[00:00:44] Speaker 04: Okay, our next case this morning is number 17-1039, Max Linear, Inc. [00:00:50] Speaker 04: versus C.F. [00:00:51] Speaker 04: Crespi, LLC. [00:01:08] Speaker 01: May it please the Court. [00:01:11] Speaker 01: The original broad claim of this patent [00:01:13] Speaker 01: was for a digital channel filter in a multi-standard television receiver. [00:01:18] Speaker 01: The examiner located one of the many prior references that already showed this feature and rejected it. [00:01:25] Speaker 04: I've got to say, I'm a bit confused here. [00:01:27] Speaker 04: The decision from the board that's under review here rests entirely on its analysis of claim 17, as I understand it. [00:01:37] Speaker 04: And claim 17 has been held invalid by the board [00:01:42] Speaker 04: in another decision that was affirmed by our court. [00:01:46] Speaker 04: So there's a final judgment as to the unpatentability of claim 17, correct? [00:01:53] Speaker 04: That's correct, Your Honor. [00:01:54] Speaker 04: Well, isn't that binding on us here? [00:01:57] Speaker 04: I mean, 17 is no longer an issue. [00:02:04] Speaker 04: It's an unpatentable claim. [00:02:06] Speaker 01: It's confusing for us as well. [00:02:08] Speaker 01: As far as we can sort it out, the only claims that are still alive are some of the dependent claims, which have not been mooted yet. [00:02:16] Speaker 04: Well, and in which we're not the subject of any analysis by the board and its decision, right? [00:02:21] Speaker 01: No, that's correct, Your Honor. [00:02:23] Speaker 01: They did not dive into the dependent claims. [00:02:25] Speaker 01: Their analysis entirely focused on the independent claim. [00:02:29] Speaker 04: Why should we bother? [00:02:31] Speaker 04: analyzing whether claim seventeen which is a long uh... could be uh... invalidated under some other theory why do we care because you can still reach and validate the some of the dependent claims that are at issue because the only analysis was the analysis the poor provided for the independent claim well there may be a question we send it back then and surely you would agree that that's [00:02:59] Speaker 04: what we need to do would be to send it back for an independent analysis of the dependent claims, an analysis which hasn't been conducted at all by the board, right? [00:03:08] Speaker 01: The only dependent claims that you would need to send back would be claims 6, 7. [00:03:13] Speaker 01: 20 is involved in that. [00:03:15] Speaker 01: 20 and 21. [00:03:16] Speaker 01: And 20 perhaps not, depending upon what happens with the appeal that immediately follows. [00:03:22] Speaker 01: The other claims that are still alive, not already mooted, there is no argument made [00:03:28] Speaker 01: before the board for a separate basis for patentability of those claims. [00:03:33] Speaker 01: So they rise or fall with the analysis. [00:03:35] Speaker 03: But the board did address the dependent claims, correct? [00:03:39] Speaker 03: I'm sorry, Your Honor? [00:03:39] Speaker 03: It did address the dependent claims. [00:03:42] Speaker 01: We did, Your Honor, in our appeal. [00:03:44] Speaker 01: And we addressed them below as well. [00:03:45] Speaker 04: The board did discuss the dependent claims, right? [00:03:48] Speaker 04: Other than to say the dependent claim survives because claim 17 survives. [00:03:54] Speaker 01: That's true for some of the claims. [00:03:57] Speaker 01: It's not true for claims 6, 7, and 21. [00:04:01] Speaker 01: There was an independent argument made before the board owns. [00:04:03] Speaker 01: No, no, no. [00:04:04] Speaker 01: Not an argument. [00:04:05] Speaker 04: The board didn't discuss the independent argument with respect to those claims, right? [00:04:10] Speaker 01: That's correct. [00:04:11] Speaker 01: And I believe for those claims, you would probably have to remand unless you resolve. [00:04:15] Speaker 01: And we saw the issue for those claims as a claim construction issue. [00:04:19] Speaker 01: That's how it was presented to the board. [00:04:22] Speaker 01: And on appeal, that's the course that the patent owner took as well. [00:04:26] Speaker 01: To defend those claims, 6, 7, 21, they require a claim construction where you insert variable before intermediate frequency in those claims. [00:04:34] Speaker 01: Claim construction which has not been made by the board, right? [00:04:37] Speaker 01: That's true, Your Honor. [00:04:39] Speaker 01: They did not. [00:04:39] Speaker 01: How would the board decide any differently if we were to remand? [00:04:43] Speaker 01: Well, first of all, you'd be reversing the only basis that they express for allowing the dependent claims, 6, 7, 21, [00:04:52] Speaker 01: to survive. [00:04:53] Speaker 01: So they would then have to go back and analyze whether or not there was any independent basis for validity as previously argued before the board on those claims. [00:05:03] Speaker 01: You've been deprived of any analysis on it to that point. [00:05:07] Speaker 01: The only way you can avoid a remand in our view on those claims is if you tackle the claim construction issue in the first instance, decide that you don't insert variable into the claim. [00:05:18] Speaker 01: And on the analysis presented, it's clearly anticipated by the reference that we [00:05:22] Speaker 01: obvious in view of the combination that we provided to the board. [00:05:28] Speaker 01: Otherwise, I agree with you, Your Honor. [00:05:29] Speaker 01: It would have to go back for those three claims. [00:05:39] Speaker 01: Regarding the basis on which they did allow those claims to survive, it is directed to the independent claim. [00:05:45] Speaker 01: And if I may, I would express that the only difference between the art and the [00:05:51] Speaker 01: alleged invention is the attachment of a plurality of demodulators. [00:05:56] Speaker 01: That was also a feature that was well-known in the art. [00:06:00] Speaker 01: It was applicant-admitted prior. [00:06:02] Speaker 04: That claims 17 is gone. [00:06:04] Speaker 04: Why do we care whether it should have been invalidated on some additional basis than the one that the board did invalidate it on? [00:06:12] Speaker 01: We care only to the extent that if you affirm that decision, claims 6, 7, and 21 would still be alive [00:06:20] Speaker 01: because they have not been invalidated or canceled by the board. [00:06:23] Speaker 01: So we need to address those claims to get a complete adjudication on the patent. [00:06:30] Speaker 01: There's a live controversy in district court in Delaware that's been stayed pending the outcome of these proceedings. [00:06:35] Speaker 01: And until we are told otherwise by the patent owner, those claims are still very much alive. [00:06:41] Speaker 01: We have many reasons why we would defend against those, ultimately. [00:06:47] Speaker 01: But right now, they're before you. [00:06:49] Speaker 01: They have not been canceled. [00:06:51] Speaker 01: And we don't believe that they're valid because of an unpredictability argument that they've applied to claim one here. [00:06:59] Speaker 01: So that's why we care. [00:07:01] Speaker 01: That's why we're here. [00:07:02] Speaker 01: And that's why we need a reversal of the board's decision on this unpredictability analysis, which we don't believe has any place in the patent. [00:07:13] Speaker 02: The examiner only... What you're saying, Mr. Schade, we don't need to consider 4, 6 through 9 and 20. [00:07:19] Speaker 02: The only ones that need to be considered are 6, 7 and 21. [00:07:23] Speaker 01: That's correct. [00:07:24] Speaker 01: Those are the only claims that are potentially remandable in view of the fact that there was no argument below by the patent owner on the other dependent claims that are still alive and not mooted by prior decisions of this court. [00:07:39] Speaker 02: Those being 4, 6 through 9 and 20. [00:07:42] Speaker 01: Correct, and 20 is an issue in the other appeal, so that may become moot. [00:07:50] Speaker 01: I believe that's the correct mapping subject to correction by my colleague. [00:07:59] Speaker 03: Looking at the Board's decision on Appendix 32 at the bottom of the page, the Board is referencing [00:08:09] Speaker 03: that independent claims 1 and 17 are, that there has not been a showing that they're unpanable, so they found them to be panable. [00:08:18] Speaker 03: And then it goes on and says, because each of the challenged dependent claims incorporate the limitations of the respective independent claims, we also concluded the petition is not shown by a preponderance of the evidence that those claims are unpanable. [00:08:33] Speaker 03: So hasn't the board, can't I read that to show that the board did in fact look at the underlying basis of penability for the dependent claims and has already made a decision? [00:08:46] Speaker 03: It says we incorporate the limitations with respect to the independent claims. [00:08:49] Speaker 03: So it's taken all the evidence with respect to the independent claims and says we're extending that, which it should have done, extending that to the dependent claims. [00:08:58] Speaker 03: Why would I need to remand in the face of that? [00:09:03] Speaker 01: You don't need to remand in the face of that for the issue on which they originally found the independent claims valid, which is the nut of the board's decision, which was that the art is unpredictable. [00:09:16] Speaker 01: We think that finding was an error because there's nothing unpredictable about the art at the point of the combination. [00:09:22] Speaker 04: What the board said was that the dependent claims survived because claim 17 is valid. [00:09:27] Speaker 04: And now, claim 17 is not valid. [00:09:31] Speaker 04: It's gone. [00:09:32] Speaker 01: That's correct. [00:09:33] Speaker 01: But the way I read that analysis was, well, if claim one is valid, then dependent claim X therefore must be valid because it adds more. [00:09:44] Speaker 01: I did not read that as saying there's some separate basis for the validity of that claim if we should be reversed by the federal circuit on claims one and 17. [00:09:54] Speaker 01: I'm not reading that the same way that you're honoring it. [00:09:58] Speaker 01: And because there was a separate argument made for the patentability of those particular claims below, I think in fairness, a patent would argue that they're entitled to a remand to consider that rather than a straight-up reversal. [00:10:12] Speaker 03: On remand, wouldn't the board just simply look back at what it viewed or what it looked at in this case with respect to the independent claims that says we're now going to just extend that to the dependent claims? [00:10:26] Speaker 03: I just don't see that there's a lot for the board to do here. [00:10:30] Speaker 01: It would, unless you reverse on the grounds that they held in the first instance in this case, which is this unpredictable in the art analysis, which we believe is deeply flawed, legally erroneous, and not supported by substantial evidence. [00:10:42] Speaker 01: If you take that away, the final written determination has no basis in it for sustaining the validity of those claims, and then you have to send it back for consideration. [00:10:51] Speaker 04: Quite apart from whether you're right. [00:10:55] Speaker 04: about these independent arguments as to why claim 17 is bad. [00:10:59] Speaker 04: Claim 17 has already been held to be unpatentable. [00:11:03] Speaker 04: So how can it be that the board can rely on the validity of a claim which has been held to be invalid? [00:11:12] Speaker 01: That's an interesting question, Your Honor. [00:11:13] Speaker 01: I think what the board would probably say is that because it's a dependent claim, it adds more therefor. [00:11:19] Speaker 01: It's got to be the more. [00:11:21] Speaker 04: In so far, it can't find non-obviousness from features of the independent claim, which have been held insufficient to render them non-obvious. [00:11:37] Speaker 01: It's confusing to us as well, but as long as the board is holding the claim one is patentable for this reason and [00:11:48] Speaker 01: claim 6, 7, and 21 depend from it and there's no other determination that they're not patentable, we have a live issue on appeal with respect to the correctness of their determination on the unpredictable arts doctrine, applying in an electrical case for attaching demodulators to a known digital television receiver in a completely obvious way, where if you credit the testimony of their expert, the patent isn't even enabled. [00:12:17] Speaker 01: I'm into my rebuttal time. [00:12:19] Speaker 01: If there is no more questions, I'll reserve the rest of your rebuttal time. [00:12:22] Speaker 04: I can reserve your rebuttal time. [00:12:30] Speaker 04: Mr. Smith? [00:12:32] Speaker 04: Thank you, Your Honors. [00:12:35] Speaker 04: You have a decision here which says that dependent claims survive because the independent claim has not been shown to be non-obvious. [00:12:47] Speaker 04: by virtue of our affirming this other decision of the board, Claim 17 has been invalidated. [00:12:55] Speaker 04: So don't we have to send this back to have them examine the dependent claims? [00:13:00] Speaker 00: I don't think so, Your Honor, because here we have a situation which is common in many even district court holdings where if you look at the patentability of the independent claim, if that was patentable, [00:13:12] Speaker 00: The court didn't have to then go through and say, well, all of these other claims depend on... Surely that's true, but that's exactly the point. [00:13:20] Speaker 04: Claim 17 is not patentable. [00:13:22] Speaker 04: It's been held by us not to be patentable. [00:13:26] Speaker 00: Right. [00:13:27] Speaker 00: But under the board's determination, it looked at the references that the petitioner set forward and said, these are the references we're relying upon in order to find not just the independent claims to be invalid, [00:13:40] Speaker 00: but also the dependent claims. [00:13:41] Speaker 00: So those are the only pieces of prior art that they rest their reliance on. [00:13:45] Speaker 04: It didn't discuss the dependent claims. [00:13:47] Speaker 04: It just said, because the independent claim is patentable, the dependent claims are patentable, right? [00:13:54] Speaker 04: Which makes sense, right? [00:13:56] Speaker 04: Because they determined that... Of course. [00:13:58] Speaker 00: But now the independent claim is not patentable. [00:14:01] Speaker 00: Right. [00:14:01] Speaker 00: In a separate proceeding, but here the board did what it was properly charged with doing, was looking at the prior art that was before it. [00:14:10] Speaker 00: and as a result of finding that the claims were patentable in light of that. [00:14:15] Speaker 04: Are you suggesting they're not bound in this case by the determination of unpatentability in the other case? [00:14:20] Speaker 00: Not at all, Your Honor. [00:14:21] Speaker 00: Of course they're bound. [00:14:22] Speaker 00: Of course they're bound. [00:14:22] Speaker 00: It's just that the timing worked. [00:14:24] Speaker 00: I mean, sometimes this is odd in the sense that these decisions were all happening in parallel. [00:14:29] Speaker 00: So it wasn't as if this court entered its ruling and the board sort of went on and disregarded the court's ruling. [00:14:37] Speaker 02: It was certainly appropriate at that point for the board [00:14:40] Speaker 02: do what it did because at that time it did not know what the result would be of the appeal with respect to the 728 IPR. [00:14:48] Speaker 02: There was nothing wrong with at that point the board doing what it did, but now we're in a different universe. [00:14:55] Speaker 00: We're in a different universe in the sense that one of the claims that was at issue in this appeal has already been found invalid. [00:15:02] Speaker 00: So we're not arguing on this appeal that the court should change any of that analysis from that prior opinion. [00:15:08] Speaker 00: All we're saying is that [00:15:10] Speaker 00: The board got it right here, and even if it was sent back down to the board, there's no reason to suspect there'd be any different conclusion with regard to the dependent claims. [00:15:19] Speaker 04: How could you say that? [00:15:21] Speaker 04: I mean, it's been determined that the independent claim is invalid. [00:15:26] Speaker 04: On a remand, they'd have to assume that the independent claim is invalid, wouldn't they? [00:15:31] Speaker 04: I'm not sure, Your Honor, because they only have the prior... [00:15:36] Speaker 04: aren't obligated to assume the invalidity of claim 17. [00:15:40] Speaker 00: It's a race judicata from the other case. [00:15:42] Speaker 00: Right. [00:15:42] Speaker 00: What I'm saying is that they're looking at different prior art in this sanctuary. [00:15:46] Speaker 00: So they'd have to say that, yes, this court has found that claim 17 is invalid. [00:15:49] Speaker 00: So they can't ignore that. [00:15:51] Speaker 00: What I'm saying is that they're now looking at different prior art as to how that prior art applies to the claims that have been challenged in this particular proceeding. [00:16:00] Speaker 04: Right. [00:16:01] Speaker 04: They'd have to look at the dependent claims to see whether the prior art that was cited in this proceeding [00:16:06] Speaker 04: renders those claims patentable or unpatentable on the assumption that the independent claim falls. [00:16:14] Speaker 00: And based on the board's decision here, it would come to the same conclusion because it's already found that the prior art that was relied upon wouldn't be combined so you would never get to... No, no, no. [00:16:25] Speaker 04: What it's decided is that it wouldn't be combined and that's wrong because we've decided that the claims are invalid so they can't rely on [00:16:36] Speaker 04: that aspect of their earlier decision. [00:16:40] Speaker 04: They have to look at the art in the light of the additional elements added by the dependent claims to figure out whether the dependent claims survive. [00:16:50] Speaker 00: No? [00:16:51] Speaker 00: I think that would be a different petition, Your Honor, because then that would be bringing in arguments from another key saying you have to look at art that wasn't before the board and say that art now invalidates the claim and now look [00:17:05] Speaker 00: with that art? [00:17:06] Speaker 04: I think you're misunderstanding. [00:17:08] Speaker 04: I'm not suggesting that the board on the remand would have to look at other prior art. [00:17:14] Speaker 04: They just can't say, well, the dependent claim survived because the independent claim is patentable, because the independent claim is no longer patentable. [00:17:24] Speaker 00: Right. [00:17:24] Speaker 00: What I'm saying, Your Honor, is that the only prior art that the board would be allowed to look at is what was put before it by the petitioner here. [00:17:31] Speaker 04: Sure. [00:17:31] Speaker 04: That would be true with respect to the dependent claims. [00:17:34] Speaker 04: No question about it. [00:17:35] Speaker 04: It can't just reason, okay, we've held that the independent claim is valid, so we don't have to do any analysis for the dependent claims. [00:17:45] Speaker 00: What I'm saying, Your Honor, is that the Board's decision that you wouldn't combine these references and that this art is unpredictable would apply to all the dependent claims as well. [00:17:57] Speaker 00: It's already found that you wouldn't combine these for purposes of obviousness. [00:18:01] Speaker 00: So the Board would now be in a position of saying, well, [00:18:06] Speaker 00: scrap the entire analysis and start from square one, which I don't think would be appropriate. [00:18:12] Speaker 00: I think the board has already found that looking at the references that were put forward in this particular petition, those references don't work together. [00:18:22] Speaker 04: Are you familiar with cases from our court like Ohio Willow? [00:18:27] Speaker 04: which say that in the subsequent proceeding, if a claim has been invalidated, you have to do the analysis on the assumption that the claim is invalid and reasoned from there. [00:18:40] Speaker 04: Yes, Your Honor. [00:18:42] Speaker 00: Why wouldn't that be true here? [00:18:44] Speaker 00: I think it could be true, but they'd still be looking at the same prior references that they already considered. [00:18:50] Speaker 04: Well, sure, but they couldn't very well say that [00:18:54] Speaker 04: the same thing that they said before, that the dependent claim survived because the independent claim survived. [00:19:01] Speaker 00: But they could still say, as they clearly articulated in their holding, that you wouldn't have combined these references to begin with. [00:19:08] Speaker 00: And so if you wouldn't have combined these references to begin with because the art is unpredictable, then there wouldn't be any different result if you then look at the dependent claims. [00:19:25] Speaker 00: So looking at the board's finding with regard to the issue that was placed on appeal, which was focused primarily on the issue of whether or not the board's finding was appropriate and was supported by substantial evidence. [00:19:39] Speaker 00: Here, there's ample evidence that the board's decision was supported by substantial evidence. [00:19:45] Speaker 00: The board's findings go into detailed factual analysis. [00:19:49] Speaker 00: It looks at credibility of specific witnesses. [00:19:51] Speaker 00: And in each of those particular situations, [00:19:54] Speaker 00: came to the conclusion that the petitioner failed to put forward prior art that could show that these claims are obvious. [00:20:05] Speaker 00: In this situation, Max Linear relied on a very complicated rearrangement of the prior art. [00:20:10] Speaker 00: It was a situation where they didn't rely on the preferred embodiment of the Van de Plas reference. [00:20:18] Speaker 00: Instead, they took an alternative embodiment of that reference [00:20:22] Speaker 00: that only mentioned in passing in two sentences and without any reference to any figures, that you could make a change to the preferred embodiment. [00:20:31] Speaker 00: Here, Max Lennie proposed essentially moving what are called the synchronous demodulators from before the digital filters to after the digital filters, but didn't explain what you would need to do after that. [00:20:43] Speaker 00: What VDP or Rendeplaats indicates is that in this situation it actually causes a problem. [00:20:49] Speaker 00: And the problem is that you now no longer have a situation where you have a synchronous demodulator. [00:20:56] Speaker 00: Now you'd have to do something different than what's described in Van de Plas in order to make it work. [00:21:02] Speaker 00: And so what Max Linear did is that then said, well, we're going to combine Van de Plas with another reference, and we're going to try to say that those two references could be used together. [00:21:12] Speaker 00: And as our expert explained and as the board ultimately found, [00:21:17] Speaker 00: you wouldn't combine these two references, because in this situation you have where one reference is telling you that if you make this combination, you no longer have a synchronous demodulator, and Max Linney is saying we should still combine it with a synchronous demodulator. [00:21:34] Speaker 00: Those two don't work. [00:21:36] Speaker 00: And as our expert explained, that would be teaching away from actually the combination as opposed to recommending that that combination should take place. [00:21:44] Speaker 00: And so this complicated arrangement made it more difficult for MaxLinear to make its argument that this obviousness combination should work. [00:21:52] Speaker 00: And then on top of that, there was ample evidence that this art is unpredictable. [00:21:56] Speaker 00: And the unpredictability came not just from our expert indicating it's unpredictable, but it also came from their own attorneys admitting that the art's unpredictable, as well as hearing it from their own expert describing how hard this particular art is. [00:22:11] Speaker 00: a combination of the complications in the art as well as the fact that the unpredictability of the art provided substantial evidence for the board's finding that you wouldn't have combined these references and therefore all of the challenge claims were patentable as they were. [00:22:27] Speaker 00: In this situation, based on the appeal Max Linear set forth, [00:22:41] Speaker 00: They seem to be asking this court to reweigh the evidence and make an independent analysis as to whether or not these references should have been combined. [00:22:50] Speaker 00: This court shouldn't be making that type of determination and should be looking just instead as to the board's finding. [00:22:56] Speaker 00: Was it based on substantial evidence? [00:22:58] Speaker 00: Here, the substantial evidence goes not only to the substance of the references that were asked to be disclosed. [00:23:06] Speaker 00: and the combination of those references, but also goes to the fact that the board made explicit findings as to credibility of the experts in their determination that this art is unpredictable, and therefore would weigh against trying to combine these references together in an effort to try to show that these claims would be obvious. [00:23:27] Speaker 00: In the briefing, Max Linear has argued that somehow the board confused the notion between the skill of the art and the unpredictability in the art [00:23:36] Speaker 00: But if you look at the court's findings, it's pretty clear that the board made a separate determination as to what the level of skill in the art, which was admittedly high, and also separately looked at whether or not this would be a predictable art to be in, and determined that separate and apart from it. [00:23:54] Speaker 00: In fact, the board during the trial on this particular issue asked directly to Max Linear's counsel, we have this issue directly in front of us as to the predictability of this art. [00:24:04] Speaker 00: What do you say to it? [00:24:05] Speaker 00: and they respond that it's an unpredictable art. [00:24:08] Speaker 00: And then went on to try to explain why it's unpredictable. [00:24:12] Speaker 00: The board was well within its right to looking at the records here and looking at the prior references that were put together to find that, in this instance, the petitioner failed to meet its burden, and therefore the claims that were challenged were patentable. [00:24:27] Speaker 00: Thank you, Your Honors. [00:24:28] Speaker 00: That is claim 17. [00:24:31] Speaker 04: That was the representative claim, Your Honor. [00:24:33] Speaker 04: Which has now been held invalid. [00:24:35] Speaker 04: That's correct, Your Honor. [00:24:39] Speaker 04: Thank you, Mr. Smith. [00:24:44] Speaker 01: May it please the Court? [00:24:47] Speaker 01: My colleague is simply incorrect. [00:24:50] Speaker 01: The art, in fact, between the two petitions are extraordinarily similar. [00:24:55] Speaker 01: Our combination was a plurality of demodulators with van de Plasche, [00:25:00] Speaker 01: In the prior RPR, the Thompson reference was the base reference. [00:25:04] Speaker 01: Van de Plas explicitly references and is an improvement on and contains more detail than Thompson. [00:25:10] Speaker 01: Everything that's in Thompson is in Van de Plas already. [00:25:14] Speaker 01: I don't think it's reasonable to say that the board would just come back to the same conclusion with the knowledge now that those claims are invalid over Thompson. [00:25:26] Speaker 01: The arguments on level of skill [00:25:29] Speaker 01: I'm the one that made the argument to the board and I find it ironic that he would be quoting that back to you because the explanation to the board was the level of skill in the art is high because it's a difficult, complex, and at times unpredictable art. [00:25:44] Speaker 01: But the testimony of the experts and our position was consistent. [00:25:48] Speaker 01: There was no difficulty in adding demodulators to the back end of the receiver. [00:25:55] Speaker 01: The complexities in the RF portion of the art [00:25:58] Speaker 01: But that's not where the difference between the invention and the prior art lay. [00:26:02] Speaker 01: It lay in attaching a plurality to modulators, which their experts said is inherent in the receiver. [00:26:07] Speaker 01: You can't have a working television receiver without a modulator, or any other receiver for that matter. [00:26:12] Speaker 01: And I would refer you to the... And both experts were consistent on this point. [00:26:18] Speaker 01: At the point of the departure from the art, it was utterly predictable. [00:26:23] Speaker 01: That's Hashemi's declaration in Appendix 892. [00:26:27] Speaker 01: is cross-examination at 4455 through 59, especially 4457 at lines 18 to 22, 4462 to 66. [00:26:36] Speaker 01: The OPRIS testimony at appendix 3287 to 88, 3366, 3371 to 72, and 3501 to 02 specifically testified demodulation is inherent in the receiver heart. [00:26:53] Speaker 01: That was OPRIS at 3287 to 88. [00:26:57] Speaker 01: That's in our brief at page 29. [00:27:01] Speaker 01: So the level of skill in the art cuts against them, not for them. [00:27:06] Speaker 01: Because the level of skill in art is high and because the 585 patent is written at an extraordinarily low level, all it says about how you attach the demodulators is that they'd be coupled to the receiver. [00:27:17] Speaker 01: That's it. [00:27:18] Speaker 01: There's nothing else in the specification about how to do it. [00:27:21] Speaker 01: If you credit the board's position, [00:27:24] Speaker 01: Patents just not enabled. [00:27:25] Speaker 01: I think it definitely gets a different result if it goes back. [00:27:29] Speaker 01: And it should be, their opinion on unpredictability should be vacated and remanded for further consideration in light of the court's prior ruling. [00:27:38] Speaker 01: Thank you very much, unless there are any other questions. [00:27:41] Speaker 04: Okay. [00:27:42] Speaker 04: Thank you, Mr. Schade. [00:27:43] Speaker 04: Thank both counsels. [00:27:43] Speaker 04: The case is submitted.