[00:00:14] Speaker 00:
Okay, the next case before the court is Avaya 8 versus Network One Technologies.

[00:00:24] Speaker 00:
Case number 141782, appeal from the PTAB.

[00:00:33] Speaker 00:
Actually, I don't have a reference here.

[00:00:35] Speaker 00:
Mr. Tanak, is that how you pronounce that?

[00:00:38] Speaker 00:
Tanak.

[00:00:38] Speaker 00:
How much time do you want for rebuttal?

[00:00:41] Speaker 01:
Pardon?

[00:00:43] Speaker 01:
Pardon me?

[00:00:43] Speaker 01:
10 for opening and 5 for rebuttal.

[00:00:46] Speaker 00:
Okay.

[00:00:57] Speaker 00:
Okay, you may begin.

[00:00:59] Speaker 01:
Good morning.

[00:01:00] Speaker 01:
Before addressing the analytical errors that the board made in failing to consider the non-operational NT1 DTEs in Matsuno that we showed in our blue brief at page 34,

[00:01:12] Speaker 01:
I want to address one very important point and make sure it's clear.

[00:01:17] Speaker 01:
The Matsuno reference, the circuitry and the design of that network never will allow the 48 volt remote current to operate any NT1 and DTE.

[00:01:31] Speaker 01:
The circuit is designed such that the 48 volt serves only as a detection current and it can never operate an NT1 DTE.

[00:01:41] Speaker 00:
So you're saying that the board's factual finding to that effect is erroneous, clearly erroneous?

[00:01:47] Speaker 01:
Well, it is clearly erroneous in that regard.

[00:01:49] Speaker 01:
But analytically, what they ended up doing is they looked at a network that Dr. Knox, the patent owner, created that is not the Matsuno device.

[00:02:04] Speaker 00:
And so when they look for it... You argued this in your brief, did you?

[00:02:07] Speaker 00:
We thought you only argued that to the extent that you went outside a certain radius, that it wouldn't allow operation.

[00:02:16] Speaker 00:
But you didn't say it would never operate.

[00:02:19] Speaker 01:
It said throughout all of the briefing.

[00:02:22] Speaker 01:
And the reason I'm arguing it this way right here is simply so that you can look at the issue from a sort of a different angle than what Dr. Knox had presented throughout our briefing.

[00:02:35] Speaker 01:
pages nine and 10 of the blue brief, 16, 24, 19, 20, 21, 22, all of those pages discuss the operation of Matsuno.

[00:02:45] Speaker 01:
And they all say that the 48 volt supply is only available at the NT1 for detection.

[00:02:55] Speaker 01:
The second, that 48 volt, the end of those two wires, the end of the data signal, the second they touch, a detection current flows

[00:03:05] Speaker 01:
And immediately, Matsuno switches to the power to operate the devices.

[00:03:12] Speaker 03:
But the issue that we have to confront on appeal, and that you have to contend with, I think is driven in large part by the claim construction for low-level current, which is a construction I don't believe you're disputing.

[00:03:26] Speaker 03:
So that's what's forcing the issue, where we have to create this kind of hypothetical world

[00:03:32] Speaker 03:
because obviously that 48 volts isn't actually being used in Matsuno to power the DTE.

[00:03:39] Speaker 03:
But we're now left in this hypothetical world where we have to ask ourselves whether or not 48 volts is enough to power those devices, those remote devices.

[00:03:49] Speaker 01:
Well, I think that's not exactly the correct way to look at this because we did not dispute the claim construction.

[00:03:55] Speaker 01:
The claim construction says a current insufficient to operate a device.

[00:04:01] Speaker 01:
We think that

[00:04:02] Speaker 01:
complies exactly with what Matsuno says, you need the higher power to operate the device.

[00:04:08] Speaker 01:
The issue is the construction of the claim says deliver this current insufficient to operate the device to the access device.

[00:04:17] Speaker 00:
If the network... The importance is what Matsuno discloses.

[00:04:22] Speaker 00:
Dr. Zimmerman admitted that Matsuno did not even really address that question, right?

[00:04:31] Speaker 01:
What Dr. Zimmerman said when he was asked a very direct question with respect to will the 48 volts power or does it say expressly in those words whether 48 volts will operate a DTE, which is just not really the access device as we identified it, he said the words aren't there.

[00:04:50] Speaker 01:
He simply said though it is implied that that's the case.

[00:04:54] Speaker 01:
The reason is, and what happened here is the board

[00:04:57] Speaker 01:
really got twisted around the axle of their own claim construction, which used the words sufficient to operate, or current sufficient to operate, whereas Matsuno speaks in terms of power or voltage to operate.

[00:05:12] Speaker 01:
The skilled artist then understands those are directly related to the law of nature, Ohm's law.

[00:05:18] Speaker 01:
Matsuno talks about you use the high power to operate

[00:05:26] Speaker 01:
the NT1DT, which is the access device.

[00:05:28] Speaker 00:
So you concede though, because you don't even really argue anything but adherency on appeals, that Matsuno doesn't expressly disclose or anticipate, correct?

[00:05:41] Speaker 01:
We have conceded that for the appeal simply because the words are not literally there.

[00:05:46] Speaker 01:
However, if I tell you a light switch is on, if I told you it's off also,

[00:05:50] Speaker 01:
I mean, they're not off, and that's the situation.

[00:05:53] Speaker 00:
So then you have a problem.

[00:05:54] Speaker 00:
So you've got an expert, Dr. Zimmerman, who does the first declaration where he doesn't really even analyze Matsuno in any kind of detail, does a second declaration that the board says it's only considering for a very limited purpose, right?

[00:06:08] Speaker 00:
And then you have Dr. Zimmerman admitting that Matsuno does not talk about whether or not it's sufficient to power.

[00:06:16] Speaker 01:
He did not admit that Dr. Zimmerman did not admit that it doesn't talk about insufficient power.

[00:06:24] Speaker 01:
He says it's implied in the discussion of the colloquy he had with Mr. Deval in the deposition.

[00:06:33] Speaker 03:
What are we supposed to take away from his testimony that it's not inherent, but it's implied?

[00:06:39] Speaker 03:
It's not inherent, but it suggests?

[00:06:40] Speaker 01:
As a lay person, which Dr. Zimmerman is, and not a legal person, analyzing

[00:06:46] Speaker 01:
Matsuno is one of ordinary skill in the art.

[00:06:49] Speaker 01:
He did analyze it in his initial petition, in the initial declaration.

[00:06:54] Speaker 01:
He did discuss exactly how it operates.

[00:06:57] Speaker 01:
And that's why I made the point up front that Matsuno cannot allow that 48 volts to operate the access device.

[00:07:04] Speaker 01:
And if it can't do it, it is insufficient to do it by definition.

[00:07:09] Speaker 01:
Network 1 argued

[00:07:12] Speaker 01:
that the 48 volts are available, and I'll quote, to be used by the access device, unquote.

[00:07:19] Speaker 01:
That's at A2665 of their patent owner preliminary response.

[00:07:23] Speaker 01:
So network one's arguing that the 48 volts are available to be used by the access device.

[00:07:29] Speaker 01:
And that's just wrong.

[00:07:31] Speaker 01:
Circuit will not allow it.

[00:07:33] Speaker 01:
If you're an electrical engineer, you look, it's removed.

[00:07:36] Speaker 01:
Matsuno removes the 48 volts immediately.

[00:07:40] Speaker 01:
It's only serving for detection.

[00:07:43] Speaker 00:
But again, you've got a problem in that if you're arguing inherency, you have to have evidence with respect to inherency.

[00:07:53] Speaker 00:
You have an expert that says, well, it's not really inherent, but I think it's kind of implied.

[00:07:57] Speaker 00:
And then he says, well, it doesn't really talk to it at all.

[00:08:02] Speaker 00:
You're asking us to find that the board clearly aired or didn't have substantial evidence to support its factual conclusion, and yet you can't point us to any

[00:08:12] Speaker 00:
evidence in the record other than what you want us to imply from Mattuno.

[00:08:18] Speaker 00:
I don't know how you can say that's enough.

[00:08:21] Speaker 01:
You have Dr. Zimmerman's second declaration.

[00:08:25] Speaker 00:
Which the board did not say it was considering.

[00:08:28] Speaker 01:
No, the board specifically said it did consider.

[00:08:30] Speaker 00:
For the very limited purpose of looking at the rebuttal, but not for purposes of everything that he

[00:08:37] Speaker 00:
presented for the first time.

[00:08:39] Speaker 00:
The board said it was not going to allow him to start from scratch.

[00:08:44] Speaker 01:
What the board said is, if the board had already made its prima facie case, that we had made out a case that it was more likely and not that Matsuno anticipates.

[00:08:54] Speaker 01:
The first opportunity that the petitioners had to respond to the claim construction issue, this is just the nature of an IPR proceeding, was in the petitioner's reply

[00:09:08] Speaker 01:
to Dr. Knox and to the patent owners to apply.

[00:09:12] Speaker 01:
The process of an IPR was we submit the petition.

[00:09:15] Speaker 01:
We made our prima facie case.

[00:09:18] Speaker 01:
There's anticipation.

[00:09:20] Speaker 01:
They then respond the board came up with this claim construction at that point on its own.

[00:09:26] Speaker 01:
The patent owner submits the Knox declaration.

[00:09:31] Speaker 00:
But wait, you don't dispute the claim construction.

[00:09:33] Speaker 00:
When you say the board came up with it on its own, it was a pretty obvious claim construction, right?

[00:09:37] Speaker 00:
I mean, you had to anticipate that there was going to be a claim construction.

[00:09:41] Speaker 01:
And we don't disagree with the claim construction.

[00:09:43] Speaker 00:
Right, so you can't say you were surprised by it.

[00:09:45] Speaker 01:
No, but we did not have an opportunity to rebut what Dr. Knox submitted as all of his evidence.

[00:09:51] Speaker 01:
We made out the case, prima facie, by looking at the original disclosure and the design of the circuit.

[00:09:58] Speaker 01:
And that's what Dr. Zimmerman said.

[00:10:00] Speaker 01:
The 48 volts is removed.

[00:10:03] Speaker 01:
Hence, it's a low-level current.

[00:10:04] Speaker 01:
It's not going to operate.

[00:10:05] Speaker 01:
I didn't use those words, but that's exactly what the case has to be.

[00:10:09] Speaker 03:
I'm a little confused.

[00:10:14] Speaker 03:
Would you acknowledge that you seem to be making a different argument than what I saw in your briefs?

[00:10:19] Speaker 01:
I'm not making a different argument.

[00:10:22] Speaker 03:
Are you kind of, I don't know,

[00:10:27] Speaker 03:
readjusting the arguments then, is that fair to say?

[00:10:31] Speaker 03:
Because I'm a little confused based on what I'm hearing now versus everything that I've read before.

[00:10:36] Speaker 01:
I'm simply trying to have you look at what Matsuno discloses so that you could see it can't operate.

[00:10:41] Speaker 01:
But in the brief we argued is that the board made analytical and legal errors because they didn't even use their claim construction when they applied it to Matsuno.

[00:10:53] Speaker 01:
The board was asking the wrong question when they were using their own claim construction.

[00:10:57] Speaker 01:
They asked the question, is any ISDN device, could it possibly operate off of 48 volts, regardless of what the actual network is?

[00:11:08] Speaker 01:
The correct inquiry for this claim should have been, is there one device that receives current insufficient to operate?

[00:11:17] Speaker 01:
Claim six, which is the issue, the claim here, is a bit of an odd claim.

[00:11:22] Speaker 01:
It starts with the first step that's supposed to be a method, but the first step says build a network.

[00:11:27] Speaker 01:
It puts a data access device here, puts a data node here, and it puts one cable between it.

[00:11:32] Speaker 01:
That's it.

[00:11:33] Speaker 01:
Then the method operates on that network.

[00:11:35] Speaker 01:
And it says, deliver a current to that one access device that's insufficient to operate it.

[00:11:42] Speaker 01:
The board looked at Dr. Knox's evidence where he took the ISDN network and shrunk it down to this arbitrary

[00:11:52] Speaker 01:
4,950-foot radius in which he had preordained some devices he could come up with would operate.

[00:12:00] Speaker 01:
And they said, well, we can find one device there that does operate.

[00:12:04] Speaker 01:
That's the wrong legal question.

[00:12:05] Speaker 01:
The question should have been, is there a device that can't operate?

[00:12:09] Speaker 01:
And the only way they could come to a conclusion of no anticipation based on looking at what Dr. Knox did is they had to add a limitation into the claim.

[00:12:21] Speaker 01:
It has to be deliver a low-level current to an access device that is within 4,950 feet.

[00:12:26] Speaker 01:
OK.

[00:12:28] Speaker 00:
You're way into your rebuttal time, so we'll give you what's left.

[00:12:31] Speaker 00:
OK, thank you.

[00:12:37] Speaker 02:
May I please decode?

[00:12:40] Speaker 02:
The board made two findings with respect to inherency, and both of those are supported by substantial evidence.

[00:12:46] Speaker 03:
Can you explain why is it that Matsuno uses two voltage levels?

[00:12:51] Speaker 02:
Yes, Your Honor, the reason is because the 120 volt supply is a constant current circuit.

[00:12:57] Speaker 02:
It never applies 120 volts to the subscriber line.

[00:13:02] Speaker 02:
It applies a call for a level of current, and it will select the appropriate voltage to get that level of current.

[00:13:09] Speaker 02:
But under the prior art from Itsuno, what happened was when the local... Let me ask it differently.

[00:13:18] Speaker 03:
Yeah.

[00:13:19] Speaker 03:
The first takeaway that 48 volts isn't enough to actually power the remote access device, and that's why you need to crank it up from 48 volts to 120 volts once you get signal back that the remote device needs power.

[00:13:35] Speaker 02:
Because the purpose of Matsuno is to have a continuous operation of the device.

[00:13:39] Speaker 02:
The 48 volts was selected because it would provide sufficient power for the DTEs based on where the DTEs are located.

[00:13:47] Speaker 02:
Could you say that again?

[00:13:49] Speaker 03:
That the 48 volts is sufficient?

[00:13:51] Speaker 02:
Yes, it is sufficient.

[00:13:54] Speaker 03:
But I know that's your position, but I don't see why that is so.

[00:14:00] Speaker 03:
The whole point of Matsuno is to try to take as much voltage off the line as possible and to only use 120 volts when it's absolutely necessary, i.e.

[00:14:10] Speaker 03:
when the remote device has been cut off from local power supply.

[00:14:15] Speaker 02:
No, Your Honor.

[00:14:15] Speaker 02:
Dr. Knox explained this, and his testimony in this was neither subject to cross-examination, not challenged in cross-examination, nor was it rebutted.

[00:14:24] Speaker 02:
And what he explained was this.

[00:14:26] Speaker 02:
The 48 volts, Your Honor, is selected because that's going to be a constant voltage supply, not a constant current supply.

[00:14:33] Speaker 02:
It's selected because at the distances we're talking about, in Japan, they have relatively short subscriber lines on the order of 1,500, 2,000 feet.

[00:14:42] Speaker 02:
At those distances, we're going to get a couple of volts drop across the subscriber line.

[00:14:48] Speaker 02:
The DTE we're dealing with is one that needs at most 40 volts.

[00:14:51] Speaker 02:
It could be less, but most 40 volts to operate.

[00:14:54] Speaker 02:
If we apply 40 volts direct current to that DTE, it will operate.

[00:14:59] Speaker 02:
Dr. Knox explained that the voltage drop across the NT1 would be at most about 1 volt.

[00:15:05] Speaker 02:
So if we're getting approximately 48 volts, a couple of volts drop from our 48 volts supply.

[00:15:11] Speaker 02:
to the NT1.

[00:15:12] Speaker 02:
We'll have a further one volt drop.

[00:15:14] Speaker 02:
We have about 47 at the DTE.

[00:15:17] Speaker 03:
It's selected to assure that... The 48 volt V2 is never actually used to power the DTE and NT1.

[00:15:26] Speaker 02:
It's used for a very short time, Your Honor.

[00:15:28] Speaker 02:
It's the power that's immediately applied when the local power goes off.

[00:15:33] Speaker 02:
Then right after that... Matsuno doesn't say that.

[00:15:36] Speaker 03:
Matsuno says once the switch, I believe it's numeral 8,

[00:15:41] Speaker 03:
closes, then you have the loop detection circuit telling you that, you know, now you're getting the feedback to go ahead and trigger 120 volts to go across the subscriber line to the NT1 DTE.

[00:15:55] Speaker 02:
There was a time lapse there, Your Honor, a time gap between the... A time lapse that Matsuna doesn't talk about.

[00:16:01] Speaker 02:
Well, it's present in the circuit, and Dr. Knox talked about it, and it's really not relevant.

[00:16:07] Speaker 03:
Did the board talk about it?

[00:16:08] Speaker 02:
I don't believe so, not in any detail, Your Honor.

[00:16:10] Speaker 02:
And the reason it's not relevant is because the claim construction is, is the current that's going to be supplied by that 48 volts, is it sufficient?

[00:16:19] Speaker 02:
Is it at a level that's sufficient to operate?

[00:16:22] Speaker 02:
Or was it selected to be at a level that would be too low that it could not operate the device?

[00:16:27] Speaker 02:
Our patent is all about sending currents to devices, some of which may be able to accept power, some of which can't.

[00:16:34] Speaker 02:
We have to be able to detect which ones can and which ones can't.

[00:16:37] Speaker 02:
Matsuno has no concern with that.

[00:16:39] Speaker 02:
Every device attached to Matsuno's ISDN will be something that can accept power.

[00:16:44] Speaker 02:
So Matsuno's only concern is to make certain that it's going to be powering if there's a low-level current, sorry, be powering if local supply goes out.

[00:16:54] Speaker 02:
And while local supply is in use, to make certain that the voltage level is not too high.

[00:17:00] Speaker 03:
Because we... Is it fair to say that your patented claim about sensing voltage level in response to the low-level current

[00:17:07] Speaker 03:
That is the invention, that claim is directed to sending a low level current all the way out to the remote access device and sending a voltage level back from the remote access device.

[00:17:24] Speaker 02:
In general terms, that's right.

[00:17:25] Speaker 03:
Yes.

[00:17:26] Speaker 03:
So the low level current is inducing a response from the remote access device.

[00:17:34] Speaker 02:
That's right.

[00:17:34] Speaker 03:
And Matsuno doesn't do that.

[00:17:36] Speaker 03:
It can't do that.

[00:17:37] Speaker 03:
The switch is open.

[00:17:41] Speaker 02:
That issue, Your Honor, hasn't been addressed at appeal.

[00:17:43] Speaker 02:
I'm not certain about that.

[00:17:44] Speaker 02:
We had other reasons to conclude.

[00:17:47] Speaker 02:
We presented other evidence that there were other elements that were not met by Matsuno, if that's what you're referring to.

[00:17:53] Speaker 00:
Were there any other prior art references that were cited to the board in this particular proceeding that the board could have considered for purposes of an obviousness analysis?

[00:18:04] Speaker 02:
Yes, the Nicola.

[00:18:05] Speaker 02:
That was a reference that provided really none of the elements except A, the network.

[00:18:09] Speaker 02:
It's only provided.

[00:18:11] Speaker 03:
Are these claims currently under rejection in some other proceeding in front of the PTO?

[00:18:16] Speaker 02:
In front of, they're on re-exam, yes.

[00:18:19] Speaker 00:
And the initial decision found them to be rejected, correct?

[00:18:23] Speaker 02:
That's right, Your Honor.

[00:18:24] Speaker 00:
On both anticipation and obviousness now?

[00:18:27] Speaker 02:
I believe so, yes.

[00:18:28] Speaker 02:
That's right, Your Honor.

[00:18:29] Speaker 02:
We fully expect that to be reversed for several reasons, one of which is that this proceeding stops several of those claims in addition... But they're different references, right?

[00:18:39] Speaker 02:
Yes, that's true.

[00:18:40] Speaker 02:
That's true.

[00:18:41] Speaker 02:
But it's going to stop the challenge for claims six and nine for any reference that could have been brought.

[00:18:47] Speaker 03:
Is that because those are... Are those inner parties re-examined?

[00:18:50] Speaker 02:
No, it's brought by the same party here, Your Honor.

[00:18:52] Speaker 02:
Is it the next party re-examined?

[00:18:53] Speaker 02:
Yeah, it's the next party, but brought by the same party.

[00:18:56] Speaker 02:
AIA, Gestapo still applies even in that circumstance.

[00:19:01] Speaker 02:
That's for another day.

[00:19:04] Speaker 02:
Your Honor, in addition to concluding that the two findings which I was going to point out, Your Honor, is that the first finding is the petitioners did not present evidence.

[00:19:14] Speaker 02:
And the only evidence on the low-level current presented by the petitioners was Metsuno itself

[00:19:20] Speaker 02:
and a single sentence from Dr. Zimmerman, which is in paragraph 40.

[00:19:25] Speaker 02:
We reproduced it in our red brief on page 47.

[00:19:28] Speaker 02:
And in that single sentence, he presents no evidence that 48 bolts would be insufficient to operate, no evidence of inherency whatsoever.

[00:19:39] Speaker 02:
That means, and the petitioners are limited to the evidence they provided with their petition in order to make out a prima facie case.

[00:19:46] Speaker 02:
Without any evidence,

[00:19:47] Speaker 02:
all they could do is hope to make out a case of express disclosure.

[00:19:51] Speaker 02:
That is, they've got the text of Mitsuno, they've got no other evidence.

[00:19:55] Speaker 02:
From the text of Mitsuno, we cannot get express disclosure, they admit that, now we're left with inherency, they've got no evidence of inherency.

[00:20:05] Speaker 02:
The second finding that the board made.

[00:20:07] Speaker 03:
I thought they did say they have evidence of inherency, the notion that once you go out to 1800 or 18,000 feet, then,

[00:20:15] Speaker 03:
Matsuno's 48 volts are not going to be able to power a DTE that's out that far.

[00:20:21] Speaker 02:
Well, they argued that in the brief, Your Honor, but where's the evidence of that?

[00:20:24] Speaker 02:
Where's the 18,000 feet?

[00:20:26] Speaker 03:
Did Dr. Zimmerman testify to that?

[00:20:30] Speaker 02:
No, Your Honor.

[00:20:31] Speaker 02:
One sentence in a declaration.

[00:20:34] Speaker 02:
That's the only thing they can rely upon.

[00:20:35] Speaker 03:
Is that the first declaration or the second?

[00:20:37] Speaker 03:
What about the second declaration?

[00:20:39] Speaker 02:
In his second declaration, he's got various statements, one of which you could infer

[00:20:44] Speaker 02:
the sorts of arguments they want to make.

[00:20:46] Speaker 02:
All those arguments fail again for the reasons that we've explained in our brief.

[00:20:50] Speaker 02:
In Japan, which is where this reference is from, there's no reference to the ANSI standard in Matsuno itself.

[00:20:58] Speaker 02:
It refers to ISDN.

[00:20:59] Speaker 02:
An ISDN is simply an integrated services digital network, a network that integrates voice and data.

[00:21:06] Speaker 02:
That's all it is.

[00:21:07] Speaker 02:
It can be a compliant, one that complies with the standard or one that does not.

[00:21:12] Speaker 02:
If this one were to comply with the standard, it would mostly

[00:21:14] Speaker 02:
likely comply with the Japanese standard.

[00:21:17] Speaker 02:
And the reason is, Your Honor, the ANSI standard doesn't permit applying power on an ISDN.

[00:21:22] Speaker 02:
It's not permitted.

[00:21:24] Speaker 02:
That means that if we look, turn to the Japanese standard, the only evidence in the record about that is from Dr. Knox's testimony.

[00:21:31] Speaker 02:
Any testimony?

[00:21:32] Speaker 03:
How many votes would be too little votes, the power of the ISDN?

[00:21:36] Speaker 02:
How many would be too little?

[00:21:37] Speaker 02:
Yeah.

[00:21:38] Speaker 02:
It's not set forth.

[00:21:39] Speaker 02:
All we know is that 40 will do it and something less will do it.

[00:21:44] Speaker 02:
It doesn't give us a minimum neuron.

[00:21:45] Speaker 00:
It even says something less than 40, right?

[00:21:47] Speaker 00:
But it doesn't say what the floor is.

[00:21:49] Speaker 02:
That's right.

[00:21:49] Speaker 02:
There's no floor provided.

[00:21:50] Speaker 02:
There's no disclosure whatsoever.

[00:21:52] Speaker 02:
If this were a very low voltage DTE, for example, a 15 volt DTE, a 12 volt DTE, it could be powered out even beyond the 18,000 foot data standard for ANSI.

[00:22:06] Speaker 02:
It could be powered out just using Dr. Knox's calculation.

[00:22:08] Speaker 03:
I guess it just seemed to me that

[00:22:10] Speaker 03:
Matsuno was agnostic as to what that V2 voltage level ought to be.

[00:22:16] Speaker 03:
So why wouldn't it be obvious to have a different voltage level, a lower voltage level that would be so low that it would be good enough for the loop detection circuit, but it wouldn't be good enough to power the remote access device.

[00:22:33] Speaker 02:
The problem we're dealing with here is a circumstance where we've got an ethernet cable, a cable where we can attach to it devices that may be powered and those that may not.

[00:22:43] Speaker 02:
You'll recall that your computer may attach to an ethernet cable.

[00:22:46] Speaker 02:
But now we're going to have some new kinds of devices, maybe phones that are going to attach to it as well.

[00:22:51] Speaker 02:
And for the first time now, we want to provide power to those devices.

[00:22:55] Speaker 02:
Before we didn't.

[00:22:57] Speaker 02:
But we still got all of our legacy devices that are attached and that are going to be attached in the future.

[00:23:01] Speaker 02:
Before we apply power, we have to determine, is this a device that will accept power?

[00:23:06] Speaker 02:
In that circumstance, the most natural way to approach the problem is not to send a powering current.

[00:23:12] Speaker 02:
That's the last thing you want to send.

[00:23:14] Speaker 02:
The prior art all taught, do never send a powering current if you're trying to determine something to be powered.

[00:23:19] Speaker 02:
In fact, what you do consistently in the prior art is send a data signal.

[00:23:25] Speaker 02:
So the prior art taught consistently a way.

[00:23:27] Speaker 02:
This was a very unusual way.

[00:23:29] Speaker 03:
It was completely- Not Latino, though.

[00:23:31] Speaker 02:
What's that?

[00:23:31] Speaker 03:
Matsuno isn't sending a data signal.

[00:23:33] Speaker 02:
That's right, but it's not concerned with trying to detect whether something could accept power.

[00:23:37] Speaker 02:
It's going to actually send power.

[00:23:39] Speaker 02:
It's concerned with making certain that when the local power cuts off... My question was about Matsuno.

[00:23:45] Speaker 03:
It wasn't about all these other prior references.

[00:23:48] Speaker 02:
And it wouldn't be obvious in Matsuno.

[00:23:50] Speaker 02:
Why would you want to send low power?

[00:23:51] Speaker 02:
You would want to send power that's going to power it.

[00:23:54] Speaker 02:
If the local goes out,

[00:23:56] Speaker 02:
And there's a problem with the 120 kicking in for a period of time.

[00:23:59] Speaker 02:
You want that 48 volts driving your DTE.

[00:24:03] Speaker 02:
That's the whole point of it.

[00:24:05] Speaker 03:
What do you mean that's the whole point of it?

[00:24:07] Speaker 02:
Where does it say that in Matsuno?

[00:24:08] Speaker 02:
Well, the whole point of Matsuno is to... I'll give you a sentence that's as close to it, Your Honor.

[00:24:14] Speaker 02:
We turn to Matsuno paragraph six.

[00:24:22] Speaker 02:
An object of the president reading the last sentence.

[00:24:24] Speaker 02:
An object of the present invention is to supply a prescribed power level while maintaining safety by applying a low voltage during local power supply.

[00:24:35] Speaker 02:
The local power supply, 48 low volts, is still supposed to be able to power it.

[00:24:41] Speaker 02:
It's supposed to do it safely also.

[00:24:44] Speaker 02:
because it's a constant voltage supply.

[00:24:46] Speaker 02:
That's the difference.

[00:24:47] Speaker 03:
You're equating the 48 volts, the V2, that's coming out of the main supply unit as the local power supply?

[00:24:53] Speaker 02:
No, Your Honor.

[00:24:54] Speaker 02:
I'm equating it as one that will be sufficient to provide the prescribed power level.

[00:24:59] Speaker 02:
We want to supply the prescribed power level while maintaining safety by applying a low voltage during local power supply and a high voltage during station power supply.

[00:25:09] Speaker 02:
That low voltage during local power supply is the 48 volts.

[00:25:13] Speaker 02:
It's not the voltage of local power supply.

[00:25:17] Speaker 03:
I just want to be clear.

[00:25:18] Speaker 03:
Everything you're saying right now, the patent board didn't make a finding on, right?

[00:25:23] Speaker 02:
I disagree, Your Honor.

[00:25:24] Speaker 03:
It found that about 40... It found that the V2 48 volts is enough that it would be used in the way you're saying it would be used in Matsuno.

[00:25:34] Speaker 03:
In Matsuno, the board said that 48 volts from the main supply unit would actually power

[00:25:41] Speaker 03:
the DTE and NT1, or did it say it just would be capable of?

[00:25:45] Speaker 02:
It said it would be sufficient to operate the access device.

[00:25:49] Speaker 02:
That was the finding, sufficient to do it.

[00:25:52] Speaker 02:
Now, to actually do it for five minutes, you would need to apply it for five minutes.

[00:25:57] Speaker 02:
If you applied it for a tenth of a second, it would power for a tenth of a second.

[00:26:00] Speaker 02:
Whatever period of time it's in effect, it's going to power.

[00:26:04] Speaker 02:
And the question, Your Honor, is of course, is it sufficient?

[00:26:08] Speaker 02:
So no further questions?

[00:26:11] Speaker 02:
Thank you.

[00:26:14] Speaker 00:
Okay, you have a little over three minutes for rebuttal.

[00:26:19] Speaker 01:
Just to address the first point, Judge Chen raised, Dr. Knox never talked about any time lapse in this switch, nor does Matsuno.

[00:26:27] Speaker 01:
As I think you can understand, the switch is essentially instantaneous.

[00:26:31] Speaker 01:
It says in paragraph, I believe it's 56, it's an immediate switch.

[00:26:36] Speaker 01:
So that 48 volts, as I've said, is never available to operate.

[00:26:40] Speaker 01:
Let's go to the legal and analytical errors that the board did make.

[00:26:43] Speaker 01:
The only way, when you look at the diagram that we show here, that they could find that there is no anticipation is if you deliver a low level current to a device that is within this one mile.

[00:26:59] Speaker 01:
They have to add a cable length limitation.

[00:27:03] Speaker 01:
Because in Matsuno, the devices out here would all get current insufficient to operate.

[00:27:09] Speaker 00:
They only have to add that limitation if we agree with you that Matsuno assumes that it's working under the ANSI standards, which in Japan are not applicable.

[00:27:20] Speaker 01:
Well, you know, Dr. Knox himself had admitted that there'd be non-operational devices outside of his radius.

[00:27:29] Speaker 01:
Remember, he calculated that radius, not in a test to see whether

[00:27:35] Speaker 01:
devices inside that would be optimal.

[00:27:36] Speaker 03:
He also said he used very conservative estimates and things like that, but to illustrate the point that there are many, many, many examples and embodiments where this particular voltage of 48 volts would be able to power the DTEs on the end.

[00:27:54] Speaker 01:
And with his conservative estimates, as he say, which were all disputed, and the board did not address that, nor did they actually make any

[00:28:02] Speaker 01:
determinations to allow you to give a reasoned view of what they did in terms of... Well, sure they did.

[00:28:09] Speaker 00:
I mean, they specifically said that they found Dr. Knox's testimony to be more credible.

[00:28:15] Speaker 01:
Right.

[00:28:15] Speaker 01:
They said that, but what they... Well, but... I mean, that's what they're supposed to do, right?

[00:28:19] Speaker 01:
But they need to look at what Dr. Zimmerman said, which is also, for example, Dr. Knox uses the Bird Reference Book.

[00:28:25] Speaker 01:
This is the book he picked as the ISDN network.

[00:28:29] Speaker 01:
And he takes one parameter out of it.

[00:28:31] Speaker 01:
and uses other references for others.

[00:28:33] Speaker 00:
If they did look at what Dr. Zimmerman said and they rejected it.

[00:28:36] Speaker 01:
Well, Dr. Zimmerman, but there's no analysis.

[00:28:38] Speaker 01:
Why was Dr. Zimmerman's facts, which he used in the Bird Reference book, he used it for everything it taught, ignored.

[00:28:45] Speaker 01:
So they came to a conclusion.

[00:28:47] Speaker 01:
But I think as one skilled nerd would look at this, there's no way to acknowledge why.

[00:28:52] Speaker 01:
Why is using a device that didn't exist at the time of Matsuno an appropriate device to consider?

[00:28:59] Speaker 01:
It came onto the market.

[00:29:01] Speaker 01:
11 years later.

[00:29:03] Speaker 01:
There's no reasoning as to why that would be good.

[00:29:08] Speaker 01:
The other way that the board may have limited the claim construction, of course, is they could say that there were many access devices and they all had to receive low-level current.

[00:29:21] Speaker 01:
If that was the case, there are many devices in a network, they all have to receive low-level current.

[00:29:26] Speaker 01:
Then in this situation, if we accept what Dr. Knox said, that there'd be some operational ones,

[00:29:31] Speaker 01:
then again, there would be no anticipation.

[00:29:34] Speaker 01:
But again, the board, that's not the claim language.

[00:29:37] Speaker 01:
The claim language simply says, deliver a low-level current to one access device.

[00:29:44] Speaker 01:
The fact of the matter is, is if Mr. Matsuno built his network here in this courtroom, Dr. Knox could never get an access device to operate off of the 48 volts.

[00:29:55] Speaker 01:
And the other fact is if- Your time is up.

[00:29:59] Speaker 01:
Okay.

[00:30:01] Speaker 00:
The cases will all be submitted.

[00:30:03] Speaker 00:
Court is adjourned.