[00:00:00] Speaker 04: We appreciate your being here. [00:00:02] Speaker 04: We thought it was better with everyone being prepared to put off a day rather than to have you come back and reschedule for another time. [00:00:16] Speaker 04: We have four cases on the calendar this afternoon, three patent cases which are being argued. [00:00:26] Speaker 04: Fourth case from the Court of Federal Claims that is being submitted on the briefs. [00:00:37] Speaker 04: We understand council has suggested and we agree to combine the two Belden cases as being similar and so you have [00:00:48] Speaker 04: More time, double time, if you need it. [00:00:53] Speaker 04: And they are Delden versus Birktek, 2014, 1677, and 1676. [00:01:00] Speaker 04: So, Mr. Lowry. [00:01:10] Speaker 00: Thank you, Your Honor. [00:01:12] Speaker 00: May it please the Court. [00:01:13] Speaker 00: Matt Lowry, Foley and Lardner for the appellant. [00:01:16] Speaker 00: Matt Ambrose to counsel table with me. [00:01:17] Speaker 00: I think this may be the first time he's had the pleasure of appearing before this Court. [00:01:23] Speaker 00: I thought I'd address first, there's obviously there's two patents. [00:01:27] Speaker 00: I'll refer to them as the 575 and the 061 which are the last three digits of the patents rather than the IPR numbers if that's okay with the Court. [00:01:34] Speaker 00: And I think some of the arguments are fairly similar. [00:01:38] Speaker 00: I'll try and note any differences, but it would be remarkable if the same issue were to come up differently among the two cases, at least in my opinion. [00:01:45] Speaker 00: I thought I'd address first what I thought is a little bit more subtle issue, which is the notion of something twisted together. [00:01:52] Speaker 00: And so the claims are quite recite, at least certain of them recite. [00:01:57] Speaker 04: The purpose of oral argument is to straighten out arguments rather than twist them. [00:02:03] Speaker 04: However you wish to proceed. [00:02:05] Speaker 00: Thank you, Your Honor. [00:02:05] Speaker 00: I would say that the fact that it's twisted is perhaps why it's not obvious. [00:02:11] Speaker 00: There's the centerpiece going through in the shape of an X. And the claim recites that this and the conductors on the outside are twisted together. [00:02:21] Speaker 00: And what the board said is it's not a method of manufacture. [00:02:26] Speaker 00: Of course it isn't. [00:02:27] Speaker 00: There is aspects of that. [00:02:28] Speaker 00: If you have a door that is nailed shut, [00:02:30] Speaker 00: That is a specific structure. [00:02:32] Speaker 00: It's an apparatus claim, or part of an apparatus claim, that door that's nailed shut. [00:02:37] Speaker 00: But it's not limited, I suppose, to the process of nailing, but it's limited to the result, because that's what it means in the common vernacular when you say nailed shut. [00:02:46] Speaker 00: So if you were to drill holes in it and slide in nails, it's not nailed shut, because you push on the door and it would open. [00:02:53] Speaker 00: It's a different structure when you nail a door shut. [00:02:59] Speaker 04: pretty much on point, except possibly for the twisted aspect of it, and that's in the Japanese patent. [00:03:09] Speaker 00: Well, okay, so if we're talking about, so there's two Japanese patents, there's one. [00:03:15] Speaker 00: 470. [00:03:16] Speaker 00: 470, thank you, Your Honor. [00:03:18] Speaker 00: So that's in the 575 patent, and what that shows is also not a twisted, it's a helical preformed shape. [00:03:28] Speaker 00: the same as Tessier. [00:03:29] Speaker 00: In fact, it's expressly that way, and it's expressly that way because it's a different structure. [00:03:35] Speaker 00: And so what the Japanese 470 patent shows is you actually heat the thing up, you twist it, and then you put the conductors in. [00:03:43] Speaker 00: The reason you're heating it up is because you're changing the structure of it. [00:03:47] Speaker 00: So it's not twisting it together. [00:03:49] Speaker 00: So I analogize it. [00:03:50] Speaker 00: I brought an umbrella, and then I realized maybe that's a demonstrative, and I shouldn't use it. [00:03:54] Speaker 00: But if you imagine having an umbrella and you twist it, [00:03:57] Speaker 00: It draws things in, it creates a tension within it, and that's what they call closing the cable, twisting it to close the cable, which is the words I think from the claim language and certainly in the patent itself as well. [00:04:09] Speaker 00: It is a different thing to preform a helix and then lay the wires into it. [00:04:16] Speaker 00: So if you're thinking of that umbrella, if you twist it, it draws in, it gets tighter, and in fact, it will stay together if it were flexible and you bent it. [00:04:24] Speaker 00: If instead you preformed it, [00:04:26] Speaker 00: and you lay the other parts of the umbrella in, if you bend it, it's loose and it will come apart. [00:04:31] Speaker 00: But really, the question here is not just whether the petitioner, oh, and by the way, there's also no obviousness rejection based on that Japanese 470 reference. [00:04:43] Speaker 00: It's in a ground on its own. [00:04:46] Speaker 00: So even if it had twisting, it's not combinable with Tessier in what the board examined. [00:04:52] Speaker 00: But really, I think the question here is, is this a part of the question here? [00:04:56] Speaker 00: Is this a patent prosecution? [00:04:59] Speaker 00: Or is this an IPR trial of an issued US patent? [00:05:01] Speaker 00: And is there a difference? [00:05:03] Speaker 00: Because there is a burden of proof here that is different. [00:05:07] Speaker 00: There actually in the 061, Birkbeck cites the Etiker case that says, well, if you make a prima facie case, you have to rebut it. [00:05:14] Speaker 00: That's for a patent application. [00:05:16] Speaker 00: That's not what happens at an IPR trial. [00:05:18] Speaker 00: We have an issued US patent. [00:05:20] Speaker 00: We have a burden of proof. [00:05:21] Speaker 00: It's not the same burden of proof as in the litigation, but it's a burden of proof. [00:05:24] Speaker 00: So what the board said [00:05:26] Speaker 00: in the, the ground, it is the basis, is that it said there is no evidence that there is a difference in structure when you preform as opposed to when you twist. [00:05:38] Speaker 00: The first part of that is legal error. [00:05:40] Speaker 00: There is no evidence that it's patentable. [00:05:42] Speaker 00: The burden of proof is not on the patentee. [00:05:45] Speaker 00: It has to be proved that there, with evidence, that there is no difference in structure. [00:05:50] Speaker 00: And in fact, when counsel for Birkbeck was pressed at argument, they're like, [00:05:54] Speaker 00: Is there a difference? [00:05:55] Speaker 00: He's like, well, I'm not aware of any, but there could be. [00:05:58] Speaker 00: Exactly. [00:05:59] Speaker 00: There could be, and there's no proof that says there is no difference. [00:06:02] Speaker 00: That really should be the end. [00:06:03] Speaker 00: It's a failure of proof. [00:06:04] Speaker 00: But if one wants to go further and said, OK, I want to decide this or put the burden of proof on the patentee, there is proof. [00:06:11] Speaker 00: The first part is common sense. [00:06:13] Speaker 00: If you twist a rubber band, it's not the same as forming a helix and laying another rubber band in. [00:06:18] Speaker 00: twist the umbrella, it's not the same as manufacturing a twisted one. [00:06:21] Speaker 00: Even if you take a washcloth and twist it, it's not the same as fabricating and stitching together one that's in a twisted form. [00:06:28] Speaker 00: They are structurally different. [00:06:29] Speaker 03: So when you helically extrude the wires, that's a twist even. [00:06:37] Speaker 03: Doesn't that happen as extrusion processes taking place? [00:06:43] Speaker 00: It is, but the structure is different than if you twist the conductors [00:06:48] Speaker 00: and the internal piece together as opposed to forming a pre-, a structure that's in helical form, right? [00:06:56] Speaker 00: So there's no internal tensions, there's no difference as you've got this structure and you twist it. [00:07:00] Speaker 00: They heat it up and they create a helical structure before they lay the wires in. [00:07:05] Speaker 00: So it's like I said, it's like the difference between going like this on the umbrella or manufacturing it by having something that's just a straight rod, no twisting in it, no internal twisting pressures. [00:07:16] Speaker 00: and laying the wires around it. [00:07:17] Speaker 02: Just so I understand your argument, if I were to look at a picture of both end results, one is the Tessier in Japanese reference and then one is yours, how would they look different if I was just looking at a static photo? [00:07:33] Speaker 00: Well, if you're talking optically, I'm not sure. [00:07:37] Speaker 00: But that's not the test because there are many things that are not visible to the eye. [00:07:41] Speaker 00: They are different structures in that there are internal tensions. [00:07:44] Speaker 00: So if you were [00:07:46] Speaker 00: Looking at the door nailed shut and a door where you've got holes drilled in and a nail slid in, but not actually nailed shut, they would look the same if you looked at them in a picture, but they are different structures because one, the door can open and the other, the door can't. [00:07:58] Speaker 00: And the same thing is true here. [00:08:00] Speaker 00: If you look at the result of twisting, you have a different structure. [00:08:03] Speaker 00: And here's how the board knows that. [00:08:05] Speaker 00: The 470 Japanese patent is specifically reciting the advantage of preforming over twisting. [00:08:14] Speaker 00: And what they say is quoted in the briefing, but what they say basically is, look, if you've got this twisting, it comes unraveled. [00:08:22] Speaker 00: So what that's used for, I think is SZ twisting. [00:08:28] Speaker 02: Well, I think this all goes back to claim construction, right? [00:08:31] Speaker 02: Whether we agree with you that this is kind of a product by process type of claim. [00:08:37] Speaker 00: I respectfully don't think so, Your Honor. [00:08:39] Speaker 00: I think what this goes back to, because the structure of the claim as a whole, you could, I suppose, think of it as a product by process limitation, but not really. [00:08:47] Speaker 00: It's like, is the door is nailed shut a product by process limitation? [00:08:51] Speaker 00: One ordinarily doesn't think of it that way, but there is a structure that has meaning by being nailed shut. [00:08:57] Speaker 00: Here, there is a structure that has meaning by being twisted together to close that is different [00:09:05] Speaker 00: than preforming a spiral and laying in. [00:09:07] Speaker 00: And they may look, if you're not looking at internal forces and everything, they might look similar. [00:09:12] Speaker 00: If you're looking at internal forces, they behave differently. [00:09:15] Speaker 00: And so what the Japanese 470 patent says is if you preform it, you don't need to worry about it unraveling because you don't have that internal tension. [00:09:27] Speaker 00: If you twist it together, you have to worry about it, which is to say it's a different structure. [00:09:33] Speaker 00: They think it's advantageous in the context of Japanese 470 to preform, that's fine. [00:09:39] Speaker 00: Tessier preform, that's fine. [00:09:40] Speaker 00: But because they're different structures, there is meaning to the limitation twisted together, all of them twisted together to close the cable. [00:09:50] Speaker 00: Because there's a difference in structure between that and helically forming, that's the question. [00:09:55] Speaker 00: I mean, the board said there's no evidence that there's a difference in structure. [00:09:58] Speaker 03: Are you arguing a method of manufacture? [00:10:02] Speaker 00: It is an apparatus claim with a structure that happens to result from twisting it together. [00:10:08] Speaker 00: If you could get to that same structure a different way, it would cover it as well. [00:10:12] Speaker 00: But it is, like I said, it's like a door nail shut, the lid of a box closed. [00:10:17] Speaker 00: It's a result of a method of manufacture of closing the lid, I suppose so, but we usually don't think of it that way. [00:10:21] Speaker 04: Well, every structure has a method by which it was made. [00:10:26] Speaker 00: Exactly, Your Honor, which is why I think it goes... But that doesn't make it process related. [00:10:31] Speaker 00: Exactly, Your Honor. [00:10:32] Speaker 00: And so that's why I think what this issue boils down to is, does twisted together to close refer to a structure that is different than helical and laying in? [00:10:45] Speaker 00: Because if it's a different structure, there is a limitation there. [00:10:47] Speaker 00: And it is what it says, it is twisted together to close, just like nailed shut. [00:10:51] Speaker 00: Everything is a result of a process. [00:10:54] Speaker 00: And the question here is, is this a structure [00:10:58] Speaker 00: twisted together to close that's different than preforming. [00:11:00] Speaker 00: And as I said, there's this Japanese 470 patent that specifically recites it. [00:11:04] Speaker 00: In the 061 patent, there's actually an expert declaration that says, no, these are preformed, and that's different than twisted together to close. [00:11:11] Speaker 00: That's the only evidence. [00:11:13] Speaker 00: It was not cross-examined. [00:11:14] Speaker 02: The limitations of the two patents, neither of them talk in these terms about how the conductors and the interior support [00:11:26] Speaker 02: are created and formed, whether it's a part or together, right? [00:11:30] Speaker 02: The spec is silent on this point. [00:11:33] Speaker 00: The spec is, I wouldn't say silent on it, because it talks about cabling and it talks about twisting together to close, which one of skill and the art would understand to mean, and it says twisted together, one of skill and the art would understand that to mean it imparts a structure that's different. [00:11:48] Speaker 00: But there's no proof that it doesn't, and the only proof that's there [00:11:51] Speaker 00: in the 061 is an expert declaration, not impeached by cross-examination. [00:11:55] Speaker 00: The only way that he is discredited is he happens to be a named inventor. [00:11:59] Speaker 00: I mean, this was a trial. [00:12:00] Speaker 00: There's no articulated reason not to credit what he said. [00:12:04] Speaker 00: So what the board did is they said, well, there's no evidence that was actually incorrect on the record because there was, at least in the 061 evidence. [00:12:12] Speaker 00: And they also said, you, patent holder, have to prove it. [00:12:15] Speaker 00: You have to provide the evidence that there's a difference in structure. [00:12:18] Speaker 00: And that was the turning point. [00:12:20] Speaker 00: on their decision, and I respectfully submit, if they thought there was a difference in structure, they would not have reached the same conclusion. [00:12:28] Speaker 00: So I think that the decision fairly turns on that point, and the reason it turns, and the reason that it came out, in my view, the wrong way is because the board said no evidence, putting the burden on the patent holder, which I think is incorrect as a matter of law, and also there was evidence. [00:12:44] Speaker 00: There's this notion of twisting together rubber bands as opposed to forming them. [00:12:49] Speaker 00: which is just, I suppose, the common sense. [00:12:51] Speaker 00: There's the Japanese patent, 470, which specifically recites the advantages of the difference in structure that results from preforming as opposed to twisting. [00:13:01] Speaker 00: There's the Grice declaration in the 061 where he says it's different and therefore Tessier doesn't show it. [00:13:09] Speaker 00: And so I think that, again, if this is actually like in litigation land, [00:13:15] Speaker 00: There was no evidence from which one could, with a burden of proof in the normal way of review, there was nothing from which one could find things were twisted together. [00:13:28] Speaker 00: I don't think that there's a few other arguments about this. [00:13:30] Speaker 00: Burkett argues Tessier shows actually twisting them together. [00:13:34] Speaker 00: I think it plainly doesn't. [00:13:35] Speaker 00: Certainly it's not proved to. [00:13:38] Speaker 00: Certainly the board did not find that it was anything but preformed. [00:13:41] Speaker 00: They said the structure's the same, not that Tessier is not preformed. [00:13:45] Speaker 00: They make an argument about waiver. [00:13:49] Speaker 00: We put the sites in our brief. [00:13:50] Speaker 00: It was argued all along. [00:13:51] Speaker 00: But even if it was raised for the first time at trial, this is a trial, right? [00:13:56] Speaker 00: You can raise things at trial. [00:13:57] Speaker 00: And the board considered it on the merits. [00:13:59] Speaker 00: If there were a waiver, it seems to me the board would have said so. [00:14:03] Speaker 00: And then the last issue is ground nine, which is Japanese 470. [00:14:08] Speaker 00: And again, if one looks at page 370 of the brief, there's this [00:14:14] Speaker 00: preformed helix, and it's different plumping these and flissing them together than it is preforming and laying them. [00:14:21] Speaker 00: The only other things I'd like... Well, there's the channels question. [00:14:26] Speaker 00: This is the way I think I would boil it down for the court, if I may. [00:14:30] Speaker 00: The question here for channel is a channel could be like a gutter in a street, a channel in a street, or a channel could be more like a tube. [00:14:39] Speaker 00: If one talks about a channel through a mountain, one's not talking about a groove over the top of the mountain. [00:14:43] Speaker 00: They're talking about a tunnel through it. [00:14:46] Speaker 00: Both of those are plain means. [00:14:47] Speaker 00: And so the question is, which one is appropriate? [00:14:51] Speaker 00: And I think in the context of the patent, channels are on the claim, right? [00:14:55] Speaker 04: The grooves are on the spec. [00:14:58] Speaker 00: That is correct. [00:15:00] Speaker 04: And I would have to be the same. [00:15:03] Speaker 00: I don't think so, Your Honor, because they're used differently. [00:15:05] Speaker 00: I respectfully submit, Your Honor, that [00:15:08] Speaker 00: The difference is groove is always referred to in the context of the separator. [00:15:14] Speaker 00: The context of the patent claim is a, and I admit this is, I think, a closer issue. [00:15:19] Speaker 00: You know, I look at this and it is a closer issue, but it's one for which no deference is provided to the Patent Office. [00:15:23] Speaker 00: It's a claim construction question, and there's no report of factual findings. [00:15:27] Speaker 00: The claim itself says a couple things. [00:15:31] Speaker 00: It talks about forming a channel in the cable. [00:15:34] Speaker 00: It's not talking about a channel on a street. [00:15:36] Speaker 00: It's more like a channel [00:15:38] Speaker 00: kind of going through the cable the way that a channel through or in a mountain would be fully enclosed. [00:15:44] Speaker 02: It talks about how the surface of the interior support defines the channel, right? [00:15:50] Speaker 00: That's right. [00:15:50] Speaker 00: But in the context of the claim, there's two parts of the context of the claim that moves one towards the channel through, then the groove on. [00:15:57] Speaker 00: And the first is it's talking about in the cable. [00:16:01] Speaker 00: So we're not talking about, so in the context of the claim, it's talking about forming a channel in the cable. [00:16:07] Speaker 00: not a channel in the separator, I think. [00:16:11] Speaker 00: That's at least the way I read it. [00:16:12] Speaker 00: The other is, it says where the twisted pairs or the conductors are disposed within the channel. [00:16:19] Speaker 00: And if one looks at Tessier, you can see. [00:16:22] Speaker 00: Would you say that these twisted pairs are in that little groove? [00:16:26] Speaker 00: The answer is not if you're thinking the channel is something that's holding it through the cable as opposed to the location of it. [00:16:32] Speaker 00: Same for this one, so one for the other figure. [00:16:34] Speaker 00: So when one is talking about a channel [00:16:37] Speaker 00: where it's disposed within the channels, those small grooves aren't because they don't essentially or substantially fully enclose it. [00:16:51] Speaker 00: But that is the question, is one of plain construction without deference and the record is what it is and I think it's reasonably well briefed. [00:16:59] Speaker 00: But as I said, the way I would see it is a choice of picking and it is correct, it's groove in the specification, it's channel in the claim, [00:17:07] Speaker 00: One could say that shows that they're meant to mean something different, because if you wanted it to be the groove, you'd just set groove like you did in the specification. [00:17:14] Speaker 00: One might say, what's the support? [00:17:15] Speaker 00: And the support is, well, in the context that's exposed within. [00:17:19] Speaker 00: I don't want to end my initial piece without touching on a few claims in the 061 appeal that are different than the twisted together and the channel. [00:17:31] Speaker 00: The first is ground two, which has dimensional limitations. [00:17:36] Speaker 00: In the petition, and the only evidence including the reply, there was no evidence. [00:17:42] Speaker 00: They just said, here's this reference with these dimensions. [00:17:46] Speaker 00: The reference itself is very different. [00:17:48] Speaker 00: It's a shielded cable. [00:17:50] Speaker 00: We're in an unpredicted art. [00:17:51] Speaker 00: A shielded cable means it's got a metal shield. [00:17:53] Speaker 00: The claims actually recite not shielded. [00:17:55] Speaker 00: It doesn't have a separator. [00:17:57] Speaker 00: In the Gerais Declaration, it talks about how small differences in dimensions can make a huge difference. [00:18:03] Speaker 00: If one thinks about the very purpose of these claims, they're saying we're not making it smaller, we're putting a separator in to push things further apart. [00:18:13] Speaker 00: And without any articulated reasoning based on the prior art, there's a conclusion that this is unpatable. [00:18:18] Speaker 00: I would suggest this wouldn't even in prosecution stand review. [00:18:21] Speaker 00: There's no prima facie showing. [00:18:24] Speaker 00: For ground three, the additional limitation is SC stranding. [00:18:29] Speaker 00: So what SC stranding means is you twist this way for a little bit, and then you twist this way for a little bit, then this way, then this way, back and forth. [00:18:36] Speaker 00: And what the board did is said, we'll take Tessier. [00:18:40] Speaker 00: This twisted only one way. [00:18:43] Speaker 00: And we're going to say it would be obvious based on this SC stranding thing to SC strand Tessier. [00:18:49] Speaker 00: OK? [00:18:50] Speaker 00: And first of all, I think there's legal error in the board decision that's plain. [00:18:57] Speaker 00: And what the board did was they said, [00:18:59] Speaker 00: this stands or falls with ground one, which is TSEA twisted together. [00:19:05] Speaker 00: That's plainly wrong. [00:19:06] Speaker 00: There is additional grounds for patentability. [00:19:08] Speaker 00: There's an additional limitation. [00:19:09] Speaker 00: So that's a legal error in the board's decision. [00:19:12] Speaker 00: Birkbeck says it would be obvious to do it. [00:19:15] Speaker 00: The only evidence on obviousness, assuming evidence is required, [00:19:19] Speaker 00: about reason motivation to combine is from the patent holder where a declaration was submitted where he said it wouldn't be obvious because when you're talking about the plot of Tessier, which is these cable twisted pairs sitting in a separator, you couldn't, if it's preformed, and it is, he says, you couldn't lay them in. [00:19:38] Speaker 00: I mean, you can't lay them in this way, that way, this way, that way. [00:19:40] Speaker 00: So Tessier is not consistent with being combined with this reference. [00:19:46] Speaker 00: There is no impeachment, no cross-examination. [00:19:49] Speaker 00: no reason not to believe Mr. Grice, who's got plenty of expertise in this area. [00:19:56] Speaker 00: And so I respectfully submit that those two grounds stand on a different footing than the others as well. [00:20:03] Speaker 04: Thank you. [00:20:04] Speaker 04: We will save the remainder of your time for a bottle. [00:20:08] Speaker 04: Thank you. [00:20:10] Speaker 04: Mr. Blank. [00:20:23] Speaker 01: Good afternoon, Your Honor, and may it please the court. [00:20:25] Speaker 01: My name is James Blank, and with me is David Soufian. [00:20:30] Speaker 01: I will address first the twisted together issue. [00:20:34] Speaker 01: This is a claim construction issue. [00:20:38] Speaker 01: The board construed it, and the board specifically determined that it was not a product by process limitation. [00:20:46] Speaker 01: That is what Felden argued below. [00:20:51] Speaker 01: And specifically, if I can direct the court's attention to paragraph 33 of the Garris Declaration, which was submitted by Belden. [00:21:02] Speaker 01: In that paragraph, Mr. Garris says, in contrast to the core member of Tessier 046, the separator interior support of the 061 patent is formed such that the arms extend linearly in an axial direction along the length of the pair separator interior support [00:21:21] Speaker 01: and is then helically twisted along with the twisted pairs about a common axis as a result of the so-called cabling process that is used to close the 061 patents cable. [00:21:36] Speaker 01: It's our position and the board found that twisted together in either of the patents refers to structure. [00:21:44] Speaker 01: The 575 patent and the 061 patent are each entitled high performance data cables. [00:21:50] Speaker 01: The figures all show a structure of a cable, not any steps or any processes. [00:21:59] Speaker 01: Nothing in the specification of either patent describes any process or any step, let alone any process or any step of twisting together simultaneously the interior support or the separator along with the twisted pairs or conductors, which is precisely [00:22:21] Speaker 01: Felden's proposed construction. [00:22:25] Speaker 01: The wear-in clauses in all of the claims after the recitation of the structural elements all describe the structural relationships between the various components. [00:22:38] Speaker 01: As the board found, the last wear-in clause adds to the claim that the four twisted pairs in the interior support are twisted together about a common action. [00:22:51] Speaker 01: Reading context, the board correctly construed that to mean that twisted together simply means just that. [00:22:59] Speaker 01: That the conductors and the separator are intertwined. [00:23:05] Speaker 01: And that's what the patents show. [00:23:07] Speaker 01: And that's what the prior art shows. [00:23:10] Speaker 03: Now... What do you mean intertwined? [00:23:13] Speaker 03: You mean twisted together? [00:23:15] Speaker 01: Yes. [00:23:19] Speaker 01: It doesn't matter when. [00:23:20] Speaker 01: It doesn't matter how. [00:23:22] Speaker 01: The patents do not say anything about when that's done or how that's done. [00:23:28] Speaker 01: It just means that they are, in the case of the 575 patent, the conductors and the interior support or the separator are twisted together about a common axis. [00:23:42] Speaker 01: In the case of the 061 patent, the conductors and the separator or the interior support [00:23:48] Speaker 01: are twisted together along the length of the cable. [00:23:51] Speaker 01: That is simply telling you about a common axis is telling you the location. [00:23:56] Speaker 01: In the case of twisted together along the length of the cable, that's telling you where. [00:24:01] Speaker 01: A location in the context of the claims which relate to and claim a fully finished cable. [00:24:10] Speaker 01: Now the only, I'll use the word hook, [00:24:15] Speaker 01: that Belden has to try to say, well, this is all the result of a manufacturing process, and they're different, is the language in the claim to close, which is in the last whereas clause, which says that they're twisted together in order to close the cable. [00:24:37] Speaker 01: And one sentence in the specification in column five that says that the separator [00:24:45] Speaker 01: may be cabled in an SC configuration or helically. [00:24:50] Speaker 01: From those snippets, Belden and its Mr. Garris, its declarant, without any explanation say, well, because it uses the word cabled in the specification, and because the claim uses the word to close, that must mean that it relates to this process. [00:25:10] Speaker 01: And therefore, they're twisted together as a result of this process. [00:25:13] Speaker 01: To close, as the board found, simply means just that. [00:25:19] Speaker 01: It is the result of the, in the whereas clause or in the wearing clause, it is simply the result of the prior limitations. [00:25:28] Speaker 01: It means to jacket. [00:25:30] Speaker 01: A completed cable is recited and the claims needs to be jacketed. [00:25:34] Speaker 01: And the claims recite as a structure, one of its structures, a jacket. [00:25:39] Speaker 01: That's all that means. [00:25:42] Speaker 01: The word cable, may be cabled, is used in column five. [00:25:47] Speaker 01: It says the separator may be cabled. [00:25:50] Speaker 01: And it says it may be cabled in an SD format, which Mr. Lowry described, or it may be cabled in a helical shape. [00:25:57] Speaker 01: It says nothing about, the specification says nothing about cabling the conductors and the separator together. [00:26:08] Speaker 01: That's the only reference to cabled, and it only relates to the separator. [00:26:21] Speaker 01: Now the standard of review here on claim construction is Teva versus Sandoz. [00:26:27] Speaker 01: So it is de novo, but the findings, the board's factual findings with respect to the extrinsic evidence, specifically with respect to the Garris Declaration and with respect to the dictionaries as to the term channel, is entitled to deference. [00:26:48] Speaker 01: The board looked at the Garris Declaration and there were two. [00:26:51] Speaker 01: There was one Garris Declaration, the 575 patent, that had nothing to do with Twisted Together. [00:26:56] Speaker 01: It was a declaration from the 061 re-examination and he had one sentence in there regarding his interpretation of channels. [00:27:07] Speaker 04: What kind of deference should we apply with respect to these items, these extrinsic items? [00:27:17] Speaker 04: Substantial evidence? [00:27:18] Speaker 01: Yes. [00:27:19] Speaker 01: Yes, your honor, substantial evidence. [00:27:20] Speaker 04: Of course, Trevor didn't talk about substantial evidence, but you're saying that's implied. [00:27:26] Speaker 01: I'm saying that this court has consistently held with respect to findings by the board as opposed to a district court, a substantial evidence standard applies. [00:27:38] Speaker 01: And I believe in this court's recent decision in Ray Quiso, the board recognized using a substantial evidence standard [00:27:47] Speaker 01: from findings, factual findings made by the board. [00:27:51] Speaker 01: So yes. [00:27:52] Speaker 02: So how does it work with the broadest reasonable interpretation doctrine? [00:27:59] Speaker 02: Here the board did... Do we first consider the extrinsic evidence and as did the board and if the board findings with respect to that evidence as substantial evidence we give deference to that and then we [00:28:17] Speaker 02: sort of fold that into the overall construction to determine whether the board reached a reasonable one that's consistent with the specification. [00:28:25] Speaker 02: I'm just trying to figure out what you think the methodology is. [00:28:29] Speaker 01: I think the methodology is the same methodology that the board applied and it is first you look to the intrinsic evidence, which is what the board did. [00:28:39] Speaker 01: The board first looked at the language of the claims [00:28:43] Speaker 01: The board then looked at the specification and made a determination with respect to channels that there was no definition in the specification for channels. [00:28:57] Speaker 01: It looked to a dictionary, and it was two dictionaries. [00:29:01] Speaker 01: It was two dictionaries that Belden's council proffered. [00:29:09] Speaker 01: Belden pointed to one dictionary definition for channel as a usually tubular enclosed passage. [00:29:17] Speaker 02: I guess what I'm wondering is broadest reasonable interpretation to me always meant you're affording some level of deference in the board's weighing and consideration of various factors and evidence, whether it's intrinsic or extrinsic. [00:29:34] Speaker 02: But now we know that claim construction [00:29:38] Speaker 02: can possibly include fact finding. [00:29:42] Speaker 02: And so I'm trying to figure out now how those two thoughts come together. [00:29:51] Speaker 01: It's a good question that frankly I'm not sure I have the answer to as I stand here right now. [00:29:58] Speaker 01: Clearly the findings, clearly it would be the fact that Belden briefed everything under a de novo standard. [00:30:07] Speaker 01: We submitted letters with Teva versus Sandoz. [00:30:11] Speaker 01: The supplemental authority, Belden, did not respond to it. [00:30:14] Speaker 01: But I think, if anything, it further supports our position that you have a broadest reasonable interpretation, which is standard, which the board recognized and used. [00:30:24] Speaker 01: And now, on top of that, you have under Teva versus Sandoz that factual findings are also entitled to deference. [00:30:34] Speaker 01: Here, I don't think it [00:30:36] Speaker 03: Well, it's not just factual findings. [00:30:39] Speaker 03: There are subsidiary factual findings based on the intrinsic record. [00:30:47] Speaker 01: Right, but I'm not sure that happened in this case. [00:30:51] Speaker 01: I mean, the factual findings here were unclaimed. [00:30:56] Speaker 03: So any factual findings that are based solely on intrinsic evidence, [00:31:01] Speaker 03: In your view, would that make our standard review purely de novo? [00:31:07] Speaker 01: I think it was based on just on the looking at the intrinsic evidence that that is de novo. [00:31:14] Speaker 01: And what factual findings that arise from the extrinsic evidence is afforded deference. [00:31:24] Speaker 01: I don't believe that factual findings subsidiary to look at. [00:31:28] Speaker 03: So once we start applying the de novo standard [00:31:31] Speaker 03: then our analysis should be the broadest reasonable interpretation? [00:31:37] Speaker 01: Yes. [00:31:46] Speaker 01: Let me just comment on channels. [00:31:56] Speaker 01: Really the only issue that Mr. Lowry raises some [00:32:02] Speaker 01: reported distinction between channels and grooves. [00:32:05] Speaker 01: And I would submit that if the panel looking at claims one and 19 is the best evidence that there is no difference between channels and grooves. [00:32:21] Speaker 01: The board correctly construed channels as an open space [00:32:28] Speaker 01: that is defined by the surfaces of the interior support and that it has nothing to do with the jacket in terms of the definition of channels. [00:32:41] Speaker 01: Belden tries to argue that there's some sort of difference between channeling grooves in that somehow the specification indicates that the definition of a channel relates to [00:32:54] Speaker 01: also the jacket, even though that's not in the claim, whereas the definition of grooves has nothing to do with the jacket. [00:33:01] Speaker 01: If you look at claim 19, it specifically says that the grooves are defined by the surfaces of the interior support, the same way the channels is used in the claims where it says in the channels [00:33:20] Speaker 01: are defined by the surfaces of the separator or interior support. [00:33:26] Speaker 01: It's the same thing. [00:33:27] Speaker 01: Claims 1 and Claim 19 both tell you that the channels are defined by the surfaces of the interior support, totally divorced from anything having to do with the jacket. [00:33:50] Speaker 01: If the board's claim constructions are upheld here, there's no dispute that the prior art invalidates. [00:33:59] Speaker 01: All of Belden's arguments are based on claim construction. [00:34:03] Speaker 01: There was no argument below for any of the claims that construed in the way the board construed them that the prior art invalidates. [00:34:16] Speaker 02: What about your opposing counsel's argument about the diameter of the cable and then the SSE curve? [00:34:25] Speaker 01: Right. [00:34:25] Speaker 01: So he spoke to, ground to, in the 061 patent. [00:34:33] Speaker 01: So the board determined that those claims were rendered obvious by a combination of Tessier and a patent invented by a gentleman by the name of Meir. [00:34:46] Speaker 01: Again, this is a situation where the board's findings on invalidity are entitled to deference under a substantial evidence standard. [00:34:56] Speaker 01: That prior art was obviously, it's evidence. [00:35:01] Speaker 01: Both pieces of prior art are evidence. [00:35:07] Speaker 01: The dependent claim which ground two relates to is simply making the claimed cable [00:35:15] Speaker 01: a smaller diameter or a diameter within a certain range. [00:35:21] Speaker 01: The board found and cited KSRs simply said, that's a minor improvement. [00:35:27] Speaker 01: We are dealing with MIR, a patent that deals with telecommunications cables. [00:35:32] Speaker 01: Whether or not it's shielded or unshielded doesn't make any difference. [00:35:35] Speaker 01: And it would be obvious to one of ordinary skill in the art, based on the references themselves, that you want to make a cable, if possible, of a smaller diameter. [00:35:45] Speaker 01: And the board based its findings on that prior art. [00:35:48] Speaker 01: With respect to ground three, which is a combination of Tessier and JP307, it was simply applying SZ stranding to the case in a dependent claim. [00:36:02] Speaker 01: It simply says that it's twisted in an SZ direction. [00:36:06] Speaker 01: Well, JP307 shows that. [00:36:08] Speaker 01: It shows a separator. [00:36:10] Speaker 01: It shows twisted pairs. [00:36:12] Speaker 01: And it specifically says, [00:36:14] Speaker 01: you can do the twisting using SC stranding. [00:36:17] Speaker 01: The board had this evidence in front of it. [00:36:20] Speaker 01: It reviewed it. [00:36:21] Speaker 01: The board noted that it was in the same art areas, noted it was a minor improvement. [00:36:31] Speaker 01: And based on that, it found, based on substantial evidence, that it was obvious. [00:36:36] Speaker 01: Felden didn't argue below that based on these constructions, [00:36:43] Speaker 01: that they were not invalid. [00:37:02] Speaker 01: That's all I have. [00:37:04] Speaker 01: Thank you very much. [00:37:05] Speaker 04: That's fine. [00:37:06] Speaker 04: Thank you, Mr. Blank. [00:37:07] Speaker 04: Mr. Lowery has a little rebuttal time if he needs it. [00:37:10] Speaker 00: Yes, thank you, your honor. [00:37:11] Speaker 00: I guess I'd like to start with where Mr. Blank ended, which is to, yeah, this is why it's supposed to have evidence and supposed to be based on fact findings, not the board doing its own conjecture or whatnot. [00:37:25] Speaker 00: So first of all, Mr. Blank asserted that the Japanese reference showed twisted pairs. [00:37:31] Speaker 00: It does not. [00:37:32] Speaker 00: What this reference is about is [00:37:34] Speaker 00: So twisted pair is two conductors twisted together. [00:37:38] Speaker 00: A quad is four conductors twisted together. [00:37:41] Speaker 00: You might put four quads with a separator in between them, but they're together. [00:37:46] Speaker 00: A twisted pair is viewed as one communication channel. [00:37:48] Speaker 00: A quad is viewed as one communication channel because they all interact. [00:37:51] Speaker 00: And if you look at it, you can see there's bare copper conductors in there. [00:37:55] Speaker 00: It's a quad. [00:37:56] Speaker 00: It's not even a cable composed of different communication channels. [00:38:00] Speaker 00: Where is the fact finding? [00:38:01] Speaker 00: Where is the basis to show that this shows twisted pairs in between the separators? [00:38:06] Speaker 00: Surely the board didn't have it. [00:38:08] Speaker 00: So what we have here is to the extent the board, and we have evidence, actual evidence that says, no, you wouldn't take that approach and do it with Tessier. [00:38:20] Speaker 00: There's nothing rebutting it. [00:38:21] Speaker 00: The board cannot act as its own fact witness and fact expert. [00:38:25] Speaker 00: In fact, I don't even think it should be acting as a fact expert. [00:38:28] Speaker 00: because then I, as counsel, never have a chance to cross-examine the expert. [00:38:32] Speaker 00: They may reach a conclusion like it shows twisted pair that's manifestly incorrect. [00:38:37] Speaker 00: That's why there's a burden of proof. [00:38:39] Speaker 00: BirkTech could have used an expert in their opening. [00:38:42] Speaker 00: They could have used an expert in their reply. [00:38:44] Speaker 00: I would then have cross-examined them extensively, and we wouldn't have these kinds of questions. [00:38:49] Speaker 00: If we look at the ground with Mir, he says, oh, it's just dimension. [00:38:53] Speaker 00: The first GRISAP declaration talks about dimensions are, in the context of cables, it's like a magic art. [00:38:59] Speaker 00: Who knows what's going to work, you don't. [00:39:01] Speaker 00: As I said, the separator is actually making things bigger. [00:39:04] Speaker 00: There are patents out there that talk about making cables bigger so that you don't have cross talk between them. [00:39:10] Speaker 00: Where is the fact finding that supports it's always better to make a cable smaller? [00:39:15] Speaker 00: Where is the evidence? [00:39:16] Speaker 00: There is none. [00:39:17] Speaker 00: Who had the burden of proof? [00:39:18] Speaker 00: surely not felt in. [00:39:19] Speaker 00: This was not a fair proceeding because we don't even know what to put in play based on when there's no articulated reason or motivation to combine that's actually based on the reference. [00:39:29] Speaker 00: It's not, oh, let's just make things smaller without reference to anybody of ordinary skill in the art. [00:39:36] Speaker 00: If we jump up to the twisted pair piece, a couple of things I thought were interesting. [00:39:43] Speaker 00: First of all, everything that the board heard [00:39:46] Speaker 00: pretty much, was attorney argument. [00:39:48] Speaker 00: How do you interpret a testier? [00:39:51] Speaker 00: All that Spurktex offers is attorney argument. [00:39:53] Speaker 00: For the board to then come in and serve as their own experts in interpreting the references is not wrong. [00:39:58] Speaker 00: That's not the way that the litigation works. [00:40:00] Speaker 00: You need to present evidence so that it can be cross-examined. [00:40:03] Speaker 00: There are some cases where a lay jury can do things even without an expert, but this is not one of those cases. [00:40:10] Speaker 00: This is a very defined art. [00:40:12] Speaker 00: It's an unpredictable art as Mr. Grice established in his declaration. [00:40:16] Speaker 00: There's a particularly interesting thing Mr. Blank said, which he said the board found that twisted together to close. [00:40:26] Speaker 00: You remember I talked about how closing it in when you twist it is different than it's not closed in if it's just wrapped. [00:40:31] Speaker 00: So he said as the board found to close just means to jacket. [00:40:35] Speaker 00: Well, first of all, where's the evidence that supports that? [00:40:39] Speaker 00: There is none. [00:40:40] Speaker 00: Second, it doesn't even make sense because you twist it together before you put the jacket on it. [00:40:46] Speaker 00: That's the way the process works, as anybody of ordinary skill in the art would know. [00:40:50] Speaker 00: Where is the evidence that supports any of this stuff? [00:40:54] Speaker 00: I would agree with Mr. Blank that in the context here for Channel, at least, there's no substantial evidence review. [00:41:03] Speaker 00: In fact, there was no evidence presented by anybody but Belden in this case. [00:41:08] Speaker 00: And again, in hindsight, I truly wish they had presented an expert so that I could have cross-examined him [00:41:13] Speaker 00: We get all this out in a fuller way. [00:41:15] Speaker 00: Instead, it just got lobbed at the board. [00:41:17] Speaker 00: The board, you know, I'm not saying they weren't trying to do their job. [00:41:21] Speaker 00: Of course they were, but they did their thing without my chance to deal with it, or certainly not directly. [00:41:28] Speaker 00: And I maintain the point that a door-nailed shut is an apparatus-like limitation, but it imparts a structure that's different than simply having nails slid into slots. [00:41:40] Speaker 00: And in the same way, twisted together to close the table, [00:41:43] Speaker 00: close a cable is a structural limitation that has meaning because the structure is different. [00:41:49] Speaker 00: That was established by the Japanese Patent. [00:41:52] Speaker 00: It was established by Mr. Grice. [00:41:54] Speaker 00: It's common sense. [00:41:55] Speaker 00: And surely there was no evidence to carry the burden, which was, which needs to be carried by Berktek. [00:42:00] Speaker 00: But again, they chose not to submit anything. [00:42:05] Speaker 00: I guess the last comment on the channel thing. [00:42:10] Speaker 00: If one, Mr. [00:42:13] Speaker 00: Blank pointed out Claims 1 and 19 to prove the point that channel has to be grooved. [00:42:19] Speaker 00: And I think it's an interesting thing because Claim 1 talks about the at least one plurality located in a pair of adjacent arms. [00:42:39] Speaker 00: Trying to find the channel limitation in Claim 1. [00:42:43] Speaker 00: because I thought it was 575 when he first said it. [00:42:45] Speaker 00: But most of the channel limitations, almost all of them, if not all of them, refer to defining a channel in the cable. [00:42:53] Speaker 00: That is different than a groove in the separator. [00:42:58] Speaker 00: And that's the point. [00:43:00] Speaker 00: And there's some other claims to talk about an open space being a channel or a groove. [00:43:04] Speaker 00: Seems to me that makes a difference. [00:43:05] Speaker 00: And I think, Your Honor, I just have one moment. [00:43:11] Speaker 00: That would be all I would offer the court. [00:43:13] Speaker 04: Thank you, counsel. [00:43:14] Speaker 04: We'll take the case on the revise.