[00:00:02] Speaker 01:
The first case for argument is 162666, Smart Modular Technologies versus Netlist.

[00:00:11] Speaker 01:
Mr. Heafy.

[00:00:14] Speaker 03:
Please begin.

[00:00:17] Speaker 03:
The fundamental error by the Board in the reexamination of the Netlist patents brought by Petitioner Smart Modular was the insistence on the incorporation and the use of the claim construction

[00:00:31] Speaker 03:
from the inter-parties reviews brought by petitioner Sandisk.

[00:00:36] Speaker 03:
That construction was based upon a different record.

[00:00:38] Speaker 05:
On page 35 of the red brief, Netlist contends that Smart purposefully rewrites the key environment phrase to predefined values instead of as from predefined values 25 times in the briefs.

[00:00:57] Speaker 05:
in an effort to argue that the alleged address and control signals are generated from values that must be pre-existing.

[00:01:04] Speaker 05:
How do you respond to that?

[00:01:07] Speaker 03:
There is no foundation to that.

[00:01:08] Speaker 03:
That is just the way the words are phrased.

[00:01:10] Speaker 03:
There is no determination to use to or from in any way.

[00:01:16] Speaker 03:
But it has no meaning.

[00:01:17] Speaker 03:
To and from have no meaning in the pattern?

[00:01:20] Speaker 03:
They have a meaning in that the predefined values stored within the controller are data.

[00:01:27] Speaker 03:
The claims require the generation of signals.

[00:01:31] Speaker 03:
So the data may be stored within the controller, and from that data, or from what is in that storage, the signal is generated.

[00:01:41] Speaker 03:
But the data is not a signal.

[00:01:44] Speaker 03:
The controller is a box.

[00:01:47] Speaker 03:
At some points in operation, there is no signal.

[00:01:51] Speaker 05:
Well, let me ask you another question.

[00:01:53] Speaker 05:
On page 44 of the red brief,

[00:01:56] Speaker 05:
Netlist contends that Smart has waived its right to present its new and, it says, I'm quoting, new and inconsistent proposed claim construction that produce encompasses mere selection of a signal that has already been externally created and later stored and thereafter issued without transformation or modification.

[00:02:18] Speaker 05:
I've looked at this closely, and I want you to tell me why we should not consider this argument waived.

[00:02:24] Speaker 05:
And in doing that, show me in the record where you raised this claim construction argument in front of the P tab.

[00:02:31] Speaker 03:
Smart Previously Raised is proposed construction of generate signals at appendix 686, appendix 142 to 143.

[00:02:41] Speaker 03:
Slow down.

[00:02:54] Speaker 05:
686, where are you, please?

[00:03:01] Speaker 05:
Appendix 686.

[00:03:09] Speaker 05:
I went through all this and I consider it a very strong argument.

[00:03:12] Speaker 05:
Excuse me?

[00:03:13] Speaker 05:
I said I went through all this and I consider it a strong argument, but I want you to tell me why it isn't.

[00:03:18] Speaker 03:
We have in bold in the quote,

[00:03:22] Speaker 03:
or they may be defaulted to predefined values.

[00:03:28] Speaker 03:
It may explain the predefined values are stored in memory and manufactured prior to operation.

[00:03:33] Speaker 03:
The control module generates output signals from these values during testing.

[00:03:39] Speaker 03:
That's precisely the argument.

[00:03:45] Speaker 03:
We also have appendix 142 to 143.

[00:03:52] Speaker 05:
Hang on.

[00:03:57] Speaker 05:
I'm looking at it.

[00:03:57] Speaker 03:
Go ahead.

[00:04:06] Speaker 03:
At the bottom, we've configured to provide memory signals, data address, and control signals.

[00:04:15] Speaker 03:
In the 434 pattern, column 6, lines 3 to 5.

[00:04:25] Speaker 03:
So again, the data patterns of your program will be information received by the generation.

[00:04:30] Speaker 03:
That's a slightly different argument.

[00:04:32] Speaker 03:
We again have appendix 592.

[00:04:36] Speaker 05:
So we can forget about appendix 142 and 143?

[00:04:43] Speaker 03:
No.

[00:04:44] Speaker 03:
142, we have first configured to provide memory signals, address, data address and control signals.

[00:04:56] Speaker 03:
143, we have the quote, the address sequences and or the data patterns of certain embodiments may be programmable either through the I2C interface or it may be defaulted to predefined values.

[00:05:12] Speaker 03:
Same argument, same quote.

[00:05:13] Speaker 03:
That is the language from the specification on which we have relied.

[00:05:18] Speaker 03:
We also have appendix 592.

[00:05:30] Speaker 05:
I'm looking at it.

[00:05:34] Speaker 05:
Where?

[00:05:37] Speaker 03:
Middle of the page.

[00:05:40] Speaker 01:
What is this document?

[00:05:46] Speaker 03:
I'm afraid I have the version that is extracted.

[00:05:53] Speaker 03:
So reply brief and support a petitioner's motion to exclude.

[00:06:08] Speaker 03:
Petitioner Pellant raised his argument concerning the Prior Art Aberburge at Appendix 3466.

[00:06:15] Speaker 03:
This is the request for rehearing.

[00:06:38] Speaker 03:
And it is the majority of that page.

[00:06:47] Speaker 03:
And the signal data distinction, appendix 3-4-6-4.

[00:06:52] Speaker 03:
3-4-6-4.

[00:07:02] Speaker 03:
This is in particular in connection with Judge Clement's dissent.

[00:07:16] Speaker 03:
and page appendix 3465.

[00:07:18] Speaker 03:
And you can see the first full paragraph there.

[00:07:28] Speaker 03:
And then it continues with the discussion of Averburge anticipating under the rise reasonable interpretation of generate.

[00:07:40] Speaker 03:
That waiver is a doctrine of limited application.

[00:07:45] Speaker 03:
It cannot be invoked to limit a party from clarifying or expanding upon explaining its theories.

[00:07:53] Speaker 03:
The theories have been raised.

[00:07:55] Speaker 03:
They are not waived.

[00:07:56] Speaker 03:
They may be argued and explained further.

[00:07:59] Speaker 01:
And a request for rehearing?

[00:08:00] Speaker 01:
I mean, what you cited, the last pages you cited were your request for rehearing.

[00:08:06] Speaker 01:
Yes.

[00:08:07] Speaker 01:
You can't use that as an opportunity to make new arguments.

[00:08:11] Speaker 03:
You can make that as an opportunity to show

[00:08:14] Speaker 03:
that the arguments had been raised below in that it had been raised, there's a basis, and they're being explained in the rehearing.

[00:08:23] Speaker 03:
And those arguments were not rejected or denied or excluded in the rehearing.

[00:08:31] Speaker 03:
So when they had support in the original briefing, the original arguments, when they are raised in the rehearing, they are raised below.

[00:08:42] Speaker 01:
So tell us a little about the merits of the argument you're making.

[00:08:46] Speaker 03:
The merits of the argument on claim construction or on the waiver?

[00:08:50] Speaker 03:
On claim construction.

[00:08:51] Speaker 03:
On claim construction.

[00:08:52] Speaker 03:
The problem is that the board insisted on using the interpretation from the Sandisk review.

[00:08:59] Speaker 03:
And the Sandisk had a different record.

[00:09:02] Speaker 01:
Although it had the same prior art, it had a different view of the prior art.

[00:09:05] Speaker 01:
So what precisely is the claim construction we're talking about?

[00:09:08] Speaker 01:
Generating meaning cause rather than just produce?

[00:09:11] Speaker 03:
I don't like using single words.

[00:09:13] Speaker 03:
Generating must include creating a signal from internal to the circuit.

[00:09:21] Speaker 03:
Now that signal... Can you say that again?

[00:09:23] Speaker 02:
What's baffled me about your argument in this entire case is that you dispute the board's construction of generate, but I find no clear construction you provided to us beyond saying you should come up with something that includes this

[00:09:40] Speaker 03:
disputed embodiment there are actually three possible embodiments one you just give me what you think the claim construction is and show me where you argue that to us clearly yes the claim construction should be the generate is creating a signal for transmission not data but a signal either by an algorithm which generates the data on the fly from which the signal is generated and transmitted or

[00:10:10] Speaker 03:
where it is read from values that are recorded in a memory, and the signal is then generated and transmitted from the controller.

[00:10:18] Speaker 05:
And I hesitate to say this, but where did you argue that below in the record?

[00:10:25] Speaker 05:
Are you just going to refer me to the same pages that you gave me before?

[00:10:30] Speaker 03:
Those are the pages which I've prepared to argue on.

[00:10:33] Speaker 02:
Where's in your brief is that?

[00:10:36] Speaker 02:
description of generate.

[00:10:38] Speaker 03:
In our brief here in this clipboard?

[00:10:41] Speaker 02:
Yeah, in those words that you just described to us.

[00:10:44] Speaker 02:
We explain in the brief that there are three rights of media, particularly in the reply

[00:10:50] Speaker 03:
There are three possible embodiments.

[00:10:52] Speaker 02:
I don't want to talk about the embodiments.

[00:10:53] Speaker 02:
This is the problem.

[00:10:55] Speaker 02:
You tell us we have to come up with construction to cover these embodiments.

[00:10:59] Speaker 02:
It's your job to tell us what construction you want.

[00:11:02] Speaker 02:
You just told us one, but I don't remember reading that in the briefs.

[00:11:06] Speaker 02:
Where is it?

[00:11:08] Speaker 05:
And start with a blue brief rather than the required brief.

[00:11:16] Speaker 03:
We've stated

[00:11:19] Speaker 03:
then a proper interpretation would include signals.

[00:11:25] Speaker 02:
What painter are you on?

[00:11:36] Speaker 03:
Page 29.

[00:11:39] Speaker 03:
Correct interpretation includes the disclosed embodiments.

[00:11:46] Speaker 03:
And there are two disclosed environments.

[00:11:47] Speaker 02:
So you didn't put in your blue brief the construction you just described to me.

[00:11:52] Speaker 03:
In our original petition, we did put in a construction.

[00:11:56] Speaker 03:
The construction was based upon the intrinsic evidence of the specification that Generate is caused to produce the one based on a single word from data from an algorithm or from predefined values, which are stored.

[00:12:20] Speaker 03:
Now, the board did not include the intrinsic evidence of the predefined values.

[00:12:36] Speaker 03:
And what was raised to the board, the board only addressed this intrinsic evidence by looking at the expert, petitioner's expert,

[00:12:48] Speaker 03:
and then rejecting that as extrinsic evidence.

[00:12:51] Speaker 03:
But that had it backwards.

[00:12:53] Speaker 03:
That was failing to look at the intrinsic evidence by rejecting extrinsic evidence.

[00:13:04] Speaker 03:
The board at no point addressed the predefined values as a disclosed embodiment that should be included within the claim construction.

[00:13:15] Speaker 03:
This resulted

[00:13:18] Speaker 03:
in a failure to actually appreciate the prior art.

[00:13:22] Speaker 03:
Now Judge Clements, in his dissent, got this exactly right.

[00:13:28] Speaker 03:
When on rehearing, the petition for rehearing, the board said that it had included that embodiment.

[00:13:33] Speaker 03:
It added an additional limitation, a limitation that was not in specification.

[00:13:40] Speaker 03:
That if a device outside the controller had ever stored those values in the controller, then

[00:13:49] Speaker 03:
And that was not within the scope of the claim.

[00:13:51] Speaker 03:
And Judge Clemens read that at some point in manufacture, it's possible to store it there.

[00:13:57] Speaker 03:
And so therefore, the proper interpretation was that generate signals could come from an algorithm generating or from the predefined values.

[00:14:10] Speaker 03:
And all interpretations exclude the transceiver situation, where the signal simply passes through and the signal is not originated

[00:14:19] Speaker 03:
or created within the controller.

[00:14:25] Speaker 01:
Good morning, Your Honor.

[00:14:42] Speaker 00:
May it please the Court?

[00:14:44] Speaker 05:
I'm going to ask you about waiver.

[00:14:47] Speaker 05:
Before I do,

[00:14:48] Speaker 05:
Help me out with this, okay?

[00:14:52] Speaker 05:
I assume you have something to do with the next case.

[00:14:56] Speaker 05:
Yes, I do.

[00:14:57] Speaker 05:
So if we were to affirm the companion case before our court today, what effect would that decision have on this appeal, if any?

[00:15:11] Speaker 04:
I don't think it has any effect as I stand here, Your Honor.

[00:15:15] Speaker 04:
Because there are some overlaps and some non-overlaps?

[00:15:19] Speaker 04:
Yes, that's correct.

[00:15:20] Speaker 02:
Well, with regard to the overlapping claims, it surely does.

[00:15:25] Speaker 02:
Yes.

[00:15:25] Speaker 02:
And if we affirm the invalidity of those claims in Sandoff, you can't assert those claims in any court.

[00:15:33] Speaker 00:
Correct, Your Honor.

[00:15:34] Speaker 02:
You're going to get smart, I assume.

[00:15:35] Speaker 00:
Correct, Your Honor.

[00:15:36] Speaker 00:
This proceeding, no claims were held invalid or patentable.

[00:15:40] Speaker 00:
And in the other proceeding with Sandis, there were claims that were held unpatentable.

[00:15:43] Speaker 01:
And there's an overlap between the claims.

[00:15:46] Speaker 00:
I'm sorry?

[00:15:46] Speaker 01:
And there's an overlap between those claims.

[00:15:48] Speaker 00:
Yes, there is.

[00:15:49] Speaker 01:
In other words, there are claims that were held patentable in this case that went down.

[00:15:53] Speaker 00:
Yes, that's correct.

[00:15:55] Speaker 00:
And that should be clear.

[00:15:56] Speaker 01:
So the answer to Judge Wallach's question is, if we affirm the second case, those claims obviously go down.

[00:16:02] Speaker 00:
Oh, yes, yes.

[00:16:03] Speaker 00:
And forgive me, but that is true.

[00:16:05] Speaker 05:
You're talking about result as opposed to

[00:16:07] Speaker 00:
I was talking about, yeah, the application of the different arguments and does one carry over, but certainly the results can carry over from one case to the other.

[00:16:15] Speaker 02:
Is there anything particular about the non-overlapping claims here that distinguish them from the theory used for invalidity in Sandus, or were they just not asserted in the Sandus petition?

[00:16:32] Speaker 00:
I think that there's nothing that's

[00:16:35] Speaker 00:
particularly comes to mind with respect to the asserted claims being different.

[00:16:40] Speaker 00:
I think you have different arguments with the same prior art.

[00:16:44] Speaker 02:
So it's not that the claims, the non-overlapping claims here have some other feature or other limitation that you need to get at to invalidate them.

[00:16:55] Speaker 02:
It's just that they weren't asserted in the Sandisk case.

[00:17:00] Speaker 00:
It's that there are overlapping claims and to the extent the claims overlap and are held unpatentable in the Sandus case, that would obviously trump what happens in this case.

[00:17:09] Speaker 02:
Let me be clear.

[00:17:10] Speaker 02:
I'm sorry.

[00:17:11] Speaker 02:
This is all a little fuzzy and there's way too many overlapping claims and theories of waiver and stuff like that.

[00:17:17] Speaker 02:
At least by my count, there's four or five claims here that don't overlap with the invalidity in Sandus.

[00:17:24] Speaker 02:
If we applied the Sandisk theory of invalidity to those claims, would they be invalid if we affirm that invalidity theory?

[00:17:36] Speaker 00:
Absent the waiver issues, I think one could argue that those invalidity positions would carry over, but they weren't raised here.

[00:17:45] Speaker 02:
Because it depends on the definition of generate and all that kind of stuff and where in the prior art Sandisk

[00:17:53] Speaker 02:
relies on to find, generate.

[00:17:54] Speaker 00:
Right.

[00:17:55] Speaker 00:
And they allege different theories in the other case, in this case.

[00:17:57] Speaker 00:
So there's a little bit of a conflict in that respect.

[00:18:01] Speaker 02:
Oh, yeah.

[00:18:01] Speaker 02:
A little bit.

[00:18:02] Speaker 02:
Yes.

[00:18:04] Speaker 00:
And it is a little bit complicated.

[00:18:06] Speaker 00:
But Your Honor, if you'd like me to start with Waiver, I have three points I'd like to make.

[00:18:09] Speaker 00:
Yeah.

[00:18:10] Speaker 05:
Talk about your friend's references to the record.

[00:18:12] Speaker 05:
I have to tell you, it didn't help me much.

[00:18:15] Speaker 00:
Yeah.

[00:18:15] Speaker 00:
I'm a little bit at a loss.

[00:18:17] Speaker 00:
I was trying to follow along.

[00:18:18] Speaker 00:
But the primary point, and you can start with the appendix,

[00:18:22] Speaker 00:
142 which council noted the construction there is to cause or initiate transmission and causing or initiating so the entire case for Smart was premised on a construction of generate as meaning cause or cause to initiate That's what they based their case on and and looking at these these sites including what council just pointed out doesn't change that and so they specifically came to the board and they said

[00:18:52] Speaker 00:
that in the petition this language with respect to defaulted to predefined values supported the construction of generate as cause and we just saw that.

[00:19:03] Speaker 00:
We just saw that right in appendix 142 and they doubled down on that because on the reply they argued that a construction of generate as produce cannot account for predefined values that already exist and are not generated.

[00:19:17] Speaker 00:
In other words, this language they're pointing to now is support for

[00:19:22] Speaker 00:
Their position on produce was 180 degrees different from what they took before the board.

[00:19:30] Speaker 00:
And on appeal here, they argue that they're entitled to clarify or defend the original claim construction.

[00:19:34] Speaker 00:
But this is not the original claim construction.

[00:19:37] Speaker 00:
The original claim construction is to cause or initiate transmission, essentially cause a downstream address generation unit to generate a cause position.

[00:19:50] Speaker 00:
And they cited interactive gift express, which in turn cites Finnegan versus ITC.

[00:19:56] Speaker 00:
And I think that case is informative.

[00:19:58] Speaker 00:
But it's informative for the proposition of waiver, that the basic requirement embodied in the doctrine of waiver, the court says, is that the parties develop their positions at trial, or in this case, below before the board.

[00:20:10] Speaker 00:
And the court went on to say the argument should not be a moving target.

[00:20:14] Speaker 00:
And that one primary concern is whether the claim construction and arguments on appeal are consistent

[00:20:20] Speaker 00:
with what were taken below.

[00:20:22] Speaker 00:
In this case, they're just not consistent.

[00:20:24] Speaker 00:
They're 180 degrees inconsistent.

[00:20:27] Speaker 00:
And so we therefore submit that the argument was waived.

[00:20:31] Speaker 00:
And you can't bring that here for the first time.

[00:20:36] Speaker 00:
And then turning to the board's claim construction, the board's claim construction is well-reasoned that generate means produce, not cause, or cause to produce.

[00:20:45] Speaker 00:
And SMART doesn't take a position on appeal

[00:20:49] Speaker 00:
with respect to cause.

[00:20:50] Speaker 00:
They've abandoned that and so has the other petitioners.

[00:20:52] Speaker 00:
Nobody maintains that generate means cause.

[00:20:57] Speaker 00:
And the court gave a very well-raised opinion and went through the differences in use of terminologies to show that generate does not mean provide, it does not mean select, it does not mean transmit.

[00:21:07] Speaker 00:
What about the dissent in this opinion?

[00:21:09] Speaker 00:
Yes.

[00:21:10] Speaker 01:
So the dissent... He understood, I mean, how does the argument he was making coincide with the argument they're making?

[00:21:18] Speaker 01:
Yes.

[00:21:19] Speaker 01:
That's right.

[00:21:20] Speaker 01:
He seemed to understand that argument, not withstanding your arguments with regard to waiver.

[00:21:25] Speaker 00:
I think the dissent created the argument, and I'll show you why.

[00:21:28] Speaker 00:
And let's talk about that.

[00:21:31] Speaker 00:
It's my third point.

[00:21:32] Speaker 00:
And that goes to the fact that the board's findings are supported by substantial evidence.

[00:21:38] Speaker 00:
Now, on appeal, Smart points to the dissent and says that data is not a signal.

[00:21:43] Speaker 00:
There's a big distinction between data and signal.

[00:21:46] Speaker 00:
And they get that from the dissent.

[00:21:48] Speaker 00:
You'll see that they don't cite any expert opinion.

[00:21:51] Speaker 00:
They don't have anyone, any expert opinion, because it was never argued and developed below.

[00:21:57] Speaker 00:
But let me take you to Appendix 147.

[00:22:02] Speaker 00:
And 147 is what they did argue to the board.

[00:22:06] Speaker 00:
And there they said that the BIS Controller 4 of Average 442 represents circuitry of a control module.

[00:22:15] Speaker 00:
that provides the set address and command underscore REQ signals as opcode.

[00:22:21] Speaker 00:
So they pointed to the opcode.

[00:22:23] Speaker 00:
They didn't argue that there was a distinction between signals and opcode.

[00:22:27] Speaker 00:
For the recited address and control signals, they pointed to the opcode.

[00:22:30] Speaker 00:
And from the opcode, we all know, according to Averbouche, that's data.

[00:22:34] Speaker 00:
And so this distinction was created on appeal by hindsight looking back to the dissent.

[00:22:41] Speaker 00:
It's not what they argued to the board.

[00:22:43] Speaker 00:
And the asserted distinction, as I said, was never developed with expert testimony.

[00:22:47] Speaker 00:
But if you take it and you look at it fresh here on appeal, you can do a word search for the word command in Avrabouj.

[00:22:53] Speaker 00:
And you'll see that Avrabouj talks about communicating commands.

[00:22:57] Speaker 00:
He doesn't talk about communicating signals.

[00:22:59] Speaker 00:
He doesn't raise a distinction between data and signal or command and signal.

[00:23:04] Speaker 00:
He talks about communicating commands.

[00:23:07] Speaker 00:
And if I could take you to appendix 5781,

[00:23:14] Speaker 00:
This is further evidence that this is an argument that was created for the first time on appeal looking at the dissent.

[00:23:20] Speaker 00:
This is a smart petition for review in the 501 decision.

[00:23:29] Speaker 00:
And in the language that you recite here in the bottom paragraph, it says as shown in Figure 6, memory modules 10A to 10C receives control and address data from the sequencer and uses this information to generate address and test data.

[00:23:44] Speaker 00:
So they pointed to the data all along to the board.

[00:23:48] Speaker 00:
They didn't raise a distinction between data and signal.

[00:23:51] Speaker 00:
So that's an afterthought argument based on the dissent.

[00:23:57] Speaker 00:
And it's also an incorrect argument raised by the dissent because it's inconsistent with the board's claim construction.

[00:24:05] Speaker 00:
The board said that merely retrieving a signal generated externally and then providing it without modification or transformation

[00:24:13] Speaker 00:
does not satisfy generate.

[00:24:15] Speaker 00:
And so the dissent took the view that the claim construction was right, but that you could have this retrieving, mere retrieving without transformation somehow satisfy the claim construction.

[00:24:25] Speaker 00:
So that the whole position raised by the dissent, it doesn't hold water.

[00:24:31] Speaker 00:
It's inconsistent with the board's claim construction.

[00:24:34] Speaker 00:
Now, I want to make a point on this theory further with respect to retrieval of the op code.

[00:24:41] Speaker 00:
The op code

[00:24:42] Speaker 00:
admittedly exists in the best controller of avarabooge it was generated externally so it already existed and what is stored in in the uh... in avarabooge's best controller is simply retrieved and passed to the sequencer you have a tier one best controller you retrieve it and you pass it and that's that's not generating and it doesn't remotely satisfy the the claim construction and there's no dispute

[00:25:13] Speaker 00:
There's no dispute on that point that the bis controller algorithms, the commands, the opcode was created externally and is simply retrieved and passed.

[00:25:24] Speaker 00:
So in our view, that SMART has therefore failed to show that any of the challenge claims are anticipated.

[00:25:33] Speaker 00:
I think I've jumped ahead here.

[00:25:34] Speaker 00:
But to go back, and I think Judge Wallach, you

[00:25:40] Speaker 00:
right to point out this rewrite of the specification by SMART in their opening brief.

[00:25:45] Speaker 00:
We called them out, and it was 25 times.

[00:25:48] Speaker 00:
They rewrote, defaulted to predefined values.

[00:25:51] Speaker 05:
I didn't point it out.

[00:25:52] Speaker 05:
I just pointed out that you said it.

[00:25:54] Speaker 00:
Very good.

[00:25:55] Speaker 00:
Thank you.

[00:25:56] Speaker 00:
But we pointed it out, and they rewrote the specification language, defaulted to from predefined values.

[00:26:05] Speaker 00:
And we said, look, you rewrote the specification.

[00:26:07] Speaker 00:
It doesn't say that.

[00:26:08] Speaker 00:
They had an effort.

[00:26:08] Speaker 00:
They wanted to say,

[00:26:10] Speaker 00:
Predefined values means pre-existing values stored in memory.

[00:26:14] Speaker 00:
That was their position they wanted to create.

[00:26:16] Speaker 00:
And the specification doesn't support it.

[00:26:19] Speaker 00:
And the fact that they had to rewrite to or from makes plain that the specification doesn't support it.

[00:26:24] Speaker 00:
And I think it should be well understood that to does not mean from.

[00:26:28] Speaker 00:
To means the opposite of from.

[00:26:30] Speaker 00:
The specification does not say that you have pre-existing or pre-defined values that are sitting there.

[00:26:39] Speaker 00:
The specification says that you can use any manner of generating the data values in any manner consistent.

[00:26:48] Speaker 00:
And it goes on to say that you can generate by programming.

[00:26:53] Speaker 00:
And if you generate by programming, this means that the values do not already exist as stored data because you generated them.

[00:27:00] Speaker 00:
And that's the concept of the invention.

[00:27:02] Speaker 00:
You are generating, producing these signals and data

[00:27:08] Speaker 00:
And they're not really pulled off of a memory and passed and retrieved and passed forward.

[00:27:14] Speaker 00:
So the position rests on an incomplete or an incorrect reading of the specification and, in fact, a rewriting of the specification.

[00:27:23] Speaker 00:
In other words, two versus from.

[00:27:25] Speaker 00:
And frankly, I don't think there's any reply from SMART on this point.

[00:27:30] Speaker 00:
They buried it in a footnote four in their reply.

[00:27:33] Speaker 00:
And the only response that they said is, well, it doesn't matter.

[00:27:38] Speaker 00:
Be it to or from the key phrase is predefined if I have that right from from their footnote for And it does matter They're arguing it.

[00:27:50] Speaker 00:
Well.

[00:27:51] Speaker 00:
You know you're calling out that we wrote the spec But it doesn't matter if we would change the word to for to the word from and we submit that it very much does matter Those words are the opposite of each other

[00:28:03] Speaker 00:
And they're trying to create a story that pre-defined values means pre-existing value stored in memory, but it's not supported by the specification.

[00:28:13] Speaker 00:
You can't rewrite the specification of to, to from.

[00:28:17] Speaker 00:
So with that, Your Honor, we submit that the board's decision is well-reasoned, it's supported, and we therefore respectfully submit that the decision should be affirmed.

[00:28:31] Speaker 00:
Do you have no further questions?

[00:28:33] Speaker 00:
Thank you.

[00:28:43] Speaker 03:
On page 142 of the appendix, Smart stated its construction and has never abandoned that construction.

[00:28:49] Speaker 03:
Sorry?

[00:28:49] Speaker 03:
On page 142 of the appendix, Smart stated its construction and has never abandoned that construction.

[00:28:54] Speaker 03:
It cited the language defaulted to predefined values with the citations to the specification.

[00:29:01] Speaker 03:
Now, in an argument from counsel, we heard about data received, but the claims require signals to be generated.

[00:29:09] Speaker 03:
Signals are generated and signals are transmitted.

[00:29:11] Speaker 03:
That is what the claim is.

[00:29:13] Speaker 03:
It is, you know, op codes, yes, are data, but they're transmitted on signals.

[00:29:19] Speaker 03:
And the signals are being generated by the controller.

[00:29:23] Speaker 03:
And it says that those signals include or they may be defaulted to predefined values.

[00:29:31] Speaker 03:
The data in the memory is data.

[00:29:34] Speaker 03:
The signals don't exist until that data is read, put onto a signal, and transmitted out.

[00:29:41] Speaker 03:
And that is the generating step.

[00:29:43] Speaker 03:
That is what was not appreciated in the claim construction by the board.

[00:29:49] Speaker 03:
That is what needs to be within the construction.

[00:29:51] Speaker 03:
Whatever the construction is, cause, create, initiate.

[00:29:57] Speaker 03:
It's all the same.

[00:29:58] Speaker 03:
It has to include creating a signal.

[00:30:02] Speaker 05:
The trouble with your argument is that it assumes a result based on your wishes rather than on anything to which you're referencing when you say that data is signal and signal is data.

[00:30:25] Speaker 03:
Let me be clear.

[00:30:26] Speaker 03:
Data is not signal and signal is not data.

[00:30:30] Speaker 03:
physical item that is transmitted, an electromagnetic signal.

[00:30:34] Speaker 03:
Data is information.

[00:30:35] Speaker 03:
It is not the signal.

[00:30:36] Speaker 03:
Those are two different things, and we've been very clear in our briefs.

[00:30:39] Speaker 03:
Those are two separate things.

[00:30:41] Speaker 03:
The signal is generated.

[00:30:42] Speaker 03:
And my time is up.

[00:30:44] Speaker 01:
Thank you.

[00:30:45] Speaker 01:
We thank both sides and the case is submitted.