[00:00:12] Speaker 05:
We will hear argument next in number 141410, LSI Corporation Against International Trade Commission.

[00:00:43] Speaker 05:
Let them get settled, please.

[00:01:12] Speaker 02:
Mr. Holohan?

[00:01:13] Speaker 02:
Yes, Your Honor.

[00:01:14] Speaker 02:
Please.

[00:01:15] Speaker 02:
Good morning, and may it please the Court.

[00:01:16] Speaker 02:
Just a minor housekeeping issue.

[00:01:18] Speaker 02:
I plan to talk about the 958 patent primarily.

[00:01:21] Speaker 02:
My partner, Mr. Sibiora, will address domestic industry with his time.

[00:01:25] Speaker 02:
Is that acceptable to the Court?

[00:01:27] Speaker 05:
Is anybody going to talk about the 867?

[00:01:28] Speaker 02:
Mr. Sibiora will also address the 867 today.

[00:01:32] Speaker 02:
In three minutes.

[00:01:33] Speaker 02:
Go ahead.

[00:01:34] Speaker 02:
Thank you, Your Honor.

[00:01:35] Speaker 02:
Your honor, in this case, the International Trade Commission committed with this court is repeatedly referred to as a cardinal sin of claim construction by taking a fundamental claim term with a well understood plain and ordinary meaning and limiting it to the preferred embodiment and imposing a limitation in the specification.

[00:01:55] Speaker 02:
Not only that, they impose the limitation on the claim term that doesn't even exist in the specification.

[00:02:01] Speaker 02:
A code in the field of digital signal processing is a sequence of bits or chips.

[00:02:06] Speaker 05:
Can I just ask this?

[00:02:08] Speaker 05:
It seems to me that the other side had two points, at least, which are of interest to me.

[00:02:17] Speaker 05:
One is that the system described by the patent requires that a single code be transmissible.

[00:02:28] Speaker 05:
over either i or q and doesn't have to be split.

[00:02:32] Speaker 05:
And they say, can't be done with a code representing a complex value.

[00:02:38] Speaker 05:
And the other thing that I think they say is the problem of having only n orthogonal codes with n length codes doesn't exist with complex codes.

[00:02:50] Speaker 05:
Can you address those two things?

[00:02:51] Speaker 02:
Yes, Your Honor.

[00:02:52] Speaker 02:
As to the first issue, there is a specific embodiment and a specification in which a single code is transmitted on either the I or the Q channel.

[00:03:00] Speaker 02:
And there are two lower data rate embodiments in which that is also the case.

[00:03:04] Speaker 02:
That is not a requirement in the claim, and nowhere in the specification does the specification speak to any particular advantages or innovations related to transmitting a single code.

[00:03:14] Speaker 05:
I'll ask this question.

[00:03:15] Speaker 05:
Do you agree or disagree with what I took to be an assertion

[00:03:21] Speaker 05:
of the other side that anytime you have a code representing complex values, an individual code cannot be transmitted over a single, I don't know if the word channel is right.

[00:03:40] Speaker 05:
I know that there's testimony, but that's the way it works with the CCK.

[00:03:47] Speaker 05:
In particular,

[00:03:49] Speaker 05:
complex building, is that inherent in a code that represents complex values?

[00:03:55] Speaker 02:
I don't believe it is, your honor, because I hesitate with the term complex code.

[00:04:00] Speaker 05:
I didn't use the term complex code.

[00:04:03] Speaker 02:
I understand, but I just want to make sure I'm using the nomenclature correctly.

[00:04:07] Speaker 02:
So we're talking about a code, a sequence of bits that represents a complex value.

[00:04:11] Speaker 02:
Yes.

[00:04:11] Speaker 02:
That's your question, your honor.

[00:04:12] Speaker 02:
OK.

[00:04:13] Speaker 02:
Now, a sequence of chips that represents a complex value

[00:04:17] Speaker 02:
is simply a sequence of pairs of bits, each one representing a complex number.

[00:04:24] Speaker 02:
That single stream of bits can be transmitted along a single channel.

[00:04:30] Speaker 02:
Now, there are certain implementations where you can say, I have the I channel and the Q channel.

[00:04:36] Speaker 02:
They each represent different values.

[00:04:38] Speaker 02:
And if I put those together, that's a complex value.

[00:04:41] Speaker 02:
But at the end of the day, you are still left with ones and zeros representing

[00:04:46] Speaker 02:
just simply sequences of chips being transmitted.

[00:04:50] Speaker 05:
Was there testimony or written, including written testimony, that said that a code representing a complex value or complex values can in fact be transmitted over a single channel?

[00:05:09] Speaker 02:
Yes, Your Honor.

[00:05:10] Speaker 02:
said that.

[00:05:11] Speaker 02:
Where is that?

[00:05:12] Speaker 02:
I don't have the record set in front of me, but I can look it up.

[00:05:15] Speaker 02:
Dr. Negus consistently testified that this real value, complex value distinction has no meaning in the field of digital signal modulation.

[00:05:27] Speaker 02:
Now, I know that they're going to come up here and talk about this particular paper by Dr. Negus where he talks about complex code, and that is the only time the phrase complex code appears in any technical documentation in this case.

[00:05:38] Speaker 02:
And it just shows this matter of mathematical notation and really abstraction to consider pairs of chips or codes themselves represent complex and real value.

[00:05:51] Speaker 05:
Can you address the other thing that I asked about, the idea that in a system in which each code is of length n, there can be only n orthogonal codes?

[00:06:01] Speaker 05:
and the assertion that that is not true if the code represents complex values?

[00:06:06] Speaker 02:
Yes, Your Honor.

[00:06:06] Speaker 02:
First of all, I'm not sure that is true.

[00:06:08] Speaker 02:
Dr. Teegard said that several times.

[00:06:11] Speaker 02:
He never really showed his work on that.

[00:06:13] Speaker 02:
Assuming that it is true, that particular alleged problem in the prior art is not what this patent is about.

[00:06:21] Speaker 02:
This patent is about data rates.

[00:06:23] Speaker 02:
It is about an extended code set based on complementary values with auto-correlation side lobes suitable for multipath.

[00:06:30] Speaker 02:
Now, there may have been particular problems with square code sets that only involve real numbers that might not have existed with complex values, but that is not in the record.

[00:06:41] Speaker 02:
The commission and interveners have said, well, there were complex valued code sets in the prior art where this wasn't a problem.

[00:06:50] Speaker 02:
My question is, where?

[00:06:51] Speaker 02:
Where in the prior art are these modulation systems with extended complex code sets that had suitable autocorrelation silos?

[00:07:00] Speaker 02:
The only reference they've pointed to that allegedly has that as a Prasad reference, which as we've shown in our briefs, does not disclose the extended code set.

[00:07:10] Speaker 02:
But even beyond the question of whether that problem exists or not, the problem and the purpose of the patent does not define the claim terms.

[00:07:22] Speaker 02:
What defines the claim is the words in the claim.

[00:07:24] Speaker 02:
That is the meets and bounds of the patent rights.

[00:07:27] Speaker 02:
And intravenous products fall squarely within the meets and bounds of every asserted claim in this case.

[00:07:34] Speaker 02:
When code is properly construed as a sequence of chips, which is how it is understood in the field of digital processing, intravenous products use code.

[00:07:44] Speaker 02:
And they use so-called codes representing real values as well, as we've shown in our briefs and as intravenous expert has admitted.

[00:07:52] Speaker 05:
I think, well, I can see, is the time I'm looking at is seven minutes?

[00:07:58] Speaker 05:
That's your honor.

[00:07:59] Speaker 05:
OK.

[00:07:59] Speaker 05:
So why is it that you think that in the 182, the matrix, the 4 by, or 8 by 4 matrix, shows a set of codes larger in number than the length of each code?

[00:08:21] Speaker 02:
Your honor, we explained that in our brief.

[00:08:23] Speaker 02:
a misstatement in some of the briefs here that we just simply pointed to matrix A and said, this is an extended code set.

[00:08:30] Speaker 02:
That's not good.

[00:08:31] Speaker 05:
It's a matrix used by multiplication to create certain things.

[00:08:34] Speaker 02:
It's a matrix used through various phases.

[00:08:35] Speaker 02:
And as the patent specification describes in the context surrounding the matrix and elsewhere, you have eight phases that are used to modulate carrier waves.

[00:08:47] Speaker 02:
The eight phases are based on four input phases, which are related to input data.

[00:08:51] Speaker 02:
So you have your grouping of bits.

[00:08:53] Speaker 02:
to generate the phases.

[00:08:55] Speaker 02:
The phases are multiplied by matrix A to produce a complementary code.

[00:08:58] Speaker 02:
The output phases are phi one through phi eight.

[00:09:02] Speaker 02:
Those are your chips.

[00:09:03] Speaker 02:
Then you have, there are 12 data bits in each group.

[00:09:07] Speaker 02:
Two to the power of 12 gives you over 4,000 possible codes.

[00:09:10] Speaker 05:
Possible, but that's not, I mean, you always have two to the whatever, two to the n possibilities.

[00:09:16] Speaker 05:
Yes, you're right.

[00:09:16] Speaker 05:
So the question is how many actual codes are being specified as used.

[00:09:23] Speaker 05:
There are over 4,000 possible codes.

[00:09:25] Speaker 05:
These are eight chip long codes?

[00:09:27] Speaker 02:
Eight chips and over 4,000 possible codes.

[00:09:30] Speaker 05:
Right, but so how many are being used in this?

[00:09:35] Speaker 02:
Any number within the 4,000 could be used.

[00:09:38] Speaker 02:
And the specification reasonably conveys one of the skill in the art that that is how it goes.

[00:09:44] Speaker 05:
All with the 2 to the 8 possibilities could be used without

[00:09:52] Speaker 05:
any of the autocorrelation or cross-correlation problems?

[00:09:56] Speaker 02:
That can't be right.

[00:09:57] Speaker 02:
So the cross-correlation side lobes are addressed elsewhere in the patent using a specific complementary code equation that appears in the 8.2.11 standard.

[00:10:05] Speaker 02:
So once that equation is involved, then the autocorrelation side lobes fall out of that.

[00:10:11] Speaker 02:
And that's what Dr. Cotty tested.

[00:10:15] Speaker 05:
Thank you.

[00:10:23] Speaker 05:
Domestic industry.

[00:10:25] Speaker 05:
No product covered by the patent anywhere in this record.

[00:10:30] Speaker 05:
Why is that not a decisive problem?

[00:10:33] Speaker 01:
Because the standard applied at the time of the hearing, the standard that the parties had before them was a standard that did not require that.

[00:10:40] Speaker 05:
Aside from everything else, the re-hearing portion of the interdigital came not only before the hearing, but before discovery closed.

[00:10:48] Speaker 01:
Interdigital didn't change the law.

[00:10:50] Speaker 01:
Interdigital had DICTA that suggested

[00:10:53] Speaker 01:
a potentially different approach.

[00:10:55] Speaker 01:
But defining both interdigital one, which is the factual holding, was that in that case, interdigital did not.

[00:11:01] Speaker 05:
So you thought in preparing for the hearings that when the court wrote this long opinion that said, there actually has to be a product covered by the patent, and it's that product, a patent-covered product, to which even licensing must relate, that you didn't have to

[00:11:22] Speaker 05:
go to the hearing on the assumption that you just might have to meet that standard?

[00:11:28] Speaker 01:
No one at the time read it that way.

[00:11:29] Speaker 01:
There are three parallel proceedings in the ITC, all of which came after the individual decision, all of which did the exact same thing.

[00:11:36] Speaker 01:
No one understood the law to have changed.

[00:11:38] Speaker 01:
The 837, the 851, the 849 investigations in the ITC all took place after the individual decision.

[00:11:45] Speaker 01:
All of them applied the same standard that we applied here.

[00:11:47] Speaker 01:
It wasn't until the ITC changed the law in January 2014

[00:11:51] Speaker 01:
If you look at the interdigital decision, and I'm sure you're familiar with it, that decision did not have any showing of actual use of the article in commerce.

[00:11:59] Speaker 01:
There was an affirmance of the underlying decision.

[00:12:02] Speaker 01:
The panel was two and one split, Judge Mayer was in that panel, and the conclusion, and Judge, by the way, in that decision, the original decision, Judge Newman did not dissent with respect to that issue.

[00:12:12] Speaker 01:
She was on board.

[00:12:13] Speaker 01:
All three judges said there was a finding of domestic industry affirmed without any showing under A3C,

[00:12:20] Speaker 01:
without any showing of use of the article in commerce.

[00:12:22] Speaker 01:
That was the holding in that case that filled the law today with respect to A3C.

[00:12:27] Speaker 01:
In the rehearing request, which was the subsequent decision in original two, there was a rehearing request denied, and there was an en banc request denied.

[00:12:37] Speaker 01:
The judges took up, three judges, the original panel took up the issue on the en banc, or the three hearing questions, and it's gotta be dictated, because at that point, the decision's already made,

[00:12:47] Speaker 01:
They affirmed again, again it was two to one also.

[00:12:51] Speaker 01:
Judge Bryson again affirmed that there was a finding of domestic industry and the record hadn't changed.

[00:12:56] Speaker 01:
There had been no showing of use of the article under A3C.

[00:13:00] Speaker 01:
The standard did not change.

[00:13:01] Speaker 01:
Now I'll acknowledge that there's discussion in there that suggests a change.

[00:13:05] Speaker 05:
I mean it's one thing to argue about whether it's dicta or binding, but you're making a specific argument that you should be excused

[00:13:16] Speaker 05:
for lack of any evidence of this point after hearing, an argument that has to rest on some notion of no notice that you even reasonably might be held to need such evidence.

[00:13:35] Speaker 05:
That's quite another thing.

[00:13:38] Speaker 01:
That is exactly the situation.

[00:13:39] Speaker 01:
There were three different groups.

[00:13:41] Speaker 01:
ITC proceeds investigations at the same time.

[00:13:44] Speaker 01:
They came to the same conclusion.

[00:13:45] Speaker 01:
Our judge actually looked at interdigital one, footnote 66, R-A-L-J, and said, this confirms what we say.

[00:13:51] Speaker 01:
All you need to show is the licensing aspect of it.

[00:13:53] Speaker 01:
The technical prong doesn't apply.

[00:13:56] Speaker 01:
That's what everyone understood, and that's what everyone applied in this particular case.

[00:13:59] Speaker 06:
But how could that possibly have been the case, that understanding incorrect after interdigital two?

[00:14:04] Speaker 06:
Whether it's Victor or not, it's very specific about a technical requirement.

[00:14:11] Speaker 06:
I mean, I have it before me.

[00:14:13] Speaker 06:
it looks like we made explicit what the rules should be.

[00:14:17] Speaker 01:
The holding of the case?

[00:14:20] Speaker 06:
You know, I'm not really interested in quibbling about what the holding is and what dict is.

[00:14:25] Speaker 06:
It seems to me that if we say something and apply a test, that it at least puts you on notice that we think that's the right test.

[00:14:32] Speaker 06:
Whether it's actually necessary to the holding in that case is really irrelevant, isn't it?

[00:14:38] Speaker 01:
Well, the language in interdigital 2, which is the one you're pointing to,

[00:14:41] Speaker 01:
It goes different directions.

[00:14:42] Speaker 01:
There's some language that supports what you say.

[00:14:45] Speaker 01:
But if you look at the actual last lines here, it's on 1303, going to 1304, that decision.

[00:14:53] Speaker 01:
Here's where all this leaves us.

[00:14:56] Speaker 01:
Under the clear intent of Congress and the most natural reading of the 1988 Amendment, Section 337 makes relief available to a party that has substantial investment in exploitation of a patent through either engineering, research and development, or licensing.

[00:15:11] Speaker 01:
It is not necessary that the party manufacture the product that is protected by the patent, and it is not necessary that any other domestic party manufacture the protected article, as long as the patent covers the article that is the subject of the exclusion proceeding, and as long as the party seeking relief can show that it has sufficiently substantial investment in the exclusion.

[00:15:31] Speaker 05:
I mean, the as long as, the first as long as phrase?

[00:15:37] Speaker 05:
coupled with the explanation of that in the first two pages of the opinion that says the licensing has to relate to a product that actually is covered by the patent.

[00:15:48] Speaker 01:
Which could be interpreted to mean you have to show there's infringement.

[00:15:51] Speaker 01:
You have to show that the thing, and there's actual language in there.

[00:15:53] Speaker 05:
Right, but isn't that what's missing here?

[00:15:55] Speaker 01:
Well, our position is there was infringement.

[00:15:57] Speaker 01:
We've made a case for infringement.

[00:15:59] Speaker 01:
That's what we're arguing about.

[00:15:59] Speaker 01:
Mr. Hollahan's argument was that under the proper claim construction, there was infringement, and there's coverage.

[00:16:04] Speaker 01:
If there's no infringement, we have nothing else to talk about.

[00:16:07] Speaker 05:
But under this decision, if there's a showing of infringement... Did you make the argument in your brief that the domestic industry ground depends on finding infringements by the accused products, not by something you've licensed?

[00:16:24] Speaker 01:
No.

[00:16:24] Speaker 01:
We made the argument that the law didn't change, and the law hasn't changed.

[00:16:27] Speaker 05:
Can I ask you about the 867s and services?

[00:16:30] Speaker 01:
Certainly.

[00:16:31] Speaker 05:
Yes, sir.

[00:16:32] Speaker 05:
I know that you're over your time.

[00:16:34] Speaker 05:
I'm constrained, yes.

[00:16:35] Speaker 05:
Since there plainly is no preclusive effect of the ALJ ruling on the 867, indeed there wouldn't be a preclusive effect of the ITC ruling, what concrete harm are you seeking to avoid by

[00:16:59] Speaker 05:
by what you request us to do, which is to order the ITC to vacate the ALJ ruling.

[00:17:06] Speaker 01:
First of all, we think you can vacate it from here without ordering them, but the idea is this.

[00:17:12] Speaker 01:
We agree with what you just said, that there is actually no binding effect on it.

[00:17:17] Speaker 01:
But the decision is still out there.

[00:17:20] Speaker 01:
The negative importation of that is still out there, that a court or an ALJ has made negative fines with respect to infringement.

[00:17:27] Speaker 05:
Well, I know.

[00:17:27] Speaker 05:
But we don't reverse things, because they make you unhappy to read.

[00:17:31] Speaker 05:
The question is, what is the concrete effect of that decision being out there?

[00:17:37] Speaker 05:
That it can be submitted as evidence in another proceeding?

[00:17:39] Speaker 05:
Sometimes decisions can be.

[00:17:41] Speaker 01:
It can be.

[00:17:42] Speaker 01:
It could be used.

[00:17:42] Speaker 01:
It's just like the Tessera case, where this court vacated.

[00:17:46] Speaker 01:
It's the same situation where there's a decision that's not necessary to the finding, but the decision is still out there.

[00:17:51] Speaker 01:
And because of improvidence, misfortune, an extension here in this case by the commission multiple times to push the hearing date back several times.

[00:17:59] Speaker 05:
Well, in the federal court context, for 60 years since Munsingware, this was decided by the Supreme Court, mootness of a case while on appeal typically produces a vacator of the lower court

[00:18:16] Speaker 05:
decision.

[00:18:17] Speaker 05:
But in the judicial system, district court decisions, even while they're on appeal, do have preclusive effect.

[00:18:23] Speaker 05:
So the vacator is actually necessary to get rid of a preclusive effect.

[00:18:28] Speaker 05:
That would not seem to apply here.

[00:18:31] Speaker 05:
So the question is, why is it that the ITC acted improperly?

[00:18:39] Speaker 05:
I don't know if it's arbitrary and capricious, or what exactly the right doctrine is

[00:18:45] Speaker 05:
the doctrine as you're invoking, in saying we don't need to do anything about the ALJ initial determination.

[00:18:54] Speaker 01:
The issue is simply this.

[00:18:55] Speaker 01:
The decision is out there to be used in other matters and cited against us.

[00:19:00] Speaker 01:
The ITC made the determination initially to take all issues into consideration.

[00:19:04] Speaker 06:
What harm can it have if it's cited against you if it doesn't have any kind of productive effect?

[00:19:09] Speaker 06:
I mean, your response is going to be the ITC has said it has no effect.

[00:19:14] Speaker 01:
And we agree, you're right, legally there is no effect, that's absolutely true, and from that perspective there is no harm, and we agree with that.

[00:19:21] Speaker 01:
But just as in the Tessera case, where the ITC in that situation had an opportunity, but they took a case, they took all the issues, and then they decided not to, and left an adverse decision sitting, there was no reason why when they did that they could have just said, we'll vacate that, because it wasn't your fault.

[00:19:38] Speaker 01:
It wasn't our fault that these extensions took place.

[00:19:41] Speaker 01:
But you're right, there is no legal impact.

[00:19:43] Speaker 01:
What the impact is in terms of any licensing negotiations or others, this will be out there incited against us.

[00:19:49] Speaker 01:
And under the circumstances, under the tether case, they could have, and you can, vacate that position, and we're asking you to do that.

[00:19:57] Speaker 05:
We've kept you for well over your time.

[00:20:01] Speaker 05:
We'll give you two minutes for your rebuttal.

[00:20:03] Speaker 01:
Thank you, sir.

[00:20:13] Speaker 00:
Ms.

[00:20:13] Speaker 00:
Chen.

[00:20:14] Speaker 00:
Good morning.

[00:20:15] Speaker 00:
May I please support?

[00:20:16] Speaker 00:
I'd like to first address the panel's questions to LSI's counsel before briefly addressing some inaccuracies in LSI's reply brief.

[00:20:24] Speaker 05:
Can I ask you though, does the domestic industry ground for rejecting a violation here stand independent of anything we may think about the infringement ruling?

[00:20:43] Speaker 05:
The non-infringement rule.

[00:20:45] Speaker 00:
I believe it does, Your Honor.

[00:20:47] Speaker 00:
There are many grounds that the panel can affirm the Commission's finding of no violation in domestic industry is one of those grounds.

[00:20:55] Speaker 05:
Why would it not be the case that if the Commission was wrong about non-infringement and that got remanded so there was a possibility of infringement, why would that finding of infringement not suffice?

[00:21:12] Speaker 05:
for the domestic industry record?

[00:21:15] Speaker 00:
Because the LFI is not challenging the ALJ's finding, which the Commission adopted, that the articles that were presented, the evidence regarding the licensed articles that were presented before the ALJ are not the articles that practice the 958 patent.

[00:21:35] Speaker 00:
That finding is not challenged on appeal.

[00:21:37] Speaker 05:
Can accused articles ever

[00:21:41] Speaker 05:
constitute the required patented articles for the domestic industry or not?

[00:21:48] Speaker 00:
I believe they have to be different articles, Your Honor.

[00:21:53] Speaker 05:
Have we said that or the Commission said that?

[00:21:59] Speaker 00:
I believe it was the Commission's opinion, Your Honor.

[00:22:01] Speaker 05:
You understand why this is of interest to me.

[00:22:04] Speaker 05:
The domestic industry issue here is

[00:22:09] Speaker 05:
to put it mildly, rather simpler than the claim construction and infringement issues.

[00:22:16] Speaker 05:
And I'm trying to understand if the two are, in fact, inextricably linked.

[00:22:22] Speaker 00:
Right.

[00:22:23] Speaker 00:
I can't think off the top of my head the opinion's name.

[00:22:27] Speaker 00:
But if accused articles could be the articles that infringed the protected patent as required by the Section 337, that requirement would

[00:22:38] Speaker 00:
have no meaning otherwise because there's always accused products in a Section 337 investigation.

[00:22:44] Speaker 00:
And if that were the case, then proving infringement of an accused product would automatically prove articles are infringed on this patent and that just cannot be the case.

[00:22:57] Speaker 05:
Okay, so if you want to go back to, can you address the two issues that I raised about the

[00:23:06] Speaker 05:
claim construction, one having to do with whether including codes that represent complex values would address a problem that does not exist, and that was a point of the patent, and second, whether it is in fact possible to have a code representing complex values that can be transmitted on a single channel.

[00:23:31] Speaker 00:
I'd like to address the second point first.

[00:23:34] Speaker 00:
The commissioner adopted the ALJ findings that a code representing a complex value cannot be transmitted using a single channel.

[00:23:42] Speaker 00:
That was because LSI's own expert testified, quote, Dr. Cotty explained that a complex code is analogous to the I and Q branches of a modulator.

[00:23:57] Speaker 00:
And this is at JA12983.

[00:24:00] Speaker 00:
So he's explaining that the

[00:24:03] Speaker 00:
The real part, the real component of a complex code is transmitted on the eye channel.

[00:24:09] Speaker 05:
This is what I'm troubled by and I'll state it maybe more devil's advocate than might be appropriate.

[00:24:20] Speaker 05:
I'm not sure why any of that testimony makes any sense.

[00:24:23] Speaker 05:
And until I can figure out why it makes sense, I'm nervous about whether there's something funny about the wording of the testimony.

[00:24:32] Speaker 05:
I understand that there was testimony about how in the CCK coding, a single code representing complex values does, in fact, travel over two different channels, i and q. What I don't understand, and I'd love it if you can make me understand one way or the other, I guess for your purpose only one way, is that that is necessarily the case, which I truly do not understand.

[00:25:03] Speaker 00:
That is not something that you can read straight from the 958 patent.

[00:25:07] Speaker 00:
And so the ALJ relied on expert testimony for that finding.

[00:25:11] Speaker 00:
And the inventor himself, the sole inventor of the 958 patent, Dr. Vanni, testified that it's one of the crucial, the central difference between real codes and complex codes is how it's transmitted.

[00:25:22] Speaker 05:
Let's not use the term real code and complex code.

[00:25:25] Speaker 05:
Codes representing real value and code representing a complex value.

[00:25:28] Speaker 05:
Why is a code representing a complex value basically

[00:25:32] Speaker 05:
to simplify just twice as long or using, right, twice as long and you can have an eight, a length eight code representing a complex value representing four complex numbers and you can send that eight length code over a single channel.

[00:25:53] Speaker 00:
The reason is the eight length code is not simply a series of single binary bits.

[00:26:00] Speaker 00:
The eight length code

[00:26:01] Speaker 00:
is actually die bits, which is what the standard is called.

[00:26:04] Speaker 00:
They're pairs of bits.

[00:26:06] Speaker 05:
Take my hypothetical.

[00:26:09] Speaker 05:
An eight length code representing four complex numbers.

[00:26:14] Speaker 05:
Call that four die bits or eight bits.

[00:26:17] Speaker 05:
I don't care.

[00:26:17] Speaker 05:
Same thing.

[00:26:18] Speaker 00:
Right.

[00:26:20] Speaker 00:
The imaginary part would be split from the real component and the imaginary component would be transmitted on a Q2.

[00:26:27] Speaker 00:
Would be.

[00:26:27] Speaker 05:
What does would be mean?

[00:26:28] Speaker 00:
Why does it have to be?

[00:26:30] Speaker 00:
The whole point of the difference between a complex code and a digital modulation system is that the real and imaginary parts are simultaneously occupying both channels, the I and Q. And by doing that, it has the benefit over real codes where you have independent codes traveling on the I and Q. The benefit is that you actually have minimized cross-rail interference.

[00:26:54] Speaker 00:
What I mean by that is when you have the imaginary part and the real part

[00:26:58] Speaker 00:
simultaneously occupying two channels, sending a single code down the system.

[00:27:06] Speaker 00:
That has no interference versus a system that implements only real codes.

[00:27:11] Speaker 00:
You have two independent codes, and those can be orthogonal codes that might actually interfere with each other down those two channels.

[00:27:18] Speaker 00:
This is one of the crucial differences why the CCK modulation implements complex codes instead of using independent real codes.

[00:27:28] Speaker 00:
Dr. Vanney himself testified that the 958 patent, that complex codes cannot be independently modulated on the I and Q channels.

[00:27:38] Speaker 00:
In fact, there's no expert testimony that a complex code can be transmitted using a single channel.

[00:27:50] Speaker 00:
One of the reasons that the 95A patent must be limited to real codes, as your other point was, the stated purpose and the stated problem does not apply to complex codes.

[00:28:00] Speaker 05:
It is undisputed expert testimony from all of the parties that the ALJs relied on that if the N are digits, then you have more than N orthogonal codes.

[00:28:16] Speaker 05:
Tell me why that's not just a semantic point.

[00:28:20] Speaker 05:
And the real question is, n divits is 2n bits.

[00:28:24] Speaker 05:
Do you have 2n?

[00:28:26] Speaker 05:
Are you limited to 2n orthogonal codes?

[00:28:28] Speaker 00:
You would be limited to 2n orthogonal codes if you were talking about real codes.

[00:28:33] Speaker 00:
But in a complex code, you have the imaginary component.

[00:28:37] Speaker 05:
That's how you get to 2n.

[00:28:39] Speaker 00:
But you have 2n because of the real part.

[00:28:43] Speaker 00:
And now you have another 2n because of the complex part, because of the imaginary component.

[00:28:48] Speaker 00:
Because you have actually two sets.

[00:28:50] Speaker 00:
You have the real component and you have the imaginary component.

[00:28:53] Speaker 00:
And this is why complex codes always meet the limitation m is greater than n. Because you have an imaginary component that increases the number of possible codes, which you do not find with simply a real code that only has one part.

[00:29:14] Speaker 05:
I don't think it's going to get any better for me.

[00:29:18] Speaker 00:
But the important point is, it's undisputed.

[00:29:21] Speaker 00:
LSI's expert and intervener's experts both testify that the stated purpose of the 958 patent does not apply to complex codes.

[00:29:29] Speaker 00:
And this is at JA21795 to 97 for LSI's expert testimony.

[00:29:33] Speaker 00:
So what's that page again, please?

[00:29:37] Speaker 00:
JA21795 to 97 for Dr. Cotty's testimony and JA158

[00:29:44] Speaker 05:
It was that testimony that I was not sure how to process.

[00:29:59] Speaker 00:
So LSI's counsel shies away from using the terms complex code and complex chips and that's because

[00:30:06] Speaker 00:
Yet in its own claim charts and in this briefing before the AOJ, those terms were used throughout by both parties.

[00:30:13] Speaker 00:
The understanding was during claim construction, the dispute was whether to limit the asserted claims to only real codes or whether it could be broadened to include complex codes.

[00:30:27] Speaker 00:
The panel also asked questions regarding Matrix A and auto-correlation silos suitable for a multi-passed environment.

[00:30:34] Speaker 00:
If I can quickly address that.

[00:30:37] Speaker 00:
Matrix A is not a code set, as disclosed in the 182 patent.

[00:30:42] Speaker 05:
What does the 182 show about the code sets produced by the use of matrix A when multiplying it against certain vectors?

[00:30:53] Speaker 00:
The 182 patent specification at J811739 at column four, line 37 to 61, specifically teaches that matrix A is used by the receiver and not the transmitter, which has the modulator.

[00:31:07] Speaker 00:
and that matrix A is used to determine the value of the encoded phases for measured phases.

[00:31:13] Speaker 00:
If anything, LSI's counts cannot point to what matrix A, what M is, and what N is.

[00:31:20] Speaker 00:
In fact, the 182 patent specification explicitly provides that N equals eight because at J8 11 738, column one, line 35 to 37, and line 60 to 62,

[00:31:33] Speaker 00:
It defines N as a length eight code, which means N equals eight.

[00:31:37] Speaker 00:
And looking at matrix A, if N equals eight, then one would see that M equals four, and it actually discloses that M is less than N. With respect to priority, the commission found that the autocorrelation side load suitable for multipath environments was not disclosed in the 182 patent, because LSI's expert relies exclusively on teachings from 802.11b standard.

[00:32:02] Speaker 00:
Those teachings are nowhere found in the 182 pattern.

[00:32:05] Speaker 00:
And in fact, LSI's own expert testified that use of the equation and cover sequence in the 182 pattern has to be used in a particular context, specifically in the context of CCK modulation, and also has to be combined with things such as Hadamard encoding matrix in order to achieve good autocorrelation silos suitable for multipath environments.

[00:32:27] Speaker 00:
Neither CCK modulation or any of these other things, Hadamard encoding,

[00:32:32] Speaker 00:
encoding matrices are actually found in the 182 patent or disclosure.

[00:32:36] Speaker 00:
So simply disclosing an equation in a cover sequence in the 182 patent that you can also find in the standard is simply not sufficient for written description requirements.

[00:32:45] Speaker 05:
And the M greater than N requirement is the sole one of the four that cuts across all claims, right?

[00:32:51] Speaker 00:
That's right, Your Honor.

[00:32:56] Speaker 00:
If I can briefly address domestic industry, first

[00:33:04] Speaker 00:
What Interdigital says is not on appeal.

[00:33:07] Speaker 00:
LSI and its own opening brief do not challenge the Commission's interpretation of Interdigital.

[00:33:11] Speaker 00:
In fact, in a different investigation, LSI successively argued before the Commission that Interdigital requires articles for subparagraph C. I mean, their argument is this was a surprise.

[00:33:28] Speaker 00:
Even taking aside that interdigital was decided before the evidentiary hearing and before the close of fact discovery, which LSAT's counsel could have requested for additional extension of time for discovery if it needed it, it didn't do so.

[00:33:41] Speaker 00:
But even if it could not have been a surprise after the commission's notice of a review, because in that notice of review, the commission explicitly signaled to the parties that it was considering applying interdigital in the article's requirement.

[00:33:56] Speaker 00:
And even then, in response to the Commission's questions and its notice of review, LSI did not request for a remand or that discovery be reopened.

[00:34:05] Speaker 00:
In fact, its response in its submissions to the Commission was that there is ample evidence of record to support articles requirement.

[00:34:12] Speaker 00:
But other than identifying the same licensed articles that the Commission already found did not practice a 958 patent, the only other evidence that LSI presented, and that's the only evidence that LSI presented its opening brief,

[00:34:24] Speaker 00:
is a presentation that I believe is a PowerPoint presentation that's made to a potential licensee.

[00:34:30] Speaker 00:
There's no evidence in the record that the potential licensee ever licensed a 958 patent.

[00:34:35] Speaker 00:
There's also no record that in the evidence that that potential licensee articles actually practiced a 958 patent pursuant to the AO211B standard, which is LSI's theory regarding articles.

[00:34:51] Speaker 05:
gone, I think, well over your time.

[00:34:54] Speaker 05:
Unless there are more questions, why don't we hear from your colleagues?

[00:35:08] Speaker 05:
Mr. Bright, do you have some subset of the issues that you're going to talk about, or are you open for anything?

[00:35:13] Speaker 07:
I am open to anything, Your Honor.

[00:35:15] Speaker 07:
Why don't you start with whatever you want to talk about?

[00:35:17] Speaker 07:
But I will.

[00:35:20] Speaker 07:
I will try to avoid redundancy, Your Honor, in the interest of time.

[00:35:24] Speaker 07:
I want to address the questions that you've had thus far.

[00:35:28] Speaker 07:
First, I take issue with LSI, the appellant's position that there is record evidence that the real and imaginary parts of a complex code can be transmitted on a single

[00:35:40] Speaker 07:
channel.

[00:35:41] Speaker 07:
I'm not aware of any such evidence.

[00:35:42] Speaker 07:
I don't believe it exists.

[00:35:43] Speaker 05:
I will point out... Can you take one shot at trying to get through my thick skull, why that's not possible?

[00:35:50] Speaker 07:
I will take my best shot.

[00:35:52] Speaker 05:
And I don't mean why it's not done in the CCCA implementation of the Wi-Fi.

[00:35:57] Speaker 07:
I understand.

[00:35:58] Speaker 07:
The answer is that if you think this is a pair of chips, real and imaginary part, they are a pair.

[00:36:06] Speaker 07:
They go together.

[00:36:07] Speaker 07:
So for decoding purposes,

[00:36:10] Speaker 07:
at the decoder, they have to receive them in parallel and understand the relationship between the chips at that time of decoding.

[00:36:19] Speaker 07:
Therefore, if you work your way back to the modulator, to the transmitter, they have to be transmitted in parallel.

[00:36:26] Speaker 07:
We've said, actually in our greener's brief, page 26, and we've cited to the record, that in contrast

[00:36:34] Speaker 07:
Two channels are required to transmit a complex code.

[00:36:38] Speaker 07:
One channel to carry the real part, and the other channel to carry the imaginary part.

[00:36:45] Speaker 07:
To sort of answer, I think, Your Honor's question, and why isn't there more in the record probably about this decoding aspect is because the claims are directed to the modulator side of things, and they do not recite the decoder, the demodulator.

[00:37:00] Speaker 07:
But the implication of this testimony, the record site is fully supportive of what I just represented to you, Your Honor, about the necessity of transmitting real and imaginary parts in parallel on separate channels.

[00:37:13] Speaker 07:
And this is consistent with two prior district court decisions that the 958 patent will only work with real codes, with only a real part.

[00:37:27] Speaker 07:
two other judges reach that conclusion reviewing the specification, all of the intrinsic evidence that only real codes are disclosed and only real codes will work in the patent because a real code is transmitted on a single branch or the same version of that real code is transmitted on two branches in other embodiments in the specification.

[00:37:46] Speaker 05:
What about the other thing that I asked about, about why if it's true that's a problem addressed by the patent of having

[00:37:57] Speaker 05:
Only n orthogonal codes in n length codes doesn't exist for codes that represent complex values.

[00:38:04] Speaker 07:
We know, as was mentioned from previous questioning and answering, that even LSI's own expert admitted that this problem of m equals n, which is related to data rate as described by the patent, did not exist for complex codes.

[00:38:21] Speaker 07:
And it is because you have this additional dimension for complex codes.

[00:38:25] Speaker 07:
By adding an additional dimension of an imaginary part, you therefore increase the number of possible codes that you can obtain because it's a function of the number of bits in the chip.

[00:38:36] Speaker 05:
So tell me why that's not what I guess referred to at one point as a semantic issue with whether instead of saying m greater than n, it should be m greater than 2n.

[00:38:46] Speaker 07:
This is a fundamental difference, Your Honor.

[00:38:49] Speaker 07:
No matter what the number m or n is, when you set it in the same context for both complex and real codes, you're still not going to have this problem that is described in the 958 patent that is unique to real codes.

[00:39:03] Speaker 07:
LSI's own expert said this m equal n problem is unique to real codes, not a problem of complex codes.

[00:39:11] Speaker 05:
You keep saying what's in the record, and that's important.

[00:39:15] Speaker 05:
I've asked all these questions because I'm trying to understand the point without just relying on somebody says it in a way I don't understand.

[00:39:27] Speaker 05:
So if you have 2n length codes because each complex value requires two numbers, the real and the imaginary one.

[00:39:41] Speaker 05:
Why is it, do you agree that there are only 2n orthogonal codes in that regime?

[00:39:48] Speaker 07:
Yes, possible, possible.

[00:39:49] Speaker 05:
Yes, possible, possible.

[00:39:51] Speaker 05:
So as long as you, so why do you not have the problem that that may not be enough for the purposes that they want to use and so you're going to use more codes than orthogonal ones and live with

[00:40:12] Speaker 05:
some of the problems that might otherwise arise from using non-orthogonal codes by choosing them carefully enough so that the problems don't really arise, so that the dot products don't have bad side lobes and cross correlations and whatnot.

[00:40:29] Speaker 05:
You can live with those even though they're not as good as orthogonal ones, but you get more.

[00:40:34] Speaker 07:
Your objective here is, certainly as described in the patent, is try to arrive at a code set

[00:40:40] Speaker 07:
with a certain data rate.

[00:40:43] Speaker 07:
And you are limited when you have real codes by the number of available codes, real codes.

[00:40:50] Speaker 07:
And you're trying to achieve this certain data rate.

[00:40:53] Speaker 07:
This is inextricably linked in the patent.

[00:40:57] Speaker 07:
The data rate you're trying to achieve, the fact that you're using real codes, which is actually a simplification in a sense, because you can be, as described in the patent, transmitting over a single branch.

[00:41:09] Speaker 07:
The very context for the problem is one, that's why it's unique to real codes, is because Dr. Van Lee, in setting forth this patent, was limiting himself to real codes and trying to address this problem of achieving the data rate he wanted with a limited number of available real codes to him.

[00:41:29] Speaker 07:
And then trying to achieve a better data rate by increasing the length, or increasing the number of codes with respect to a given length.

[00:41:40] Speaker 05:
Can I ask you the same question I asked Ms.

[00:41:43] Speaker 05:
Chan about the domestic industry point?

[00:41:45] Speaker 05:
Can the accused products count as products for domestic industry?

[00:41:51] Speaker 05:
And if not, as I assume your answer is not, why not?

[00:41:54] Speaker 07:
The answer is no.

[00:41:56] Speaker 07:
Because they're not domestic?

[00:41:58] Speaker 07:
Well, the answer is no, at least for the reason that that would render the domestic industry requirement superfluous, approving infringement to the ITC in a commission investigative proceeding.

[00:42:10] Speaker 07:
Because if all a complainant had to do was prove that the accused products, the accused articles were infringing, that would render this, what is an additional requirement for domestic industry not subsumed with improving infringement in the ITC superfluous.

[00:42:51] Speaker 07:
I would like to point out on the other issue that you have raised about the disclosure of the claims priority document, particularly with respect to this M greater than N term, that I think from the questioning and the answering you can see there's no explicit disclosure of a code set that would meet this M greater than N requirement expressed in the claims

[00:43:21] Speaker 07:
the asserted claims in this claimed priority document.

[00:43:25] Speaker 07:
Without that expressed disclosure, they're left with inherency.

[00:43:29] Speaker 07:
That's the only option they have.

[00:43:31] Speaker 07:
And they have no testimony that there is a code set with M greater than N necessarily present.

[00:43:39] Speaker 07:
We've been told there's 4,096 possible codes.

[00:43:42] Speaker 07:
We have no idea what the alleged code set is satisfying this property.

[00:43:47] Speaker 07:
M greater than N, also the other properties are cited in the claims.

[00:43:51] Speaker 07:
what it is so that it can be evaluated.

[00:43:53] Speaker 07:
It's not there.

[00:43:59] Speaker 07:
Your honor, I see my time.

[00:44:03] Speaker 05:
I forget, did you speak in your brief to the 867 issue or not?

[00:44:09] Speaker 07:
Yes.

[00:44:09] Speaker 07:
Yes, your honor.

[00:44:10] Speaker 05:
And I suppose I should have asked Ms.

[00:44:13] Speaker 05:
Chen this.

[00:44:14] Speaker 05:
Is the ALJ decision on the 867 the final decision of the commission?

[00:44:20] Speaker 07:
It's not a decision of the commission, your honor.

[00:44:25] Speaker 05:
Why is it not by regulation or other treatment?

[00:44:30] Speaker 07:
Although the ALJ decision has been reviewed in its entirety, it's not a commission opinion.

[00:44:39] Speaker 07:
It doesn't have a precedential effect.

[00:44:42] Speaker 07:
It's up to other courts what weight, if any, to give it, what consideration to give it.

[00:44:49] Speaker 07:
There's a lot of stuff right here.

[00:44:51] Speaker 05:
Is it a question of when the ITC decided it would not vacate?

[00:44:58] Speaker 05:
It denied a motion to vacate, right?

[00:45:01] Speaker 05:
The ALJ decision.

[00:45:04] Speaker 05:
Denial of the motion to vacate is presumably a decision of the ITC.

[00:45:12] Speaker 05:
The ITC didn't really give a reason for doing that.

[00:45:17] Speaker 05:
Should it not have to give a reason about why the possible adverse evidentiary use in other proceedings should be eliminated at the front end by vacating a decision that became unreviewable in essentially the way Monsignor provides in the federal court system, though taking the preclusion?

[00:45:44] Speaker 05:
aspect out of the equation.

[00:45:46] Speaker 07:
I think what is clear is that this denial, the motion of ACAPE was certainly within the discretion, the sound discretion of the Commission.

[00:45:56] Speaker 05:
Agencies when they exercise discretion typically have to give reasons.

[00:46:01] Speaker 05:
The Commission didn't, right?

[00:46:03] Speaker 07:
In this case the Commission did not, but this discretion is something that is explicitly committed to the Commission.

[00:46:13] Speaker 07:
decision.

[00:46:14] Speaker 07:
And furthermore, I think what's very clear from the record that we have, that what has come out of the commission and the ALJ's decision on the 867 to district court's Article III judges, they're not bound by this.

[00:46:31] Speaker 07:
There's no possibility for mistake that they're bound by the outcome.

[00:46:35] Speaker 05:
No, no, no.

[00:46:36] Speaker 05:
But the ALJ decision could be used adversely to LSI

[00:46:42] Speaker 05:
in an evidentiary way, right?

[00:46:45] Speaker 05:
I mean, aren't decisions that are not issue preclusive, let alone claim preclusive, often admitted into evidence in other proceedings?

[00:46:56] Speaker 07:
In other proceedings, Your Honor, that is committed to the discretion of Article III judges in terms of what to admit.

[00:47:04] Speaker 07:
But in Article III district court proceedings, there's going to be

[00:47:09] Speaker 07:
an opportunity for LSI to litigate these issues if that procedure plays out.

[00:47:18] Speaker 07:
In that situation, the Article III judge is going to look at these issues anew without thinking that it's bound by any of the fact-finding or the legal determinations that the ALJ

[00:47:41] Speaker 07:
Thank you.

[00:47:45] Speaker 05:
Thank you, Your Honor.

[00:47:54] Speaker 02:
You can take two minutes and then your friend will have two minutes and then we'll be done.

[00:47:58] Speaker 02:
Thank you.

[00:47:58] Speaker 02:
Going back to Your Honor's question about the code representing a complex value being transmitted on a single channel, I don't believe that specific formulation of the question was ever addressed in the record.

[00:48:09] Speaker 02:
Council for the Commission and for interveners, again, transmuted that into the question of whether a, quote unquote, complex code can be transmitted on a single channel.

[00:48:20] Speaker 02:
Their entire definition of what they view as a complex code requires two channels.

[00:48:27] Speaker 02:
That's the whole definition.

[00:48:29] Speaker 02:
If you have two interdependent sequences on the INQ channel, according to them, you have a complex code.

[00:48:38] Speaker 02:
two independent codes or only one channel being used, by their definition you have a real code.

[00:48:45] Speaker 02:
There is no reason you cannot take a sequence of zeros and ones being transmitted on the I-channel and pair them together to represent a complex number or represent a real number.

[00:48:57] Speaker 02:
The claim construction in this case is a sequence of chips representing a real value.

[00:49:03] Speaker 02:
It is not real code, it is not non-complex code, it is not

[00:49:08] Speaker 02:
In dependent code, it is not interdependent code.

[00:49:11] Speaker 02:
It is a sequence of chips representing a real value.

[00:49:14] Speaker 02:
In the 958 patent, a code is a sequence of chips.

[00:49:17] Speaker 02:
In interviewers' products, the codes are sequences of chips.

[00:49:21] Speaker 02:
There are also sequences of chips representing real values.

[00:49:24] Speaker 02:
The distinction that they are trying to draw in this case has no meaning in the field of digital signal processing.

[00:49:31] Speaker 02:
Going back very briefly to the 182 patents, as we said in our brief, another cardinal sin that the commission committed here

[00:49:38] Speaker 02:
was requiring in hoc verba or word for word disclosure of the claim terms in the 182 patent.

[00:49:44] Speaker 02:
The 182 patent doesn't lay out word for word how to do CCK modulation, but as we've shown in our brief, it discloses an excited code set by applying various operations on matrix A. The equation in the 182 patent is the very equation that Dr. Van Nee proposed for the standard because it has good autocorrelation side lobes.

[00:50:08] Speaker 05:
need to call time here.

[00:50:10] Speaker 05:
Thank you.

[00:50:18] Speaker 01:
Thank you, Your Honor.

[00:50:20] Speaker 01:
With respect to just a couple of points and then the overall picture.

[00:50:23] Speaker 01:
One, the reference to the other investigation that LSI supposedly took a position on, that was under 337A and B. So that was a different provision where it required a showing of article coverage.

[00:50:36] Speaker 01:
So that really isn't an improper reference.

[00:50:39] Speaker 01:
I would like to take back, we've just got a minute and a half here.

[00:50:41] Speaker 01:
If you go back to the time period in question, and from the questions that were asked, it seems you find it incredulous that we can understand interdigital the way we did.

[00:50:50] Speaker 01:
Interdigital was decided, the second interdigital, which is the one that you have to focus on, where it has the more compelling dicta, was decided on January 10th, 2013.

[00:50:59] Speaker 01:
January 10th, 2013.

[00:51:03] Speaker 01:
July and August and September, three different proceedings in the ITC investigations had hearings.

[00:51:09] Speaker 01:
We were one of them.

[00:51:10] Speaker 01:
We were the 837.

[00:51:11] Speaker 01:
There was the 841 and the 853.

[00:51:14] Speaker 01:
In every one of those investigations, there was a licensing argument, same as we have, and in every case, after interdigital, the ALJ and the parties applied to the standard that we understood to be.

[00:51:25] Speaker 01:
No requirement or covered article.

[00:51:27] Speaker 01:
This group over here never raised the issue.

[00:51:29] Speaker 01:
They never argued it.

[00:51:30] Speaker 01:
They never said the standard had changed.

[00:51:31] Speaker 01:
They never said the law had changed.

[00:51:33] Speaker 01:
We all understood it to be as it was for 20 years.

[00:51:36] Speaker 01:
There was this language, but we also know that the holding of interdigital was very clear.

[00:51:40] Speaker 01:
The holding was, and there was an opportunity to reverse it, the holding was that a licensing entity that didn't show an article covered non-domestic industry.

[00:51:48] Speaker 05:
Can I ask you one?

[00:51:49] Speaker 05:
Because your time is running out.

[00:51:52] Speaker 05:
He has two questions, one each on domestic industry and one on 867.

[00:51:57] Speaker 05:
Is it correct that redundancy would

[00:52:01] Speaker 05:
follow if accused products counted for purposes of the domestic industry requirement.

[00:52:09] Speaker 01:
I don't know that redundancy would follow.

[00:52:11] Speaker 01:
Our argument hasn't been on that ground.

[00:52:13] Speaker 01:
Our argument is that the law changed and we should be able to proceed under the old standard.

[00:52:18] Speaker 01:
Under the new standard.

[00:52:20] Speaker 05:
And on the 867, why should it not be for later forums, tribunals in particular, district courts,

[00:52:31] Speaker 05:
If the ALJ's decision on the H-67 is submitted for evidentiary use, though not preclusive of use, why should it not be for the tribunal receiving that to decide what effect should be given by virtue of the fact that it was rendered unreviewable by the full commission as a result of litmus?

[00:52:52] Speaker 01:
Just a matter of fairness, there wasn't an opportunity in this proceeding to actually challenge it here.

[00:52:56] Speaker 01:
And so it basically is an incomplete decision in that sense.

[00:52:59] Speaker 01:
It wasn't a full and fair opportunity to litigate, yet it still could be used in a presidential way, potentially.

[00:53:04] Speaker 01:
Not presidential, but a persuasive way when we didn't get to finish the story.

[00:53:08] Speaker 01:
The statement was made you had an opportunity to litigate.

[00:53:10] Speaker 01:
Well, we really didn't get to litigate because it was cut off.

[00:53:14] Speaker 01:
The patent expired, and there wasn't an opportunity to play it out.

[00:53:17] Speaker 01:
And so the idea that, well, you had an opportunity to litigate, and this is the result you got the first time,

[00:53:22] Speaker 01:
That's not true.

[00:53:23] Speaker 01:
And it's going to take an awful lot of explaining next time around to another court to understand that, well, we didn't have a chance to fully litigate.

[00:53:30] Speaker 01:
It wasn't fully complete.

[00:53:32] Speaker 01:
The proper result should be as an interest error.

[00:53:34] Speaker 01:
Just vacate and put us back to ground zero where we started.

[00:53:38] Speaker 05:
Thank you very much.

[00:53:39] Speaker 05:
Thank you.

[00:53:40] Speaker 05:
And Casey submitted.