[00:00:00] Speaker 02: Oh, versus Vicar, 2016-22-88. [00:00:04] Speaker 02: Before you begin, Mr. Ryan, it's not relevant to the issues that you're arguing, but have these patents expired? [00:00:14] Speaker 02: They all go back to January 1997. [00:00:16] Speaker 01: They've not expired yet. [00:00:20] Speaker 01: I think they run through next year. [00:00:24] Speaker 03: Because of patent term adjustment? [00:00:26] Speaker 01: I believe so. [00:00:27] Speaker 03: On one of them, but not on two of them. [00:00:29] Speaker 03: I think the 290 has about a half a year of adjustment. [00:00:34] Speaker 01: Right. [00:00:35] Speaker 01: I've been corrected. [00:00:35] Speaker 01: The provisional runs from 1997. [00:00:37] Speaker 01: The original application runs from 1998, so they have not expired as a consequence. [00:00:45] Speaker 01: I'm going to start with the secondary consideration issue because Judge Chen asked earlier whether there's an inconsistency there. [00:00:57] Speaker 01: And I want to start out with the Nexus inquiry because, as this court held in WBIP, there is a presumption of Nexus where the patentee shows that the asserted objective evidence is tied to a specific product. [00:01:14] Speaker 01: And that product is the invention disclosed and claimed in the patent. [00:01:18] Speaker 04: My understanding of WBIP is consistent with DEMACO, which is when the claimed invention is the product being commercialized and when the commercial product is [00:01:27] Speaker 04: the claimed invention, i.e. [00:01:29] Speaker 04: coextensiveness. [00:01:31] Speaker 04: So to the extent your claim is identical to the product, then you get the presumption of nexus. [00:01:40] Speaker 04: Okay, now where did you make that argument below? [00:01:43] Speaker 01: Well, we did argue that below the products that are at issue in these claims. [00:01:49] Speaker 01: are the commercially successful products in the marketplace. [00:01:53] Speaker 01: And the board looked at that and found that they do indeed map very closely to the patent claims that issue here. [00:02:01] Speaker 04: But there wasn't a finding by the board that I could see where they said, yes, the claimed invention is coextensive to the products. [00:02:15] Speaker 04: I wonder how it could be when we've got so many different claims flying around here with different permutations of the basic IBA architecture. [00:02:23] Speaker 01: The question always is whether the claims are reasonably commensurate with the commercially successful products and other secondary consideration evidence. [00:02:33] Speaker 04: Are we talking about to gain the presumption of nexus? [00:02:38] Speaker 01: Well, again, that is the basic nexus question. [00:02:41] Speaker 01: As far as to gain the presumption of nexus they have to be [00:02:44] Speaker 01: it has to be as you point out. [00:02:46] Speaker 04: Reasonably commensurate, that is one element of the inquiry. [00:02:49] Speaker 04: Another element is, is it the merits of the claimed invention that are driving the secondary consideration in DISA? [00:02:58] Speaker 04: And now we are left with the switching regulators. [00:03:02] Speaker 04: To what extent are the switching regulators driving all the commercial sales, driving all the praise and copying, et cetera, versus the [00:03:13] Speaker 04: the more basic fundamental intermediate bus architecture, which we now know was fully well known in the prior art. [00:03:22] Speaker 01: Your honor, I respectfully submit that that's an oversimplification. [00:03:26] Speaker 01: The architecture that's the subject of these claims is very specific. [00:03:31] Speaker 01: Let's take the 290. [00:03:32] Speaker 01: It's a non-regulating isolation to stage with synchronous rectification, as you point out. [00:03:37] Speaker 01: In some claims, there are other efficiency enhancing features, such as in the 702, where there's short transitions, or in the 021, where there's substantially uninterrupted power flow. [00:03:48] Speaker 01: And not only that, but these claims at issue all involve switching regulators. [00:03:54] Speaker 01: And it's the combination of all the claim elements that is responsible for the benefits [00:04:01] Speaker 01: in the marketplace. [00:04:02] Speaker 01: Those commercially successful products needed that combination of features. [00:04:06] Speaker 01: That's the core architecture. [00:04:08] Speaker 01: The core architecture is the combination of an isolation stage that's very efficient and non-regulating, and switching regulators that are needed. [00:04:18] Speaker 01: And so it's the combination. [00:04:19] Speaker 01: And what the court found in WBIP is that the evidence doesn't have to be exclusively tied to claim elements that are not in the prior art. [00:04:28] Speaker 01: or in this case not in anticipated claims, requiring patentees to prove that objective evidence is tied to a specific claim element and only that claim element runs counter to the statutory instruction that the obviousness analysis involves determining whether the claimed invention as a whole would have been obvious. [00:04:51] Speaker 04: If you are not suggesting at any time that there is a new combination of old elements, you automatically enjoy Nexus because all the elements combined [00:05:03] Speaker 04: in that particular way happens to be new. [00:05:05] Speaker 01: No, I'm not suggesting that at all. [00:05:07] Speaker 04: I'm suggesting there's something in between going on here. [00:05:10] Speaker 01: You need to look at the claim elements and see how closely intertwined they are, how closely they map to the commercially successful products. [00:05:19] Speaker 01: And that's what the board did in this case, in the 290 case. [00:05:22] Speaker 01: By the way, it also did that in the 021 when it came back on rehearing and found that there was a nexus because those claims closely map. [00:05:30] Speaker 01: Now, that's not the end of the matter, as Your Honor suggested. [00:05:34] Speaker 01: There is the question then as to whether the commercial success derives from that claim combination or whether it derives from something else. [00:05:42] Speaker 01: That something else could be advertising. [00:05:45] Speaker 01: That something else might be the prior art. [00:05:49] Speaker 01: But here the benefits do not derive from the prior art, not from Steigerwald for certain. [00:05:55] Speaker 01: Steigerwald is a very specific post application that has a very different objective. [00:06:01] Speaker 01: And the efficiency benefits and the other space savings benefits are not traceable to Steigerwald. [00:06:08] Speaker 01: What the board found is that the benefits here are directly traceable to that novel combination. [00:06:15] Speaker 01: And that's what the court found in WBIP. [00:06:17] Speaker 01: You don't just have to look at it. [00:06:20] Speaker 01: If the dependent claim feature was make it red, then I would agree with you. [00:06:25] Speaker 01: that the benefits are not traceable to that dependent feature. [00:06:29] Speaker 03: Can I ask you, what evidence did you have that said, we have commercial success, we have other forms of non-art indicia that are stronger for some of these claims than, for example, the anticipated 190? [00:06:49] Speaker 01: Well, first of all, it wasn't necessary to make that argument. [00:06:54] Speaker 03: Well, it may have turned out to be necessary. [00:06:56] Speaker 01: Well, we're talking about reexaminations here. [00:06:59] Speaker 01: In the 290, we dealt with the claims of the 290. [00:07:01] Speaker 01: In the 021, we dealt with the claims of the 021. [00:07:04] Speaker 03: Each of the same nation. [00:07:06] Speaker 03: I think you understand the point. [00:07:07] Speaker 03: There's a very simple, almost syllogism, I don't know if syllogism, anyway, simple typological argument. [00:07:14] Speaker 03: And I don't know which part of this is wrong. [00:07:17] Speaker 03: You made a set of secondary considerations arguments equally applicable to [00:07:24] Speaker 03: All of the claims in all of these patents, some of them are now adjudicated to be in the prior art, so you don't have anything left. [00:07:31] Speaker 01: Your Honor, we did not make that broad-based argument that Ficor suggested we made. [00:07:36] Speaker 01: What we pointed out in these reexaminations is that the [00:07:41] Speaker 01: the secondary considerations were traceable to the trial claims, the claims in the 190 trial, such as claim two, which the board found... I thought there was a claim chart in one of these cases where you lined up your patent claim against the 190 patent claim and then it turned out, whoops, [00:08:01] Speaker 04: that 190 patent claim turned out to be anticipated. [00:08:04] Speaker 01: The board did that in its decision. [00:08:06] Speaker 01: That claim was claim two of the 190. [00:08:08] Speaker 01: That claim has not been found to be anticipated. [00:08:11] Speaker 01: That claim has switching regulators. [00:08:13] Speaker 01: The board found that that claim maps very closely to the 290 claims. [00:08:17] Speaker 01: The board did that based on the evidence and arguments that were made. [00:08:21] Speaker 01: We never mapped the 290 claims to any of the anticipated claims, and we didn't try a case involving those claims that were found to be anticipated. [00:08:29] Speaker 01: The trial claims were narrower. [00:08:32] Speaker 01: We selected claims that we thought were appropriate at trial, and all the secondary consideration evidence was tied to the trial claims. [00:08:39] Speaker 04: When you say the trial claims, what are we talking about here? [00:08:43] Speaker 04: Are we talking about the trial that led to the Federal Circuit opinion in 2013? [00:08:49] Speaker 01: Yes, that's correct. [00:08:50] Speaker 01: And those claims, the claims that were asserted, involved certain claims, not all from the 190, certain claims from the 702, which are in fact at issue in the 702 reexamination. [00:09:03] Speaker 04: And when it came to the secondary consideration evidence, I don't remember anything being highlighted in particular in the opinion other than commentary about the two-stage architecture being [00:09:18] Speaker 04: a basis for all the commercial success you enjoyed. [00:09:23] Speaker 01: The arguments that were made, both to Judge Gilstrap and to the Court of Appeals, took the secondary consideration evidence and mapped it to the claims that were tried in that case, said that they were closely intertwined, pointed out that the key features were a very efficient [00:09:41] Speaker 01: non-regulating isolation stage called a bus converter that had efficiency-enhancing features, such as short transitions, such as, in the case of the O-21, substantially uninterrupted power flow. [00:09:53] Speaker 01: We also pointed out that they all have, every one of the successful systems has switching regulators. [00:09:59] Speaker 01: So we did link the secondary consideration evidence to all the claim limitations, including claim limitations that are absent from the claims that were found anticipated. [00:10:10] Speaker 01: Those claims that were found anticipated were not in the trial. [00:10:13] Speaker 01: And we did not ever tie the secondary consideration evidence to those claims. [00:10:19] Speaker 01: Vicor is basically taking undue liberty with the statement about the architecture. [00:10:24] Speaker 01: The architecture that was described was not just any old two-stage architecture. [00:10:29] Speaker 01: It was a very specific architecture that involved an unregulated bus converter as that term became known in the industry. [00:10:36] Speaker 01: As that term became known, [00:10:38] Speaker 01: that bus converter had synchronous rectification. [00:10:40] Speaker 01: And it had efficiency enhancing features, such as short transitions, such as substantially uninterrupted power flow. [00:10:48] Speaker 02: And it also- Mr. Ryan, do you want to get to any of the obviousness specific rejections before you sit down? [00:10:55] Speaker 02: Yes. [00:10:56] Speaker 01: The anticipation of rejection, I think, that they made was dead wrong. [00:11:01] Speaker 01: They originally based their anticipation argument [00:11:06] Speaker 01: a sentence or two in Stagerwald, which has nothing to do with the power flow through the secondary winding circuit. [00:11:14] Speaker 01: And the claims here require substantially uninterrupted power flow through the secondary winding circuit, among other things. [00:11:20] Speaker 01: So the board and the examiner just missed that point. [00:11:23] Speaker 01: And on our petition for rehearing, we pointed that out yet again. [00:11:27] Speaker 01: And they finally addressed the issue of why or how there could be substantially uninterrupted power flow in the secondary winding circuit. [00:11:34] Speaker 01: And they pointed to average current. [00:11:36] Speaker 01: But even Vicor doesn't try to defend their position in this appeal because it's dead wrong. [00:11:42] Speaker 01: And so the independent claims need to be remanded because the board made the wrong decision. [00:11:47] Speaker 01: Now on the dependent claims that are at issue here, one of them involves switching regulators. [00:11:53] Speaker 01: And the secondary consideration evidence does tightly map to the entire claim, including the switching regulators. [00:12:02] Speaker 01: I will reserve for my rebuttal the point that the board actually, in this reexamination, applied the wrong rationale with respect to secondary considerations, which differentiates this case. [00:12:16] Speaker 02: That doesn't sound like rebuttal. [00:12:18] Speaker 01: Well, I'd love to go into it. [00:12:20] Speaker 01: I'm running short of time. [00:12:22] Speaker 02: Time management is important. [00:12:25] Speaker 01: Right. [00:12:25] Speaker 01: In this specific reexamination, the board was confused between resistance, which leads to inefficiency or power dissipation, and inductance, which would frustrate the whole objective of providing power quickly when it's needed. [00:12:43] Speaker 04: That's the basis for combining pressmen with stargulls, right? [00:12:45] Speaker 01: Right. [00:12:45] Speaker 01: And so the board was confused in this one between induction and resistance. [00:12:51] Speaker 01: And when we pointed that out, [00:12:52] Speaker 01: Because that was the basis of their decision that, OK, you can add resistance. [00:12:56] Speaker 01: So you can also add more resistance. [00:12:59] Speaker 01: You can add an inductor. [00:13:01] Speaker 01: But they're two different animals. [00:13:02] Speaker 01: And that's how they got confused. [00:13:03] Speaker 01: And that was also true in the final board decision on the petition for rehearing. [00:13:08] Speaker 01: They continued to be confused. [00:13:09] Speaker 01: And that's why they reached the wrong result. [00:13:12] Speaker 02: Thank you. [00:13:12] Speaker 02: We will save you two and a half minutes. [00:13:15] Speaker 02: Mr. Smith. [00:13:21] Speaker 00: Thank you, Your Honors. [00:13:22] Speaker 00: I'd like to start with the issue of the substantially uninterrupted power flow. [00:13:29] Speaker 00: Mr. Ryan just said that the claim requires substantially uninterrupted power flow through the primary and secondary winding circuits. [00:13:37] Speaker 00: And that's not quite the claim language. [00:13:41] Speaker 00: The claim language is, in claim one, a control circuit which controls the duty cycle of the primary winding circuit [00:13:48] Speaker 00: the duty cycle causing substantially uninterrupted flow of power through the primary and secondary winding circuits during the normal operation. [00:13:58] Speaker 00: And there's a key, I think, claim construction issue here brewing. [00:14:04] Speaker 00: And that issue is whether or not this language actually requires these power converters to be in operation hooked up in supplying power to something [00:14:15] Speaker 00: but whether this is really about the design of the circuit. [00:14:20] Speaker 00: The language, substantially uninterrupted flow of power, I think, in the case, if we were talking about it delivering power to something that's using it, doesn't really make any sense. [00:14:31] Speaker 00: Because nobody would ever want a power supply system as these are, where the power flow is interrupted and your computer is blinking on and off or something. [00:14:40] Speaker 00: It makes a lot more sense when you were talking about the design of the converter itself and how it would operate in normal operation. [00:14:50] Speaker 00: And the way we can conceptualize this, I think, is sort of as a delivery system, if you imagine, for water, which can be analogized to power. [00:15:02] Speaker 00: At the end of the line where the customer is using the power, where you're plugging in to the power supply, [00:15:08] Speaker 00: You want to be able to just sort of turn on a faucet whenever you want to and get power out as you will. [00:15:13] Speaker 00: But in the actual facilitation of the system, in Steigerwald and in the 021 patent, we've got what are essentially people filling up buckets of power and putting them on a conveyor belt. [00:15:27] Speaker 00: These are the transistors that are switching and driving the transformer. [00:15:31] Speaker 00: Every time those transistors switch, we get a bucket of water. [00:15:35] Speaker 00: Imagine you put that on a conveyor belt. [00:15:37] Speaker 00: What the claims require here is that there be essentially no spacing between those buckets of water. [00:15:44] Speaker 00: So the buckets of water go down the line, then they get dumped into a tank. [00:15:47] Speaker 00: At the bottom of the tank there's a faucet. [00:15:49] Speaker 00: The person who is using that water eventually just is able to use it as well if the tank is big enough and designed in the proper way. [00:15:58] Speaker 00: But you can also separate those buckets of water [00:16:03] Speaker 00: in this case, not drive the transformer continuously, but have spacing in there where you're not putting power into the system. [00:16:11] Speaker 00: It's a very legitimate design philosophy. [00:16:15] Speaker 00: Now, when those buckets arrive at the end to the customer, they still get dumped into the tank. [00:16:20] Speaker 00: And what the customer, the user of the system, experiences is uninterrupted power flow as a user. [00:16:27] Speaker 00: But in the primary and secondary winding circuits, [00:16:32] Speaker 00: the buckets have spacing between them. [00:16:33] Speaker 00: Why would you do that? [00:16:34] Speaker 00: Because there's some overhead in the circuit you need to take care of, and that spacing gives you time to do it. [00:16:39] Speaker 00: And people design circuits that way. [00:16:41] Speaker 00: That's what this means. [00:16:43] Speaker 00: And the reason that's important is all of the argument about the current that the loads are using is really irrelevant. [00:16:51] Speaker 00: What's relevant is what the board actually found based on Stagerwald, that the transistors driving the transformer [00:16:59] Speaker 00: are operating with a complementary 50% duty cycle, which means when one transistor is off, the other is on, there is always power being input, where in our analogy, the buckets have absolutely no spacing between them at all in the Steyr-Wald system. [00:17:16] Speaker 00: And it works the same way in the 021 patent. [00:17:19] Speaker 00: That's what we're really talking about. [00:17:22] Speaker 00: And that's why we believe that regardless of what one finds with the rehearing decision, [00:17:28] Speaker 00: and the board's finding regarding the I0 current, it just doesn't matter because the claim doesn't require anybody to analyze what the power flow that is experienced by the user actually is. [00:17:46] Speaker 00: I want to address also some of the questions that came up. [00:17:49] Speaker 04: Can you just talk a little bit about the average current discussion and the rehearing decision? [00:17:54] Speaker 00: I can, absolutely. [00:17:55] Speaker 04: What should we do about it? [00:17:58] Speaker 04: Regardless of how it got there, who triggered it, what do we do with it now? [00:18:03] Speaker 00: I think you don't need to decide anything about it, because I think the board's finding regarding Stagerwald, which I just went through the 50% duty cycle, the fact that Stagerwald teaches effectively that the input of the converter is always connected to the output meets the claim language. [00:18:20] Speaker 00: In other words, as a matter of law, the finding about the current that is actually flowing through in specific applications [00:18:26] Speaker 00: is simply not relevant to whether the claim language is invalid over the Steigerwald reference. [00:18:33] Speaker 04: So just stay focused on figure 1 of the 090, and don't worry about this discussion of figure 2 and the 539. [00:18:42] Speaker 00: I think you absolutely can do that, Your Honor. [00:18:45] Speaker 00: Yes. [00:18:45] Speaker 00: I don't think the claim language requires what SYNCOR is arguing it requires. [00:18:52] Speaker 00: It only requires something about the design of the circuit [00:18:55] Speaker 00: not the way it is used in Stagerwald's application. [00:19:01] Speaker 04: What about Figures 8 and 9 and Figures 10? [00:19:04] Speaker 00: Figures 8, 9, and 10, the argument that SYNCOR brought up about why there would be substantial interruption, were brought up for the first time in the re-hearing request to the board. [00:19:16] Speaker 00: So to the extent that the board addressed or did not address it, I think the board was free to ignore that, because the argument simply hadn't been made before. [00:19:24] Speaker 00: The argument that SYNCOR had made before was this sort of load argument that I've been talking about, where the devices that are plugged into the power supply system may or may not be demanding power at any point in time. [00:19:39] Speaker 00: And this is sort of a critical distinction, I think, that runs through [00:19:43] Speaker 00: all of these cases that deal with Stagerwald. [00:19:46] Speaker 00: We talk sometimes a little bit loosely about pulsed outputs or non-pulsed outputs. [00:19:52] Speaker 00: The outputs are essentially all the same, although they are at different voltage levels. [00:19:58] Speaker 00: What matters is the device you plug into it and what that device is doing. [00:20:02] Speaker 00: At the pulsed output, the device is simply going on and off. [00:20:07] Speaker 00: So it demands power, and then it doesn't demand power. [00:20:09] Speaker 00: Then it demands it, and then it doesn't [00:20:11] Speaker 00: At the other outputs, you've got more traditional DC devices like computer equipment that might demand it intermittently sometimes, but that might also demand a steady flow. [00:20:21] Speaker 00: It's just that Steigerwald expects that somebody's going to plug something pulsed into that V1 output. [00:20:26] Speaker 00: But it's not like the Steigerwald system is delivering pulses down the line or anything like that. [00:20:31] Speaker 00: It's responding to what the load wants. [00:20:33] Speaker 00: The system is designed to supply whatever power supply current is necessary to the loads. [00:20:38] Speaker 00: And I think that's an important distinction for the discussion [00:20:40] Speaker 00: that we've had here today. [00:20:42] Speaker 00: So I think that ultimately the discussion about I-0 that the board added into the rehearing decision, and we certainly can see that that's a new finding in the rehearing decision, is just not relevant to the overall decision that the board made, which can be fully supported by the finding [00:21:02] Speaker 00: that was present since the re-examination request argued in every paper all the way through in the board's first and second hearings about Stagerwald, the nature of the duty cycle, and the fact that the input is always connected to the output. [00:21:16] Speaker 00: I do think that the board's finding [00:21:19] Speaker 00: And this is going beyond your assumption, regardless of who argued it first and the circumstance under which they argued it. [00:21:26] Speaker 00: I do think the board's finding was predicated on Sincora's assumption that you see brought up on appendix pages 127 to 128, that figure two represents the operation of Steigerwald. [00:21:38] Speaker 00: If you read Sincora's argument there, they're not making a careful distinction by saying, yes, figure two is prior art. [00:21:46] Speaker 00: We're just using it as an example of Paul's load. [00:21:48] Speaker 00: They're actually glossing over the fact that figure two is represented as prior art and saying that that represents the operation of Stagerwald. [00:21:56] Speaker 00: I think the board was free in that circumstance to adopt that assumption, argue and do as it were, and then reason from there to find consequences. [00:22:05] Speaker 00: I think it's perfectly permissible for the board [00:22:07] Speaker 00: to adopt a party-initiated hypothetical and then see what happens from there. [00:22:12] Speaker 00: And that's a circumstance, I think, that the board did do that. [00:22:15] Speaker 00: But the board's primary finding was the 50% duty cycle, and its opinion can be sustained based on that. [00:22:24] Speaker 00: I do also want to address some of the arguments that came up during the colloquy regarding secondary considerations. [00:22:36] Speaker 03: So can you be very specific about what I took to be at least the very simple version of your main point about secondary considerations, which is SYNCOR presented secondary considerations, evidence and argument, which SYNCOR said was equally applicable to this universe of patent claims, including ones that we now know [00:23:04] Speaker 03: simply describe the prior art and didn't make any distinctions so that one has to draw the inference that whatever the success was and the praise, et cetera, was due to the prior art. [00:23:20] Speaker 03: So where did they say that in a way that nails that down, if I've just summarized things correctly? [00:23:27] Speaker 00: That is correct. [00:23:28] Speaker 00: There are a couple of nuances that I would add. [00:23:31] Speaker 00: And then I'll answer the question about where they said that. [00:23:34] Speaker 00: So throughout all of the SYNCOR cases, and I'm including what we're calling the SYNCOR 1 trial in East Texas that eventually went up to this court in 2013, the reexaminations, up until the point where this court issued its 2013 ruling, SYNCOR's position was that all of the claims in each of its patents were entitled to the full benefit of the secondary considerations evidence. [00:23:59] Speaker 00: And that's been modified somewhat to 2015. [00:24:03] Speaker 00: opinion coming out at a time where it wasn't really possible to brief it to the board except on rehearing. [00:24:10] Speaker 00: So now we see a modification to that. [00:24:13] Speaker 00: I think there are a couple of nuances to that. [00:24:17] Speaker 00: One is that to the extent SYNCOR ever did emphasize features, what they really emphasized was the separation of stages. [00:24:27] Speaker 00: You can still see that in their briefing now. [00:24:29] Speaker 00: But you can see it in the claim chart, for example, that they showed to the jury in East Texas, which I think is on page 30 of our brief, or maybe, that's sorry, page 30 in the prior case, where they group the 702.02.1 of 190 patent and say, this is a non-regulating, isolating converter connected to multiple outputs that are regulating. [00:24:51] Speaker 00: That sort of argument ran all the way through that trial. [00:24:54] Speaker 00: Where it really gets nailed down, I think, is in the briefing to the board in the prior case. [00:25:00] Speaker 00: And Mr. Ryan said, hey, look, nobody ever challenged us on this before. [00:25:04] Speaker 00: Nobody ever asked us to parse out one claim for another and say which one is really driving the secondary considerations evidence. [00:25:12] Speaker 00: And I don't think that's accurate. [00:25:13] Speaker 00: If you read the briefing that we quote from the 290 patent case, the appeal that you just heard, where Sincor argues that [00:25:24] Speaker 00: the 290 patent is entitled to the benefit of the secondary considerations that attach to the 190 patent before some of its claims were anticipated. [00:25:33] Speaker 00: And if you look at the board's finding in that regard, SYNCOR is really responding to ViCOR pushing it to say, hey, which of these claims are responsible for which parts of the success? [00:25:45] Speaker 00: Because you've got over six patents, 185 claims. [00:25:49] Speaker 00: Some of them are mutually inconsistent. [00:25:52] Speaker 00: For example, from the 2013 decision, this court decided the validity over a 103 challenge of claim 9 of the 034 patent. [00:26:02] Speaker 00: Claim 9 of the 034 patent requires a semi-regulating front end, which seems to me to be mutually inconsistent, mutually exclusive of an unregulated front end. [00:26:14] Speaker 00: And I think it is accurate to say that that opinion talked about the separation [00:26:20] Speaker 00: the power architecture into stages and focused on that. [00:26:24] Speaker 00: So we pushed SYNCOR on that. [00:26:26] Speaker 00: And SYNCOR's response to that was, look, nobody, not even the Federal Circuit, has ever tried to parse these things. [00:26:32] Speaker 00: It is always attached to all the claims in all of the cases. [00:26:36] Speaker 00: And that's the briefing that we quote from the 290 Patent. [00:26:38] Speaker 00: And I think that's where we really nail down where SYNCOR is tying specifically all of its claims together and all of its claims to a [00:26:50] Speaker 00: common set of features that's really based in the division of stages that's common through all of the claims and all of the patents. [00:26:59] Speaker 00: Does that answer the question? [00:27:01] Speaker 00: So far, yes. [00:27:02] Speaker 02: Thank you. [00:27:02] Speaker 02: Thank you. [00:27:04] Speaker 02: You want to continue? [00:27:05] Speaker 02: You have a minute plus. [00:27:08] Speaker 00: Thank you very much. [00:27:09] Speaker 00: I want to make one last comment in response to what Mr. Ryan said on the presumption of nexus and the efficiency enhancing features [00:27:17] Speaker 00: I assume these are efficiency enhancing features in the stage that involves synchronous rectification. [00:27:26] Speaker 00: And I just want to point out that even among the three patents we have here today, those efficiency enhancing features allegedly are all different parts, sorry, are different in each of the claims that we have in each of the patents today. [00:27:40] Speaker 00: So for example, you'll find the 702 patent, which was the subject of the first case, has a [00:27:47] Speaker 00: relatively more narrow description of the synchronous rectification. [00:27:51] Speaker 00: The transformer can't be driven into saturation. [00:27:54] Speaker 00: It requires short transitions. [00:27:56] Speaker 00: All of these things, by the way, are found in the prior art. [00:27:58] Speaker 00: That's why we're not arguing about them today as potential distinctions over the prior art. [00:28:03] Speaker 00: But the 290 patent is broader than that. [00:28:06] Speaker 00: It's missing some of those features. [00:28:07] Speaker 00: The 021 patent we have today has this substantially uninterrupted [00:28:12] Speaker 00: flow of power which isn't in the other two. [00:28:14] Speaker 04: I do have one last quick question. [00:28:15] Speaker 04: Hopefully you can give me a quick answer. [00:28:17] Speaker 04: In this particular case, the board found, yes, there's a motivation to add a switching regulator to Steigerwald because of what we said in the 2015 Federal Circuit opinion. [00:28:33] Speaker 04: And it appeared to me in the initial decision that there was some confusion on the board's part between [00:28:41] Speaker 04: inductors and synchronous rectifiers and what they include, which do not include inductors. [00:28:48] Speaker 04: And then on the rehearing decision, the board came back and said something about how Pressman talks about higher efficiency. [00:28:56] Speaker 04: Steigerwald talks about don't put an inductor in my system. [00:29:00] Speaker 04: And then the board appeared to just go with Pressman there. [00:29:07] Speaker 04: What am I supposed to understand the board's actual finding to be? [00:29:11] Speaker 00: Here's what I understood from that, that the motivation was the efficiency from Pressman. [00:29:17] Speaker 00: There was testimony, which I think they referred to in the rehearing decision, that synchronous rectification would actually be less efficient, which I think factually is just wrong, but there was that testimony there. [00:29:29] Speaker 00: Then they pointed out the Federal Circuit's decision from 2015 to say synchronous rectification is actually a part of [00:29:36] Speaker 04: Stagerwald's embodiment, meaning despite this argument that CINCOR has put forward that it would be less efficient... Do you agree that the board's finding here on this particular score directly conflicts with the board's finding in the prior appeal with the 290 patent and the combination of pressmen switching regulator to Stagerwald? [00:29:58] Speaker 04: Adding a switching regulator. [00:30:00] Speaker 00: Same answer I gave last time. [00:30:01] Speaker 00: I think there are certain slight differences in the record, but I think it's generally difficult to reconcile. [00:30:08] Speaker 00: Thank you very much. [00:30:08] Speaker 02: Thank you. [00:30:09] Speaker 02: Mr. Smith, Mr. Ryan has two and a half minutes of rebuttal time. [00:30:23] Speaker 01: very quickly, hopefully, on the substantially uninterrupted power flow point. [00:30:30] Speaker 01: They are mischaracterizing our argument. [00:30:32] Speaker 01: Our argument was not tied to the load. [00:30:34] Speaker 01: Our argument was always that the language that they pointed to, the language about two different complementary duty cycles, did not tell you whether there's power flowing in the secondary winding circuit. [00:30:47] Speaker 01: And by the way, VICOR admits as much in its brief, because it points to the same language [00:30:53] Speaker 01: in SYNCOR's patents. [00:30:55] Speaker 01: And this is what SYNCOR's patent says about power flow. [00:30:57] Speaker 01: It says, since during normal operation, the isolation stage is operated at a fixed duty cycle in which power is always flowing from input to output except during the brief switch transitions. [00:31:11] Speaker 01: So that's a statement that there is not a continuous power flow. [00:31:15] Speaker 01: In SYNCOR's patents, there were interruptions in the power flow during the brief switch transitions. [00:31:22] Speaker 01: They were brief because SYNCOR designed them to be brief. [00:31:25] Speaker 01: But how brief are they in Steigerwald? [00:31:27] Speaker 01: Steigerwald doesn't tell you. [00:31:29] Speaker 01: So what we know is that this cross-coupling language does not tell you there's continuous power flow. [00:31:35] Speaker 03: Substantially continuous? [00:31:36] Speaker 01: No, you don't know that. [00:31:38] Speaker 01: I mean, the way that SYNCOR designed its converters, it was substantially uninterrupted. [00:31:43] Speaker 01: But Steigerwald doesn't tell you how long the interruptions are at all. [00:31:48] Speaker 01: It doesn't even indicate it had an incentive to make them substantially uninterrupted. [00:31:53] Speaker 01: And nor would there be such an incentive when you're dealing with pulse loads. [00:31:57] Speaker 01: And so there's a failure of proof on the issue of whether there's substantially uninterrupted power flow. [00:32:02] Speaker 01: And the SYNCOR patent itself makes that clear. [00:32:06] Speaker 01: So that's why the board went to this average current thing, which even Vicor doesn't attempt to defend. [00:32:12] Speaker 01: And that's the problem with the board's analysis. [00:32:14] Speaker 01: It's flawed. [00:32:15] Speaker 01: It needs to be reversed. [00:32:16] Speaker 01: Now let me get to secondary considerations. [00:32:20] Speaker 01: I think it's fair to say that nexus is not binary. [00:32:24] Speaker 01: There can be a close nexus. [00:32:25] Speaker 01: There can be a distant nexus. [00:32:29] Speaker 01: There are supersets. [00:32:30] Speaker 03: Can I just ask you to? [00:32:33] Speaker 03: Talk to me about figures 10E and 10F of Steigerwald 539. [00:32:37] Speaker 01: Yes. [00:32:40] Speaker 01: I think of them in terms of, I don't have, I think of them as figure 7, 8, and 9. [00:32:44] Speaker 01: And in figure 7 and 8, there clearly are substantial interruptions when the sinkwrecks are turned on and off. [00:32:52] Speaker 01: And in figure 9, the evidence was that that circuit. [00:32:55] Speaker 03: Well, I'm not sure we're on the same page. [00:32:56] Speaker 03: That's what I'm looking at. [00:32:58] Speaker 01: Yes. [00:32:58] Speaker 03: They make an argument, right? [00:33:00] Speaker 03: They make an argument that if you line those up properly, that is, in fact, showing something substantially uninterrupted. [00:33:10] Speaker 01: And they're pointed to 10F. [00:33:12] Speaker 01: And for that, the evidence was that that circuit won't work. [00:33:15] Speaker 01: VICOR said, well, it will work because if you have leakage inductance, it will work. [00:33:20] Speaker 01: But VICOR didn't attempt to explain how much leakage inductance you would need in order to make it work. [00:33:27] Speaker 01: And the specification of Steigerwald says that leakage inductance should be kept to a minimum, because inductance is a negative. [00:33:35] Speaker 01: And so the evidence before the board was that that wouldn't work. [00:33:38] Speaker 01: The board did not reach that issue. [00:33:39] Speaker 01: And so it would be improper for this court to conclude that 10F shows substantially uninterrupted power flow when the board didn't make that finding and there was disputed evidence as to whether that works at all. [00:33:50] Speaker 02: Do you want to make a brief comment on secondary considerations? [00:33:53] Speaker 01: I would, Your Honor. [00:33:53] Speaker 01: On Nexus, if you have a superset, [00:33:56] Speaker 01: to take a mathematical example that's very broad. [00:34:00] Speaker 01: You might say that there's a nexus, but the nexus is weak. [00:34:03] Speaker 01: If you have a more precise claim, such as the claims in issue here, that are carefully tailored to the commercially successful products in the field, and the products that were copied, and the products that were the subject of praise, you would say that the nexus is very close. [00:34:19] Speaker 01: And that's what the board was asked in this proceeding. [00:34:22] Speaker 01: Is there a nexus? [00:34:23] Speaker 01: The board found, as a matter of fact, and FICOR concludes, it's a factual issue, that there was a nexus. [00:34:28] Speaker 01: And there was no show that the secondary considerations were the result of Steigerwald or any other prior art. [00:34:36] Speaker 01: The board addressed that issue. [00:34:37] Speaker 01: It found a nexus. [00:34:39] Speaker 01: It found that the secondary considerations in this case, in the 021, was persuasive. [00:34:43] Speaker 01: In the 702, it called it extremely compelling. [00:34:47] Speaker 01: In the 290, it also found it relevant. [00:34:49] Speaker 01: In every one of these board proceedings, the board found there was a nexus and that the secondary considerations were indeed tied to that nexus. [00:34:58] Speaker 01: There's no basis to overturn that just because some anticipated claim was anticipated. [00:35:04] Speaker 01: Our arguments were not directed at those anticipated claims. [00:35:07] Speaker 01: Thank you, counsel. [00:35:08] Speaker 02: We will take the case under advisement. [00:35:10] Speaker 02: Thank you.