects on commercial motivation, I would add that, as the passage from the judgment of Slade LJ in Hallen & Co v Brabantia (UK) Ltd[1991] RPC 195 at 213, cited by Aldous LJ, demonstrates, the question of obviousness does not compel or require any proof of commercial obviousness. Indeed, as Sedley LJ points out, the skilled but unimaginative addressee is a legal construct. In some respects he is superhuman: he is deemed to have read all the publicly available documents, in whatever jurisdiction or language. But he is also deemed never to think laterally (see per Laddie J in Pfizer Ltd’s Patent [2001] FSR [61] at [62]). With regard to the skilled addressee, the investigation into obviousness is unreal, and thus removed from the real world where commercial motives may dominate. The question, however, whether (as of the priority date) the differences between the Dyson claims on the one hand and the Campbell and Johnston/Donaldson claims on the other hand were obvious or required a degree of invention is answered at the fourth stage in the Windsurfing enquiry by considering the technical differences between the Dyson claims and the prior art. This involves a technical comparison of such differences. 95. Hoover contends on this appeal that the judge erred in law in his general approach in the way he took into account the interests, motives and prejudices of the addressee in the prior art. On its submission, the judge was wrongly influenced by the “mindset” in favour of bags: that was not a proper consideration and resulted in an over-restrictive reading of the prior art. Despite the persuasive (though commendably economical) submissions of Mr Geoffrey Hobbs QC, for Hoover, I am satisfied that the judge attached appropriate significance to the mindset and decided the issue of obviousness on technical grounds in accordance with wellestablished case law: see in particular paragraphs 156, 158 and 162 of his judgment. The judge expressly recognised that there was a legal requirement that the addressee should take a practical interest in the prior art (see judgment, paras 156 and 162). However, at the end of the day, the prior art would have required substantial changes to bring the Dyson claims within it (see judgment, para 156). The “mindset” in favour of bags was, as the judge held relevant to the skilled addressee's “active repertoire of skill” (judgment, para 45) and the enthusiasm and ease with which he could have been able to make those changes, without showing the imagination which he is presumed not to have (see judgment, paras 156, 157)… 97. In some circumstances, commercial motivation or the lack of it may be relevant because it sheds light on some issue itself relevant to obviousness or inventive step. In relation to obviousness, the burden of proof is on the party challenging the validity of the patent. However, to repeat, the fact that it was not foreseen that an invention would be a commercial success is neither a necessary nor a sufficient requirement for refuting a claim of obviousness, or vice-versa, just as the subsequent commercial success of an invention does not prove inventive step. The validity of a patent is to be ascertained by rigorous application of the provisions ofsection 1 of the Patents Act 1977 together with the jurisprudence of the courts which it codifies or which explains its requirements. But commercial motivation or “mindset” may have some indirect relevance to the issue of obviousness, as for the reasons given above this case illustrates.”
“The mind-set of the skilled person would be firmly that the pilot bits were an important feature for the operation of the fractional dedicated channel proposed in Nortel 1 and 2. Indeed, Nortel 1 and 2 make it clear that the pilots bit [sic] are a fundamental feature of the fractional dedicated channel.”
“I disagree with §267 of Mr. Kahtava's first report. The skilled person would know the purpose of the dedicated pilot bits from Release 99, 4, and 5. They exist to enable user-specific beamforming and antenna verification for transmit diversity. Moreover, they can be used to take SIR measurements on the dedicated channel. The skilled person would know that pilot bits are transmission overhead and they would know that a removal of pilot bits provides the option to transmit other useful data. In considering the presence of pilot bits, they would always weigh the benefits of removing them versus the benefits of retaining them. Neither Nortel May nor Nortel October describes the pilot bits as fundamental to the Fractional Dedicated Channel and I do not believe that the skilled person would have understood them to be fundamental.” 129.Moreover at paragraph 10.22 Professor Purat said: “The skilled person would understand that one of the targets in Nortel is maximising backward compatibility, but he or she would be well aware that dropping aspects of backward compatibility may provide further options to improve the system.”
“Certainly, the skilled person, if they knew that they were implemented, and there is a good reason why you could continue to use them, but things developed, and I think when you specify new releases, the skilled person would also know that you should not always use the old hardware or software implementations that you used for the first releases.”
“One problem with the TPC schemes described above is that power consumption of the transmitter increases when channel conditions are poor, and therefore the schemes may not be power efficient. Another problem is that the increase in transmitted power increases the interference to other users, which can degrade system efficiency.”
“According to a first aspect of the invention there is provided a radio station comprising transmitter means for transmitting over a channel in a predetermined time period a data block comprising information symbols and parity check symbols and control means responsive to an indication of a reduction in channel quality according to a first criterion for decreasing the data transmit power and responsive to an indication within the predetermined time period of an increase in channel quality according to a second criterion for increasing the data transmit power.”
“By decreasing the data transmit power while the channel quality is poor, power is saved and interference is reduced.”
“… after decreasing the transmit power following the first criterion being met and before the second criterion is met, any control signal transmitted by the first station 100 may be either a) switched off, or b) continued with varying power to continue to track the changes in channel quality to some extent, or c) continued at a constant level.” a) switched off, or b) continued with varying power to continue to track the changes in channel quality to some extent, or c) continued at a constant level.”
“[1] A radio station comprising transmitter means for transmitting over a channel in a predetermined time period (0 to tF) a data block comprising information symbols (I) and parity check symbols (C) and [2] control means responsive to an indication of a reduction in channel quality according to a first criterion for decreasing the data transmit power and [3] responsive to an indication within the predetermined time period of an increase in channel quality according to a second criterion for increasing the data transmit power, [4] wherein, during operation, after decreasing the transmit power following the first criterion being met and before the second criterion is met, the transmission of the data block continues at a lower power level.” 161.Claim 2, is as follows: “A radio station as claimed in any of claims 1 to 8, wherein the indication of a reduction in channel quality according to the first criterion is an indication to increase transmit power above a predetermined threshold (P2).” 162.Claim 3 is as follows: “A radio station as claimed in claim 2, wherein the indication to increase transmit power is a received command.”
“For the Reverse Traffic Channel with Radio Configurations 1 or 2, if the mobile station is unable to transmit at the requested output power level, it shall terminate transmission on at least one Reverse Supplemental Code Channel not later than the transmission of the next 20ms frame to maintain the requested output power on the Reverse Fundamental Channel.”
“[1] For the Reverse Traffic Channel with Radio Configuration 3 through 6, if the mobile station is unable to transmit at the requested output power level, it shall reduce the data rate on the Reverse Fundamental Channel, or reduce the transmission power or terminate transmission on at least one of the following code channels that are active: the Reverse Fundamental Channel, the Reverse Supplemental Channels, or the Reverse Dedicated Control Channel. [2] The mobile station shall perform this action not later than the 20 ms frame boundary occurring no later than 40 ms after determining that the mobile station is unable to transmit at the requested output power level. [3] The mobile station should attempt to reduce the transmission power, the data rate, or terminate transmission first on the code channel with the lowest priority. [4] The mobile station shall transmit at the commanded output power level on the Reverse Pilot Channel.”
“First, as can be seen from the extracts quoted above, this removes the principal basis which Dr Brydon had given in his first report for discounting the possibility that the MS would clip the transmission powers of the channels. Secondly, Dr Irvine was cross-examined on the basis that, whatever interpretation of the disputed paragraph was adopted, it involved non-compliance with one or more other mandatory parts of C.S0002. If sentence [4] is interpreted in the way that the experts ultimately agreed, however, then it is possible to avoid non-compliance with mandatory aspects of the standard on Philips’ interpretation. As I shall explain, the same is not true of the Defendants’ interpretation. Thirdly, if sentence [4] is interpreted in the way that the experts ultimately agreed, then it does not push the skilled person in the direction of taking immediate action.”
“Counsel for the Defendants submitted that the uncertainty as to whether the data rate on the Reverse Supplemental Channels and the Reverse Dedicated Control Channel could be reconfigured in time provided a technical reason for the skilled person to interpret the disputed paragraph in the manner contended for by the Defendants. I do not accept this submission. In my judgment the skilled person would understand that the disputed paragraph proceeds on the basis that, in RC 3 to 6, the MS can and will (apart from some exceptional circumstances) take the appropriate action within the extended period allowed. The skilled person would understand that the Reverse Fundamental Channel was different to the other two types of channels for the reasons explained above, and that the extended time limit was provided to enable reconfiguration of the Reverse Supplemental Channels and the Reverse Dedicated Control Channel.”
“The mobile station should attempt to reduce the transmission power,by reducing the data rate, or terminate transmission on the code channel with the lowest priority.”
“Counsel for the Defendants accepted that Dr Irvine had striven to give his evidence fairly and to assist the Court. I found him an excellent witness who was very lucid in his explanations; but he tried so hard to be fair that he sometimes assented to propositions without insisting upon objections or qualifications he had previously expressed. It is therefore important to consider his evidence as a whole.”
“Counsel for the Defendants relied upon the acceptance by Dr Irvine in cross-examination that, when read together with sentence [4], sentence [3] was telling the skilled person that the MS must sacrifice one of the other channels in order to allow the Reverse Pilot Channel to be transmitted at the commanded output level. But this acceptance was predicated upon (i) counsel putting it to Dr Irvine that sentence [4] was mandatory and Dr Irvine replying that that was contradictory and (ii) counsel then saying he would come to that and asking Dr Irvine to accept that "in its own terms" that was what the end of the disputed paragraph was saying. Moreover, counsel then put it to Dr Irvine that, if the MS transmitted the Reverse Pilot Channel at the commanded output level, it would also transmit the other channels at their commanded output levels apart from the one sacrificed, to which Dr Irvine replied, "That is where the tension comes in". Thus the answers relied upon by counsel for the Defendants must be seen in the context of the other evidence concerning sentences [2] and [4] considered above.”