[00:00:00] Speaker 02: Access International Inc. [00:00:02] Speaker 02: 161430, an appeal from a decision of Patent Trial and Appeal Board arising out of a re-examination. [00:00:31] Speaker 02: Mr. Morrison, you want five minutes for rebuttal? [00:00:34] Speaker 00: If needed, Your Honor. [00:00:35] Speaker 00: OK. [00:00:37] Speaker 00: Proceed. [00:00:38] Speaker 00: May it please the Court. [00:00:40] Speaker 00: The PTAB committed a reversible error in this case because the PTAB never really considered one of the key terms in this particular patent, which is the demodulating term that's recited in Claim 1 and what that demodulating term means. [00:00:58] Speaker 00: And in this particular case, the [00:01:01] Speaker 00: That omission led to a faulty invalidity analysis. [00:01:07] Speaker 04: What if we were to conclude that based on reading the board's decision, it is clear to us that the board and the examiner were thinking of the word demodulate as meaning comparing. [00:01:19] Speaker 04: Comparing the tuned signal against the threshold holder signal to see if the tuned signals exceeded the threshold holder signal. [00:01:28] Speaker 00: So I think that would be an incorrect reading of it, because as we noted in our appeal brief, we have different claim sets. [00:01:37] Speaker 00: And these different claim sets sometimes use the word demodulate and sometimes use the word compare. [00:01:43] Speaker 00: And we think that claim differentiation and the specification describe that these two actions are two different actions. [00:01:51] Speaker 04: OK, so that's an argument about [00:01:54] Speaker 04: that demodulate shouldn't mean compare, but that's a different argument than the question of, I can't tell what the meaning of demodulate is in the mind of the board. [00:02:07] Speaker 04: Just take it that the board's decision is clear enough that they understood the term demodulate as it's used in your claim to mean comparing two signals. [00:02:17] Speaker 00: Well, I would fundamentally disagree with that, because I think the board wasn't clear as to what they thought demodulate meant in any way. [00:02:29] Speaker 00: And in fact, I think that them being unclear is what led to these inconsistencies between the appeal decision and the rehearing decision, where they say what I consider to be inconsistent [00:02:44] Speaker 00: things. [00:02:45] Speaker 00: But I understand your question. [00:02:46] Speaker 00: The question is, what if we just interpret and we say demodulate means compare? [00:02:52] Speaker 00: And I don't believe that's a correct interpretation of the word demodulate, not just because of the claim differentiation issue, but the issue that the PTAB really never came out and said that. [00:03:08] Speaker 00: They simply said that we agree with the examiner. [00:03:12] Speaker 00: And what the examiner said was, [00:03:14] Speaker 00: the prior art teaches detecting a signal. [00:03:22] Speaker 00: But that detecting, and then says, okay, so this is demodulation. [00:03:28] Speaker 00: But there's no explanation of why detecting equals demodulation. [00:03:32] Speaker 00: I mean, besides the fact that they're two different words, I think one of our skill in the art would understand that that demodulation process is different from merely detecting something. [00:03:44] Speaker 04: I'm talking about a few different things, but as I understand the board decision, they said, okay, this MAX 975 reference is talking about how this comparator can detect incoming RF signals, and that is then input into the comparator, and then if it exceeds the threshold voltage signal, that's what kicks up the system from low power mode to high speed mode. [00:04:13] Speaker 04: That's how the standby mode operates. [00:04:17] Speaker 04: So now the next question becomes, OK, is comparing two signals properly meeting the limitation of demodulate? [00:04:28] Speaker 00: And the answer to that is no. [00:04:31] Speaker 01: Maybe if we gave it a narrow construction, but if we give the most broad meaning to that construction, then why wouldn't demodulate [00:04:43] Speaker 01: also include detecting the signal? [00:04:46] Speaker 00: Well, I wouldn't say that demodulate doesn't include detecting the signal. [00:04:50] Speaker 00: I would say that demodulate includes more than just detecting the signal, that there's other processes that are involved in demodulation, as that word is normally understood by a person with an ordinary skill in the art. [00:05:04] Speaker 01: But it can include detecting the signal? [00:05:06] Speaker 00: Well, it can include [00:05:10] Speaker 00: it can include detecting some portion of the signal. [00:05:14] Speaker 00: But in our particular case, I don't think detection is in the broadest sense. [00:05:20] Speaker 00: But I don't think in our claim that detecting is part of that. [00:05:27] Speaker 01: That's your argument, but the board found that it did include detecting. [00:05:31] Speaker 01: But detecting was demodulation. [00:05:37] Speaker 00: That's correct. [00:05:38] Speaker 00: But the board found that detecting is equal to demodulation. [00:05:43] Speaker 00: And our argument is that detecting is not equal to demodulation. [00:05:50] Speaker 00: Demodulation, if we make an analogy, includes, for example, three steps, A, B, and C. So the mere performance of step A of that process doesn't mean you disclose steps B and C. And that's our primary argument here. [00:06:08] Speaker 00: It's not that the MAX 975 reference doesn't detect something to go into the high power state. [00:06:17] Speaker 00: It clearly does detect something and essentially operates as a switch. [00:06:24] Speaker 00: And our proposed construction of demodulate is that you have to extract a communicated signal from [00:06:34] Speaker 00: the signal that you receive for it to be a demodulation. [00:06:39] Speaker 02: But doesn't the patent itself say that the demodulator both demodulates and extracts? [00:06:46] Speaker 02: It draws a distinction between the two. [00:06:50] Speaker 02: How can you say one is subsumed within the other? [00:06:56] Speaker 02: Demodulator 44 demodulates the received signal 40 and extracts the communicated signal in the form of a square wave or digital bit stream for processing by tag processor 38. [00:07:06] Speaker 00: No, I think that is what the demodulator does. [00:07:10] Speaker 00: That is the steps of the demodulation process. [00:07:13] Speaker 04: But to follow up on Judge O'Malley's point, that sentence in reference to demodulator 44 is using two verbs. [00:07:21] Speaker 04: One is the verb demodulates. [00:07:23] Speaker 04: And then there's a separate verb called extracts. [00:07:27] Speaker 04: And so demodulating and extracting, whatever demodulating is, it sounds like it's a separate independent action from extracting. [00:07:36] Speaker 04: So therefore, I don't know why, at least the way the term demodulated is being used in this pattern, why demodulates necessarily includes extracting information from the modulated signal. [00:07:49] Speaker 00: Well, I think that that sentence may be inartfully written there, but I think that what we have to look at is what does demodulate mean to one of ordinary skill in the art? [00:08:01] Speaker 00: And while it says it demodulates and extracts, I think that one of ordinary skill in the art would understand that demodulation includes both those actions. [00:08:10] Speaker 04: Shouldn't we also try to figure out what the term comparator means to one of ordinary skill in the art? [00:08:15] Speaker 04: The claim term says comparator. [00:08:18] Speaker 04: you know, operable to demodulate. [00:08:21] Speaker 04: And so a comparator, you know, it's discussed, it's disclosed, it's illustrated in your patent, it makes it pretty crystal clear there's two inputs, the tune signal, the voltage threshold signal, and the comparator is comparing those two signals to issue some kind of digital output. [00:08:41] Speaker 00: That would be correct. [00:08:43] Speaker 00: And I'm not quite sure what your question is. [00:08:46] Speaker 04: I guess my point is that the comparator in your patent is comparing two signals. [00:08:55] Speaker 04: That's what it's doing. [00:08:56] Speaker 00: It's comparing two signals to extract a signal. [00:08:59] Speaker 04: And then when we look at this patent specification, it talks about how the comparator demodulates by comparing [00:09:10] Speaker 04: the tuned signal to the threshold voltage signal, i.e., there it's explaining to us how the inventor understands the term demodulates. [00:09:21] Speaker 00: Right, and I think the point is that, well, [00:09:26] Speaker 00: what happens technically is that the demodulator receives the signal and the demodulator compares that signal to the threshold voltage and this is where the comparison aspect comes into it and then it outputs a digital output and that digital output could be a one or a zero and also that demodulated signal when it first is demodulated may not be a completely clean signal and so the whole purpose of this comparison is to end up with a [00:09:55] Speaker 00: with a clean square wave that the processor, which is shown as another component, can then operate on that clean signal. [00:10:03] Speaker 00: Right, that's the extraction step, right? [00:10:05] Speaker 00: Excuse me? [00:10:05] Speaker 02: That's the extraction step, right? [00:10:07] Speaker 00: No, the extraction step is the processor, I would say, processes the clean signal that's been extracted from the carrier wave by the comparator. [00:10:23] Speaker 00: Whereas what happens in the prior ARD is that low power comparator, it merely operates as a switch. [00:10:32] Speaker 00: It doesn't take that signal, extract any information from it, and send it off to another component to be processed. [00:10:42] Speaker 00: What it does is it turns on that high power comparator, which is the device that does the demodulation. [00:10:53] Speaker 00: And so the reason that we focused on claim three in this particular appeal is that I think it's pretty clear, and I believe the director has conceded this point, that the demodulation has to happen with less than four microamps being used by the comparator. [00:11:19] Speaker 00: And in this particular case, [00:11:21] Speaker 00: The prior art never demodulates that signal with using less than four microamps with the low power mode. [00:11:31] Speaker 00: It's only the high power mode that does that. [00:11:33] Speaker 01: But it detects below that level, right? [00:11:37] Speaker 01: It detects at three microamps. [00:11:40] Speaker 00: It detects for the purposes of saying there is a signal there, so I'm going to turn on the high power thing to demodulate that signal. [00:11:51] Speaker 00: It merely says, is there a signal there, or is there not a signal? [00:11:55] Speaker 00: And in fact, as we describe in the patent, this is really the issue with the prior art. [00:12:00] Speaker 01: If we decide that detecting the signal is modulation, then you would lose on this particular issue. [00:12:11] Speaker 00: I suppose if you decide anything in a particular way, that I could lose on the issue. [00:12:16] Speaker 00: But I think the issue is that the wrecker, I think, makes it pretty clear that detecting is not demodulation. [00:12:25] Speaker 00: And I would point to the prior art in and of itself, because it doesn't say we demodulate with the low power, and then we turn on the high power and further demodulate. [00:12:35] Speaker 00: What it says is we detect, and then we turn on the high power [00:12:40] Speaker 00: a comparator to do the demodulation, which I would say there's no demodulation done by that low-power comparator. [00:12:56] Speaker 00: I think the other issue that I just wanted to bring up briefly is that... You are in your rebuttal if you want to say this. [00:13:02] Speaker 00: Okay. [00:13:02] Speaker 00: Yeah, I will. [00:13:03] Speaker 00: Okay. [00:13:04] Speaker 00: I'll hold off then. [00:13:04] Speaker ?: Thank you. [00:13:13] Speaker 03: May I please the court? [00:13:16] Speaker 03: I think it would be helpful to start by talking about what demodulation means in the context of the 953 path. [00:13:23] Speaker 03: What we have is an RFID tag. [00:13:24] Speaker 02: I think that's what we are talking about, right? [00:13:26] Speaker 03: Certainly, Your Honor. [00:13:28] Speaker 03: But maybe at a higher level, what we have is an incoming analog signal. [00:13:33] Speaker 03: And we want to convert that into a digital bit string, a string of ones and zeros that may represent information. [00:13:39] Speaker 03: And specifically, part of the claim that parties have focused on [00:13:43] Speaker 03: Incoming signals are typically modulated, right? [00:13:46] Speaker 04: Correct. [00:13:47] Speaker 04: And this is very much like... And then you have to demodulate that in order to work with the information that's being carried on that modulated signal. [00:13:56] Speaker 03: That's correct, Judge Shen. [00:13:58] Speaker 03: And the patent, the 953 patent, describes a single process by which you do this demodulation. [00:14:04] Speaker 03: It's in the abstract, it's in the summary of the invention, it's in column four, it's also in column seven. [00:14:10] Speaker 03: you have exactly what your honor Judge Chen described earlier. [00:14:13] Speaker 03: You have two inputs, you have the received signal, and you have a threshold voltage signal that remains constant. [00:14:20] Speaker 03: The comparator compares those two, and it generates a digital output. [00:14:24] Speaker 03: So that's either a one or a zero. [00:14:27] Speaker 03: In the detection mode that counsel is referring to, this is exactly the same process. [00:14:32] Speaker 03: And I would refer your honors to pages 26 and 27 of our brief, because counsel. [00:14:39] Speaker 02: comparator and you have a demodulator, why would we assume that they do exactly the same thing? [00:14:46] Speaker 03: Well, to be clear, Your Honor, the comparator is the structure that performs the demodulation step. [00:14:52] Speaker 03: And it's important to remember, this is an apparatus claim, not a method claim. [00:14:56] Speaker 03: And the construction below of demodulate, operable to demodulate, was having the capability of demodulating. [00:15:05] Speaker 03: And that's because this is a structural element in an apparatus claim. [00:15:09] Speaker 03: And opposing counsel has not identified any structural distinction that would support a difference between the MAX 975 comparator and the comparator that's claimed. [00:15:22] Speaker 03: Now, the remarkable thing is that the MAX 975 comparator is admitted to be precisely the same comparator that's described in the 953 patent. [00:15:31] Speaker 03: The primary embodiment. [00:15:33] Speaker 02: So there's obviously some belief that it's not exactly the same thing. [00:15:37] Speaker 02: I mean, they describe it in the patent and say, we have to modify it. [00:15:42] Speaker 03: So they say, modify, really what they're doing is configuring. [00:15:46] Speaker 03: And we pointed out in a footnote in our brief exactly how that configuration is disclosed in the MAX 975 reference on Appendix 1220. [00:15:55] Speaker 03: It describes exactly the same configuration. [00:15:59] Speaker 03: You drive LP high or low to be in the high power mode or the low power. [00:16:05] Speaker 03: And there was some discussion in the reply brief about disabling auto standby mode. [00:16:10] Speaker 03: That is also disclosed in the Max 975 reference, but it's also irrelevant because when you're in the low power mode, you don't use auto standby according to the Maxim reference. [00:16:20] Speaker 03: That's only when you're in high power mode. [00:16:22] Speaker 03: But again, we're talking about a structural limitation. [00:16:25] Speaker 03: We're talking about exactly the same Maxim 975 comparator. [00:16:30] Speaker 03: That much is admitted. [00:16:31] Speaker 03: And that comparator has the capability [00:16:34] Speaker 03: of comparing two incoming signals, generating a digital output. [00:16:38] Speaker 03: And that's all that's required. [00:16:40] Speaker 03: Now whether you do that once and then kick it into a different mode to perhaps where you're more efficient, or you can demodulate faster with a better sampling rate, or whether you do it only once, the structure is the same, the capability is the same. [00:16:55] Speaker 03: It seems to be that what Access is arguing is that in the MAX 975 reference, it doesn't tell you [00:17:03] Speaker 03: to stay in the low power mode and keep performing that operation over and over to generate the entire string of ones and zeros. [00:17:11] Speaker 03: Max975 says what you can do is you can kick it into the high power mode. [00:17:16] Speaker 03: But what is really happening here is that Access took a piece of prior art that was more advanced than what they were seeking and disabled, in the words of the patent, 75% of the functionality and then claimed what was left. [00:17:30] Speaker 03: It's very much like having a 10-speed bicycle in the prior arc and then trying to claim a bicycle that's capable of being ridden only in first gear. [00:17:40] Speaker 03: That's essentially what's happened in this case. [00:17:43] Speaker 03: I have a question about this 975 reference, this maximum 975 reference. [00:17:48] Speaker 04: It discloses three different modes, right? [00:17:51] Speaker 04: There's the auto-standby mode, which the board relied on. [00:17:54] Speaker 04: We're debating over. [00:17:55] Speaker 04: And it also separately disclosed the high-speed mode [00:18:00] Speaker 04: And then a low-power mode. [00:18:03] Speaker 04: And I'm just wondering, I mean, for me, A1220, the disclosure of the low-power mode seems like an even more natural fit for a 102 rejection. [00:18:16] Speaker 04: So I'm just wondering how come, is there a reason why low, am I missing something about that disclosure of the low-power mode? [00:18:26] Speaker 03: No, Your Honor. [00:18:27] Speaker 03: And in fact, the examiner relied on the low power mode to make the 102B rejection. [00:18:32] Speaker 03: And that's found in the final rejection at Appendix 673. [00:18:36] Speaker 03: It was repeated in the examiner answer at Appendix 925 to 926. [00:18:41] Speaker 03: And it was expressly adopted by the board, if not at Appendix 20, then certainly at Appendix 4 to 5 in the rehearing decision. [00:18:49] Speaker 03: And specifically, the examiner said that he was not relying on the high power mode, but expressly relying on the low power mode [00:18:56] Speaker 03: to meet the demodulation, and specifically that was because the active detection was a demodulation. [00:19:03] Speaker 03: And then in the context of the Toltec circuit, which is later on in the Maxim circuit, there it goes into the high-power mode for ongoing demodulation, but that relates to the fact that certain types of signals may require more power. [00:19:19] Speaker 03: And the claim has none of these limitations. [00:19:21] Speaker 03: The claim does not require what MAX 975 describes as [00:19:26] Speaker 03: a 600 kilohertz signal on a 2.4 gigahertz carrier signal or any other limitations on the specific type of incoming radio frequency signal. [00:19:38] Speaker 03: The claims, in fact, vary broad. [00:19:42] Speaker 03: I'd also like to address this claim differentiation point that's been made by Access in terms of demodulate versus compare. [00:19:49] Speaker 03: I'd like to clarify, we're not saying that demodulate just means compare. [00:19:53] Speaker 03: We're saying the broadest reasonable interpretation of demodulate must mean exactly what's described in the abstract and elsewhere, which is A, comparing the received signal to the threshold voltage signal, and B, generating a digital output. [00:20:09] Speaker 03: Some of the claims say operable to demodulate based on that comparison. [00:20:14] Speaker 03: Some of the claims, claim 18, for example, say operable to compare as well as operable to generate the digital output. [00:20:22] Speaker 03: But in any case, we're talking about the same operation. [00:20:25] Speaker 03: And critically, that's the same operation that the patent spec itself describes for detecting a signal. [00:20:32] Speaker 03: And again, this goes back to the chart that we have on pages 26 and 27 of the red brief. [00:20:36] Speaker 03: If you look at column seven, which reads in connection with figure four of the 953 patent, patentee describes how the signal is detected and demodulated, for that matter, and it is [00:20:50] Speaker 03: precisely the same process. [00:20:51] Speaker 03: There's absolutely no distinction between them. [00:20:54] Speaker 03: They certainly use the same underlying hardware. [00:20:56] Speaker 03: Here, that's the MAX 975. [00:20:58] Speaker 03: It's admitted prior art. [00:21:00] Speaker 03: The configuration describing the patent is also disclosed in the prior art. [00:21:06] Speaker 03: And unless there are any other questions, we would ask that you affirm. [00:21:12] Speaker 02: OK, thank you. [00:21:15] Speaker 02: About two and a half minutes for rebuttal. [00:21:20] Speaker 00: So just a couple of issues is that what the director has said is that the MAX 975 does not tell you how to demodulate with the low power [00:21:33] Speaker 00: a signal, it tells you that you can detect with the low power and you can then demodulate with the high power. [00:21:39] Speaker 00: And I think this is exactly the crux of the issue here is that, is that detection a demodulation? [00:21:45] Speaker 00: And we spent a lot of time on this, but I don't know that there's any other issue here beside that point. [00:21:52] Speaker 00: And we're looking at the prior art here, right? [00:21:56] Speaker 00: And the prior art is the MAX 975 reference. [00:21:59] Speaker 00: And there's nothing in the MAX 975 reference that says, [00:22:03] Speaker 00: You can demodulate using the low power op amp. [00:22:07] Speaker 00: What it says is you can compare, you can detect, but once that happens, it turns on the high power. [00:22:14] Speaker 00: There's nothing else that happens in the circuit of the MAX-975 reference. [00:22:18] Speaker 00: It doesn't say you can leave the low power on and keep on demodulating or keep on comparing that signal in the low power. [00:22:26] Speaker 00: It says once you detect the presence of a signal, you have to go to the high power. [00:22:31] Speaker 00: it automatically kicks in the high power mode. [00:22:33] Speaker 00: So the idea that we are just merely making configuration changes to that device is really not correct. [00:22:42] Speaker 00: We are telling you specifically, in calling five of that patent, how to make this MAX-975 component operate within our circuit in the way that we want it to operate, and we made wiring changes, and we described those in detail, [00:22:59] Speaker 00: as to how you make those wiring changes, so it operates the way we say it needs to operate to perform this functionality. [00:23:07] Speaker 02: Thank you. [00:23:10] Speaker 02: All right, the cases will be submitted.