[00:00:06] Speaker 01:
Our next case for today is 2015-1837, IBM vs. Intellectual Ventures.

[00:01:03] Speaker 01:
All right, Mr. Ademo, please proceed.

[00:01:05] Speaker 03:
Thank you.

[00:01:06] Speaker 03:
Good morning.

[00:01:06] Speaker 03:
May it please the court?

[00:01:08] Speaker 03:
The PTAB made three reversible errors in this case when it denied IBM's IPR petition and found the claims of the 666 patent to be not unpatentable.

[00:01:19] Speaker 03:
First, it allowed IV to make a new claim construction argument at the oral hearing regarding the term feedback that had never been presented previously in the papers or otherwise.

[00:01:30] Speaker 03:
in violation both of the controlling provisions of the Administrative Procedures Act and the PTAB's own rule.

[00:01:36] Speaker 00:
You know, my problem with this argument is that, as I understood that, that IV was being pushed by PTAB because the PTAB thought the construction was more narrow than IV was providing or that, in other words, or broader, I'm sorry, that it was closer to your initial claim.

[00:01:58] Speaker 00:
In other words, you said from day one that it had to be directly fed back.

[00:02:04] Speaker 00:
And the PTAB was saying that the notion that it could be indirectly fed back was different.

[00:02:11] Speaker 00:
So I didn't see them making a new construction.

[00:02:13] Speaker 00:
I saw them conceding somewhat on their original construction.

[00:02:17] Speaker 03:
That's absolutely not.

[00:02:19] Speaker 03:
And here's why.

[00:02:20] Speaker 03:
By the time we got to the oral hearing, there was no live issue about construction of feedback remaining.

[00:02:28] Speaker 03:
There was nothing there.

[00:02:30] Speaker 03:
And if you look at the reasons that they gave at A9 for the construction that they reached, they didn't say anything at all about going back and looking at the feedback construction.

[00:02:40] Speaker 01:
I don't understand when you say there's no live issue.

[00:02:42] Speaker 01:
Isn't the PTAB entitled

[00:02:44] Speaker 01:
I mean, are you suggesting that the PTAB is bound by whatever construction it articulates at the petition stage and isn't free to reconsider the construction or the precise construction that is appropriate during the actual?

[00:02:58] Speaker 03:
Not without participation and full notice on the part of the parties as to what the various constructions are that are being considered.

[00:03:06] Speaker 03:
That's the main point here.

[00:03:09] Speaker 03:
You don't satisfy with respect.

[00:03:11] Speaker 03:
The APA, which controls here,

[00:03:14] Speaker 03:
if you're doing all of this in the dark.

[00:03:16] Speaker 03:
We had absolutely no idea.

[00:03:18] Speaker 00:
No, but part of my problem is you cite the specific parts of the record and say that there was essentially a stipulated construction.

[00:03:25] Speaker 00:
And when you go look at those portions of the record, that's not what it says.

[00:03:28] Speaker 00:
It actually shows that there was clearly a debate, that you were still pushing this direct feedback.

[00:03:34] Speaker 03:
Your Honor, with respect, by the time we got done with our patent owner's reply, there was nothing

[00:03:42] Speaker 03:
In that patent owner's reply, in the section that was marked claim construction that had anything to do with feedback, in the petitioner's reply, in the patent owner's response, they had repeated what was said in the institution decision, effectively verbatim, and that was in the patent owner's response.

[00:04:07] Speaker 03:
We then got the last word with respect to any claim construction issue.

[00:04:11] Speaker 03:
In our reply, we said nothing in response to that feedback position that they had taken in the patent owner's response.

[00:04:20] Speaker 03:
As cases usually get tried, when someone makes an avertment and you don't answer it, you are not contesting the issue.

[00:04:29] Speaker 03:
Now, we never said there was a stipulation.

[00:04:31] Speaker 03:
What we said was we were not contesting the issue, and the board understood

[00:04:38] Speaker 03:
And you can see this in A9 of the record.

[00:04:40] Speaker 00:
During the hearing, you continued to argue that the feedback had to be direct.

[00:04:44] Speaker 00:
I'm sorry?

[00:04:44] Speaker 00:
During the hearing, you continued to argue your original position.

[00:04:48] Speaker 03:
We did not, Your Honor.

[00:04:53] Speaker 01:
Well, even if the construction became more precise during the IPR after the petition, I don't see how it's

[00:05:07] Speaker 01:
either inconsistent with transmitted back.

[00:05:12] Speaker 01:
Transmitted back is what you allege everybody agreed the construction was and the principle everyone was operating under.

[00:05:18] Speaker 01:
I don't understand how the board's construction, its nuance of what it means to transmit back is at odds with the transmitted back language that everyone agreed on.

[00:05:29] Speaker 01:
I guess I don't see them arguing for a construction that differs.

[00:05:33] Speaker 01:
I don't see you lacking any notice.

[00:05:35] Speaker 01:
I don't see

[00:05:36] Speaker 01:
I don't see the substance of your argument.

[00:05:39] Speaker 03:
It's because when the board came up with this new construction that we had no notice of, what they did was they construed for the first time the wherein clause.

[00:05:49] Speaker 03:
No one had ever asked for the wherein clause to be construed before.

[00:05:53] Speaker 03:
No one, neither IV nor IBM, nor had the board raised the construction.

[00:05:59] Speaker 03:
What they did was they went from wherein the outputs of the multiplication unit, the addition unit,

[00:06:05] Speaker 03:
and the sign inversion unit are fed back or feedback to the arithmetic controller, that appears at A58 of the record, they went to the final construction, which read wherein the output values of the multiplication unit, the addition unit, and the sign inversion unit are feedback or fed back to the arithmetic controller.

[00:06:24] Speaker 03:
And everything past this point now is new.

[00:06:26] Speaker 01:
Although those values may pass unchanged.

[00:06:28] Speaker 01:
Hold on for a sec.

[00:06:29] Speaker 01:
I must be confused because I thought, and I probably

[00:06:33] Speaker 01:
I'm confused, but I thought that your argument from the very outset about direct feedback went to the wear-in clause.

[00:06:40] Speaker 01:
Did it all go to a different element?

[00:06:41] Speaker 01:
Am I focused on the wrong element?

[00:06:44] Speaker 03:
It went to the term feedback, which is part of the wear-in clause.

[00:06:49] Speaker 03:
But no one ever argued the wear-in clause as a whole.

[00:06:53] Speaker 03:
So you're saying that...

[00:06:56] Speaker 03:
The difference here.

[00:06:56] Speaker 00:
You're saying that the PTAB's not allowed to interpret the very words that you guys are fighting over in context?

[00:07:07] Speaker 03:
Not without someone giving all the parties notice that this was going to be an issue at the final hearing.

[00:07:17] Speaker 03:
And Your Honor, just more to answer your question, what causes the problem here,

[00:07:21] Speaker 03:
is the word unchanged.

[00:07:23] Speaker 03:
And if I could just finish where the quote was.

[00:07:25] Speaker 03:
When the board added the although phrase to the end of the wherein clause, they said although those values may pass unchanged through intermediate components, e.g.

[00:07:38] Speaker 03:
latches and multiplexes.

[00:07:39] Speaker 01:
But why isn't that exactly the same thing as transmitted back?

[00:07:45] Speaker 03:
Because transmitted back doesn't say anything other than

[00:07:48] Speaker 03:
The information is going from point A to point B. It doesn't say anything about the status of the information.

[00:07:53] Speaker 01:
But if the information is changed, then the information is not being transmitted back.

[00:07:58] Speaker 01:
If you change information, whether it's you remove a field and data that you're sending back, you add a field, you change the value, if you make a change to the data and then send it back, that data is not being transmitted back.

[00:08:13] Speaker 01:
So I don't understand why the board's tweak

[00:08:17] Speaker 01:
isn't exactly the same in different words as what they had held from the outset in the petition stage, what both parties, I mean, not what you had argued for, because you argued for a direct connection, but what both parties ultimately acquiesced in.

[00:08:32] Speaker 01:
I just don't see the substance of any difference between what the parties acquiesced in by that stage in the proceedings and what the board held.

[00:08:40] Speaker 03:
I see no difference.

[00:08:42] Speaker 03:
So transmitted back, what gets added in the new construction is the term unchanged.

[00:08:47] Speaker 03:
based on nothing but boyer argument.

[00:08:49] Speaker 03:
There is no record evidence here as to what unchanged in the context of the wear and cause, in the context of claims one and four, means to a person of ordinary skill in the art.

[00:09:00] Speaker 03:
Why?

[00:09:01] Speaker 03:
Because we didn't get a chance to build that record.

[00:09:03] Speaker 03:
There's no record evidence as to what unchanged means.

[00:09:07] Speaker 03:
And as a lay person, Your Honor, maybe it means something to us.

[00:09:10] Speaker 03:
But you and I are not the standard by which that's measured.

[00:09:13] Speaker 03:
The standard by which it's measured

[00:09:15] Speaker 03:
is meaning to one of ordinary skill in the art and the record is silent on that because we didn't get the chance to make the record.

[00:09:20] Speaker 00:
Why wasn't the whole discussion of Dworkin and their submissions enough to alert you to the notion that this is what they were talking about?

[00:09:28] Speaker 03:
Your Honor, the driving force or driving concern here is I understand how the APA applies to a PTAP procedure and the trial guide

[00:09:41] Speaker 03:
which is explicit, and even more so, CBS versus Helfrich, and their example of red in the various issues, it's all about notice.

[00:09:52] Speaker 03:
We're not supposed to have to try to guess at what Ivy's view is as to some subliminal, silent, stealth explanation in the middle of Dworkin.

[00:10:05] Speaker 03:
That's not the way, as I understand it, that's not the way this is supposed to work.

[00:10:08] Speaker 03:
This is about notice and about fairness.

[00:10:11] Speaker 03:
and try to read their mind about Dworkin as they were going to argue unchanged?

[00:10:19] Speaker 03:
I'm sorry.

[00:10:20] Speaker 03:
Yes, it's our position that the APA and the trial practice guide requires more candor and openness and forthrightness under those circumstances.

[00:10:32] Speaker 00:
As a practical matter, going back to what Judge Moore was asking before, how is unchanged different than directly?

[00:10:41] Speaker 03:
Well, because direct just says, as I understand it, I move from here to there.

[00:10:50] Speaker 04:
But if that unit made a calculation and sent it directly, wouldn't it be unchanged from that calculation?

[00:11:00] Speaker 03:
Well, as a lay person, you might say yes.

[00:11:05] Speaker 03:
But as a person of ordinary skill in the art, looking at the context of the claim

[00:11:11] Speaker 03:
as to what unchanged means.

[00:11:14] Speaker 03:
More important thing is, there's no support for unchanged in the specification.

[00:11:18] Speaker 03:
There's no record evidence.

[00:11:20] Speaker 04:
The board, if you look at where they did this... Well, I'm not asking about the way they did it under what you think is a new construction.

[00:11:27] Speaker 04:
How would it have been changed under your construction if you had gotten a direct construction?

[00:11:32] Speaker 04:
Wouldn't that have required it to go directly from one of those units to the controller

[00:11:39] Speaker 04:
Unchanged.

[00:11:40] Speaker 04:
By the point where we were at the final hearing, we had dropped... I'm not asking about that.

[00:11:47] Speaker 04:
I'm asking about your proposed construction.

[00:11:49] Speaker 04:
Wouldn't it have required it to go unchanged?

[00:11:52] Speaker 03:
No.

[00:11:54] Speaker 04:
Well, how would it be changed if it went directly from a unit to the controller?

[00:12:01] Speaker 03:
If you have a TiVo box in your house, they tell you don't put the box

[00:12:08] Speaker 03:
more than 10 feet, don't put it on more than 10 feet of coax from point A to point B, because you'll get a noisy signal.

[00:12:14] Speaker 03:
What's that mean?

[00:12:16] Speaker 03:
That 10 foot distance has led to a change in the signal.

[00:12:20] Speaker 04:
We don't know what... That's not what they're talking about in change here, though.

[00:12:24] Speaker 04:
They're not talking about interference or the like.

[00:12:26] Speaker 04:
They're talking about the data gets transformed when it moves along from one of these things to the next.

[00:12:35] Speaker 03:
Yes.

[00:12:38] Speaker 03:
a term that's not supported in the spec.

[00:12:41] Speaker 03:
I'm not trying to fence with you here.

[00:12:42] Speaker 03:
I think this is important to lay the context.

[00:12:45] Speaker 03:
This is a term that doesn't appear in the specification.

[00:12:49] Speaker 03:
All of this argument is based on figure two.

[00:12:52] Speaker 03:
Figure two is an embodiment.

[00:12:54] Speaker 03:
There is no showing at all that figure two should be read into the claim, which is the only way you can make an argument as to what unchanged might be.

[00:13:04] Speaker 03:
They effectively read

[00:13:06] Speaker 03:
figure two into this construction.

[00:13:08] Speaker 01:
I just don't even understand how you're standing here making this argument.

[00:13:10] Speaker 01:
You asked for direct.

[00:13:13] Speaker 01:
That was what you asked for.

[00:13:15] Speaker 01:
Direct necessarily means unchanged in the context of this invention where you're talking about outputs from an addition unit, a multiplication unit, a sign inversion unit.

[00:13:24] Speaker 01:
These are simple, mathematical.

[00:13:26] Speaker 01:
Do not interrupt me again.

[00:13:27] Speaker 01:
You've talked over me and interrupted me multiple times.

[00:13:30] Speaker 01:
You've done the same to Judge O'Malley.

[00:13:32] Speaker 03:
My apologies.

[00:13:33] Speaker 03:
I'm sorry, Your Honor.

[00:13:36] Speaker 01:
Actually, go ahead.

[00:13:37] Speaker 01:
Obviously, what I have to say is not as important as what you have to say.

[00:13:39] Speaker 01:
No, not at all.

[00:13:40] Speaker 01:
Please proceed.

[00:13:40] Speaker 03:
No, not at all.

[00:13:41] Speaker 03:
I apologize.

[00:13:43] Speaker 01:
It's OK.

[00:13:44] Speaker 01:
I'm good.

[00:13:44] Speaker 01:
Go ahead.

[00:13:45] Speaker 01:
OK.

[00:13:46] Speaker 01:
You want to save the rest of your time for rebuttal?

[00:13:48] Speaker 01:
You're down to two minutes.

[00:13:49] Speaker 03:
Yes, Your Honor.

[00:13:51] Speaker 03:
Thank you.

[00:14:02] Speaker 02:
Good morning, Your Honors.

[00:14:03] Speaker 02:
I'm Peter McAndrews here on behalf of Appellee Patent Owner.

[00:14:07] Speaker 02:
I'd just like to address briefly the issue of notice.

[00:14:11] Speaker 02:
So as an initial matter, to the extent that there's any argument over changing positions during the proceeding, as the board found it was exclusively on IBM for continuously changing their position about how the secondary reference Dworkin operated.

[00:14:27] Speaker 02:
There was no reason for the board to provide the construction that they ultimately did until they did

[00:14:32] Speaker 02:
Because IBM's position had always been that there was direct feedback, that the values were unchanged, in fact, because they were direct.

[00:14:40] Speaker 00:
But in fairness, these proceedings, just like any trial, parties can change their position as they go along, correct?

[00:14:49] Speaker 02:
That's correct.

[00:14:49] Speaker 02:
But by the time we reached the final portion of the proceeding, which was the oral hearing, they should have made this argument.

[00:14:55] Speaker 02:
And even at the oral hearing, they stuck with their original argument.

[00:14:59] Speaker 02:
Well, they stuck with an argument that the feedback

[00:15:02] Speaker 02:
went back unchanged.

[00:15:03] Speaker 02:
They originally said that it went back through data buses, direct, going nowhere else.

[00:15:09] Speaker 02:
They then changed their position in their reply to say that it went back through a series of shift registers.

[00:15:14] Speaker 02:
Ultimately, now on appeal, they agree with the position originally taken by the patent owner in its response that only the output of a single ALU goes back to the controller.

[00:15:25] Speaker 02:
The other ones pass as inputs and then are changed by intervening sub-ALUs.

[00:15:32] Speaker 02:
They knew that that was our position at the response stage.

[00:15:35] Speaker 02:
They could have responded to that.

[00:15:37] Speaker 02:
As far as notice goes, they had every opportunity to respond and say, fine, we concede now that your characterization of the Dworken reference is correct.

[00:15:46] Speaker 02:
But even given that characterization, we think the claim means X. They didn't do that.

[00:15:52] Speaker 02:
They stuck with the losing horse.

[00:15:55] Speaker 02:
They stuck with their losing interpretation of the Dworken reference all the way through the oral hearing.

[00:16:00] Speaker 02:
And in fact, at the oral hearing,

[00:16:01] Speaker 02:
They were arguing that the values themselves, the values that came out of those sub-ALUs were sent back.

[00:16:07] Speaker 02:
It was implicit in that that they were unchanged.

[00:16:10] Speaker 02:
So the construction that the board ultimately arrived at was perfectly consistent with the arguments of all the parties throughout the entire proceeding.

[00:16:18] Speaker 02:
So there's nothing they can complain about with the procedure.

[00:16:23] Speaker 00:
And do you disagree that at the hearing in response to the PTAP's questions that you did alter your construction somewhat?

[00:16:31] Speaker 02:
I don't believe our construction was altered, what we were addressing.

[00:16:35] Speaker 02:
So first of all, at the petition stage and the institution stage, the issue was feedback in isolation.

[00:16:43] Speaker 02:
What we were talking about now was the entire wear-in clause that included the term output being fed back to the controller.

[00:16:50] Speaker 02:
And the discussion was simply a clarification of the plain meaning of the claim as we had applied it, as it had been applied

[00:16:57] Speaker 02:
in our response to the Dworken reference.

[00:17:00] Speaker 02:
It was very clear that we believe that the plain language of the claim did not read on a device that sent back the output of only a single sub-ALU where the other ALUs sent outputs that were then changed by intervening ALUs.

[00:17:15] Speaker 00:
What's your response to the argument that your friend on the other side made that the wherein clause was not in play and that the

[00:17:22] Speaker 00:
PTAP didn't have the authority to interpret the entirety of the wear-in clause and was limited to just the phrase feedback.

[00:17:31] Speaker 02:
The wear-in clause was absolutely in play.

[00:17:33] Speaker 02:
In fact, if you look at the number of pages spent on the wear-in clause by all the parties, it's the single most important issue that the parties argued in the case as far as how the claims are applied to the prior references.

[00:17:46] Speaker 02:
There's the additional ground on which this court can affirm, however,

[00:17:52] Speaker 02:
which is motivation to combine.

[00:17:54] Speaker 02:
As the board found, supported by substantial evidence, IBM has not presented a sufficient motivation to combine.

[00:18:02] Speaker 01:
And in fact... Well, before you go into the additional ground of motivation, I understand your opponent's argument about the wearing clause to be that the word... Is it right that the word that was really in dispute before was feedback?

[00:18:15] Speaker 01:
And his argument is the rest of the wearing clause and the further limitations they

[00:18:22] Speaker 01:
bring were not what was disputed?

[00:18:24] Speaker 01:
Is that the argument?

[00:18:25] Speaker 02:
I don't think it's accurate.

[00:18:26] Speaker 02:
I think that might be his argument, but it's not accurate.

[00:18:30] Speaker 02:
Just because they selected the word feedback as a term to be construed when they wrote the petition does not mean that the rest of the claim is thrown out and not considered when applying the art.

[00:18:39] Speaker 02:
And that's what happened.

[00:18:40] Speaker 02:
The board considered the entirety of the claim language, including the entirety of the wherein clause, which is what they in large part base the decision on.

[00:18:49] Speaker 02:
and found that the wherein clause was not met by the Dworkin reference, even under their second interpretation of Dworkin.

[00:18:56] Speaker 01:
Is feedback a verb or a noun?

[00:19:00] Speaker 02:
Feedback in this instance.

[00:19:01] Speaker 01:
In this use.

[00:19:03] Speaker 01:
It's a noun, right?

[00:19:04] Speaker 02:
As it appears in the claim, I agree that it's a noun, correct, but it's describing... And so it's a noun, and it's describing, I didn't mean to interrupt you, go ahead.

[00:19:11] Speaker 01:
Isn't it describing the output of the multiplication unit, addition unit, and sign unit as the claim requires?

[00:19:17] Speaker 01:
Isn't that what it's describing?

[00:19:18] Speaker 01:
It is the feedback.

[00:19:20] Speaker 02:
Yes.

[00:19:20] Speaker 01:
These outputs are feedback, i.e.

[00:19:23] Speaker 01:
noun, not our feedback, as in verb.

[00:19:27] Speaker 01:
Correct.

[00:19:27] Speaker 02:
They are feedback to the arithmetic controller.

[00:19:30] Speaker 01:
Yes.

[00:19:30] Speaker 01:
So I guess I'm wondering how the board could be doing something improper when construing the term feedback as IBM requested when it looks at the rest of the sentence, which is definitional of what that noun encounters.

[00:19:42] Speaker 02:
I don't think that was improper at all.

[00:19:44] Speaker 02:
I think they were construing the full term in context, given its plain meaning.

[00:19:48] Speaker 04:
Did anybody ask for a construction of outputs?

[00:19:53] Speaker 02:
Actually, initially, IBM proposed a construction of outputs.

[00:19:58] Speaker 02:
And in fact, at that point, perfectly consistent with the construction the board ultimately reached, the board decided, well, the argument by IBM, and it was left undecided by the board at the institution stage.

[00:20:10] Speaker 02:
They didn't think it was necessary at that time.

[00:20:12] Speaker 02:
But IBM did in fact argue that outputs meant the results of the arithmetic logic units.

[00:20:18] Speaker 02:
And so that would imply that those are the outputs.

[00:20:21] Speaker 02:
That's the output that has to make it back to the controller.

[00:20:25] Speaker 04:
That was in conjunction with the same time they were proposing that feedback meant directly transmitted?

[00:20:31] Speaker 04:
That's correct.

[00:20:34] Speaker 02:
So just briefly on the motivation to combine, what I'd like to say about that is the board explicitly found

[00:20:42] Speaker 02:
The motivation to combine all argument and evidence that was presented by IBM was directed to their first theory of how Dworkin operated.

[00:20:50] Speaker 02:
And when they moved to their second theory, they didn't change their arguments or evidence to support a motivation to combine.

[00:20:58] Speaker 02:
And now, now that they've conceded on appeal that Patton owner's interpretation of Dworkin was correct all along, they're left utterly without any support for motivation to combine.

[00:21:11] Speaker 02:
So if there's any further questions, otherwise.

[00:21:14] Speaker 01:
No.

[00:21:14] Speaker 01:
Thank you, Mr. McAndreys.

[00:21:16] Speaker 01:
Thank you, Your Honor.

[00:21:17] Speaker 01:
Mr. Atomo, you have some rebuttal time.

[00:21:21] Speaker 03:
Thank you, Your Honor.

[00:21:25] Speaker 03:
I'll be brief.

[00:21:26] Speaker 03:
And again, I apologize for earlier.

[00:21:29] Speaker 01:
Yeah, me too.

[00:21:32] Speaker 01:
Go ahead.

[00:21:33] Speaker 03:
Thank you.

[00:21:34] Speaker 03:
Three points I think deserve response.

[00:21:38] Speaker 03:
Sent back is not

[00:21:41] Speaker 03:
implicitly a statement that what was being sent back was unchanged.

[00:21:48] Speaker 03:
With respect to the last ALU, the Dworken reference, the last one, the one furthest to the left, is in fact sent back totally unchanged.

[00:21:59] Speaker 03:
But sent back does not indicate anything other than transmission from the one computational movement to the next to the next, as is described in Dworken.

[00:22:09] Speaker 03:
And there is agreement.

[00:22:11] Speaker 03:
for the purposes of this appeal, that the description of Dworkin is, in fact, as the board stated it in the final decision.

[00:22:23] Speaker 00:
And then, so even if you were to win on this claim construction debate, you've got the problem that the board made a factual finding of motivation to combine, and we review that with some deference, right?

[00:22:33] Speaker 03:
We would say for the fact that the, as we briefed, the motivation to combine

[00:22:41] Speaker 03:
Substantial evidence does not hold if the wrong law or the wrong interpretation was used on the motivation to combine.

[00:22:49] Speaker 03:
As we've explained in our briefing, we believe they did not do it properly in large measure because the change in the claim, as we've contended to include the unchanged, ended up being taken into the decision on motivation to combine.

[00:23:09] Speaker 03:
That shows up at A15 to 16, A20 to 21 in the final opinion.

[00:23:15] Speaker 03:
And so the one error cascades into the second error.

[00:23:20] Speaker 03:
And once the test is not done properly and the law is not properly applied, then you don't have substantial evidence issues.

[00:23:30] Speaker 03:
Going back to the feedback.

[00:23:34] Speaker 03:
I'm sorry, the motion to combine point, that's essentially our position on the motion to combine.

[00:23:43] Speaker 03:
One last point.

[00:23:46] Speaker 03:
Again, the added new construction, that phrase, that although phrase, the only evidence supporting it is lawyer argument and a reference to something that Dr. Koch said.

[00:24:02] Speaker 03:
that is not responsive to the unchanged issue.

[00:24:06] Speaker 03:
What has effectively happened as a result of the change in claim construction is that the figure two embodiment has been read into the construction contrary to controlling law of certainly this court that a single embodiment alone unless the

[00:24:29] Speaker 03:
spec is clear that that's the only thing that the claims rely upon is not to be read into the claim.

[00:24:38] Speaker 03:
And what's happened here is all we've got is figure two.

[00:24:42] Speaker 01:
All of this... Why isn't it the plain meaning of the claim?

[00:24:45] Speaker 01:
I just don't get it.

[00:24:46] Speaker 01:
The plain meaning claim says the outputs of the multiplication unit, addition unit, and sign inversion unit.

[00:24:52] Speaker 01:
These are not complicated things.

[00:24:53] Speaker 01:
A multiplication unit does write exactly what it says.

[00:24:56] Speaker 01:
It's a tiny little

[00:24:58] Speaker 01:
logic element or circuit for performing multiplication.

[00:25:02] Speaker 01:
So the output of the multiplication unit, addition unit, and the sine and version unit are feedback, the noun.

[00:25:07] Speaker 01:
Those are a thing given to the arithmetic controller.

[00:25:12] Speaker 01:
If you take the output of the multiplication unit and put it through a bunch of additional mathematical processes so that it's not the same number anymore,

[00:25:22] Speaker 01:
then when you give it back to the arithmetic controller, I don't see how it is in fact the output of the multiplication unit.

[00:25:28] Speaker 01:
I don't see how it is the feedback.

[00:25:31] Speaker 03:
We don't know how one ordinary skill in the yard in this context would have understood feedback in the context of Dworkin in particular.

[00:25:45] Speaker 03:
I don't disagree with your honor that the way meaning here, you might say it has to be

[00:25:53] Speaker 03:
the same number.

[00:25:54] Speaker 03:
But if the output is transmitted back through a series of mathematics, and we certainly know from the last AOU in Dworkin, that's coming back unchanged to the controller.

[00:26:07] Speaker 03:
It's what's going on in the first three that are an issue here as to whether they are or are not within the scope of transmitted back.

[00:26:15] Speaker 03:
Transmitted back is this broad.

[00:26:18] Speaker 03:
Transmitted back unchanged is a species of transmitted

[00:26:22] Speaker 03:
Our point here is because of the way the board got this all in play, we did not have fair notice and the opportunity in our reply to respond.

[00:26:33] Speaker 03:
We could have cross-examined their expert witness on this point.

[00:26:36] Speaker 03:
We could have gotten additional information from Dr. Koch.

[00:26:39] Speaker 03:
We also could have looked for additional intrinsic and extrinsic information.

[00:26:43] Speaker 00:
We simply weren't offered the opportunity.

[00:26:44] Speaker 00:
Do you stand by your argument that you actually made an objection at the hearing to this particular issue?

[00:26:49] Speaker 03:
I didn't.

[00:26:51] Speaker 00:
I saw what your objection was, and it didn't say anything about this.

[00:26:54] Speaker 03:
Well, it said many things that they had raised about Dworkin in the argument were inappropriate.

[00:27:02] Speaker 00:
But did not in any way refer to the issue of claim construction?

[00:27:06] Speaker 03:
Not specifically.

[00:27:07] Speaker 03:
That's correct, Your Honor.

[00:27:09] Speaker 00:
OK.

[00:27:11] Speaker 03:
Thank you.

[00:27:11] Speaker 01:
OK.

[00:27:12] Speaker 01:
Thank both counsel for their argument.

[00:27:13] Speaker 01:
The case is taken under submission.

[00:27:15] Speaker 01:
That concludes our proceedings for today.

[00:27:17] Speaker ?:
All rise.