[00:00:46] Speaker 04:
Next case is THX Limited versus Apple, 2015, 2038, and 39.

[00:00:54] Speaker 04:
Mr. Halpern.

[00:00:58] Speaker 04:
Yes.

[00:00:58] Speaker 02:
Thank you, Your Honor, and may it please the court.

[00:01:02] Speaker 02:
I'm here from the Perkins-Cooey firm representing THX.

[00:01:05] Speaker 02:
I'm with me the appellant.

[00:01:07] Speaker 02:
And with me is Mr. Eric Wiesenberg.

[00:01:11] Speaker 02:
Your Honors, this is an appeal from a decision of the Patent Trial and Appeal Board.

[00:01:15] Speaker 02:
declaring two claims of the 483, THX's 483 patent unpatentable and the, as obvious, the dispute turns on a single limitation, sound damping material forming sides of a sound duct, about which the parties dispute both disclosure and motivation as to two aspects.

[00:01:36] Speaker 02:
One is sidewall sound damping material and the other is whether the references teach and motivate sidewall only sound damping so that

[00:01:45] Speaker 02:
covering a surface that must remain free of sound damping material in sound damping material is avoided.

[00:01:52] Speaker 02:
Let me pause before I barrel ahead and ask a few of any questions that you'd like to ask me.

[00:02:00] Speaker 04:
Proceed with your argument.

[00:02:01] Speaker 02:
All right.

[00:02:02] Speaker 02:
So the board's first error was that to find sound damping material disclosed, it relied on Sadi's teaching of pressure absorbing material.

[00:02:12] Speaker 02:
And Sadi teaches very clearly that the pressure absorbing material does not require sound absorbency but may have sound absorbency.

[00:02:21] Speaker 02:
That rules out the possibility that the pressure absorbing material is, in all cases, sound damping material.

[00:02:27] Speaker 02:
And in fact, it confirms this when it describes the pressure absorbing material as defeating standing waves

[00:02:35] Speaker 01:
Why does it have to be in all cases?

[00:02:37] Speaker 01:
It suggests using sound absorbing material.

[00:02:40] Speaker 01:
Why isn't that sufficient to suggest that it should be used?

[00:02:46] Speaker 02:
Because, Your Honor, we agree that there is a separate teaching of sound absorbing embodiment of the pressure absorbing material.

[00:02:54] Speaker 02:
But in that case, it's that embodiment that is the relevant disclosure.

[00:02:58] Speaker 02:
Apple made an argument that the pressure-absorbing material, for example, is made of foam, and foam is necessarily sound-damping, so there's sort of a general teaching of sound-damping material.

[00:03:08] Speaker 02:
And this passage that I quoted makes clear that that's not the case.

[00:03:12] Speaker 02:
There is this particular embodiment of pressure-absorbing material with sound absorbency, and that is specifically a technique to absorb wind noise.

[00:03:23] Speaker 02:
So I can move on to that, why that also does not disclose the sound damping material of the claims.

[00:03:28] Speaker 02:
But I was first trying to establish that pressure absorbing material as such is something distinct that Sadiq explains defeats standing waves not by absorbing sound, but by creating an irregular path that causes there not to be a peak resonance at any one frequency.

[00:03:46] Speaker 02:
So no sound is being absorbed by that technique, the sound instead is being

[00:03:50] Speaker 02:
kind of manipulated by the dimensions of the duct.

[00:03:53] Speaker 03:
Well, there are different embodiments, but you can see that Sadi allows for sound damping material, right?

[00:04:01] Speaker 02:
Yeah, but it allows for a particular technique of sound damping material, which is to absorb wind noise.

[00:04:08] Speaker 02:
And its sound damping material, it teaches, is frequency selective.

[00:04:12] Speaker 02:
So it absorbs in the high range the wind noise that's produced by the narrowing and constriction of Sadi's duct.

[00:04:19] Speaker 02:
And it specifically teaches also that it avoids absorbency in the bass range, because Sadiya is a bass range speaker, so it wants to produce bass sound.

[00:04:30] Speaker 02:
And it can damp out all of the high frequency sound.

[00:04:34] Speaker 02:
The claim requires that the sound damping material mitigate standing waves.

[00:04:38] Speaker 02:
That is the argument that Apple made below, and the board relied on a finding that the claim recites that the sound damping material mitigates standing waves.

[00:04:46] Speaker 02:
Those are two different techniques.

[00:04:48] Speaker 02:
And in fact,

[00:04:49] Speaker 02:
Apple's expert, Dr. Vipperman, admitted that SDI does not teach to use sound damping material to absorb standing waves.

[00:05:01] Speaker 02:
So moving on to motivation, the problem is even if one were to find that sound damping material is disclosed by SDI, SDI provides no motivation to combine it.

[00:05:19] Speaker 02:
into the tube with tominori because the tominori duct is straight.

[00:05:24] Speaker 02:
The parties agree that it is a straight duct that is trying to produce full range sound and if you were to put this high frequency absorbing sound damping material into the tominori duct you would eliminate that feature of full range sound.

[00:05:37] Speaker 02:
You would be selectively damping out the high sounds and leaving the bass sounds untouched.

[00:05:43] Speaker 02:
Apple's response to that was well but

[00:05:46] Speaker 02:
Full range sound is not a claim limitation, but that's not the relevant consideration.

[00:05:50] Speaker 02:
The relevant consideration is, would the references have worked with each other?

[00:05:53] Speaker 02:
Do their principles of operation suggest that you would make a successful combination?

[00:05:58] Speaker 02:
And Tamanori says, over and over again, its purpose is to produce, it's in the abstract summary of the invention, to produce full range sound

[00:06:07] Speaker 02:
across the whole frequency spectrum.

[00:06:08] Speaker 03:
But even if it has a particular purpose, that doesn't mean it couldn't be used, its teaching couldn't be used for an alternative purpose, right?

[00:06:17] Speaker 02:
But it is not motivated if the alternative purpose would conflict with one of the stated purposes of the Tamanori invention.

[00:06:25] Speaker 03:
So are you arguing there's a teaching away?

[00:06:28] Speaker 02:
Yeah.

[00:06:28] Speaker 02:
The Tamanori is teaching full range sound.

[00:06:31] Speaker 02:
And so the use of sound damping material

[00:06:34] Speaker 02:
that is frequency selective, that absorbs the high range sound but avoids absorption in the low range, would give you an uneven response in Tom and Ori.

[00:06:42] Speaker 02:
And if you look at Tom and Ori's, I mean, it's really the entire discussion.

[00:06:45] Speaker 02:
He has his frequency response charts.

[00:06:47] Speaker 02:
And when he's explaining his various techniques, putting the speaker at the anti-node, for example, it's all to reduce the peaks and dips to try to get an even response across the whole frequency range.

[00:06:59] Speaker 02:
So to have frequency.

[00:07:00] Speaker 03:
But don't you need a lot more than alternative purposes to have an active teaching away from the prior art?

[00:07:07] Speaker 02:
Well, I think a conflict would be a teaching away.

[00:07:09] Speaker 02:
But I would add two more things.

[00:07:12] Speaker 02:
Tommy Norrie also doesn't want to lose sound altogether, right?

[00:07:19] Speaker 02:
And so there is an unrebutted testimony by THX's expert Dr. Elliott that lining the duct walls

[00:07:28] Speaker 02:
with sound damping material would cost you signal in the same proportion that it would cost you noise.

[00:07:35] Speaker 02:
And so it would be disadvantageous, especially in a long duct like Tom and Nori's.

[00:07:39] Speaker 02:
That was unchallenged and unrebudded by Apple's expert.

[00:07:50] Speaker 02:
In addition, I think it's noteworthy that Tom and Nori really has all of the elements here for

[00:07:57] Speaker 02:
placing sound damping material on the sidewalls, and yet he still chose not to do it.

[00:08:01] Speaker 02:
In that, he has sound damping material on the back wall, which he says is there to absorb standing waves, so he's aware of the technique.

[00:08:08] Speaker 02:
And as the board specifically noted, his frequency response measurements, for example, in Figure 17, show lateral resonances, in other words, side to side, and top to bottom resonance as the same kind of peaks of sound that he's trying to eliminate.

[00:08:25] Speaker 02:
So he had the technique, he had the unwanted unevenness in his frequency response, he talked about it, or he showed it, and yet he still chose not to extend his own sound damping material.

[00:08:41] Speaker 02:
The other thing I want to turn to is the only, you know, it was Apple's burden to prove this motivation, and the only evidence of motivation that they offered was

[00:08:50] Speaker 02:
their expert testimony that this would be a routine design choice and one of a limited number of known solutions.

[00:08:56] Speaker 02:
And this court has repeatedly rejected that kind of conclusory expert testimony as sufficient to show.

[00:09:03] Speaker 01:
Well, I don't think that's a fair summary of the expert testimony.

[00:09:06] Speaker 01:
He goes through and explains why Sinai discloses this and why there would have been a motivation to do this.

[00:09:19] Speaker 02:
Your Honor, I respectfully disagree.

[00:09:21] Speaker 02:
I mean, the only testimony is in paragraphs 112 and 113 of Dr. Vipperman's declaration, which is at A529 to 30.

[00:09:32] Speaker 02:
And all he says is it would have been one of a limited number of known solutions for further minimizing the presence of spurious resonances.

[00:09:42] Speaker 02:
Accordingly, it would have been obvious.

[00:09:44] Speaker 02:
Doing so would have been a routine design choice.

[00:09:47] Speaker 02:
And in fact, when he was asked about it, in deposition, he acknowledged a couple of things.

[00:09:54] Speaker 02:
Apple's counsel acknowledged at the hearing that there was no technical analysis from its expert.

[00:10:05] Speaker 02:
So when, apologies your honor, I'm trying to find it.

[00:10:20] Speaker 01:
Yeah, he also goes into SDI and points out that SDI says that you can have sound dampening material.

[00:10:29] Speaker 01:
It's only, in other words, he spends some time in discussing what you say is necessary, which is that SDI suggests the use of sound dampening material.

[00:10:44] Speaker 02:
Right, but the limitation doesn't just require sound damping material.

[00:10:47] Speaker 02:
It requires sound damping material on the side walls and not on the top and bottom walls.

[00:10:52] Speaker 01:
Well, he says he discusses the side walls, right?

[00:10:55] Speaker 02:
Yeah, but he doesn't give a reason why you would prefer that.

[00:10:59] Speaker 02:
By the way, I found the discussion I was talking about.

[00:11:02] Speaker 02:
In the hearing, the administrative patent judge said, I don't see Dr. Vipperman addressing the acoustic rationale.

[00:11:09] Speaker 02:
This is at A364.

[00:11:11] Speaker 02:
And Apple's counsel responded,

[00:11:12] Speaker 02:
Right, Dr. Vipperman doesn't see the acoustic differences as material to their combinability.

[00:11:19] Speaker 02:
Dr. Vipperman also admitted that when asked about Dr. Elliott's arguments as to why the references were incompatible, because you would be damping out signal in the same proportion that you would damp out noise, and it would conflict with the goals of Tom and Norrie, he admitted that he didn't address any of those arguments.

[00:11:42] Speaker 02:
I mean all he's given is this routine design choice.

[00:11:45] Speaker 02:
I think it would probably, I'm into my rebuttal time, probably helpful to just explain the sort of, the secret sauce of the patent is if you look at the record, all of the examples of using sound damping material and other techniques to damp standing waves or other kinds of sound waves.

[00:12:05] Speaker 02:
Avoid loss of signal, right?

[00:12:07] Speaker 02:
There's a placement at an antinode.

[00:12:09] Speaker 02:
There's putting it against the back wall where only unwanted sound is striking.

[00:12:13] Speaker 02:
There's no example.

[00:12:14] Speaker 02:
And in SDI, you're only removing the high frequency sound that you don't want.

[00:12:20] Speaker 02:
The patented invention, what it does by the narrowness of the duct and the broadness of the other face is it moves all the resonant frequencies outside of the audible range in the broad face.

[00:12:31] Speaker 02:
And on the narrow side of the patent, you consequently, to have the same volume, have a very large number of resonant frequencies in a small area.

[00:12:40] Speaker 02:
And so when you damp that way, you get rid of a lot of resonances with minimal loss of signals because it's a small area.

[00:12:48] Speaker 02:
There's nothing in the references that anticipates that or suggests anything of the kind.

[00:12:54] Speaker 02:
So a teaching or a sort of ipsidiccid of an expert to simply say, well, sound damping material was known,

[00:13:01] Speaker 02:
doesn't demonstrate any of the techniques that either the references are applying or that the Fincham patent suggests.

[00:13:13] Speaker 04:
Mr. Halperin, I think you want to dampen your five waves.

[00:13:17] Speaker 04:
Save the rest for a bottle.

[00:13:19] Speaker 02:
Yes, thank you.

[00:13:20] Speaker 04:
Mr. Fleming.

[00:13:22] Speaker 04:
You, of course, have a cross appeal.

[00:13:24] Speaker 04:
Do you want to say three minutes for that?

[00:13:26] Speaker 00:
Yes, please, Your Honor.

[00:13:27] Speaker 04:
And if you get to use that, that'll be only for rebuttal if you get it.

[00:13:35] Speaker 04:
So please proceed.

[00:13:36] Speaker 00:
Thank you very much, Your Honor.

[00:13:37] Speaker 00:
Good morning, and may it please the court.

[00:13:38] Speaker 00:
Mark Fleming on behalf of Apple, together with Kevin Goldman and Natalie Posse.

[00:13:43] Speaker 00:
THX's arguments on claims one and two are all factual.

[00:13:46] Speaker 00:
They challenge the board's factual findings on the scope and content of the prior references.

[00:13:51] Speaker 00:
and the motivation to combine them.

[00:13:53] Speaker 00:
As we explain in our briefs, we think these findings are well supported.

[00:13:57] Speaker 00:
I'm happy to answer any questions the court has on them.

[00:13:59] Speaker 00:
I think the one thing I'd say on this issue about Tomonori being a full-range sound reference is that this court has made clear repeatedly, most notably in Inrei Khan,

[00:14:09] Speaker 00:
that just because the proposed obviousness combination might be somewhat less effective at serving the goals of one of the prior art references doesn't mean that the combination is nonetheless not obvious.

[00:14:21] Speaker 00:
In Kahn, the court said that just because the combination results in a device that would be less effective for the purpose intended by Garwin, the teaching of the Garwin reference is not limited to the specific invention disclosed.

[00:14:32] Speaker 00:
Judge O'Malley, this goes to one of your questions.

[00:14:34] Speaker 00:
And so the fact that perhaps the combination

[00:14:37] Speaker 00:
would have been less effective at producing the particular signal that Tomonori was looking for doesn't mean that the combination would nonetheless not have been obvious.

[00:14:45] Speaker 00:
It may have meant that you need to turn up the speaker or use a slightly more powerful speaker, but you would get the purer sound that Sadaya discloses that the use of sound damping material on the side walls would show.

[00:14:55] Speaker 03:
The exception to the principle in Khan is if the prior art reference goes so far as to teach away from the combination.

[00:15:03] Speaker 03:
rather than simply not serving the purposes.

[00:15:05] Speaker 03:
So the question is, what is your response to your opponent's argument that there is actually teaching away here?

[00:15:11] Speaker 00:
I don't recall that argument being made in any of the briefs.

[00:15:14] Speaker 00:
There certainly isn't any testimony that I know of that says that Tom Inori rises to the level of saying, do not put sound damping material on any of the walls except for the back.

[00:15:24] Speaker 00:
He doesn't actually do it.

[00:15:26] Speaker 00:
But that's not a teaching away.

[00:15:27] Speaker 00:
If that were a teaching away, then there would never be an obviousness case, because the whole premise of an obviousness argument

[00:15:32] Speaker 00:
is that no single reference satisfies all of the claim elements.

[00:15:37] Speaker 00:
So what we have here is a disclosure of sound damping material at the back of the duct in Tomonori, silence as to whether to put sound damping material on the side walls, and then a disclosure in Sadaye of putting the sound damping material on the side walls, and testimony of an expert saying that it would have been very easy for a skilled artisan to take that teaching and apply it in Tomonori by bringing the sound damping material down the sides.

[00:16:02] Speaker 00:
I would like to address our cross-appeal on Claim 3 because I think that is different in kind from THX's factual appeal.

[00:16:10] Speaker 00:
Here, the board regrettably made an error of law in terms of the standard that it required us to apply in proving the invalidity of Claim 3.

[00:16:19] Speaker 00:
Specifically, the board faulted us for not identifying examples in the prior art of sound damping material that follows a curved contour.

[00:16:28] Speaker 00:
And with all respect to the board, that's not the test.

[00:16:30] Speaker 00:
KSR says the analysis does not have to seek out precise teachings directed to the specific subject matter of the claim.

[00:16:37] Speaker 00:
It's enough if the patented arrangement results from taking one known element in the prior art and replacing it with another known element in the prior art with predictable results.

[00:16:48] Speaker 00:
And THX itself recognizes that standard on page 25 of its yellow brief.

[00:16:53] Speaker 00:
And we showed that here.

[00:16:54] Speaker 00:
We showed that the straight back wall of Tomonori, which is made of sound damping material,

[00:16:59] Speaker 00:
could very easily have been curved as the back wall in Sedaye is.

[00:17:04] Speaker 00:
There's no suggestion that that would have produced any unexpected results whatsoever.

[00:17:08] Speaker 00:
The board notably did not disagree with, certainly didn't reject our expert's testimony that straight and curved back walls have both been used commonly in loudspeaker design with predictable results.

[00:17:21] Speaker 00:
Notably THX's own expert, Dr. Elliott, did not disagree with that.

[00:17:26] Speaker 00:
He didn't controvert it.

[00:17:27] Speaker 00:
He didn't even address claim three

[00:17:28] Speaker 00:
in his own declaration.

[00:17:31] Speaker 00:
It wasn't an issue.

[00:17:31] Speaker 03:
The board wasn't required to defer to your expert's testimony if the board thought that there wasn't otherwise support for it, right?

[00:17:39] Speaker 03:
Well, the- Clearly because your expert says that it would have been a common design choice doesn't mean that it would be without more evidence, right?

[00:17:47] Speaker 00:
The board notably did not disagree with that.

[00:17:49] Speaker 00:
The board didn't say that there was something patentably distinct or something

[00:17:54] Speaker 00:
novel or non-obvious about using a curved wall.

[00:17:57] Speaker 00:
The only testimony on this point is Dr. Vibraman's, and there is no rejection by the board of that testimony because it wasn't controverted.

[00:18:06] Speaker 00:
Dr. Elliott didn't suggest that there was something so remarkably novel about taking a square wall and turning it into a semicircle that follows the contour of the speaker cone.

[00:18:14] Speaker 00:
He didn't even address it.

[00:18:15] Speaker 00:
It wasn't an issue with the depositions.

[00:18:17] Speaker 00:
It wasn't an issue at the oral hearing.

[00:18:19] Speaker 00:
It's not as though there are any secondary considerations here that are being asserted to say that Claim 3's circular wall is so remarkably novel that it created commercial success or solved a long-felt need or anything like that.

[00:18:29] Speaker 00:
It is a routine design choice that is frequently made in the prior art, and Dr. Viperman's statement on that is uncontroverted.

[00:18:37] Speaker 00:
Where the board went astray is it stated that we were required to show curved sound damping material in a single prior art reference.

[00:18:46] Speaker 00:
We're not required to show that.

[00:18:47] Speaker 00:
It's enough to show that the teaching of a curved back wall in Sedaye could easily have taught a skilled artisan to do the same thing with the back wall made of sound damping material in Tomonori.

[00:18:59] Speaker 01:
I thought it was, I saw the issue a little bit differently than you.

[00:19:04] Speaker 01:
I thought that Sedai did show a curved back ball, curved to match the speaker enclosure, and that the patent here contemplates embodiments in which the speaker cone is the same shape as the speaker enclosure.

[00:19:18] Speaker 01:
And that therefore the board is mistaken in suggesting that there wasn't a prior art reference that showed a curving to match the cone.

[00:19:27] Speaker 00:
That's exactly right, Judge Dyke.

[00:19:28] Speaker 00:
I was coming to that.

[00:19:29] Speaker 00:
That is another failure in the board's reasoning.

[00:19:32] Speaker 00:
In all candor, it's a factual error.

[00:19:36] Speaker 00:
It's a substantial evidence problem as to the scope of Sadaye.

[00:19:40] Speaker 00:
But Your Honor is absolutely right that the board was mistaken as to that.

[00:19:44] Speaker 00:
The reason for the mistake is because the board seems to have viewed figure 18 of Sadaye as exhausting the disclosure of Sadaye as to how far up the wall the sound-absorbing material

[00:19:57] Speaker 00:
can go, and as we explain, figure 18 does not exhaust all of Sadaye's teachings.

[00:20:02] Speaker 00:
Sadaye very clearly says that the pressure adjustment section, which even THX admits is sound absorbing material, can go all the way up and around the back of the sound guiding part into the sound source space 41, as Sadaye calls it.

[00:20:16] Speaker 00:
So I fully agree, Your Honor.

[00:20:18] Speaker 00:
That is another fully sufficient ground on which to reverse on claim three, which is that Sadaye does in fact show

[00:20:25] Speaker 00:
what the board mistakenly thought we had to show, which is a curved back wall formed of sound absorption material.

[00:20:33] Speaker 00:
And if the court wishes to reverse on that basis, obviously, that's fully sufficient as well.

[00:20:38] Speaker 00:
Unless the court has further questions, I reserve the balance of my time.

[00:20:41] Speaker 04:
We will do that, Mr. Fleming.

[00:20:43] Speaker 04:
Thank you, Your Honor.

[00:20:44] Speaker 04:
Mr. Halpern, you have just under three minutes.

[00:20:49] Speaker 02:
Thank you, Your Honor.

[00:20:53] Speaker 01:
First, to quickly address claim three, your honors, the board actually found that... Sedai does show curved sound absorbing material, which is the curve to the shape of the enclosure, right?

[00:21:08] Speaker 01:
It does not, no.

[00:21:09] Speaker 01:
It does not?

[00:21:10] Speaker 01:
No.

[00:21:10] Speaker 01:
Nowhere.

[00:21:11] Speaker 02:
There is no drawing in Sedai and there is no textual disclosure in Sedai of back wall sound damping material at all.

[00:21:18] Speaker 02:
If you look at the overhead view of Sedai that Apple provided,

[00:21:23] Speaker 02:
figure 18 they added the thick line showing acoustic material around the back but it is not in the actual figure 18 and we have a contrast in our brief on page 12 but it doesn't it doesn't put it on the back wall for a very specific reason the sound absorbing material and the pressure absorbing material in SDI are

[00:21:52] Speaker 02:
there to deal with the narrowing of the duct, to deal with overpressure and wind noise.

[00:21:56] Speaker 02:
The back of the duct is the widest part of the duct, and it's not where the sound is flowing out.

[00:22:00] Speaker 02:
So Sadi never puts back wall sound damping material.

[00:22:04] Speaker 02:
And what the claim limitation at issue requires is sound damping material forming the back wall and curved to the contour of the speaker cone.

[00:22:14] Speaker 02:
The board found at A34 that that limitation simply is not disclosed.

[00:22:20] Speaker 02:
not to mention motivated.

[00:22:22] Speaker 02:
So their argument is that the board was required to find a limitation that is neither disclosed nor with any more evidence of motivation than their expert saying it's a routine design choice, even though it looked at the references and said, well, there's nothing showing this curved contour back wall sound damping material, which is what the claim limitation requires.

[00:22:47] Speaker 02:
And the only thing Apple relied on, to the contrary,

[00:22:51] Speaker 02:
was that the disclosure that the sound-damping material goes from the sound source space 41 to part 42.

[00:23:00] Speaker 02:
And all the drawings show it starting in the middle of 41 and then proceeding outward to 42.

[00:23:05] Speaker 02:
And they argue that that language must be interpreted by the board to also wrap the sound-damping material around the back wall.

[00:23:14] Speaker 02:
That strikes us as a very unnatural reading of that language, and it's not reflected in any of the drawings.

[00:23:19] Speaker 02:
I just wanted to come back to this one point on Tamanori, if I may, which is that we did argue that there was a conflict between Tamanori and that the references are required under Broadcom and the MEMS case.

[00:23:34] Speaker 02:
This is on page 23 of our brief.

[00:23:37] Speaker 02:
There has to be a showing that the references would not conflict with each other.

[00:23:41] Speaker 02:
And if you look at the Tamanori abstract,

[00:23:44] Speaker 02:
And the summary of the invention, it's the object is to realize satisfactory acoustic characteristics over a range of high to low frequencies.

[00:23:52] Speaker 02:
So sound damping material that would selectively damp out all high frequencies and leave low frequencies untouched will directly conflict with that goal.

[00:24:03] Speaker 04:
Thank you, Mr. Halperin.

[00:24:07] Speaker 04:
Mr. Fleming has some rebuttal time on the cross peel.

[00:24:14] Speaker 00:
Thank you, Your Honor.

[00:24:16] Speaker 00:
Just two points, unless the Court has further questions.

[00:24:18] Speaker 00:
First of all, I discussed Figure 18.

[00:24:21] Speaker 00:
The whole point of our argument on Figure 18 is it does not fully exhaust the teachings of Saddayeh.

[00:24:26] Speaker 00:
Judge Dyke, Your Honor, is exactly right that Saddayeh does disclose using sound-damping material all the way up the back wall.

[00:24:32] Speaker 00:
My references for that are page 582 of the appendix, where Saddayeh says that a sound-damping material, for example, felt

[00:24:40] Speaker 00:
quote, may be provided on an entire surface of the wall surface of sound guiding part 40 and then again on 583 that this includes, quote, on the wall surface from the sound source space 41 to the sound path 42 and the figures in the patent including figure 18 make very clear that the sound source space 41 is the area immediately below the speaker including the back wall.

[00:25:05] Speaker 00:
Dr. Viperman explains this in his declaration

[00:25:08] Speaker 00:
on A504.

[00:25:10] Speaker 00:
Again, without contradiction from THX's expert, he says that the felt or the pressure adjustment section is, quote, forming the outer shape of and lining the sidewalls of the SoundDoc 40, including the back wall.

[00:25:23] Speaker 00:
So the evidence is clear that the sound, and there's nothing going against it on the other side other than attorney argument.

[00:25:30] Speaker 00:
There was no reference to anything that THX's expert said on this point because he didn't say anything on this point.

[00:25:37] Speaker 00:
And then the second point is there's no suggestion that there's anything all that difficult about this, particularly for someone with a master's degree and two years experience designing speakers.

[00:25:47] Speaker 00:
All we're talking about is taking the sound damping material already in the back of Tomonori, which has a straight back wall, and making it into a curve that tracks the contour or follows the contour of the speaker cone.

[00:25:59] Speaker 00:
There's no suggestion that would have been beyond the skill of an ordinary artisan or that it would have had any kind of unexpected results.

[00:26:06] Speaker 00:
Unless the court has further questions, we respectfully submit that the court should reverse as to Claim 3 and affirm as to Claims 1 and 2.