[00:01:03] Speaker 03:
All rise.

[00:01:06] Speaker ?:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:01:10] Speaker 01:
I must state the United States and its Honorable.

[00:01:13] Speaker 01:
Good morning.

[00:01:13] Speaker 01:
Please be seated.

[00:01:19] Speaker 01:
The first case for argument this morning is 15-2078, was sick of finance versus continental automotive systems.

[00:01:29] Speaker 01:
As you know, we've put these cases together.

[00:01:32] Speaker 01:
Mr. Kane, whenever you're ready.

[00:01:39] Speaker 00:
Good morning.

[00:01:40] Speaker 00:
May it please the court.

[00:01:42] Speaker 00:
The board made two claim construction errors that require remand.

[00:01:46] Speaker 00:
The first relates to a pressure measuring device that outputs an electrical pressure signal representative of the air pressure and a related transmitter.

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The second relates to emittance

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The 524 patent is expired, so the Phillips standard applies rather than BRI.

[00:02:04] Speaker 00:
It must be used to construe the claims.

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The board's constructions are subject to de novo review.

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So starting with that first term here, the board's claim construction analysis did not reach representative or correspondent.

[00:02:18] Speaker 00:
Rather, the board focused on pressure measuring device alone ignored the rest of the language in the claim.

[00:02:26] Speaker 00:
The board concluded that a pressure measuring device did not exclude a switch-based device that indicates an anomalous pressure condition.

[00:02:35] Speaker 00:
If the claims didn't require anything else, Your Honor, if they stopped after pressure measuring device, the board would be correct.

[00:02:41] Speaker 00:
But the claims do require more.

[00:02:43] Speaker 00:
The output of the device must be representative of the air pressure.

[00:02:48] Speaker 00:
Air pressure is a force per unit area, which is a numerical value.

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The undisputed plain meaning of representative

[00:02:56] Speaker 00:
requires that the signal be a portrayal or a symbol of that numerical value, that measured pressure.

[00:03:02] Speaker 00:
And an alarm is not a portrayal or a symbol of the measured pressure.

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And it's not representative.

[00:03:11] Speaker 01:
But I understand what you're saying about the claim language.

[00:03:14] Speaker 01:
But under Phillips, we always read it in the context of the specification.

[00:03:17] Speaker 01:
Is it not the case that there is at least one embodiment that doesn't deal with this numerical value?

[00:03:24] Speaker 00:
No, that's not true.

[00:03:26] Speaker 00:
And that's part of where the board went off.

[00:03:29] Speaker 00:
And I'm not sure there are two locations in the specification.

[00:03:32] Speaker 01:
Well, I'm looking at column 5, lines 1 through 14.

[00:03:39] Speaker 00:
Let me turn to that, Your Honor.

[00:03:43] Speaker 00:
And I agree, Your Honor, that the key here is that we do need to look at the claims in terms of specification.

[00:03:48] Speaker 00:
Now, I'll note that the board didn't cite to this portion of the specification in support of its construction.

[00:03:55] Speaker 00:
If you look at the specification earlier in the specification.

[00:03:58] Speaker 01:
Well, why don't you look at what I'm pointing to here, which is column five, one through 14.

[00:04:03] Speaker 01:
And it talks about the first alternative.

[00:04:06] Speaker 01:
And they say the pressure is continually monitored by a mechanical device and blah, blah.

[00:04:11] Speaker 01:
Why doesn't that deal with something other than the precise numerical value, which you're arguing for on clinical study?

[00:04:16] Speaker 00:
You have to put it in context, Your Honor, of the first alternative.

[00:04:20] Speaker 00:
So you have to go actually to start at column four, line 55.

[00:04:25] Speaker 00:
It's talking about the signal transmission from the transmitter to the receiver can be carried out continually or non-continually.

[00:04:34] Speaker 00:
And there goes the first paragraph, beginning there, for 57, column four, line 57, talks about a situation where the transducer, the measurement device, turns on automatically once per minute.

[00:04:50] Speaker 00:
and takes a pressure reading and transmits it.

[00:04:54] Speaker 00:
So that's the continuous operation.

[00:04:57] Speaker 00:
So this is all about when we're going to take pressure measurements.

[00:05:01] Speaker 00:
Then it goes into the next paragraph, starting at the bottom there, column four, line 66.

[00:05:07] Speaker 00:
The non-continuous operation, there are two possibilities.

[00:05:11] Speaker 00:
And then that's where your honor pointed me to, the first alternative at the top of column five.

[00:05:16] Speaker 00:
So in the context here, we're looking at when are we going to take

[00:05:20] Speaker 00:
a pressure measurement.

[00:05:22] Speaker 00:
And we're talking about trying to extend battery life as shown here where they're saying we're going to take it once a minute.

[00:05:26] Speaker 00:
We've shown that that can last about five years.

[00:05:29] Speaker 00:
So here what this embodiment is talking about is the pressure is continually monitored with a mechanical device.

[00:05:35] Speaker 00:
So we're not going to turn it on every minute.

[00:05:38] Speaker 00:
We're going to have sort of a range where if it's in that range, we're not going to take any pressure measurements because we don't need to.

[00:05:47] Speaker 00:
If we get outside of that range, we're going to flip a switch to activate the pressure measurement device, take that reading, and then transmit that representative pressure.

[00:06:00] Speaker 00:
And then it continues, Your Honor.

[00:06:02] Speaker 00:
Let's talk about the second mode of the non-continuous alternative.

[00:06:08] Speaker 00:
And again, that's one where it's a one-off measurement where, again, the device is not measuring continuously, not taking that

[00:06:16] Speaker 00:
minute-by-minute reading and transmitting it.

[00:06:19] Speaker 00:
Here, in this second alternative, as Patton explains, there's some sort of an external initiation while the vehicle is stopped.

[00:06:29] Speaker 00:
The driver, before he or she leaves for the day or maybe when they're stopping at a delivery location or wherever, wants to check the tire pressure.

[00:06:39] Speaker 00:
They do something that initiates that pressure measurement.

[00:06:43] Speaker 00:
So this is all about

[00:06:45] Speaker 00:
when we're going to take the pressure measurement.

[00:06:47] Speaker 00:
What is the timing of the pressure measurement, not how the pressure measurement is taken?

[00:06:53] Speaker 00:
That's described elsewhere in the specification.

[00:07:05] Speaker 00:
OK.

[00:07:05] Speaker 00:
And if you look at where in the specification to describe what that pressure measurement looks like, that's up in the summary we mentioned in column two, where

[00:07:14] Speaker 00:
It talks about, in accordance with the device of the present invention, a pressure measuring device provided which measures the prevailing pressure in the air chamber of the wheel and outputs a representative electrical signal in accordance therewith.

[00:07:32] Speaker 00:
Again, that tracks the language of claim one, representative electrical signal in accordance therewith.

[00:07:38] Speaker 00:
And that talks about three different possible ways to measure that numeric value.

[00:07:44] Speaker 00:
an absolute pressure.

[00:07:47] Speaker 00:
I'm sorry, are you referring to column two now?

[00:07:49] Speaker 00:
Yes, I'm in column two.

[00:07:51] Speaker 00:
I started that line under the Summary of Invention, but I was reading from starting at line 33, Your Honor.

[00:08:02] Speaker 00:
But then it describes using an absolute pressure, describes without reference to any surrounding atmospheric pressure, an overpressure reference

[00:08:11] Speaker 00:
to the atmospheric pressure and indifference, all of which are numeric values.

[00:08:15] Speaker 00:
So those are the values that the pressure measurement device is taking and representative of the pressure in the tire.

[00:08:26] Speaker 00:
That's what's transmitted.

[00:08:27] Speaker 00:
Column 5 is just describing the timing of when these measurements are going to be taken, either continually or non-continually in the various embodiments described there.

[00:08:42] Speaker 01:
Why don't you move on to emittance?

[00:08:47] Speaker 00:
The board also erred in emittance, ensuring emittance, Your Honor, in Claim 17.

[00:08:52] Speaker 00:
Again, the undisputed definition, plain meaning of emittance, is send out, such as heat, light, vapors, having the power to radiate light, heat, et cetera.

[00:09:09] Speaker 00:
So it's that, and every single, and again,

[00:09:12] Speaker 00:
As Your Honor noted, we have to read this claim in light of the specification.

[00:09:18] Speaker 00:
Every single example in the specification talks about a wireless transmission of these signals.

[00:09:27] Speaker 01:
But isn't there an embodiment that deals with a non-wireless connection?

[00:09:33] Speaker 00:
There is, Your Honor, and it doesn't use the word emit in connection with that embodiment.

[00:09:40] Speaker 00:
Certainly you can write claims that are narrower than all the embodiments.

[00:09:44] Speaker 00:
And in this case, this claim covers the wireless embodiments, wouldn't cover the wired embodiment.

[00:09:50] Speaker 00:
The board didn't address this.

[00:09:53] Speaker 00:
Really what the board said is that there's nothing in the specification that limits emit.

[00:10:00] Speaker 00:
But the proper approach, that's coming at it sort of backwards.

[00:10:05] Speaker 00:
The question is, what is

[00:10:07] Speaker 00:
The ordinary meaning in the context of this specification and in the context of this specification, the ordinary meaning are the ones that Waseeka put forward, which are all wireless examples and wireless definitions.

[00:10:24] Speaker 00:
Things like radiating power, radiating light, radiating heat.

[00:10:28] Speaker 00:
That's how the term emit is used in this specification.

[00:10:33] Speaker 06:
We're talking about claim 17, right?

[00:10:35] Speaker 06:
Correct.

[00:10:37] Speaker 06:
And so we're just talking about the transmitter.

[00:10:43] Speaker 06:
Something that's internal within the transmitter.

[00:10:47] Speaker 06:
Transmitter comprises a detector device.

[00:10:51] Speaker 06:
I'm just looking for clarification on what it means when it says transmitter comprises a detector device which recognizes emittance of a predetermined switching signal.

[00:11:04] Speaker 00:
So, Your Honor, what that is talking about... Where is the predetermined switching signal coming from?

[00:11:09] Speaker 00:
It's coming from, in this embodiment, from an external source.

[00:11:15] Speaker 04:
A valve on the tire?

[00:11:18] Speaker 00:
It would not be a valve, Your Honor.

[00:11:19] Speaker 00:
It would typically be an electrical signal.

[00:11:22] Speaker 00:
So that what you've got here is you've got the valve and the transmitter and the measurement base are all part of the valve construction.

[00:11:32] Speaker 00:
And the

[00:11:34] Speaker 00:
The onboard computer system is sending a signal to put the device into pairing mode.

[00:11:40] Speaker 00:
Or potentially you could have a handheld device that would trigger that.

[00:11:44] Speaker 00:
But in any event, what you're doing is you're sending an electrical magnetic signal to that device telling it, switch from pairing mode into, or switch from normal mode into pairing mode so that we can do the handshake.

[00:11:59] Speaker 06:
So in your conception,

[00:12:03] Speaker 06:
Which item is producing, emitting, outputting the predetermined switching signal?

[00:12:13] Speaker 00:
Well, it could be multiple devices, Your Honor, but it could be, for instance, the onboard microprocessor with the antenna, which is located near the wheel.

[00:12:24] Speaker 00:
That system could be sending a transmitting.

[00:12:26] Speaker 00:
It could be sending that signal.

[00:12:30] Speaker 00:
or it could be a handheld device that's sending that signal.

[00:12:35] Speaker 06:
What if the claim said, which recognizes output of a predetermined switching signal?

[00:12:42] Speaker 00:
Then it would be brought, certainly.

[00:12:44] Speaker 06:
Then it would cover the parts of the spec, like column 13?

[00:12:51] Speaker 06:
Yes.

[00:12:52] Speaker 06:
The mechanical activation?

[00:12:54] Speaker 00:
Correct.

[00:12:56] Speaker 00:
But since it says emit here, Your Honor, in Column 13, it's not using the word emit in connection with that device or that embodiment.

[00:13:06] Speaker 00:
It never uses that term.

[00:13:07] Speaker 00:
Every use of the word emit is in connection with that wireless type of communication between the device and the tire and the antenna.

[00:13:18] Speaker 06:
Is there a discussion in the spec of some item, some device

[00:13:23] Speaker 06:
I guess you said onboard computer or handheld device that's emitting a predetermined switching signal.

[00:13:31] Speaker 06:
Where would that be in the spec?

[00:13:33] Speaker 00:
It would be... I'm trying to find in the figures, Your Honor, here.

[00:13:42] Speaker 00:
The device, in a sense, is the...

[00:13:52] Speaker 06:
There's something that's producing a predetermined switching signal that a detector device would be recognizing.

[00:14:01] Speaker 06:
The detector device is part of the transmitter.

[00:14:03] Speaker 06:
So I'm just wondering, where in the figures or the specification is this particular feature discussed?

[00:14:11] Speaker 06:
And can you point me to a device that's actually emitting a predetermined switching signal?

[00:14:19] Speaker 00:
Your Honor, I think it would be the microprocessor

[00:14:22] Speaker 00:
So if you look at Figure 5, for instance, you've got the microprocessor.

[00:14:27] Speaker 06:
There is a corresponding piece of the written description.

[00:14:47] Speaker 01:
Figure 5 begins to talk about at the bottom of column 7.

[00:14:51] Speaker 01:
if that's helpful.

[00:15:07] Speaker 00:
Sorry, Your Honor.

[00:15:08] Speaker 00:
I'm having a bit of a difficulty finding that right now.

[00:15:11] Speaker 00:
I see that my time has... Okay.

[00:15:15] Speaker 01:
Well, we'll save here rebuttal, and maybe when you come back up, first off, you can...

[00:15:22] Speaker 01:
answer Judge Chen's question.

[00:15:23] Speaker 00:
I will.

[00:15:24] Speaker 01:
Thank you.

[00:15:25] Speaker 01:
Thank you.

[00:15:26] Speaker 01:
All right.

[00:15:27] Speaker 01:
Now, Mr. Collins and Mr. Robeski, you're splitting your time.

[00:15:31] Speaker 01:
And then Mr. Robeski is retaining the rebuttal time.

[00:15:35] Speaker 01:
OK.

[00:15:36] Speaker 01:
So why don't we clock everyone based on the time you've requested.

[00:15:40] Speaker 01:
So we'll clock you at 6 and you at 9.

[00:15:43] Speaker 01:
Thank you very much.

[00:15:47] Speaker 05:
May it please the court, the two terms I'm dealing with, the two terms of claims I'm dealing with

[00:15:52] Speaker 05:
Claim to 1 in 17, Mr. Rupsky will be covering the others.

[00:15:56] Speaker 05:
And really, the question here, a big theme in this case is, did the board apply proper Phillips construction, or did it make a mistake in engaging in the BRI, Broadest Reason Interpretation Construction?

[00:16:08] Speaker 05:
I think the board quite clearly acknowledged it was subject to Phillips.

[00:16:11] Speaker 05:
If you look at what it did, it took the two terms for pressure measuring, for example, and it looked at it and went straight to the spec and said, how does that term use?

[00:16:20] Speaker 05:
saw the background section of the invention, where the term measuring is used to describe binary-type switches.

[00:16:28] Speaker 05:
And there was really not much of a suit below that it can measure.

[00:16:30] Speaker 05:
Based on the physical position of the floating of the membrane, when it hits a certain pressure level, the switch is triggered.

[00:16:37] Speaker 05:
The board also dealt with the corresponding related representative in corresponding terms in describing the signal.

[00:16:44] Speaker 05:
The prior art that was discussed talked about what a binary switch emits is a pressure signal, called a measurement signal even.

[00:16:54] Speaker 05:
Representative, the claim construction that was offered below, is that it symbolizes, or represents symbolizes, and a zero or one can symbolize that pressure has reached a specific threshold.

[00:17:06] Speaker 05:
Corresponding means in accordance or agreement with, which when you hit that level,

[00:17:11] Speaker 05:
It's an agreement that we have hit the level that we want pressure to be triggered.

[00:17:15] Speaker 05:
And that's the way the board looked at it.

[00:17:17] Speaker 05:
That's the construction that was applied.

[00:17:19] Speaker 05:
And they did it quite wholly in the context of the specification.

[00:17:23] Speaker 04:
The chief judge directed Mr. Cain's attention to column 5 of the specification and 81 of the joint appendix.

[00:17:36] Speaker 04:
I'm wondering if you could respond to what Mr. Kane had to say about that.

[00:17:39] Speaker 04:
As I understood it, he's saying this is just talking about timing rather than pressure measurement.

[00:17:46] Speaker 05:
That's exactly where I was going with my next words.

[00:17:48] Speaker 05:
OK.

[00:17:49] Speaker 05:
Fair enough.

[00:17:49] Speaker 05:
No, no, no, no, no.

[00:17:50] Speaker 05:
I'm glad we're on the same track.

[00:17:52] Speaker 05:
Well, to start off, really what their argument is is that this binary or more simplistic switch is used in addition to what I would call the quantitative switch.

[00:18:03] Speaker 05:
for purposes of distinguishing between the two.

[00:18:06] Speaker 05:
Now the way the spec is constructed is we start off with a background and talk about what is a pressure measuring device.

[00:18:12] Speaker 05:
Then they describe in column four this quantitative value as one way to practice it.

[00:18:17] Speaker 05:
Column five starts off with the first alternative.

[00:18:21] Speaker 05:
It's an alternative, not an addition to it.

[00:18:23] Speaker 05:
They're not saying it's an improvement where we take this quantitative switch and add a second switch.

[00:18:28] Speaker 05:
This doesn't talk about timing.

[00:18:30] Speaker 05:
It doesn't talk about there being

[00:18:32] Speaker 05:
two sensors at all.

[00:18:33] Speaker 05:
It's not there.

[00:18:34] Speaker 05:
And where they reference you to go see how you would build a system like what's in column five is to European patent applications.

[00:18:41] Speaker 05:
And if you look at them, they're the same binary switch solution that's in the German reference they start off with.

[00:18:46] Speaker 05:
So really what they're saying here, and I think the board was correct, was that the board really didn't actually deal with column five.

[00:18:53] Speaker 05:
To be honest, they dealt with one in the background.

[00:18:55] Speaker 05:
But they see right here, this is a specification that discloses

[00:18:59] Speaker 05:
binary switches as examples, and there is no, in addition to, there's no disclosure of two switches being used at once.

[00:19:06] Speaker 05:
This doesn't talk about timing, it talks about saving battery.

[00:19:10] Speaker 05:
And just using a binary switch does save battery, that's true.

[00:19:13] Speaker 05:
The other advantages he discussed, they're just not in the specification.

[00:19:19] Speaker 01:
Can you move on then to the claim 17 and the word admittance?

[00:19:23] Speaker 01:
Absolutely.

[00:19:24] Speaker 01:
If there's a plain and ordinary meaning, then you need some sort of disclaimer in the SPAC.

[00:19:28] Speaker 01:
You can't just point to, well, this embodiment references something else, so that's sufficient.

[00:19:34] Speaker 01:
So what is your response to your friend's argument?

[00:19:37] Speaker 05:
For starters, the plain and ordinary meaning of admittance is to send out.

[00:19:41] Speaker 05:
And it doesn't, if you look at the dictionary definitions, they don't say it's wireless.

[00:19:46] Speaker 05:
In fact, the dictionary definition they offer uses

[00:19:49] Speaker 05:
current collection within a semiconductor or transistor as an example, which is clearly not wireless.

[00:19:54] Speaker 05:
So if we start off with a plain and ordinary meaning, right there in the definition they offer is a wired connection.

[00:20:02] Speaker 05:
And the second thing is the way the word admittance is used in the specification, it's quite clear it's not, there's no ever given a special meaning to it or it says it means this and not that or a clear disclaimer.

[00:20:13] Speaker 05:
In fact, it's used largely interchangeably with the word transmit or transmission.

[00:20:18] Speaker 05:
And there's no doubt that you can transmit things over wires.

[00:20:23] Speaker 05:
Telephone calls are transmitted over wires.

[00:20:25] Speaker 05:
The telegraph is transmitted over a wire.

[00:20:27] Speaker 05:
So those terms are used interchangeably.

[00:20:29] Speaker 05:
There's nowhere in the specification where the word emittance, even though it is used to describe wireless transmissions, is given a special meaning.

[00:20:36] Speaker 05:
Or someone jumps out and says, this means something different.

[00:20:39] Speaker 05:
It really means radiate, as opposed to send out over some other type of connection, a hardwired medium or something like that.

[00:20:48] Speaker 05:
And then you look at the specification and you even see in the examples they give running from 12 to column 12 to 13, the bottom half of column 12 talks about the sort of wireless way of activating it, right?

[00:21:02] Speaker 05:
And they don't use the word admittance there either to talk about how it's wirelessly triggered.

[00:21:08] Speaker 05:
What they do is then they go to, you know, the top of column 13 and they give you examples that are clearly and undoubtedly hardwired.

[00:21:17] Speaker 05:
So when you read the term, in the context of the specification, under ODEE, we assume they're trying to cover all their embodiments.

[00:21:24] Speaker 05:
There's no clear statement or disclaimer that they wanted to give up those embodiments.

[00:21:28] Speaker 04:
One question I might interrupt, because time is somewhat fleeting.

[00:21:32] Speaker 04:
Sure.

[00:21:32] Speaker 04:
I was just about done.

[00:21:35] Speaker 04:
The claim says, transmitter comprises a detector device which recognizes emittance of a predetermined switching signal.

[00:21:46] Speaker 04:
Judge Chen was discussing this with Mr. Cain, but where in your view is the predetermined switching signal coming from?

[00:21:55] Speaker 05:
In the patent, or in the prior art, I can tell you, in Auslan, it's push button 106 sends a signal to blocking circuit 102.

[00:22:02] Speaker 05:
And blocking circuit 102 is the detecting device in the prior art, or the detective device.

[00:22:07] Speaker 05:
But in this patent, it would be

[00:22:10] Speaker 05:
In a reed switch, the detector device would be the reed switch because it reacts to a magnet being nearby which closes it.

[00:22:18] Speaker 05:
Or the mechanical activated switching device, it would be whichever component that receives the circuit closure on the mechanical activation.

[00:22:31] Speaker 04:
OK, but where exactly is it?

[00:22:34] Speaker 04:
I'm thinking of the tire, and I'm thinking of the transmitter, and the receiver, and the pressure sensor.

[00:22:41] Speaker 04:
Where is it coming from in terms of those components?

[00:22:45] Speaker 05:
In the wireless embodiment, it would be the detector device is going to be inside the transmitter.

[00:22:52] Speaker 05:
And you emit a signal to that.

[00:22:54] Speaker 05:
From where?

[00:22:56] Speaker 05:
You can use either a handheld device.

[00:22:58] Speaker 05:
These people walk around their cars in a tire shop with a handheld device.

[00:23:01] Speaker 05:
We're clicking the valve?

[00:23:02] Speaker 05:
You can click the valve.

[00:23:03] Speaker 05:
That's a very old way to do it.

[00:23:04] Speaker 04:
But what you're saying is it's indicative of... Okay.

[00:23:10] Speaker 05:
So you can, for example, if you look at the Schultz Prior Art, they talk about a handheld device that sends an infrared signal.

[00:23:16] Speaker 05:
That's one way to do it.

[00:23:17] Speaker 05:
Another way to do it is to have a high-intensity emitter in the receiver that's in the middle of the car that they all talk to.

[00:23:24] Speaker 05:
So the four sensors will talk to the receiver.

[00:23:26] Speaker 05:
The receiver can send the signal out.

[00:23:28] Speaker 05:
Or it could be a push button like Auslan.

[00:23:30] Speaker 05:
There's a number of ways to do this.

[00:23:32] Speaker 05:
And they do disclose actually basically all of them in their specifications.

[00:23:37] Speaker 01:
OK, why don't we hear from your colleague who I assume is going to deal with the cross-appeal.

[00:23:56] Speaker 02:
Good morning.

[00:24:03] Speaker 02:
I'll be addressing primarily the cross-appeal on claims six and nine.

[00:24:07] Speaker 02:
But Judge Shaw, I just wanted to point the court to column 13 at lines 13 through 16, where it talks about the device being on the valve stem of the tire.

[00:24:19] Speaker 02:
And that was, I think, a question that you had in relation to what the device was.

[00:24:23] Speaker 04:
Yeah.

[00:24:23] Speaker 04:
So you're saying the signal that the detector is detecting, or the admittance which it is recognizing is discussed where you just pointed out

[00:24:37] Speaker 04:
lines 13 through 16, basically, of column 13.

[00:24:42] Speaker 02:
Correct.

[00:24:43] Speaker 02:
That's one example.

[00:24:45] Speaker 02:
All right.

[00:24:46] Speaker 02:
I'm sorry.

[00:24:47] Speaker 04:
No, no.

[00:24:47] Speaker 04:
That's fine.

[00:24:48] Speaker 04:
That was what I was looking for.

[00:24:50] Speaker 02:
So turning to claim six and its dependent claims, we believe the board committed legal error by using an improperly heightened anticipation standard, and then second, by either rejecting or failing to consider what was uncontroverted, powerful evidence

[00:25:08] Speaker 02:
in deciding both anticipation and obviousness.

[00:25:12] Speaker 02:
So the legal error with respect to the anticipation standard can be clearly found in both of the board's decisions.

[00:25:19] Speaker 02:
The first, at A18, where the board states that Auslan fails to explicitly state that constant frequency was used.

[00:25:29] Speaker 02:
And then at A54, in the Schrader IPR, required an explicit disclosure.

[00:25:36] Speaker 02:
And the board was even a little clearer at A-18 of the Continental IPR, where the board said it was not persuaded that Oceland's general disclosure, that any modulation scheme may be used, anticipates the specific features of Claim 6.

[00:25:54] Speaker 02:
There was uncontroverted evidence that a person of skill in the art would understand Oceland's any modulation scheme, any modulating scheme, to include PSK.

[00:26:06] Speaker 02:
phase shift team, which is constant.

[00:26:08] Speaker 02:
It was admitted in the yellow brief at page 18 that PSK was known at the time of Auslan.

[00:26:15] Speaker 02:
It is a constant frequency.

[00:26:17] Speaker 02:
And the expert for the patent owner, Andrews, admitted the same at appendix 1264.

[00:26:26] Speaker 06:
What if, hypothetically, any modulation means could be so broad that it comprises

[00:26:35] Speaker 06:
50 possibilities of modulator.

[00:26:39] Speaker 06:
I know you're talking right now narrowly about phase shift keying versus frequency shift keying, but maybe when Oslin was talking about using any modulation means broadly, it could be talking about all different kinds of modulations that could be 50 or more different versions.

[00:27:01] Speaker 06:
Then in that instance, it's hard to say

[00:27:05] Speaker 06:
wouldn't it, that a one of skill in the art, when seeing the term, the very broad generic term, any modulation means in the prior art reference, that one of skill in the art would immediately envisage phase shift keying?

[00:27:20] Speaker 02:
If that hypothetical or art case that might be possible, in the Kenna Metal case, there were 31 different possibilities.

[00:27:28] Speaker 02:
And yet the court said that there was enough to have one of ordinary skill at once envisioned.

[00:27:34] Speaker 02:
What we have here are five possibilities, which was laid out in the modern communications reference that was used.

[00:27:42] Speaker 02:
That's at A 1129 and at A 1189 to 1209.

[00:27:49] Speaker 02:
Only five.

[00:27:50] Speaker 02:
This is like saying, if you want to use, let's say, any piece of silverware to eat, one of skill or a person would know, I have a fork, knife, and spoon.

[00:28:02] Speaker 02:
and choose from among those.

[00:28:04] Speaker 02:
Here we have five different examples.

[00:28:06] Speaker 02:
One of those is phase shift keying.

[00:28:08] Speaker 02:
And it's a disclosure that would immediately envision to one of ordinary skill one of these opportunities.

[00:28:15] Speaker 02:
It's not 50.

[00:28:17] Speaker 02:
It's not 31.

[00:28:18] Speaker 02:
It's five.

[00:28:21] Speaker 02:
So based on that, we believe that that overbroad standard caused the board to reject or to fail to consider some of the very compelling evidence

[00:28:31] Speaker 02:
such as Mr. Andrew's admissions that phase shift keying was known.

[00:28:36] Speaker 02:
It was known to one of ordinary skill.

[00:28:38] Speaker 02:
Constant frequency was known to one of ordinary skill.

[00:28:42] Speaker 02:
And Dr. Mercer's rebuttal testimony at a 1356 to 57 and 1359 to 60 where he explained why phase shift keying constant frequency was known to one of skill in the art.

[00:29:00] Speaker 06:
Could you point me to the part of the appendix which talks about an expert saying when it comes to any modulation means is that phrase was used in the context of the Osmond reference.

[00:29:13] Speaker 06:
You could have only been talking about five different types of modulation.

[00:29:18] Speaker 02:
I can point you to 813.56 to 57.

[00:29:20] Speaker 02:
This is the rebuttal testimony of Dr. Mercer.

[00:29:34] Speaker 02:
This is where he discusses at paragraph 46, using any modulation scheme, and says that Oslin explicitly discloses.

[00:29:46] Speaker 02:
1356, right?

[00:29:47] Speaker 02:
Yes, Your Honor.

[00:29:49] Speaker 02:
Paragraph 46?

[00:29:50] Speaker 02:
Paragraph 46, carrying on to 1357, also paragraph 47.

[00:29:57] Speaker 02:
That's his rebuttal of Mr. Andrews' account in detail.

[00:30:02] Speaker 02:
And it's not clear that the board even considered that.

[00:30:06] Speaker 02:
As we mentioned, there was really no clear explanation, no persuasive reasoning that this court could clearly review to decide what it was that the board did with respect to this powerful evidence that was before it.

[00:30:23] Speaker 06:
So what's the key quote from paragraph 46 you want me to look at?

[00:30:29] Speaker 02:
Osmond, you can look.

[00:30:31] Speaker 02:
that the predicate is maybe achieved using any modulating scheme.

[00:30:34] Speaker 02:
That's Auslan.

[00:30:36] Speaker 02:
And then he says thus Auslan explicitly discloses that the oscillator 11 or the transmitter 10 works on a common frequency and could use any known modulation scheme including PSK and FSK.

[00:30:50] Speaker 02:
And then it goes on to say a person of skill in the art at the time would understand that PSK uses electromagnetic waves of constant frequency

[00:31:00] Speaker 02:
as carryaways.

[00:31:02] Speaker 02:
I think that's pretty clear.

[00:31:13] Speaker 02:
If there are no more questions on claim six, I'll turn to claim nine.

[00:31:18] Speaker 02:
Claim nine is a situation where we believe the board adopted a claim construction advocated by WSICA that required the claim to be rewritten.

[00:31:30] Speaker 02:
And that revealed one of two errors.

[00:31:33] Speaker 02:
Either the claim should have been held indefinite and the IPR proceeding terminated, or the board's claim construction is incorrect.

[00:31:41] Speaker 02:
In either way, we suggest the board should be reversed.

[00:31:46] Speaker 02:
Waseca admits in their brief, the yellow brief at 27, that claim nine perhaps could have been drafted more artfully.

[00:31:53] Speaker 02:
And that's frankly an understatement.

[00:31:56] Speaker 02:
Because the board's claim construction

[00:31:58] Speaker 02:
which said that a bit sequence is something requiring two or more bits, required the claim to be rewritten to change what was at least a four-bit sequence to actually mean at least an eight-bit sequence, or to change the phrase at least a four-bit sequence to mean at least four-bit sequences of two bits each.

[00:32:24] Speaker 02:
So did it say that latter part?

[00:32:28] Speaker 02:
The board did not make clear what type of rewriting it would be doing to the client.

[00:32:35] Speaker 06:
I mean, maybe I don't remember, but I thought the board simply said, based on its reading of the term bit sequence in the claim to always require at least two bits, that would be consistent with the phrase at least a four-bit sequence, because an eight-bit sequence is certainly

[00:32:57] Speaker 06:
comfortably encompassed with the claim language of at least a four-bit sequence.

[00:33:01] Speaker 06:
I don't remember the board saying something about potentially rewriting the claim to be at least four-bit sequences.

[00:33:11] Speaker 02:
Well, the board did not, but this is what we believe happened.

[00:33:14] Speaker 02:
In other words, Your Honor, you properly said that eight is greater than four, but what about between four and eight?

[00:33:21] Speaker 02:
At least a four-bit sequence must mean

[00:33:25] Speaker 02:
You must have something in between 5, 6, 7, or 8.

[00:33:29] Speaker 02:
And if you rewrite it to say only at least an 8-bit sequence, which is what you need to do when you change sequence to 2 bits, then you've read out of the claim 4, 5, 6, 7.

[00:33:41] Speaker 02:
So that's our point.

[00:33:44] Speaker 02:
It's not clear what they did.

[00:33:46] Speaker 02:
It's clear what the construction was.

[00:33:48] Speaker 02:
But the end result, if you interpret it, is just as I said, that it's reading out that portion of the claim.

[00:33:56] Speaker 06:
Do you have your experts say anything like in the parlance of data processing arts, people of skill, when they talk about pit sequence, they can use that phrase in a way that can cover just a single bit to convey a certain kind of data?

[00:34:19] Speaker 02:
Our expert looked first at the situation where we were interpreting

[00:34:27] Speaker 02:
trying to interpret the claim according to the way in which we thought it should be interpreted, which means at least four bits.

[00:34:35] Speaker 02:
But the best I can tell you for what our expert said, let me see what evidence I can find for you, in his original declaration was that paragraph 108, this is A1119.

[00:34:54] Speaker 02:
And that's what he said in the petition.

[00:34:57] Speaker 02:
Later on, I think one of the key points for the court to consider is that even if the two-bit construction is adopted or considered to be correct by this court, it was clearly obvious to use more than one bit.

[00:35:15] Speaker 02:
There was a reference, a bowler reference, OWLER, which wasn't even cited or discussed by the court, perhaps not even considered by the board.

[00:35:25] Speaker 02:
It's undisputed that that Bowler reference has more than one bit, has several bits for each of the data identification.

[00:35:34] Speaker 06:
And... But did you put that together for the board in your petition?

[00:35:38] Speaker 06:
Where you said, hey, look at Bowler.

[00:35:42] Speaker 06:
Bowler just, you know, it would be obvious to modify the primary reference with multiple bits.

[00:35:49] Speaker 02:
We said it would be obvious to have more than one bit

[00:35:54] Speaker 02:
although our interpretation was they could have single bits.

[00:35:59] Speaker 02:
And when in reply, remember, there was no patent owner's response, preliminary response.

[00:36:05] Speaker 02:
There was a response.

[00:36:06] Speaker 02:
And in our reply, we, using the patent owner's interpretation, then put in the evidence of bowler, which was not considered.

[00:36:14] Speaker 02:
And in fact, bowler was something that if the patent owner wished, the patent owner could have asked for a surreply, never did.

[00:36:23] Speaker 02:
The patent owner did object to the consideration of Bowler.

[00:36:27] Speaker 02:
The patent owner mentioned Bowler at oral argument.

[00:36:30] Speaker 02:
But it was never considered.

[00:36:32] Speaker 02:
And it's clear from Bowler and from the testimony of Dr. Mercer.

[00:36:38] Speaker 02:
What's the site in your reply brief, your reply?

[00:36:42] Speaker 02:
The reply is at page six.

[00:36:44] Speaker 02:
I just have to find our reply.

[00:36:58] Speaker 02:
I'm sorry, six was the other one.

[00:36:59] Speaker 02:
It's at page 13.

[00:37:01] Speaker 02:
So it's A442.

[00:37:05] Speaker 02:
And we say at the top, even if Waseca's claim interpretation applies, it would be obvious to use a multi-bit sequence for the measured pressure signal or for the preamble or postamble.

[00:37:19] Speaker 02:
Exhibit 1018, that was Mercer's declaration, rebuttal declaration.

[00:37:23] Speaker 02:
Exhibit 1019, that was Bowler.

[00:37:26] Speaker 02:
Bowler's in the appendix at 1450.

[00:37:29] Speaker 02:
So that's where it was clearly mentioned.

[00:37:31] Speaker 02:
Yeah.

[00:37:32] Speaker 02:
You got a single sentence in your reply, though.

[00:37:36] Speaker 02:
Yes.

[00:37:36] Speaker 02:
We would hope it would be enough for the board to read the reference.

[00:37:39] Speaker 02:
The reply is limited.

[00:37:41] Speaker 02:
And we did argue it at the oral argument.

[00:37:46] Speaker 02:
So it wasn't something that the board wasn't aware of.

[00:37:49] Speaker 02:
We had slides.

[00:37:50] Speaker 02:
We had demonstrative exhibits that brought to the attention of the board bowler.

[00:37:55] Speaker 02:
And frankly, the issue was not whether one of ordinary skill would think that there could be, or it would be obvious to have more than one bit as part of a data sequence.

[00:38:09] Speaker 02:
There were remersals, rebutted declaration, as I said, as well as the explicit reasons to modify Auslan.

[00:38:16] Speaker 02:
That's at A1363, paragraph 58.

[00:38:19] Speaker 02:
I see that I'm going into my rebuttal time at this point.

[00:38:26] Speaker 01:
You've actually taken all of your rebuttal time.

[00:38:30] Speaker 01:
But we'll restore two minutes of rebuttal.

[00:38:33] Speaker 01:
I think I have reserved five minutes after this.

[00:38:38] Speaker 01:
Yes, but you started with 14 minutes, and you've gone through your 14 minutes.

[00:38:44] Speaker 01:
I'm sorry.

[00:38:45] Speaker 01:
We'll restore three minutes.

[00:38:48] Speaker 01:
And in order to keep it even, your friend went over a minute.

[00:38:50] Speaker 01:
So we'll give you four minutes in addition to what you have.

[00:38:55] Speaker 01:
or minutes for the appellant, additional minutes.

[00:39:00] Speaker 01:
You had held on to about six of your rebuttals, and I will bring you up to 10.

[00:39:04] Speaker 00:
Thank you, Your Honor.

[00:39:06] Speaker 00:
So Judge Chen, to get to your point, in terms of the pairing mode and the operation of that pairing mode in terms of the antenna, there's a discussion at bottom of column 9, top of page 10 that gets into that.

[00:39:22] Speaker 00:
Probably the clearer one is another embodiment, though,

[00:39:25] Speaker 00:
The column 12 begins at line 46.

[00:39:29] Speaker 00:
It talks about it is also possible to use the additional antenna and the additional signal processing circuit as represented by the dashed line in figure 2, only when the pairing mode is initiated.

[00:39:44] Speaker 00:
So again, it's talking there about the antenna sending a signal, a wireless signal, to the transmitting device in the tire.

[00:39:55] Speaker 06:
Is that what that says right there?

[00:39:57] Speaker 06:
I mean, I don't see those words that you just said in that sentence that you just read.

[00:40:02] Speaker 00:
Well, it has to be written in context, Your Honor, but it's talking about putting the device, if you go higher in that column, starting at line 34, in this case, a signal transmitted to the transmitting device, which is the device on the tire,

[00:40:25] Speaker 00:
talks about then the microprocessor, et cetera.

[00:40:27] Speaker 00:
And then the next paragraph talks about the fact that you can use the antenna to send that signal.

[00:40:33] Speaker 00:
If you read over into 13, it also describes the handheld device.

[00:40:38] Speaker 00:
It could have a magnet on the outside of the device to close a switch inside the tire, so you could hold the switch there.

[00:40:45] Speaker 00:
That would be another way to transmit the signal.

[00:40:49] Speaker 00:
So they're giving it a variety of ways, but at 12,

[00:40:53] Speaker 00:
A paragraph that begins at 46, I think, gives a pretty clear explanation that they're using the antenna to transmit a signal to.

[00:41:02] Speaker 06:
OK.

[00:41:02] Speaker 06:
So I guess you would say antenna, column 12, read contact, column 13, but stop right there.

[00:41:12] Speaker 06:
Ignore the mechanical activated switching device in column 13 because that isn't encompassed by the word emittance.

[00:41:22] Speaker 06:
Correct, Your Honor.

[00:41:23] Speaker 00:
That is our position.

[00:41:27] Speaker 00:
With respect to the timing issue, bottom of column four, top of column five, and there's no real dispute, I don't think you're honest, that that's exactly what it is.

[00:41:42] Speaker 00:
It's the timing of when that pressure is going to be taken.

[00:41:46] Speaker 00:
There's been an argument made in the briefing that it didn't make sense to have two separate

[00:41:52] Speaker 00:
pressure measuring devices here because you would use battery.

[00:41:56] Speaker 00:
But the whole point is the mechanical switch doesn't use any battery.

[00:42:01] Speaker 00:
It's a mechanical switch.

[00:42:02] Speaker 00:
It's a membrane floating against the pressure, and only when it closes that switch does it activate the electrical circuit to take a pressure measurement and then output a representative value.

[00:42:16] Speaker 06:
I'll be honest.

[00:42:17] Speaker 06:
When I read column five to me, it looked like

[00:42:21] Speaker 06:
The patent was telling me that, as it told the board, that you can use a switch-based pressure sensor to measure the pressure.

[00:42:33] Speaker 06:
You're telling me, no, it's really saying it's when you activate the measuring device.

[00:42:42] Speaker 06:
But I guess what I ask you is where in column five does it say

[00:42:47] Speaker 06:
OK, we're just talking about these European patents solely in the context of when to measure.

[00:42:53] Speaker 06:
And then after we've activated the measuring device, now the measuring device is going to go get a number.

[00:43:03] Speaker 06:
I mean, where does it say that in column five?

[00:43:05] Speaker 00:
Well, again, it starts on column four, Your Honor.

[00:43:07] Speaker 00:
So it's this whole discussion.

[00:43:10] Speaker 00:
But the whole discussion is, are we going to operate these?

[00:43:12] Speaker 00:
Is the pressure measurement device going to operate continuously or non-continuously?

[00:43:18] Speaker 00:
and there's a bit of an anomaly because they call it once per minute continuously, but that aside, that's what this is describing.

[00:43:25] Speaker 00:
It's describing the timing and it gives those various things, once per minute.

[00:43:30] Speaker 00:
That's one timing scenario.

[00:43:32] Speaker 00:
Another timing scenario is when this mechanical trigger or switch is activated.

[00:43:39] Speaker 00:
Another is when it's initiated externally by the driver.

[00:43:45] Speaker 00:
So all of these

[00:43:46] Speaker 00:
tell when the measurement's going to occur, not how the measurement occurs.

[00:43:53] Speaker 00:
You've got a list of here are the times when it can occur.

[00:43:58] Speaker 00:
It can occur once per minute.

[00:44:00] Speaker 00:
It can occur when the mechanical switch is triggered.

[00:44:05] Speaker 00:
It can occur when it's externally initiated.

[00:44:08] Speaker 00:
So those are all of a kind, and they're all of when, not how or what.

[00:44:14] Speaker 00:
So that is

[00:44:15] Speaker 00:
I think that's the way to read this, Your Honor.

[00:44:17] Speaker 00:
And really, part of where I think the board got wrong is if you look at the board's claim construction, they did not even look at representative.

[00:44:30] Speaker 00:
They did not look at corresponding.

[00:44:32] Speaker 00:
They stopped at pressure measuring device.

[00:44:35] Speaker 00:
And they concluded these mechanical switches are pressure measuring devices.

[00:44:39] Speaker 00:
We agree.

[00:44:41] Speaker 00:
I'm sorry.

[00:44:42] Speaker 06:
Could you get to the cross appeal?

[00:44:43] Speaker 06:
I want to make sure you have

[00:44:45] Speaker 06:
Enough time, adequate time to address both those issues.

[00:44:49] Speaker 00:
Certainly.

[00:44:49] Speaker 00:
I think we can get those.

[00:44:59] Speaker 00:
With respect to claim six, we're talking about no claim construction here, factual findings by the board, standard review is substantial evidence.

[00:45:11] Speaker 00:
So the question is, is there substantial evidence supporting the board's conclusion?

[00:45:16] Speaker 06:
Phase shift keying is a modulation means.

[00:45:19] Speaker 06:
Oslin says any modulation means.

[00:45:21] Speaker 06:
So why doesn't Oslin disclose a phase shift keying way of doing the modulation, which therefore would be at a constant frequency?

[00:45:31] Speaker 06:
What's the problem with that logic?

[00:45:34] Speaker 00:
Well, I think a couple of comments on that.

[00:45:37] Speaker 00:
First of all, that was an argument first time raised on reply.

[00:45:43] Speaker 00:
as we've noted here.

[00:45:45] Speaker 00:
The board addressed it, though.

[00:45:46] Speaker 00:
The board did address it.

[00:45:48] Speaker 00:
And they found that the word any modulated.

[00:45:51] Speaker 00:
I mean, first of all, the argument made in the reply brief is sort of the Ken Metal argument, that this is a small genus.

[00:45:57] Speaker 00:
You have to, once you know that you're doing some sort of modulating scheme, this is one of them.

[00:46:01] Speaker 00:
You have to use it.

[00:46:03] Speaker 00:
Or it would be readily apparent to a person of skill to use it.

[00:46:06] Speaker 00:
But as the board found, there's no showing.

[00:46:08] Speaker 00:
And there is no evidence in the record this is a small genus, that this

[00:46:12] Speaker 00:
You know, just the fact that you can go find a phase shifting key versus other types of modulation schemes doesn't, in the art, doesn't mean that it was, that any, saying the word any modulating scheme anticipates.

[00:46:27] Speaker 00:
That's, I think, where they fall down in that part.

[00:46:32] Speaker 00:
The second part is the, as the board rightly noted, on the obviousness angle, they provided no

[00:46:42] Speaker 00:
reasoning at all.

[00:46:44] Speaker 00:
There's a single paragraph.

[00:46:46] Speaker 06:
Can you go back to the first part?

[00:46:47] Speaker 06:
Yes.

[00:46:47] Speaker 06:
Which was, I guess, the other side made the analogy that this is like picking up silverware.

[00:46:54] Speaker 06:
There's a set of well-known limited choices and that they pointed to, I don't know, maybe a definition somewhere that suggested there's a limited number.

[00:47:05] Speaker 00:
There is no evidence, your honor, that there's a limited number and that's exactly what the board said.

[00:47:09] Speaker 00:
They cite no evidence

[00:47:11] Speaker 00:
that there is a limited number of choices.

[00:47:14] Speaker 00:
All they've said is the patent shows a couple.

[00:47:19] Speaker 00:
And these are well-known.

[00:47:21] Speaker 00:
So it's a design choice.

[00:47:23] Speaker 00:
This particular one is well-known.

[00:47:24] Speaker 00:
That's a design choice.

[00:47:25] Speaker 00:
That's not saying that they've never done anything to identify what the number of choices might be.

[00:47:33] Speaker 00:
And so the board rightly rejected that kind of an argument.

[00:47:37] Speaker 06:
Can we go to the four-bit sequence problem in the claim?

[00:47:41] Speaker 06:
Sure.

[00:47:43] Speaker 06:
I mean, to me, at least a four-bit sequence, that's a pretty strong signal that the patentee or the drafter is contemplating a sequence that can be four bits.

[00:47:56] Speaker 06:
And then the only way you can do that is for each of the four parts of that four-bit sequence to be a single bit.

[00:48:08] Speaker 00:
Well, but is the board properly found

[00:48:11] Speaker 00:
These are bit sequences.

[00:48:14] Speaker 00:
And it's undisputed that bit sequences are plural, need more than one bit.

[00:48:21] Speaker 06:
So in our minds, when we see at least a four bit sequence in the claim, we should erase the number four from our minds and replace it with eight?

[00:48:33] Speaker 00:
I think that while the board said eight bits is greater than four bits, so there's no inconsistency with the claim language.

[00:48:40] Speaker 06:
So we've read four, five, six, and seven out of the claim, right?

[00:48:43] Speaker 00:
Well, and as we pointed out, Your Honor, if they had a six-bit sequence, they would have a great non-infringement argument.

[00:48:50] Speaker 00:
If they had, they would be arguing that.

[00:48:53] Speaker 06:
Right.

[00:48:53] Speaker 06:
So we have to ignore the embodiment of a four-bit sequence, a five-bit sequence, a six-bit sequence, and a seven-bit sequence.

[00:49:01] Speaker 00:
They're not covered by this claim because the claim requires four-bit sequences.

[00:49:07] Speaker 00:
Well, it says it.

[00:49:08] Speaker 00:
least a four-bit sequence, right?

[00:49:10] Speaker 00:
Right.

[00:49:10] Speaker 00:
It says at least a four-bit sequence, but then it talks about a four-bit sequence.

[00:49:14] Speaker 00:
Excuse me, Your Honor.

[00:49:16] Speaker 00:
But then it talks about each sequence being in the plural sense, bit sequences, the first bit sequence.

[00:49:24] Speaker 00:
So there are multiple bits in each sequence, so that if there are four sequences, you get eight bits.

[00:49:32] Speaker 00:
And the claim would not cover five bits or six bits or seven bits or four

[00:49:38] Speaker 00:
or even four bits.

[00:49:44] Speaker 01:
You have passed your time.

[00:49:45] Speaker 01:
You have one final sentence or statement you want to give us.

[00:49:49] Speaker 00:
Again, Your Honor, on that one, again, the Board properly found that the petitioners had not provided any

[00:50:03] Speaker 00:
articulated reasoning with rational underpinnings, for national underpinnings to make any kind of modifications in the prior art to fall within the scope of these claims.

[00:50:15] Speaker 00:
So no further questions.

[00:50:18] Speaker 00:
Thank you.

[00:50:35] Speaker 02:
first to claim six to the point of the limited number of species.

[00:50:40] Speaker 02:
We mentioned in Dr. Mercer's original declaration at A 1118, paragraphs 106 and 107, the other modulating schemes and also modern communications, which was cited.

[00:50:55] Speaker 02:
It's exhibit 1014.

[00:50:58] Speaker 02:
It's in our appendix at A 1189 and following to 1209.

[00:51:03] Speaker 02:
I'm sorry.

[00:51:04] Speaker 06:
Before you give us a bunch of page numbers, can you quote us exactly what you want us to read?

[00:51:12] Speaker 02:
Yes.

[00:51:13] Speaker 02:
I will quote paragraph 107, where it says.

[00:51:17] Speaker 02:
Paragraph 107 of what page?

[00:51:19] Speaker 02:
Oh, at A1118.

[00:51:21] Speaker 02:
This is Dr. Mercer.

[00:51:26] Speaker 02:
And it's at the end where he says, such transmission techniques were well known in the art at the time of the 534 patents filing.

[00:51:34] Speaker 02:
That's a constant frequency transmission technique.

[00:51:38] Speaker 02:
Exhibit 1014.

[00:51:40] Speaker 02:
And Exhibit 1014 is the Modern Communications publication.

[00:51:45] Speaker 02:
That's the one that lists the five different types of modulating schemes.

[00:51:50] Speaker 06:
The only evidence in the record is... What page is Exhibit 1014 on?

[00:51:55] Speaker 02:
A 1189 through 1209.

[00:52:00] Speaker 02:
It's in the next volume if you want to turn today.

[00:52:04] Speaker 02:
And it is a treatise, a chapter from a treatise.

[00:52:15] Speaker 02:
You can see modern communications and spread spectrum.

[00:52:19] Speaker 02:
And if you go through those pages, you will see identified.

[00:52:23] Speaker 02:
The first thing is phase shift keying.

[00:52:26] Speaker 02:
It's on 1192.

[00:52:27] Speaker 02:
You can see in the bold heading there.

[00:52:32] Speaker 02:
And then it lists

[00:52:34] Speaker 02:
the other types of keying, frequency shift, keying, and the like.

[00:52:38] Speaker 02:
So all that's in the record is that there were five different types.

[00:52:43] Speaker 02:
And that was admitted when you're looking for the correlation between the constant frequency and oscillant.

[00:52:51] Speaker 02:
It was admitted by Mr. Andrews in his deposition, which, we'll get back to that.

[00:53:00] Speaker 02:
It's in A,

[00:53:03] Speaker 02:
1264, where he was asked, question, in fact, Oswin states the result may be used in any modulating scheme, correct?

[00:53:12] Speaker 02:
Answer, that's what he says.

[00:53:14] Speaker 02:
Question, and as you've testified at the time, at this particular time, ASK, PSK, and FSK were all well known?

[00:53:20] Speaker 02:
That's correct.

[00:53:22] Speaker 02:
ASK and PSK are concept.

[00:53:25] Speaker 02:
I'm going to try in 15 seconds to do the other part with respect to claim nine and simply say, with respect to claim nine,

[00:53:33] Speaker 02:
The claim is obviously, or I should say clearly, a challenge claim.

[00:53:38] Speaker 02:
It has indefiniteness issues.

[00:53:40] Speaker 02:
If it's interpreted the proper way, we think there is clear anticipation by Oslin.

[00:53:46] Speaker 02:
And if not, it's obvious.

[00:53:48] Speaker 02:
And there's nothing that said that using more than one bit, using two bits or more, is something that produces a new unexpected or a novel result.

[00:53:58] Speaker 02:
Thank you.

[00:53:59] Speaker 02:
We thank both sides in the case's support.