[00:00:00] Speaker 04:
16-25-23 DSS Technology Management Against APO, Incorporated.

[00:00:06] Speaker 04:
Mr. Buter.

[00:00:07] Speaker 00:
Thank you, Your Honor.

[00:00:10] Speaker 00:
May it please the Court?

[00:00:11] Speaker 00:
The Court should reverse the Board's decision concluding that the challenge claims the 290 patent are invalid as obvious.

[00:00:20] Speaker 00:
And it should do so because the Board improperly used the subjective consideration of a person of ordinary skills

[00:00:29] Speaker 00:
ordinary creativity to supply a key limitation that indisputably was missing from the one prior art reference that was at issue, and doing so without any reasoned analysis or evidence that could be pointed to in the record to support this subjective filling of the gap.

[00:00:51] Speaker 00:
This court, Narendi, of course, and in other decisions, has articulated several rules restricting

[00:00:57] Speaker 00:
of the board's use of subjective criteria such as common sense or objective creativity to supply such a key missing limitation.

[00:01:07] Speaker 00:
And it does so to prevent the impropriety of hindsight bias.

[00:01:11] Speaker 03:
What about the fact that the PTAP in its final written decision did at least say that it was persuaded by each of Apple's arguments?

[00:01:18] Speaker 03:
Doesn't that mean it incorporated those arguments?

[00:01:21] Speaker 00:
Well, who knows?

[00:01:21] Speaker 00:
I mean, I really don't think that's reasoned analysis to say that.

[00:01:25] Speaker 00:
Well, there's – he said, she said, you know, in going through the recitation of the parties' arguments and just saying, based on all of that, we think the challenger, the petitioner, should win.

[00:01:36] Speaker 00:
That is not reasoned analysis.

[00:01:38] Speaker 00:
There is no

[00:01:39] Speaker 00:
citing to any evidentiary support as to why a person of ordinary skill in the art would apply power conservation techniques to implement interference reduction.

[00:01:52] Speaker 00:
And those are the two key objectives of this patent, not just power conservation of batteries, but also the reduction of symbol interference with these wireless networks that could be in close proximity to each other.

[00:02:06] Speaker 00:
And in this case, I think the board

[00:02:09] Speaker 00:
Ignored is maybe too hard of a word, but didn't pay sufficient regard to that second objective of reduction of interference and focused almost solely.

[00:02:19] Speaker 00:
In fact, it did focus solely on the issue of power conservation and then said, there is a missing limitation here that with regard to servers, it doesn't show that you use them in a, that servers are used in a low duty cycle or

[00:02:35] Speaker 00:
transmit in bursts at intervals which are determined by a code sequence, but simply said that he would apply the base station to the base stations, power conservation techniques for the mobile stations, as taught in Natarajan, that does not result in a base station that transmits bursts in an otherwise quiet data channel.

[00:02:58] Speaker 00:
And the court, in its final decision, I'm sorry, the board, in its final decision, construed

[00:03:05] Speaker 00:
the entire limitation to require that those RF bursts are transmitted, not just in bursts, but in bursts on an otherwise quiet data channel.

[00:03:17] Speaker 04:
And all the power conservation... Isn't that what a burst is?

[00:03:21] Speaker 04:
Well... Presupposes that the background is quiet.

[00:03:24] Speaker 00:
Well, for mobile, for the mobile stations, yes, they fire off the transmission and then they stop.

[00:03:32] Speaker 00:
But in order to satisfy and achieve that objective of reduction of interference, you not only need bursts, which are short in duration relative to the entire process of communicating, but in order to reduce interference, you need to have this quiet data channel.

[00:03:53] Speaker 00:
You have to have no transmissions, and simply conserving battery power doesn't teach you anything

[00:03:59] Speaker 00:
about creating these otherwise quiet data channels where the reduction interference can be achieved.

[00:04:06] Speaker 00:
I could have bursts throughout the cycle.

[00:04:11] Speaker 00:
That doesn't get me reduction in interference.

[00:04:14] Speaker 00:
I can make sure that the mobile units turn off when they're not needed, which is the low-duty cycle concept, and turn on only when they are needed to transmit.

[00:04:26] Speaker 00:
That saves battery power, but if those

[00:04:29] Speaker 00:
if those changes to on and the transmissions are not carefully regulated to be short on an otherwise quiet data channel, the reduction in interference objective is completely lost.

[00:04:42] Speaker 03:
And I think the... Let me ask you, one of my problems with sorting through this record and, of course, the board's decision is that it seems like during the hearing the big focus was on the HDLC issue.

[00:04:57] Speaker 00:
Well, that was a secondary argument.

[00:04:59] Speaker 03:
I know it was your secondary argument, but it seemed like it was the focus of the hearing.

[00:05:02] Speaker 00:
Well, I think Apple successfully proved that the HDLC argument, which was that HDLC is not compatible with the 290 invention, and that was what the expert for DSS believed in the proceeding below, I think Apple successfully showed that that was not correct.

[00:05:23] Speaker 00:
So Apple, during the hearing, beat DSS over the head with that.

[00:05:27] Speaker 03:
point and it was a dead horse we're not even challenging right but but at the time the board's final written decision you were still challenging it and so the board focused on that it did you know hindsight they should have dropped it it was it was a dead horse but so I guess my question is if we sort all that out and put all that aside if we agree with you that the board didn't do enough is it

[00:05:52] Speaker 03:
Is it a situation where we should be reversing the board's determination or remanding for further consideration?

[00:05:58] Speaker 00:
Reversing because there is nothing in Natarajan that teaches sending transmissions in bursts on an otherwise quite data channel.

[00:06:08] Speaker 00:
That data channel that is disclosed in Natarajan is never otherwise quite.

[00:06:13] Speaker 00:
Period A has constant continuous transmissions by the base station to the mobile units.

[00:06:18] Speaker 00:
Period B has constant continuous

[00:06:21] Speaker 00:
transmissions by the mobile stations to the base station.

[00:06:24] Speaker 00:
And period C is a free-for-all.

[00:06:26] Speaker 00:
You know, it's this random access transmission, contention period is what they call that, where there is no provision for any quiet period during that period.

[00:06:38] Speaker 03:
Without period C. Excuse me?

[00:06:39] Speaker 00:
Period C. Yeah, period C. That's helter-skelter as far as I'm concerned.

[00:06:43] Speaker 00:
There is no teaching of creating a quiet data period within that period.

[00:06:50] Speaker 00:
that could be used to accomplish the reduction in interference.

[00:06:54] Speaker 00:
But it theoretically could be quiet?

[00:06:56] Speaker 00:
I don't believe it could be quiet for the purposes of the 290 claim because the last limitation that's at issue requires that the intervals be determined by code sequences and it is undisputed that it is completely at random in period C. So there are no code sequences that prescribe

[00:07:15] Speaker 00:
a period of quiet, where there's no transmissions going on.

[00:07:20] Speaker 00:
So throughout the entire data channel of Natarajan, there's noise.

[00:07:26] Speaker 00:
There's activity.

[00:07:27] Speaker 00:
Or at least in period C, there's the potential for activity.

[00:07:30] Speaker 00:
And most importantly, there is no provision for an otherwise quiet data channel or period on that channel.

[00:07:40] Speaker 00:
Natarajan discloses a single data channel.

[00:07:43] Speaker 00:
And it is never otherwise quiet.

[00:07:45] Speaker 00:
virtually constantly noisy.

[00:07:47] Speaker 00:
And it's that aspect of the limitation in the 290 claims and the goal of the 290 patent that I believe the board overlooked and Apple tried to pretend didn't exist, if you will, to not put any attention on there.

[00:08:05] Speaker 02:
Why is this technology so complicated?

[00:08:09] Speaker 00:
Well, it's certainly, it's not like in KSR where you're talking about a pedal that kids.

[00:08:14] Speaker 00:
That's mechanical and fairly, you know, been around for a long time.

[00:08:18] Speaker 00:
In this technology, you're dealing with oscillators and synchronization and making sure that everybody is talking to each other when they're supposed to, or if not talking, they shut down.

[00:08:29] Speaker 00:
This is not simple.

[00:08:31] Speaker 03:
Well, it might not be simple to me, but could it possibly be simple

[00:08:36] Speaker 03:
or unusually simple in the words of Arendi, one of skill in the art.

[00:08:40] Speaker 00:
Well, I don't believe so since both sides called on PhDs to try and explain this technology and why it was disclosed or not disclosed by Natarajan.

[00:08:51] Speaker 00:
But interestingly, and I think significantly, the board never defined a person of ordinary skill in the art in this case.

[00:08:57] Speaker 00:
And I think that is maybe a telltale sign of its hindsight analysis or conclusory conclusion or

[00:09:06] Speaker 00:
you know, unsubstantiated conclusion that this was obvious is that if this ordinary creativity of a person of ordinary skill in the art would lead to applying the power conservation techniques to the base station, why don't you tell us who this ordinary person of skill in the art is?

[00:09:22] Speaker 00:
Apple said it was somebody with an undergraduate electrical engineering degree plus one to two years of work in mobile and wireless networks.

[00:09:30] Speaker 04:
You know, this entire system is structured that this is a board of people

[00:09:36] Speaker 04:
who are experts who can understand the technology without the kind of instruction that a district judge would need.

[00:09:46] Speaker 04:
So I think that we don't need to overdo their absence of describing their expertise to that which is protected.

[00:09:58] Speaker 04:
But the general principle of powering down and thereby saving energy and so on, I think,

[00:10:05] Speaker 04:
does not require a degree of skill to understand the value of such a system.

[00:10:12] Speaker 00:
I don't dispute that powering down and powering up, but it's not so simple when you're dealing with a base station and all these mobile units that have to be synchronized.

[00:10:20] Speaker 00:
And in fact, the Tarzan required all these slots to be assigned so that the mobile station could know when to wake up.

[00:10:29] Speaker 00:
So it's not just turning a light on or off type of a thing.

[00:10:34] Speaker 00:
The mobile stations have to be in total sync with the base station, and therefore the assignment of slots which tell the mobile station, I'm not going to talk to you for another 20 milliseconds or whatever the time frame may be, but at that exact moment, you need to be up and on so you can get my message.

[00:10:51] Speaker 00:
That is not simple.

[00:10:52] Speaker 00:
And as I say, Apple doesn't think it's simple enough for anyone less than a double E with one to two years of experience.

[00:11:00] Speaker 04:
Well, not to understand the basic principle, but to actually implement it.

[00:11:04] Speaker 04:
And this is really the distinction, it seems to me, that we have a broad specification and the principle essentially of powering down and then operating in RF first rather than any other kind of power level or continuous power level and to draw an adequate distinction between what's in the prior art and what isn't.

[00:11:29] Speaker 04:
The board felt, whatever else, that that hadn't been drawn.

[00:11:34] Speaker 00:
Well, the specification of the 290 patent is very detailed about all of the pieces that need to work together in combination to produce this result.

[00:11:44] Speaker 04:
All of the pieces, but no specific algorithm.

[00:11:48] Speaker 00:
Well, you didn't have to teach somebody how to code to make this happen.

[00:11:54] Speaker 00:
I mean, a person of ordinary skill in the art would know how to code to power up a mobile unit or power it down, but what

[00:12:02] Speaker 00:
took skills in the Arendi format, if you will, where it wasn't just a simple pivoting of a pedal.

[00:12:10] Speaker 00:
This is far beyond that.

[00:12:12] Speaker 00:
I don't think you can find a case where the court allowed the board to use these subjective criteria to fill in a gap involving technology of this level of complexity.

[00:12:24] Speaker 00:
And if it was so simple to tell us how you would modify Natarajan in order to apply this

[00:12:32] Speaker 00:
power saving technique to the base stations, why didn't Apple tell us how this would be done?

[00:12:37] Speaker 00:
There is nothing in the record to tell us how this modification would be done and whether it would even work.

[00:12:45] Speaker 00:
How would you apply period C?

[00:12:47] Speaker 03:
They didn't have expert testimony to say it would have been obvious.

[00:12:50] Speaker 00:
Well, that was rebuttal testimony in a reply that was only made to respond to the HDLC arguments

[00:12:58] Speaker 00:
The Hugh declaration is not competent evidence to support their prima facie case.

[00:13:03] Speaker 00:
And our contention is here that they did not make their prima facie case.

[00:13:08] Speaker 00:
And so the Hugh declaration is irrelevant.

[00:13:11] Speaker 00:
Two key points.

[00:13:12] Speaker 00:
One is that the board did not articulate a reasoned basis for filling in this gap.

[00:13:17] Speaker 00:
But the more fundamental thing is that even if you apply the power saving techniques of mobile units to the base station, that does not get Apple where it needed to go.

[00:13:28] Speaker 00:
which is to show that that filled the gap of transmitting in bursts on an otherwise quiet data channel.

[00:13:35] Speaker 00:
So even if you did apply that technique in the mobile stations to the base station, that only deals with the power conservation goal.

[00:13:43] Speaker 00:
It does not satisfy the claim limitations requiring that the units transmit in RF bursts on an otherwise quiet data channel.

[00:13:53] Speaker 04:
Thank you, Your Honor.

[00:14:00] Speaker 04:
Mr. Wright.

[00:14:11] Speaker 01:
May it please the court, the board here applied the well-known obviousness rationale set forth in KSR where if a technique has been used to improve one device and a person of ordinary skill in the art would recognize

[00:14:28] Speaker 01:
that the technique would improve similar devices in the same way.

[00:14:31] Speaker 01:
Use of that technique is obvious, unless its application is beyond his or her skill.

[00:14:39] Speaker 03:
Can I get a concession from you, though, first, so we know we can get on with the real merits of this?

[00:14:44] Speaker 03:
You say in your brief that there's a difference between common sense and ordinary creativity.

[00:14:49] Speaker 03:
So therefore, we shouldn't even consider a Rendy, because that's a common sense case, and we're talking ordinary creativity.

[00:14:56] Speaker 03:
I just don't see any light of day between those principles, and I'm not sure where you're coming up with that.

[00:15:03] Speaker 01:
Yes, I concede that.

[00:15:05] Speaker 01:
And I think directly following that in our brief, we say it doesn't really matter.

[00:15:11] Speaker 01:
It's a distinction without a difference, I think.

[00:15:13] Speaker 01:
I think so.

[00:15:15] Speaker 01:
So I think the issue is whether this is a missing element case or not that brings it into a rendi or whether it's not.

[00:15:21] Speaker 01:
And here the board applied, again, that well-known rationale of applying

[00:15:25] Speaker 01:
a technique that has been used to improve one device, and if a person of ordinary skill in the art recognizes that you could use that same technique to improve similar devices, use of that technique is obvious.

[00:15:38] Speaker 03:
Okay, but where in the record, other than the HUE declaration, that it comes in in reply in response to the HDLC argument, where in your initial record do you have expert testimony that says that?

[00:15:53] Speaker 01:
So that, so the board made

[00:15:55] Speaker 01:
three specific findings or three key findings with respect to what Natarajan teaches that support that.

[00:16:05] Speaker 03:
And these three factual findings are not... So you can see there's no expert testimony that you proffered on this point about what one of ordinary skill in the art would have learned.

[00:16:18] Speaker 03:
I think that the... And that's pretty much yes or no.

[00:16:22] Speaker 03:
You either had an expert declaration at your initial

[00:16:25] Speaker 03:
petition phase or you did not?

[00:16:30] Speaker 01:
So at Appendix 1668, I think that's Dr. Grimes' testimony.

[00:16:52] Speaker 03:
What does he say on this point?

[00:16:58] Speaker 01:
So he says, turning on the transmitters for only the time necessary to transmit information as, I'm sorry.

[00:17:28] Speaker 01:
So I want to come back to our three.

[00:17:36] Speaker 01:
So the petition, just to get this out of the way, the petition focused on.

[00:17:42] Speaker 03:
So wait, can we just get an answer?

[00:17:44] Speaker 03:
The answer to my question is no.

[00:17:46] Speaker 03:
But you think it doesn't matter.

[00:17:48] Speaker 01:
I think it doesn't matter because we're not here to discuss or ascertain whether the petition was improvidently granted.

[00:17:56] Speaker 03:
I know, I don't doubt that, but the problem is that the expert testimony that we're allowed to consider has to be testimony that related to this question, because you had an obligation to satisfy your prima facie case, right?

[00:18:14] Speaker 03:
Right.

[00:18:15] Speaker 03:
And you're saying that one of skill and the art would have understood this.

[00:18:18] Speaker 03:
I get the fact that you have other arguments that you're going to make about what one of skill and the art could have just gleaned from

[00:18:25] Speaker 03:
Or however you pronounce that.

[00:18:28] Speaker 03:
But I just wanted to confirm that there was no expert testimony proffered on this point.

[00:18:40] Speaker 01:
With respect to the expert testimony that came with the petition, I think the petition was focused on what the mobile stations in Natarajan do.

[00:18:52] Speaker 01:
And that's frankly the focus of the 290 patent.

[00:18:56] Speaker 01:
as well.

[00:18:57] Speaker 01:
It's all focused on what the peripheral stations do.

[00:19:00] Speaker 01:
Now once trial was engaged and DSS focused on that point, the board interpreted Natarajan based on all of the evidence that came through in the course of the trial and made three key factual findings that are not disputed that support the board's obviousness rationale in this case.

[00:19:24] Speaker 01:
And those three findings are, first, that the transmitter in Natarajan's mobile stations are energized in low-duty cycle RF firsts.

[00:19:34] Speaker 01:
That point's not disputed.

[00:19:36] Speaker 01:
The second is that the transmitter in Natarajan's base station is the same transmitter that's used in its mobile station.

[00:19:44] Speaker 01:
That is, Natarajan's base and mobile stations use the same RF components.

[00:19:52] Speaker 01:
Well, it said it uses the same hardware.

[00:19:54] Speaker 01:
Right?

[00:19:55] Speaker 01:
The same RF components, the same hardware.

[00:19:58] Speaker 01:
OK.

[00:19:58] Speaker 01:
That's right.

[00:19:58] Speaker 01:
So there's no difference there.

[00:20:00] Speaker 01:
And the third key undisputed finding is that Natarajan's ensemble employs the very same HDLC communication protocol that the 290 patent itself uses.

[00:20:16] Speaker 01:
And with those undisputed findings, the board relied on the well-known KSR rationale

[00:20:24] Speaker 01:
that if a technique is used to improve one device, namely, Natajaran's mobile transmitter, and a person of ordinary skill in the art would recognize that it could prove a similar device in the same way, namely, Natajaran's base transmitter, then that's obvious.

[00:20:42] Speaker 01:
And that takes this case out of a regular.

[00:20:44] Speaker 03:
I mean, your friend on the other side is going to argue that it really isn't simply the same way, because you have a whole different function that is being served at the transmitter.

[00:20:55] Speaker 01:
So I'll answer that in two ways, one at a high level and one at a very specific level.

[00:21:01] Speaker 01:
The 290 patent itself focuses on the peripheral devices in the same way that Natarajan does.

[00:21:17] Speaker 01:
So for example,

[00:21:20] Speaker 01:
In column one in the 290 patent, this is at appendix 92 at line 41, it stresses that this extremely low power consumption is particularly important for the peripheral units.

[00:21:34] Speaker 01:
Then when it talks about the invention at the top of column four in Natura Jean, this is at appendix 93, it again focuses on the peripheral units.

[00:21:43] Speaker 01:
It says all the peripheral units share a common TDMA program.

[00:21:48] Speaker 01:
And then at line six, it says, in the intervals between slots in which a PEA is to transmit or receive, all receive and transmit circuits are powered down.

[00:21:57] Speaker 01:
It's focusing on the PEA.

[00:21:59] Speaker 03:
Do you dispute that the patent also discusses the importance of the interplay between the transmitter and the peripheral unit?

[00:22:09] Speaker 03:
Well, between the... I'm sorry, between... Between the transmitter, the role of the transmitter,

[00:22:18] Speaker 03:
and the peripheral units?

[00:22:20] Speaker 01:
Well, what the 290 pattern has is a lot of discussion about how you synchronize the peripheral stations with the base station.

[00:22:30] Speaker 01:
And that's where you see this is from column 9 basically all the way over to column 11.

[00:22:36] Speaker 01:
That's just synchronizing a peripheral station with the base station.

[00:22:39] Speaker 01:
But even when you get down to the bottom of column 11, this is at appendix 97 in the 290 pattern.

[00:22:47] Speaker 01:
It says utilization of the load duty cycle pulse mode.

[00:22:50] Speaker 01:
This is at line 47.

[00:22:52] Speaker 01:
Transmission, particularly with the employment of uncorrelated codes in TDMA, it says leads to very low power consumption.

[00:23:01] Speaker 03:
Are you saying that the 290 doesn't even address or talk about how the base stations should be configured to conserve power?

[00:23:13] Speaker 03:
The board didn't find that.

[00:23:15] Speaker 03:
That's right.

[00:23:15] Speaker 03:
The board specifically found that it does and that the reason it was obvious is because the prior art also could conceivably be applied to that same problem.

[00:23:28] Speaker 01:
So the high level point I was trying to make was that the 290 pattern, like not to Rajan, focuses on the peripheral

[00:23:36] Speaker 01:
It doesn't really explain how the base unit operates.

[00:23:40] Speaker 03:
But you conceded and the board found that there was a missing limitation.

[00:23:42] Speaker 03:
Are you trying to now argue there was no missing limitation?

[00:23:45] Speaker 01:
Apple has never conceded that there is a missing limitation in this case.

[00:23:50] Speaker 03:
We have to assume that there is because the board found that, right?

[00:23:53] Speaker 03:
I don't think that the board... If you want to support the board's finding and ask us to affirm the board's finding, then we have to assume there's a missing limitation, right?

[00:24:00] Speaker 01:
I don't think the board determined that there was a missing limitation.

[00:24:05] Speaker 01:
I think the board said that, so first of all, there's no dispute that this is a system claim, and every single physical element in this claim is present in Natarajan, every single one.

[00:24:21] Speaker 01:
And the technique of operating a transmitter in low-duty cycle RF bursts is taught in Natarajan.

[00:24:29] Speaker 01:
And the obviousness rationale that the board applied at appendix 31

[00:24:34] Speaker 01:
is the application of a known technique that improves one device to a similar device.

[00:24:44] Speaker 01:
And that's precisely where the board can rely on the person of ordinary skill in the art under KSR.

[00:24:50] Speaker 01:
This is not a missing limitation case.

[00:24:53] Speaker 01:
It's almost as if Apple's being punished because we have everything in the same reference.

[00:24:59] Speaker 01:
But if you had all of the physical components in Natarajan,

[00:25:04] Speaker 01:
And then you had, in a separate reference, the teaching that you could operate a transmitter in low-duty cycle RF bursts to save power.

[00:25:14] Speaker 01:
Well, then we wouldn't be having this discussion.

[00:25:17] Speaker 01:
I don't see where the board found there was a missing limitation.

[00:25:19] Speaker 01:
And in fact, at the top of Appendix 32, if we go to the board's final written decision, this is right after it's

[00:25:29] Speaker 01:
It's classic KSR rationale, which is on 31.

[00:25:33] Speaker 03:
But that's where it's talking about the HDLC protocol.

[00:25:36] Speaker 03:
That's probably a different question.

[00:25:38] Speaker 01:
It's not, because the board says right at the top, we also find that Natarajan's disclosure of HDLC protocol is consistent with Natarajan's base units being energized in low-duty cycle RF bursts, as that term is properly construed.

[00:25:55] Speaker 01:
And when you go back to the board's claim construction, and this is at the bottom of Appendix 13, the board takes its claim construction and effectively reads it on to Natarajan's transmitter.

[00:26:10] Speaker 01:
It says energized and low.

[00:26:12] Speaker 03:
This is the problem, is that 90% of this, I know you talk about how long this opinion is, but it's almost all related to the HDLC issue that is not on appeal.

[00:26:23] Speaker 01:
The board relied on HDLC to find that that is that Natajaran's base station can operate in low-duty cycle RF bursts.

[00:26:39] Speaker 01:
And that's what the board says at the top of 32.

[00:26:43] Speaker 01:
I want to turn quickly to this otherwise quiet data channel argument that

[00:26:52] Speaker 01:
council raised, that's yet again a new technical argument that council's making that it did not make below.

[00:27:02] Speaker 01:
And it has completely confused the data channel with the communication cycle in Natarajan.

[00:27:10] Speaker 01:
The communication cycle consists of what happens over the course of the three frames that Natarajan describes.

[00:27:19] Speaker 01:
That's the communication cycle.

[00:27:21] Speaker 01:
The data channel, and I can point you exactly where the 290 pattern describes this, the data channel exists between a PEA, the PDA in the 290 pattern to a PEA.

[00:27:37] Speaker 01:
This is at the bottom of column five at line 65.

[00:27:41] Speaker 01:
So you have a number of virtual data channels set up between

[00:27:45] Speaker 01:
the server and the peripheral units, or a Natarajan between the base station and the mobile units.

[00:27:53] Speaker 01:
So what Natarajan describes is in the channel that you have between the base station and a mobile unit, you send an RF burst.

[00:28:03] Speaker 01:
And then that channel is quiet again.

[00:28:06] Speaker 01:
And then you get to where Natarajan's base station communicates with the second device, and it sends an RF burst to that device.

[00:28:14] Speaker 01:
I'm describing frame A.

[00:28:15] Speaker 01:
right now.

[00:28:16] Speaker 01:
And then that channel is otherwise quiet.

[00:28:20] Speaker 01:
And I don't want to get down, you know, into the weeds of this argument, but by making this new argument here, they've completely misinterpreted Natajaran and confused the data channel with the communication cycle, one communication cycle.

[00:28:39] Speaker 04:
Okay, so let me ask you, Judge Rainer's question, again, which fits in with all, how does Natarajan suggest

[00:28:45] Speaker 04:
that a base station should be configured to conserve energy when the patent only focuses on mobile devices.

[00:28:54] Speaker 01:
So, Judge Newman, when you say the patent only focuses on mobile devices, the... This is Judge Rainer's question.

[00:29:02] Speaker 04:
Yeah.

[00:29:02] Speaker 04:
He... That's how he reads it.

[00:29:04] Speaker 04:
That's how he reads it.

[00:29:05] Speaker 04:
That Natarajan... That Natarajan suggests that a base station should be configured to conserve energy when he says when the patent... I think he's talking about the patented issue.

[00:29:15] Speaker 04:
only focuses on mobile devices.

[00:29:17] Speaker 04:
And I think he's talking about Natarajan.

[00:29:19] Speaker 04:
You think that he's saying Natarajan?

[00:29:22] Speaker 01:
So Natarajan is focused on peripheral devices in the very same way that the 2-9-0 pattern is focused on peripheral devices.

[00:29:29] Speaker 01:
But it would be configured as it is configured in the embodiment that's described in Natarajan.

[00:29:36] Speaker 01:
And if you look over the course of that communication cycle at the three frames that are described

[00:29:46] Speaker 01:
in figures five and six, or four, five, six, and seven.

[00:29:53] Speaker 01:
Over frame A, the transmitter is transmitting.

[00:29:58] Speaker 01:
It opens up a channel, a number of separate channels consecutively to the transmitters.

[00:30:04] Speaker 01:
Then over frame B, the transmitter is quiet in Natarajan.

[00:30:09] Speaker 01:
It is not transmitting.

[00:30:11] Speaker 01:
And then over frame C, it's quiet most of the time.

[00:30:15] Speaker 01:
And if you look at the board's opinion at the bottom of claim 13, the board effectively reads its claim construction directly on to that communication cycle in Natarajan.

[00:30:27] Speaker 01:
So it's configured the way that Natarajan describes its operating.

[00:30:36] Speaker 01:
So for most of that communication cycle in Natarajan, if we look at figure six, Natarajan's transmitter is not transmitting.

[00:30:44] Speaker 01:
Now, over the course of the trial, DSS tried to say, oh, well, HDLC is incompatible with not transmitting all the time.

[00:30:54] Speaker 01:
They run away from that hard on appeal because what the board found is that HDLC supports Apple and that it

[00:31:03] Speaker 01:
would operate.

[00:31:06] Speaker 03:
We're not talking about the HDLC alternative argument, are we?

[00:31:09] Speaker 01:
Well, it's important because the HDLC argument and Dr. Hughes' testimony that came out of that support Apple's position, and the board relied on that to find that the claims are obvious.

[00:31:24] Speaker 01:
During all of, most of that communication, so they, so first they tried HDLC and completely left that.

[00:31:30] Speaker 01:
Then they made this idle words argument.

[00:31:31] Speaker 01:
Oh, well, if it's not transmitting information, it's going to fill that in with idle words.

[00:31:36] Speaker 01:
They don't revive that on appeal either because it failed.

[00:31:39] Speaker 01:
They, they tried to convince the board through the course of the trial that over that communication cycle in figure six, not channel, but over that communication cycle in figure six, that Natchez-Razan's transmitter would have been continuously operated

[00:31:54] Speaker 01:
And they failed on the facts.

[00:31:57] Speaker 01:
The board didn't buy any of it, and rightly so.

[00:32:01] Speaker 01:
So over the course of that channel, the transmitter is not operating most of the time.

[00:32:08] Speaker 01:
And that meets the board's construction of being energized in low-duty cycle RF bursts.

[00:32:17] Speaker 01:
Again, this is not a missing element case.

[00:32:19] Speaker 01:
This case falls squarely into the KSR rationale of taking a known

[00:32:24] Speaker 01:
technique, a technique that's known to improve a device, and a person of ordinary skill in the art recognizing that you could take that same technique and apply it to similar devices.

[00:32:36] Speaker 01:
Now you have both of them in Natarajan, but that doesn't detract from the analysis, and that takes this case out of Arendi.

[00:32:48] Speaker 01:
And even if it were a missing element in part of a rending, the board's rationale is supported by substantial evidence and fully fleshed out in its decision.

[00:33:01] Speaker 04:
Any more questions?

[00:33:02] Speaker 04:
No.

[00:33:03] Speaker 04:
Okay.

[00:33:04] Speaker 04:
Thank you, Mr. Wright.

[00:33:05] Speaker 04:
Thank you.

[00:33:19] Speaker 00:
Regarding missing limitation, Apple at its brief on page 29 says, first, the board did not base its final determination of obviousness on any express disclosure regarding Natarajan's server transmitter.

[00:33:33] Speaker 00:
So I believe the record is clear that there were two things missing in Natarajan.

[00:33:38] Speaker 00:
One, a teaching that the base station would be turned off or turned on depending upon when it was needed to receive or transmit data.

[00:33:48] Speaker 00:
But most importantly, what was not taught in Natarajan and had to be filled in but wasn't, is that Natarajan did not teach an otherwise quiet data channel during which these transmissions, if you want to call them bursts, that's fine.

[00:34:03] Speaker 00:
Whether they were bursts or not is not the key point.

[00:34:05] Speaker 00:
The key point is that Natarajan did not teach reserving these bursts to a small part of the data channel that is otherwise quiet.

[00:34:15] Speaker 00:
The Natarajan patent makes it clear that it involves one shared channel.

[00:34:23] Speaker 00:
So in order to determine whether it's quiet, you have to look at both server or base station transmissions and mobile unit transmissions.

[00:34:31] Speaker 00:
They have to be looked at together.

[00:34:32] Speaker 00:
And when you look at Natarajan, virtually the entire data channel is not quiet.

[00:34:39] Speaker 00:
I think not at any time.

[00:34:41] Speaker 00:
There is no reservation for any quiet period

[00:34:44] Speaker 00:
at any point.

[00:34:46] Speaker 03:
What's your response to the argument that the 290 really doesn't focus on that much either?

[00:34:50] Speaker 00:
No, it doesn't.

[00:34:52] Speaker 00:
The creation of a quiet period where there's no communications going on is critical to the objective of reducing interference.

[00:35:01] Speaker 00:
That's why the bursts have to be at intervals and the board correctly interpreted that language to require that the bursts be short in duration

[00:35:11] Speaker 00:
and that the data channel has to be otherwise quiet.

[00:35:14] Speaker 00:
Otherwise, you don't have this silent period where there's no interference danger.

[00:35:19] Speaker 00:
If the base station or the mobile units are constantly talking to each other or talking, there's no quiet period.

[00:35:28] Speaker 00:
There's no way to reduce interference.

[00:35:30] Speaker 00:
And so that's why the 290 patent requires this short duration of bursts with an otherwise quiet period so that during that otherwise quiet period,

[00:35:41] Speaker 00:
you reduce the danger of interference.

[00:35:42] Speaker 03:
What's your response to the point that it says to the extent that the HDLC, even if you have now moved away from that argument, or as your friend on the other side says, run as far away from it as you can, that it's still informative and still fair game for the board to consider?

[00:36:01] Speaker 00:
All it showed was that HDLC was

[00:36:03] Speaker 00:
not inconsistent, or to say it better, it was consistent with the 290 patent.

[00:36:09] Speaker 00:
It didn't teach an otherwise quiet data channel, and I submit it didn't even teach bursts on an otherwise quiet data channel.

[00:36:18] Speaker 00:
The board did not find that HDLC showed any of that, nor could it properly, because this was not part of their prima facie case.

[00:36:26] Speaker 00:
And they have the burden all the way.

[00:36:27] Speaker 03:
What about the point that really, regardless of whether the board usually does it or not, under the Administrative Procedures Act, you're really supposed to look at the entirety of a record before you're making a patentability determination?

[00:36:41] Speaker 00:
Well, that's under the APA, generally speaking.

[00:36:43] Speaker 00:
But this court has made it very clear that, given the nature of IPR proceedings, it is incumbent upon the petitioner to state its case for invalidity in its petition and the supporting evidence

[00:36:55] Speaker 00:
and it is entirely improper to allow the petitioner to then bootstrap reply brief arguments or evidence to support that.

[00:37:04] Speaker 00:
I think you said that, in fact.

[00:37:06] Speaker 03:
We won't reject the board's decision to reject reply arguments.

[00:37:13] Speaker 00:
And, you know, fair enough.

[00:37:16] Speaker 00:
I think I'm right about the law on that, that that's not competent evidence to support their prima facie case.

[00:37:22] Speaker 00:
But there is no evidence that HDLC

[00:37:25] Speaker 00:
discloses births on an otherwise quiet data channel.

[00:37:29] Speaker 00:
The only issue about that was DSS argued that HDLC was inconsistent with the teaching of the patent and the claim limitations.

[00:37:38] Speaker 00:
There was never any showing that HDLC taught any of those limitations.

[00:37:43] Speaker 00:
And in fact, in its brief here, I don't have the page number in front of me, but Apple says that, or the board said, I think on page 33, that Apple

[00:37:52] Speaker 00:
has boiled its obviousness case down to Natarajan.

[00:37:56] Speaker 00:
It abandoned NEVE, because NEVE didn't really help it.

[00:37:59] Speaker 00:
So we're down to one prior art reference, Natarajan, which clearly did not teach transmitting in bursts on an otherwise quiet data channel.

[00:38:09] Speaker 00:
And applying the power conservation techniques that are used in mobile stations in Natarajan has nothing to do with filling that gap of a transmission in bursts on an otherwise quiet data channel.

[00:38:23] Speaker 00:
And so there's just no evidence to support the board's conclusion.

[00:38:26] Speaker 00:
And for that reason, we think reversal is the appropriate remedy here, Your Honors.

[00:38:30] Speaker 04:
Thank you.

[00:38:31] Speaker 00:
Thank you, Your Honors.

[00:38:31] Speaker 04:
Thank you both.

[00:38:33] Speaker 04:
The case is taken under submission.