[00:00:00] Speaker 02:
DNO1, Motorola Mobility LLC against Intellectual Ventures 1 LLC.

[00:00:07] Speaker 02:
Mr. Stockwell.

[00:00:12] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
The Board's decision didn't really cite or discuss any anticipation case law.

[00:00:21] Speaker 01:
But we think under this Court's controlling anticipation case law, there are three findings the Board made.

[00:00:28] Speaker 01:
that demonstrate that there was anticipation as a matter of law and the board committed a legal error in its decision.

[00:00:37] Speaker 01:
The first finding appears at A-29 on the record.

[00:00:40] Speaker 01:
And that's where the board found that factually, IAGARI specifically contemplates and discloses the scenario in which two cues have data ready to be transmitted at the same time.

[00:00:54] Speaker 01:
The second finding is at A-20.

[00:00:57] Speaker 01:
And this is where the board was

[00:00:58] Speaker 01:
Excuse me.

[00:01:00] Speaker 01:
Discussing the even if language in IAGARI and found that that language demonstrates that back off to a waiting low priority packet that was superseded by high priority packet was a possibility.

[00:01:15] Speaker 01:
And finally, at A20, the board also credited Dr. Tufek's statement that IAGARI described a buffer management strategy that transmits a higher priority packet

[00:01:27] Speaker 01:
before a lower priority packet without regard to the potential consequence of back off for the low priority packet.

[00:01:34] Speaker 04:
Sorry?

[00:01:35] Speaker 01:
Without regard for the consequence.

[00:01:37] Speaker 04:
What was the second finding that you pointed to?

[00:01:40] Speaker 04:
The first one was at page 29 about the bottom of column 13.

[00:01:43] Speaker 04:
What was the second?

[00:01:44] Speaker 01:
Your Honor, at page 820, the board states, we agree with Patner that even if language demonstrates the result of a superseded packet

[00:01:54] Speaker 01:
being forced into another back-off state is simply a possibility, not an automatic occurrence.

[00:02:00] Speaker 01:
So they did acknowledge that the superseded lower priority packet would have a possibility of back-off.

[00:02:08] Speaker 01:
And we think under this court's law that these findings demonstrate express anticipation.

[00:02:15] Speaker 01:
Under Lucent, we only have to show a single use anticipates.

[00:02:20] Speaker 01:
The board found the conditions for anticipation when it found that there was a high and low priority packet in two different queues and when it acknowledged the buffer management strategy and analyzed the even if language to say there was a possibility.

[00:02:35] Speaker 01:
Of course there's a possibility when those conditions occur in a high and low priority packet are contending for the same transmission opportunity.

[00:02:44] Speaker 03:
My understanding of your argument below was that

[00:02:48] Speaker 03:
At box 640 of Iogari, when there's this buffer management strategy being undertaken and a higher priority message wins internally, then the lower priority message necessarily gets kicked over into back-off state.

[00:03:08] Speaker 03:
That's correct, Your Honor.

[00:03:09] Speaker 03:
And I guess when we look at figure 6, the question of what happens after an internal collision

[00:03:19] Speaker 03:
the result of that internal collision, at least looking at the diagram of figure six, isn't necessarily back off state.

[00:03:29] Speaker 03:
What necessarily have, the event that results in back off state is when there's a failure to transmit the message from the launch pad, which is a subsequent event later.

[00:03:44] Speaker 03:
And so I guess the concern I have

[00:03:47] Speaker 03:
Your argument is that, as I understand Ayyagari, it's not a necessary result from the internal collision that you have back off state.

[00:03:59] Speaker 03:
It's some downstream event later that if that downstream event happens to fail to transmit the message, does it ultimately go into back off state?

[00:04:11] Speaker 03:
So there's this intervening event that appears to be causing the back off state.

[00:04:16] Speaker 03:
not the internal collision itself.

[00:04:18] Speaker 03:
And so therefore, it's not clear to me why we can say that Iagari's internal collision is just like an external collision when an external collision necessarily causes a back-off state.

[00:04:32] Speaker 01:
Your Honor, I think if you look at the statement Iagari makes about the buffer management strategy, he starts by saying we couple this with the contention resolution scheme of Figure 6.

[00:04:46] Speaker 01:
But it talks about a packet waiting in step 640 that gets superseded by a higher priority packet.

[00:04:55] Speaker 01:
And then it says even if the packet waiting, that is the lower priority packet, would get another back off.

[00:05:02] Speaker 01:
And if you look at figure 6, the packet waiting step 640 has an arrow up to checking the channel to see whether it's available for transmission.

[00:05:13] Speaker 01:
So you know those packets are in step 640.

[00:05:19] Speaker 01:
The packet waiting in step 640, the low priority one, is waiting for the next transmission opportunity.

[00:05:25] Speaker 01:
The high priority packet gets it.

[00:05:27] Speaker 01:
Under figure six, the box next to the checking the channel says yes or no, whether the channel's available or not.

[00:05:37] Speaker 01:
That low priority packet then gets the no and goes to step 615.

[00:05:42] Speaker 01:
where it gets the back off.

[00:05:44] Speaker 03:
Okay, why, I guess why isn't it a reasonable reading of Ayagari that whichever message among two internal messages that wins at Box 640 gets the right to go to Box 600 and that the losing message in Box 640 has to sit there and wait until the winning message

[00:06:06] Speaker 03:
launches out of Box 600.

[00:06:08] Speaker 03:
And then after it ultimately, the losing message ultimately wins any subsequent internal competition, only then does it get to go to Box 600.

[00:06:19] Speaker 01:
Right.

[00:06:20] Speaker 01:
I think you're essentially reprising the argument that IV laid out in its brief, which is that they do suggest, well, perhaps that message would just wait.

[00:06:29] Speaker 01:
However, Your Honor, a couple of things.

[00:06:31] Speaker 01:
First off, the board doesn't find that.

[00:06:33] Speaker 03:
Well, how does

[00:06:34] Speaker 03:
Conventional buffer management normally occur inside a system where there's two queues and then a message from one of the queues wins internally and then goes out the door.

[00:06:49] Speaker 03:
What happens to that other message in the other queue?

[00:06:52] Speaker 01:
I believe the prior art that other than Iagari would simply have that message wait.

[00:06:58] Speaker 01:
But what's different about Iagari is that in the prior art they didn't necessarily have multiple queues.

[00:07:04] Speaker 01:
Iagari does have multiple queues.

[00:07:06] Speaker 01:
And Iagari also says, the express language says, we're going to send the high even if it means we back off the low.

[00:07:16] Speaker 01:
Now that even if, we believe, is the condition of when these two are contending for the same transmission opportunity.

[00:07:23] Speaker 01:
So we have express language.

[00:07:25] Speaker 01:
And Iagari, this is not just an inherency issue.

[00:07:27] Speaker 01:
This is an express anticipation issue.

[00:07:29] Speaker 01:
It says even if it results in another back off to the low priority packet.

[00:07:34] Speaker 04:
Can I ask this question?

[00:07:36] Speaker 04:
What is it in Iogari that truly makes clear that either figure six or anything else in Iogari is ever talking about?

[00:07:47] Speaker 04:
a pure internal collision, if that's the label we want to use, namely, where without looking at the highway or trying to get on the ramp, you just look internally and you say, oh, two messages have the same scheduled timeout.

[00:08:04] Speaker 04:
That can't be.

[00:08:05] Speaker 04:
Pick one.

[00:08:08] Speaker 04:
For example, Figure 6 looks like it is entirely about messages that

[00:08:17] Speaker 04:
are treated a particular way because they've looked at the highway or because they've gotten on the ramp, but not at all, including in 640, about messages that have been completely internally prioritized.

[00:08:33] Speaker 01:
And I understand that, Your Honor, and I agree.

[00:08:35] Speaker 01:
Figure 6 does say that.

[00:08:36] Speaker 01:
And what we relied on below was the statement in Iagari at... This is the column 13?

[00:08:42] Speaker 01:
Yes, this is the column 13, it bridges 13 and

[00:08:46] Speaker 04:
But that's talking entirely about Figure 6.

[00:08:48] Speaker 04:
I guess I'm having trouble understanding how that is doing anything but talking about what's in 640, which is a box only in a chart that is about messages for which there has been an attempt in either of two senses, get on the entry ramp or at least look at the highway, but not messages

[00:09:13] Speaker 04:
as to which you just said internally, I've got two things going out the same door at the same time, and I can't have that.

[00:09:20] Speaker 01:
Well, but Your Honor, and this is the language we use.

[00:09:24] Speaker 01:
It says, for instance, so a packet with higher priority than a packet waiting during step 640, that's the express reference to figure 6, the box at the bottom.

[00:09:35] Speaker 01:
So we know there's a packet waiting there, and that's the low priority packet.

[00:09:40] Speaker 01:
So the packet with higher priority

[00:09:43] Speaker 01:
may be transmitted if the higher priority packet has a shorter wait time, even if it results in a superseded packet, the low priority packet waiting in step six.

[00:09:51] Speaker 04:
So why isn't that the universe of packets being discussed there, a universe limited to those for which there has been either a move up the entry ramp or a look at the highway to see if there's going to be room on the highway, either of the two ways in which one can

[00:10:11] Speaker 04:
have a attempt?

[00:10:15] Speaker 01:
Well, I believe it can be those, Your Honor.

[00:10:21] Speaker 01:
In other words, the higher priority packet comes in, supersedes and goes, the low priority packet, it was waiting.

[00:10:26] Speaker 01:
It could have been the next one in the buffer to come up.

[00:10:29] Speaker 01:
There may have been never an attempt to transmit that one before.

[00:10:32] Speaker 04:
But that's what I guess I take it the board, or at least the board's result is that

[00:10:40] Speaker 04:
we don't actually see that in Igari.

[00:10:45] Speaker 04:
Well, and that's where I would take issue with... For example, because 640 is about a number of packets that are in the waiting box, but as far as I can tell from Figure 6, that entire box consists of, you know, I'm going to change metaphors, players that were once on the ice and are now in the box.

[00:11:06] Speaker 04:
And once you're in the box, you can have any number of different rules for who's going to go out.

[00:11:13] Speaker 04:
But it doesn't have to do with packets that never went into the check the highway or try to get on.

[00:11:21] Speaker 01:
I'm not sure I understand your analogy, Your Honor.

[00:11:24] Speaker 01:
I think the packet, the low priority packet that's waiting in step 640,

[00:11:28] Speaker 01:
There's no indication it has ever been attempted to be transmitted before.

[00:11:32] Speaker 04:
Well, except that it's in Figure 6, which at the very top is all about check the highway to see if there's room or... Oh, I see what you're... Figure 6 is entirely about attempted packets.

[00:11:45] Speaker 01:
Well, but Your Honor, Figure 6 on its own does not show where packets enter, right?

[00:11:52] Speaker 01:
If you look at Figure 6,

[00:11:53] Speaker 01:
There's no indication in Figure 6 how do the packets initially get into Figure 6.

[00:11:59] Speaker 01:
Iagari describes that elsewhere when it talks about the packets that have gotten into the queues, they come into the system, and that's where the buffer management strategy comes in.

[00:12:10] Speaker 01:
It says there's a packet waiting in Step 640.

[00:12:13] Speaker 01:
There is no line.

[00:12:14] Speaker 01:
I think what your Honor is asking is, well, is there a line from 640 or some other box in Figure 6 that tells you once you've queued up your packets, how then do they get there?

[00:12:23] Speaker 04:
or any other lines into 640 except down either of the two paths.

[00:12:29] Speaker 01:
Correct.

[00:12:29] Speaker 01:
And Your Honor, I see I'm in my rebuttal time.

[00:12:32] Speaker 01:
I do want to answer your question with just one other point.

[00:12:37] Speaker 01:
This issue as to whether or not there would be back off applied, even if you look at the board's findings and Dr. Tufek's statement, he agreed that sometimes you would receive back off

[00:12:53] Speaker 01:
to the lower priority packet.

[00:12:57] Speaker 01:
So there's no dispute about that.

[00:13:00] Speaker 01:
And that's where we say this court's anticipation law results in a legal error here.

[00:13:07] Speaker 01:
They came in and said, oh, this is just a possibility.

[00:13:10] Speaker 01:
But in this embodiment, in the buffer management embodiment where it sends the low priority packet to step 640 and says, oh, and a high priority packet is going to jump it,

[00:13:23] Speaker 01:
Even if that means the packet in 640 gets a back-off, that's an anticipation.

[00:13:28] Speaker 01:
That is the scenario that the patent claims describe.

[00:13:31] Speaker 04:
I guess what I keep thinking is that everything in 640 is a packet just taking Figure 6 for which there has been a prior attempt.

[00:13:44] Speaker 01:
But that is absolutely not the case, given the buffer management statement.

[00:13:49] Speaker 04:
which is about 640, referring to figure 6, which all starts with... Correct.

[00:13:55] Speaker 01:
And I would point out that there is a distinction between how IAGARI characterizes an attempt to transmit.

[00:14:02] Speaker 01:
They view if the channel is busy, and you get a back-off just because the channel is busy, that's an attempt to transmit.

[00:14:09] Speaker 01:
They view that as a failed transmission, IAGARI does.

[00:14:14] Speaker 01:
The 392 patent does not.

[00:14:16] Speaker 01:
They view if

[00:14:18] Speaker 01:
If there is an attempt to transmit and you can't because the channel is busy, that's not a failed transmission attempt.

[00:14:24] Speaker 01:
Only an externally collided packet is a failed transmission attempt.

[00:14:28] Speaker 01:
Can I ask you one more question before you go?

[00:14:32] Speaker 03:
If I understand the claim to require that as a consequence of an internal collision, the losing message goes to back off stage,

[00:14:46] Speaker 03:
then why is it that Iogari's figure six teaches that if I read that what's really the event that causes the back-up state is when a message is ready to launch but it fails to transmit.

[00:15:09] Speaker 03:
I'm not sure I understand though.

[00:15:10] Speaker 03:
Okay, I guess my understanding right now of Box 640 is that the losing message doesn't immediately go to back-off state.

[00:15:23] Speaker 03:
The losing message eventually has to reach Box 600 to check whether the channel's available for transmission.

[00:15:34] Speaker 03:
And only if

[00:15:37] Speaker 03:
that once losing message, now winning message, learns that the channel is not available to transmit, will that, once upon a time, losing message go into back-off state?

[00:15:48] Speaker 03:
So there's an intervening event that causes the back-off state, not the internal collision that occurred in Foxx.

[00:15:58] Speaker 01:
And that's, Your Honor, where I think I would explain it, is the intervening event that creates the back-off

[00:16:07] Speaker 01:
is the statement where Iagari says the high priority packet supersedes.

[00:16:13] Speaker 01:
Because you know the low priority packet was waiting for the next transmission opportunity, high priority packet gets that.

[00:16:20] Speaker 01:
The only way Iagari's statement, even if back off can be applied to the low priority packet, can be true, is because the high priority packet jumps the line, it gets the transmission opportunity, the low priority packet

[00:16:35] Speaker 01:
goes through the no route to step 615, and even in their own brief, IV concedes the only way that that packet could get a back-off is to get to step 615.

[00:16:46] Speaker 01:
So the intervening event is the superseding high-priority packet.

[00:16:50] Speaker 02:
Thank you, Your Honor.

[00:16:53] Speaker 02:
Any questions at this moment?

[00:16:54] Speaker 02:
Thank you.

[00:16:55] Speaker 02:
We'll save you a bit of time.

[00:16:58] Speaker 02:
Thank you.

[00:16:59] Speaker 02:
Mr. Babcock.

[00:17:00] Speaker 00:
Good morning, Your Honors.

[00:17:04] Speaker 00:
So I wanted to talk about Figure 6, because I think the panel fortunately understands Figure 6 better than I did when I first got this case.

[00:17:14] Speaker 00:
Let's not forget, though, that this is a substantial evidence case.

[00:17:17] Speaker 00:
This is a case in which the board examined the evidence, examined what I and Gary teaches, examined the expert declarations from both parties, looked at the patent, and determined, based upon all the evidence,

[00:17:32] Speaker 00:
that IAGARI does not meet this limitation.

[00:17:35] Speaker 00:
So this isn't a de novo review by this panel.

[00:17:38] Speaker 00:
This is a determination of whether or not there was substantial evidence supporting the board's determination that IAGARI does not disclose this.

[00:17:46] Speaker 00:
Is there some fanciful way to read IAGARI as it might?

[00:17:50] Speaker 00:
Possibly.

[00:17:50] Speaker 00:
And Motorola has an argument.

[00:17:53] Speaker 00:
But that's not the standard here.

[00:17:54] Speaker 00:
And in fact, I want to discuss why this new argument, there's actually a new argument on appeal, this path one, path two.

[00:18:01] Speaker 00:
This wasn't presented below.

[00:18:02] Speaker 00:
But I think if we understand figure six, the questions are all resolved.

[00:18:11] Speaker 00:
I like the skating rink analogy.

[00:18:14] Speaker 00:
And I think what we have to decide is we have to understand where do the packets initially come from.

[00:18:20] Speaker 00:
This figure six is all about external collisions.

[00:18:24] Speaker 00:
This has nothing to do with internal preemption.

[00:18:28] Speaker 00:
And the Iagari patent does say where the packets come from.

[00:18:32] Speaker 00:
Initially so you have these cues and in my in my notes off of this off of this figure I have queues queues lined up with packets and as was discussed Prior those queues have a priority scheme and the priority scheme is very simple higher priority packages go lower priority packages wait Julie's and it's your view that Iogari just really doesn't talk about Internal collision not at all it uses standard protocols

[00:19:00] Speaker 00:
or priority schemes.

[00:19:01] Speaker 00:
It doesn't do back off with respect to internal preemption.

[00:19:06] Speaker 00:
It has internal cues, and it has a priority scheme.

[00:19:10] Speaker 00:
The priority scheme is higher priority messages go out.

[00:19:13] Speaker 00:
Where do they go?

[00:19:14] Speaker 00:
It says in column 12, starting with line 23, after the allocation of QoS, transmission of a packet in accordance with the invention includes collision avoidance using stochastic scheme described in figure six.

[00:19:31] Speaker 00:
So what happens, you have these internal queues outside of figure six, determining which packet gets to go onto the ice, as you can judge Toronto's analogy.

[00:19:42] Speaker 04:
That's a good analogy.

[00:19:43] Speaker 04:
Highway is enough.

[00:19:45] Speaker 00:
Highway, goes onto the highway.

[00:19:46] Speaker 00:
So you have one message that the priority scheme within the queues picks.

[00:19:53] Speaker 00:
It comes out, and it comes into the top of 600.

[00:19:56] Speaker 00:
It's not shown here, but that's what happens.

[00:19:59] Speaker 00:
In my diagram, I have a pipe running through there.

[00:20:03] Speaker 00:
It's the highway I think of as a channel.

[00:20:06] Speaker 00:
That channel now defines external.

[00:20:09] Speaker 00:
Everything that happens now is the system looks externally at the channel to say, is it busy or not?

[00:20:17] Speaker 00:
We're no longer talking about internal preemption.

[00:20:20] Speaker 00:
We're talking about external collision avoidance.

[00:20:24] Speaker 00:
And what happens?

[00:20:24] Speaker 00:
Well, you have two paths.

[00:20:27] Speaker 00:
If you come out,

[00:20:28] Speaker 00:
and you see the channel appears to be free, you send the message, and if it goes through and you get acknowledgement back, you're done.

[00:20:36] Speaker 00:
That takes you all the way down to end after 610.

[00:20:42] Speaker 00:
But if you send the message out, you don't get acknowledgement back, then you go over and you get this magical back-off treatment.

[00:20:51] Speaker 00:
But that's after an unsuccessful attempt.

[00:20:53] Speaker 00:
What's the other path?

[00:20:55] Speaker 00:
Well, the other path is also an unsuccessful attempt

[00:20:58] Speaker 00:
But there, you listen to the channel.

[00:21:00] Speaker 00:
The channel says, busy.

[00:21:02] Speaker 00:
So the system says, well, we know if we send it now, it's going to collide.

[00:21:06] Speaker 00:
So we're going to go ahead and send it now down this path to 615, which is where we get backup treatment.

[00:21:15] Speaker 00:
Both of those paths are unsuccessful transmission attempts.

[00:21:20] Speaker 00:
It says, it already says, register a failure.

[00:21:24] Speaker 00:
if you decide not to send.

[00:21:26] Speaker 00:
You don't even attempt.

[00:21:28] Speaker 03:
Doesn't the other side make an argument that merely sensing the medium for whether or not it's available or unavailable, sensing the channel whether it's available or unavailable isn't really a transmission attempt?

[00:21:42] Speaker 03:
Well, they say that.

[00:21:43] Speaker 03:
But that's consistent with their specification, right?

[00:21:47] Speaker 03:
The specification seems to make a distinction between sensing the medium versus

[00:21:52] Speaker 03:
a field transmission.

[00:21:53] Speaker 00:
No, the specification makes three things.

[00:21:56] Speaker 00:
Our specification, 392 patent, says sensing the medium, but this claim doesn't, the patent actually talks about actual collisions.

[00:22:09] Speaker 00:
So there's actual collisions, which is when you just send it out and it bounces back.

[00:22:13] Speaker 00:
But this claim doesn't talk about, even though it says the claim has language talking about actual collisions, this limitation we're talking about here just says an unsuccessful transmission attempt.

[00:22:22] Speaker 00:
a broader use of the term.

[00:22:25] Speaker 00:
In fact, let me read you.

[00:22:27] Speaker 00:
You're going to get claim three in the patent.

[00:22:36] Speaker 04:
Three talks about collides.

[00:22:37] Speaker 04:
Four doesn't.

[00:22:38] Speaker 00:
Right.

[00:22:39] Speaker 00:
So the board reasonably understood that colliding is something more narrow or narrower than simply unsuccessful attempt.

[00:22:48] Speaker 00:
And they looked at, specifically at the prior art, they looked at the testimony of the experts.

[00:22:52] Speaker 00:
Dr. Tufek said, sensing the transmission, sensing the channel, determining it's busy, and not sending is an unsuccessful transmission attempt.

[00:23:02] Speaker 00:
And that's exactly what Iagari says.

[00:23:04] Speaker 00:
Iagari says, register a failure.

[00:23:09] Speaker 00:
And if you read Iagari.

[00:23:14] Speaker 04:
What are you pointing to?

[00:23:16] Speaker 00:
So I'm looking at Iagari, appendix 1138.

[00:23:18] Speaker 00:
It's a column in line.

[00:23:20] Speaker 00:
So a column in line of Iagari.

[00:23:22] Speaker 00:
column 12, line 51, during step 615, the node enters a back-off state, registers a failure, it generates a time delay after currently Dizzy Channel becomes free before attempting transmission of the current packet.

[00:23:43] Speaker 00:
The time delay is a function of the priority level of the packet and the number of failed transmission attempts.

[00:23:49] Speaker 00:
Failed transmission attempts.

[00:23:50] Speaker 00:
So was it unreasonable for the board to say

[00:23:52] Speaker 00:
that if you get to 615 along either path, it's an unsuccessful transmission attempt when the prior art calls it a failed transmission attempt.

[00:24:05] Speaker 00:
And same column, line 12, line 65, talks about the number of failed transmission attempts.

[00:24:11] Speaker 00:
So both of these paths are unsuccessful transmission attempts.

[00:24:17] Speaker 00:
The one on the left is an actual collision

[00:24:21] Speaker 00:
The one on the right is like a pseudo-collision, because the system says, hey, the channel's busy.

[00:24:28] Speaker 00:
Therefore, we're not going to send.

[00:24:30] Speaker 00:
But both paths result in back-off treatment because of an unsuccessful transmission attempt.

[00:24:39] Speaker 00:
And as the panel recognizes, the claim talks about receiving back-off treatment not as a consequence of an unsuccessful transmission attempt, but back

[00:24:51] Speaker 00:
in the cues, back in the cues when the priority is determined and one packet is superseded over the other, instead of that second packet just waiting, that second packet is given back off treatment back in the cues.

[00:25:06] Speaker 00:
That's the as if language.

[00:25:08] Speaker 00:
As if it had already gone through this system and had a non-successful transmission attempt and had gone back off treatment.

[00:25:16] Speaker 00:
Back in the cues, it never has.

[00:25:18] Speaker 00:
It's just coming up to the cues and it gets superseded.

[00:25:20] Speaker 00:
Now what about this

[00:25:21] Speaker 00:
even if language that the board, that Motorola relies upon.

[00:25:26] Speaker 04:
From Ayagari.

[00:25:27] Speaker 00:
From Ayagari.

[00:25:29] Speaker 00:
The point that Ayagari is making is that if you have two packets in the queues and you supersede the second one, the system doesn't care whether by holding it back, it might end up that it goes out

[00:25:50] Speaker 00:
And it ends up colliding and getting back off treatment.

[00:25:53] Speaker 00:
Now, if it went out first, if the priority system said, hey, let's give this guy first treatment, and it goes out, it might go through.

[00:26:00] Speaker 00:
So what Iagari says is, we're going to hold the second one.

[00:26:06] Speaker 00:
Even if by holding it, it means that when it goes out, comes into 600, the channel might be busy, and then it's going to go through the system, get to 615, and get back off treatment.

[00:26:17] Speaker 00:
But nowhere does Iagari say,

[00:26:19] Speaker 00:
We're going to hold it, and by holding it in the cues, we're giving it back off treatment.

[00:26:25] Speaker 04:
Does that give due account to the term another?

[00:26:32] Speaker 00:
Another back off.

[00:26:34] Speaker 00:
That particular sentence actually is even better for us, because it's talking about what happens in 640.

[00:26:40] Speaker 00:
And as the court has recognized, 640 packets have already been through the system.

[00:26:46] Speaker 00:
So if you're down in 640,

[00:26:49] Speaker 00:
you've already come through this, which means you definitely already have gotten back-off treatment before.

[00:26:55] Speaker 00:
You've come through this external collision system.

[00:26:57] Speaker 00:
So that sentence really has nothing to do with the queuing priority scheme, which is separate, which Igari never teaches has anything to do with back-off treatment.

[00:27:09] Speaker 00:
So all Igari is saying is, if you hold a packet, or if you give a packet priority, the held packet might end up

[00:27:18] Speaker 00:
in figure six, getting back-off treatment.

[00:27:21] Speaker 00:
We don't care.

[00:27:22] Speaker 00:
But nowhere does Ayegari ever teach that back in the cues, back in the priority scheme, back in determining which packet goes up to 600, that packet gets back-off treatment.

[00:27:35] Speaker 00:
It doesn't happen.

[00:27:36] Speaker 00:
Back-off treatment only happens here in this patent at 615 as a function of an unsuccessful transmission attempt, looking at the channel, having looked at the channel, either having

[00:27:49] Speaker 00:
actual collision or a pseudo collision based upon a busy channel.

[00:27:54] Speaker 00:
So with that understanding of figure six, I think it's all of the board's discussion makes perfect sense.

[00:28:05] Speaker 04:
Including where Mr. Stockwell began with the three propositions or findings by the board.

[00:28:16] Speaker 04:
And I guess I want to focus on

[00:28:18] Speaker 04:
the second one he mentioned, which is at page 29.

[00:28:21] Speaker 04:
We agree with petitioner that both Ayagari references, including the only one that is being discussed in this appeal, specifically contemplate and disclose the scenario in which two cues have data that is ready to be transmitted at the same time.

[00:28:41] Speaker 04:
You read that as limited to the 640 situation?

[00:28:45] Speaker 00:
We don't agree that the Iagari actually talks about two cues being ready to transmit at the same time.

[00:28:51] Speaker 04:
Yeah, but the fact that you don't agree doesn't diminish the quality of the course.

[00:28:55] Speaker 00:
I understand.

[00:28:55] Speaker 00:
I understand.

[00:28:56] Speaker 00:
It was a finding.

[00:28:57] Speaker 00:
It's a finding.

[00:28:58] Speaker 00:
And the finding doesn't give us a different conclusion.

[00:29:03] Speaker 00:
The point is that if you have two packets ready to go at the same time, the only way in Iagari you're going to get back-off treatment is if you go through Figure 6

[00:29:15] Speaker 00:
You check the channel for transmission for availability, and then you either collide or you find it's busy, and you don't collide.

[00:29:22] Speaker 00:
There's nothing in that sentence that says that the cues, the priority scheme within the cues gives you back-off treatment.

[00:29:31] Speaker 00:
It's only as a consequence of this subsequent event.

[00:29:36] Speaker 00:
And the reason that the board said it's a possibility, this doesn't mean there's multiple embodiments.

[00:29:42] Speaker 00:
The board said it's a possibility

[00:29:44] Speaker 00:
Because the message that's being superseded or being held back, when it finally gets to go out to 600, it may be successful.

[00:29:52] Speaker 00:
The channel may be open, and it may go right out.

[00:29:55] Speaker 00:
It may not be successful.

[00:29:57] Speaker 00:
If it's not successful, then it gets back on treatment as a consequence of an actual unsuccessful transmission attempt, not as a consequence of having been superseded or held back in the cues.

[00:30:11] Speaker 00:
So that's what the even-if language means.

[00:30:13] Speaker 00:
It just means

[00:30:14] Speaker 00:
And then the board says, the decision in the queues to decide which message to send is done without regard to what might happen later, without regard to whether or not holding that second message, superseding it, might result in it getting out onto the highway and having a collision.

[00:30:35] Speaker 00:
The Aigari priority scheme says nothing about

[00:30:41] Speaker 00:
concern about giving any internal preemption to that superseded packet.

[00:30:48] Speaker 02:
OK.

[00:30:49] Speaker 02:
Let's see.

[00:30:49] Speaker 02:
Mr. Babcock, you separated your cross appeal.

[00:30:53] Speaker 02:
Have you covered what needs to be covered, at least at the moment?

[00:30:58] Speaker 00:
I have three points on the cross appeal.

[00:31:01] Speaker 00:
I'll hit that when I come back.

[00:31:02] Speaker 02:
Is that OK?

[00:31:04] Speaker 02:
Oh, OK.

[00:31:04] Speaker 02:
Very good.

[00:31:05] Speaker 02:
All right.

[00:31:05] Speaker 02:
That makes sense.

[00:31:06] Speaker 00:
I think I've covered R. I don't know what you mean when you come back.

[00:31:09] Speaker 02:
Well, Mr. Bangkok has asked for three minutes of rebuttal of the cross appeal.

[00:31:14] Speaker 02:
Right.

[00:31:15] Speaker 02:
Theoretically.

[00:31:16] Speaker 02:
To keep the issues straight.

[00:31:19] Speaker 02:
All right.

[00:31:21] Speaker 02:
Take two minutes and tell us.

[00:31:23] Speaker 00:
Why don't I take the time I have now and do it now so I don't violate the procedural rules.

[00:31:28] Speaker 02:
Well, if there's nothing to rebut, then that takes care of the extra time.

[00:31:32] Speaker 00:
That'd be fine.

[00:31:33] Speaker 00:
That'd be fine, Your Honor.

[00:31:34] Speaker 02:
OK.

[00:31:35] Speaker 00:
So with regards to claim nine,

[00:31:38] Speaker 00:
I think there's three points I'd like to make on our cross appeal.

[00:31:43] Speaker 00:
The first is I think our briefs do a pretty good job of showing that the limitation of issue here, I'll read it, it says, sensing the communication medium for an opportunity to transmit the message data units from each of the first and second output cues.

[00:32:04] Speaker 00:
In Ayagari,

[00:32:07] Speaker 00:
The channel checker, box 600, only checks for the queue that's sending out the message.

[00:32:16] Speaker 00:
There's no sensing of multiple queues.

[00:32:20] Speaker 00:
The priority system determines which message goes out.

[00:32:23] Speaker 00:
It determines which queue the message is coming from.

[00:32:25] Speaker 00:
The channel checker checks for that single queue.

[00:32:29] Speaker 00:
Now, first point, I think I'll briefly show the comparison between what the claims say and what the board said.

[00:32:37] Speaker 00:
The claims say you check the communication medium for each of the first and second cues.

[00:32:45] Speaker 00:
The board said the transceiver senses the communication medium for an opportunity to transmit data units, regardless of where they originate.

[00:32:55] Speaker 00:
And we told the board, no, it's not regardless.

[00:32:57] Speaker 00:
It's not just sensing.

[00:33:00] Speaker 00:
Of course, IGARI senses the communication medium.

[00:33:03] Speaker 00:
But what was clever and novel about the patent

[00:33:07] Speaker 00:
is that you're actually going to be sensing for at least two cues.

[00:33:13] Speaker 00:
Igari doesn't teach that.

[00:33:14] Speaker 00:
But the board, first of all, the board read that out of the claim.

[00:33:17] Speaker 00:
The board clearly said, we don't care about whether it's sensing for two cues or not.

[00:33:23] Speaker 00:
We're just going to say it senses.

[00:33:25] Speaker 00:
That's good enough.

[00:33:26] Speaker 00:
So that's a legal error.

[00:33:29] Speaker 00:
Second point is the board has two anticipation holdings.

[00:33:33] Speaker 00:
Now we get substantial evidence.

[00:33:34] Speaker 00:
Well, the first anticipation hold

[00:33:36] Speaker 00:
is based upon the incorrect legal analysis.

[00:33:40] Speaker 00:
By reading out from each of first and second output cues, the board then says, well, I, Gary, teaches that.

[00:33:46] Speaker 00:
Well, that's incorrect because the claim construction was wrong.

[00:33:50] Speaker 00:
The board read out the claims, read out the claim limitation.

[00:33:54] Speaker 00:
It has to be given meaning.

[00:33:56] Speaker 00:
My third point, the board does have a half a paragraph of an alternative holding.

[00:34:02] Speaker 00:
Moro says, hey, substantial evidence.

[00:34:05] Speaker 00:
The board looked at it.

[00:34:07] Speaker 00:
said, hey, this limitation is met.

[00:34:10] Speaker 00:
All the board says there, well, first of all, there's no evidence from Motorola at all at this point.

[00:34:15] Speaker 00:
Motorola presented no evidence on how, for each of the first and second output queues, it's satisfied.

[00:34:21] Speaker 00:
There's no evidence for the board to rely upon.

[00:34:23] Speaker 00:
The board simply looked at Aigari and said, hey, we see some coordination between the priority schedulers and the external

[00:34:37] Speaker 00:
output avoidance, collision avoidance system.

[00:34:43] Speaker 00:
We see there's coordination between the two.

[00:34:45] Speaker 00:
Therefore, that's sufficient to meet the limitation.

[00:34:49] Speaker 00:
But simply coordinating the two does not mean that the schedule, that box 600 is sensing the medium for each of the first and second output cues.

[00:35:00] Speaker 00:
And there's no determination by the board that that limitation is actually satisfied.

[00:35:04] Speaker 00:
So in that regard,

[00:35:06] Speaker 00:
Because that limitation has to be given weight, the board gave it no weight, this panel should vacate that finding, instruct the board, construe that claim, read that limitation into what that claim has to be read, and then make an analysis of whether or not IGARI does, in fact, teach that.

[00:35:22] Speaker 00:
We think it does not.

[00:35:24] Speaker 00:
Not for this panel to decide if it does or doesn't, although we think the evidence is sufficient for this panel to conclude that IGARI doesn't teach it.

[00:35:31] Speaker 02:
OK.

[00:35:31] Speaker 02:
Thank you, Mr. Blackhock.

[00:35:33] Speaker 02:
Thank you, Your Honor.

[00:35:34] Speaker 02:
And we'll save the rebuttal if you ask for it.

[00:35:37] Speaker 02:
OK, Mr. Chakua.

[00:35:41] Speaker 01:
Thank you, Your Honor.

[00:35:45] Speaker 01:
The finding at A29 that the two Qs have high and low priority data available at the same time, that is based on the same buffer management statement at Iogari at that column 13 that we rely upon.

[00:36:03] Speaker 01:
So the board recognizes that that statement says, I've got two cues, data ready to go at the same time.

[00:36:11] Speaker 01:
In Iogari's system, there's one transmitter.

[00:36:15] Speaker 01:
So there's only one opportunity to transmit.

[00:36:19] Speaker 01:
They're contending for the same opportunity.

[00:36:22] Speaker 01:
That is the internal collision.

[00:36:24] Speaker 01:
That is where Iogari, we contend, discloses the internal collision.

[00:36:28] Speaker 01:
The board's finding at A29,

[00:36:31] Speaker 01:
demonstrates there's an internal collision.

[00:36:34] Speaker 01:
Indeed, they rely on that to invalidate other claims that IV does not appeal.

[00:36:41] Speaker 01:
Ayagari then goes on to make the even-if statement that the high-priority packet gets that one transmission opportunity, even if the low-priority packet goes into back-off.

[00:36:54] Speaker 01:
And in that regard, I just want to refer the court again

[00:36:58] Speaker 01:
to Dr. Tufek's statement, which the board refers to.

[00:37:02] Speaker 01:
It's at A3766.

[00:37:03] Speaker 01:
It's also relied upon by the board.

[00:37:07] Speaker 01:
Dr. Tufek says, when he talks about this even-if statement from Iagari, the third statement recites a characteristic.

[00:37:17] Speaker 04:
Which page specifically do you have?

[00:37:19] Speaker 01:
I'm sorry, A3766.

[00:37:21] Speaker 04:
OK.

[00:37:21] Speaker 01:
is Dr. Tupik's statement?

[00:37:23] Speaker 04:
Paragraph 36.

[00:37:25] Speaker 01:
Yes, Your Honor.

[00:37:25] Speaker 01:
Paragraph 36.

[00:37:27] Speaker 01:
The third statement, like the first two, recites a characteristic of a communication system that prioritizes packets, that the transmission of a higher priority packet before a lower priority packet sometimes causes the lower priority packet to enter another back-off state.

[00:37:42] Speaker 01:
And that is why we are contending that the disclosure of an internal collision, where there's only one opportunity to transmit it,

[00:37:51] Speaker 01:
It says it's in packet weighting.

[00:37:54] Speaker 01:
And again, if you look at IV's brief, they will admit the only way you get another backoff to that superseded packet is it has to flow through the chart.

[00:38:06] Speaker 01:
It has to flow through that one opportunity is taken by the high priority packet, it's given a backoff.

[00:38:13] Speaker 01:
That's why we contend the board's findings show express anticipation here.

[00:38:19] Speaker 01:
With respect to the failed transmission attempt

[00:38:22] Speaker 01:
argument that council made.

[00:38:25] Speaker 01:
This is not the basis for the board's decision.

[00:38:28] Speaker 01:
There's nowhere in this decision where they say, oh, well, Iagari says that if the channel's busy, that's a failed transmission attempt.

[00:38:38] Speaker 01:
And so somehow that means what Iagari is talking about in column 13 doesn't demonstrate anticipation.

[00:38:46] Speaker 01:
That is an argument that IV raised below.

[00:38:49] Speaker 01:
But it is not an argument that the board relied upon.

[00:38:52] Speaker 01:
And the board did not rely upon it for a very good reason.

[00:38:55] Speaker 01:
There is a false distinction being raised between what Iagari discloses, where Iagari says, well, if the channel's busy, I'm just going to count that as a failed transmission attempt, just like if maybe there had been other stations or external collisions.

[00:39:10] Speaker 01:
And the reason they count that is that goes into an algorithm to determine how much to delay.

[00:39:15] Speaker 01:
So they want to have their station if there's a lot of failed attempts because other people are using the medium.

[00:39:20] Speaker 01:
You keep crunching the back off time down, so you've got a better shot to get your message across.

[00:39:26] Speaker 01:
It's a slightly different algorithm that has nothing to do with the claims.

[00:39:29] Speaker 01:
But Iagari's statement about that has nothing to do with what is a failed transmission attempt in the 392 patent.

[00:39:38] Speaker 01:
Because the 392 patent acknowledges that if the communication medium is busy,

[00:39:43] Speaker 01:
That's not a failed transmission attempt.

[00:39:45] Speaker 01:
That's simply the medium was busy.

[00:39:48] Speaker 01:
And finally, with respect to the cross appeal, we think the board was correct to rely upon the language in the claim that talks about sensing for sending the message data units.

[00:40:07] Speaker 01:
It actually says, from message data units, the first and second output queues are required to release those

[00:40:13] Speaker 01:
The sensing opportunity is an opportunity to transmit the message data units.

[00:40:19] Speaker 01:
IV has not contested the board's rejection of their arguments below that there had to be a single transceiver or that there had to be multiple schedulers.

[00:40:29] Speaker 01:
And in fact, they agree in their reply at page 15 that the limitation does not require two separate or independent sensing operations.

[00:40:37] Speaker 01:
They seem to now somehow be suggesting

[00:40:40] Speaker 01:
that the sensing operation has to happen at the same time.

[00:40:45] Speaker 01:
But that is not a requirement in the claim, and that was not a claim construction they offered below.

[00:40:49] Speaker 01:
And this is a system claim.

[00:40:51] Speaker 01:
So if it senses for one high priority queue at one time and sends that transmission, and at a later time it senses for a low priority queue and sends that transmission, the sensing medium limitation is met and the board's polling was appropriate.

[00:41:10] Speaker 01:
Thank you.

[00:41:12] Speaker 02:
OK.

[00:41:12] Speaker 02:
Thank you, Mr. Stockwell, Mr. Babcock.

[00:41:15] Speaker 02:
You get the last word on the cross-appeal a minute or so.

[00:41:18] Speaker 00:
Thank you, Your Honor.

[00:41:19] Speaker 00:
I believe I've used my rebuttal time.

[00:41:21] Speaker 00:
I think that was the deal I struck with the panel.

[00:41:24] Speaker 00:
So thank you very much, Your Honors.

[00:41:26] Speaker 02:
Thank you.

[00:41:27] Speaker 02:
Thank you both.

[00:41:28] Speaker 02:
Your case is taken under submission.