[00:00:00] Speaker 08:
Good morning, everyone.

[00:00:02] Speaker 08:
The first argued case or group of cases this morning, we have consolidated the appeals.

[00:00:09] Speaker 08:
Our ultra tech incorporated against captioned call.

[00:00:14] Speaker 08:
Ms.

[00:00:15] Speaker 08:
Noll.

[00:00:20] Speaker 08:
We encourage you and I imagine that you're planning to talk first about the

[00:00:27] Speaker 08:
areas, the specific area that's common to all of these cases, and then to point out to us as far as the distinctions among them are concerned to make sure that we know what you think are the most important issues.

[00:00:41] Speaker 03:
Fair enough, Your Honor.

[00:00:42] Speaker 08:
Okay.

[00:00:43] Speaker 08:
Proceed.

[00:00:44] Speaker 03:
May it please the Court.

[00:00:45] Speaker 03:
My name is Kristen Noel.

[00:00:47] Speaker 03:
I'm from the law firm of Coral's and Brady and Madison, Wisconsin.

[00:00:50] Speaker 03:
I'm appearing on behalf of the appellant, Ultra Tech, with me at council table is my partner, Martha Snyder.

[00:00:58] Speaker 03:
Within and across these nine appeals, UltraTech has raised a wide number of issues with the PTAB's handling of the IPRs.

[00:01:10] Speaker 03:
We obviously won't have time to hit upon all those issues, but time permitting, I'm hoping to at least, subject to the court's questions, touch upon secondary considerations of non-obviousness, the construction of trained to the voice

[00:01:27] Speaker 03:
because that term is recited in six of the eight patents and the construction of captioned telephone device as that term is specifically used and claimed in the 082 patent.

[00:01:40] Speaker 03:
I will note that globally, one common thread with all these various issues that Ultratech has raised with the PTAB is that the PTAB, at least in these matters, didn't act as a neutral arbiter.

[00:01:57] Speaker 03:
It didn't always put the proper burden on the petitioner.

[00:02:02] Speaker 07:
Why don't you start with the procedural infirmity that you allege in the PTAB's refusal to allow you to supplement the record with Mr., and tell me if I say his name wrong, Ocho Y Grosso?

[00:02:15] Speaker 02:
I believe it's Ocho Y Grosso.

[00:02:17] Speaker 07:
which we know so which you'll grow so which you'll grow so can not get it right but in any event address why don't you explain to me why you believe there was a procedural infirmity and please tell me the facts I want to understand the facts of what happened because I think unless I'm mistaken this procedural issue extends and covers all the

[00:02:41] Speaker 07:
cases in front of us today.

[00:02:43] Speaker 03:
It does indeed.

[00:02:44] Speaker 03:
It certainly impacts some patents more than other, because there were some inconsistent statements that the board did not allow UltraTech to even offer to the board.

[00:02:56] Speaker 03:
The board to this day still hasn't read them.

[00:02:59] Speaker 03:
And that would specifically refer to the McLaughlin reference and the Ryan reference.

[00:03:06] Speaker 03:
So those references.

[00:03:06] Speaker 07:
But just to be clear, as I understand your argument,

[00:03:09] Speaker 07:
because the board extensively and repeatedly relied on the credibility of this particular expert in every one of the proceedings before it.

[00:03:18] Speaker 07:
I mean, even if they had refused to allow the inconsistent testimony, that could have been a harmless error if they had then gone on and decided this case without reference to the expert.

[00:03:30] Speaker 07:
But in fact, in this case,

[00:03:32] Speaker 07:
they, in dozens and dozens of places across these eight things, said, we rely upon and credit the testimony of.

[00:03:41] Speaker 07:
And in fact, they even said in multiple places, in particular with regard to McLaughlin and then another case, that they credit that testimony over the opposing experts.

[00:03:50] Speaker 03:
That's exactly correct, Your Honor.

[00:03:51] Speaker 07:
So if he really did implode on cross-examination and offer inconsistent testimony, even if it was only with regard to one patent,

[00:04:01] Speaker 07:
Your argument, as I understand it, is that would be an infirmity, though, because of their reliance on his credibility across all patents.

[00:04:08] Speaker 03:
Absolutely, Your Honor.

[00:04:09] Speaker 03:
And so laying the factual framework that Your Honor asked for, these IPRs didn't come out of thin air.

[00:04:16] Speaker 03:
There was an underlying lawsuit in the Western District of Wisconsin where Altertech asserted these eight patents.

[00:04:24] Speaker 03:
And then the companion IPRs were filed by

[00:04:28] Speaker 03:
Sorensen in Caption Call, which is their arm that competes with Ultratech.

[00:04:35] Speaker 03:
And so Mr. Ocho Grosso was obviously cross-examined at trial regarding what these prior art references actually taught.

[00:04:44] Speaker 04:
Did you not have the opportunity to challenge his testimony through the normal process in the IPRs?

[00:04:53] Speaker 03:
So certainly, Ultratech had the opportunity to depose him.

[00:04:58] Speaker 03:
I believe only the very last IPR related to the patent claims 6 and 8 of the 835 patent, which is in appeal 1713.

[00:05:07] Speaker 03:
I believe that's the only deposition that was taken after the inconsistent trial testimony.

[00:05:15] Speaker 07:
I just want to be clear about that.

[00:05:16] Speaker 07:
So you couldn't, in these other cases, you couldn't depose him.

[00:05:22] Speaker 07:
after he offered this inconsistent trial testimony in the IPR because the period of time for that discovery had closed?

[00:05:29] Speaker 03:
Correct.

[00:05:30] Speaker 03:
And in fact, you know, the Ultratech moved the PTAB for leave to file its motion to supplement.

[00:05:37] Speaker 03:
Recall it's a two-part process.

[00:05:39] Speaker 03:
We can't just submit the testimony and say, please supplement the record with this testimony.

[00:05:45] Speaker 03:
We're prohibited by the PTAB to do so.

[00:05:48] Speaker 03:
So we filed a motion for leave to file a motion.

[00:05:52] Speaker 03:
when we cannot get into the substance of the testimony, the substance of the evidence?

[00:05:57] Speaker 07:
He tried to, and it was all stricken from the record.

[00:05:59] Speaker 07:
Correct.

[00:06:00] Speaker 04:
Yeah.

[00:06:01] Speaker 04:
I just want to be clear here.

[00:06:03] Speaker 04:
In the normal process in an IPR, Mr. Ocho Grosso's testimony or deposition, I'm sorry, declaration was submitted.

[00:06:15] Speaker 04:
Correct.

[00:06:17] Speaker 04:
And I assume you had an opportunity to challenge that.

[00:06:21] Speaker 04:
Oh, we did indeed.

[00:06:22] Speaker 04:
In the IPR, in the normal course.

[00:06:26] Speaker 03:
That's correct.

[00:06:27] Speaker 03:
However, his inconsistent testimony at trial before Judge Crabb occurred after that deposition.

[00:06:34] Speaker 04:
I understand that.

[00:06:35] Speaker 04:
But I guess what I'm asking you is, did you not have the opportunity to attempt to obtain the similar inconsistent comments from Mr. Ocho Grosso in the normal process?

[00:06:51] Speaker 03:
Indeed, Your Honor.

[00:06:53] Speaker 04:
Could you depose him in the IPR?

[00:06:56] Speaker 03:
He was deposed in the IPR.

[00:06:57] Speaker 03:
The IPR's rules on depositions are fairly limited, and we are very time constrained.

[00:07:04] Speaker 04:
Did you not have the opportunity to challenge him and say to him, but does this reference contain that element or not?

[00:07:13] Speaker 04:
Or don't you agree that this element is missing?

[00:07:16] Speaker 04:
The same kind of testimony that came out in the trial.

[00:07:19] Speaker 03:
I agree with you, and we did use that opportunity.

[00:07:24] Speaker 03:
However, as the facts came out, when Mr. Ocho Grosso was on the stand in front of the judge, in front of the jury, he made inconsistent statements with that deposition.

[00:07:35] Speaker 07:
So he didn't implode during the IPR deposition.

[00:07:38] Speaker 07:
He held firm.

[00:07:39] Speaker 07:
But then with regard to the same issues on the same patents, in the parallel district court proceeding, everything went haywire for him, let's say.

[00:07:50] Speaker 03:
I'm not sure I would say he imploded, but he made important inconsistent statements.

[00:07:55] Speaker 07:
Well, I can't know whether he imploded, because I'm not allowed to see the inconsistent statements, right?

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

[00:08:00] Speaker 03:
And that's where we don't just have a violation of the PTAB's own rules.

[00:08:06] Speaker 03:
And we do disagree with the PTAB and caption call.

[00:08:11] Speaker 03:
The section cited 37 CFR 1.2 certainly does apply to IPRs.

[00:08:17] Speaker 03:
But in addition from that,

[00:08:19] Speaker 03:
the fact that PTAB, even if they have the right to waive and did, even if this rule didn't apply, the fact that they engage in this conduct to prevent you as the reviewing court from not only reviewing that evidence, you can't just decide whether their denial of the motion for leave was there, but you can't decide how that would impact the merits of their decision.

[00:08:44] Speaker 07:
And to be clear, when they denied you the right to file the motion with the evidence,

[00:08:49] Speaker 07:
They gave no explanation as to why.

[00:08:53] Speaker 07:
Did they give you an explanation on the conference call, even though there is not a written record of it?

[00:08:58] Speaker 07:
Can you report to the court what they said to you in the conference call?

[00:09:02] Speaker 03:
Yes, Your Honor.

[00:09:02] Speaker 03:
It was a very short call.

[00:09:04] Speaker 03:
We were given very limited opportunity to state our argument before you are put on mute, on hold.

[00:09:12] Speaker 03:
When the panel presumably discusses the issue, they came back and said your motion is going to be denied as untimely.

[00:09:18] Speaker 07:
I think you said they suggested they would follow with a written order at that time.

[00:09:23] Speaker 03:
They did in that written order.

[00:09:24] Speaker 07:
They said that, but then there was no written order.

[00:09:26] Speaker 03:
Not for quite some time until we subsequently moved the PTAB for further action once again.

[00:09:32] Speaker 07:
For reconsideration.

[00:09:33] Speaker 03:
Correct.

[00:09:35] Speaker 07:
And then there was a written order which spanned about seven sentences and likewise gave no explanation for the denial.

[00:09:40] Speaker 07:
Is that correct?

[00:09:43] Speaker 03:
That is my, yes, correct.

[00:09:44] Speaker 07:
Why don't you pull it out?

[00:09:45] Speaker 07:
Why don't we find it?

[00:09:46] Speaker 07:
Look at what it says.

[00:09:56] Speaker 07:
I think I'll help you.

[00:09:57] Speaker 07:
I don't know which of the random appendices, but 6394 is the only thing I could find that represented an articulation by the PTAB as to why we refuse to allow you to supplement the record with this potentially inconsistent testimony on the same points with the same witness.

[00:10:16] Speaker 07:
6394.

[00:10:19] Speaker 07:
I guess it's in IPR if it helps.

[00:10:23] Speaker 07:
2013-550.

[00:10:29] Speaker 03:
Thank you, Your Honor.

[00:10:34] Speaker 07:
So what reason do they give, if any, in their denial?

[00:10:52] Speaker 07:
Because I don't even see anything in there that reflects kind of like what's in their briefs today about how it was one week, quote, eve of the hearing or something.

[00:11:00] Speaker 07:
I don't even see anything at all in this denial, any reason whatsoever.

[00:11:05] Speaker 03:
That's correct.

[00:11:06] Speaker 03:
And that is part of the basis of our objection to this practice, Your Honor.

[00:11:11] Speaker 03:
And as far as to the very curt explanation of timeliness, we attempted to submit this testimony within one week of it being made on the stand.

[00:11:19] Speaker 07:
I didn't understand them to... Do you understand the PTO to suggest that you didn't timely submit the evidence?

[00:11:26] Speaker 07:
I didn't understand that to come from their brief.

[00:11:29] Speaker 07:
I thought they acted yes at the time of this.

[00:11:31] Speaker 07:
Do you understand them to be disputing that?

[00:11:34] Speaker 03:
All I can say, Your Honor, is that that is the only current explanation we received on the original phone call.

[00:11:46] Speaker 03:
So this is part and parcel with one issue that we think is global throughout our appeals of the PTEP not acting like a neutral arbiter in these matters.

[00:11:58] Speaker 03:
They didn't put the proper burden on the petitioner, but rather acted as an advocate at every turn for invalidity.

[00:12:04] Speaker 03:
And this even occurred, Your Honors, when the petitioner itself did not advocate for certain evidentiary positions, certain evidentiary positions that ended up being material to these decisions.

[00:12:16] Speaker 03:
Of note is how the board treated objective indicia of non-obviousness.

[00:12:22] Speaker 03:
This isn't a case about an incremental improvement to a widget or a system.

[00:12:28] Speaker 03:
Through these eight patents, Ultratech laid the blueprint for a groundbreaking product and service that truly revolutionized the quality of life for hundreds of thousands of Americans.

[00:12:46] Speaker 03:
the hard of hearing in the United States.

[00:12:49] Speaker 03:
Before CAPTEL, there was no captioned telephone service available to them.

[00:12:54] Speaker 03:
So Ultratech put in evidence through the preeminent experts in the field.

[00:13:00] Speaker 03:
Brenda Battat, the country's leading advocate for the deaf of hard of hearing, testified that CAPTEL was life-changing.

[00:13:07] Speaker 03:
She said it was life-altering and life-savings for the community.

[00:13:13] Speaker 03:
She represented, she was executive director of the Hearing Loss Association of America for nearly 20 years.

[00:13:20] Speaker 03:
Stated another way, more in a legal rubric of secondary considerations.

[00:13:25] Speaker 03:
This was a breakthrough of substantial dimension when it was unveiled.

[00:13:29] Speaker 03:
She wasn't conclusory in her statement.

[00:13:32] Speaker 08:
You say it was a breakthrough.

[00:13:34] Speaker 08:
What stage of the technology, to what stage do you attribute the breakthrough?

[00:13:39] Speaker 03:
So the breakthrough went from where we had traditional relay service where a deaf or hard of hearing person had to use a TDD or a TTY machine and type.

[00:13:51] Speaker 03:
It went to a relay.

[00:13:52] Speaker 03:
Someone working at the relay would read what they typed, call the doctor, whoever they wanted to call, and read the text to them.

[00:14:02] Speaker 03:
The doctor, whomever, would speak through this person who had to be in between the people on the caller.

[00:14:09] Speaker 03:
and then type it back to the assisted user.

[00:14:12] Speaker 03:
That's what was available primarily to those who are deaf and hard of hearing.

[00:14:19] Speaker 08:
But the board don't understand this point.

[00:14:22] Speaker 08:
The technology of the translation from voice to text without going through the keyboard, that was not an invention of Ultratech, was it?

[00:14:35] Speaker 03:
Certainly Ultratech did not invent voice recognition.

[00:14:39] Speaker 03:
software.

[00:14:41] Speaker 08:
This comes to the core, does it not, of the merits setting aside this significant procedural concern?

[00:14:49] Speaker 03:
Yes.

[00:14:51] Speaker 03:
And so there was not any certainly one embodiment of the prior art, even the prophetic aspirations of those who wrote the prior art patents.

[00:15:05] Speaker 03:
No one before Ultratech and Mr. Engelke

[00:15:08] Speaker 03:
ever conceived of a product and service that brought all of these inventions together.

[00:15:15] Speaker 04:
But to Judge Newman's point, isn't that the natural evolution that followed from the fact that the voice recognition software had been developed and commercialized and was available?

[00:15:31] Speaker 04:
Sort of the next natural step, aha, instead of the operator having to type

[00:15:37] Speaker 04:
I just used the speech recognition software.

[00:15:42] Speaker 03:
Well, I would disagree with Your Honor because even in the most prophetic examples of where people wanted to use voice recognition software, there was never the conception that voice recognition software should be used by a call assistant using voice recognition software trained to the voice of that call assistant.

[00:16:04] Speaker 03:
No, none of the prior art references combine altogether with that example.

[00:16:09] Speaker 03:
And had it been that easy, someone else would have done it.

[00:16:13] Speaker 03:
And so that's when we have to guard against the bias of hindsight.

[00:16:20] Speaker 03:
Yeah, this makes sense.

[00:16:21] Speaker 03:
This is such a great product.

[00:16:23] Speaker 03:
But no one else had done it.

[00:16:25] Speaker 03:
And that's why secondary considerations of non-obviousness are so important in this case.

[00:16:33] Speaker 03:
The board took issue with UltraTech's evidence of secondary considerations largely on the issue of embodiment.

[00:16:47] Speaker 03:
And they said that Mr. Ludwig, our technical expert, who actually, all these features, let's say, re-voicing and faster captions and all the advantages of CATEL, he tied those features to the specific claims.

[00:17:00] Speaker 03:
And he submitted claim charts.

[00:17:01] Speaker 03:
And the board looked at them, and they said that this is too conclusory.

[00:17:07] Speaker 03:
And they said it was too conclusory on the issue of embodiment.

[00:17:10] Speaker 03:
And what's notable about that is caption call never questioned or challenged embodiment.

[00:17:19] Speaker 03:
Aside from the fact that Mr. Ludwig's observations, he went to a call center.

[00:17:24] Speaker 03:
He saw a call assistant.

[00:17:27] Speaker 03:
He saw a microphone.

[00:17:28] Speaker 03:
He saw her re-voicing.

[00:17:30] Speaker 03:
all the words.

[00:17:31] Speaker 03:
He looked at a captioned telephone.

[00:17:32] Speaker 03:
He saw the captions come across.

[00:17:35] Speaker 03:
These are all observable facts that certainly Mr. Ochoa-Goroso inspected and never once said, no, that's not true.

[00:17:43] Speaker 03:
CapTel doesn't practice this invention because of X, Y, and Z. They don't even feign to argue that.

[00:17:51] Speaker 03:
Only the board took issue with that.

[00:17:53] Speaker 03:
And that is an improper step under this Court's

[00:17:59] Speaker 03:
PPC, I believe, decision where if you have undisputed evidence of embodiment, it's improper for the board to step in and say, uh-uh-uh, I don't believe you.

[00:18:11] Speaker 03:
So that is what happened in this case.

[00:18:14] Speaker 03:
Certainly CaptionCall took issue with Nexus, but quite ironically for the issue of embodiment, they said, well, CapTel practices the commercial product, actually practices all of these patents, but not all the patents

[00:18:28] Speaker 03:
cover all of the features.

[00:18:30] Speaker 03:
So that was their complaint on Nexus.

[00:18:34] Speaker 03:
But it's reliant on the fact that the capital product, in fact, embodies all of these claims.

[00:18:41] Speaker 03:
Probably a more glaring example happened in the last IPR concerning Patent 835 Claims 6 and 8, where the board actually went further and looked at some of the secondary considerations, including commercial success.

[00:18:55] Speaker 03:
And once again, UltraTech submitted

[00:18:58] Speaker 03:
the minutes of traditional relay service high to low as soon as CapTel comes out, and the trajectory of minutes skyrocketing for Caption Telephone.

[00:19:10] Speaker 03:
And we submitted, Mr. Ludwig submitted the official reports that go to the government that are the basis of how these two companies even get paid.

[00:19:19] Speaker 03:
No one challenges the veracity of these reports.

[00:19:22] Speaker 03:
Caption Call never questioned Mr. Ludwig.

[00:19:26] Speaker 03:
what minutes go to caption call, what minutes go to, or rather, caption telephone versus what minutes go to traditional relay service.

[00:19:35] Speaker 03:
But the board did.

[00:19:36] Speaker 03:
The board looked at the document and said, oh, I see a reference to CapTel VCO that Mr. Ludwig attributes to caption telephone.

[00:19:45] Speaker 03:
That's not caption telephone.

[00:19:46] Speaker 03:
That's the prior art.

[00:19:47] Speaker 03:
That's voice carryover.

[00:19:50] Speaker 03:
No board, it's not.

[00:19:52] Speaker 03:
And Caption Call never suggested it, because they know it's not true.

[00:19:57] Speaker 03:
On a motion for rehearing, we pointed this all out to the board.

[00:20:01] Speaker 03:
You misread these documents.

[00:20:04] Speaker 03:
Even Caption Call would admit they show exactly what Mr. Ludwig says it showed.

[00:20:12] Speaker 03:
And the board said, oh, you should have anticipated our confusion, and we're not convinced anyway.

[00:20:18] Speaker 03:
You should have supplied more documents, more than the 75-page report

[00:20:22] Speaker 03:
that goes to the government.

[00:20:25] Speaker 04:
Ms.

[00:20:25] Speaker 04:
Noel, can you spend a few minutes talking about the anticipation by Ryan and the claim construction of the trained to the voice of the call assistant issue, please?

[00:20:38] Speaker 03:
Thank you, Your Honor.

[00:20:41] Speaker 03:
So the 08 to... Oh, I'm sorry.

[00:20:50] Speaker 03:
Trained to the voice.

[00:20:51] Speaker 03:
This does cover claims in six of the patents, so I'm glad your honor raised it.

[00:20:57] Speaker 03:
A limitation of claims of these patents relates to re-voicing with voice recognition software that is trained to the voice of the call assistant.

[00:21:07] Speaker 03:
This is a central inventive aspect of the Ultratech patents.

[00:21:12] Speaker 03:
The proper construction of trained to the voice of the call assistant

[00:21:17] Speaker 03:
is just what those words say, the call assistant, one call assistant.

[00:21:22] Speaker 03:
And the specification clearly lays out why that's so important.

[00:21:29] Speaker 03:
And the claims all relate to the call assistant.

[00:21:33] Speaker 03:
Now this is material because the board didn't find a disclosure in Ryan under the proper construction.

[00:21:40] Speaker 03:
The board rather said, well, the call assistant could be

[00:21:45] Speaker 03:
a voice pattern of a whole group of call assistants, despite the plain reading of that claim.

[00:21:52] Speaker 03:
Now, broadest reasonable interpretation is broadest, but reasonable is the key term there.

[00:22:02] Speaker 03:
And as the court found in PPC broadband, if the construction isn't reasonable, it doesn't even meet VRI.

[00:22:09] Speaker 03:
So the claim language and the specification dictate.

[00:22:12] Speaker 03:
The claim language all says the voice of the call assistant.

[00:22:16] Speaker 03:
The board said, well, the call assistant refers back to a call assistant, and that can mean one or more.

[00:22:23] Speaker 04:
Is the distinction you're trying to draw here between the claim which calls for training to the voice versus design to the voice, which is what Ryan says?

[00:22:40] Speaker 02:
Correct.

[00:22:40] Speaker 04:
And the distinction you're trying to make is that training means some sort of

[00:22:46] Speaker 04:
iterative process, a learning process, whereas design is a fixed, coded procedure that doesn't involve any training.

[00:22:57] Speaker 03:
That is exactly right, Your Honor.

[00:22:59] Speaker 03:
But even without that, the fact that the software has to be trained to a specific person, that Patton often refers to the particular call assistant, is really important

[00:23:11] Speaker 04:
And the patent only... But that can't mean just one person.

[00:23:14] Speaker 03:
Oh, it does indeed, Your Honor.

[00:23:15] Speaker 04:
It could be, I mean, it could be any one of the group of people sitting in this courtroom.

[00:23:21] Speaker 03:
That's absolutely correct, Your Honor.

[00:23:24] Speaker 03:
Voice recognition software that is speaker dependent is written in such a way that you actually sit down with it and for hours, if not days or weeks, you work with it and it learns the pattern of your voice, it learns

[00:23:40] Speaker 03:
how you pronounce things and it gets better.

[00:23:44] Speaker 04:
Then how does Ryan operate when it's designed to recognize the voice of a call assistant?

[00:23:54] Speaker 04:
Doesn't that mean it's at least trained once?

[00:23:57] Speaker 03:
Well, it's coded that way.

[00:23:59] Speaker 04:
So at the lab... Coded, but how do you write software?

[00:24:06] Speaker 04:
to recognize a voice without the voice being taught to the software?

[00:24:15] Speaker 03:
Your Honor, the prior art actually does show this.

[00:24:19] Speaker 03:
Through the magic of software writing, they write it to recognize southern accents or something.

[00:24:27] Speaker 03:
And I'll note the distinction between Ultratech and Ryan.

[00:24:31] Speaker 03:
As Ryan actually says, designed to the

[00:24:35] Speaker 03:
designed to recognize the voice of particular relay agents, plural, the accuracy of the relay service may be improved by having one of these agents listen and call.

[00:24:48] Speaker 03:
This is clearly designed for multiple people.

[00:24:52] Speaker 03:
But let me read you.

[00:24:53] Speaker 04:
But it sounds to me like there is an element of teaching involved.

[00:24:58] Speaker 04:
It may not be after the fact, and it may not be iterative.

[00:25:02] Speaker 04:
to whoever is speaking at the time.

[00:25:04] Speaker 03:
It's hard-coded forever, and it doesn't work in a call relay.

[00:25:09] Speaker 03:
The patent specifically teaches, I'm quoting from Appendix 1706 at Appendix 3693, which is the 482 patent in Column 5.

[00:25:21] Speaker 03:
It is a limitation of currently available speech recognition software

[00:25:27] Speaker 03:
that the software must be trained or adapted to a particular user before it can accurately transcribe what words the user speaks.

[00:25:39] Speaker 03:
Accordingly, it is envisioned here that the call assistant operates at a computer terminal which contains a copy of voice recognition software package which is specifically trained to the voice of that particular call assistant.

[00:25:57] Speaker 03:
there could not be a more clear teaching in this specification that what Mr. Engelke, what UltraTech was envisioning and limiting themselves to was voice recognition software that would be trained to the voice of each and every call assistant.

[00:26:16] Speaker 04:
So you're challenging the board's conclusion that says we do not agree the recited trained voice recognition software precludes training during software design.

[00:26:27] Speaker 04:
which the patent owner acknowledges is disclosed by Ryan.

[00:26:32] Speaker 03:
We made no such admission, and we vigorously dispute that.

[00:26:36] Speaker 03:
In fact, that was the whole predicate of our argument.

[00:26:41] Speaker 03:
That type of you could train it during coding, during designing goes exactly against what I just read in the specification.

[00:26:52] Speaker 03:
You would have to do that.

[00:26:54] Speaker 03:
You would redesign your software with every new call assistant.

[00:26:57] Speaker 03:
These call centers have hundreds of people working in them.

[00:27:01] Speaker 03:
And they're young college kids.

[00:27:04] Speaker 03:
The notion that you would take this invention and redesign your software, recode it every time, instead of buying the software disclosed in the specification, drag in naturally speaking, which is adaptable.

[00:27:18] Speaker 03:
With each, you don't rewrite the code.

[00:27:21] Speaker 03:
You have your call assistant, you train them to work with the software, it learns their voice.

[00:27:26] Speaker 03:
That is what trained to the voice of a call assistant.

[00:27:31] Speaker 08:
Let's save the rest of your rebuttal time and let's hear from the other side.

[00:27:35] Speaker 08:
Thank you, Your Honor.

[00:27:45] Speaker 08:
Mr. Shah.

[00:27:46] Speaker 00:
May it please the court, Pratik Shah, for a plea caption call.

[00:27:50] Speaker 00:
My colleague, Julius Chen, is at the bench.

[00:27:51] Speaker 00:
And after me, I will be counsel for PTO arguing.

[00:27:56] Speaker 00:
Thank you, Your Honor.

[00:27:57] Speaker 00:
Maybe I should start with the process issue that came up first in the other side's argument.

[00:28:03] Speaker 00:
I'd like to make a couple points about that just to clarify exactly what was going on in the proceeding.

[00:28:10] Speaker 00:
Now, what the PTO does, it has this conference call procedure.

[00:28:14] Speaker 00:
So if someone wants to submit supplemental information when you're well into the IPR proceedings, including after discovery is closed, what the PTO does is it schedules a conference call so that

[00:28:26] Speaker 00:
so that the side wanting to submit that evidence can make the best case as to why that evidence is material enough to warrant potentially having to delay the hearing.

[00:28:37] Speaker 00:
And just to put this in context.

[00:28:38] Speaker 00:
But the evidence in question is not presented at that time.

[00:28:44] Speaker 00:
It is not presented in writing, but what happens during the conference call.

[00:28:47] Speaker 07:
Or attached.

[00:28:48] Speaker 07:
Or allowed to be attached.

[00:28:49] Speaker 00:
Correct, Your Honor.

[00:28:50] Speaker 00:
Specifically excluded.

[00:28:52] Speaker 00:
at the time of the conference call, that's right, they do not submit that evidence.

[00:28:56] Speaker 00:
But what the PTO does, it has a hearing, as often happens in district court, and it allows the counsel to say, tell us what, in your words, is so material about this conflicting testimony.

[00:29:08] Speaker 00:
They have the opportunity to describe it and say, look, here's what he said.

[00:29:12] Speaker 00:
during your deposition in this case, and here's how it conflicts.

[00:29:15] Speaker 07:
Did you participate in the conference call?

[00:29:18] Speaker 00:
I did not personally.

[00:29:20] Speaker 00:
I don't know if appellate counsel did.

[00:29:21] Speaker 07:
She described the conference call as being extremely brief, where they were really unable to go into much detail.

[00:29:29] Speaker 07:
since this is not transcribed and there's no description in any document about what the nature of the call was like, you're describing it as though you think it was some sort of thorough vetting where there was an opportunity presented.

[00:29:42] Speaker 07:
Do you have any evidence to support your statement to this court as a fact, which you just made, that there was an opportunity for them to present in this conference call a back and forth discussion of exactly what was inconsistent?

[00:29:57] Speaker 00:
Well, Your Honor, a couple of responses.

[00:29:59] Speaker 00:
One, I'm giving you how these conference calls normally work on this, which is to give you that.

[00:30:04] Speaker 00:
I can hear how they normally work.

[00:30:05] Speaker 07:
I can hear how it worked in this case.

[00:30:07] Speaker 00:
Sure.

[00:30:07] Speaker 00:
In this case.

[00:30:08] Speaker 07:
So you're not making any representation about how it transpired in this case?

[00:30:10] Speaker 00:
No, Your Honor, we do.

[00:30:12] Speaker 00:
So Your Honor, there is actually some basis to make the representation.

[00:30:15] Speaker 00:
One, I communicated with the attorneys who did.

[00:30:18] Speaker 00:
Our office communicated with the attorneys who did do this.

[00:30:21] Speaker 00:
So I have their version of what happened, which I'll relay to you.

[00:30:24] Speaker 00:
But also we have in writing from Ultratex counsel what they submitted after the notice of appeal was filed in this case so that the PTAB no longer had jurisdiction to expand the record.

[00:30:35] Speaker 00:
They filed what they called the verified recollections of counsel, which they gave their version of what happened in the conference call.

[00:30:42] Speaker 07:
Is this part of the record?

[00:30:43] Speaker 00:
It's not part of the record because they filed it after the notice of appeal had been filed in the PTAB.

[00:30:48] Speaker 00:
And they never went to this court under FRAP 10 to have it admitted

[00:30:53] Speaker 00:
in this Court.

[00:30:54] Speaker 00:
Now, what that description entails, and this is from their own counsel, not our side.

[00:30:59] Speaker 00:
It's the one-sided dispute.

[00:31:01] Speaker 00:
They say that they were asked to present the – to describe the conflicting testimony.

[00:31:08] Speaker 00:
They were given that opportunity, and they did describe it during the call.

[00:31:12] Speaker 07:
This is according to their –

[00:31:15] Speaker 07:
And not only did you point out that she didn't supplement our record on appeal with it, but I assume you didn't either.

[00:31:21] Speaker 07:
So now you'd like to rely on something that's not a record that you also had an opportunity to put into our record.

[00:31:26] Speaker 00:
No, Your Honor.

[00:31:27] Speaker 00:
I'm not trying to rely on it.

[00:31:28] Speaker 00:
It's just you were asking what happened during that call.

[00:31:31] Speaker 00:
And so I'm just trying to describe.

[00:31:32] Speaker 00:
The only basis I have.

[00:31:33] Speaker 07:
So you're going to tell me what happened to the call from non-record evidence?

[00:31:37] Speaker 00:
No.

[00:31:38] Speaker 00:
I don't want to, Your Honor.

[00:31:39] Speaker 00:
You asked her what happened during the call.

[00:31:41] Speaker 00:
And you asked me, is there any basis to say that they had an opportunity to describe

[00:31:45] Speaker 00:
The writing that they submitted to the PTAB did.

[00:31:47] Speaker 07:
Well, because I was trying to understand, you seem to be suggesting that there's a general process.

[00:31:53] Speaker 07:
Just out of curiosity, how many of these PTAB conference calls have you personally participated in?

[00:31:58] Speaker 00:
I personally have not participated in them.

[00:32:00] Speaker 07:
So what is your basis for standing in front of this court and representing to us what the normal process is on these conference calls?

[00:32:07] Speaker 00:
I talk to the PTO attorneys who do this day in and day out, and I talk to our IPR attorneys who do this day in and day out.

[00:32:14] Speaker 07:
And the other part, Your Honor, if I may talk, to the extent their deficiencies... So wait, so conference calls like this are occurring according to you day in and day out, where the PTO is refusing to consider evidence of inconsistent statements made by the very expert whose testimony is given in an IPR in which they rely on dozens of times that happens?

[00:32:36] Speaker 07:
These exact kinds of scenarios happen day in and day out?

[00:32:39] Speaker 00:
Your Honor, I'm not saying the particular facts in this case.

[00:32:42] Speaker 00:
What I'm saying is they have these conference calls

[00:32:44] Speaker 00:
to expand the record, to have late discovery, to reopen proceedings.

[00:32:48] Speaker 00:
That, in fact, does happen all the time.

[00:32:50] Speaker 07:
Where does the authority for these conference calls come from?

[00:32:54] Speaker 00:
Your Honor, it's set forth in the procedure guide that the PTO puts out for the practice guide.

[00:33:01] Speaker 07:
Is that a regulation?

[00:33:03] Speaker 00:
I'll let the PTO speak to the details of how it was implemented.

[00:33:07] Speaker 00:
It is in the Fed Reg.

[00:33:08] Speaker 07:
Yeah, it's published in the Federal Register.

[00:33:10] Speaker 07:
I'm not asking whether it's in the Federal Register.

[00:33:11] Speaker 07:
I'm asking you if it is, in fact, a regulation.

[00:33:13] Speaker 00:
I don't think it undergoes notice and comment, Your Honor.

[00:33:16] Speaker 07:
That's not what I'm asking.

[00:33:17] Speaker 07:
It was under notice and comment.

[00:33:18] Speaker 07:
I'm asking if it's a regulation under the APA.

[00:33:21] Speaker 00:
Sure.

[00:33:21] Speaker 00:
It is not a notice and comment regulation.

[00:33:23] Speaker 00:
It is in the Federal Register.

[00:33:24] Speaker 07:
So it's not a notice and comment regulation, and yet 316A

[00:33:29] Speaker 07:
Three, which you submitted to us and articulated was the authority for the PTO to do all of this, says, and I will quote, regulations.

[00:33:38] Speaker 07:
The director shall prescribe regulations establishing procedure for the submission of supplemental information after the petition is filed.

[00:33:46] Speaker 07:
And what you're telling me is none of what you're describing is in a regulation.

[00:33:49] Speaker 00:
No, Your Honor, I'm sorry.

[00:33:51] Speaker 00:
That part about the conference call, there is a procedure that is in regulation that's set forth.

[00:33:57] Speaker 00:
I'd have to look at the regulation to see if it sets forth exact about the conference call.

[00:34:02] Speaker 00:
Okay.

[00:34:03] Speaker 00:
Well, the regulation does, they did promulgate a regulation that said, look, if you file it within a certain amount of time, you can file the motion.

[00:34:10] Speaker 00:
If you file it after that certain amount of time, then you have to move to seek leave in order to do the motion.

[00:34:20] Speaker 07:
in assessing whether or not leave should be granted.

[00:34:23] Speaker 00:
So that is also set forth in the regulation itself, which is interests of justice.

[00:34:27] Speaker 07:
OK, so what?

[00:34:28] Speaker 04:
But that standard applies to the motion itself, not the request to file a motion.

[00:34:36] Speaker 00:
Sure.

[00:34:36] Speaker 00:
And so they make a determination at the hearing is, have they given their best case to suggest that they can meet that standard such that it justifies at that late stage, remember we're three weeks before the hearing now,

[00:34:49] Speaker 00:
at that late stage to reopen the record, have briefing on this, and have potentially yet another deposition of Ocho Groso, who had already been deposed twice in these proceedings.

[00:35:00] Speaker 04:
How can they possibly assess whether they've made a best case for an interest of justice determination when the process does not entail submission of the actual documents that we're talking about?

[00:35:18] Speaker 00:
It is true that in certain cases, close cases, you may actually have to study the materials and figure out whether, you know, how contradictory the alleged contradiction is.

[00:35:28] Speaker 00:
Is it material enough?

[00:35:29] Speaker 00:
But that's why they have these hearings.

[00:35:31] Speaker 00:
They try to give the counsel a chance to say, okay, well, you know, explain to us how material it is.

[00:35:38] Speaker 00:
And in their, I don't want to go outside the record, but if you want to ask what happened, you asked opposing counsel, did they give an explanation for the denial?

[00:35:47] Speaker 00:
And according to their own account, they did give an explanation in the hearing.

[00:35:52] Speaker 00:
So again, what we have here, it's true.

[00:35:55] Speaker 00:
We have a lack of record.

[00:35:57] Speaker 07:
There's nothing for me to review.

[00:35:58] Speaker 00:
Your Honor, but part of the reason there is nothing to review.

[00:36:02] Speaker 07:
If you say that they should have hired a court reporter, my head will explode.

[00:36:06] Speaker 00:
OK, Your Honor.

[00:36:07] Speaker 00:
OK.

[00:36:09] Speaker 00:
I won't say that.

[00:36:11] Speaker 00:
But what I will say is the PTO points out is that, and this is the word from the PTO's brief that has experience in this,

[00:36:17] Speaker 00:
that these conference calls are routinely transcribed.

[00:36:23] Speaker 00:
And I talked to our IPR attorneys who do this.

[00:36:25] Speaker 00:
But so what?

[00:36:27] Speaker 04:
Even if it's transcribed, that's not part of the record?

[00:36:30] Speaker 00:
Well, it is, yes.

[00:36:31] Speaker 00:
If it's transcribed, it is routinely entered into the IPR record.

[00:36:35] Speaker 04:
Wait, wait, wait.

[00:36:36] Speaker 04:
It's routinely entered, but someone has to make a motion to enter it.

[00:36:40] Speaker 04:
It's not automatically part of the record.

[00:36:41] Speaker 00:
Your Honor, yes.

[00:36:42] Speaker 00:
And I discussed this with both the PTO and our IPR attorneys.

[00:36:45] Speaker 00:
They're aware of no instance.

[00:36:47] Speaker 00:
And in fact, the PTO asks in these calls, do you have a reporter to transcribe it?

[00:36:52] Speaker 00:
And we're aware of no case in which that has never been denied to be entered into the record.

[00:36:58] Speaker 00:
They don't cite any case.

[00:36:59] Speaker 00:
And it's routine.

[00:36:59] Speaker 07:
Well, it's because you've never participated in one of these things.

[00:37:01] Speaker 07:
So you're, of course, you're not familiar with any case in which it's been denied.

[00:37:03] Speaker 07:
You're not familiar with any case in which it's been granted, because you don't participate in it.

[00:37:06] Speaker 00:
Well, I am.

[00:37:06] Speaker 00:
I am, Your Honor.

[00:37:07] Speaker 00:
I've talked to both the PTO and all of our attorneys who do this.

[00:37:10] Speaker 00:
And it's routine is the word.

[00:37:12] Speaker 00:
Everyone knows that if you want to preserve the appellate record,

[00:37:15] Speaker 00:
for these conference calls, you have it transcribed.

[00:37:17] Speaker 07:
Just out of curiosity, where is that?

[00:37:19] Speaker 07:
Is that also in the practice guide that you can have a court reporter transcribe all of these random conference calls?

[00:37:24] Speaker 00:
Your Honor, it's listed in the IPR decisions.

[00:37:27] Speaker 00:
They talk about that process.

[00:37:29] Speaker 00:
It's not in the... There are practice guides that talk about transcription, not specifically with respect to this conference call.

[00:37:39] Speaker 00:
But again, as the PTO has represented.

[00:37:42] Speaker 07:
So there is no document in any place that the PTO has articulated, not even in that practice guide, which you say is published in the Federal Register, even though it's not a regulation and wasn't subject to notice and comment.

[00:37:53] Speaker 07:
There is no place anywhere in existence where the PTO has made people publicly aware of the fact that they are entitled to have these things transcribed.

[00:38:06] Speaker 00:
It is in writing in IPR decisions.

[00:38:09] Speaker 07:
IPR decisions have granted requests to do that.

[00:38:13] Speaker 07:
But is there somewhere where the PTO has informed people that that is something that they are permitted to request and do?

[00:38:20] Speaker 00:
Not in a practice guide sort of setting, but in IPR decisions, they describe.

[00:38:24] Speaker 07:
In a regulation?

[00:38:25] Speaker 00:
No.

[00:38:26] Speaker 07:
In a rulemaking?

[00:38:27] Speaker 00:
No, Your Honor.

[00:38:27] Speaker 00:
The only place they do this is in IPR decisions.

[00:38:30] Speaker 00:
They describe this process.

[00:38:31] Speaker 07:
In presidential IPR decisions?

[00:38:33] Speaker 00:
Your Honor, there's several cited in the PTO's brief.

[00:38:37] Speaker 00:
Then no, Your Honor.

[00:38:39] Speaker 00:
Even if, Your Honor.

[00:38:40] Speaker 08:
Let's get to the substance.

[00:38:43] Speaker 08:
This is a concern.

[00:38:45] Speaker 08:
We'll take it up with the PTO.

[00:38:48] Speaker 08:
Let's very briefly turn to the concern, of course, is the apparent inconsistent testimony.

[00:38:59] Speaker 08:
And was there any attempt made

[00:39:02] Speaker 08:
by either side to respond to the inconsistency, or to the reason why, when the PTO declined to grant the motion, declined to receive it, or apparently to consider it?

[00:39:17] Speaker 00:
So yes, there's, I guess, a couple material things, and I'm glad you asked that question.

[00:39:21] Speaker 00:
One is, it was asked during the other side's argument, did you have a chance to depose Ocho Grosso after this trial testimony happened?

[00:39:32] Speaker 00:
The answer is yes.

[00:39:34] Speaker 00:
There was a deposition in the ninth IPR that happened after the trial testimony.

[00:39:39] Speaker 00:
And if you look at footnote two in their reply brief, what they say is we didn't raise this motion to supplement the record because we had an opportunity to depose Ocho Grosso in the ninth IPR.

[00:39:54] Speaker 00:
So if these contradictions were so material, you would have expected it to surface in the ninth IPR.

[00:40:01] Speaker 00:
It does not come up.

[00:40:02] Speaker 00:
We reviewed the ninth IPR deposition transcript.

[00:40:05] Speaker 00:
They don't ask him about any of the inconsistencies that they talk about.

[00:40:09] Speaker 00:
So it's just not true that they didn't have an opportunity to depose Ocho Grosso after this trial transcript.

[00:40:16] Speaker 00:
That's true in the first date.

[00:40:17] Speaker 00:
But in the ninth, it's the same witness.

[00:40:20] Speaker 00:
And if it goes to credibility, presumably they would have brought up the contradictions.

[00:40:24] Speaker 00:
It didn't happen.

[00:40:25] Speaker 00:
And Judge Newman, to answer the other part of the question, one material thing

[00:40:29] Speaker 00:
that they haven't disclosed to this Court is that trial testimony is readily publicly available for this Court.

[00:40:37] Speaker 00:
And we didn't realize this at the briefing stage, but it's an absolute critical point.

[00:40:41] Speaker 00:
Even if this does raise due process concern or procedural concerns, this is probably the worst vehicle to find any sort of procedural violation, because the very testimony that they say that it was impossible to bring to this Court is publicly available on PACER.

[00:40:59] Speaker 00:
In the very case that they cite on page one in their brief, they cite another document from that same case, another docket entry.

[00:41:08] Speaker 00:
It's docket entry 697, 720, and 759 in that parallel district court litigation.

[00:41:13] Speaker 00:
It's publicly available on PACER.

[00:41:16] Speaker 00:
If the contradictions were so

[00:41:17] Speaker 00:
Their principal claim before this court is a procedural one.

[00:41:20] Speaker 07:
Are you suggesting that when something is publicly available, then the appellate court is free to reference it and make fact findings about it, even though it's not in the record and the lower court expressly refused to allow it to be put into the record?

[00:41:32] Speaker 07:
Well, Your Honor.

[00:41:33] Speaker 07:
I'm wondering.

[00:41:34] Speaker 07:
I mean, the only vehicle I would seem to me would be judicial notice.

[00:41:37] Speaker 07:
But that would only allow judicial notice for things like December 25th is Christmas, right?

[00:41:41] Speaker 07:
Do judicial notice allow me

[00:41:44] Speaker 07:
to go to PACER, get that document, and then decide whether or not I think there were, in fact, inconsistencies in the testimony?

[00:41:50] Speaker 00:
Your Honor, judicial notice does extend to the filings themselves, including the trial transcripts.

[00:41:55] Speaker 07:
The fact of filings.

[00:41:56] Speaker 07:
The fact, not the substance.

[00:41:58] Speaker 00:
Right.

[00:41:58] Speaker 00:
Well, Your Honor, their principal objection here is that there was no way for them to get the substance of that trial testimony so that they couldn't make the contradiction argument.

[00:42:10] Speaker 00:
What they said is we were deprived of the opportunity to make

[00:42:13] Speaker 00:
and show the material contributions.

[00:42:15] Speaker 00:
We know that the PTAB didn't find that there was material enough contributions to admit the testimony.

[00:42:21] Speaker 00:
What they say is they're deprived of the opportunity of appellate review for this court to look at that testimony and make a decision as to whether it was material enough to undermine Ocho Grosso's testimony.

[00:42:33] Speaker 00:
That's the claim they want to bring, that the PTAB abused its discretion and should have let them admit this testimony because it materially contradicts.

[00:42:42] Speaker 00:
What they say is we couldn't do that because we couldn't point the court to the testimony and show them the material contradictions.

[00:42:49] Speaker 00:
But they could.

[00:42:50] Speaker 00:
It's on pacer.

[00:42:51] Speaker 00:
They can cite.

[00:42:52] Speaker 00:
They can quote the exact sentences and line it up against the testimony.

[00:42:57] Speaker 00:
That's what they want to do.

[00:42:58] Speaker 00:
If this is remanded for a procedural violation, that's precisely what they want to do is they want to quote the testimony and show the contradictions.

[00:43:06] Speaker 00:
They could have done that in their brief, and they can do that now.

[00:43:09] Speaker 00:
I just want to make the court aware that

[00:43:11] Speaker 00:
that this material is, in fact, it's not impossible to bring it before the court.

[00:43:16] Speaker 00:
It's, in fact, in front of the court.

[00:43:17] Speaker 00:
They didn't move before the notice of appeal.

[00:43:19] Speaker 00:
They didn't move after the notice of appeal.

[00:43:21] Speaker 00:
And they don't cite it there.

[00:43:24] Speaker 00:
But Judge Newman, I'll turn to the merits now if the court desires.

[00:43:31] Speaker 00:
I'll start with secondary considerations, which is the argument that they raise first.

[00:43:37] Speaker 00:
And, of course, secondary consideration, it's Ultratech's burden to show the nexus between the capital service that they have and the patented claims.

[00:43:46] Speaker 00:
And it's important to remember, and it doesn't get lost in this briefing, that the secondary consideration argument was denied on two independent grounds.

[00:43:54] Speaker 00:
There was a procedural ground in the first eight of the nine IPRs for denying the argument because they didn't properly raise the argument.

[00:44:03] Speaker 00:
And that essentially, as the PTAB noted,

[00:44:06] Speaker 00:
They spent about a page and a half, three legal boilerplate paragraphs in laying out secondary considerations.

[00:44:13] Speaker 00:
And if I can just read for you from the PTAB's description, and this applies to the first eight of the nine IPRs as to why they didn't properly make the secondary consideration arguments.

[00:44:28] Speaker 00:
And this was also aired in the hearing transcript where the other side said, yes, it could have been made in greater detail.

[00:44:34] Speaker 00:
And here's what the PTAP says, and this is at JA 44 in the 1713, in the third appeals, in the 1713 appeal.

[00:44:43] Speaker 00:
This is JA 44.

[00:44:44] Speaker 00:
But again, this argument applies to the first eight of the nine IPRs.

[00:44:49] Speaker 00:
And here's what it says.

[00:44:50] Speaker 00:
It says, Patent owner's arguments and explanations on secondary considerations are three paragraphs that contain virtually no substance.

[00:44:58] Speaker 00:
The first paragraph is legal boilerplate.

[00:45:00] Speaker 00:
The third paragraph is a generic conclusion.

[00:45:02] Speaker 00:
The second paragraph is, at best, a list of common things that could be raised during a secondary considerations discussion, but it contains no meaningful argument.

[00:45:10] Speaker 00:
Patent owner's only citations are the three exhibits in their entirety with no meaningful discussion.

[00:45:16] Speaker 00:
Such a course of action by patent owner does not comply with our rules, which prohibit incorporation by reference and require specific arguments to be made in their briefs.

[00:45:24] Speaker 00:
And then it goes on to say on the next page, at J-45, patent owner cited to no paragraphs

[00:45:29] Speaker 00:
or portions of the evidence it sought to rely on and develop no cogent arguments.

[00:45:34] Speaker 00:
Instead, it listed the names of common arguments made in nearly all secondary consideration analyses.

[00:45:39] Speaker 00:
We require the parties' papers to contain more than mere pleadings.

[00:45:43] Speaker 00:
So for the first eight of the nine IPRs, what the Court said is they didn't present the argument consistent with the rules.

[00:45:51] Speaker 00:
It was legal boilerplate.

[00:45:53] Speaker 00:
You can't just cite to dozens of pages without any pin sites or

[00:45:57] Speaker 00:
or just make legal boilerplate arguments.

[00:46:01] Speaker 00:
So on that ground alone, the first eight of the nine secondary consideration arguments fails along the lines of the PTAB arguments.

[00:46:09] Speaker 00:
Now, in the ninth IPR, Ultratech did change its tack.

[00:46:13] Speaker 00:
Instead of doing the three paragraphs of legal boilerplate, it provided a regular argument on secondary considerations in its brief.

[00:46:22] Speaker 00:
That's only in the ninth IPR.

[00:46:25] Speaker 00:
Once it did that, the PTAB did address

[00:46:28] Speaker 00:
it in 15 pages of its final written decision.

[00:46:31] Speaker 00:
That's in the 1713 IPR, and that's JA 3265 to 3279.

[00:46:36] Speaker 00:
So once Ultratech actually spelled out its arguments, you get a 15-page detailed discussion of why the secondary, why they didn't meet their burden on secondary considerations evidence.

[00:46:49] Speaker 00:
And they say that, look, the claim charts that they presented from their expert Ludwig show embodiment.

[00:46:57] Speaker 00:
I encourage the Court to look at the claim chart itself, and this is at 1706.

[00:47:03] Speaker 00:
Just to pick one of the claim charts, there's three of them that go for each of the patents here.

[00:47:09] Speaker 00:
1706, JA 2437 to 2444.

[00:47:13] Speaker 00:
This does not look like a claim chart that any Court would accept.

[00:47:18] Speaker 00:
It doesn't have any manuals, no documentation, no pictures, no diagrams.

[00:47:23] Speaker 00:
It's a chart

[00:47:24] Speaker 00:
that has nearly verbatim language for each entry that we quote in our brief.

[00:47:29] Speaker 00:
I encourage you to look at that claim chart.

[00:47:31] Speaker 00:
It's no surprise that the PTAB said that that is not a sufficient sort of evidence to prove embodiment when you just have this conclusory, wrote verbatim without any supporting documentation.

[00:47:42] Speaker 00:
It's just not the sort of evidence that you see in these sorts of cases to show embodiment.

[00:47:49] Speaker 00:
Moreover, beyond the fact that they didn't make their threshold burden of showing

[00:47:54] Speaker 00:
based on that conclusive claim chart.

[00:47:58] Speaker 00:
In that last IPR, at JA 3270, the PTAB correctly points out that not all of the models of telephones in their products, the new CapTel service, actually has all of the elements of the claims.

[00:48:13] Speaker 00:
Remember, CapTel service, their product, is not a monolithic.

[00:48:16] Speaker 00:
It's not like a single product.

[00:48:17] Speaker 00:
It's a group of phones that evolved over time, over a decade.

[00:48:22] Speaker 00:
And they point to, at JA 3270,

[00:48:24] Speaker 00:
Model 100.

[00:48:25] Speaker 00:
And they say, look, the expert doesn't show that Model 100 actually included all of the elements of the claim below.

[00:48:33] Speaker 00:
And in particular, we know that Model 100 does not have two-line functionality.

[00:48:38] Speaker 00:
That's one of the elements that is part of their claim, right?

[00:48:41] Speaker 00:
There's three key elements, re-voicing, two-line functionality, and simultaneous voice and text.

[00:48:46] Speaker 00:
It doesn't have two lines.

[00:48:47] Speaker 00:
So not only did they not meet their burden of showing embodiment based on the conclusory claim chart, but then, in fact, one of the models as the PTAF found does not actually have the element.

[00:48:59] Speaker 00:
And so there is no embodiment there.

[00:49:01] Speaker 00:
And we're far from the category of inventions that are co-extensive.

[00:49:05] Speaker 00:
Not only is it under-inclusive, the CAPTEL service, because it doesn't embody

[00:49:09] Speaker 00:
in certain models all of the claim features, but it's also over-inclusive.

[00:49:15] Speaker 00:
Remember, there's certain claims here that only have one of the claim features, like re-voicing, and yet they're pointing to a service that they say has all three features.

[00:49:24] Speaker 00:
So to trace the commercial success to a particular patent claim that only has one of the three features is tough to do.

[00:49:32] Speaker 00:
Even beyond the claim features, there are lots of unclaimed features in the device, and the PTAB points to these at J3268.

[00:49:40] Speaker 00:
And it says, look, there's a strong reason to believe that the success that this service enjoyed is not from just the claim features, but due to other things like caption calls, actually, the marketing done by caption call to tout this service.

[00:49:58] Speaker 00:
Also, the screen size.

[00:50:00] Speaker 00:
Sales jumped once you made the screen size bigger so that people could read these captions easier.

[00:50:05] Speaker 00:
So there's all sorts of evidence.

[00:50:07] Speaker 00:
This is one of the most fulsome analyses of secondary consideration evidence that you'll see from the PTAB.

[00:50:13] Speaker 00:
Fifteen pages where they walk through the various defects or why they didn't make enough of a showing to get the presumption of nexus that they see.

[00:50:25] Speaker 00:
Your Honor, in the couple of minutes I have remaining, maybe I'll turn to the claim construction argument that you asked about on training.

[00:50:36] Speaker 00:
So I guess there are two elements to that, the one and only one.

[00:50:39] Speaker 00:
When you're talking about broadest reasonable construction, to say that the software has to be trained to only a single individual is not only supported by the claims and specification,

[00:50:52] Speaker 00:
which never say it can only be one and no other assistant, but also by common sense.

[00:50:56] Speaker 00:
Often these call centers are all housed in a particular city with an accent, either a southern accent, a southern city, or in India with an Indian accent.

[00:51:06] Speaker 00:
And so it makes sense that you would have it trained to particular call agents in a particular office.

[00:51:12] Speaker 00:
And so to say that the claim construction requires, under the broadest reasonable interpretation, that it be just one assistant, the PTAB correctly

[00:51:22] Speaker 00:
rejected that argument.

[00:51:24] Speaker 00:
But even if there's any doubt that this could apply not, and remember our construction is it could apply to just one call assistant or to a group of call assistants, right?

[00:51:33] Speaker 00:
They're saying it has to be just one.

[00:51:35] Speaker 00:
But if there's any doubt about that, at JA32, they say that PTAP never made a holding that Ryan anticipates if it is just one call center.

[00:51:44] Speaker 00:
That's not true.

[00:51:45] Speaker 00:
At JA32, Ryan specifically says,

[00:51:50] Speaker 00:
This is the first, yes, this is the first.

[00:51:54] Speaker 00:
This is in the 1706, and it's at JA 32.

[00:52:00] Speaker 00:
It says, moreover, we are not persuaded by patent owner that a person of ordinary skill in the art would interpret Ryan as only disclosing software written for a group of people.

[00:52:11] Speaker 00:
Patent owner's argument is unpersuasive because it relies on the level of ordinary skill in the art as reflected in the prior art filed in 1994.

[00:52:19] Speaker 00:
not 1997.

[00:52:21] Speaker 00:
And so there was an alternative argument that the board made that says there isn't a reason to read it as just limited to a group.

[00:52:28] Speaker 00:
It could also do one person.

[00:52:31] Speaker 00:
And then as to the timing and the few seconds that I've left, as to the timing argument, Your Honor, there's no definition of training in any of the materials.

[00:52:38] Speaker 00:
There's no reason to believe that software that's designed at the coding stage is not also trained.

[00:52:45] Speaker 00:
In order to get an accent like a Southern accent, even if it's done at the coding stage, you still have to go through the same training process that the software then recognizes that it's a Southern accent by bringing people in the lab and making that accent.

[00:52:57] Speaker 00:
So the question is, does it have to be done before or after the PTAB?

[00:53:01] Speaker 04:
Part of the problem is that neither the patents nor the references really make much of a discussion about either training or designing.

[00:53:11] Speaker 00:
That's a fair point, Your Honor.

[00:53:13] Speaker 00:
And under broadest reasonable interpretation, we don't think there's any reason to temporally limit it to post-coding training, given that there's no discussion about that, as you point out, in the patent itself.

[00:53:27] Speaker 00:
And the expert, of course, on which the PTAB relied, did testify that it would apply to the pre-coding stage as well.

[00:53:33] Speaker 00:
And that's at least substantial evidence, Your Honor.

[00:53:36] Speaker 08:
OK, anything else for Mr. Schaaf?

[00:53:39] Speaker 08:
OK, then we'll hear from the office.

[00:53:54] Speaker 01:
May I please the court?

[00:53:56] Speaker 01:
Your honor, the problem really here is that Ultratech was a dollar short and daily at every turn in this proceeding.

[00:54:04] Speaker 01:
They had a conference call.

[00:54:06] Speaker 01:
The board provided them with a conference call to explain what it is that they wanted to include.

[00:54:11] Speaker 01:
And they gave them a full hearing to explain their position.

[00:54:13] Speaker 01:
They asked them to give them their best shot.

[00:54:16] Speaker 01:
And in the end, it just wasn't sufficient.

[00:54:18] Speaker 01:
Why?

[00:54:18] Speaker 04:
What's the whole purpose of this conference call?

[00:54:22] Speaker 04:
Why not simply provide?

[00:54:24] Speaker 04:
opportunity to file a motion.

[00:54:28] Speaker 01:
Because, Your Honor, these proceedings are constrained by time.

[00:54:32] Speaker 01:
There is a mandate to have these proceedings completed within one year.

[00:54:36] Speaker 01:
The types of issues that parties routinely raise are not these types of issues.

[00:54:41] Speaker 01:
The types of issues that normally come up are, we need three extra pages.

[00:54:45] Speaker 01:
We can't agree on an extension of time.

[00:54:48] Speaker 01:
We want to file a reply.

[00:54:50] Speaker 04:
But at least if it's done in writing, there's a record.

[00:54:54] Speaker 04:
There's something people can look at if there's a challenge as to whether there's a proper decision or not.

[00:55:01] Speaker 04:
But doing this, having a request to file a motion without a record opens up a can of worms.

[00:55:12] Speaker 04:
Because here we are with the very dilemma that that process creates.

[00:55:16] Speaker 01:
It might seem like it's disjuncted perhaps a little bit.

[00:55:19] Speaker 01:
Clumsy, but honestly, it is the most efficient way to handle the types of issues that come up in proceedings on a regular basis.

[00:55:27] Speaker 04:
Why does it not open the door to arbitrary rulings by the Patent Office that are not subject to review?

[00:55:35] Speaker 01:
We're not saying that the decisions aren't subject to review.

[00:55:38] Speaker 04:
The conference call can be held, and the Patent Office says, well, we deny your motion.

[00:55:45] Speaker 04:
That's the end of that.

[00:55:46] Speaker 04:
No record.

[00:55:47] Speaker 04:
Nothing to review.

[00:55:49] Speaker 01:
That's not what happened here, Your Honor, and that's not what happens at the agency.

[00:55:52] Speaker 01:
The agency is required to provide some, articulate some reasoning for its decision, and the board did that here.

[00:55:58] Speaker 01:
The board explained that this motion, or they wanted to include this evidence too late into the proceeding.

[00:56:06] Speaker 06:
38 board say that, precisely.

[00:56:08] Speaker 01:
The page that you had pointed to, Judge Moore, APPX 6394.

[00:56:12] Speaker 01:
OK, I'm there.

[00:56:16] Speaker 01:
The first sentence says that this conference call took place, but it took place after discovery and briefing were complete and a month before oral hearing.

[00:56:24] Speaker 01:
It was actually just less than two weeks.

[00:56:26] Speaker 01:
I'm sorry.

[00:56:27] Speaker 07:
I'm missing that.

[00:56:27] Speaker 07:
Where is that?

[00:56:28] Speaker 01:
The first sentence of the- On November 4, 2014.

[00:56:30] Speaker 01:
Yes, which is the day that the conference call was held.

[00:56:33] Speaker 07:
After discovery and briefing were complete and a month before oral hearing, we held a conference call.

[00:56:38] Speaker 07:
How is that an explanation that we have decided in the interests of justice it's too close to the hearing

[00:56:44] Speaker 07:
to allow this process?

[00:56:47] Speaker 01:
Because of the type of motion that they were trying to make.

[00:56:49] Speaker 01:
They wanted to include alleged inconsistent statements by the other opposition's expert.

[00:56:57] Speaker 01:
That's not the kind of thing that they, I mean, they tried to say, oh, it's just, you know, they could have included them as observations.

[00:57:03] Speaker 01:
But observations, you don't even need permission to file observations.

[00:57:06] Speaker 01:
They could have done that automatically, right, according to the scheduling order.

[00:57:09] Speaker 01:
What they were trying to do was to use

[00:57:14] Speaker 01:
almost trying to impeach the expert using the deposition testimony during the IPR.

[00:57:19] Speaker 07:
In the interest of justice, wouldn't that be something that the normal adjudicator or fact finder would care about?

[00:57:26] Speaker 07:
The board relied on Mr. Ocho Grosso's testimony dozens of times.

[00:57:32] Speaker 01:
I'm not certain that it did, Your Honor.

[00:57:34] Speaker 01:
I know you pointed to a few instances where the board said we credit Mr. Ocho Grosso's testimony over one of their expert's testimony, one of

[00:57:44] Speaker 01:
ultra-experts testimony, but that doesn't mean that they are relying on that testimony.

[00:57:48] Speaker 01:
They're just saying this is what one side said, this is what the other side said, I agree with this side.

[00:57:53] Speaker 07:
I would have come to the same conclusion.

[00:57:56] Speaker 07:
Let's start with that one, because this is 6383 of the JA, which is IPR 2013-550.

[00:58:06] Speaker 07:
The reason I'm picking this one out of the dozens of references, which all of which I have flagged, so we could spend a lot of time going through them if we needed to, but I don't know that it's a good plan.

[00:58:16] Speaker 07:
I'm picking this one because this one's on exactly the point that they say he gave inconsistent testimony on.

[00:58:22] Speaker 07:
It's on the McLaughlin reference.

[00:58:24] Speaker 07:
And what do they say?

[00:58:26] Speaker 07:
Why don't you tell me what they say?

[00:58:27] Speaker 07:
Why don't you start in the we are persuaded line, since your representation to me was just that you think the board just credited it but didn't actually

[00:58:35] Speaker 07:
rely on it.

[00:58:37] Speaker 07:
So what do they say there?

[00:58:39] Speaker 01:
I guess you're reading from the fifth line down.

[00:58:42] Speaker 01:
Yeah.

[00:58:42] Speaker 01:
We are persuaded by Mr. Oetriker's testimony that person of ordinary skill in the art would consider McLaughlin to be disclosing a device capable of all these features described therein.

[00:58:52] Speaker 07:
It's my understanding this is the exact point when the exact reference that he supposedly gave inconsistent testimony on.

[00:58:58] Speaker 07:
and so your statement to me a minute ago was you're not so sure the board really did rely on Mr. Ocho Grosso in making these situations about findings.

[00:59:06] Speaker 01:
Judge Moore, I was just, I was just, excuse me, Your Honor, I was responding to your point that they relied on Mr. Ocho Grosso's testimony heavily.

[00:59:14] Speaker 01:
I don't believe that the board did rely on it heavily.

[00:59:17] Speaker 01:
Perhaps this is one example that they did.

[00:59:18] Speaker 07:
How long do you want to stand here?

[00:59:19] Speaker 07:
Because I've got every single one of them flagged and there are three dozen references.

[00:59:25] Speaker 01:
Your Honor, they, they, you know, we're talking about

[00:59:29] Speaker 01:
board judges that are experts in this area, they can come to their own conclusions about what the prior art means to assume that they... They could, but they didn't hear.

[00:59:37] Speaker 07:
Instead, they relied heavily on the testimony of an expert that supposedly gave inconsistency.

[00:59:43] Speaker 01:
Supposedly.

[00:59:44] Speaker 01:
That's the key here.

[00:59:45] Speaker 01:
They alleged... They didn't like that testimony.

[00:59:48] Speaker 01:
That's not a fair characterization of it, Your Honor.

[00:59:50] Speaker 01:
What happens... They submitted the testimony?

[00:59:52] Speaker 01:
They don't have to physically have the testimony in front of them for them to have considered it.

[00:59:57] Speaker 01:
The way a conference call is organized is that the movement gets the opportunity to give the board their best shot as to why there is sufficient evidence here.

[01:00:08] Speaker 01:
There's enough here to go ahead and proceed on the motion.

[01:00:11] Speaker 01:
It's an issue of efficiency.

[01:00:14] Speaker 01:
There is no point in going through

[01:00:16] Speaker 01:
with a motion, an opposition, and a response, and whatever else this particular type of motion would have entailed, which might have been an additional deposition.

[01:00:25] Speaker 01:
This is all just speculation.

[01:00:27] Speaker 01:
It's not speculation, Your Honor.

[01:00:28] Speaker 07:
They made the decision in this case based on a piece of paper, a written declaration by Mr. Ocho Grosso, nothing else.

[01:00:36] Speaker 07:
They never heard his testimony, correct?

[01:00:39] Speaker 07:
He did not present testimony in any one of the nine hearings.

[01:00:44] Speaker 01:
He did not present live testimony, yes, but that is not how IPL is organized.

[01:00:49] Speaker 07:
So all the board did was read the declaration of this guy.

[01:00:52] Speaker 07:
How hard would it have been for them to read the corresponding pages that supposedly amounted to inconsistent testimony in written form?

[01:01:00] Speaker 01:
They also read the cross-examination of this guy's deposition testimony that Ultratech

[01:01:05] Speaker 01:
provided.

[01:01:06] Speaker 01:
Ultratec had multiple, ample opportunities to depose Mr. Ocho Grosso and to file cross-examination observations on that deposition.

[01:01:16] Speaker 01:
There were at least four times before the oral hearing where they had the opportunity to challenge Mr. Ocho Grosso's testimony.

[01:01:23] Speaker 01:
The fact that they didn't get anywhere in the IPRs does not necessarily mean that

[01:01:29] Speaker 01:
the board, you know, erred by not allowing this other extrinsic evidence into this procedure.

[01:01:33] Speaker 07:
Just so I understand how these processes normally work, if I, I, I, because I really do, what I'm not interested in doing here, just to be clear, is if I were to say that this was an arbitrary and capricious act, I'm not interested, I'm a little concerned about taking such a ruling so far as to say no, no more conference calls board, you're trying to hide stuff.

[01:01:54] Speaker 07:
Now one of the things you said, because I do want to be careful,

[01:01:58] Speaker 07:
One of the things you said was this isn't the kind of motion that is normally what's done in these conference calls.

[01:02:04] Speaker 07:
Normally it's can I have three extra pages?

[01:02:06] Speaker 07:
Can I have three extra days?

[01:02:07] Speaker 07:
Whatever.

[01:02:07] Speaker 07:
Is that correct?

[01:02:11] Speaker 07:
Because maybe there's some reason to suggest that certain kinds of evidentiary motions ought to be subject to more process or at least some record or at least some written decision

[01:02:24] Speaker 07:
but the routine and mundane three more days, three more pages, whatever stuff doesn't have to be.

[01:02:29] Speaker 07:
Do you see where I'm going?

[01:02:31] Speaker 07:
I appreciate your concern.

[01:02:32] Speaker 07:
I think you're arbitrary and capricious in this case.

[01:02:34] Speaker 07:
I'm not looking to say you're arbitrary and capricious in every case, because what you've explained to me, and I want to make sure I understand correctly, is this type of substantive motion, as I look at it, is not the kind of thing the board's normally doing in conference calls.

[01:02:48] Speaker 01:
I think that is fair.

[01:02:49] Speaker 01:
The relative frequency with which the conference call is used

[01:02:53] Speaker 01:
mundane, routine issues that are never again at all even revisited is really the normal course of conference calls.

[01:03:01] Speaker 01:
The fact that this in hindsight became a bigger issue than it was at the time is a different story, and it's not common necessarily.

[01:03:09] Speaker 07:
That's what I was hoping.

[01:03:11] Speaker 01:
But at the same time, that doesn't mean that what the board provided in its decision isn't sufficient explanation.

[01:03:16] Speaker 01:
The board said,

[01:03:20] Speaker 01:
discovery is complete.

[01:03:22] Speaker 01:
This is the type of motion that requires discovery, and that makes sense.

[01:03:25] Speaker 01:
You cannot accuse somebody of making an inconsistent statement without providing them the opportunity to explain why.

[01:03:31] Speaker 01:
And once they provide an explanation, what happens next?

[01:03:35] Speaker 01:
The opposing party gets the opportunity to then oppose them on their explanation.

[01:03:39] Speaker 01:
This isn't just a one-time, oh, let me

[01:03:41] Speaker 01:
Please let us include this, you know, transcript from the jury trial into the record.

[01:03:46] Speaker 01:
That's not what this is about.

[01:03:47] Speaker 01:
It entails a lot more steps and there just wasn't enough time.

[01:03:50] Speaker 01:
And time is a substance of determination.

[01:03:53] Speaker 06:
But the board didn't say any of that.

[01:03:55] Speaker 06:
You only said it in your brief.

[01:03:56] Speaker 01:
The board didn't say anything.

[01:03:57] Speaker 06:
No, Your Honor.

[01:03:58] Speaker 01:
I just pointed you to where they said it.

[01:03:59] Speaker 01:
They said discovery was complete.

[01:04:01] Speaker 07:
Yes, but that's true for every late submission.

[01:04:03] Speaker 07:
Every late submission by virtue of your regulation would be after discovery is complete.

[01:04:09] Speaker 01:
And briefing was closed.

[01:04:10] Speaker 01:
So that's the other point.

[01:04:11] Speaker 07:
So are you suggesting to me that I should interpret from that?

[01:04:14] Speaker 07:
every late submission should and can automatically be rejected without review.

[01:04:29] Speaker 07:
Patent owner requested authorization for late submission of evidence.

[01:04:31] Speaker 07:
I mean, that's a factual statement.

[01:04:33] Speaker 07:
That's their basis for why they denied, in the interest of justice, chose to deny this.

[01:04:39] Speaker 07:
I should interpret that first statement, which is a factual statement about the day on which something happened, as their decision.

[01:04:48] Speaker 01:
Yes, Your Honor, because there's more to it than that.

[01:04:51] Speaker 01:
There's a lot packed into that one sentence.

[01:04:54] Speaker 01:
The board is explaining that we are just a couple of- Apparently a lot I can't see.

[01:04:58] Speaker 07:
It's invisible.

[01:04:59] Speaker 01:
The reason that we can't see, Your Honor, is because they never got a court report.

[01:05:02] Speaker 01:
I know you said not to mention it because your head's gonna explode if I mention it, but that is just a fact.

[01:05:07] Speaker 07:
Where does the Patent Office explain to people that they have the right to have a court reporter transcribe these conference calls?

[01:05:14] Speaker 01:
In the practice guide... Oh, where?

[01:05:16] Speaker 01:
Where?

[01:05:17] Speaker 01:
I have it here.

[01:05:18] Speaker 01:
I would like to just... In the practice guide, the PTO explains that you have to get authorization

[01:05:25] Speaker 01:
to file a motion.

[01:05:27] Speaker 01:
That's also in the rules.

[01:05:28] Speaker 01:
The rules for this particular type of motion, right?

[01:05:31] Speaker 01:
You have to get pre-authorization.

[01:05:33] Speaker 01:
How do you go about getting pre-authorization?

[01:05:36] Speaker 01:
You have to set up a conference call with the board.

[01:05:38] Speaker 01:
How do you do that?

[01:05:38] Speaker 07:
That appears, by the way, only in the practice guide, right?

[01:05:40] Speaker 01:
Yes, that's right.

[01:05:41] Speaker 07:
The conference call with the board.

[01:05:42] Speaker 01:
That's right.

[01:05:43] Speaker 01:
How do you do that?

[01:05:43] Speaker 01:
You do that in two ways.

[01:05:44] Speaker 01:
You can either just directly call the board, or you can email the board.

[01:05:48] Speaker 01:
You can call the board and say, this is the issue.

[01:05:50] Speaker 01:
This is what I'm trying to include or exclude.

[01:05:53] Speaker 01:
I've spoken to the other side, they agree or disagree, and these are the times when both parties are available.

[01:05:58] Speaker 07:
It is meant to be completely mysterious.

[01:05:59] Speaker 07:
Where does the practice guide explain what you said it explains about you can hire a court reporter to record the conversation?

[01:06:05] Speaker 01:
If it is customary for parties to hire a court reporter, everybody does it.

[01:06:11] Speaker 01:
Everybody has a court reporter present on these conference calls.

[01:06:13] Speaker 07:
They said in their brief they didn't know this until after the fact.

[01:06:15] Speaker 01:
It's quite possible that it was a learning curve for this party at that time.

[01:06:19] Speaker 07:
And just to be clear, you, the PTO, say it nowhere in writing.

[01:06:21] Speaker 07:
You say it nowhere.

[01:06:22] Speaker 07:
It's not on your website.

[01:06:23] Speaker 07:
It's not in your practice guide.

[01:06:24] Speaker 07:
It's not in your regulations.

[01:06:26] Speaker 07:
It's not in your rule-makings, correct?

[01:06:28] Speaker 07:
Do you say it anywhere?

[01:06:29] Speaker 07:
Can you point me to any place?

[01:06:31] Speaker 07:
Is it yes or no question?

[01:06:33] Speaker 01:
No, we do not say that you can hire a court reporter, but that is just understood.

[01:06:37] Speaker 01:
This is litigation.

[01:06:39] Speaker 01:
Parties know that if they want to preserve the arguments that they make in an oral motion where nothing else is before them, where the board is saying, please orally explain to me why you think there's a sufficiency issue.

[01:06:52] Speaker 01:
Is there enough here for us to go ahead and actually brief this motion, which takes time, which is expensive, which causes delays?

[01:07:00] Speaker 01:
Is there a reason to do that?

[01:07:01] Speaker 01:
Because if there isn't, there's no point in going through with it.

[01:07:04] Speaker 01:
The district courts do this also.

[01:07:05] Speaker 01:
The district of Delaware has local rules where the judges require parties to file letter briefs to the court explaining why they would want to file a motion for summary judgment.

[01:07:15] Speaker 01:
They're not allowed to do that automatically.

[01:07:17] Speaker 01:
It's a two-step process, just like the way this is a two-step process.

[01:07:20] Speaker 07:
And the court's decision on whether to allow it or not is recorded.

[01:07:22] Speaker 01:
But that's a different issue.

[01:07:25] Speaker 01:
The issue there is, yes.

[01:07:28] Speaker 01:
Yes, perhaps they're allowed to enter into the record there.

[01:07:31] Speaker 01:
But here, the reason it's not part of the record is because they failed to get a court reporter.

[01:07:36] Speaker 08:
If there was a court reporter here, we wouldn't be having this discussion.

[01:07:40] Speaker 08:
You're saying it's not recorded.

[01:07:41] Speaker 08:
You see we have the phone here.

[01:07:43] Speaker 08:
Our next argument is going to be by telephone, and it will be recorded and transcribed.

[01:07:49] Speaker 08:
Here we have a case about voice recognition and all sorts of things.

[01:07:52] Speaker 08:
None of that is recorded, so that some subsequent reporter

[01:07:57] Speaker 08:
Could, if there's a dispute, as there is now, transcribe it?

[01:08:02] Speaker 08:
The office does none of that.

[01:08:04] Speaker 08:
Is that right?

[01:08:06] Speaker 01:
The office does not get a court reporter.

[01:08:10] Speaker 01:
It is up to the parties to get a court reporter.

[01:08:12] Speaker 08:
When it's not transcribed, it's not recorded.

[01:08:14] Speaker 01:
Not by the office.

[01:08:16] Speaker 01:
It is not, but it is up to the parties to do it.

[01:08:18] Speaker 01:
If the parties choose to have a court reporter, in the beginning of every conference call that I've listened in on,

[01:08:23] Speaker 01:
The presiding board judge asks every party to introduce themselves and make their appearances, introduces the other two judges, then asks if there's a court reporter online.

[01:08:32] Speaker 01:
And then if there's a court reporter online, make sure that the court reporter can hear everybody's voice so that what is transcribed is correct.

[01:08:37] Speaker 08:
OK, we've been focusing on an extraordinarily questionable procedure.

[01:08:42] Speaker 08:
And you're well over time.

[01:08:43] Speaker 08:
But would you take a minute or two to try and explain or rationalize why, when the board is told

[01:08:52] Speaker 08:
that there is inconsistent sworn testimony at trial in the district court.

[01:08:57] Speaker 08:
Don't bother us.

[01:08:58] Speaker 08:
We're not going to look at it.

[01:09:00] Speaker 01:
That's not what the board said here.

[01:09:01] Speaker 01:
The board said, don't bother.

[01:09:02] Speaker 01:
We're not going to look at it.

[01:09:03] Speaker 01:
It's not what the board said here.

[01:09:05] Speaker 01:
Implicit in the board's finding that this is way, way too late to include it is the finding that what they had here was not really, didn't necessarily brought live to the interest of Justice Henry.

[01:09:16] Speaker 04:
Too late to consider inconsistent statements?

[01:09:19] Speaker 01:
They considered it, Your Honor.

[01:09:20] Speaker 01:
They considered it in the hearing.

[01:09:22] Speaker 01:
the party had the opportunity to explain what it is that they were trying to introduce, right?

[01:09:28] Speaker 01:
And to me, this is much ado about nothing, to be honest with you, because in the ninth IPR, where they could have introduced this testimony, because they said it hurt this expert's credibility to such an extent that it required a duty of candor from the other side to present it, they didn't even include it.

[01:09:45] Speaker 01:
When they could have challenged his testimony, they didn't do it.

[01:09:48] Speaker 01:
And that kind of shows you that perhaps there really wasn't anything to begin with in the first place.

[01:09:53] Speaker 01:
And perhaps the board understood that during that hearing.

[01:09:56] Speaker 01:
Perhaps the board also further understood that they had multiple opportunities to get the, to depose Mr. Ojibwe Grosso and to cross-examine him and to submit all that information.

[01:10:07] Speaker 01:
And it just failed.

[01:10:12] Speaker 08:
Okay.

[01:10:12] Speaker 08:
Any more questions for the others?

[01:10:15] Speaker 08:
Okay.

[01:10:15] Speaker 08:
Thank you.

[01:10:17] Speaker 08:
Thank you, Ms.

[01:10:17] Speaker 08:
Rashi.

[01:10:20] Speaker 08:
OK, Ms.

[01:10:21] Speaker 08:
Newell, you have let's make it five minutes.

[01:10:25] Speaker 03:
Thank you, Your Honor.

[01:10:28] Speaker 04:
Can you tell us about the ninth proceeding?

[01:10:31] Speaker 03:
Yes, Your Honor.

[01:10:32] Speaker 03:
That was one of the things I wanted to bring up.

[01:10:35] Speaker 03:
These proceedings, you have incredibly limited time and limited pages, which is part and parcel with you didn't describe enough in your brief about secondary considerations, which I'll get to next.

[01:10:49] Speaker 03:
The second 835 patent

[01:10:51] Speaker 03:
did not involve either of the references at issue.

[01:10:54] Speaker 03:
So we would have had to have taken something like 20 pages to explain, here's McLaughlin, here's Ryan, here's the testimony, here's how it's inconsistent.

[01:11:04] Speaker 03:
I do believe that that is highly pertinent to his credibility.

[01:11:08] Speaker 03:
But with these procedures, with such little due process, the notion of not going to the merits of the prior art references for this patent to

[01:11:21] Speaker 03:
eat up pages to go to that.

[01:11:23] Speaker 03:
That is why.

[01:11:24] Speaker 07:
And rather than explain it, you wanted to file the document itself and let the board look at it.

[01:11:27] Speaker 03:
That is precisely correct.

[01:11:30] Speaker 03:
One quick issue on the transcript.

[01:11:34] Speaker 03:
It feels like this is a late IPR.

[01:11:36] Speaker 03:
This was one of the first IPRs.

[01:11:38] Speaker 03:
This case has been stayed a number of times, this appeal rather.

[01:11:43] Speaker 03:
So the notion that this was common practice wasn't true at the time.

[01:11:51] Speaker 03:
Going to the issue of nexus and waiver.

[01:11:57] Speaker 03:
The board actually, it criticized UltraTech.

[01:12:00] Speaker 03:
There's no doubt about it.

[01:12:02] Speaker 03:
Practically speaking, could we have done a better job in the brief?

[01:12:06] Speaker 03:
Probably could we have gotten it all in with those pages?

[01:12:10] Speaker 03:
No, it would have been impossible.

[01:12:11] Speaker 03:
But the board didn't hold waiver.

[01:12:13] Speaker 03:
It criticized UltraTech, but it didn't hold waiver.

[01:12:17] Speaker 03:
argued not embodiment, but they did argue nexus and secondary considerations.

[01:12:23] Speaker 03:
The board on a motion for rehearing, which is found in Appendix 1706, Appendix 71, when we raised the issue of secondary considerations on rehearing, it didn't discuss waiver.

[01:12:37] Speaker 03:
What it said is we analyzed your evidence and we didn't, we weren't persuaded by it.

[01:12:44] Speaker 03:
Now, fundamentally, what's important is the evidence that the board didn't believe was on primarily embodiment.

[01:12:52] Speaker 03:
Caption call didn't dispute it.

[01:12:54] Speaker 03:
You heard counsel make reference to Captel 100 versus 200.

[01:13:03] Speaker 03:
First of all, Mr. Ludwig in the 835, which is the two-line patent, expressly put in his report that for secondary considerations, he was only considering the 200 and not the 100.

[01:13:14] Speaker 03:
There is an issue with some of the minutes of the 100 would go arguably into the commercial success.

[01:13:21] Speaker 03:
That was a fact brought to the board's attention by AlterTech.

[01:13:24] Speaker 03:
It wasn't relied upon by their expert in criticizing secondary consideration.

[01:13:29] Speaker 03:
You heard the comment about the screen size that the board took issue of.

[01:13:33] Speaker 03:
That wasn't a caption call argument.

[01:13:35] Speaker 03:
Once again, that was in Mr. Ludwig's report.

[01:13:38] Speaker 03:
When he was analyzing what drove commercial success,

[01:13:43] Speaker 03:
He accounted for these things.

[01:13:46] Speaker 03:
And the board took it upon itself to be an advocate for caption call and say, oh, it proved the commercial success.

[01:13:53] Speaker 03:
It could have been a screen size.

[01:13:56] Speaker 03:
This is one of those common sense moments.

[01:13:59] Speaker 03:
The size of a screen driving up dramatically sales of a captioned telephone as opposed to the fact that with these inventions, not 50 words a minute, but 200 words a minute, the idea that it's the screen size

[01:14:13] Speaker 03:
versus you can call 911 and actually have captions from the operator, the idea that you have 98% accuracy instead of 90% accuracy.

[01:14:24] Speaker 03:
That's what drives commercial success.

[01:14:27] Speaker 03:
And we do have support for that in the record, because Mr. Ludwig wasn't the only one who talked about the needs of the hard of hearing community.

[01:14:35] Speaker 03:
That was Ms.

[01:14:36] Speaker 03:
Patat.

[01:14:37] Speaker 03:
That was Ms.

[01:14:38] Speaker 03:
Phelps.

[01:14:39] Speaker 03:
They gave testimony.

[01:14:42] Speaker 03:
as to what the needs of the hard of hearing community were and how these inventions satisfy its own needs.

[01:14:48] Speaker 03:
The board totally disregarded that on a claim of embodiment which was not raised by caption call.

[01:15:03] Speaker 03:
Reference was made by the PTO's counsel that the PTAB is a bunch of experts in the art.

[01:15:10] Speaker 03:
That's actually not true.

[01:15:11] Speaker 03:
They're not experts in the art, but in this case, they decided they were.

[01:15:16] Speaker 03:
They could read the minute reports better than Mr. Ludwig.

[01:15:20] Speaker 03:
They know why people buy captioned telephones screen size versus having accurate captions, being able to have a job interview.

[01:15:28] Speaker 03:
This is the fundamental problem with how this board treated these proceedings.

[01:15:36] Speaker 03:
They thought better.

[01:15:38] Speaker 03:
That is not under PPC the way

[01:15:41] Speaker 03:
the PTAB is supposed to operate.

[01:15:44] Speaker 03:
They're supposed to be neutral.

[01:15:45] Speaker 03:
They're supposed to be fair.

[01:15:47] Speaker 03:
They were not in these matters.

[01:15:50] Speaker 08:
Okay.

[01:15:51] Speaker 08:
Thank you, Ms.

[01:15:52] Speaker 08:
Doyle.

[01:15:53] Speaker 08:
Thank you.

[01:15:53] Speaker 08:
The case is taken under submission.