[00:00:00] Speaker 02: There were four argued cases this morning. [00:00:03] Speaker 02: Three of them are related and raise a common appealability issue. [00:00:08] Speaker 02: And the panelists decided we do not want to have the appealability issue argued in 1945 and 1946, but only in 1944. [00:00:21] Speaker 02: And the consequence of that, we hope, is that the argument on the [00:00:26] Speaker 02: Later two cases which will address only the merits can perhaps be briefer and you won't find it necessary to use your entire time. [00:00:39] Speaker 02: Also, with respect to the appellants, you have the wrong appendix materials in the blue brief with respect to 1945. [00:00:52] Speaker 02: You should be careful about that. [00:00:56] Speaker 02: because it's quite inconvenient to us to take a brief home and find that we have the wrong appendix material in there. [00:01:04] Speaker 02: And then finally, with respect to the red brief, there seem to be confidentiality markings there which are difficult to justify. [00:01:12] Speaker 02: There are really confidentiality markings about legal argument that's being made about facts which are disclosed elsewhere, and that's not appropriate, and that's true of all three of the red briefs. [00:01:27] Speaker 02: Uh, why don't we hear our first case, which is a 15-1944 Wi-Fi 1 LLC versus Broadcom Corporation. [00:01:38] Speaker 02: Mr. Colley. [00:01:40] Speaker 04: Thank you, Your Honor. [00:01:51] Speaker 04: May it please the court. [00:01:53] Speaker 04: We're here, as Your Honor has alluded to, on three related appeals from the Patent Trial and Appeal Board, finding three separate patents invalid after final determination. [00:02:08] Speaker 04: These appeals raise, first, an issue of reviewability of the Board's determination under 315B that there is not a time bar to the proceedings. [00:02:22] Speaker 04: In addition to the reviewability, we believe that there is raised a question of evidence, whether the evidence before the board justifies this court in determining not only is that issue reviewable, but that the evidence shows that in fact the claims are time barred. [00:02:37] Speaker 04: And in the alternative, that if the evidence is not sufficient at this point, [00:02:42] Speaker 04: that each of the proceedings should be remanded to the board for appropriate discovery to enable the board and ultimately this court to determine those facts. [00:02:54] Speaker 04: Then, of course, the court may choose to proceed on to the merits of the determinations of invalidity. [00:03:01] Speaker 04: And as Your Honor has directed, we'll be prepared to discuss that in subsequent arguments. [00:03:09] Speaker 04: Of course, as the court is well aware, the decision [00:03:12] Speaker 04: of the reviewability of the time bar under 315b is impacted by the Supreme Court's recent decision in Cuozzo. [00:03:23] Speaker 04: As the Court knows in that case, the Court observed, first of all, that there is a powerful and strong presumption of reviewability of agencies' actions by an Article III [00:03:41] Speaker 04: In order to overcome that presumption, the Supreme Court reminded us that there must be clear and convincing, that's the Supreme Court's language, clear and convincing indication of congressional intent to curb judicial review. [00:04:00] Speaker 04: Obviously, that indication exists in section 314 of the America Invents Act. [00:04:07] Speaker 01: We do have precedent that's almost squarely on point on this particular issue. [00:04:12] Speaker 01: So why don't you try to distinguish it? [00:04:13] Speaker 01: Why should we not follow? [00:04:15] Speaker 01: I mean, we're going to have to follow our precedent. [00:04:19] Speaker 01: But what makes your argument different here? [00:04:22] Speaker 04: Your Honor's referring, of course, to the Caddies decision of 10 months ago. [00:04:28] Speaker 04: What is different is that we now have direction from the Supreme Court that tells us that that decision was wrongfully decided. [00:04:40] Speaker 04: Well, how does it do that? [00:04:41] Speaker 04: Because, yet, the Supreme Court in Cuozzo tells us that in order to extend the bar on appellate review found in 314D outside of that section, it must be closely tied to the decision of institution. [00:05:07] Speaker 04: In the first place, as [00:05:10] Speaker 04: Justice Breyer went to some pains in Kuozo to explain to us things that would not be barred from review. [00:05:19] Speaker 04: The first was constitutional questions. [00:05:22] Speaker 04: But the second matter that the court explained to us would not be barred from review would be violations of statutes whose scope extends beyond this section, 314. [00:05:40] Speaker 04: The decision of the application of the time bar of 315B extends beyond the decision to institute. [00:05:53] Speaker 04: As the board has recognized, it is a fact-intensive inquiry, and it frequently merits development and decision based on the facts adduced at the trial stage. [00:06:07] Speaker 04: That fits precisely within Judge Breyer's admonition that violation of a statute that extends beyond the prohibition of appeal of 314-D is subject to judicial review. [00:06:25] Speaker 04: There is another more fundamental reason. [00:06:30] Speaker 01: The Supreme Court in Cuozzo... So in this case, what's the extension of scope that you're arguing? [00:06:36] Speaker 01: that patentability issues or institution issues are restricted to patent law, to patentability, to 102, 103, 112, as opposed to an issue such as this, that we're looking at real party interests, and that extends to law in general. [00:06:57] Speaker 01: It's just limited to patent law. [00:06:59] Speaker 04: Yes, Your Honor. [00:07:00] Speaker 04: The Supreme Court went to some pain [00:07:03] Speaker 04: to explain the congressional rationale for limiting review of institution decisions. [00:07:08] Speaker 04: And they were basically that the experts in the PTO should be entitled to exercise their expertise as experts in patent law and as experts in technology in making the decision whether or not to institute review of their own work. [00:07:26] Speaker 04: Those considerations, though, do not apply to the legal issues presented by the time bar of 315B. [00:07:35] Speaker 04: That involves an inquiry into whether or not there is privity of interest or whether or not there are parties in interest, in this case by the petitioner Broadcom and the Texas defendants who were time barred. [00:07:49] Speaker 04: Those issues have nothing to do with patent law. [00:07:55] Speaker 04: They have nothing to do with technology. [00:07:57] Speaker 02: Doesn't Quozo have anything to do with patent law? [00:07:59] Speaker 02: And so it was a question of whether you had to have raised the issue in the petition in the first place. [00:08:05] Speaker 02: So wasn't it an issue related to substantive patent law? [00:08:07] Speaker 02: In fact, Quozo suggests that if you're dealing with issues of substantive patent law, for example, whether they could rely on a 112 analysis in IPR, Justice Breyer's opinion suggests that that's not appropriate, that you can't [00:08:25] Speaker 02: would go for a substantive round of rejection that's beyond 102 and 103. [00:08:30] Speaker 04: He did suggest that, Your Honor. [00:08:31] Speaker 04: But with respect, it did involve a question of patent law in Kuozo. [00:08:36] Speaker 04: Kuozo involved the issue under 112A3 of whether the petition identified the claims at issue with sufficient particularity. [00:08:48] Speaker 04: The Supreme Court went out of its way to explain [00:08:52] Speaker 04: that decision involves issues of patent law, namely the dependency relationship between a dependent claim and another dependent claim that it depends on and ultimately an independent claim. [00:09:06] Speaker 04: That was an issue of patent law. [00:09:08] Speaker 04: It also involves issues of technology to determine the extent of the overlap between the single claim identified in the petition and the two additional claims that the [00:09:22] Speaker 04: board found satisfied 112. [00:09:25] Speaker 04: So that exactly was an issue of patent law. [00:09:28] Speaker 04: And the Supreme Court went out of its way to explain that it was within the expertise of the board to make that kind of mind-run decision. [00:09:39] Speaker 04: When we read this petition, with our knowledge of patent law and our knowledge of technology, does it fairly identify additional claims that should be subject to review? [00:09:49] Speaker 04: Contrast that, Your Honor. [00:09:50] Speaker 04: with the decision facing the board under 315B, the time bar. [00:09:56] Speaker 04: There's no issue of patent law there. [00:09:58] Speaker 04: There's no issue of a technology there. [00:10:02] Speaker 04: It's strictly a legal question. [00:10:04] Speaker 04: Are they a party in interest, and are they a privy? [00:10:08] Speaker 04: Your Honor referred to the, a caddies decision. [00:10:13] Speaker 04: A chadies. [00:10:14] Speaker 04: Sorry? [00:10:15] Speaker 02: I think it's pronounced a chadies. [00:10:17] Speaker 04: Achades. [00:10:17] Speaker 04: Well, I'll certainly adopt your honor's pronunciation. [00:10:22] Speaker 04: The Achades decision, in that decision, although the court did find that the time bar decision was unreviewable without the benefit of the guidance of Cuozzo, the court in Achades specifically found that the time bar decision [00:10:44] Speaker 04: does not relate to an issue of patentability. [00:10:48] Speaker 04: It was described as simply a rule of procedure, something that identifies the class of people that are and are not entitled to file a petition for review. [00:10:59] Speaker 04: That's exactly what puts this squarely within Justice Breyer's description of a statute whose scope extends beyond the reviewability prohibition of 314B. [00:11:15] Speaker 00: Could I get you to turn to claim 15 of the patent? [00:11:21] Speaker 00: I understand your argument about the textual language of A, what we're calling A, B, and C, the three components that are in dispute here and the connection between B and C. But as a practical matter, my question is how could you have a system that works in which it uses the erroneous sequence number length field [00:11:45] Speaker 00: without an erroneous sequence number field, which is what your construction, as I understand it, would require. [00:11:55] Speaker 04: The erroneous sequence number field, Your Honor? [00:11:59] Speaker 00: No. [00:11:59] Speaker 00: What your construction, as I understand it, would require that the erroneous sequence number length field could stand alone without the erroneous sequence number field, which is [00:12:14] Speaker 00: the construction that you give to the last clause after we go through length, erroneous sequence number, erroneous sequence number field, and then each of said erroneous sequence number field, et cetera. [00:12:26] Speaker 00: How can that work? [00:12:28] Speaker 00: Because I can understand how you could have an erroneous sequence number field without an erroneous sequence number length field because you could just have a first-last system, or you could just denominate each of the missing packets. [00:12:43] Speaker 00: But the link field, it seems to me, without the erroneous sequence number field would be untied to anything. [00:12:48] Speaker 00: I don't see how that works in a practical matter. [00:12:52] Speaker 04: Well, in terms of how it works from the perspective of a computer scientist, and I'm not a computer scientist at the moment, I don't mean to say that. [00:13:06] Speaker 00: I'm sure you're prepared to address that. [00:13:08] Speaker 04: Our point, Your Honor, is not how it works. [00:13:12] Speaker 04: or even whether it works, because I was on the ground of invalidity and couldn't properly be before the board. [00:13:19] Speaker 04: But that Claim 15 requires a length field. [00:13:24] Speaker 00: Yes, yes. [00:13:25] Speaker 00: But what I'm really asking is not a validity question of whether it works, but a question of whether it's sensible to read the claim as you propose if the claim doesn't make any sense if it's read that way. [00:13:38] Speaker 00: So if you can explain to me how it makes sense to have an erroneous sequence number link field without an erroneous sequence number field, that would put my mind at ease. [00:13:50] Speaker 04: Okay. [00:13:54] Speaker 04: I think that those two types of error can be viewed as independent. [00:14:00] Speaker 04: One is not necessarily dependent on the other. [00:14:02] Speaker 04: One can be erroneous. [00:14:04] Speaker 04: They both can be erroneous. [00:14:06] Speaker 04: But again, [00:14:07] Speaker 04: the legal issue is, does the claim 15 require a length field? [00:14:15] Speaker 00: Yes, that's the ultimate issue. [00:14:17] Speaker 00: But in order to get there, you have to persuade us that you can't have an erroneous sequence number field without an erroneous sequence number length field. [00:14:28] Speaker 00: And if the claim [00:14:30] Speaker 00: is properly construed to mean you could have an Oroni sequence number field without an Oroni sequence number length field, then the claim doesn't require a length field. [00:14:39] Speaker 00: You agree with that proposition? [00:14:40] Speaker 04: Well, I think that it does by its explicit terms. [00:14:44] Speaker 00: I understand. [00:14:45] Speaker 00: That's why I think you may be right about the better technical reading of the language. [00:14:52] Speaker 00: But my question then is, why should we read the language that way if it makes no sense? [00:14:57] Speaker 00: As a practical matter, you couldn't have a system operate that had only the erroneous sequence number length field and without the erroneous sequence number field. [00:15:07] Speaker 04: I think that the best I can say in response to that, Your Honor, is that that's an interesting argument and an interesting observation and an interesting issue, but that it is, at the end of the day, not pertinent to the question of whether the claim contains that language [00:15:24] Speaker 04: and whether, say oh, the allegedly invalidating reference discloses a length field. [00:15:29] Speaker 04: That was the basis of the board's decision, and that was error. [00:15:34] Speaker 02: So if you look at figure 10 here, just so that I understand the terminology, there's a reference there that L1 says 3. [00:15:42] Speaker 02: That's the number sequence length field, the L. Figure 10, your honor. [00:15:52] Speaker 04: There are, yes, Your Honor. [00:15:56] Speaker 00: L1. [00:15:56] Speaker 00: L1. [00:15:57] Speaker 00: Not length, but L1. [00:16:00] Speaker 00: Length is just the length field as opposed to the sequence number, erroneous sequence number length field. [00:16:06] Speaker 02: I think that's right, Your Honor. [00:16:07] Speaker 00: Yeah. [00:16:08] Speaker 00: And SN. [00:16:08] Speaker 02: That's what L1 is. [00:16:09] Speaker 02: And SN is the erroneous. [00:16:12] Speaker 02: Sequence number. [00:16:13] Speaker 02: Sequence number. [00:16:14] Speaker 02: Right. [00:16:16] Speaker 02: Okay. [00:16:17] Speaker 02: Thank you, Your Honor. [00:16:18] Speaker 02: We'll give you two minutes for a bottle. [00:16:29] Speaker 05: Mr. Massa. [00:16:31] Speaker 05: May it please the Court? [00:16:32] Speaker 05: I'll start where Your Honor's finished with Claim 15. [00:16:37] Speaker 05: It does not make any sense for there to be an erroneous sequence number length field without an erroneous sequence number field. [00:16:46] Speaker 05: And if you read Claim 15, in light of the specification of which it is part, the interpretation of the Board is correct. [00:16:55] Speaker 05: If you look at the figures on page A31, [00:16:58] Speaker 05: There is a little bit of strange labeling. [00:17:01] Speaker 05: The figure that Your Honor Judge Dyke was referring to is actually labeled Figure 11. [00:17:06] Speaker 05: It's labeled at the bottom of the figure rather than the top. [00:17:10] Speaker 05: But if we look at those two figures together, Figure 10, which refers to the chart above it, and Figure 11, we can see a situation in Figure 10 in which there is SN1, SN2, et cetera. [00:17:22] Speaker 05: Those are the erroneous sequence number fields. [00:17:26] Speaker 05: It's clear in figure 10 that you can have an erroneous sequence number field without always having an associated erroneous sequence number length field, which is why claim 15 is written as a choice. [00:17:39] Speaker 05: Because there's a zero after L2? [00:17:43] Speaker 05: I'm sorry. [00:17:43] Speaker 05: Because there's a zero after L2? [00:17:50] Speaker 05: So for in figure 11 to L2, [00:17:52] Speaker 05: is just identifying the length of the erroneous sequence number field. [00:17:56] Speaker 02: Does that mean that 101 is the only error? [00:18:00] Speaker 02: The length isn't greater than 101. [00:18:03] Speaker 02: I mean, it doesn't include 102 and 103, for example. [00:18:06] Speaker 02: That's correct. [00:18:07] Speaker 05: When you have an erroneous sequence number, you can then have a length field which describes a span of erroneous sequence numbers following that. [00:18:13] Speaker 05: But if the length is zero, [00:18:15] Speaker 05: There's just that one. [00:18:16] Speaker 00: So what you're saying, if I understand it, is that figure 10, the chart that's above the designation for figure 10, is a demonstration of a case in which there's an Oroni sequence number field without an Oroni sequence number length field. [00:18:28] Speaker 00: That's correct. [00:18:29] Speaker 00: And figure 11 is a demonstration of the Oroni sequence number field with an Oroni sequence number length field. [00:18:35] Speaker 05: That's correct. [00:18:37] Speaker 05: And contrary to what Wi-Fi 1 is arguing, there is no example in the patent [00:18:44] Speaker 05: of an erroneous sequence number length field without a corresponding erroneous sequence number field. [00:18:49] Speaker 00: It's hard for me to see how that would make sense. [00:18:51] Speaker 00: Why would you ever have the length if you haven't got the first erroneous packet listed? [00:18:58] Speaker 05: I agree, Your Honor. [00:18:59] Speaker 05: And the question was, how is this described? [00:19:05] Speaker 05: It's being raised now as an issue of claim construction. [00:19:07] Speaker 05: But there was sufficient evidence in the record from the declarations of the experts [00:19:13] Speaker 05: Patent Office considered this. [00:19:15] Speaker 05: But really the issue is reading the patents, reading claim 15 in light of the specification. [00:19:21] Speaker 00: And here's where I don't follow your argument, and that is where you say that the language itself of claim 15 supports you. [00:19:31] Speaker 00: I understand the argument about the way the specification seems to make the language as read by the appellants not make sense. [00:19:40] Speaker 00: I understand that argument, but I don't understand [00:19:43] Speaker 00: how you can say conclusively that the language of the claim actually reads on a system in which there's no length field. [00:19:54] Speaker 00: And the reason, let's take the claim language. [00:19:56] Speaker 00: In fact, if you can bear with trying to boil it down, let's say instead of the A and B and C, there's a confusing set of words. [00:20:04] Speaker 00: But let's just call it Argentinians, Bolivians, and Colombians. [00:20:10] Speaker 00: And then instead of associated with us, they married. [00:20:13] Speaker 00: And it seems to me, if you read the language of the claim, what you've got is Argentinians, Brazilians, and Colombians. [00:20:21] Speaker 00: Each of the Brazilians, that's the second category, is married to a Colombian. [00:20:28] Speaker 00: And that means that all Brazilians in your group are married to Colombians. [00:20:32] Speaker 00: But it doesn't mean that all Colombians, the last group, are married to Brazilians. [00:20:37] Speaker 00: So you've got it flipped the other way. [00:20:41] Speaker 00: Why is my South American analogy wrong? [00:20:46] Speaker 05: You follow me, I think. [00:20:48] Speaker 05: I do follow you, Your Honor. [00:20:49] Speaker 05: And I agree it's not the most artfully drafted claim. [00:20:52] Speaker 05: But you do need to look at the claim and look at the specification. [00:20:55] Speaker 00: I know. [00:20:56] Speaker 00: But you make the argument that the claim itself, the language is clear, that it reads the other way from my resilience. [00:21:05] Speaker 00: I don't get it. [00:21:06] Speaker 05: So let's parse it this way. [00:21:09] Speaker 05: phrase is preceded by at least one. [00:21:13] Speaker 05: So you have a situation where there's at least one of an Argentinian, at least one of a Brazilian, at least one of a Colombian. [00:21:20] Speaker 05: And when there is a Colombian, that Colombian is associated with a Brazilian. [00:21:27] Speaker 00: Wait, wait, wait, wait. [00:21:28] Speaker 00: It says, each of said plurality of erroneous sequence number fields, those are the Brazilians. [00:21:35] Speaker 00: Right? [00:21:36] Speaker 00: That's B. [00:21:38] Speaker 00: Those are the Brazilians, are associated with respect to one of said plurality of erroneous sequence number length fields. [00:21:44] Speaker 00: Those are the Colombians. [00:21:45] Speaker 00: So all Brazilians are married to a Colombian and not all Colombians are married to a Brazilian. [00:21:50] Speaker 00: That's my reading and why is that wrong? [00:21:53] Speaker 05: It's incorrect because you read the three-part aviancy as a phrase which was [00:22:04] Speaker 05: preceded by at least one of. [00:22:06] Speaker 05: And so when you get to the end, and you have the and, and the plurality of Voronius sequence number length fields, and the plurality of Colombians, each of said Brazilians associated with the respective one of said Colombians, it's only when you have a Colombian you then have each length field associated, each Brazilian associated with the Colombian. [00:22:34] Speaker 05: In terms of A, B, and C, it could have been written at least one of A or B and B and C. Granted, that would have been clearer. [00:22:43] Speaker 05: That's what the specification shows. [00:22:46] Speaker 05: Wherever you have a C, it's always associated with a B. The C never exists apart of itself. [00:22:54] Speaker 00: Well, I won't pester you any farther on this, so you might want to turn to somebody else who wants to pester you. [00:23:01] Speaker 02: I put aside the Brazilians and the Colombians. [00:23:07] Speaker 02: It seems to me that the argument here is that this claim requires the expression of the errors by stating a range. [00:23:17] Speaker 02: In other words, instead of a first to last, which is the prior art in some respects. [00:23:27] Speaker 02: So why is that reading wrong? [00:23:30] Speaker 02: In other words, [00:23:32] Speaker 02: The sequence number length field tells you what the length of the erroneous sequence is, whether it's 3, 4, 1, 0, whatever. [00:23:46] Speaker 02: And this is the way this claim is supposed to read. [00:23:49] Speaker 02: It's by communicating information about the length of the sequence. [00:23:53] Speaker 02: And rather than doing a list of the erroneous numbers or first or last, [00:24:00] Speaker 02: expression what why isn't that an inappropriate reading of this claim? [00:24:05] Speaker 05: The way the claim is written with the requirement that there's only at least one of these fields required. [00:24:11] Speaker 05: It covers the bitmap situation. [00:24:14] Speaker 05: So if you had at least one of a length, not the original. [00:24:17] Speaker 02: So that's really the issue, isn't it, whether it covers the [00:24:20] Speaker 02: both the bitmap and list situation. [00:24:23] Speaker 05: Yes, sir. [00:24:24] Speaker 05: It is drafted to cover those situations described in claims. [00:24:28] Speaker 05: It's not limited. [00:24:29] Speaker 05: And because it uses at least one of length, end of story, that claim is met if it only has a length field, not if it ever has an erroneous sequence number field. [00:24:37] Speaker 02: But if you read it to say that there has to be a sequence number length field for each erroneous sequence number field, you'd be saying essentially that this is dealing [00:24:50] Speaker 02: with the expression of a range in which the first number is expressed and you're told by the sequence number length field how long the string is, right? [00:25:03] Speaker 05: And that is one of the three options. [00:25:04] Speaker 05: So it written in terms of at least one of, you can have the option where you're doing a bitmap and all you have in that situation is the length of the bitmap. [00:25:14] Speaker 05: the second situation where you're only identifying one erroneous sequence number or you're identifying each. [00:25:20] Speaker 02: So that's basically the issue here is whether this is confined to the expression in terms of a range or whether it includes the other alternatives. [00:25:28] Speaker 02: Is that a fair statement? [00:25:30] Speaker 05: Correct, Your Honor. [00:25:31] Speaker 05: And if you look at the charts that we were just looking at, Figure 10 and Figure 11, Figure 10 is the chart where you have just the sequence numbers listed, no length fields for erroneous sequence numbers. [00:25:41] Speaker 05: So you're identifying each and every erroneous sequence. [00:25:44] Speaker 02: But how do we know that figure 10 is within this claim? [00:25:48] Speaker 02: How do we know that figure 10 is within this claim? [00:25:51] Speaker 05: There's no indication that they intended to exclude figure 10 from this claim. [00:25:56] Speaker 05: And they did it by virtue of the at least one of construction. [00:26:01] Speaker 05: They said you can have at least one of the length, which includes the bitmap. [00:26:05] Speaker 05: No identification of erroneous sequence numbers. [00:26:07] Speaker 05: The second option was figure 10, which lists just [00:26:11] Speaker 05: the sequence number. [00:26:12] Speaker 05: So if 1, 3, 5, and 6 were erroneous, you'd have to say 1, 3, 5, and 6. [00:26:18] Speaker 05: The third option is associated erroneous sequence number with erroneous sequence number length field. [00:26:24] Speaker 05: If 1, 3, 5, and 6 were erroneous, you could say 1, 3, 5, with a length of 2. [00:26:30] Speaker 05: All three of those charts figures [00:26:34] Speaker 05: four, five, six, and nine, ten, and eleven are encompassed by those three parts of the plan. [00:26:40] Speaker 02: Yeah, and I understand that, and that seems to be correct, but my problem is with each of said language that it's at the end there, which creates our confusion here. [00:26:50] Speaker 05: I agree, it's not the model of clarity, but it does define the antecedent immediately before it, so it is associated with the third option. [00:27:01] Speaker 05: When you have [00:27:03] Speaker 05: an erroneous sequence number length field, those erroneous sequence numbers must be associated with an erroneous sequence number length field. [00:27:10] Speaker 02: It's just saying that you can't have a length field alone, because it's just Bryson said that wouldn't tell you enough information. [00:27:15] Speaker 02: That's right. [00:27:16] Speaker 05: It's as if it said, you can have at least one of A, B, and C, but we really don't mean you can have C alone. [00:27:21] Speaker 05: Every time you have C, it must also have a B associated with it. [00:27:25] Speaker 05: And in the context of the spec, it's clear that that's the intention. [00:27:29] Speaker 05: If I could address Quozo and Niketi spiritually, Your Honor. [00:27:33] Speaker 05: This court's decision in a Shadies, a Kettys, however you pronounce it, is good law. [00:27:40] Speaker 05: It stands. [00:27:41] Speaker 05: Nothing in the quoso called it into question. [00:27:44] Speaker 05: The Supreme Court in the quoso said that their decision applies where the grounds for attacking the decision to institute IPR consists of questions that are closely tied to the application and interpretation of statutes related to the Patent's Office decision [00:28:03] Speaker 05: to initiate inter-parties review. [00:28:06] Speaker 05: 315b is, by its very terms, describes when the patent office may or may not institute IPR. [00:28:15] Speaker 05: It literally uses the word institution in section 315b. [00:28:20] Speaker 05: You could not hew any more closely to the Supreme Court's holding in which the provision that we're talking about relates to the decision to institute. [00:28:31] Speaker 05: It is even closer [00:28:33] Speaker 05: than the very section that the court was looking at in HOSA, which was 312. [00:28:39] Speaker 05: And 312A, which in that section, it was 312A3. [00:28:51] Speaker 01: Well, your argument is that as long as the pen office uses the word institution anywhere in a decision that deprives us [00:29:03] Speaker 05: Well, that issue is not before the court here, Your Honor, and there may be situations. [00:29:10] Speaker 01: That's your argument, right? [00:29:12] Speaker 05: A decision to institute is not reviewable, and that's what Cozzo said. [00:29:18] Speaker 05: And you were affirmed by the Supreme Court saying that those decisions are not reviewable. [00:29:25] Speaker 05: The Supreme Court left open challenges which would be appropriate if there was a constitutional violation. [00:29:32] Speaker 05: or other, quote, shenanigans. [00:29:34] Speaker 05: For example, if institution was granted 112 grounds, which by statute are not appropriate grounds to institute IPR, then that's left open. [00:29:44] Speaker 02: That may be- What about the reasoning of the Chates itself, which suggested that if it's a procedural problem with the institution, which could have been fixed, then it's not something that can be appealed. [00:29:58] Speaker 02: which would not include Justice Breyer's example of instituting based on 112. [00:30:03] Speaker 02: There's no way to fix that. [00:30:05] Speaker 02: But with respect to the problem that existed in QOZO itself, that is the argument that it wasn't in the petition, or the argument in Achades that it wasn't timely instituted because of the privity, these are things that could have been fixed if a different procedure had been followed. [00:30:23] Speaker 05: Right, and this case is on all fours with Achades. [00:30:27] Speaker 05: There is hardly, [00:30:28] Speaker 02: I don't think anybody at this point is really arguing with the contrary, though. [00:30:32] Speaker 02: They did in their brief. [00:30:35] Speaker 05: And so in Achades, there was the issue of, is it time barred? [00:30:38] Speaker 05: There was the issue of, was there an indemnity agreement? [00:30:40] Speaker 05: There was the issue of whether there should have been discovery about an indemnity agreement. [00:30:44] Speaker 05: The same issues we have here. [00:30:46] Speaker 05: And Achades says, you know, a proper petition could have been filed. [00:30:51] Speaker 05: The time bar being within the discretion of the Patent Office is wavering. [00:30:58] Speaker 02: What it's saying is you can't appeal procedural defects like this. [00:31:01] Speaker 02: That's what Congress intended by the appeal bar. [00:31:05] Speaker 05: Procedural defects that are closely related to the decision to institute, not reviewable. [00:31:10] Speaker 05: The ultimate final written decision under 319, reviewable for issues of patentability, which goes to the congressional purpose of [00:31:21] Speaker 05: restoring faith in the patent system. [00:31:26] Speaker 05: Thank you, Your Honor. [00:31:27] Speaker 02: Thank you, Mr. Thompson. [00:31:30] Speaker 02: Mr. Crawley, you have two minutes. [00:31:37] Speaker 04: Thank you, Your Honor. [00:31:38] Speaker 04: The decision under 315B is not limited to the decision of the Institute. [00:31:45] Speaker 04: it occurs more frequently at the trial stage. [00:31:48] Speaker 04: It must because it requires, in many instances, a development of the facts. [00:31:53] Speaker 04: In this case, the application for discovery, which was denied, the motion for rehearing, which was denied, the mandamus to this court, which was denied without prejudice to raising the bar after final determination. [00:32:08] Speaker 04: All of those happened at the trial stage, not at the institution stage. [00:32:13] Speaker 04: That is why the bar of 315b falls within what Justice Breyer described as the violation of a statute whose scope extends beyond 314. [00:32:31] Speaker 04: Briefly on the merits, Your Honor, although we spent quite a bit of time discussing Claim 15, [00:32:42] Speaker 04: There are other reasons why the single reference of SAO does not anticipate the 215 patent. [00:32:51] Speaker 04: First, the claims require a type identifier field, and SAO has no such field. [00:32:56] Speaker 04: It has two separate fields for a list and a bitmap. [00:33:00] Speaker 04: They are always transmitted. [00:33:02] Speaker 04: Sometimes there's values there. [00:33:03] Speaker 04: Sometimes there's not. [00:33:05] Speaker 04: But SAO does not include a type identifier field. [00:33:09] Speaker 04: And second, the claims require that the type identifier field be in the message field, or the payload. [00:33:16] Speaker 04: And SAO does not disclose a type identifier field in the payload. [00:33:22] Speaker 04: In summary, Your Honor, we believe that on the merits, the board committed error in finding the patent invalid. [00:33:29] Speaker 04: But overarching that error, we think that it is clear under the Supreme Court's precedent of guozo [00:33:37] Speaker 04: that the decision on time bar, the existence of privity and party and interest is reviewable by an Article III court. [00:33:47] Speaker 01: Why is it that ESEO has two types of fields that I see may apply here, the NAK and the NAK type. [00:33:56] Speaker 01: Why is that not a field identifier field? [00:33:58] Speaker 04: Those are two different fields, Your Honor. [00:34:02] Speaker 04: accomplish the same objective of identifying whether the transmitter is dealing with a bitmap or a list, but it does it in a different way than the claims of the patent described. [00:34:15] Speaker 00: You mentioned that the patent requires that the type identifier field appear in the message, not in the header. [00:34:25] Speaker 00: And I didn't see anything in the patent that does that. [00:34:28] Speaker 00: Is that in the patent? [00:34:31] Speaker 04: Figure eight of the patent shows the message field in the payload. [00:34:36] Speaker 04: It's a single patent including multiple message fields. [00:34:40] Speaker 00: Yeah. [00:34:41] Speaker 00: But nothing in the claim suggests, right. [00:34:44] Speaker 04: It's not in the claim. [00:34:45] Speaker 00: It's just always acquired. [00:34:46] Speaker 04: But the claim as informed by the specifications show that it is in the message field. [00:34:52] Speaker 02: Okay. [00:34:53] Speaker 02: Okay. [00:34:53] Speaker 02: Thank you, Mr. Hall. [00:34:56] Speaker 02: Thank you. [00:34:56] Speaker 02: Let's move on to our second case, which is number 15-1945, live by one LLC versus Broadcom. [00:35:06] Speaker 02: Thank you, Your Honor. [00:35:11] Speaker 04: I'll observe the court's admonition to be brief. [00:35:15] Speaker 04: If we're through with the discussion of Kubozo and its implications, then on the merits, the patent trial appeal board [00:35:26] Speaker 04: aired in finding the two references, Morley and Adams. [00:35:29] Speaker 02: So this boils down to the transmission characteristic question. [00:35:33] Speaker 02: So why does the claim require a transmission characteristic as well as part of a service type identifier? [00:35:42] Speaker 02: The way I read the specification, it distinguishes between those two things. [00:35:49] Speaker 04: In 927 through 32, the specification [00:35:55] Speaker 04: refers to a field that serves the purpose of a service type identifier, regarding the type of service which the associated payload, I'm sorry, column 9, lines 27 through 32. [00:36:11] Speaker 00: This is the one that has the wrong identity. [00:36:30] Speaker 04: Thus, according to another exemplary embodiment of the present invention, the FOC fields may also serve the purpose of service-type identifier. [00:36:41] Speaker 04: In this embodiment, the FOC can provide information regarding the type of service which the associated payload is currently supporting [00:36:49] Speaker 04: the channel coding and or interleaving associated therewith. [00:36:53] Speaker 02: Yeah, but that's exactly my point, because it distinguishes between the type of service and the channel coding, which is a transmission characteristic. [00:37:02] Speaker 02: It's not saying that channel coding is part of type of service. [00:37:08] Speaker 04: Well, it includes channel coding as one of the things that is transmitted in connection with the service type identifier. [00:37:16] Speaker 04: Well, so what? [00:37:16] Speaker 04: That doesn't make it part of the service time identifier. [00:37:19] Speaker 04: Well, I think a fair reading of that portion of the specification suggests that it does, Your Honor. [00:37:23] Speaker 00: What do you do with the and or, in particular the or part of that? [00:37:29] Speaker 00: It seems to me it provides three different possibilities, right? [00:37:34] Speaker 00: So it could have type, doesn't need to have channel coding or interleaving. [00:37:41] Speaker 04: Well, [00:37:46] Speaker 04: Yet the question really is, is this present in Morley or Adams? [00:37:59] Speaker 04: And it's not. [00:38:03] Speaker 00: If all that's required is type and channel coding and interleaving are not required, you say that Morley and Adams still do not. [00:38:10] Speaker 04: Yes. [00:38:10] Speaker 04: Yes, Your Honor. [00:38:12] Speaker 04: That was the PTABS construction. [00:38:14] Speaker 04: is the PTAB rejected our position that the transmission characteristics form a part of service type identifier, but even under those circumstances, neither Morley nor Adams anticipate. [00:38:26] Speaker 04: Morley does not because it does not disclose an identifier that identifies the type of information. [00:38:35] Speaker 04: Instead, it disclosed a frame type that identifies the format of the packet. [00:38:41] Speaker 04: Morley related to a receiver that would determine the format of the packet to determine whether that packet contained voice or data. [00:38:53] Speaker 04: And then the device disclosed and Morley was hardwired to send the relevant data or voice to an appropriate hardwired decoder. [00:39:06] Speaker 04: It is true that Morley [00:39:10] Speaker 04: had as one of its objects the identification by the receiver of the type of transmission. [00:39:19] Speaker 04: But it's not true that it did it in the way the patent describes, because it didn't disclose an identifier that identifies the type of information. [00:39:28] Speaker 00: What do you do with column three, line 14 through 17, in which it appears that the specification is defining a service type identifier [00:39:40] Speaker 00: as something that informs the mobile or base station of the type of information, e.g. [00:39:45] Speaker 00: voice, video, or data being conveyed and played. [00:39:48] Speaker 04: Well, it does that. [00:39:49] Speaker 00: It does that. [00:39:50] Speaker 04: And it may be that both Morley and Adams do that, too. [00:39:54] Speaker 04: But the question is, do they do it in the way that is prescribed by the claims? [00:40:01] Speaker 04: We'll take Adams as an example. [00:40:04] Speaker 04: There, Adams discloses different types of packets that may be utilized for different types of content, voice, data, video, etc. [00:40:16] Speaker 04: And the receiver in Adams identifies the type of packet. [00:40:21] Speaker 04: That satisfies that portion and accomplishes the desired goal of the portion of the specification that Your Honor is referring to, but it does it in a different way. [00:40:31] Speaker 04: It doesn't identify [00:40:34] Speaker 04: It doesn't have an identifier that identifies the type of information. [00:40:38] Speaker 04: It identifies the type of packet. [00:40:41] Speaker 00: Well, but it identifies the packet as being voice, video, or data, right? [00:40:49] Speaker 04: The packet, yes. [00:40:51] Speaker 04: Well, it identifies the packet as being of a certain type. [00:41:01] Speaker 04: And the type of packet includes, among other characteristics, the content of the data as voice, video, or data. [00:41:11] Speaker 04: So I agree with Your Honor that Adams discloses a way of identifying that information to the receiver. [00:41:19] Speaker 04: But the key to that first segment is a way, not the only way, and not the way that is disclosed in the packet. [00:41:43] Speaker 03: There are three main issues I'd like to address. [00:41:51] Speaker 03: First, the board's construction of service type identifier is correct. [00:41:56] Speaker 03: The claims, the specifications, and the prosecution history all say the same thing. [00:42:02] Speaker 03: The service type identifier identifies the type of information being conveyed in the message. [00:42:07] Speaker 03: The intrinsic evidence draws a clear distinction between that and the transmission characteristics of the message. [00:42:14] Speaker 03: Second, there's substantial evidence that Morley discloses a service-type identifier. [00:42:19] Speaker 03: The signal header tells the receiver what type of information is in the payload. [00:42:24] Speaker 03: That's what Morley says in plain English, and our expert confirmed it. [00:42:29] Speaker 03: Finally, there's substantial evidence that Adams discloses a service-type identifier. [00:42:33] Speaker 03: Again, the header tells the receiver what type of information is in the payload. [00:42:38] Speaker 03: Again, it's in plain English, and our expert confirmed it. [00:42:42] Speaker 03: Listening to Wi-Fi One's argument today, [00:42:44] Speaker 03: There is simply no daylight between what you see in Morley and Adams and what's disclosed in the patent. [00:42:49] Speaker 00: Now, Wi-Fi argues that that's really not enough to read on the patent claim, that the patent claim, even if you accept all that is true, you still don't get to the patent claim. [00:43:03] Speaker 00: You heard the argument this morning. [00:43:04] Speaker 00: I'm not sure I paraphrased Mr. Cawley accurately or completely accurately, but what's your response? [00:43:13] Speaker 03: The suggestion that the format of the frame is somehow different from identifying the type of information in the payload is a distinction without a difference. [00:43:20] Speaker 03: From the perspective of the receiver, that there simply is no difference. [00:43:24] Speaker 03: The header tells the receiver what are the contents of the frame, whether it's voice or data or video or whatever the associated content may be. [00:43:34] Speaker 03: What the receiver does with that is it then puts the video data in the video queue, the voice data in the voice queue, the associated data in the associated queue. [00:43:42] Speaker 03: that is identifying the contents of the payload. [00:43:45] Speaker 03: That's exactly what's described in the 568 patent in column three. [00:43:49] Speaker 03: When the receiver knows that type of information in the payload, it then knows how to process it. [00:43:54] Speaker 03: And when you call it an identification of the frame or the format or the identity of the payload, it's all the same thing because it is a signal that tells the receiver how do you process this based on what type of information it is. [00:44:09] Speaker 03: And again, the board's construction is correct. [00:44:12] Speaker 03: You can see the claim language itself, which refers to the service type identifier identifying the type of information in the payload. [00:44:20] Speaker 03: And the specification says that time and again. [00:44:22] Speaker 03: And further, this is confirmed by the prosecution history. [00:44:27] Speaker 03: The applicants specifically distinguished the prior rate reference on the grounds that it disclosed a field of pad channel coding and not the type of information in the payload. [00:44:38] Speaker 03: And Judge Bryson, you mentioned the and or phrase in column nine. [00:44:42] Speaker 03: And that was significant. [00:44:44] Speaker 03: It indicates that the service type identifier can tell you just the type of information in the payload, not transmission characteristics. [00:44:51] Speaker 03: And in the prosecution history, the applicants relied on that specific passage to obtain the patent. [00:44:57] Speaker 03: They specifically said that the and or passage shows that each one of those is an independent alternative. [00:45:03] Speaker 03: That's page 1279 in the prosecution history. [00:45:06] Speaker 03: It confirms that just conveying that type of information alone is enough [00:45:11] Speaker 03: to satisfy the requirement of a service type identifier. [00:45:15] Speaker 03: That's what the Board found. [00:45:17] Speaker 03: That's what's present in Morley and in Adams. [00:45:22] Speaker 03: The Board doesn't have any further questions? [00:45:24] Speaker 02: Okay. [00:45:24] Speaker 02: Thank you, Mr. Kroll. [00:45:25] Speaker 03: Thank you, Your Honor. [00:45:30] Speaker 02: Mr. Kroll, anything more? [00:45:31] Speaker 04: Thank you. [00:45:32] Speaker 04: Just briefly, Your Honor. [00:45:37] Speaker 04: The invention allows the transmitter to use a single format to identify all three types of data. [00:45:46] Speaker 04: That is in contrast with Morley, which discloses a frame type that identifies the format of the packet. [00:45:59] Speaker 04: The specification doesn't really tell us why one way of doing that is better than another. [00:46:04] Speaker 04: We might imagine that morally requires more overhead. [00:46:08] Speaker 04: But the fact of the matter is the inquiry is not do both of these patents disclose a way of allowing a transmitter to identify the type of data being transmitted. [00:46:21] Speaker 04: That would be a hopelessly broad claim. [00:46:24] Speaker 04: Instead, the claims of this patent are specifically crafted [00:46:28] Speaker 04: to require an identifier that identifies the type of information. [00:46:33] Speaker 04: Morley does not do that. [00:46:35] Speaker 04: Adams does not do that. [00:46:37] Speaker 04: And for that reason, the board erred in finding anticipation.