[00:00:00] Speaker 04: His declaration, in detail, explains why that is not the case, why that does not happen. [00:00:06] Speaker 03: So do I understand you to be conceding then that Siemens does include position information? [00:00:13] Speaker 04: No. [00:00:14] Speaker 03: Not at all. [00:00:14] Speaker 03: No. [00:00:18] Speaker 02: What about a claim for line 40? [00:00:23] Speaker 02: And this is at JA0-2714. [00:00:28] Speaker 02: Formatting also reserves space on the disk for various tablets. [00:00:32] Speaker 02: For example, a bitmap table is set up in which the status of every sector is indicated. [00:00:40] Speaker 04: Yes. [00:00:40] Speaker 04: That actually provides the answer to Judge Dyck's earlier question. [00:00:45] Speaker 04: What the patent says and what that particular language says, and Dr. Mansourapour talks about this extensively in his declaration, is that the bitmap status table [00:00:58] Speaker 04: according to the specification, has two bits per half track. [00:01:03] Speaker 04: Those are two digits, so zero zero for something that hasn't been initialized. [00:01:07] Speaker 04: That's all it has. [00:01:09] Speaker 04: But then you might logically ask, as I think Your Honor Judge Dyke is doing, how do you correlate that to a position? [00:01:16] Speaker 04: Because you have to know what the status relates to. [00:01:23] Speaker 04: And the answer, particularly since it uses the word map, a map normally has a location. [00:01:28] Speaker 04: That's an argument the PTAB made. [00:01:30] Speaker 04: But as Dr. Mansourapour points out, the way he understands this disclosure and the specification is that you have the status on the disk. [00:01:44] Speaker 04: The status is recorded in a predetermined area. [00:01:48] Speaker 04: But the location could be recorded, for example, [00:01:52] Speaker 04: And he explains why the location would be something that would be determined by the drive itself, not by the disk. [00:02:00] Speaker 04: That is, for example, you might have the first half track. [00:02:04] Speaker 04: Okay, but the board doesn't have to accept that testimony, right? [00:02:07] Speaker 04: Well, does the board have to accept the testimony? [00:02:10] Speaker 04: If the board doesn't accept the testimony, the board has to cite contrary testimony or explain why it's rejecting the expert testimony. [00:02:19] Speaker 04: Does that explain? [00:02:21] Speaker 04: There's nothing here in the record from TSST. [00:02:24] Speaker 03: It doesn't have to explain why it reaches the result. [00:02:26] Speaker 03: It doesn't have to address all the evidence in the record, right? [00:02:29] Speaker 04: It doesn't have to address all the evidence, Your Honor, but it has to address at least some of the evidence. [00:02:34] Speaker 04: I mean, you are entitled to a rational discussion of what the analysis process the board went through below so that you can determine whether or not to affirm or to reverse sort of vacate and remand. [00:02:48] Speaker 04: Well, look at... Here it has nothing. [00:02:51] Speaker 00: I'm sorry. [00:02:51] Speaker 00: Look at page 13 of the board's discussion. [00:02:55] Speaker 00: The board says, as discussed above, Siemens discloses half tracts being listed in a status fit map. [00:03:02] Speaker 00: We find that this is a disclosure of position information recorded on a predetermined area of a recording medium. [00:03:09] Speaker 00: They then go on to explain it further. [00:03:12] Speaker 00: And they say, we note as discussed above that Siemens further discloses keeping track [00:03:17] Speaker 00: in the status bitmap of which half-tracks have been formatted as well as which half-tracks have not been formatted. [00:03:25] Speaker 00: That's their explanation. [00:03:26] Speaker 04: They do have an explanation. [00:03:28] Speaker 04: The problem is there is no evidence to support their explanation. [00:03:32] Speaker 03: If you look at the... That's an interpretation of Siemens. [00:03:35] Speaker 04: Well, it is their interpretation of Siemens, but there is expert testimony from LG's expert that on the status bitmap [00:03:45] Speaker 04: The way he reads the specification in his expertise, the way he reads it is you have just the two bits there. [00:03:53] Speaker 03: That sounds to me like an argument that the board has to accept your expert testimony over its own reading of the reference. [00:04:00] Speaker 04: Well, the board is not permitted to use its own technological expertise to override all of the evidence. [00:04:07] Speaker 04: It certainly must be able to interpret references. [00:04:09] Speaker 04: It does that all the time. [00:04:10] Speaker 04: Of course it can interpret references, Your Honor, but here you have a technical question. [00:04:15] Speaker 04: as to whether this language in the specification includes, because whether this language in the specification means that the position information is recorded on a predetermined area on the disk. [00:04:30] Speaker 04: Mansoor report explains why what that means is that the position information is on the drive. [00:04:37] Speaker 04: And when the drive interacts with the bit information on the disk, it can reach a conclusion about the position. [00:04:44] Speaker 04: But the position information is not recorded on the disk in a predetermined location. [00:04:51] Speaker 04: And Hessling says nothing to the contrary. [00:04:53] Speaker 04: And the board, I would submit, is not permitted, is not permitted, when there is no evidence on one side on a technical issue, and there is evidence on the other side on a technical issue, to reject the only technological evidence because it... You mean the side that puts in expert testimony wins? [00:05:14] Speaker 04: If the other side puts in no expert testimony, and the expert testimony is reasonable. [00:05:20] Speaker 00: Counsel, you're making an argument that technical witnesses or an expert testimony will always win unless there is an expert who disagrees. [00:05:33] Speaker 00: How about if the board, presumably with some expertise in this area, disagree? [00:05:39] Speaker 00: They can't use their own judgment? [00:05:43] Speaker 04: First of all, we're dealing with a substantial evidence standard. [00:05:46] Speaker 04: Substantial evidence means you have to have evidence. [00:05:51] Speaker 04: I agree that if the board said, we have read Dr. Mansour Khor's declaration, we believe that he's wrong for the following reasons. [00:05:59] Speaker 02: Why wouldn't Column 4 of the Siemens patent be evidence? [00:06:02] Speaker 02: That's evidence also correct. [00:06:04] Speaker 04: Column 4 of the Siemens patent is most definitely evidence, but it's being interpreted by an expert who says, [00:06:12] Speaker 04: This is what it means. [00:06:13] Speaker 02: The board disagrees with that interpretation. [00:06:15] Speaker 02: It has its own interpretation of that evidence. [00:06:19] Speaker 02: That's an evidentiary ruling. [00:06:21] Speaker 04: Is it an evidentiary ruling? [00:06:23] Speaker 04: I'm not sure that it's an evidentiary ruling, Your Honor. [00:06:27] Speaker 04: What the board did here is it, first of all, it did not discuss the complete lack of evidence on this technical issue on the other side, and it did not address [00:06:41] Speaker 04: the substance of why it should reject the only expert testimony on this issue. [00:06:46] Speaker 03: But it interpreted the Siemens reference and said it means this. [00:06:51] Speaker 03: And we've had cases saying that the board is entitled to do that. [00:06:55] Speaker 03: That's what it's supposed to do. [00:06:56] Speaker 03: It's the expert agency, and here's a reference. [00:06:59] Speaker 03: They can't rely on things that aren't in references, but they can certainly interpret the reference. [00:07:07] Speaker 03: And a lot of these [00:07:09] Speaker 03: cases would come out the other way if they weren't entitled to do that. [00:07:13] Speaker 04: What I would ask the court to do is to compare two sets of pages in the joint appendix. [00:07:20] Speaker 04: At pages 2872 and 2873, you have a detailed explanation by Dr. Mansourapour as to what this precise language that you asked about Judge Raina means. [00:07:32] Speaker 04: What it means technologically. [00:07:34] Speaker 04: On the other hand, at page 2766, [00:07:38] Speaker 04: You have the only discussion by TSST's expert of the Siemens reference with respect to these claims. [00:07:46] Speaker 04: And there is no discussion at all of whether status information is equivalent to position information or whether the position information is recorded on a predetermined area of the disk. [00:07:59] Speaker 04: So you have a, I would submit, a very detailed and well-argued set of evidence on the one hand [00:08:07] Speaker 04: You have no evidence, on the other hand, and the board is not parsing the evidence in front of it and saying, I reject this because... The board does say that they're not persuaded. [00:08:20] Speaker 04: They say they're not persuaded, but they don't say what? [00:08:21] Speaker 02: They don't take on... Sure they do. [00:08:24] Speaker 02: They point to column four and says, this disclosure persuades us. [00:08:29] Speaker 02: It's the half-tracks being listed in the status bitmap. [00:08:32] Speaker 04: But they don't say, Judge Raina, Mansurapur says this means X, [00:08:38] Speaker 04: We don't accept that testimony for the following reason. [00:08:43] Speaker 04: We don't believe it. [00:08:43] Speaker 04: This contrary testimony, no analysis. [00:08:46] Speaker 03: They don't have to cite chapter and verse and describe why they're rejecting the testimony. [00:08:52] Speaker 03: They have to explain why they reached the result, which they did, which they do here. [00:08:56] Speaker 03: I mean, in every case, they've got to go through a listing and say, we've considered this piece of evidence, that piece of evidence, and explain why they rejected all of them. [00:09:06] Speaker 03: A general explanation as to why they reached the result is all that's required, no? [00:09:13] Speaker 04: I would submit no. [00:09:14] Speaker 04: I would submit that the substantial evidence standard requires when you have no evidence, none. [00:09:20] Speaker 04: And we know there's no evidence because if you look at 2766, you see the only thing that their experts said about Siemens in this context. [00:09:29] Speaker 04: And you have detailed evidence on the other side. [00:09:32] Speaker 04: You as an appellate court are entitled to a rational [00:09:36] Speaker 04: explanation, a written explanation from the PTAB as to why they didn't accept the only evidence that was in front of them. [00:09:45] Speaker 04: It doesn't mean that they can't do their own interpretation of references, but they are not there as scientific experts. [00:09:54] Speaker 04: There are scientific experts who are in front of them, and if you have scientific evidence on the one side and nothing on the other, substantial evidence requires [00:10:05] Speaker 04: that if they're going to reject the only evidence that's in front of them, they explain it. [00:10:08] Speaker 02: You're looking at the substantial evidence standard in quantitative terms. [00:10:12] Speaker 02: And to follow your line of reasoning, if one side has two experts and the other side's got one, the one with two wins. [00:10:19] Speaker 02: What's not the substantial evidence rule? [00:10:21] Speaker 04: Well, first, I think the substantial evidence rule has a quantitative component. [00:10:26] Speaker 04: But here I'm talking about a qualitative issue. [00:10:28] Speaker 04: That is, evidence on the one side and zero evidence on the other side. [00:10:33] Speaker 04: Zero. [00:10:35] Speaker 04: I don't think you're going to get a lot of cases with no evidence on the other side. [00:10:38] Speaker 00: What would be the case if the question was before the PTAB, what does Siemens mean and what does Patton mean? [00:10:49] Speaker 00: And there were no experts at all. [00:10:51] Speaker 00: They simply submitted it on the record. [00:10:53] Speaker 04: I think then they could decide. [00:10:55] Speaker 04: You think what? [00:10:56] Speaker 04: I think then they could decide. [00:10:58] Speaker 04: And be affirmed? [00:10:59] Speaker 04: I think so, assuming that the court [00:11:04] Speaker 04: again, felt that the substantial evidence standard was met in the sense that, you know, their decision wasn't irrational, it wasn't... But here you have evidence. [00:11:12] Speaker 04: You have an expert who deals with this issue not in a conclusory fashion, but in a detailed and specific fashion. [00:11:19] Speaker 04: I think I get your point. [00:11:21] Speaker 04: I hear you. [00:11:22] Speaker 03: I have a... You're well into your rebuttal time here. [00:11:24] Speaker 03: Do you want to save it? [00:11:26] Speaker 04: I'd like to save a minute and 13 seconds if you don't mind, Your Honor. [00:11:29] Speaker 03: Thank you. [00:11:30] Speaker 03: We'll give you a minute and a half. [00:11:31] Speaker 03: Thank you. [00:11:34] Speaker 03: Good morning again, Your Honors. [00:11:46] Speaker 01: May it please the Court? [00:11:51] Speaker 01: First point, the references are evidence. [00:11:54] Speaker 01: The Siemens reference is evidence. [00:11:56] Speaker 01: There's plenty of case law along those lines. [00:12:01] Speaker 01: LG argues that Siemens fails to disclose determining whether initiation should be performed based on position information. [00:12:11] Speaker 01: The board explains properly why LG is wrong. [00:12:16] Speaker 01: Substantial evidence supports the board's decision. [00:12:21] Speaker 01: First, Siemens expressly states that it stores a bitmap on the disk. [00:12:29] Speaker 01: Siemens expressly states that that bitmap maps status bits to particular half tracks. [00:12:39] Speaker 01: Siemens at Figure 5, Step 52. [00:12:43] Speaker 01: At Column 4, Lines 41 to 50. [00:12:46] Speaker 01: At Column 5, Lines 32 to 36. [00:12:49] Speaker 01: At Column 7, Lines 29 to 37. [00:12:52] Speaker 01: At Column 8, Lines 8 to 20. [00:12:55] Speaker 01: For instance, Siemens explains that status bits 00 means that an area is untested, which means non-initialized. [00:13:08] Speaker 01: Siemens expressly states that track numbers indicate position on the disk. [00:13:15] Speaker 01: If you look at Siemens column 3, lines 19 to 21, it says, [00:13:23] Speaker 01: can then be located by giving its track number to fix its radial distance from the center of the disk and its geometric sector number to fix its angular position. [00:13:36] Speaker 01: That's position information. [00:13:42] Speaker 01: The half tracks listed in the bitmap are clearly position information. [00:13:49] Speaker 01: That's what the board found. [00:13:51] Speaker 01: The board found [00:13:53] Speaker 01: For instance, in the final written decision at page 11 and page 13, Siemens expressly states that the half tracks are listed in the bitmap. [00:14:07] Speaker 01: LG has repeatedly said in its briefs and today that the only thing in the bitmap is status bits. [00:14:15] Speaker 01: That's plain wrong. [00:14:17] Speaker 01: Siemens says, and the board quoted Siemens, [00:14:21] Speaker 01: where Siemens says that the half tracks are also listed in the bitmap. [00:14:27] Speaker 01: Column 7 of Siemens, lines 29 to 33. [00:14:30] Speaker 01: It says, quote, half tracks listed in the status bitmap. [00:14:39] Speaker 01: Siemens, which is evidence, is telling us that the half tracks, which are position information, are in the bitmap. [00:14:47] Speaker 01: This argument that [00:14:48] Speaker 01: The only thing in the bitmap is status bits is, to put it mildly, it's plainly wrong. [00:14:57] Speaker 01: The board's decision is supported by substantial evidence. [00:15:02] Speaker 01: LG in its briefs also argues that Siemens fails to disclose setting an initialization mode in accordance with detecting a recording command. [00:15:13] Speaker 01: That wasn't mentioned today, but it's in the briefs. [00:15:16] Speaker 01: LG is wrong again. [00:15:18] Speaker 01: Step 50 in Figure 5 of Siemens expressly shows detecting a write command, a write command, W-R-I-T-E. [00:15:28] Speaker 01: A write command is a recording command. [00:15:34] Speaker 01: Detection of that write command triggers the initialization mode in at least Steps 52 and 53. [00:15:41] Speaker 01: Therefore, Siemens does clearly in Figure 5, it detects a recording command [00:15:48] Speaker 01: And it triggers this initialization process. [00:15:51] Speaker 01: Again, the PTAB's decision is supported by substantial evidence. [00:15:57] Speaker 01: So I had your honors. [00:15:58] Speaker 03: OK. [00:15:58] Speaker 01: Thank you, Mr. Rahm. [00:15:59] Speaker 01: Thank you very much. [00:16:02] Speaker 03: Mr. Lieberman, you've got a minute and a half. [00:16:06] Speaker 03: Minute and a half, please. [00:16:08] Speaker 03: Thank you, your honor. [00:16:09] Speaker 03: Again, I would just ask this. [00:16:11] Speaker 03: Would the deputy set it for a minute and a half, please? [00:16:18] Speaker 04: Again, I would simply ask this court to compare the one page of the Hessling Declaration that relates to this issue with the four pages of detailed analysis of the specification in the Mansurapur Declaration and see whether the PTEP actually dealt with the arguments made by Dr. Mansurapur. [00:16:44] Speaker 04: I would submit that they did not. [00:16:46] Speaker 04: And again, on a technical issue, [00:16:48] Speaker 04: There's a technical question here as to whether or not the position information is in the status bitmap table or whether the position information is, for example, on the drive, which would not be covered by the claims. [00:17:04] Speaker 04: The PTAB was not at liberty to simply take its own interpretation of that technical language in the reference. [00:17:14] Speaker 04: It was required to look at and examine and to compare [00:17:18] Speaker 04: the expert testimony that was in front of it. [00:17:20] Speaker 03: That's why we have expert testimony.