[00:00:04] Speaker 00: Next case is Skullcandy, Incorporated versus CSR Limited, 2016, 1384. [00:00:10] Speaker 00: And Mr. Castellus is ready. [00:00:32] Speaker 00: You've been waiting for that drink. [00:00:34] Speaker 02: Since bottled water is banned in the courtroom, I was indeed. [00:00:38] Speaker 02: Thank you, Your Honor, and may it please the Court. [00:00:41] Speaker 02: In an increasingly long line of decisions, most recently man-machine interface and PPC broadband, this Court has had to remind the Patent Trial and Appeals Board that the broadest reasonable construction standard is not the broadest submitted construction standard, but requires the claims to be construed reasonably. [00:01:02] Speaker 02: Reasonably in light of the claim language, [00:01:04] Speaker 02: and reasonably in light of the specification. [00:01:07] Speaker 02: In this case, the board again violated those rules. [00:01:11] Speaker 02: It adopted a broad, actually two different broad and unreasonable constructions that caused the threshold value limitation of the claims in suit to be completely erased from the claims. [00:01:24] Speaker 02: In turn, this allowed the board to find that the UK Smith Reference, which discloses the interruption of a music signal by any telephone call signal of any value [00:01:35] Speaker 02: It found that the Smith reference anticipated and contributed to the obviousness of the Skullcandy claims. [00:01:41] Speaker 02: Under a correct and reasonable interpretation of the claims that reflects what we've called in our briefs the board's first claim construction, which is to say a certain amount associated with a signal, that is to say distinct from the signal itself, that may trigger an interruption of another signal when that certain amount is attained. [00:01:58] Speaker 02: Under that construction, the Smith reference does not read on for anticipation [00:02:03] Speaker 02: or contribute to the obviousness of these claims, all of which contain a separate threshold value limitation that's separate and apart from the presence of the sick. [00:02:12] Speaker 02: Now this case returns to this court after this court's remand and an unpublished decision, concluding that the board, which had previously concluded that the Smith reference did not disclose any type of threshold value, had not sufficiently construed the claims. [00:02:28] Speaker 02: This case was then returned to the board and the board issued [00:02:32] Speaker 02: a decision that had, in the words of our petition for rehearing in front of the board, not one, not two, but three different claim constructions. [00:02:41] Speaker 02: And we've set those out in detail in our brief. [00:02:45] Speaker 00: Here's what those constructions... As you know, Mr. Kostanich, we review decisions, not opinions. [00:02:51] Speaker 00: Right. [00:02:52] Speaker 00: And so we have to look with reasonable deference at the claims and [00:03:00] Speaker 00: What is it, page eight of this math reference? [00:03:05] Speaker 02: Right. [00:03:06] Speaker 02: And to that point, the only construction that was actually applied of the three constructions that were put forth in the opinion was construction number three. [00:03:14] Speaker 02: And I want to explain to the court why construction three in particular, but also construction two, which is really of a piece with that one, is incorrect. [00:03:23] Speaker 02: Let me start, though, by saying why construction number one is the correct one. [00:03:27] Speaker 02: It is reasonable. [00:03:30] Speaker 02: In the words of the board itself at A5, it is a construction that is based on the claim language and considering the context. [00:03:38] Speaker 02: That's very critical because those other two don't do that. [00:03:41] Speaker 02: They don't consider the claim language or the context. [00:03:43] Speaker 01: So I wanted to ask you, I mean, to a certain extent, that claim construction seems to just repeat back what's in the claim already to a certain extent. [00:03:54] Speaker 01: You look then to column two of your specification, which is where threshold value is used in the specification. [00:04:02] Speaker 01: And it's unclear to me what it's referring to. [00:04:06] Speaker 01: And so I was hoping that you could tell me, what does it mean there? [00:04:10] Speaker 01: Because the language there in column two around line 45 seems to just be saying what the claim says. [00:04:16] Speaker 01: So in your view, technically, what is the threshold value? [00:04:20] Speaker 01: Is it a decibel level? [00:04:21] Speaker 01: What is it? [00:04:22] Speaker 02: It is a signal level. [00:04:24] Speaker 02: Remember that this claim limitation is directed actually to a coupling device. [00:04:31] Speaker 02: It is directed to a particular electronic mechanism that receives signals. [00:04:37] Speaker 02: And so the antecedent to the threshold value is the second audio signal is characterized by a threshold value. [00:04:45] Speaker 02: So it is the value of the signal, signal strength, if you will. [00:04:49] Speaker 02: I don't know that it has to... Is it to distinguish noise? [00:04:51] Speaker 01: I'm sorry? [00:04:52] Speaker 02: Is it to distinguish noise? [00:04:54] Speaker 02: It certainly could be. [00:04:55] Speaker 02: I would be reaching beyond what we know in the specification to speculate about that. [00:05:01] Speaker 02: But yes, it could distinguish noise. [00:05:03] Speaker 02: And I think the example I'd give is this patent dates back to a 2003 application. [00:05:11] Speaker 02: We now have fairly ubiquitous technology that is even in our cars where we may be listening to the radio or to a podcast or something like that, but we receive a phone call. [00:05:21] Speaker 02: And the phone call usually will interrupt. [00:05:24] Speaker 02: Sometimes, however, you find yourself having driven to work and you've got a message on your phone because it didn't interrupt. [00:05:31] Speaker 02: I don't know why that is. [00:05:32] Speaker 02: I can't say why that is with my phone. [00:05:34] Speaker 02: But it does seem to me that it's suggesting that the phone is not reaching the threshold value or the signal is not reaching the threshold value inside that phone to interrupt the signal. [00:05:44] Speaker 02: But all that the court has in front of it today is the question of reasonableness of the constructions. [00:05:50] Speaker 02: And ultimately, construction number one, [00:05:53] Speaker 02: And there isn't a whole lot of magic to the term threshold value. [00:05:57] Speaker 02: It is a threshold value of the second received signal. [00:06:01] Speaker 02: It doesn't require a whole lot of elaboration. [00:06:04] Speaker 02: That's probably why the board in the first instance decided that it didn't need to do too much construction but reach a conclusion based on the complete absence of a threshold value separate and apart from the signal itself in Smith. [00:06:16] Speaker 02: Now, if I can just walk through the two constructions of the board that were ultimately applied. [00:06:22] Speaker 02: The second construction came out of a general purpose dictionary, and that construction was a quantity or amount at which a stimulus or signal is strong enough to be perceived. [00:06:32] Speaker 02: Well, that's going to an individual's perceptions. [00:06:34] Speaker 02: There might be a sound of decibel level, for example, that meets the threshold for human hearing, or doesn't meet the threshold for human hearing, but might meet it for a dog's hearing, for example. [00:06:45] Speaker 02: But that doesn't have anything to do with this specification, with this patent, with this claim, with this invention. [00:06:51] Speaker 02: is the danger of general purpose dictionaries, as this court pointed out in the Phillips decision. [00:06:59] Speaker 02: It's divorced from the specification, it's divorced from the claim language in a way that construction number one is not. [00:07:05] Speaker 02: Construction number three was unreasonable for a similar but different reason. [00:07:11] Speaker 02: That construction, which was a level in which the second audio signal is detectable by a [00:07:16] Speaker 02: Again, it's wrong because it's focused on the human user instead of the coupling device, the signal processing and signal receiving part that we're talking about here in these claims. [00:07:29] Speaker 02: But moreover, it's based on an understanding of the specification that only the column five embodiment represented the limits of the claim. [00:07:39] Speaker 02: Well, if I could just unpack that a little bit, the board erroneously relied on [00:07:45] Speaker 02: language in the Phillips decision, which in turn cited a Supreme Court case, that deals with the rare situation where the claims and the embodiments are strictly coextensive. [00:07:57] Speaker 02: That's the language of the board's decision. [00:07:59] Speaker 02: That's the language of Phillips quoting the Supreme Court. [00:08:03] Speaker 02: The specification makes clear that the embodiments are not coextensive with the claims. [00:08:08] Speaker 02: They are not the entire limitation of what is contained within the claims. [00:08:12] Speaker 02: And there's a reason for that. [00:08:14] Speaker 02: This specification supports not just this patent, but the 090 patent, which was in suit in the previous appeal, as well as U.S. [00:08:23] Speaker 02: patent number 8014824, which is continuation in part. [00:08:30] Speaker 02: Those patents, particularly the 090 continuation patent, which was in suit in the prior case, contains a number of claims, none of which contain threshold value limitations. [00:08:41] Speaker 02: So there's a reason that this specification and these embodiments are written in the way they are, and the reason that the threshold value information is in column two as generally applicable to all embodiments, because it needs to fit all of these. [00:08:57] Speaker 02: And of course, this court's decisions have made very clear that not every claim has to read on every embodiment, and there's no reason to limit the claims to the column five embodiment, which says nothing at all about the threshold value. [00:09:10] Speaker 02: In fact, the board erroneously thought, Judge Stoll, that there was no mention of threshold value in the specification. [00:09:16] Speaker 02: And of course, you pointed out already that column two does mention that. [00:09:20] Speaker 02: In short, Your Honor, the threshold value is distinct from the existence and reception of the signal itself. [00:09:27] Speaker 02: The constructions two and three don't make it distinct. [00:09:31] Speaker 02: It makes those constructions unreasonable. [00:09:33] Speaker 02: Under the proper construction, construction number one, there is no evidence, none whatsoever, that [00:09:40] Speaker 02: Smith patent anticipates, renders obvious the claims, including the threshold value limitations. [00:09:49] Speaker 02: Under those circumstances, I think this court can simply reverse under the correct claim construction, since there has been no evidence or argument put forth to the contrary. [00:09:58] Speaker 02: Unless the court has further questions for me, I'll return on remodel. [00:10:02] Speaker 00: We will save that time for you, Mr. Castagnos. [00:10:04] Speaker 00: Mr. Ostrow. [00:10:06] Speaker 03: Thank you, Your Honor. [00:10:08] Speaker 03: May it please the court [00:10:10] Speaker 03: I think there is a fundamental misunderstanding here between the parties and particularly between council and what the board actually said. [00:10:24] Speaker 03: Their brief, both their principal brief and reply brief continue to make the argument that every received second audio signal triggers an interruption. [00:10:33] Speaker 03: And here's the key point, because any second audio signal that is received [00:10:38] Speaker 03: will necessarily be strong enough to be perceived or detectable. [00:10:43] Speaker 03: That's exactly the opposite of what's correct. [00:10:48] Speaker 03: For example, if I were to ask Mr. Jones in a very quiet voice if I could borrow his stand and whisper over him and ask him that, you, this court, would receive the signal, but you would not perceive it, there is a idea [00:11:05] Speaker 03: that perception and reception are different, and the point that the board was getting at is that the signal needs to be perceived, not just received. [00:11:13] Speaker 03: Another example, 100 years ago or so, Albert Einstein postulated about gravitational waves. [00:11:20] Speaker 03: We've been receiving them forever, well before we got here. [00:11:25] Speaker 03: We only perceived these waves, I think last year sometime, 100 years after he postulated that these things existed. [00:11:33] Speaker 03: So the notion of perception or reception is the key element that the board was trying to make when it put forth its construction that, and I'll read you the construction. [00:11:44] Speaker 01: How do you respond to the argument that in light of the specification and that this is supposed to be a coupling device, that it's not threshold value in terms of something perceived or an audible signal? [00:12:02] Speaker 03: I think the point is the one that counsel brought up about his phone being interrupted and the one, Judge Stoll, you brought up about noise, if I understand the question rate. [00:12:09] Speaker 03: The point of this is to distinguish between the underground noise and an actual signal that could be acted on or actionable signal that's measurable. [00:12:17] Speaker 03: I'm not sure I understood completely or answered completely your question. [00:12:21] Speaker 01: Well, I think I understood counsel to be saying that the specification discloses [00:12:30] Speaker 01: threshold value that's not just a decibel level, not just hearing something. [00:12:36] Speaker 01: It's not just a user hearing it. [00:12:40] Speaker 01: It has to be something that's a coupling device detecting the sound. [00:12:44] Speaker 03: Right. [00:12:44] Speaker 03: So an actionable signal above the noise level, right? [00:12:47] Speaker 03: So first, let's be plain. [00:12:48] Speaker 01: Well, it might not be noise level. [00:12:50] Speaker 03: Right. [00:12:50] Speaker 03: Let's be plain about this. [00:12:51] Speaker 03: The specification is incredibly thin. [00:12:54] Speaker 03: And to your point that it really just repeats what's the claims really just repeat what's in the specification I think is true. [00:12:59] Speaker 03: My point about the actionable signal is, I think Council mentioned he gets a call in his car sometimes, and sometimes he doesn't hear it ring in the car, it doesn't interrupt the music that's playing, but instead goes straight to voicemail. [00:13:16] Speaker 03: I think that's a perfect example where the phone, in this case, receives [00:13:23] Speaker 03: a signal, a phone call, but it was not a good enough quality to be perceived. [00:13:29] Speaker 03: And as a result, went straight to voicemail and made a decision. [00:13:31] Speaker 03: It made a decision that it could not act on this signal. [00:13:36] Speaker 03: And because it could not act on the signal, it had not met a threshold value and said it had not met the threshold value did not interrupt the music. [00:13:45] Speaker 03: The perception level is going to have to be different from the reception level. [00:13:49] Speaker 03: I think, you know, the, [00:13:51] Speaker 03: The notion that a received signal is actionable, I think, is not true. [00:13:58] Speaker 03: Very often, the received signals are not actionable. [00:14:00] Speaker 03: And what we're talking about instead is a signal that is good enough to be actionable. [00:14:05] Speaker 03: And our view is that the way that the PTAB put it, the board put it, they made it clear that the signal has to be detectable or able to be perceived. [00:14:16] Speaker 03: Those are the words used. [00:14:18] Speaker 03: This three-construction idea, frankly, I think, is not true. [00:14:21] Speaker 03: the board came to one construction, which follows the three constructions that counsel has been putting forth. [00:14:27] Speaker 03: And we make that point clear in our papers. [00:14:31] Speaker 03: I can read that to you if the court likes. [00:14:34] Speaker 03: But our view is that there's got to be a signal that is perceptible and not just received. [00:14:41] Speaker 03: And it's at that level, the perceptible level, where the signal is actionable. [00:14:45] Speaker 03: And it's at that level that the signal or the [00:14:48] Speaker 03: call coming on interrupts the music. [00:14:50] Speaker 03: In fact, that's the entire point of the invention. [00:14:53] Speaker 03: You don't want the noise to interrupt your music. [00:14:58] Speaker 03: You want a signal, a phone call that you can actually listen to. [00:15:01] Speaker 03: I just thought of this this morning. [00:15:04] Speaker 03: For example, I live in California and there are earthquakes in California. [00:15:08] Speaker 03: PG&E made me hook up to my gas delivery device, a meter that will shut off [00:15:17] Speaker 03: the gas line at the time when there is a threshold value, in other words, a perceptible earthquake at a particular level. [00:15:24] Speaker 03: What you don't want to happen is every time there's a little rumbling, your gas will go off. [00:15:29] Speaker 03: So what you have here is there's got to be some actionable level at which the music will get cut off because the phone call is of good enough quality to be able to be acted upon, not go straight to voicemail, actually [00:15:42] Speaker 03: Be answerable. [00:15:43] Speaker 03: Be answerable above the noise level. [00:15:45] Speaker 03: Be answerable at a level that you can actually use the information that's coming forth from the other side. [00:15:51] Speaker 03: So that's our view as to why perception and not reception is the key issue here. [00:15:57] Speaker 03: And those are very different things. [00:16:00] Speaker 03: There are a couple of issues that are raised in the briefs that counsel did not raise. [00:16:04] Speaker 03: And unless there's any further questions, I think I will let the court have its time back. [00:16:12] Speaker 00: No one is ever penalized for giving time back. [00:16:17] Speaker 00: Thank you Mr. Ostro. [00:16:18] Speaker 00: Mr. Katanias has five plus minutes. [00:16:24] Speaker 02: Your Honor, my friend has made an excellent showing to you that a threshold value is something different than a received signal. [00:16:33] Speaker 02: The problem is that's not the construction that the board applied. [00:16:37] Speaker 02: The board applied a construction that allowed [00:16:40] Speaker 02: these claims to read on the Smith reference, which does not disclose a, quote, some actionable level, that's my friend's words just now, that is distinct from the receipt of a signal. [00:16:53] Speaker 00: Let's look at Smith. [00:16:55] Speaker 00: But the board did say detectable or able to be perceived. [00:17:01] Speaker 02: The board used what the term perceived in its second construction, what we call the second construction, [00:17:09] Speaker 02: and detectable in the third construction. [00:17:11] Speaker 02: Quite frankly, I am a bit at a loss to understand my friend's distinction between receive and perceive. [00:17:19] Speaker 02: Perceive is a word that refers to a human's perception. [00:17:23] Speaker 02: It doesn't have anything to do with an electronic instrument. [00:17:26] Speaker 02: You talk about a signal being received, not perceived, and this claim is drawn strictly to an electronic instrument. [00:17:34] Speaker 02: It is not drawn to anything that has to do with how a human being perceives [00:17:39] Speaker 02: the signal. [00:17:41] Speaker 02: It has everything to do with how the electronics react to the signal. [00:17:45] Speaker 02: And if you look at the Smith reference, for example, the Smith reference, which really is far afield from the invention that we claim in the skull candy patent, the Smith reference is talking about interrupting with any signal, full stop. [00:18:01] Speaker 02: There is no separate disclosure of some actionable level that is separate and apart from the signal itself. [00:18:09] Speaker 02: So if my friend is right that some actionable level is the proper understanding of perceived and received, then we should win. [00:18:18] Speaker 02: And we should win because Smith doesn't have that in there. [00:18:21] Speaker 02: So unless the court has any further questions, I'll give the court back my last three and a half minutes. [00:18:26] Speaker 00: Thank you, Mr. Costanius. [00:18:27] Speaker 00: We'll take the case under revisement. [00:18:35] Speaker ?: All rise. [00:18:38] Speaker ?: The honorable court is adjourned until tomorrow morning. [00:18:41] Speaker 03: It's an o'clock a.m.