[00:00:07] Speaker 03:
Our final case this morning is intellectual ventures versus Erickson, 2016, 1803, Ms.

[00:00:14] Speaker 03:
Wang.

[00:00:21] Speaker 02:
Good morning.

[00:00:22] Speaker 02:
May it please the court.

[00:00:24] Speaker 02:
In finding claims one and two of the 431 patent to obvious, the board erred in at least four separate ways.

[00:00:31] Speaker 02:
First, the board legally erred by adopting Erickson's pairwise approach to obviousness.

[00:00:36] Speaker 02:
This pairwise approach left, uh, let Erickson to ignore the proposed prior art references, the fact that they don't all work together.

[00:00:45] Speaker 02:
The second error was there was no substantial evidence to support the board's finding that a person of skill in the art would have been motivated to combine Lee and Yamayura.

[00:00:56] Speaker 02:
Third, Erickson's petition simply ignored the claim element.

[00:01:00] Speaker 02:
Corban substantially centered at an operating center frequency of the different communication schemes.

[00:01:06] Speaker 02:
So there was no substantial evidence to support the board's finding that the prior art meets that limitation.

[00:01:12] Speaker 00:
In your view, does the standard for finding motivation to combine, is it heightened by any degree as a result of having multiple prior references that we're looking at?

[00:01:28] Speaker 00:
I mean, if we got two references

[00:01:33] Speaker 00:
we're looking at a motivation to combine issue, but what if we have 12 or 14?

[00:01:40] Speaker 00:
Does a number of the prior references affect the motivation to combine analysis?

[00:01:46] Speaker 02:
It's not so much that it's the number of prior art references, Your Honor.

[00:01:49] Speaker 02:
I think the problem that happened here is that when you're looking at a pair of references, and for example, in this particular case, there were certain claim elements or portions of the claim

[00:02:00] Speaker 02:
where Erickson was relying on more than one reference.

[00:02:04] Speaker 02:
And in those situations what they did was they simply had a reason to combine the references for that particular claim element.

[00:02:11] Speaker 02:
And I think that's where the problem is because there was an assumption that by finding or providing a reason to combine for a particular claim element or a portion of the claim, that was enough to show that all of the references could be combined together.

[00:02:28] Speaker 02:
And so the problem that we had here

[00:02:30] Speaker 02:
is that there were four references in the first challenge.

[00:02:35] Speaker 02:
And there was no evidence whatsoever that a person of skill and the art would have combined all four references together to render the entire claim obvious.

[00:02:47] Speaker 02:
And that's where we had the problem.

[00:02:48] Speaker 00:
I think the issue there is that we- Let's say you have one reference, and then you show a motivation to combine reference two to it, reference three to it,

[00:02:59] Speaker 00:
And you have this wheel hub spoke type scenario.

[00:03:05] Speaker 00:
Isn't that enough to show that if the second, third, and fourth references, you combine them, and there's evidence or the motivation to combine at that point, what more do you need to show?

[00:03:19] Speaker 02:
Well, I think for purposes, I'm not trying to say that there's some sort of rule that needs to be followed in every case where there's

[00:03:27] Speaker 02:
have to be a particular couple and another couple and this and this.

[00:03:30] Speaker 02:
What we're saying here is that if there's a reason to combine all of the references to render the entire claim obvious, that's enough.

[00:03:39] Speaker 02:
It's not enough to say I can combine A and B and C and D and therefore A, B, C and D can go together.

[00:03:47] Speaker 02:
And the reason for that is that in this particular case, what we pointed out on appeal is that if you put A and B together,

[00:03:56] Speaker 02:
then you can't add C and D, because if you do, then A and B no longer work.

[00:04:01] Speaker 00:
But what if adding them leads to the result where you've met all the claim limitations in the patent?

[00:04:09] Speaker 02:
Well, I think that's like the exaggerated situation in a typical case.

[00:04:16] Speaker 02:
And we know that this court's president says it's not good enough for obviousness to simply find

[00:04:23] Speaker 02:
that each individual claim element separately exists somewhere in the prior art.

[00:04:27] Speaker 02:
There's got to be a rationale for combining them all together.

[00:04:30] Speaker 02:
What we're saying happened here is that there were reasons to combine given for particular claim elements, but then it didn't result in, as a whole, all of these references being combinable together.

[00:04:45] Speaker 01:
Isn't the inquiry whether the primary reference

[00:04:50] Speaker 01:
could have been modified to include something in the secondary reference if there's some sort of motivation to do that.

[00:04:58] Speaker 01:
So kind of like you could have your primary reference A is modified in view of B, to have a particular feature that B suggests.

[00:05:07] Speaker 01:
Maybe it's not all of B, but just a feature that's in B. Because there is motivation to do that, a reasonable fact finder could find that one.

[00:05:16] Speaker 01:
And then maybe there's some sort of motivation to further alter

[00:05:20] Speaker 01:
B in our view of C, just a feature of C. And so you've got A in view of B in view of C. It sounds to me as if your argument today sounds as if you're saying that when you combine A and B, they've got to fit together neatly, completely.

[00:05:35] Speaker 01:
Everything in A must go with B. When in fact, you could modify reference A just to have a particular feature that is suggested by reference B. Isn't that right?

[00:05:47] Speaker 02:
Well, it's hard to talk about it in the abstract.

[00:05:50] Speaker 02:
to answer your question, Your Honor.

[00:05:51] Speaker 02:
I think it might be helpful to go to the exact scenario that we have here.

[00:05:56] Speaker 02:
So here, there was, I mean, again, in the appeal brief, we explain why we don't think that Lee and Yamayura, there was no reason to combine that was specified in the petition.

[00:06:08] Speaker 02:
But that's a separate issue.

[00:06:10] Speaker 02:
So suppose Lee and Yamayura can be combined.

[00:06:13] Speaker 02:
We know that Erickson relies on Lee for the variable bandwidth system.

[00:06:17] Speaker 02:
Fine.

[00:06:18] Speaker 02:
They rely on Yama-Yura for the core band.

[00:06:21] Speaker 02:
OK.

[00:06:22] Speaker 02:
They say that they provided a reason to combine.

[00:06:24] Speaker 02:
That's sort of disputed.

[00:06:26] Speaker 02:
But what we're talking about is when you add the primary preamble, what they're relying on is Zhuang.

[00:06:32] Speaker 02:
They provided a reason to combine Yama-Yura and Zhuang.

[00:06:36] Speaker 02:
And what we're saying is that if you put them all together, then you no longer have something that works.

[00:06:42] Speaker 02:
So it's not that Li by itself doesn't work.

[00:06:45] Speaker 02:
Li, in order to have the variable bandwidth system,

[00:06:48] Speaker 02:
has a cluster allocation scheme.

[00:06:51] Speaker 02:
And we explain this in the appeal briefs.

[00:06:54] Speaker 02:
The cluster allocation scheme is made possible by the particular pilot symbols that are used in Li.

[00:07:02] Speaker 02:
Zhuang is being used for primary preamble.

[00:07:05] Speaker 02:
And Zhuang has particular symbols.

[00:07:09] Speaker 02:
The Li pilot symbols are also in a preamble.

[00:07:12] Speaker 02:
So what we're saying is, if you put everything together,

[00:07:16] Speaker 02:
then you're not going to have the variable bandwidth system anymore.

[00:07:20] Speaker 02:
And so that's what the problem is.

[00:07:22] Speaker 01:
So here... The problem here is more a matter of, in this particular case, the way the prior patents were combined is problematic.

[00:07:31] Speaker 01:
Not necessarily the different kind of combinations, you know, this A and view of B. You're not arguing that in every case there has to be a particular way in which prior is combined.

[00:07:45] Speaker 02:
No, I don't think we would be looking for a rule such as that.

[00:07:49] Speaker 02:
We're just saying in this particular case, if you want to rely on Li for the variable bandwidth system, then you're stuck with those Li pilot symbols in the preamble.

[00:07:58] Speaker 02:
So you can't just plop in the Zhuang pilot sequence and say, look, it all works together, because we showed that it works with Yamajira.

[00:08:07] Speaker 02:
And that's why I said the problem with looking at this in pairs is that that allowed

[00:08:14] Speaker 02:
the board to sort of ignore that Lee and Zwang don't work together.

[00:08:21] Speaker 02:
Okay, so moving on, with respect to the motivation to combine that I was talking about for Lee and Yamayura, I alluded to this a bit earlier, but the petition itself

[00:08:41] Speaker 02:
did not describe a reason to combine Lee and Yamajira for purposes of rendering obvious claim one or claim two.

[00:08:48] Speaker 02:
When Ivy pointed this out in the Patanona response, in a reply, Erickson then identified an argument that it had made with respect to a completely different claim, claim eight.

[00:09:00] Speaker 02:
Under Ariosa diagnostics, we think it was improper for Erickson to have provided that information for the first time on reply and not in the original petition.

[00:09:11] Speaker 02:
But more importantly, Erickson failed to provide any particularized arguments explaining why the motivation to combine for a claim eight would have been cross applicable to claim one.

[00:09:25] Speaker 02:
So we think under Magnum Oil Tools, the board can't rely on arguments based on a different challenge without an explanation of why those arguments would be cross applicable.

[00:09:37] Speaker 02:
Here, the board can't just adopt

[00:09:40] Speaker 02:
arguments on behalf of petitioner that could have been made but simply were not made in the petition.

[00:09:48] Speaker 02:
So that's another reason why the board's findings should be reversed.

[00:09:54] Speaker 02:
Let's go to the missing claim elements.

[00:10:01] Speaker 02:
Now we pointed out that there were two separate claim elements that were simply ignored by Erickson in its petition.

[00:10:09] Speaker 02:
with respect to claims one and two.

[00:10:11] Speaker 02:
That's because the petition was so focused on claims eight to 12 and 18 to 22, which had claims that were being asserted against certain Erickson customers in pending litigation in Delaware.

[00:10:24] Speaker 02:
So that sort of explains why there was such a focus on those claims.

[00:10:29] Speaker 02:
The problem is by incorporating by reference so many of the arguments from claim eight into claim one, Erickson simply forgot or didn't notice

[00:10:39] Speaker 02:
that there were some differences in the claim language.

[00:10:41] Speaker 02:
So in particular, we've pointed out two different claim elements.

[00:10:48] Speaker 02:
The first one is the substantially centered at an operating center frequency of the different communication schemes.

[00:10:56] Speaker 02:
If you go to the petition at page 43, it's A266, Erickson's entire analysis of this claim element is provided in one sentence.

[00:11:08] Speaker 02:
Just as Yama Yura discloses all the features recited in claim element 1.6, then there's some sites.

[00:11:17] Speaker 02:
That's all.

[00:11:20] Speaker 02:
That's not enough because claim eight doesn't have the of the different communication schemes language.

[00:11:27] Speaker 01:
As a technical matter, when you're referring to of the different communication schemes in this claim, you're referring to having different

[00:11:36] Speaker 01:
different sub-carriers, right?

[00:11:39] Speaker 02:
Yes, and the preamble provides the antecedent basis of the different communication schemes in this particular instance.

[00:11:47] Speaker 02:
So it's a variable bandwidth system that has multiple different communication schemes.

[00:11:52] Speaker 02:
So it's more than one communication scheme.

[00:11:54] Speaker 01:
What are the different communication schemes?

[00:11:57] Speaker 02:
Well, here, what's interesting is in the petition, by relying solely on Yamayura,

[00:12:04] Speaker 02:
That is a system that only has one communication scheme.

[00:12:08] Speaker 02:
So Yamagura alone.

[00:12:09] Speaker 02:
Because it's not variable bandwidth?

[00:12:10] Speaker 02:
Right.

[00:12:11] Speaker 02:
There's just one single communication scheme.

[00:12:13] Speaker 02:
That's all that Erickson relied on in its petition.

[00:12:17] Speaker 02:
Now, when we pointed it out, they came back and replied.

[00:12:20] Speaker 02:
And then they had, oh, I'm sorry.

[00:12:23] Speaker 02:
We pointed out that there was Lee.

[00:12:27] Speaker 02:
And Lee has variable communication schemes.

[00:12:30] Speaker 02:
However, the Lee variable communication schemes

[00:12:34] Speaker 02:
are not substantially centered at a single operating center frequency.

[00:12:39] Speaker 02:
So to illustrate that, we have a couple colored pictures in our appeal briefs.

[00:12:44] Speaker 02:
Page 51, for example, of IV's appeal brief has a colored picture that kind of shows what happens in Lee with multiple communication schemes.

[00:12:53] Speaker 02:
But the point is that Lee doesn't disclose a way of allocating subcarriers symmetrically.

[00:13:00] Speaker 02:
So there's not just one center frequency.

[00:13:03] Speaker 02:
So in other words, Lee by itself also is not enough for claim element 1.6.

[00:13:09] Speaker 03:
Counsel, you wanted to save some rebuttal time.

[00:13:13] Speaker 03:
You're into it.

[00:13:15] Speaker 03:
You can continue or save it.

[00:13:17] Speaker 02:
You know what?

[00:13:18] Speaker 02:
I will save the rebuttal time.

[00:13:20] Speaker 03:
Thank you.

[00:13:24] Speaker 03:
Mr. Lowes.

[00:13:25] Speaker 04:
Yes, Your Honor.

[00:13:27] Speaker 04:
Good morning.

[00:13:28] Speaker 04:
It's at Lee's position that the board got it right.

[00:13:31] Speaker 04:
They properly construed the claims, provided a record of that construction, and then based their findings of the teachings of the references, as well as the motivations to combine unsubstantial evidence in the record.

[00:13:43] Speaker 04:
I want to go back to something that a patent owner raised, which is this element 1.6 and the evidence surrounding that.

[00:13:51] Speaker 04:
With respect to the claim element, it's talking about the different communication schemes.

[00:13:57] Speaker 04:
It's referring by antecedent basis, as they recognize, to the preamble.

[00:14:01] Speaker 04:
And the disclosure for the different communication schemes is actually found in our section of the petition 1.0.

[00:14:07] Speaker 04:
We cite to Lee and say it has different communication schemes.

[00:14:13] Speaker 04:
It can provide a first scheme where it identifies a certain number of sub-carers, and then it can switch to a second scheme where it has more sub-carers expanding the bandwidth.

[00:14:22] Speaker 01:
What page is that on in the record?

[00:14:23] Speaker 04:
In the brief?

[00:14:25] Speaker 04:
In the appendix.

[00:14:31] Speaker 04:
Appendix 2662 onto 2663.

[00:14:38] Speaker 04:
And then with respect to the centered concept, that is precisely what Yamaura discloses.

[00:14:43] Speaker 04:
If you look to the pinpoint site in Yamaura, it says that those narrow control bands are centered within the operating frequency.

[00:14:50] Speaker 04:
So the combination of those is provided in the petition, and then the particularized feature is explained further.

[00:14:57] Speaker 04:
in the reply and they're supported by testimony from Dr. Haas in his supplemental petition as well.

[00:15:03] Speaker 04:
He provided a further illustration showing exactly how Lee and Yama Yura would be combined to have the different communication schemes as well as the narrow vans centered within those schemes.

[00:15:16] Speaker 04:
Another area I'd like to address is the concept of combinability of the references as a whole.

[00:15:25] Speaker 04:
So there's discussion about

[00:15:26] Speaker 04:
combining the Lee reference with Yamahura and then with the Schwang reference.

[00:15:33] Speaker 04:
Let me back up just a touch for the technology.

[00:15:36] Speaker 04:
This patent is about a variable bandwidth system that then describes how do you accomplish the initial communication with the mobile device as it enters the system.

[00:15:48] Speaker 04:
Since there's variability, there needs to be some predefined channels that that mobile device will listen to, and then you also need to send preambles

[00:15:56] Speaker 04:
because all the transmissions from the base station sound like noise unless you can actually synchronize with the base station.

[00:16:03] Speaker 04:
And that's what claim one is about.

[00:16:04] Speaker 04:
Variable bandwidth, some predefined control channels that are narrower than the smallest operating channel bandwidth or equal to, and then specific preambles.

[00:16:15] Speaker 04:
And during prosecution, the examiner said it's not enough just to have variable bandwidth.

[00:16:20] Speaker 04:
That was known.

[00:16:20] Speaker 04:
Having the core band or narrow control channels, that was known.

[00:16:24] Speaker 04:
And it wasn't until the applicant added the specific preamble features that the claim was allowed.

[00:16:30] Speaker 04:
And these references, the Zhuang reference and the Modi and Nobelet and Popovic references, have the preambles with those features.

[00:16:38] Speaker 04:
And so the combination here is Li as that base reference disclosing a variable bandwidth system.

[00:16:45] Speaker 04:
It's very much like in KSR.

[00:16:47] Speaker 04:
The Asano reference provided the brake system.

[00:16:49] Speaker 04:
It provided the structure.

[00:16:51] Speaker 04:
And then in KSR, the 936 said,

[00:16:54] Speaker 04:
put a sensor on the pedal.

[00:16:56] Speaker 04:
And then they used the Smith reference and said, well, put the sensor not on the pedal, but on structure.

[00:17:02] Speaker 04:
And then utilized the Rickson reference to move that sensor onto the structure, but onto a piece of structure that doesn't move.

[00:17:08] Speaker 04:
So there you have four references, all aligned, each modifying the other into where the location of that sensor would be.

[00:17:16] Speaker 04:
And ultimately, the Supreme Court said, that's satisfactory.

[00:17:20] Speaker 04:
There's no rigid rule into how you apply.

[00:17:22] Speaker 04:
The references, it simply requires that motivation or reason to look to the references.

[00:17:29] Speaker 04:
And that's the same as here.

[00:17:31] Speaker 04:
The Lee reference is all about the data traffic.

[00:17:34] Speaker 04:
It's what happens after communication is established.

[00:17:37] Speaker 04:
It doesn't talk about establishing that communication.

[00:17:40] Speaker 04:
It does say that there are typically other channels pre-allocated for other controls, such as synchronization.

[00:17:49] Speaker 03:
What provides the motivation to pick these references and put them together?

[00:17:53] Speaker 03:
You say they're all there.

[00:17:55] Speaker 03:
Is it that they're all there and one has reason to experiment and add things?

[00:18:02] Speaker 03:
Or does one need an indication in one of the references to suggest adding something to it?

[00:18:11] Speaker 04:
It's really two reasons.

[00:18:12] Speaker 04:
One is the Lee reference expressly provides

[00:18:16] Speaker 04:
a reason to combine.

[00:18:18] Speaker 04:
It says it needs other channels.

[00:18:20] Speaker 04:
And just like in the court's Enrey-Ethicon decision recently, the reference itself can provide that motivation to say, go look to other references to fill this void.

[00:18:30] Speaker 04:
And the other is, it's just known to a person of skill in the art that you need to have synchronization.

[00:18:38] Speaker 04:
Your mobile device has to synchronize with the base station.

[00:18:42] Speaker 04:
And so there has to be synchronization occurring before the communication session can happen.

[00:18:47] Speaker 04:
But with the teachings of Lee, Dr. Haas testified, and the board looked at that testimony, as well as Lee itself, and said, yes, there need to be other channels to accomplish that, particularly synchronization issues.

[00:19:02] Speaker 04:
Yama Euro provides specific examples of how to accomplish that in a narrow band, described using just a narrow band, to get the benefit that the phone doesn't have to decode all the subcarriers.

[00:19:15] Speaker 04:
It only needs to decode a small set of subcarriers

[00:19:17] Speaker 04:
thereby saving battery life.

[00:19:19] Speaker 04:
And then Yamaura says, within that narrow band, let's have preambles so that we can have synchronization, and those preambles should have good correlation properties.

[00:19:30] Speaker 04:
But it doesn't say what kind of sequences should we send in those preambles.

[00:19:34] Speaker 04:
So a personal skill in the art is going to look to another reference to say, OK, what are some good sequences to send?

[00:19:40] Speaker 04:
And in that case, looks to Yamaura.

[00:19:43] Speaker 04:
Here are some excellent sequences.

[00:19:44] Speaker 04:
They're chirp-like sequences that have good correlation properties, autocorrelation, low peak to average power ratio.

[00:19:52] Speaker 04:
And so that's the combination that's being made.

[00:19:55] Speaker 01:
Correlation, that's something that's common for this type of control sequence that you're talking about?

[00:20:03] Speaker 04:
Yes, to accomplish the synchronization.

[00:20:05] Speaker 04:
Yamaura talks about using the preambles and that the preambles have correlation properties.

[00:20:10] Speaker 04:
but doesn't provide what would those sequences actually be that you would transmit.

[00:20:15] Speaker 04:
Whereas Yamayura is all about identifying optimal sequences that can be transmitted, either as pilots at the beginning of a transmission, or Zhuang talks about, I'm sorry, preambles at the beginning of the transmission, or pilots.

[00:20:32] Speaker 04:
So these sequences could be used in either place, but the teaching of Zhuang is they can be preambles at the beginning.

[00:20:40] Speaker 04:
And so that's applied in Yamaura in its preambles.

[00:20:43] Speaker 04:
And so that's the combination that's being made is Li, then Yamaura adds the narrowband control signals before the communication, including preambles, and then the specific preambles that need to be transmitted or identified in Shuang.

[00:20:59] Speaker 01:
What's the advantage of putting the correlation sequences in the preamble as opposed to the pilot?

[00:21:06] Speaker 04:
Well, the preamble is at the beginning of the transmission.

[00:21:09] Speaker 04:
And so before that, let's say it's a mobile device, a cell phone, it has no idea what all those ones and zeros and everything flying around, it doesn't know where to start.

[00:21:18] Speaker 04:
So it's looking to identify something that it knows.

[00:21:21] Speaker 04:
And then once it knows that, so it's a known sequence, it says, aha, I found the beginning of the communication.

[00:21:29] Speaker 04:
Now I can synchronize and make sure that I'm synchronized with the base station

[00:21:33] Speaker 04:
and then let me listen to the rest of the message, see if it's a message from my phone, and then continue on with the communication session.

[00:21:44] Speaker 04:
Let's see, also raised a question about inoperability with respect to combining all the features from the Zhuang reference and applying those back into the Li reference.

[00:21:58] Speaker 04:
And that's simply not the standard of combination

[00:22:03] Speaker 04:
Taking the teachings of one reference and using those teachings to modify another reference is the appropriate approach.

[00:22:11] Speaker 04:
We, in our petition, are not suggesting that we modify the pilot symbols of Li that are within the data channels.

[00:22:18] Speaker 04:
We are adding preambles in front of the Li communication because the Li system itself doesn't describe how do you initialize the communication session.

[00:22:32] Speaker 04:
And the board found that a person of ordinary skill would have looked elsewhere for control and synchronization channels prior to establishing communication with a mobile station, and found that supported by Lee's explicit disclosure that there are typically other channels preallocated, as well as the testimony of Dr. Hobbs.

[00:22:55] Speaker 01:
You may have addressed this earlier, but does Yamora say why it is that you'd want to have the control

[00:23:02] Speaker 01:
signal centered?

[00:23:05] Speaker 04:
I don't believe it.

[00:23:08] Speaker 04:
I can't recall that it expressly does.

[00:23:11] Speaker 04:
But that's definitely the disclosure that it has, that they would be centered and that the other subcarriers would be on either side of that centered core band.

[00:23:25] Speaker 04:
Back to inoperability.

[00:23:26] Speaker 04:
Basically, that's not our argument.

[00:23:28] Speaker 04:
We are adding preambles and preambles of a certain kind.

[00:23:31] Speaker 04:
To Lee, we're not changing the pilot symbols as patent owner suggested.

[00:23:36] Speaker 04:
So that's simply a straw man argument that they're raising.

[00:23:38] Speaker 04:
It has no issue here.

[00:23:40] Speaker 04:
I did want to, if the court would be interested, address, they made an argument concerning claim construction.

[00:23:46] Speaker 04:
Well, you move on.

[00:23:48] Speaker 00:
Yes, your honor.

[00:23:49] Speaker 00:
And I want to ask before you run out of time, too, and I guess this goes back to Judge Laurie's question.

[00:23:57] Speaker 00:
The concern I have here is one of hindsight.

[00:24:00] Speaker 00:
going back and finding obviousness, not from the point of view of a posita at the time of the invention, but now as we understand the invention.

[00:24:16] Speaker 00:
And it seems to me you have a lot of separate pieces that are being brought together in order to combine.

[00:24:22] Speaker 00:
You're combining the various references.

[00:24:26] Speaker 00:
And I'm not completely satisfied that the board has given us

[00:24:30] Speaker 00:
an inadequate explanation as to why all the pieces together work, or why would you put all these pieces together?

[00:24:41] Speaker 00:
I mean, it's, I think I read somewhere that there are separate pieces of a puzzle out there.

[00:24:48] Speaker 00:
Now, what's the motivation to combine all the pieces together?

[00:24:52] Speaker 00:
What's the authority that exists on that?

[00:24:56] Speaker 04:
Right, Your Honor.

[00:24:56] Speaker 04:
I think in this situation, it's that

[00:24:59] Speaker 04:
the references themselves to make an operational system based on the teachings of Lee, one needs to have this initial communication between the base station and the cell phone to accomplish synchronization.

[00:25:13] Speaker 04:
And to know, am I the phone that's being called?

[00:25:16] Speaker 04:
Lee doesn't address that.

[00:25:18] Speaker 04:
And so a person of skill in the art knows you have to have this other part.

[00:25:22] Speaker 04:
And so really the references are complimentary.

[00:25:24] Speaker 04:
Lee is about variable bandwidth for data traffic.

[00:25:27] Speaker 04:
Yama Yura is about

[00:25:29] Speaker 04:
How do you set up the control and provide preambles?

[00:25:33] Speaker 04:
And then what kind of preambles?

[00:25:35] Speaker 04:
That's answered by Schwang.

[00:25:36] Speaker 04:
So those elements are complementary to build the system.

[00:25:40] Speaker 04:
It's not as though you're taking one and subbing in something else, removing pieces.

[00:25:45] Speaker 04:
You're simply trying to build, in our petition, build the operational system by the elements that are required, as known by a person of skill in the arts.

[00:25:59] Speaker 04:
Again, I did want to address the claim construction if the court... You have a couple of minutes left.

[00:26:04] Speaker 04:
Okay, Your Honor, they raised the concept that the board got the claim construction wrong on substantially not wider.

[00:26:12] Speaker 04:
The board found that not wider means equal to or less than, the plain and ordinary meaning.

[00:26:18] Speaker 04:
It's their position that using the word substantially somehow takes away the equals to and means that it has to be significantly less than.

[00:26:27] Speaker 04:
That's simply just it's not supported by the specification.

[00:26:30] Speaker 04:
There's no reason for such a narrow construction.

[00:26:33] Speaker 04:
And it's also contrary to what they told the patent office to obtain the patent.

[00:26:37] Speaker 04:
They told the patent office substantially is a word of approximation and it's in there because there are tolerances and variabilities in these systems.

[00:26:45] Speaker 04:
And so I think the board got it right and it follows the plain and ordinary meaning.

[00:26:50] Speaker 04:
I believe that's it.

[00:26:51] Speaker 04:
If there are any further questions.

[00:26:53] Speaker 03:
Thank you.

[00:26:54] Speaker 03:
All right.

[00:26:55] Speaker 03:
Thank you.

[00:26:57] Speaker 03:
Ms.

[00:26:57] Speaker 03:
Weing has a couple of minutes of her little time.

[00:27:06] Speaker 02:
I wanted to just address a few things that came up in Mr. Lowe's argument.

[00:27:10] Speaker 02:
First of all, I wanted to point out once again, Erickson submitted no evidence whatsoever, let alone substantial evidence that a person of skill in the art would have combined all of the references together to render the entire claim obvious.

[00:27:24] Speaker 02:
Second, with respect to the discussion about other channels in LEA, if you go to LEA at appendix 732, column 5 around line 13 is where the board said, well, you know, here the LEA reference says that there are typically other channels preallocated for the exchange of control information.

[00:27:48] Speaker 02:
And then they gave, as an example, uplink and downlink control.

[00:27:51] Speaker 02:
Now, the problem here is

[00:27:54] Speaker 02:
The board actually agreed with IV after the hearing.

[00:27:58] Speaker 02:
If you go to A18, the board decision, the board acknowledges that Lee does teach uplink and downlink control.

[00:28:07] Speaker 02:
So in other words, if uplink and downlink control are already in Lee, then why would you look elsewhere?

[00:28:14] Speaker 02:
And that was precisely our point there, that there is really no explanation.

[00:28:20] Speaker 02:
If Lee already has that information,

[00:28:23] Speaker 02:
Why would you look outside of Lee?

[00:28:28] Speaker 02:
Going back to claim element 1.6, Mr. Lowes talked a bit about Dr. Haas' testimony regarding why Lee and Yamayuro would be put together for purposes of the different communication schemes.

[00:28:43] Speaker 02:
In our appeal brief, we point out that it's just a conclusory statement by Dr. Haas that doesn't address

[00:28:51] Speaker 02:
how you would actually put Li and Yamaura together, knowing that Li only teaches looking at the strongest or the best signal-to-noise ratio when doing its cluster allocations.

[00:29:03] Speaker 02:
So how would you force that to be proportional, like Yamaura?

[00:29:07] Speaker 02:
The other point I wanted to raise is, I think, Judge Stoll, you asked Mr. Lowe's about the centering of the narrowband in Yamaura.

[00:29:19] Speaker 02:
Yamaura teaches

[00:29:21] Speaker 02:
The benefit of Yamaura isn't that the narrow band is centered.

[00:29:25] Speaker 02:
In fact, the very first embodiment in Yamaura, if you look at Figure 5, A749, the narrow band is actually in the side band or the guard band.

[00:29:37] Speaker 02:
So it doesn't have to be centered.

[00:29:40] Speaker 02:
So that's an incorrect assumption.

[00:29:42] Speaker 02:
But it does teach, at least in one embodiment, that it's centered.

[00:29:46] Speaker 02:
It does have an embodiment where it's centered.

[00:29:49] Speaker 01:
You're just saying they don't say why you would want to center it?

[00:29:52] Speaker 02:
No.

[00:29:52] Speaker 02:
In fact, the first embodiment is it's not centered.

[00:29:57] Speaker 02:
And with respect to the claim construction issue, under Microsoft versus Proxycon, the board's construction cannot be divorced from the specification and the record evidence, and it must be consistent with the one that a person skilled in the art would reach.

[00:30:14] Speaker 02:
The board's decision on clamp construction meets none of those requirements.

[00:30:18] Speaker 01:
Doesn't the specification at the top of column five say that it should be not greater than?

[00:30:26] Speaker 01:
It says the core band, I think it says a core band substantially centered at the operating center frequency is defined as a frequency segment that is not greater than the smallest operating channel bandwidth.

[00:30:40] Speaker 01:
So why isn't their construction consistent with that?

[00:30:43] Speaker 02:
That's exactly the point, Your Honor.

[00:30:45] Speaker 02:
That's the definition of core band.

[00:30:48] Speaker 02:
So core band itself covers not greater than, which is less than or equal to.

[00:30:53] Speaker 02:
When you add the words substantially not wider that aren't in any of the other claims, this is just in claim one.

[00:31:00] Speaker 02:
It's a limitation there.

[00:31:01] Speaker 02:
It has to have some meaning.

[00:31:02] Speaker 02:
So if you're saying the core band has to be substantially not wider, the core band shouldn't mean the same thing without the substantially not wider modifier.

[00:31:12] Speaker 03:
Your time is up and we have your case, so we will take it under advisement.

[00:31:19] Speaker 03:
Thanks so much.