[00:00:31] Speaker 04:
Mr. McAnders, you reserved four minutes of your time for rebuttal.

[00:00:37] Speaker 04:
Yes, your honor.

[00:00:39] Speaker 04:
And Mr. Joseph and Mr. Lowes, did I pronounce your names correctly?

[00:00:43] Speaker 04:
Yes.

[00:00:45] Speaker 04:
You're going, Mr. Joseph, you're going to go first for nine minutes.

[00:00:48] Speaker 04:
And Mr. Lowes, you're going second for six.

[00:00:51] Speaker 04:
Is that correct?

[00:00:52] Speaker 04:
Yes, your honor.

[00:00:53] Speaker 04:
OK.

[00:00:53] Speaker 04:
All right.

[00:00:53] Speaker 04:
You may proceed.

[00:00:57] Speaker 07:
Good morning, Your Honors.

[00:00:57] Speaker 07:
May it please the court

[00:00:59] Speaker 07:
This proceeding consolidates appeals from three IPRs directed to two patents.

[00:01:04] Speaker 07:
It's the Howard 353 and 079 patents.

[00:01:07] Speaker 07:
The distinction across the three matters may matter in some instances, but for the most part, the issues I want to address today are addressed to an issue that crosses all three matters.

[00:01:17] Speaker 07:
The Howard patents describe wireless communications in which a signal is transmitted in two portions.

[00:01:22] Speaker 07:
The first portion is transmitted at a predetermined bandwidth and contains an indication of the operating bandwidth

[00:01:28] Speaker 07:
of a further portion of the signal.

[00:01:31] Speaker 07:
Further portions then transmitted at the indicated operating bandwidth.

[00:01:36] Speaker 07:
Again, most of the issues on appeal will rise and fall with the construction related to indication of operating bandwidth.

[00:01:45] Speaker 07:
It appears in all of the independent claims that were challenged here.

[00:01:50] Speaker 07:
Now, the board held that all claims were unpatentable.

[00:01:53] Speaker 04:
I'll challenge claims to run patent mold based on a construction of an indication of... Does the case rise and fall whether indication means a specific identification of some sort?

[00:02:04] Speaker 07:
Yes, that's one of the issues.

[00:02:05] Speaker 07:
That was essentially the proposed construction of the patent owner, that indication of operating bandwidth identified a particular bandwidth.

[00:02:15] Speaker 07:
There were some procedural errors here.

[00:02:17] Speaker 06:
There is a problem with the construction... Is there anything in the specification that would support that?

[00:02:23] Speaker 06:
Yes, Your Honor.

[00:02:25] Speaker 06:
My understanding of your spec was you have a chip rate.

[00:02:29] Speaker 06:
You send a chip rate over, and then from that chip rate, you can calculate and determine what would be an ideal frequency range operating bandwidth.

[00:02:38] Speaker 06:
And that isn't the same thing as sending over in the header a specific frequency range.

[00:02:47] Speaker 07:
Your Honor, I agree that what's contained in the header is not

[00:02:51] Speaker 07:
the operating bandwidth.

[00:02:52] Speaker 07:
It is an indication of the operating bandwidth of a plurality of bandwidths, as the claim says.

[00:02:58] Speaker 07:
The specification of the Howard patents tells us, though, that that chip rate also serves as an indication of a particular bandwidth.

[00:03:06] Speaker 07:
Because as, for example, Howard, the 079 Howard.

[00:03:10] Speaker 06:
I guess that's what I'm trying to understand about your understanding of the claim when it comes to identification of a particular bandwidth.

[00:03:18] Speaker 06:
Is it your understanding that that must mean that in the header, in that first portion of the signal, it's actually specifying frequency x to frequency y?

[00:03:29] Speaker 07:
So the header itself does not contain the frequencies.

[00:03:32] Speaker 07:
The header itself, as required by the claim, requires an indication of what you're describing of the frequency range.

[00:03:38] Speaker 07:
And that's done in the Howard patents.

[00:03:41] Speaker 07:
For example, this is on appendix 426.

[00:03:44] Speaker 07:
It's column 8.

[00:03:46] Speaker 07:
lines 26 through 32 of the Howard patents, it says since this indicated chip rate, so that's the chip rate indicated, is higher than the low chip rate, and then I'm going to skip forward to the relevant language here.

[00:04:04] Speaker 07:
Once that's received, it's configured into a second state in which the analog section 360 and the digital low pass filter are set to bandwidths appropriate for the higher chip rate.

[00:04:14] Speaker 07:
The device, the specification is describing the device that knows that a priori, it knows the bandwidth that it will use from the indication.

[00:04:23] Speaker 04:
The reconfiguration at that high CHEP rate is for the appropriate bandwidth, then why does it matter that it be identified with any type of specificity?

[00:04:36] Speaker 04:
Why isn't it enough that reconfiguration can take place?

[00:04:42] Speaker 07:
Well, it's only that it takes place based on the indication.

[00:04:45] Speaker 07:
It's not that there is some information of any kind that may have some relation to bandwidth.

[00:04:50] Speaker 07:
And then somehow that is figured out in some way.

[00:04:54] Speaker 07:
Maybe there's some additional processing that occurs.

[00:04:56] Speaker 07:
And then you arrive at the bandwidth that the receiver sets itself at.

[00:05:00] Speaker 07:
It's that that serves as effectively an indication.

[00:05:03] Speaker 07:
It's effectively a pointer to a specific bandwidth that the receiver will use.

[00:05:09] Speaker 07:
It's meant by it will be set to the bandwidth appropriate for the higher chip rate.

[00:05:12] Speaker 07:
It's not describing anything else that's required.

[00:05:15] Speaker 07:
It knows, which is different from the prior art.

[00:05:19] Speaker 07:
The prior art doesn't do that.

[00:05:20] Speaker 07:
The prior art, in some instances, has things that are associated with bandwidth, but it doesn't describe actually changing anything.

[00:05:27] Speaker 07:
It doesn't describe using anything that is a particular bandwidth based on what is sent in the signal.

[00:05:35] Speaker 07:
And I want to return to the reason why I believe that the record is unclear below on this is there was a fundamental problem with the construction that the board arrived at.

[00:05:45] Speaker 07:
And it was a construction that the parties never argued.

[00:05:48] Speaker 07:
And so this wasn't fully sorted out in the board's decisions whether what was being sent by the prior actually indicated bandwidth.

[00:05:57] Speaker 07:
And so let me go back.

[00:06:00] Speaker 07:
So it's the indication that is in the claims

[00:06:05] Speaker 07:
The board's construction did not actually require that it include an indication of bandwidth.

[00:06:10] Speaker 07:
The board's construction merely requires that the signal is received.

[00:06:13] Speaker 07:
And we can see that throughout the proceedings, including the final written decisions, the questions by the board during the oral argument.

[00:06:22] Speaker 06:
So why doesn't the board claim construction track how the chip rate works in your specification in the sense that the construction says,

[00:06:35] Speaker 06:
An indication of the operating bandwidth means it needs to supply a sufficient amount of information so that the receiver can reconfigure itself in order to set itself up for an appropriate bandwidth range for receiving the data that's coming in.

[00:06:53] Speaker 07:
Well, so the construction actually doesn't quite say that, Your Honor.

[00:06:57] Speaker 07:
And so let me give a hypothetical system that maybe will bring home what's wrong with the board's claim construction.

[00:07:06] Speaker 07:
So the board's claim construction is the first signal portion contains sufficient information so that when it's received, the receiver is able to configure itself to receive the data portion of the signal or further signal portion or transport channel at approximately the same frequency range or bandwidth at which it has been transmitted by the transmitter.

[00:07:24] Speaker 07:
It doesn't say at approximately the same frequency range or bandwidth indicated by the indication.

[00:07:30] Speaker 07:
It's just saying you receive what you got.

[00:07:32] Speaker 07:
And so hypothetically, we have a system that has a fixed bandwidth.

[00:07:35] Speaker 07:
We have a fixed bandwidth in the system.

[00:07:38] Speaker 07:
So picture this.

[00:07:39] Speaker 07:
The first portion of the signal that's sent in that system indicates that the signal is going to be QPSK rather than BPSK.

[00:07:45] Speaker 07:
And the receiver needs to know that to know how to decipher the information.

[00:07:49] Speaker 07:
And that's the low chip rate.

[00:07:52] Speaker 07:
QPSK or BPSK actually does not impact chip rate.

[00:07:55] Speaker 07:
It merely

[00:07:57] Speaker 07:
impacts the modulation format used, and the parties are in agreement that changing from QPSK to BPSK would not change a chip rate, would not impact bandwidth in any way.

[00:08:07] Speaker 07:
You can receive QPSK and BPSK at exactly the same bandwidth and get two different data rates, but it does not impact bandwidth.

[00:08:15] Speaker 07:
And so my point here is the first portion of the signal indicates something that is necessary, that is used to allow the received circuitry to receive the information.

[00:08:25] Speaker 07:
And it just so happens that received information is received, going back to the claim to the board's construction, it's received at approximately the same frequency range or bandwidth at which it's been transmitted by the transmitter.

[00:08:38] Speaker 07:
Well, of course it is, because it could only be sent at a single bandwidth.

[00:08:42] Speaker 07:
It's a self-fulfilling prophecy.

[00:08:44] Speaker 07:
I throw you a blue ball, you have to catch the blue ball.

[00:08:46] Speaker 05:
But it's- So you're not making your particularity argument anymore.

[00:08:52] Speaker 07:
What I'm pointing out is I'm pointing out the distinction between, and I apologize, I think the question was what is the difference between our proposed construction and the board's construction.

[00:09:00] Speaker 07:
Yes.

[00:09:01] Speaker 07:
And so, yes, I am pointing out that the board's construction does not require any particularity.

[00:09:07] Speaker 07:
In fact, it does not even require that the indication include.

[00:09:11] Speaker 05:
Well, it comes in and it goes out approximately the same frequency, really close approximately the same frequency.

[00:09:18] Speaker 05:
Because otherwise it wouldn't be received and transmitted.

[00:09:22] Speaker 07:
It would be useless.

[00:09:24] Speaker 07:
Again, not necessarily true, Your Honor.

[00:09:26] Speaker 07:
Picture a system that the receiver has a wide open bandwidth.

[00:09:30] Speaker 07:
And what is transmitted is a narrower bandwidth.

[00:09:34] Speaker 07:
It will be received.

[00:09:35] Speaker 04:
It will be received.

[00:09:36] Speaker 04:
Your construction is identification of a specific or a particular bandwidth.

[00:09:41] Speaker 07:
Correct.

[00:09:42] Speaker 07:
Right.

[00:09:43] Speaker 07:
And under that construction, which we believe to be the proper construction, as a starting point,

[00:09:50] Speaker 07:
Erickson never put on a case with respect to that construction.

[00:09:53] Speaker 07:
So if that's the proper construction, we believe it is.

[00:09:55] Speaker 07:
We believe it's supported by the intrinsic record.

[00:09:58] Speaker 07:
It's supported by the plain language of the claim.

[00:10:00] Speaker 07:
Erickson never put on a case directed to that.

[00:10:04] Speaker 04:
Would you agree if the bandwidth that is specifically identified as appropriate

[00:10:14] Speaker 04:
for the reconfiguration of the device, then the board's construction would capture that and be correct.

[00:10:23] Speaker 07:
The board's construction?

[00:10:23] Speaker 07:
Yes.

[00:10:24] Speaker 07:
The board's construction, Your Honor, is too broad, though.

[00:10:27] Speaker 04:
Well, that's my point.

[00:10:28] Speaker 04:
It only requires approximately the same range of bandwidth.

[00:10:33] Speaker 04:
You want it to be the identification of the actual specific bandwidth.

[00:10:40] Speaker 04:
And it seems to me, even if that's the case, if you identify

[00:10:45] Speaker 04:
a specific bandwidth if it causes a reconfiguration on the other end, it's also an appropriate bandwidth.

[00:10:52] Speaker 07:
But the problem is that the board's construction does not require reconfiguration in any way that has anything to do with bandwidth.

[00:11:00] Speaker 07:
It simply says, it says... Sure it does.

[00:11:03] Speaker 02:
It says the receiver is able to configure itself to receive the data.

[00:11:07] Speaker 07:
To receive the data portion of signal.

[00:11:09] Speaker 07:
And going back to my example, that would be the case when you're indicating something that has nothing to do with bandwidth.

[00:11:14] Speaker 07:
For example, QPSK versus BPSK.

[00:11:17] Speaker 07:
And then where the construction really breaks down is the second portion.

[00:11:21] Speaker 07:
It says at approximately the same frequency range or bandwidth at which it has been transmitted by the transmitter.

[00:11:26] Speaker 07:
That is not at the same frequency range or bandwidth that has been indicated by the indication.

[00:11:32] Speaker 07:
And we know that the board, that's what they meant because they emphasized it in the footnote to the construction.

[00:11:38] Speaker 07:
They say the key consideration is that the receiver is able to receive the data

[00:11:43] Speaker 07:
that the transmitter transmits.

[00:11:45] Speaker 07:
As long as it receives it, we don't care what the indication actually told us.

[00:11:51] Speaker 07:
As long as it's received, therefore there must have been enough in there to tell us the bandwidth.

[00:11:56] Speaker 07:
But again, it's not necessarily true.

[00:11:58] Speaker 07:
There are systems that accept all signals, regardless of what's sent.

[00:12:02] Speaker 07:
There are systems that have a fixed

[00:12:04] Speaker 06:
bandwidth ahead of time.

[00:12:09] Speaker 06:
For me, we're getting a little bit into an abstract land here.

[00:12:13] Speaker 06:
What I want to know better is why doesn't something like McFarland disclose an indication of an operating bandwidth when we know that McFarland teaches

[00:12:26] Speaker 06:
including both the number of carriers and the symbol rate in McFarland's header, which are used to then reconfigure that filter so it can receive the data portion in McFarland.

[00:12:43] Speaker 07:
Your Honor, actually McFarland is the perfect example of why the board's claim construction matters.

[00:12:51] Speaker 07:
The parties argued, and there was a factual dispute over whether McFarland's header.

[00:12:54] Speaker 06:
Is symbol rate the same thing as a chip rate?

[00:12:58] Speaker 07:
Not necessarily.

[00:12:59] Speaker 07:
Chip rate tends to refer to a spread spectrum system that tends to have a single carrier.

[00:13:04] Speaker 07:
So not necessarily.

[00:13:07] Speaker 07:
Symbol rate in a multi-carrier system refers to the rate at which you are sending a single

[00:13:14] Speaker 06:
bit of data can be multiple bits of data per carrier, but that's a... But if you had the symbol rate and the number of carriers, shouldn't you be able to figure out the operating bandwidth?

[00:13:26] Speaker 07:
Not necessarily, because you don't have the carrier spacing, which is a necessary component, so... But what if McFarland said that the carrier spacing is proportional to the symbol rate?

[00:13:39] Speaker 07:
And it may say that.

[00:13:40] Speaker 07:
It says it's proportional.

[00:13:41] Speaker 07:
But simply being proportional doesn't tell you what that specific carrier spacing necessarily is or that, for example, it can be a multiple.

[00:13:49] Speaker 07:
It can be off by percentages and still be adequate to receive the signal.

[00:13:55] Speaker 07:
There is no direct relationship between symbol duration, symbol rate, and carrier spacing.

[00:14:05] Speaker 04:
You're running out of time.

[00:14:09] Speaker 04:
Can you address, before you sit down, the due process argument?

[00:14:12] Speaker 07:
Yes, Your Honor.

[00:14:13] Speaker 07:
Very briefly, the due process argument is that the claim construction that the board provided had not been argued by any party.

[00:14:20] Speaker 07:
And let me jump forward, just because you may have a question about that.

[00:14:23] Speaker 07:
And it may come up here.

[00:14:26] Speaker 07:
And maybe I'll cover it in rebuttal.

[00:14:27] Speaker 07:
But the sections of the record before the board

[00:14:32] Speaker 07:
that the appellees cite to are plainly not directed to that construction.

[00:14:35] Speaker 07:
They're directed, first of all, to a different claim element.

[00:14:38] Speaker 07:
And that different claim element, they're not even proposing a construction.

[00:14:41] Speaker 07:
They're explaining what, for example, Trump power does once you presume that Trump power has received the indication of operating bandwidth.

[00:14:50] Speaker 07:
So it's pretty plain that the petitioners, the appellees, did not argue for that claim construction.

[00:14:56] Speaker 07:
So when the claim construction comes out,

[00:14:58] Speaker 07:
For the very first time, it's not a construction that the parties ever argued in the case below.

[00:15:03] Speaker 07:
It comes out in the final written decision for the first time without any notice that's coming.

[00:15:08] Speaker 07:
Patent owner appellant simply had no opportunity to address that.

[00:15:13] Speaker 07:
And the SAS DeComplement soft case speaks to that.

[00:15:17] Speaker 07:
The in-ray magnum oil to those cases.

[00:15:19] Speaker 06:
The Google Reply brief didn't articulate it?

[00:15:22] Speaker 07:
I'm sorry, Your Honor.

[00:15:23] Speaker 06:
The Google Reply.

[00:15:25] Speaker 06:
in that particular CBM.

[00:15:29] Speaker 06:
I thought they did pretty clearly articulate this conception of this particular claim term.

[00:15:38] Speaker 06:
You're the first one that tried to create a construction for this.

[00:15:43] Speaker 06:
Because at the petition stage, nobody suggested that there needed to be a claim construction for this particular claim term.

[00:15:49] Speaker 06:
Then in the patent owner response, this is where we come up with the identification of a particular bandwidth construction by you.

[00:15:56] Speaker 06:
Google comes back and says, no, that's not the right construction.

[00:16:00] Speaker 06:
It's really the right construction and understanding of this, as you can see by our proposed prior art projections, is that you look at whether the header has sufficient information so you can figure out how to reconfigure the receiver to receive the data portion.

[00:16:16] Speaker 06:
So at a minimum, you know it right then and there.

[00:16:21] Speaker 06:
And then you talk about it, the oral argument.

[00:16:24] Speaker 07:
Your Honor, you're correct.

[00:16:25] Speaker 07:
The claim of construction was not addressed head on at the institution stages.

[00:16:29] Speaker 07:
So we're not complaining that it wasn't addressed prior.

[00:16:31] Speaker 07:
We're OK if the petitioners had in their reply provided a proposed construction.

[00:16:37] Speaker 07:
And then we could have reacted.

[00:16:39] Speaker 07:
If they provided a proposed construction, we could have reacted, for example, with asking for a sure reply to address that proposed construction.

[00:16:45] Speaker 07:
that not had been previously provided.

[00:16:46] Speaker 07:
But let me go to the language that Google says.

[00:16:50] Speaker 07:
So Google first of all says no construction is necessary, plain or near meaning applies.

[00:16:55] Speaker 07:
The only thing they say, and by the way the board says, Google didn't tell us what that plain or near meaning was.

[00:17:01] Speaker 07:
Other than to say the receiver can determine a frequency range used to transmit the further signal

[00:17:07] Speaker 07:
based on information provided by the indication.

[00:17:10] Speaker 07:
So even Google is embracing a construction that would require that the further signal portion have something to do with what is provided by the indication.

[00:17:19] Speaker 07:
The board's construction, again, does not even embrace that.

[00:17:22] Speaker 07:
So Google's, to the extent that you want to treat that as a construction, that's not the construction the board used to take away IVs patent rights, which we believe violates due process.

[00:17:32] Speaker 04:
OK.

[00:17:32] Speaker 04:
Thank you very much.

[00:17:34] Speaker 07:
Thank you.

[00:17:38] Speaker 04:
It's just for you to have nine minutes, and I'll give you additional time if you need, since the other side had additional time if you need it, OK?

[00:17:47] Speaker 00:
Well, thank you, Your Honor, and may it please the Court.

[00:17:50] Speaker 00:
To try to be less abstract is one of the questions I want to.

[00:17:53] Speaker 00:
I think it's helpful just to focus on the fact that Ivy is arguing that the prior references are inadequate in two respects, disclosure of carrier spacing and disclosure of the specific upper and lower frequency bounds.

[00:18:06] Speaker 00:
A lot of the other claim construction discussion I'm happy to talk about, but it doesn't really matter beyond those two points.

[00:18:14] Speaker 00:
And the second of those points, disclosure of specific upper and lower frequency bounds, I've never argued that before the board.

[00:18:20] Speaker 00:
And in their brief in this court, they said, well, we can raise it now for the first time in this court because it's relevant to the board's claim construction.

[00:18:28] Speaker 00:
But the board expressly said it was not even opining on the question of whether you needed specific upper and lower frequency bounds.

[00:18:35] Speaker 00:
The only thing before the court really was stuck to the indication of an operating bandwidth is whether there needs to be a disclosure of carrier spacing.

[00:18:45] Speaker 00:
And on that point, we know the basic point there is simply that the indication of an operating bandwidth does not have to take any specific form or be of any specific type, much less disclose anything as detailed as carrier spacing.

[00:19:01] Speaker 00:
We know that for a couple of reasons.

[00:19:03] Speaker 00:
the plain and ordinary language of indication.

[00:19:07] Speaker 00:
Indication is obviously a broader term, a vaguer term.

[00:19:11] Speaker 00:
And second, when you go to the specification, and this was Judge Ten's point, the only embodiment of an indication provided in the specification is chip rate.

[00:19:19] Speaker 00:
And everyone agrees that chip rate is not bandwidth.

[00:19:26] Speaker 00:
And everyone agrees, and this was the testimony of Ivy's expert,

[00:19:31] Speaker 00:
Determining bandwidth from chip rate is complicated and depends on a variety of parameters.

[00:19:37] Speaker 00:
So from that we know for certain that the indication of an operating bandwidth.

[00:19:41] Speaker 04:
Chip rate is not bandwidth, but chip rate can provide an indication of bandwidth.

[00:19:47] Speaker 00:
Yes, and the reason it can do that is that it provides information relevant to determining appropriate bandwidth.

[00:19:53] Speaker 00:
The receiver would take that and take other information already known to the receiver.

[00:19:57] Speaker 00:
in order to then come up with the appropriate bandwidth.

[00:20:00] Speaker 04:
Am I correct here that the high chip rate that follows the chip is what indicates what the bandwidth is going to be, or should be, the appropriate bandwidth?

[00:20:15] Speaker 00:
Yeah, I was maybe confused.

[00:20:17] Speaker 00:
I was thinking it was reversed.

[00:20:18] Speaker 00:
But in terms of the specification, there's the first portion of the signal.

[00:20:24] Speaker 00:
Is that the one ship rate?

[00:20:25] Speaker 00:
And then you switch over to the other ship rate for the second portion of the signal.

[00:20:30] Speaker 04:
The receiver configures itself according to the second, the high chip rate.

[00:20:36] Speaker 00:
It configures itself to the second ship rate so that it can receive it at the relevant, or it configures itself to the bandwidth that is appropriate for that ship rate.

[00:20:45] Speaker 00:
I mean, they are different.

[00:20:45] Speaker 00:
Bandwidth and ship rate are not the same.

[00:20:47] Speaker 00:
One doesn't by itself tell you the other.

[00:20:50] Speaker 00:
The receiver would know the other information.

[00:20:54] Speaker 00:
That's important, then, because under any construction, really, beyond the higher level construction points, both McFarland and Peerska cover this.

[00:21:07] Speaker 00:
And for McFarland, the board relied on Ivy's concession, the crucial concession, that the receiver would know the ship rate.

[00:21:13] Speaker 00:
Otherwise, there's no, excuse me, I'm sorry, that the receiver would know the carrier's case.

[00:21:18] Speaker 00:
So in McFarland, the signal, the indication, provides everything you need to know to determine bandwidth, except for carrier spacing.

[00:21:25] Speaker 00:
The receiver already knows the carrier spacing.

[00:21:28] Speaker 00:
What that means is that the signal that McFarland is sending out is then sufficient to identify, specifically, the appropriate bandwidth based on the other information it knows, which is exactly how the specification works with ship rate.

[00:21:41] Speaker 00:
And with Pierska, Pierska is similar to McFarland in this respect, and it also has figure 15B.

[00:21:47] Speaker 00:
which expressly discloses an example where the carrier spacing is known.

[00:21:53] Speaker 00:
And then in the relevant part of the specification describing figure 15B, it describes how to go about determining the carrier spacing.

[00:22:01] Speaker 00:
So what this means is that you have, the prior reference is working basically exactly the same way as the specification does.

[00:22:12] Speaker 00:
Because, and this is the key point,

[00:22:14] Speaker 00:
It's the indication of the operating bandwidth plus other information already known to the receiver that allows the receiver to specifically identify the appropriate bandwidth.

[00:22:23] Speaker 06:
Can you talk a little bit about the due process, the concern the other side has about being surprised by the claim construction that the board arrived at in the final written decision?

[00:22:33] Speaker 00:
Certainly.

[00:22:33] Speaker 00:
And there are a couple of points there.

[00:22:34] Speaker 00:
First, obviously the board was not required to adopt any party's claim construction verbatim.

[00:22:39] Speaker 00:
But what it did adopt was a claim construction that, in relevant part, at least,

[00:22:43] Speaker 00:
is comparable to what Google and Ericsson had been arguing all along.

[00:22:47] Speaker 00:
Google's proposed plain and ordinary meaning, for example, argued that, and this is, for example, when Google's, well, Appendix 153 is where the board quotes it, but Google said that the indication of an operating bandwidth encompasses determining the frequency range used to transmit the further signal portion

[00:23:09] Speaker 00:
based on information provided by the indication.

[00:23:11] Speaker 00:
So the indication provides information that allows the receiver to determine the frequency range.

[00:23:20] Speaker 00:
Now, that's phrased in terms of the transmitter, because Google is mostly concerned about the claims that talk in terms of the transmitter, not the receiver.

[00:23:27] Speaker 00:
But it's the same point, substantively.

[00:23:30] Speaker 00:
IP's argument seems to be that they take the board's construction to require just that there be information in the indication

[00:23:40] Speaker 00:
And that the receiver works, period.

[00:23:43] Speaker 00:
That there's no nexus between the two.

[00:23:45] Speaker 00:
But that's not a reasonable construction of the board's construction.

[00:23:50] Speaker 00:
Because the point of the board's construction is that the indicator provides sufficient information so that the receiver can reconfigure itself.

[00:23:56] Speaker 04:
The question here is whether the parties had an adequate opportunity to address the board's construction.

[00:24:03] Speaker 04:
Because it was late in the day, wasn't it?

[00:24:06] Speaker 00:
Well, the board announced its interpretation in the final decision because claim construction was first disputed in the answer in the reply.

[00:24:13] Speaker 00:
So that was the first opportunity the board would have had to address it.

[00:24:16] Speaker 00:
Since the petition stage, no one was seeking a claim construction.

[00:24:18] Speaker 05:
During the time you filed your petition and your reply, you changed your argument or motivation to combine Dolman and McFarland.

[00:24:32] Speaker 05:
Did you specifically disavow the first argument?

[00:24:35] Speaker 00:
Judge Wallach, I'm sorry I have to say this, but I represent Google, and because that's an Erickson only question.

[00:24:41] Speaker 00:
I hate to say it, but Erickson does have to address the Erickson specific questions.

[00:24:46] Speaker 00:
And they can do that soon.

[00:24:48] Speaker 00:
But in terms of the fair opportunity, if claim construction was first raised in the answer, Google and Erickson then addressed it in their replies.

[00:24:55] Speaker 00:
It was addressed again in oral before the hearing.

[00:24:58] Speaker 00:
And the construction that the board ultimately adopted is in relevant part comparable to what Google and Erickson had been arguing.

[00:25:05] Speaker 00:
It's very hard to see any due process issue.

[00:25:07] Speaker 00:
I would also point out that even as of now, there's been no demonstration of prejudice.

[00:25:11] Speaker 00:
I was never identified, if it had known the precise wording of the ultimate claim construction, what arguments or evidence it would have presented differently.

[00:25:18] Speaker 00:
And the reason was that it wouldn't have.

[00:25:20] Speaker 00:
There's no material substantive difference.

[00:25:25] Speaker 00:
There's no discussion yet of the one versus two filters issue.

[00:25:27] Speaker 00:
I don't know if the court would like to briefly hear on that.

[00:25:30] Speaker 00:
But the simple point is that the claim language requires

[00:25:33] Speaker 00:
a filter for one function and a filter for another function.

[00:25:37] Speaker 00:
But consistent with background norms of patent law, it does not require that multiple structures be used to satisfy the multiple limitations.

[00:25:45] Speaker 00:
And we know that in a couple of respects.

[00:25:47] Speaker 00:
One, the claim language doesn't specifically require separate structures.

[00:25:51] Speaker 06:
Doesn't the claim use the verb are, a-r-e?

[00:25:55] Speaker 06:
Yes.

[00:25:56] Speaker 06:
But the filter one, filter two, are reconfigurable?

[00:25:59] Speaker 00:
Right.

[00:26:00] Speaker 00:
In common usage, ours oftentimes used to refer to something that could be either singular or plural.

[00:26:05] Speaker 00:
So for example, there are one or more books on the shelf, one or more judges on the court.

[00:26:13] Speaker 00:
Or you could have rewritten one of these claims to say wherein the one or more filters are reconfigurable.

[00:26:26] Speaker 00:
Or my favorite, if my kids are arguing about whether they like Batman or Bruce Wayne better, and someone said I like Batman and Bruce Wayne, or I think Batman and Bruce Wayne are both great, that R would refer to, obviously Batman and Bruce Wayne are the same person, and just you could say in different configurations.

[00:26:46] Speaker 00:
But in any event, the board's point about R is that... I'm sitting here thinking what they really say is myself R. Which, well, they do like themselves.

[00:26:56] Speaker 00:
But the board's point about R, though, I think the board had the key point, which is that you still have to read all the intrinsic evidence in the whole.

[00:27:03] Speaker 00:
And at a minimum, the use of the verb R, which can be used to denote either single or plural, it doesn't speak directly expressly to the point.

[00:27:11] Speaker 00:
Whereas the specification does spot on say that what's necessary is either providing different filters or

[00:27:20] Speaker 00:
reconfiguring the filter, the single filter, and then in that point it's this filter with an S in parenthesis at the end, making it really clear it's one or more filters.

[00:27:29] Speaker 06:
We're using the broadest reasonable interpretation here, right?

[00:27:32] Speaker 00:
As well.

[00:27:33] Speaker 00:
And also in context, this is what you would expect because in the computer context, if you have a circuit in one filtering configuration, you then reconfigure the circuit into a different filtering configuration.

[00:27:45] Speaker 00:
In a very real sense, you then have two filters just as

[00:27:48] Speaker 00:
programming computer makes a new computer, as the court explained in Alipat.

[00:27:52] Speaker 00:
So you wouldn't expect there to be a requirement for two separate structures, and the specification confirms there's not.

[00:27:56] Speaker 00:
OK.

[00:27:57] Speaker 05:
Thank you.

[00:28:00] Speaker 05:
Mr. Lowe?

[00:28:03] Speaker 05:
Well, Mr. Lowe, come out from under the bus you were thrown under and answer my question.

[00:28:07] Speaker 01:
Yes, Your Honor.

[00:28:09] Speaker 01:
Indeed, in the petition, we did make the combination of McFarland

[00:28:14] Speaker 01:
as modified by the Dahlman's reference teaching of the UMTS system.

[00:28:20] Speaker 01:
And then in response to the arguments raised, we explained that while that combination of the teachings is appropriate, in practice making a physical combination, the UMTS system is already implemented.

[00:28:31] Speaker 01:
So you're saying you didn't abandon the first one?

[00:28:33] Speaker 01:
Not at all, Your Honor.

[00:28:35] Speaker 01:
We just explained how it would physically be implemented just to demonstrate the combination.

[00:28:40] Speaker 06:
I guess the idea is McFarland

[00:28:42] Speaker 06:
This is a specific type of transmitter on a wireless network.

[00:28:47] Speaker 06:
Dolman is a particular kind of wireless network, UMTS.

[00:28:52] Speaker 06:
And so the combination of this interesting transmitter in Montfarland with the UMTS network is kind of basic.

[00:29:02] Speaker 06:
So whether you're talking about one combined with the other or the other combined with the one,

[00:29:11] Speaker 06:
readily see what the combination is supposed to look like.

[00:29:14] Speaker 01:
Yes, Your Honor.

[00:29:15] Speaker 01:
I think the board explains itself when they're developing what is the level of skill in the art.

[00:29:20] Speaker 01:
They look both to the declarations of the experts, Dr. Haas and Dr. Zegar, as well as the references themselves.

[00:29:27] Speaker 01:
And they make findings that the person of ordinary skill in the art would know about the use of UMTS Node-B systems, would know about the spread spectrum technology of UMTS, would also know about OFDMA.

[00:29:39] Speaker 01:
And so they find that the person of skill in the art already has this base knowledge about applying those and then add on to that that it's easy to modify.

[00:29:48] Speaker 01:
The person of skill in the art knows how to modify those different schemes to achieve those results.

[00:29:53] Speaker 06:
What about the due process concern?

[00:29:55] Speaker 06:
I guess Ivy is saying that you never really

[00:30:01] Speaker 06:
urged a particular claim construction, at least the one that was specifically adopted by the board, nor could IV really tell from the content and context of what you were arguing in terms of your proposed projections, where they could see and understand what you thought indication of an operating bandwidth meant, so that they were surprised at the end when the board adopted that.

[00:30:28] Speaker 06:
What's your response to that?

[00:30:29] Speaker 01:
I think that the record is clear that

[00:30:32] Speaker 01:
The indication of operating bandwidth is really used three times in the claims.

[00:30:36] Speaker 01:
Claim 14 of the 353 patent is probably the best, because it has both a transmitter component, as well as the receiver logic for recovering the indication, and then further logic for recovering the information at the indicated bandwidth.

[00:30:51] Speaker 01:
And so in the analysis of that, applying, for instance, the Trome power reference, which they complained that the board applied a portion of Trome power that wasn't previously cited

[00:31:02] Speaker 01:
for that, that's incorrect.

[00:31:04] Speaker 01:
It was actually cited for Claim 14, for the logic for recovering, and that's at APPX 4050 onto 4053.

[00:31:13] Speaker 01:
But it's in the application of those elements for both Trumpower, McFarland, as well as Pierska, that as you walk through and say, there's the indication, and then the claim requires that that indication be used,

[00:31:27] Speaker 01:
as applied to the references, it's clear that each of the references recovers that indication from the header and then reconfigures its filters or system to receive the remainder of the portion at the indicated operating bandwidth so it can recover the data at the higher data rate.

[00:31:47] Speaker 01:
Is there anything further?

[00:31:49] Speaker 01:
No, I think that's it.

[00:31:50] Speaker 01:
Okay, very good.

[00:31:51] Speaker 01:
Thank you very much.

[00:31:56] Speaker 04:
You've got two minutes, Mr. McAnders.

[00:32:02] Speaker 07:
Thank you, Your Honor.

[00:32:04] Speaker 07:
Let me address kind of in reverse order there.

[00:32:07] Speaker 07:
So the issue of whether the specific section of trauma power is an additional due process issue, that specific section of trauma power, which is column 33, was never addressed with respect to indication of operating bandwidth.

[00:32:22] Speaker 07:
It was thrown in to discuss what would happen in a dependent claim

[00:32:26] Speaker 07:
when filters are reconfigured.

[00:32:27] Speaker 07:
It's a dependent claim issue.

[00:32:28] Speaker 07:
It was never cited.

[00:32:30] Speaker 07:
This is an issue where the patent owner needs to be put on notice of what portions of the prior references are being relied on to put together the case of obviousness or anticipation.

[00:32:43] Speaker 07:
Under in-rate magnum oil tools, the board is not free to then go take the priority record and create their own

[00:32:52] Speaker 07:
of unpatentability, and that's what happened with that section of trauma power.

[00:32:55] Speaker 07:
It was never cited for the purpose of that section of the independent claim.

[00:33:02] Speaker 07:
It was only for the dependent claim, different element.

[00:33:05] Speaker 06:
On the issue of two- There's alternative rejections here, though, right?

[00:33:09] Speaker 06:
I mean, we could potentially affirm without ever addressing trauma power.

[00:33:16] Speaker 07:
That's correct, Your Honor.

[00:33:17] Speaker 07:
That's correct.

[00:33:17] Speaker 07:
But at least with respect to trauma power,

[00:33:20] Speaker 07:
We believe that that particular issue violated due process.

[00:33:24] Speaker 03:
Did you raise due process arguments with respect to Trump power?

[00:33:29] Speaker 07:
Yes, Your Honor, we did in our brief, if you want to pinpoint.

[00:33:33] Speaker 03:
It's OK.

[00:33:34] Speaker 07:
Yes, we did raise this as a separate distinct issue on due process.

[00:33:37] Speaker 07:
This was more, rather than a claim construction, this was an application of a section of the prior that had not been previously cited for the proposition that the board ultimately arrived at.

[00:33:47] Speaker 07:
On the two filter issue,

[00:33:50] Speaker 07:
Just briefly, the argument by Google's attorney was that R is used when you say one or more.

[00:33:57] Speaker 07:
Well, that's not the claim language that was chosen by the patent applicant here.

[00:34:01] Speaker 07:
The patent applicant specifically used a filter, describing a filter of a certain kind, and then a filter again.

[00:34:09] Speaker 07:
And in common patent parlance, for antecedent basis issues, you would

[00:34:15] Speaker 07:
You would use the if you're referring back to the same filter.

[00:34:18] Speaker 07:
And it is true that the preferred embodiment describes two different embodiments.

[00:34:22] Speaker 07:
There's two different embodiments.

[00:34:23] Speaker 07:
You can use two different filters, or you can use a single filter.

[00:34:25] Speaker 07:
But the patentee has a choice of claiming something narrower, of course, than its preferred embodiment.

[00:34:30] Speaker 07:
And that's what was done here.

[00:34:31] Speaker 07:
It says a filter, a filter, and then it uses the term are.

[00:34:35] Speaker 07:
It is not the unusual situation where you need to come up with the right word when you say one or more.

[00:34:41] Speaker 07:
That's not what the claim said.

[00:34:42] Speaker 07:
If that's what the patentee had intended,

[00:34:44] Speaker 07:
They would have said one or more filters.

[00:34:49] Speaker 07:
Briefly back to the McFarland, I want to try to make clear one last time why the board's construction is important.

[00:34:57] Speaker 07:
And it's seen in the discussion of McFarland in the board's decisions.

[00:35:02] Speaker 07:
The board decides that McFarland necessarily discloses an indication of operating bandwidth because it assumes that there is fixed carrier spacing.

[00:35:12] Speaker 07:
And when there's fixed carrier spacing,

[00:35:14] Speaker 07:
It is true that when you multiply that by the number of carriers, you wind up with a bandwidth.

[00:35:19] Speaker 07:
Maybe it's not necessarily the indicated bandwidth, but set that aside for a second.

[00:35:23] Speaker 07:
It is true.

[00:35:23] Speaker 07:
But the board made that up.

[00:35:26] Speaker 07:
That was not an argument that the petitioners made.

[00:35:28] Speaker 07:
The board made that up because it examined Ivy's attorney during the course of oral argument, not based on an argument previously made.

[00:35:36] Speaker 07:
And it said, isn't it true that the signal is received?

[00:35:39] Speaker 07:
Isn't it true that it knows where carrier one is, et cetera?

[00:35:42] Speaker 07:
And the answer is, well, yes, it does.

[00:35:44] Speaker 07:
necessarily the case because bandwidth was indicated.

[00:35:48] Speaker 07:
It can be the case, for example, you have a system like my system that's been described as hypothetical, and I did characterize it that way, but it's really an embodiment of the McFarland system.

[00:36:00] Speaker 07:
In the McFarland system, you can negotiate ahead of time that I'm going to use this much bandwidth.

[00:36:06] Speaker 07:
Then all I need to have, so my bandwidth is going to be this going forward.

[00:36:10] Speaker 07:
Then in the first signal portion, I receive an indication of the number of carriers.

[00:36:15] Speaker 07:
Then what I do is I fill that space with those number of carriers.

[00:36:20] Speaker 07:
The carrier spacing doesn't have to be known ahead of time.

[00:36:24] Speaker 07:
We know it's not in the indication.

[00:36:25] Speaker 07:
Nobody's argued that it's in the indication.

[00:36:27] Speaker 07:
It's not there.

[00:36:28] Speaker 07:
But it can be filled after the fact.

[00:36:29] Speaker 07:
And that's consistent with McFarland's purpose of taking into consideration things like multipath and other types of interference where you have trade-offs between the number of carriers and the symbol rate given

[00:36:44] Speaker 07:
how much bandwidth is available to you.

[00:36:46] Speaker 07:
And it makes sense that you would negotiate that available bandwidth ahead of time, because it's the receiver that knows how much bandwidth is available, not the transmitter.

[00:36:55] Speaker 02:
Any questions?

[00:36:57] Speaker 03:
Thank you very much.

[00:37:05] Speaker 04:
Our next case is