[00:00:00] Speaker 00:
This case is MIT versus Micron Technology 16-2358.

[00:00:06] Speaker 00:
Counselor Ryan, I see we serve five minutes of your time for rebuttal.

[00:00:10] Speaker 00:
Is that correct?

[00:00:11] Speaker 03:
Yes, Your Honor.

[00:00:11] Speaker 00:
You may proceed, sir.

[00:00:13] Speaker 03:
Thank you, Your Honor.

[00:00:13] Speaker 03:
May it please the Court.

[00:00:16] Speaker 03:
The primary error committed by the District Court here is that it appears not to have considered on an independent basis

[00:00:28] Speaker 03:
the weakness, the substantive weakness of the plaintiff's position.

[00:00:34] Speaker 04:
And that apparent failing... But the apparent and appears not.

[00:00:40] Speaker 04:
So we've said, as you know, a fair number of times, that we don't infer

[00:00:48] Speaker 04:
lack of consideration from lack of explanation on a point.

[00:00:53] Speaker 04:
Sometimes with reviewing administrative agencies, you actually have to give the explanation, but particularly when reviewing district courts on discretionary matters, we don't infer lack of consideration.

[00:01:07] Speaker 04:
So don't you really have to be arguing on the assumption the district court considered the point, there's only one conceivable

[00:01:18] Speaker 04:
resolution of the point.

[00:01:20] Speaker 04:
And I can show you that nobody in their right mind could read this Japanese reference and think anything but it's anticipatory or I forget what it is.

[00:01:30] Speaker 04:
Is this 102 and 103?

[00:01:32] Speaker 03:
Yes.

[00:01:34] Speaker 03:
Respectfully, I disagree with the premise.

[00:01:37] Speaker 03:
The premise is that the law is there's no findings ever required when there's a discretionary decision.

[00:01:42] Speaker 03:
Superior Fireplace, which Judge Lynn may be familiar with,

[00:01:45] Speaker 03:
held specifically that there was a lack of sufficient findings to review the decision.

[00:01:51] Speaker 03:
To my mind, in the wake of Halo and Octane and Highmark, it's more important that we ask of the district courts to express reasoning or findings, not in elaborate detail, if not called for, it's case specific.

[00:02:13] Speaker 03:
in order to measure whether discretion is properly used, we can't be completely standardless.

[00:02:18] Speaker 03:
In other words, we can't turn these decisions that are very important, as the court knows, into something that's completely discretionary and no findings are necessary.

[00:02:27] Speaker 03:
Then we would have a lawless situation.

[00:02:29] Speaker 03:
And HALO is very specific about the importance of this court's function.

[00:02:35] Speaker 03:
I read HALO a little differently than most people in the community.

[00:02:38] Speaker 03:
It wasn't just we're devolving power down to the district courts.

[00:02:43] Speaker 03:
It's discretionary, but we learn from the discretion and there's a factual history that's created and common law is created and this court is responsible for managing that body of law and plays an important safeguard role.

[00:02:56] Speaker 03:
That can't be done without statement of findings.

[00:03:00] Speaker 03:
Now I agree that it's case specific.

[00:03:03] Speaker 03:
Just because someone files a fees motion, we don't need a thesis from a district court judge.

[00:03:08] Speaker 03:
They've got busy record.

[00:03:10] Speaker 03:
There's three things here.

[00:03:12] Speaker 03:
three particular circumstances that I think demand on this record findings as to the substantive weakness of the position.

[00:03:21] Speaker 03:
The first is in 2010, the demand was for $165 million from a financially weak Japanese company.

[00:03:34] Speaker 03:
Someone came with a big fancy PowerPoint and a whole bunch of numbers and a whole business model and said, you owe $165 million.

[00:03:42] Speaker 03:
Then they said, and patent infringement's serious, and willful infringement's really serious.

[00:03:48] Speaker 03:
If you're going to wield a patent like that, then you're going to fold like a cheap tent when that company's taken over by Micon, a sophisticated American company with a premier legal department, and you're going to collapse down to, well, how about 15 million?

[00:04:03] Speaker 03:
Well, how about, you know, whatever, a few hundred thousand?

[00:04:09] Speaker 03:
Okay, well, we just give up the patent.

[00:04:11] Speaker 03:
That kind of collapsing, in the cases, Raylon, which Judge Rain is familiar with, you're all familiar with it, but more so, was a situation where when you end up with a demand like that and you're saying that there was a base of exposure that you thought you'd get $165 million from, there's a problem.

[00:04:29] Speaker 03:
That's a red flag.

[00:04:30] Speaker 00:
Red flag number two, to my mind, is- Did you make these arguments before the district court?

[00:04:39] Speaker 03:
I mean, I think the arguments were made, I mean, the different form and so forth.

[00:04:44] Speaker 00:
I don't see much difference between the arguments made to the district court and the ones that are being made now in the brief and where you're headed.

[00:04:54] Speaker 00:
And this is an abuse of discretion standard we have.

[00:05:00] Speaker 00:
It seems to me you have to present something different than what was argued before the court in order to get you beyond an abuse of discretion.

[00:05:09] Speaker 03:
Well, I agree and disagree.

[00:05:12] Speaker 03:
Let me start where I disagree.

[00:05:13] Speaker 03:
Where I disagree is, if we brought something up that we hadn't raised in the motion below, it wouldn't be fair to a district court judge.

[00:05:20] Speaker 03:
So we're not going to rewrite the theory of the fee motion.

[00:05:24] Speaker 03:
But where I agree is that this is a court of review, not a court of first instance.

[00:05:32] Speaker 03:
And to this court, the argument has to be styled as an appellate argument.

[00:05:36] Speaker 03:
And here it is.

[00:05:39] Speaker 03:
It appears there was no independent analysis.

[00:05:42] Speaker 03:
The problem is the fact that three expert examiners, in the words of the district court judge, granted ex parte certificate seemed to be enough to suggest that the patent had enough validity to it that it justified what was otherwise sketchy circumstances in our view.

[00:06:02] Speaker 04:
Why can't one read

[00:06:07] Speaker 04:
You know, the paragraph I think to which you're referring, the bottom of six, top of seven, as saying, it's not just that three expert examiners agreed.

[00:06:18] Speaker 04:
I've actually looked at this explanation.

[00:06:20] Speaker 04:
Well, he doesn't then go on to say, now let me walk through the explanation in the kind of detail that MIT's red brief here does.

[00:06:31] Speaker 04:
But why is it unfair to read that as I'm

[00:06:36] Speaker 04:
I'm actually saying there's a colorable argument based on the explanation together with three patent examiners finding it sufficient.

[00:06:46] Speaker 03:
That's a good inquiry.

[00:06:48] Speaker 03:
And the answer is one is it's not just that paragraph.

[00:06:51] Speaker 03:
It's the following paragraph.

[00:06:52] Speaker 03:
This is at least doubtful that there's a problem where three expert examiners.

[00:06:57] Speaker 03:
So he goes back to it again.

[00:06:58] Speaker 03:
There's no statement that he looked at the evidence.

[00:07:01] Speaker 03:
He didn't say, I looked at the issues and they're fine.

[00:07:04] Speaker 04:
But I think the most important thing is keep in mind that in this situation... Well, when you made your fee argument to the district court, did you say three administrative patent judges found in instituting an IPR that this was reasonably likely to be found anticipated or obvious?

[00:07:34] Speaker 04:
Because I can easily read this paragraph, this page seven paragraph, as a response to that, saying, you know, if that's the game you want to play, there's something on the other side at that proxy level.

[00:07:44] Speaker 03:
We did, and I think the answer is, and it should have been considered, as should the ex parte certificate being issued, should have been considered.

[00:07:50] Speaker 03:
It's a totality.

[00:07:51] Speaker 03:
But what wasn't considered was the weakness of the position.

[00:07:54] Speaker 03:
Let me just say briefly, on the context, I mean, the gist of the invention, I don't want, we can call it a Japanese reference, the gist of the invention was that if you have

[00:08:04] Speaker 03:
greater resistance at the contacts to the fuse, that that would prevent the electricity from going out to the contacts.

[00:08:13] Speaker 03:
That's exactly what the Japanese reference says.

[00:08:15] Speaker 03:
The Japanese reference says you put greater resistance to the contacts, and that works better.

[00:08:21] Speaker 03:
It's the invention.

[00:08:22] Speaker 03:
There's just no two ways around it.

[00:08:24] Speaker 03:
Now, it says, and to accomplish that, you used three different materials, tungsten, titanium, and titanium nitride.

[00:08:32] Speaker 03:
In their export, they applied tungsten

[00:08:35] Speaker 04:
Does the Japanese reference say you can use any one of those materials alone?

[00:08:42] Speaker 03:
Yes, absolutely.

[00:08:43] Speaker 03:
Undisputed.

[00:08:44] Speaker 03:
There's no question about that.

[00:08:46] Speaker 03:
It said there's three different materials you can use to accomplish the goal of what's claimed invention.

[00:08:53] Speaker 03:
Okay?

[00:08:53] Speaker 03:
And then they take one example and they say it doesn't work.

[00:08:57] Speaker 03:
The other two, titanium and titanium nitride, are massively resistant.

[00:09:02] Speaker 03:
Massively resistive.

[00:09:03] Speaker 03:
And this is where

[00:09:05] Speaker 03:
Their argument is so weak, they start tripping over their own shoelaces.

[00:09:09] Speaker 03:
And I mean this in a serious way.

[00:09:12] Speaker 03:
Their argument as to why they didn't disclose to the Patent Office the use of titanium, which would clearly be the resistance at the contacts that you would need to meet the claims, was because it's too resistant.

[00:09:26] Speaker 03:
Who in their right mind would put in a circuit something so resistant that you wouldn't have energy?

[00:09:32] Speaker 03:
It would be so resistant, people would like it because it wouldn't be a real good

[00:09:34] Speaker 03:
wouldn't pass the energy.

[00:09:36] Speaker 03:
So they're saying it was too resistant, and so they just excluded it and didn't mention it to the patent office.

[00:09:41] Speaker 03:
When the invention is using highly resistive material, it's the contact.

[00:09:46] Speaker 03:
So going to the patent office, and there's three materials suggested, and using one and ignoring the other two, and they have some make-weight arguments to why the other two wouldn't satisfy it.

[00:09:56] Speaker 03:
Not that it's not 10 times more, it's actually about eight times more resistant than tungsten,

[00:10:01] Speaker 03:
They have this argument that, well, you wouldn't know the dimensions.

[00:10:04] Speaker 03:
Well, they plugged in dimensions when they wanted to show that tungsten wouldn't be good enough.

[00:10:08] Speaker 03:
We're saying, just put titanium in the exact same dimensions that you said tungsten was in when you were interpreting the drawings.

[00:10:14] Speaker 03:
Just plug and chug.

[00:10:17] Speaker 03:
So in Haig-Verba, the Japanese reference says, we want to use materials that have greater resistance here to avoid problems with the electricity traveling out.

[00:10:28] Speaker 03:
Use these.

[00:10:29] Speaker 03:
They're highly resistive.

[00:10:31] Speaker 03:
And they say, well, you wouldn't use those.

[00:10:32] Speaker 03:
They're too resistive.

[00:10:33] Speaker 03:
That's the argument?

[00:10:35] Speaker 03:
You kidding?

[00:10:35] Speaker 01:
And then it was, but it was an argument.

[00:10:38] Speaker 01:
Here's my problem, because as Judge Raina pointed out, the standard of review here is abuse of discretion.

[00:10:51] Speaker 01:
And it seems to me that you've got a litigation here where there were arguments made on validity.

[00:10:58] Speaker 01:
There were arguments made over the years on infringement.

[00:11:01] Speaker 01:
And the parties fought about these things for quite a while.

[00:11:06] Speaker 01:
It seems to me this is sort of garden variety, normal patent infringement litigation.

[00:11:14] Speaker 01:
Different strategies were employed.

[00:11:18] Speaker 01:
Go back to the patent office with ex parte, et cetera.

[00:11:23] Speaker 01:
That's what patent attorneys do.

[00:11:28] Speaker 01:
Yes, you have arguments about, well, the infringement, you know, that's a clear argument.

[00:11:34] Speaker 01:
The other side, I'm sure, is going to say, no, it's not clear at all.

[00:11:39] Speaker 01:
The same thing on validity.

[00:11:43] Speaker 01:
Now we've got to take a look and say, well, the district court abused its discretion in concluding that this case was not exceptional, that this case was not.

[00:11:56] Speaker 01:
didn't stand up from the normal patent litigation.

[00:11:59] Speaker 03:
But that's not the argument that I'm making because I think it's not the right argument.

[00:12:06] Speaker 03:
Correct me where I'm wrong.

[00:12:08] Speaker 03:
The right argument here is that the district court judge was wowed by the fact that there was an ex parte re-exam certificate granted.

[00:12:16] Speaker 01:
He wanted to move the... You're assuming that based on the fact that his explanation was abbreviated and simply mentioned that, wow, three examiners found it.

[00:12:28] Speaker 03:
Well, he mentioned it twice, but I think that's the only substance in here.

[00:12:31] Speaker 03:
And I think asking courts, again, in this post where we're giving them this unpethered discretion, the rules that this court has made are all gone, to put findings down on an independent investigation on the weakness with the red flags that are here,

[00:12:47] Speaker 03:
the sleight of hand on tungsten, the drop down from 160 million to a pittance, these different things, and to ask them to make a finding to make sure that he's not just relying on the star power of an ex parte re-exam certificate, how I read it.

[00:13:02] Speaker 03:
The final point I'd make on this before I preserve some time, and I apologize, is the Varanada case that Judge Toronto had, and I was one of the litigants on that.

[00:13:15] Speaker 03:
There, there was a lot of explanations for what the board did that certainly showed that the patent was properly upheld.

[00:13:24] Speaker 03:
The court was concerned that there may have been a legal path that was stumbled upon and remanded it for consideration by the lower tribunal to make sure that that mistake wasn't made.

[00:13:34] Speaker 03:
What I'm proposing here is in this age of essentially unfettered discretion where this court needs to supervise,

[00:13:40] Speaker 03:
asking for an independent determination with findings on this issue on these facts, not every issue on every fact, as to ensure that there wasn't just the star power of the ex parte re-exam, just to protect against that is the right thing for the system and the right thing for this case.

[00:14:11] Speaker 02:
Good morning, your honors.

[00:14:13] Speaker 02:
Micron overlooks the district court's findings on exceptionality.

[00:14:18] Speaker 02:
And Micron assumes the worst.

[00:14:21] Speaker 02:
Micron assumes bad faith by Dr. Bernstein.

[00:14:25] Speaker 02:
Micron assumes bad faith by MIT.

[00:14:29] Speaker 02:
Micron assumes.

[00:14:30] Speaker 00:
Was the district court wowed by the re-exam certificate?

[00:14:34] Speaker 02:
No, your honor.

[00:14:35] Speaker 02:
That was one.

[00:14:36] Speaker 02:
Factor considered the totality of the circumstances the district court held the other circumstances The district court held a morning hearing and the district court engaged on the substantive issues of litigate I'll go in point specific ports the transcript the district court made a factual finding Against micron on every single issue with regard to width and thermal resistance.

[00:15:03] Speaker 02:
That's an a6 and a7

[00:15:05] Speaker 02:
with regard to the infringement issue on the substrate.

[00:15:09] Speaker 02:
That's at A6.

[00:15:11] Speaker 02:
With regard to the alleged bad faith conduct before the re-exam found against Micron, that's at A8.

[00:15:18] Speaker 02:
With regard to the allegations that there was bad faith conduct before the... Can we get to what you said was the transcript?

[00:15:25] Speaker 04:
I think it would be an interesting and to you helpful thing if some of the

[00:15:35] Speaker 04:
generalities of the resulting opinion were backed by discussion in the transcript?

[00:15:46] Speaker 02:
Yes, Your Honor.

[00:15:46] Speaker 04:
I'm not suggesting it's necessary, but it would certainly be helpful to you.

[00:15:50] Speaker 02:
I appreciate that, Your Honor.

[00:15:51] Speaker 02:
And the transcript is at the back of Volume 2, and in all its point, I think it's beneficial to read the entire

[00:16:00] Speaker 02:
transcript that we included.

[00:16:01] Speaker 02:
But in terms of sites... You're not going to read the text.

[00:16:05] Speaker 02:
No, I've got two specific parts to cite to on both of the validity issues.

[00:16:09] Speaker 02:
One is with respect to with, where Judge Saylor from the District of Massachusetts engaged on the issue and probed Micron's lawyer, which is a different lawyer, probed Micron's lawyer.

[00:16:22] Speaker 02:
This is at A4077.

[00:16:26] Speaker 02:
through 78, A4077 through 78.

[00:16:30] Speaker 02:
It's cited in our red brief.

[00:16:32] Speaker 02:
And this is where Micron had to admit that Koyu never speaks of width.

[00:16:40] Speaker 02:
The 221 patent is about increasing the width of the cut link pad.

[00:16:45] Speaker 02:
And in probing by Judge Saylor, Micron's lawyer had to admit that the references, Japanese reference, Koyu never discusses width

[00:16:56] Speaker 02:
and they are simply inferring it from Part A of Figure 1.

[00:17:01] Speaker 02:
That's the first point I'd point out.

[00:17:03] Speaker 02:
The second is with respect to this issue of increased resistance.

[00:17:08] Speaker 02:
And we're talking thermal resistance.

[00:17:11] Speaker 02:
That's what the claim to the 221 patent recited is thermal resistance.

[00:17:15] Speaker 02:
As opposed to electrical resistance.

[00:17:16] Speaker 02:
Electrical resistance, it's an important point I'm going to get to, Your Honor, because they raise a new incorrect argument on that issue in their great brief that I want to address.

[00:17:25] Speaker 02:
If we look at the trial transcript at A4092 through 96, Judge Saylor engages extensively with me regarding the difference between what's in COIU, a discussion of thermal resistance, and what's in the claims of the 221 patent, which is thermal resistance per unit length.

[00:17:50] Speaker 02:
And that's seeing the 221 patent at A36.

[00:17:55] Speaker 02:
Judge Toronto, as you suggested, I submit what Judge Saylor was doing here was responding to their point on the IPR institution.

[00:18:07] Speaker 02:
Below on their fees motion and in their appellate brief, they're relying very heavily on the PTAB instituting the IPR, which is on the standard that there's a reasonable likelihood that they're ultimately going to prevail.

[00:18:21] Speaker 02:
So they're heavily relying on that

[00:18:25] Speaker 02:
institution decision, and Judge Saylor rightfully responds when considering whether our arguments were exceptionally bad, whether they were frivolous on the merits, responds that well, with the same reference before the PTO in the re-exam, three re-examination experts confirmed the claims.

[00:18:46] Speaker 02:
That is the evidence that Judge Saylor had before him.

[00:18:49] Speaker 02:
On the one hand, he had the institution decision.

[00:18:53] Speaker 02:
On the other hand, he had the re-examination confirmation certificate, and he had the briefing and the exhibits.

[00:19:00] Speaker 02:
As this court has indicated, the court is not required to have a mini trial to decide a fees motion.

[00:19:07] Speaker 02:
That's in SFA, a new way that we decide in a briefing.

[00:19:10] Speaker 02:
It's also in Judge Bryson's decision in Trover.

[00:19:14] Speaker 02:
He decided based upon the evidence he had, he decided on every factual issue

[00:19:18] Speaker 02:
His findings were not clearly erroneous.

[00:19:20] Speaker 02:
He did not constitute, did not commit an abuse of discretion.

[00:19:24] Speaker 02:
He should not be subject to a reversal or a remand.

[00:19:28] Speaker 02:
In my remaining time here, what I'd like to address are the three new substantive arguments on each of the points that they raised in their gray brief.

[00:19:37] Speaker 02:
And each is incorrect.

[00:19:39] Speaker 02:
And each reinforces that Judge Saylor did not abuse his discretion.

[00:19:44] Speaker 02:
The first is in the gray brief at the bottom of page nine,

[00:19:49] Speaker 02:
spanning the top of page 10.

[00:19:52] Speaker 02:
There, Micron represents to the court that figure 1A of Koyu only shows the very top surface, and it does not show the lower layers that are in figure 1B.

[00:20:06] Speaker 02:
That's patently incorrect.

[00:20:08] Speaker 02:
As we see in looking at Koyu at A540, the lower layers of figure 1B are shown by dashed lines.

[00:20:18] Speaker 02:
The hidden lines are shown by dashed lines, which is typical engineering drawings.

[00:20:23] Speaker 02:
And it's a critical argument here because Micron makes this new argument in the reply brief to argue that figure four does not refute their attempt to combine, to rip out part A of figure one, which has two parts in A and part B, to rip out part A and combine it with figure three to make their new

[00:20:47] Speaker 02:
trying to show a wider fuse pad for the 2-2-1 claims.

[00:20:52] Speaker 02:
The fact of the matter is that COIU never teaches a wider fuse pad.

[00:20:56] Speaker 02:
It's all about is reducing the length.

[00:20:59] Speaker 02:
We see that in claim one of COIU and in the other claims.

[00:21:02] Speaker 02:
The dependent claims do not change that.

[00:21:05] Speaker 02:
All that's carried over from claim one to the dependent claims is the reduced length.

[00:21:10] Speaker 02:
There's nothing about width.

[00:21:12] Speaker 04:
Can you rehearse for me

[00:21:17] Speaker 04:
And I realize this would be uncertain to you.

[00:21:20] Speaker 04:
In a way, I might understand what Dr. Bernstein explained about what was going on in figure one and why Micron's version that this wide-ish pad numbered one isn't quite obviously wider than either the threes or the twos.

[00:21:47] Speaker 02:
This is with respect to figure 1 itself, figure 1A and 1B.

[00:21:51] Speaker 04:
Yes.

[00:21:51] Speaker 04:
And put aside for now, please, the proposition that a diagram isn't necessarily to scale.

[00:22:01] Speaker 04:
So we don't know if it's actually 10% wider.

[00:22:05] Speaker 04:
Try to put that aside.

[00:22:07] Speaker 04:
I thought Dr. Bernstein had some explanation

[00:22:10] Speaker 04:
that the comparison between 1 and 2 or even 2 and 3 was not the right comparison or something like that.

[00:22:17] Speaker 02:
Yes.

[00:22:17] Speaker 02:
And this is in our red brief at 40.

[00:22:19] Speaker 02:
His explanation is the comparison should be between 2A and 2B, the 2A or 2B parts of the cut link pad in COIU with 3.

[00:22:32] Speaker 04:
And if we look at... And there, that point would be, three is actually wider than two, not the other way around.

[00:22:39] Speaker 04:
The opposite.

[00:22:40] Speaker 04:
So, explain that to me.

[00:22:42] Speaker 02:
It's the opposite of clean invention.

[00:22:44] Speaker 02:
The explanation, an explanation that I believe Dr. Bernstein gave, is that his invention was about retaining thermal heat, thermal energy, on the cut link pad.

[00:22:57] Speaker 02:
And the way he taught that is by having a narrower

[00:23:02] Speaker 02:
cut-link pad at the connection point to the line.

[00:23:05] Speaker 02:
So like going from a narrow pipe to a water pipe, we're considering water flow.

[00:23:11] Speaker 02:
And 2A and 2B are narrower than the next connecting pipes of three.

[00:23:16] Speaker 02:
So it's going to constrain the water flow, or in this case constrain the thermal energy and retain it on the cut-link pad and cause fracturing there when the laser beam shines on the cut-link pad.

[00:23:29] Speaker 04:
I see.

[00:23:29] Speaker 04:
I'm sorry.

[00:23:30] Speaker 04:
Bernstein was saying

[00:23:33] Speaker 04:
I think that's a bad thing and I'm doing something different.

[00:23:36] Speaker 02:
He's saying his invention was the opposite of that.

[00:23:44] Speaker 02:
I think I misstated.

[00:23:45] Speaker 02:
His was just the opposite, yes.

[00:23:48] Speaker 02:
Having the connection point wide and having the next

[00:23:52] Speaker 02:
point from the lines to be narrower, so going from a wide pipe to a narrow pipe, so if you have water or thermal energy rushing down, it's going to stop hard at the connecting point.

[00:24:05] Speaker 02:
So his comparison was looking at 2A and 2B to 3, and that was the opposite of the claim invention.

[00:24:13] Speaker 04:
So in terms of the claim limitations, what's the explanation for

[00:24:20] Speaker 04:
for saying what's really going on in COU is something, if you look at it in our claim terms, requires you to compare two to three.

[00:24:28] Speaker 04:
I'm going to forget about the A's and B's, okay?

[00:24:30] Speaker 04:
It's the same.

[00:24:32] Speaker 04:
Two and three, and they say no.

[00:24:34] Speaker 04:
If you look at this, it's absolutely clear what you're doing is comparing, what, three to one or two to three or two to one?

[00:24:42] Speaker 02:
I think they've kind of given up on that in their appellate brief, but below they were trying to make the comparison, I believe,

[00:24:50] Speaker 04:
One is the wide thing.

[00:24:53] Speaker 02:
I think they were trying to take the widest point of one.

[00:24:55] Speaker 04:
Right, but what does Bernstein say about why that's not the right thing to be looking at?

[00:25:01] Speaker 02:
Well, the claim language is cut link pad, that the cut link pad is 10% wider than the electrically conductive lines.

[00:25:10] Speaker 02:
There was never a markman decision.

[00:25:11] Speaker 02:
There was never a claim construction hearing as to what parts, what width should you take

[00:25:18] Speaker 02:
But Dr. Bernstein's explanation is that the operative width is the interconnect width, because that's the one that matters, in terms of going from wide to narrow to constraining the heat.

[00:25:32] Speaker 02:
It's the one that creates this effect of constraining the heat, the thermal energy, on the Cut Lake Path.

[00:25:39] Speaker 02:
Ultimately, the question is, was that a frivolous argument?

[00:25:42] Speaker 02:
That's the ultimate question here, and I submit that Judge Seelig did not.

[00:25:46] Speaker 04:
Are you using frivolous as a shorthand for exceptionally weak?

[00:25:53] Speaker 02:
I actually think in the Octane Fitness decision, that's one of the factors.

[00:25:56] Speaker 02:
With regard to the merits is frivolity.

[00:26:00] Speaker 02:
You look to whether it's a frivolous on the merits when you're discussing the merits of the argument.

[00:26:05] Speaker 02:
I would like to get to the other two new arguments.

[00:26:08] Speaker 04:
Can you talk about titanium and tungsten?

[00:26:11] Speaker 02:
Yes, and that's the next point.

[00:26:13] Speaker 02:
This goes to their second new argument.

[00:26:16] Speaker 02:
This is the bottom of page 12 of their gray brief.

[00:26:20] Speaker 02:
Bottom of page 12 of their gray brief.

[00:26:23] Speaker 02:
There, they suggest that the claims of the 221 patent specify a higher electrical resistance.

[00:26:33] Speaker 02:
And therefore, it would be natural

[00:26:36] Speaker 02:
to use titanium or titanium nitride as the electrically connective lines.

[00:26:43] Speaker 02:
Well, that's not correct.

[00:26:45] Speaker 02:
The claims of the 2 to 1 patent that are seen at A36, those recite a higher thermal resistance per unit length.

[00:26:54] Speaker 02:
They're mixing and matching, they're confusing thermal resistance, which is the resistance to heat flow, with electrical resistance, which

[00:27:06] Speaker 02:
is the resistance to electrical flow.

[00:27:09] Speaker 02:
And the claims recite that the lines are electrically conductive lines.

[00:27:15] Speaker 02:
And what we're dealing with here are electrical devices, memory devices.

[00:27:18] Speaker 02:
They have to conduct electricity.

[00:27:20] Speaker 02:
And I submit it was at least reasonable and not frivolous for Dr. Birdstein to rule out the use of titanium

[00:27:29] Speaker 02:
or titanium nitrite, which are highly electrically resistive materials.

[00:27:35] Speaker 02:
They resist the flow of electricity, which is the relevant issue.

[00:27:40] Speaker 02:
Finally, the third new argument they raise, this is at page 16 of their gray brief, page 16 of their gray brief at the top, with regard to the infringement issue.

[00:27:53] Speaker 02:
There they suggest a new claim construction

[00:27:57] Speaker 02:
They depart from what they were proposing in their blue brief.

[00:28:01] Speaker 02:
They propose a new claim construction on page 16 of their gray brief to try to reconcile the beginning language in the claim and the ending language of the claim, which they ignored in their blue brief.

[00:28:15] Speaker 02:
And they propose that now that on the substrate, with respect to infringement, means that the cut link pad

[00:28:25] Speaker 02:
connects to the electrically conductive lines on the surface of the substrate, and then they then extend vertically into the substrate.

[00:28:35] Speaker 02:
The reason that argument doesn't help Micron on infringement is that it reads the claims precisely on the accused product, which was the LPTA product.

[00:28:45] Speaker 02:
We see that at A432.

[00:28:47] Speaker 02:
A432, if we look at that, we see that in the accused product,

[00:28:53] Speaker 02:
The cut link pad in the LPA device connects to the electrically connective lines on the surface and then extends into the substrates.

[00:29:03] Speaker 02:
And that's exactly as shown in the 221 patent in the figures 10 and 11, which is at A26.

[00:29:10] Speaker 02:
And it's exactly as claimed as we see at A36 in the 221 patent.

[00:29:17] Speaker 02:
The final new argument they raise is a suggestion of a remand.

[00:29:20] Speaker 02:
First time we see the Superior Fireplace case, the Getter case, the Arosi case.

[00:29:25] Speaker 02:
Those cases are distinguished.

[00:29:26] Speaker 02:
Superior Fireplace, no written decision, no oral argument at all.

[00:29:31] Speaker 02:
Getter and Arosi, those are from the PTO.

[00:29:34] Speaker 02:
If I had a chance to respond, I would have pointed out the Vapor Point decision from this court last fall and the University of Utah versus Max Planck decision from just last month.

[00:29:47] Speaker 02:
Thank you, Your Honor.

[00:29:48] Speaker 00:
Thank you.

[00:29:52] Speaker 00:
Ms.

[00:29:52] Speaker 00:
Swann, I'll refer you back to three minutes.

[00:29:55] Speaker 03:
That's very kind.

[00:29:56] Speaker 03:
Thank you, Your Honor.

[00:29:57] Speaker 03:
Let me start with Judge Torano's question.

[00:29:59] Speaker 03:
It's simple to explain.

[00:30:01] Speaker 03:
The pad one, their argument is that two is part of one, so that the narrowing down to two, because two of those two columns, means that that's narrow compared to the lines which are broader, which is the underneath.

[00:30:16] Speaker 03:
So their argument is if you consider

[00:30:18] Speaker 03:
those two stanchions or those two contacts to be part of the fuse, then it's narrower.

[00:30:23] Speaker 03:
That works unless you have to admit that claim three is a side view of, figure three is a side view of figure one, which it obviously is because claim four, by referring to the specific numerals, refers to the fuse pad of one with the contact points of 20.

[00:30:40] Speaker 03:
And there's no, I don't even think, you heard

[00:30:42] Speaker 03:
what I consider some technical mumbo jumbo there, I don't even think they deny at this point that a figure one and figure three work together, that it's wider.

[00:30:51] Speaker 03:
If they do work together, it's obvious that they do based on the claim.

[00:30:55] Speaker 03:
It shouldn't really take a lot of effort to figure that out.

[00:30:58] Speaker 03:
The second problem, so that's that whole issue, it's simple.

[00:31:02] Speaker 03:
The other issue they tried to make complicated is this thermal electivity versus

[00:31:07] Speaker 03:
versus electrical.

[00:31:09] Speaker 03:
The claim requires thermal conductivity being more resistive in the contacts.

[00:31:16] Speaker 03:
The patent says, the prior art says, in the present embodiment, we're referring to figure three, the thermal resistance of the material for filling the contact holes, 21A and B, is selected so as to be higher than the thermal resistance of the fuse member.

[00:31:34] Speaker 03:
For example, tungsten, titanium, titanium nitride,

[00:31:37] Speaker 03:
or the like may be used.

[00:31:39] Speaker 03:
So they're saying exactly the claim term.

[00:31:42] Speaker 03:
It's this kind of appellate mumbo jumbo that is why we need a district court to make findings.

[00:31:47] Speaker 03:
If they're so confident they're right, why not have a remand?

[00:31:51] Speaker 00:
I wouldn't call it mumbo jumbo.

[00:31:52] Speaker 00:
And these sound to me to be legitimate arguments.

[00:31:56] Speaker 00:
The electroconductivity versus the thermal, even though the prior aren't so thermal.

[00:32:01] Speaker 00:
Without stating whether they're winning arguments or they're

[00:32:06] Speaker 00:
Valid arguments or legitimate arguments?

[00:32:09] Speaker 03:
On that one, I don't agree.

[00:32:11] Speaker 03:
I mean, but the prior art says thermal conduct resistance.

[00:32:14] Speaker 03:
The claim says thermal resistance.

[00:32:15] Speaker 03:
Same, same.

[00:32:17] Speaker 03:
I just don't... I mean, I understand there's legitimate advocacy, but let's not totally lose it.

[00:32:23] Speaker 03:
But I guess the point is rather than playing guessing games based on a transcript, based on a 15-minute argument where arguments like that can be made and played with... 15 minutes, you said?

[00:32:32] Speaker 03:
15 per side.

[00:32:35] Speaker 03:
Fifteen minute argument here.

[00:32:38] Speaker 04:
Wasn't there a reference to something like a mourning?

[00:32:41] Speaker 03:
Well, I mean, I think a mourning is an exaggeration.

[00:32:44] Speaker 03:
What I want to say about the transcript, because I think it's fair to look at it, every comment that the judge made is the excerpts that were selected.

[00:32:51] Speaker 03:
So in whatever number of pages, there's about two interchanges or three interchanges that he made total.

[00:32:58] Speaker 04:
The point remains... And maybe some judges listen to the advocates more than other judges.

[00:33:03] Speaker 03:
Well, we know that's true.

[00:33:05] Speaker 03:
Look, my only point is that I think that the order reads that he may have relied on the ex parte re-exam certificate as the basis.

[00:33:14] Speaker 03:
I think that's how I read it.

[00:33:16] Speaker 03:
And ensuring that that's not a mistake that's made or ever made again in the future, just because there's an re-exam certificate issue doesn't mean that that's a

[00:33:25] Speaker 03:
a credible position, you go in ex parte, you can tell them what you want, it's a one-sided presentation, that asking for a remand, so this judge puts findings that this court can review so we're not debating thermal resistance versus electrical resistance on appeal, is very good for the system and an appropriate thing for the case.

[00:33:42] Speaker 03:
Thank you very much, I appreciate it.