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

[00:00:03] Speaker 04:
We'll be hearing four arguments this morning.

[00:00:08] Speaker 04:
The first one, in Reg Cree, Incorporated, appeal number 15-1365.

[00:00:13] Speaker 04:
Mr. Lee, whenever you're ready, you're reserving three minutes of rebuttal, right?

[00:00:19] Speaker 04:
That's correct, Your Honor.

[00:00:20] Speaker 04:
Thank you.

[00:00:21] Speaker 04:
And if by chance, due to a curious bench, we ask you a lot of questions, I promise you we'll restore your rebuttal time.

[00:00:30] Speaker 04:
Thank you.

[00:00:32] Speaker 01:
May it please the court?

[00:00:33] Speaker 01:
My name is Bill Lee, and together with my partner, Cindy Vreeland, I represent Cree.

[00:00:38] Speaker 01:
I would like to turn to what we believe is the critical portion of the board's decision at pages A29 to A32.

[00:00:44] Speaker 01:
There the board, on five occasions, predicates this decision on the proposition, and I quote, that there were two known approaches to producing white light from LED.

[00:01:00] Speaker 01:
And I would like to specifically draw the court's attention to one specific use of that proposition, which is at A 31 to 32.

[00:01:09] Speaker 01:
And there, the board defines the person of ordinary skill in the arc, and defines the person of ordinary skill in the arc as the artisan of ordinary skill who knew that there were two, and again I quote, there were two known approaches to create white light from an LED.

[00:01:29] Speaker 01:
That is critical.

[00:01:30] Speaker 01:
All five iterations are critical, but this one we think is specifically critical because it is the definition of what one of Ordinary Scale and the Art knew.

[00:01:40] Speaker 01:
We submit that there was not substantial evidence to support that second approach finding.

[00:01:46] Speaker 01:
In fact, we suggest and believe that there is no competent evidence to support that specific finding.

[00:01:54] Speaker 04:
The PTO...

[00:01:55] Speaker 04:
board need that finding in order to sustain this rejection?

[00:01:59] Speaker 04:
I ask that because, of course, this section of the opinion is focused on doing a treatment of your declarations that you submitted.

[00:02:09] Speaker 04:
And then the first 28 pages could arguably be read as reviewing and ultimately affirming the examiner's, I'll call, prima facie rejection of 103 based on the

[00:02:24] Speaker 04:
three references.

[00:02:25] Speaker 01:
Your Honor, I don't think so because for two reasons.

[00:02:29] Speaker 01:
The first is the structure of the board's opinion is, as you say, there is the first 20 or so opinions where they articulate the reasons they say they are affirming the examiner's decision.

[00:02:39] Speaker 01:
The five occasions that I have identified are before they reach the question of addressing Cree's arguments.

[00:02:47] Speaker 01:
They are defining the person of ordination skill in the

[00:02:50] Speaker 01:
they're defining what is known by that person, and they're using that to define or to provide a reason to combine the references.

[00:02:58] Speaker 01:
And that's why the board itself, the PTO itself in the brief before you, focuses on these because this was a lynchpin.

[00:03:06] Speaker 01:
Now there is, to be sure, an alternative argument that's being made to you now that I'm going to come to promptly, but it's not one that the examiner relied upon, and the examiners

[00:03:18] Speaker 01:
predicate was this, the one I've just articulated.

[00:03:21] Speaker 01:
It was the board's premise.

[00:03:24] Speaker 01:
And we're in this circumstance now today.

[00:03:27] Speaker 01:
The PTO now has conceded that there's no prior art, none at all of record, that would support the proposition that it was a known approach to down convert from an LED to obtain white light.

[00:03:40] Speaker 04:
That would be a Section 102, though, right?

[00:03:42] Speaker 04:
That would be an anticipation reference.

[00:03:44] Speaker 01:
Well, actually, Your Honor,

[00:03:46] Speaker 01:
But here's what's actually happened.

[00:03:47] Speaker 01:
By defining the person aboard Mexico in the art, by saying that there were two known approaches, the second known approach is exactly what's in the claim.

[00:03:55] Speaker 01:
Basically what the examiner and the board has said is the invention was known.

[00:04:00] Speaker 01:
And then they found three prior references to say this is how you would implement it.

[00:04:04] Speaker 00:
I guess it, you know, I'm sorry.

[00:04:06] Speaker 00:
Go ahead.

[00:04:06] Speaker 00:
You go ahead.

[00:04:07] Speaker 00:
It struck me that the use of the term known may have been a little loose.

[00:04:15] Speaker 00:
I take it from what Stevenson, not Stevenson, Stringfellow was saying, that the gist of his characterization of where the art was, was that people would not have used this approach.

[00:04:31] Speaker 00:
There was nobody using it in the real world because of the lack of efficiency and the low power and so forth.

[00:04:38] Speaker 00:
Not saying that it had never occurred to anybody that you could make

[00:04:45] Speaker 00:
white light or any other kind of light, which could be combined to make white light, from an LED.

[00:04:55] Speaker 00:
Now, if that's true, then maybe the word known, which is typically used as a term of work, is maybe an overstatement.

[00:05:03] Speaker 00:
But it didn't seem to me to get in the way of the basic analysis that the board employed, which is to say that when you take Stevenson,

[00:05:13] Speaker 00:
You've gotten everything you need except to go from primary colors to white light, and that's trivial.

[00:05:20] Speaker 00:
Why isn't that a reasonable way to look at this case?

[00:05:23] Speaker 01:
You're right.

[00:05:24] Speaker 01:
Three answers.

[00:05:25] Speaker 01:
The first answer is in the PTO's brief at page 24.

[00:05:28] Speaker 01:
And I'd like to quote to you, because it's not a question of known being sort of an introvert use at one point in the examiner's decision.

[00:05:37] Speaker 01:
It was used in the examiner's decision.

[00:05:38] Speaker 01:
It was used in the board's decision.

[00:05:40] Speaker 01:
And after conceding,

[00:05:42] Speaker 01:
that there's no prior art that identifies that known approach.

[00:05:45] Speaker 01:
And they never contend that Stevenson does.

[00:05:48] Speaker 00:
In fact, Stevenson comes within a millimeter of being the invention, does it not?

[00:05:54] Speaker 00:
Well, I mean, in other words, all that's missing that I can see from Stevenson is one sentence in which Stevenson could have said, of course, as everybody knows, having said that there were primary, you could get all primary colors, as everyone knows, you could mix the primary colors

[00:06:09] Speaker 00:
by using a group of phosphors, and you get white light.

[00:06:14] Speaker 00:
Isn't that the only thing that's missing?

[00:06:15] Speaker 01:
No.

[00:06:16] Speaker 01:
Actually, Your Honor, the last portion is conflating the two approaches.

[00:06:22] Speaker 01:
Without a doubt, Stevenson refers to producing primary colors.

[00:06:27] Speaker 01:
It also says the only colors that are going to be produced are those that are visible to the human eye.

[00:06:32] Speaker 01:
That's not white light.

[00:06:34] Speaker 01:
White light is fundamentally different because it's a different spectrum.

[00:06:38] Speaker 01:
It's generated in a different way.

[00:06:39] Speaker 01:
It's used for different purposes.

[00:06:41] Speaker 01:
And it requires different power.

[00:06:43] Speaker 01:
All of that is in the three declarations.

[00:06:46] Speaker 01:
The mixing of the three, the triplet approach.

[00:06:48] Speaker 00:
I'm not talking about mixing in the triplet sense.

[00:06:50] Speaker 00:
I'm talking about mixing the phosphors to get white light from a blue LED.

[00:06:56] Speaker 01:
Right.

[00:06:56] Speaker 01:
Your Honor, if you have a violet LED in Stevenson,

[00:07:02] Speaker 01:
You have, which you've just articulated, but I think all three of the experts said white light is fundamentally different than the primary colors.

[00:07:10] Speaker 01:
And then you have 20 years, 20 years where, according to the PTO, people really want to have white light produced by LEDs.

[00:07:20] Speaker 01:
And Stevenson's out there, and nothing happens.

[00:07:24] Speaker 01:
And that's the reason.

[00:07:26] Speaker 01:
There's a reason that this known approach

[00:07:29] Speaker 01:
Because it wasn't efficient.

[00:07:31] Speaker 00:
They didn't have a powerful enough LED until Nakamura came along, right?

[00:07:35] Speaker 01:
Your Honor, I might even, no one has even, there's not even any evidence to say that Nakamura was a powerful enough LED.

[00:07:41] Speaker 01:
The Pinal laser was 100 times more powerful than the LED of Nakamura.

[00:07:50] Speaker 01:
Nakamura was still a weak LED until people could figure out what these inventors figured out.

[00:07:57] Speaker 02:
Twenty years after Steve...

[00:07:59] Speaker 01:
Pardon?

[00:08:00] Speaker 02:
Weak in what respect?

[00:08:02] Speaker 01:
Weak in terms of power.

[00:08:04] Speaker 01:
And power becomes important.

[00:08:05] Speaker 01:
It goes to Judge Price.

[00:08:06] Speaker 02:
So Nakamura, when it says in its patent that I'm getting a more powerful LED, that wasn't the truth.

[00:08:13] Speaker 01:
It was more powerful than other LEDs, but to compare it to... More powerful than prior LED, blue LED.

[00:08:22] Speaker 01:
It was more powerful than the Stevenson LED, the violet LED, for sure.

[00:08:25] Speaker 02:
Violet, but we're talking blue LED, not violet.

[00:08:28] Speaker 02:
The question is would one of ordinary scale have been motivated to use a blue LED as the raw material to push through down conversion to get white light, right?

[00:08:42] Speaker 02:
If you look at blue LED as a raw material like a form of gasoline, it's either low octane, high octane, whatever.

[00:08:53] Speaker 02:
The way I read the record was that no one would have been using a blue LED as input material for down conversion if it didn't have enough octane.

[00:09:02] Speaker 02:
Low power in, low power out.

[00:09:05] Speaker 02:
And there comes Nakamura that has high test.

[00:09:08] Speaker 02:
They've got, you know, premium gasoline.

[00:09:11] Speaker 02:
Premium blue LED.

[00:09:13] Speaker 01:
And what the record demonstrated without any dispute is when Nakamura invented his blue LED, what did the field do?

[00:09:22] Speaker 01:
It said,

[00:09:23] Speaker 01:
Now we finally have all three primary colors.

[00:09:25] Speaker 01:
We're going to employ the triplet or purple.

[00:09:27] Speaker 02:
Well, they continued using it, but I don't know why.

[00:09:30] Speaker 01:
Well, actually the record demonstrates why.

[00:09:31] Speaker 01:
It's because down conversion, right, requires significant power, results in significant power dissipation.

[00:09:40] Speaker 01:
White light requires, particularly for illumination purposes compared to the primary colors, requires greater power.

[00:09:47] Speaker 01:
By definition, and this is in the record,

[00:09:49] Speaker 01:
The process of down conversion is power dissipating.

[00:09:53] Speaker 01:
The triplet approach is not.

[00:09:55] Speaker 01:
So once they had the three primary colors, they turned to the triplet approach.

[00:10:00] Speaker 01:
And there is no indication that anybody turned after Nakamura to the down conversion approach.

[00:10:04] Speaker 02:
Did anyone ever come around to the process that your planet owns?

[00:10:08] Speaker 02:
Why did it become commercially successful?

[00:10:10] Speaker 02:
People used it?

[00:10:11] Speaker 02:
Finally the light bulb went off and somebody said, oh my goodness.

[00:10:15] Speaker 01:
Your Honor, actually what happened is the triplet approach has some challenges as the patent itself says.

[00:10:21] Speaker 01:
Now that's the only thing in the record before the date of the application that describes the problem of the triplet approach.

[00:10:29] Speaker 01:
But you can imagine what it is.

[00:10:30] Speaker 01:
It has three different LEDs.

[00:10:31] Speaker 01:
It's going to require the combination.

[00:10:33] Speaker 01:
It requires three different contacts.

[00:10:36] Speaker 01:
The blue LED to white light requires one.

[00:10:40] Speaker 01:
It's simpler if you can make it work.

[00:10:42] Speaker 02:
Is this expensive equipment that you use?

[00:10:46] Speaker 02:
I mean, would you want to make certain that you'd fully depreciated your equipment before you stopped using it to use something else?

[00:10:52] Speaker 01:
No, that's not what happened, Your Honor.

[00:10:54] Speaker 00:
Well, Nakamura was 1993, is that right?

[00:10:57] Speaker 00:
Yes, I recall.

[00:10:58] Speaker 00:
And your patent was like 1995, right?

[00:11:01] Speaker 01:
Date of invention, 95.

[00:11:03] Speaker 01:
Date of application, 97.

[00:11:04] Speaker 00:
Right.

[00:11:05] Speaker 00:
So it's not as if people were sitting around for eons after Nakamura without coming up with this as a commercial product.

[00:11:14] Speaker 00:
I mean, I'm not seeing that your argument that nobody went to this system after Nakamura has much force if Nakamura came so shortly before the actual invention.

[00:11:26] Speaker 01:
Well, Your Honor, I think two things.

[00:11:28] Speaker 01:
Whereas it would be one thing if you were identifying folks other than the inventors who came to the invention.

[00:11:35] Speaker 01:
But the record is completely devoid of anybody else turning to it.

[00:11:38] Speaker 01:
But more importantly.

[00:11:39] Speaker 04:
What about press releases from, I don't know, Fraunhofer or some other people who apparently pretty close in time were also coming up with this white LED based on the Nakamura blue LED?

[00:11:52] Speaker 01:
Four or five years after Nakamura, Your Honor.

[00:11:58] Speaker 04:
Your team came up with it two years after.

[00:12:00] Speaker 04:
They came up with it maybe four or five years after.

[00:12:04] Speaker 04:
It's not so clear to me that this whole time lag question is a driver towards patentability.

[00:12:13] Speaker 01:
Right, Your Honor.

[00:12:14] Speaker 01:
I think this is, to go back to where I started, and I think this is why this is important, that we collectively could sit around and look at the reference and decide how we might put them together.

[00:12:28] Speaker 01:
I think we could look at Stevenson.

[00:12:30] Speaker 01:
But I think the record is what we have to look at.

[00:12:33] Speaker 01:
And the record on Stevenson, if you take the three experts, including Dr. Stringfellow, each of them said specifically that it was not known.

[00:12:44] Speaker 01:
A known approach was not to download from an LED to obtain white light.

[00:12:50] Speaker 01:
And I think we have to- That's well and good.

[00:12:53] Speaker 04:
But the problem with the declarations, or at least Stringfellow and

[00:12:58] Speaker 04:
red wing is I didn't see them ever specifically take on why it would or would not be obvious to use the Nakamura blue LED in the Stevenson process once the Nakamura blue LED came on the scene.

[00:13:14] Speaker 04:
What I saw was an extended devotion to just looking at the references in isolation and then pointing out all the missing claim elements from each of the individual references

[00:13:28] Speaker 04:
and then talking about how the triplet approach was the standard process.

[00:13:34] Speaker 04:
But I didn't see any discussion in the declarations showing here's why the RGB triplet approach is better than thinking about down converting the Nakamura blue LED light.

[00:13:49] Speaker 01:
Well, actually, Your Honor, let me say two things.

[00:13:52] Speaker 01:
First, it's in there.

[00:13:53] Speaker 01:
And they actually talk about the triplet approach

[00:13:55] Speaker 01:
The patent itself describes the problems of the triplet approach and why it's more difficult to implement, why it's more complicated, while you're dealing with three different spectral wavelengths.

[00:14:06] Speaker 01:
So it's actually in the patent itself, but it's also in the Wetzel, Red Wing, and Stringfellow declarations.

[00:14:12] Speaker 01:
To take Red Wing as one of the people your honor mentioned, the quote is, no person of ordinary skill in the art would have used a down conversion process to create white light.

[00:14:24] Speaker 04:
And then... But wasn't Red Wing talking about... That was in the context of the Stevenson reference, which of course had those very low, low power blue LEDs in question.

[00:14:37] Speaker 04:
Yes, Your Honor.

[00:14:38] Speaker 04:
It wasn't talking about

[00:14:39] Speaker 04:
in the face of the game-changing, Nobel Prize-winning blue LED invented by Nakamura.

[00:14:46] Speaker 00:
And Nakamura was several orders of magnitude stronger than Stevenson, right?

[00:14:51] Speaker 01:
And ten magnitudes less than Pinot.

[00:14:53] Speaker 00:
Right, but unless you want a searchlight, I mean, there's going to be some utility, presumably, for lower light.

[00:14:59] Speaker 02:
I don't think, I mean, this is... What is the measure of magnitude between Stevenson and Nakamura?

[00:15:06] Speaker 02:
Isn't it 3,000 times?

[00:15:08] Speaker 01:
It's several orders of magnitude.

[00:15:10] Speaker 01:
It's orders of magnitude greater.

[00:15:11] Speaker 01:
It's like 0.002 up to 1 milliwatt.

[00:15:16] Speaker 02:
And then you go from 1 milliwatt... And you multiply that and that's like 3,200 times, something like that.

[00:15:22] Speaker 02:
That's pretty big.

[00:15:24] Speaker 01:
Yeah.

[00:15:24] Speaker 01:
We're not suggesting that it's not.

[00:15:27] Speaker 01:
But what we are suggesting is this.

[00:15:29] Speaker 01:
There is a record before us, and there are conclusions that are made.

[00:15:33] Speaker 02:
If you look at the examiner's rejection at page 1233 in the record, there is language in there that seemed to me to be pertinent.

[00:15:46] Speaker 02:
Maybe it's not.

[00:15:47] Speaker 02:
If you could explain it.

[00:15:48] Speaker 02:
I don't know if you have it or not.

[00:15:49] Speaker 02:
Make your way at 1233.

[00:15:52] Speaker 02:
The advantage or expected beneficial result by the combination.

[00:15:57] Speaker 02:
They're talking about Nakamura's LED is more powerful than Stevens, provide more photons, down converted, overall better light emission, as Wetzel, Redwing, Stringfellow, Bretz, and Tischler all readily acknowledge.

[00:16:12] Speaker 02:
Therefore, there's an advantage or a beneficial result in using the high powered, brighter Nakamura.

[00:16:18] Speaker 02:
What's wrong with that rationale?

[00:16:21] Speaker 01:
There are at least several things wrong with it.

[00:16:24] Speaker 01:
The first thing, well,

[00:16:25] Speaker 01:
There are several things that I don't think would sustain the decision on appeal.

[00:16:28] Speaker 01:
I know I might... But is this true?

[00:16:30] Speaker 02:
The examiner is telling the truth when he says that wet-celled red-winged string-veloboretsin tissue readily acknowledges the proposition that the examiner just stated.

[00:16:41] Speaker 01:
Yeah, no, it's not true because the second half of it is not something that they acknowledge, specifically brighter emissions for phosphors.

[00:16:48] Speaker 01:
They didn't say that.

[00:16:49] Speaker 01:
I mean, this examiner, I mean, to go to this

[00:16:52] Speaker 01:
The second point, and I'll make it very quickly, part of the problem going to these examiners' answer, and the PTO's reliance upon it, the backup argument is you could look at PINAL and it would teach you to down convert from any light source to white light.

[00:17:08] Speaker 02:
Talking about wavelength.

[00:17:11] Speaker 01:
Well, they actually say any light source is what the PTO says to you.

[00:17:16] Speaker 02:
Sure.

[00:17:18] Speaker 01:
And Stevenson would have been within that wavelength.

[00:17:21] Speaker 01:
The violet light would have been about 4,100.

[00:17:23] Speaker 02:
So is that incorrect?

[00:17:26] Speaker 02:
Is it correct to read Stevenson to say that Stevenson's saying, well, any raw material source you're using that has this particular wavelength will work in the process?

[00:17:36] Speaker 01:
Yes.

[00:17:37] Speaker 01:
And it's actually inaccurate.

[00:17:40] Speaker 02:
It's inaccurate?

[00:17:41] Speaker 01:
They're actually attributing that to PINAL, not to Stevenson.

[00:17:46] Speaker 01:
that the PTO today is attributing the concept of any light source will do to PINAL.

[00:17:53] Speaker 02:
Any light source in a particular length?

[00:17:56] Speaker 01:
Any light source for a particular wavelength.

[00:17:57] Speaker 01:
And there are two problems with that.

[00:17:59] Speaker 01:
The first is at A79, which is PINAL itself, which specifically says it's using a laser light source.

[00:18:07] Speaker 01:
There's a fundamental substantive problem with it.

[00:18:10] Speaker 01:
There's also a procedural infirmity, which is

[00:18:14] Speaker 01:
We're in a circumstance now where the examiner has a long answer.

[00:18:19] Speaker 01:
The PTO adopts, the board adopts certain portions of that to make its conclusions.

[00:18:25] Speaker 01:
And then the PTO before you now relies upon portions that were not adopted by the board to make that argument.

[00:18:31] Speaker 00:
Well, if your argument is that the laser and the LED are fundamentally different in the sense that you don't necessarily have down conversion operating in essentially the same way,

[00:18:43] Speaker 00:
contrary to the findings of the examiner, that the downconversion process is essentially responsive to wavelength and power and nothing else.

[00:18:52] Speaker 00:
That seems to be inconsistent with, for example, the passages in the 175 patent that talk about a variety of sources, solid state devices that can be used, including both LEDs and lasers, with this scheme.

[00:19:09] Speaker 01:
Your honor, I think that the answer to that is, you identified two of the conditions, or two of the inputs, let's call it.

[00:19:19] Speaker 01:
One is power, one is wavelength, but the third is phosphors.

[00:19:23] Speaker 01:
And the portion of, without a doubt, in the 175-pent, it says that there are a variety of phosphors that could be used to achieve this purpose.

[00:19:33] Speaker 01:
But it is the first two that makes them fundamentally different.

[00:19:39] Speaker 01:
The phosphors are going to be different, but to take just, and I'll make this point, and then I'll say whatever time I have left.

[00:19:46] Speaker 00:
So what is the question?

[00:19:48] Speaker 00:
The phosphors may be different, but we have a very well, as far as I can tell from the record, a very mature art of picking phosphors for tuning to particular wavelengths of emission.

[00:20:03] Speaker 00:
And I'm hard pressed to see why, particularly given Pinal and

[00:20:08] Speaker 00:
In fact, given the reference in the 175 patent to the phosphor mix, I'm hard pressed to see why it would matter whether it's a laser or an LED as the power source.

[00:20:22] Speaker 01:
Your Honor, I would set aside the 175 because I don't think it's correct to use 175 as a mapping.

[00:20:29] Speaker 00:
Except the 175 is talking about off-the-shelf phosphors.

[00:20:33] Speaker 01:
For phosphors, we don't disagree, but that's not the basis of

[00:20:39] Speaker 01:
the board's finding.

[00:20:40] Speaker 04:
But the board and the examiner, I thought they were saying that there's a lot of different sources of blue light or to create white light.

[00:20:52] Speaker 04:
And you can down convert various sources.

[00:20:54] Speaker 04:
One is Pinot.

[00:20:56] Speaker 04:
You can down convert fluorescent lamps to provide white light.

[00:21:01] Speaker 04:
And then I don't see anything in the patent saying that it's very difficult to come up with

[00:21:08] Speaker 04:
the phosphor mix in order to down convert blue light.

[00:21:11] Speaker 04:
In fact, it says, you know, it's readily easy to figure out any suitable amount of suitable materials without undue experimentation.

[00:21:20] Speaker 04:
I think I just quoted the specification there.

[00:21:24] Speaker 01:
The phosphor selection is not the focus of the argument we're making to you.

[00:21:28] Speaker 01:
The argument that we're making to you, and this will be the final thing, and I'll say whatever time I have left.

[00:21:33] Speaker 04:
You have three minutes of rebuttal.

[00:21:36] Speaker 01:
The argument is this.

[00:21:37] Speaker 01:
There is a decision from the examiner and the board.

[00:21:42] Speaker 01:
It couldn't be clearer that one of the most foundational findings is that there was two known approaches.

[00:21:50] Speaker 01:
That's the language.

[00:21:51] Speaker 01:
And respectfully, I don't think it was inadvertent.

[00:21:55] Speaker 01:
It was used multiple times.

[00:21:58] Speaker 01:
That's what it told the public.

[00:21:59] Speaker 01:
The PTO has used it and said it multiple times.

[00:22:04] Speaker 01:
The only justification

[00:22:06] Speaker 01:
There's no prior art they can cite.

[00:22:08] Speaker 01:
They don't make the argument that Stringfellow takes you within a hair's breadth of being there.

[00:22:12] Speaker 01:
Stevenson.

[00:22:13] Speaker 01:
Stevenson, I'm sorry.

[00:22:14] Speaker 01:
They don't make that argument.

[00:22:16] Speaker 01:
The argument is that the person of organized skill in the art knew that there were two approaches.

[00:22:22] Speaker 01:
And that is the key.

[00:22:23] Speaker 01:
And there's nothing, if you actually look at the portions of the opinion and the paragraph cited in Stringfellow, Red Wing, and Wetzel,

[00:22:33] Speaker 01:
They simply don't say that.

[00:22:35] Speaker 04:
But I understand this is the linchpin of your argument that the patent board's decision is predicated on this misstatement, at least in your view, that it was known in the art to down convert blue light into white light.

[00:22:50] Speaker 04:
But what if we disagree with that argument of yours?

[00:22:53] Speaker 04:
And what if we see the patent board and examiner saying there was a known process to down convert an LED to white light in Stevenson?

[00:23:03] Speaker 04:
or not to white light, sorry, to different primary colors.

[00:23:07] Speaker 04:
But that blue or violet LED was very, very weak.

[00:23:10] Speaker 04:
And then the Nobel Prize winning Nakamura blue LED came out on the scene and it would be an obvious substitution to put in the, relatively speaking, much more high power blue LED of Nakamura into the disclosure of Stevenson's down-converting process.

[00:23:31] Speaker 04:
And then, because it is so well known,

[00:23:33] Speaker 04:
at least by 94, 95, that using a chromaticity diagram, you could mix blue light with a down converted radiation to create white light, we have your invention.

[00:23:47] Speaker 04:
What's your response now to that, assuming we disagree that the board necessarily had to rely on what you call a misstatement?

[00:23:58] Speaker 01:
Our response is that's not what they said.

[00:24:00] Speaker 04:
OK, but where does it put that to the side?

[00:24:02] Speaker 01:
No, I'm putting aside the first part.

[00:24:05] Speaker 01:
It's not even what they said as to the argument your honor just articulated.

[00:24:09] Speaker 01:
Because if you go to the portion of their opinion, which is entitled reason to combine, where they acknowledge there needs to be a reason to combine, they give a reason to combine Stevenson and Nakamura.

[00:24:21] Speaker 01:
There is no reason to combine Pinow with the LED references.

[00:24:26] Speaker 01:
And when you go to the PTO's brief,

[00:24:29] Speaker 01:
They don't make the argument that you just articulated.

[00:24:32] Speaker 01:
Their argument is this.

[00:24:35] Speaker 01:
We can pick from the examiners, answer some paragraphs.

[00:24:40] Speaker 01:
And if you put those paragraphs together, you can conclude that Pinot teaches you that you can down-confirm from any light source.

[00:24:49] Speaker 01:
So I think my bottom line answer would be, if that's

[00:24:53] Speaker 01:
What's going to be articulated as a basis for invalidating a patent that has resulted in a $10 billion market, there ought to be a remand at the Patent Office so they can say that that's the reason, and we can test that reason against the record.

[00:25:10] Speaker 04:
OK.

[00:25:10] Speaker 04:
Thank you.

[00:25:10] Speaker 04:
Thank you.

[00:25:11] Speaker 04:
Let's hear from the government.

[00:25:18] Speaker 04:
Let's see.

[00:25:19] Speaker 04:
We went over quite a bit there.

[00:25:22] Speaker 04:
Six and a half minutes.

[00:25:24] Speaker 04:
Let's give Mr. Warrick then 21 and a half minutes, in case he needs it.

[00:25:30] Speaker 03:
Thank you, Your Honor.

[00:25:32] Speaker 03:
May I please the Court?

[00:25:34] Speaker 03:
I'd like to start off by clarifying that, yes indeed, the statements about the down conversion of blue LED light to white light was known not in the 102 cents, but in the sense of what was undisputedly known.

[00:25:49] Speaker 03:
One, down conversion with LED technology was known.

[00:25:52] Speaker 03:
That's Stevenson.

[00:25:53] Speaker 03:
Two, down conversion of blue light to white light was known.

[00:25:58] Speaker 03:
That's disclosed in Pinao, but the examiner also cited several other sources.

[00:26:03] Speaker 03:
A1166 to 1173 details those, notably the admitted prior art.

[00:26:10] Speaker 03:
Also undisputed is that Nakamura's LED was in fact a game changer in the LED industry.

[00:26:16] Speaker 03:
The declaration from Dr. Wetzel demonstrates that it is,

[00:26:22] Speaker 03:
Your honor pointed out approximately 3,500 times more powerful than the Stephenson LED.

[00:26:27] Speaker 04:
Throughout the treatment of the three declarations, Springfell, Red Wing, and Wetzel, in the board opinion, the board is consistently saying that at least these experts are admitting or conceding that it was known to convert blue or ultraviolet LED light to create white light.

[00:26:52] Speaker 04:
And I just didn't see any statement like that in any of the three declarations, in any of the three declaration paragraph sites that the board cites to.

[00:27:03] Speaker 04:
I mean, I know you want to try to use building blocks to create some ultimate logical conclusion, but I just don't see it.

[00:27:14] Speaker 03:
Well, Your Honor, I'll admit that the declarations do not contain those exact words as you expressed.

[00:27:20] Speaker 03:
We maintain, however, it would be difficult to read those three declarations and not conclude that one of skill and the art would have known at least to try the down conversion approach.

[00:27:31] Speaker 03:
And this is because all of them... Okay, so now you're making an obviousness type argument, right?

[00:27:36] Speaker 03:
Well, this is an obviousness case, Your Honor.

[00:27:38] Speaker 04:
Yes, I know, but that's not exactly the statement that's reflected in the board's fact finding and how it read the declarations.

[00:27:45] Speaker 04:
I don't see the board saying after reading the

[00:27:50] Speaker 04:
three declarations, the declarants have essentially agreed that it would be obvious to try to use a blue LED to create white light through down conversion.

[00:28:03] Speaker 03:
Well, first of all, it is a reasonable reading.

[00:28:07] Speaker 03:
Some may disagree, but a reasonable reading of, for example, Dr. Wetzel's declaration, paragraph 15, it's at A957, to say that it was known.

[00:28:17] Speaker 03:
And specifically what he says,

[00:28:18] Speaker 03:
Down conversion of LED light.

[00:28:20] Speaker 03:
Paragraph 15.

[00:28:21] Speaker 02:
Paragraph 15.

[00:28:22] Speaker 02:
957.

[00:28:27] Speaker 02:
Down conversion of LED light had been considered.

[00:28:33] Speaker 03:
And it goes on to say, but was discredited due to the loss of energy and light brightness during the down conversion process, the use of white light in typical applications, e.g.

[00:28:42] Speaker 03:
backlighting of monitors and televisions, requires a significant amount of power and brightness.

[00:28:48] Speaker 03:
But as your honors have already pointed out, none of the three experts fully grapple with the fact that Nakamura was so much more powerful than the prior LED devices.

[00:28:59] Speaker 03:
In fact, Strinkfellow and Redwing avoided all together.

[00:29:03] Speaker 03:
Strinkfellow only attacked Stevenson, and Redwing's comments are specifically couched as prior to the 9496 time frame.

[00:29:12] Speaker 04:
Dr. Wetzel says in that same paragraph, paragraph 15,

[00:29:18] Speaker 04:
He winds up that paragraph saying, you know, Warren of skill would have been dissuaded considering the approach that is ultimately the claimed invention, down converting blue LED light to produce white light.

[00:29:33] Speaker 03:
It's a reasonable reading of that statement that implicitly the person of skill in the art knew of this approach but did not take it.

[00:29:40] Speaker 03:
It would be ineffective not that it didn't exist.

[00:29:43] Speaker 03:
It may not be commercially viable.

[00:29:45] Speaker 03:
Perhaps no one had specifically done it due to the lack of a powerful enough LED.

[00:29:50] Speaker 03:
It simply cannot be overstated that Dr. Nakamura's Nobel Prize winning blue LED completely changed the game.

[00:29:59] Speaker 02:
Now, I think a good enough... I think one way of reading that is that Wetzel was implicitly saying, yes, people knew if they wanted to try to use a blue LED as the raw material with this particular process, they wouldn't do it.

[00:30:15] Speaker 02:
They wouldn't do it because the octane wasn't high enough in the gas.

[00:30:19] Speaker 02:
It wouldn't drive the engine, so to speak.

[00:30:22] Speaker 02:
Not that they didn't know that there was that process out there.

[00:30:28] Speaker 02:
Isn't that your view?

[00:30:29] Speaker 02:
That is our view.

[00:30:30] Speaker 02:
It's implicit in what both of them were saying.

[00:30:32] Speaker 02:
They're just dancing around when they say that, well, yes, Nakamura, if this is the new recently introduced LEDs, they were not powerful.

[00:30:42] Speaker 02:
They emitted relatively little light.

[00:30:45] Speaker 02:
little light compared to what?

[00:30:46] Speaker 02:
Compared to a laser, right?

[00:30:49] Speaker 02:
We all know what they're comparing it to.

[00:30:52] Speaker 03:
I believe so, Your Honor.

[00:30:53] Speaker 03:
These are definitely very craftily worded declarations, and they're as important for what they don't say so much as what they do.

[00:31:03] Speaker 03:
They consistently say, down conversion was known, but one of skill in the art would not have used it.

[00:31:08] Speaker 03:
They would have been dissuaded from using it.

[00:31:11] Speaker 03:
And if we look to the reasons for that, they say, well,

[00:31:14] Speaker 03:
there just simply was not enough power.

[00:31:16] Speaker 03:
But they never say that Nakamura's blue LED did not have enough power to be practically useful or commercially viable.

[00:31:25] Speaker 03:
In fact, it's undisputed that it was.

[00:31:27] Speaker 00:
What do you say?

[00:31:29] Speaker 00:
I mean, we start off with Stevenson, which has an LED and down conversion using conventional phosphors to produce

[00:31:42] Speaker 00:
various primary colors.

[00:31:45] Speaker 00:
Now, what do you say about the argument that you can't combine pin-ow with Stevenson because pin-ow is a laser?

[00:31:55] Speaker 00:
This goes to the question that the examiner addressed saying the lasers and the LED are not different from the perspective of the phosphor because it's light at a certain energy level.

[00:32:08] Speaker 00:
and a certain brightness, and that's going to produce exactly the same photons coming out of the phosphor.

[00:32:13] Speaker 00:
But other than the examiner saying it, what is your evidence that that's true?

[00:32:19] Speaker 03:
Well, the examiner went to Great Pains to explain that there were multiple references in the prior art, including Pinal, that would have pointed someone in this direction, and stated that one of the most convincing ones was the admitted art in the 175 patents.

[00:32:36] Speaker 00:
Well, okay, we'll keep going.

[00:32:39] Speaker 03:
So if we look at the 175 patent, it identifies several sources of this blue to white down conversion in the prior art, and it goes on in column seven, this is A64, to note that this invention can be used with what it calls solid state devices, including lasers, LEDs, electro-luminescent devices, there's a whole list, it's on column seven,

[00:33:06] Speaker 03:
lines 45 through 54.

[00:33:10] Speaker 03:
Now if we turn two pages over, A66, the top of column 11, this is where the applicants have the opportunity to describe how do you pick your phosphors?

[00:33:22] Speaker 03:
How do you do the down conversion?

[00:33:25] Speaker 03:
Keep in mind that it could be any one of these light sources.

[00:33:28] Speaker 03:
And what do they say?

[00:33:29] Speaker 03:
They say that

[00:33:34] Speaker 03:
Suitable materials for such purpose can be readily determined without undue experimentation to provide good white light emission of virtually any tint or hue, as well as a virtually infinite series of chromaticity for all visible hues.

[00:33:50] Speaker 03:
This court has precedent establishing that you cannot tell the public that this element of the invention is within the knowledge of the skilled artisan and then turn around and say that that would not have been obvious at the time of the invention.

[00:34:05] Speaker 00:
Now, a couple of points that... What about the argument which is floated?

[00:34:11] Speaker 00:
I don't know that it's a central argument, but it is floated through in the briefs that the difference between the lasers and the LEDs, besides power, is that the breadth of the wavelength band, that the lasers are much narrower, more monochromatic than an LED.

[00:34:34] Speaker 03:
So a couple of things, your honor.

[00:34:36] Speaker 03:
One would be that there's also the fluorescent prior arc, fluorescent lights.

[00:34:43] Speaker 03:
Those phosphors were developed by GE back in the 1930s.

[00:34:47] Speaker 03:
And there were also these other fields where people were able to adapt to the different conditions.

[00:34:52] Speaker 03:
Pinow itself says it places very few limitations on what kind of light source you would use because there are so many known phosphors.

[00:35:02] Speaker 03:
And again, the patent itself says

[00:35:04] Speaker 03:
This could be used with any number of sources, including both LEDs and lasers, which really, I think, cuts through this argument that somehow you would not look to the laser art.

[00:35:16] Speaker 03:
The wavelength is the wavelength.

[00:35:18] Speaker 03:
If you are below 4950 angstroms, whether it's an LED or a fluorescent light or a laser, the downconversion principle still works.

[00:35:27] Speaker 00:
And you're drawing that

[00:35:31] Speaker 00:
conclusion from, other than the examiner says it about 10 times.

[00:35:35] Speaker 00:
Certainly the examiner is fully persuaded that it's true.

[00:35:39] Speaker 00:
And it may be true as a matter of element of metaphysics, but is there anything other than the 175 reference that you called to our attention that establishes that basic point of physics?

[00:35:54] Speaker 03:
I'm not aware of anything in the record that says those specific words.

[00:35:57] Speaker 03:
But again, I think it would be difficult to read

[00:36:00] Speaker 03:
all of the art cited by the examiner on A1166 through 73, his conclusion on A1209, and not conclude that one of skill and the art would have known that this blue to white down conversion process could be applied to various light sources or radiation sources.

[00:36:20] Speaker 03:
And therefore, once Nakamura introduced this 3,500 times more powerful LED, one would have turned to

[00:36:28] Speaker 03:
What is the only other approach that anyone has discussed in this case for going from primary colors to white light, which was down conversion.

[00:36:38] Speaker 03:
KSR says when there are a finite number of options for meeting strong market demand and pursuing those options was within the skill and the art, then the invention would be obvious.

[00:36:50] Speaker 03:
And that's exactly what we have here.

[00:36:52] Speaker 03:
And contrary to appellants arguments, this

[00:36:56] Speaker 03:
motivation to combine the market demand was clearly articulated by the examiner and also by the board.

[00:37:05] Speaker 04:
I guess the other side is saying that yes, the Nakamura blue LED is relatively more powerful than the one that was being used by Stevenson but nevertheless it was still quite weak and so therefore maybe it would be obvious to use it in the triplet

[00:37:24] Speaker 04:
which is in fact what happened at the time in the industry, but nobody would have thought to think that it would be worthwhile to use the Nakamura blue LED because number one, it's still not strong enough, and two, down conversion process ends up dissipating so much energy that you end up with an even reduced level of output.

[00:37:52] Speaker 03:
So if the question is would one of skill in the art

[00:37:54] Speaker 03:
have known without doubt that this is an approach that would work and be commercially viable?

[00:37:59] Speaker 03:
Perhaps not.

[00:38:00] Speaker 03:
But again, when you have a finite number of options, and here we have the triplet approach, and we have this down conversion technique which was known but had been discarded pre Nakamura, it's difficult to imagine a person of skill in the art not pursuing the down conversion approach when you have a new light source that is so much more powerful

[00:38:21] Speaker 03:
than the Stevenson LED from the 1970s.

[00:38:23] Speaker 00:
What is the power rating of the Nakamura LED?

[00:38:29] Speaker 03:
Approximately one milliwatt.

[00:38:32] Speaker 03:
One milliwatt, right.

[00:38:33] Speaker 03:
And this is according to Dr. Wetzel.

[00:38:35] Speaker 03:
That was in paragraph 79 of Dr. Wetzel's declaration.

[00:38:39] Speaker 03:
Paragraph 22 of his declaration, he describes the Stevenson LED, performed some math to conclude that it was approximately 0.0002

[00:38:50] Speaker 03:
milliwatts.

[00:38:51] Speaker 03:
So if you do the math again, as Judge Clevenger pointed out, we're left with an LED that's more than 3,000 times as powerful.

[00:39:00] Speaker 04:
What if, I guess, as a legal matter, when we read through the declarations, we see that the declarations are saying maybe, in fact, at the time down conversion had been considered of an LED to white light, but it was impossible to make white light.

[00:39:18] Speaker 04:
And so nobody would

[00:39:20] Speaker 04:
really actually even consider it.

[00:39:23] Speaker 04:
And then that in our view doesn't match up very well with the board's finding that it was in fact known to use an LED and down convert it to produce white light.

[00:39:42] Speaker 04:
Then what we have here is perhaps an erroneous fact finding for the board.

[00:39:48] Speaker 04:
Do you think that would require us, because it's discussed for a number of pages, for us to have to remand the case, for the board to reconsider the rejection without using and discussing that erroneous fact finding?

[00:40:05] Speaker 03:
Well, you're all right.

[00:40:06] Speaker 03:
It's hard to imagine how it could not be at least a reasonable reading of the declarations that this was possible.

[00:40:13] Speaker 03:
And I'd point you in particular to Dr. Wetzel's declaration.

[00:40:17] Speaker 03:
where he talks about the Stevenson LED.

[00:40:19] Speaker 03:
And he says, this was so weak, it would have been so challenging to produce white light.

[00:40:24] Speaker 03:
He doesn't say you could not do it.

[00:40:25] Speaker 03:
In fact, he says, you would have to string together, I think, 17,500 of these to get what he described as the commercially useful amount of light.

[00:40:35] Speaker 03:
Perhaps fewer of them could be used.

[00:40:37] Speaker 03:
And he describes this as just not strong enough to be useful or commercially viable, which just isn't the point of the patentability inquiry.

[00:40:46] Speaker 03:
But it's implicit in the discussion in Dr. Wetzel's declaration that it could be done.

[00:40:52] Speaker 03:
At least that's a reasonable reading that should be affirmed under the substantial evidence standard.

[00:40:59] Speaker 04:
Right.

[00:41:00] Speaker 04:
But I guess the premise of my question is I'm taking it away from you.

[00:41:05] Speaker 04:
So then the next question is, is there a reading of the board decision where it still can be affirmed for substantial evidence in light of

[00:41:15] Speaker 04:
all the other analysis and fact findings, or as the other side says, because it permeates throughout the entire board opinion, it goes to the heart of the substance of the decision that we have to remand it to give the board a second chance after considering that fact finding.

[00:41:40] Speaker 03:
So, Judge, if I understand your question correctly,

[00:41:43] Speaker 03:
if we were to assume that the board was incorrect.

[00:41:46] Speaker 03:
Right.

[00:41:47] Speaker 04:
Is it a harmful error or is it a harmless error?

[00:41:50] Speaker 03:
I think we would argue harmless error.

[00:41:52] Speaker 03:
And the reason for that is that the declarations, even if they stated expressly that white light down conversion from a blue LED had been tried and failed because it was impossible, there's a critical deficiency with all three declarations in varying degrees.

[00:42:09] Speaker 03:
And that's the failure to grapple with the Nakamura LED.

[00:42:13] Speaker 03:
These statements are, in Stringfellow and Red Wing, specifically carve out the timeframe in which Nakamura's LED was introduced.

[00:42:21] Speaker 03:
And Wetzel acknowledges that it was introduced, states simply that it had relatively low power, presumably compared to PINAL, but acknowledging that it was even more powerful than the Stevenson LED, but never grapples with whether or not that advent in the LED industry would have changed the conclusions

[00:42:43] Speaker 03:
that anyone would have had from the 70s through the early 90s.

[00:42:47] Speaker 02:
Mr. Lee's position, as I understand it, hinges on the proposition that no one out there in the white light making business had ever tried to use a blue LED with down conversion.

[00:43:03] Speaker 02:
It just was a process that was unknown.

[00:43:06] Speaker 02:
Isn't that the way you're reading what he's saying?

[00:43:10] Speaker 02:
Part of it.

[00:43:11] Speaker 02:
the arguments and isn't that worries it's not when the board says this was a known way to do things known to use a blue leb input and down conversion to get white line he says there's no support for that so he his view is he went he's entitled to his patent because there have been not that there's a remit his view is he went

[00:43:34] Speaker 02:
So I thought he better be sure that if I were looking, if I didn't find somewhere in the prior art where somebody recognized that this process was available, he just didn't choose to use it because there was no good raw material.

[00:43:50] Speaker 03:
Right.

[00:43:50] Speaker 03:
So again, what was undisputedly known was that you could use down conversion with LEDs.

[00:43:56] Speaker 03:
Also undisputedly known, you could down convert blue light to white light.

[00:44:01] Speaker 03:
And the bridge between those... At least in the laser context.

[00:44:06] Speaker 03:
Yeah, as well as the fluorescent context, electroluminescent context, and others identified by the examiner.

[00:44:12] Speaker 02:
That's Pinow.

[00:44:13] Speaker 02:
That's Pinow constant teaching from Pinow.

[00:44:16] Speaker 03:
Pinow is specifically the laser teaching.

[00:44:18] Speaker 02:
It's worth noting, though, that... Where is the blue light through?

[00:44:22] Speaker 02:
You said there was teaching to use blue light as an input?

[00:44:26] Speaker 03:
Correct.

[00:44:27] Speaker 03:
That is Pinow, as well as others.

[00:44:29] Speaker 04:
And where else?

[00:44:30] Speaker 04:
I guess, are you...

[00:44:31] Speaker 04:
The background section of the 175 pattern?

[00:44:35] Speaker 03:
The background section of the 175 is another source for that.

[00:44:39] Speaker 04:
Are there other sources besides those two, pin out on the background?

[00:44:43] Speaker 03:
There are other sources discussed by the examiner, A1166-73.

[00:44:47] Speaker 03:
He steps through those in some detail.

[00:44:51] Speaker 02:
That's disclosure of using blue light in downconversion?

[00:44:55] Speaker 03:
Correct.

[00:44:56] Speaker 03:
To produce white light?

[00:44:58] Speaker 03:
To produce downconversion, to produce white light, yes.

[00:45:02] Speaker 02:
That's what the patent's all about.

[00:45:04] Speaker 03:
The patent is... If that was known in the prior art, what am I missing?

[00:45:12] Speaker 03:
Well, if you're saying what you're missing in terms of the concepts being in the prior art, we agree they were in the prior art.

[00:45:17] Speaker 03:
It was obvious.

[00:45:19] Speaker 03:
These claims are very broad.

[00:45:20] Speaker 02:
We're missing something because Mr. Lee is saying there's something that is totally unknown.

[00:45:24] Speaker 02:
I mean, no person of ordinary skill in the art would have ever gone near this.

[00:45:28] Speaker 02:
Nobody knew about it.

[00:45:29] Speaker 04:
I guess specifically it's the use of a blue LED to produce the white light through down conversion.

[00:45:36] Speaker 04:
There's other sources of blue light and down convert it to produce white light.

[00:45:41] Speaker 04:
The question is, was the usage of a blue LED in 1996 a patentable advance?

[00:45:50] Speaker 03:
Right, and is of course our position that it was not, particularly in light of the fact that the first commercially viable blue LED had just appeared on the market.

[00:45:59] Speaker 03:
And in fact, evidence that others were pursuing this same approach shortly after the introduction of the Nakamura LED.

[00:46:08] Speaker 03:
Again, it is not our position that it was known in the 102 cents that someone had specifically taken a blue LED, down converted the radiation to white light.

[00:46:18] Speaker 03:
But it is our position that down conversion with LEDs was known, down converting blue light to white light was known.

[00:46:25] Speaker 03:
Down conversion was the only other approach that's been acknowledged by the experts other than the triplet approach.

[00:46:31] Speaker 03:
And given the incredible market demand for white LED light, these finite options, and the admitted skill in the art to know how to use the phosphors to down convert to white light, it is very difficult to conclude that a skilled artisan would not have pursued this approach.

[00:46:47] Speaker 04:
What about the commercial success evidence, the licenses, the industry praise?

[00:46:53] Speaker 03:
So on all of those, there are... The board gave none of that any weight.

[00:46:58] Speaker 04:
Is that right?

[00:47:00] Speaker 03:
Well, specifically what the board did was say that it did not outweigh the strong prima facie case.

[00:47:06] Speaker 03:
And the board identified several problems, three notable ones.

[00:47:10] Speaker 03:
The industry recognition or self-serving statements by third parties, the context in terms of the licenses were not clear, and the commercial success data was generalized data that lacked a clear nexus to the

[00:47:24] Speaker 03:
claims that are at issue in this appeal.

[00:47:30] Speaker 04:
Okay.

[00:47:31] Speaker 04:
Thank you.

[00:47:31] Speaker 03:
Thank you.

[00:47:34] Speaker 04:
Well, Mr. Rohr went over, so can we... I think Mr. Lee had three minutes, but can we just go with three and a half so we can be sure to balance that?

[00:47:45] Speaker 04:
It's a hard three and a half minutes.

[00:47:47] Speaker 01:
Please go ahead.

[00:47:48] Speaker 01:
I'll be very direct.

[00:47:50] Speaker 01:
The PTO said something that

[00:47:52] Speaker 01:
I think is very important to the analysis that wasn't articulated in the brief.

[00:47:57] Speaker 01:
He said that down conversion was known, Stevenson, but it was known and discarded 20 years before Nakamura.

[00:48:11] Speaker 01:
So the question becomes, you have an approach that's known and discarded.

[00:48:17] Speaker 01:
And there are two problems with where the PTO is today.

[00:48:20] Speaker 01:
One is they're relying upon it as a known approach for down-converting from LEDs to white light.

[00:48:27] Speaker 01:
And they're very specific, Judge Clevenger.

[00:48:30] Speaker 01:
It is down-converting from an LED to white light that it's the known approach.

[00:48:35] Speaker 01:
But they now have said, to the extent there was a suggestion of it, it was known and discarded.

[00:48:41] Speaker 04:
And just to be clear, the down-conversion concept with respect to a single LED had been put away in a closet, but down-conversion

[00:48:50] Speaker 04:
of blue light to white light in other ways, whether it's fluorescent lamps or lasers, that was well known and being used.

[00:48:59] Speaker 01:
And your honor, I think the fact that there are all these other applications, all these other patterns that are going to down converting blue light for other purposes is an indication that the differences in the field are significant.

[00:49:14] Speaker 01:
And this known and discarded is particularly important because

[00:49:18] Speaker 01:
The PTO just suggested to you that there's nothing in the record about what happened after Nakamura.

[00:49:25] Speaker 01:
But if you go to A958, which is the Wetzel Declaration, we would just suggest, and we know the panel will do so, if you compare the known approach, and Judge Cleverett, to be completely precise, it's the known approach of downloading from an LED to white light.

[00:49:45] Speaker 01:
And then you look at the paragraphs that are cited.

[00:49:48] Speaker 01:
They don't support that proposition.

[00:49:50] Speaker 01:
And I'll give just two examples in my rebuttal time.

[00:49:52] Speaker 01:
If you go to page A958 and you go to paragraphs 16 and 17, there is both the question of what was in the prior art and the literature in paragraph 16 that predates the filing date, 1996.

[00:50:08] Speaker 01:
The PTO now conceives that there's no prior art describing that approach.

[00:50:12] Speaker 01:
Then, paragraph 17 and what follows

[00:50:16] Speaker 01:
specifically addresses the post-Nakamura period.

[00:50:21] Speaker 01:
And then if I can turn you back to page A431, which is the string fellow declaration, in paragraphs 25 and 26, there is, as Judge Bryson suggested in paragraph 25, his

[00:50:46] Speaker 01:
statement concerning what he knew to be in the field.

[00:50:50] Speaker 01:
But then he goes much further.

[00:50:52] Speaker 01:
And he goes to the direction that had been provided before the work of the inventors, the problems with down conversion.

[00:51:01] Speaker 01:
And it's not just power.

[00:51:04] Speaker 01:
And they then go on to discuss the differences between lasers or any of these other sources.

[00:51:09] Speaker 01:
We focus on lasers, Judge Chen, because PINAL, which is the core combination, is, in fact, a laser.

[00:51:16] Speaker 04:
So I think... Does Dr. Stringfellow anywhere mention the Nakamura LED light?

[00:51:21] Speaker 04:
I see him talking about Stevenson.

[00:51:24] Speaker 01:
He does, Your Honor.

[00:51:25] Speaker 01:
I'm not sure.

[00:51:26] Speaker 01:
It's in the pages that are in... Actually, yes.

[00:51:34] Speaker 01:
If you go to A964.

[00:51:35] Speaker 04:
Okay, that's a different Stringfellow.

[00:51:39] Speaker 04:
Yes.

[00:51:41] Speaker 01:
But he does discuss it specifically.

[00:51:44] Speaker 01:
So to close,

[00:51:48] Speaker 01:
I think we're in a circumstance where, however, we could have a disagreement as to how close Stevenson got.

[00:51:55] Speaker 01:
But 20 years before, Steven said what he said about primary colors and light that would be visible to the human eye.

[00:52:02] Speaker 01:
The three declarations say that that doesn't include white light.

[00:52:06] Speaker 01:
We don't disagree that Knauss said what it said about a laser, which was much more powerful.

[00:52:13] Speaker 01:
And it said specifically that it was relying upon a laser source.

[00:52:18] Speaker 01:
The question is, how did the PTO get to making this combination of those references?

[00:52:24] Speaker 01:
And at the end of the day, they did it in two ways, and we suggest neither is sufficient.

[00:52:30] Speaker 01:
The first way is this two known approaches.

[00:52:32] Speaker 01:
And once you decide that the approach of down-converting from LED to white light was known, that is the invention.

[00:52:43] Speaker 01:
To answer your question, all you're doing with the reference is implementing, and that

[00:52:48] Speaker 01:
is not supported by this record.

[00:52:51] Speaker 01:
If there is another articulation of the reasons to invalidate, then they should be articulated so they can be tested by us and also tested by you.

[00:52:59] Speaker 04:
Thank you very much.

[00:52:59] Speaker 04:
The case is submitted.