[00:00:03] Speaker 01:
Good morning, everyone.

[00:00:04] Speaker 01:
The first argued case this morning is number 172518, Advanced Touchscreen Against Samsung Electronics.

[00:00:14] Speaker 01:
Mr. McMahon.

[00:00:22] Speaker 00:
Please, the court.

[00:00:24] Speaker 00:
I'm Emmett McMahon, representing Advanced Touchscreen.

[00:00:27] Speaker 00:
By the way, Advanced Touchscreen is the entity that

[00:00:30] Speaker 00:
is owned by the inventor, Lester Ludwig, who is the named inventor on all four of the patents that issue, as well as the 068 patent that has been referenced in the briefs.

[00:00:44] Speaker 00:
There are four patents that were involved in this IPR appeal.

[00:00:47] Speaker 00:
And for reference to help the court, I'm going to refer primarily to the 303 patent.

[00:00:53] Speaker 00:
I'll also make references to the appendix when necessary.

[00:00:56] Speaker 00:
But the specification is the same.

[00:00:58] Speaker 00:
in all of these patents.

[00:01:02] Speaker 03:
The PTAP board... And I'm correct, am I not, that the patents were found invalid over two sets of references, Westermann and Bach, and then Urey plus, and that your argument with regard to the Urey accommodation is restricted to claim construction?

[00:01:20] Speaker 00:
Yes, your honor.

[00:01:21] Speaker 00:
That's correct.

[00:01:22] Speaker 00:
The finger flick and the recognizing.

[00:01:24] Speaker 03:
So if we were to agree with the board's claim construction on the early rejections, we wouldn't need to reach the others?

[00:01:31] Speaker 00:
That's correct.

[00:01:32] Speaker 03:
Thank you.

[00:01:34] Speaker 00:
On both of those, because the finger flick construction only involves three of the patents, your honor.

[00:01:39] Speaker 00:
But the recognizing claim construction is involved.

[00:01:42] Speaker 03:
That's what I understood.

[00:01:43] Speaker 03:
Thank you very much.

[00:01:44] Speaker 00:
All right.

[00:01:44] Speaker 00:
So with respect to the, I'm going to address the two

[00:01:50] Speaker 00:
fundamental errors which we have addressed in our briefs.

[00:01:54] Speaker 00:
That is that down below the board really erred in circumventing the inoperability requirement of the law by holding that a physical substitution is not required.

[00:02:07] Speaker 00:
And then I'm going to address the finger flick construction.

[00:02:11] Speaker 00:
And if the court has other questions, for example, on the recognizing, I'll be glad to address that too.

[00:02:15] Speaker 02:
What is the inoperability requirement of the law?

[00:02:19] Speaker 02:
Two references each have components which, reasonably put together, anticipate what's claimed.

[00:02:29] Speaker 02:
What is the inoperability requirement of the law?

[00:02:32] Speaker 02:
You're not claiming that your invention is inoperable?

[00:02:36] Speaker 00:
No, we're not claiming that.

[00:02:37] Speaker 00:
It's our invention, Your Honor.

[00:02:38] Speaker 00:
What we're claiming is that the combination that was alleged in this case was Westerman combined with Bach.

[00:02:47] Speaker 00:
And the evidence was that that combination, the Bach sensors that were alleged as part of the combination, had oscillators in them.

[00:02:57] Speaker 00:
They would create so much distortion that the Westerman invention, as modified by Bach, would not operate as intended.

[00:03:04] Speaker 00:
And that was undisputed down below.

[00:03:07] Speaker 00:
We introduced evidence that the combination, the Bach sensors with the distortion or the crosstalk

[00:03:16] Speaker 00:
would create such debilitating crosstalk that a person of ordinary skill would not want to combine them and would not be motivated.

[00:03:24] Speaker 02:
Well, the board found that the Bach sensors did not need to be physically incorporated into the combination.

[00:03:31] Speaker 00:
And that was the error, Your Honor.

[00:03:32] Speaker 00:
Yes.

[00:03:33] Speaker 00:
Yes, they did do that.

[00:03:34] Speaker 01:
And the reason is... The board found that you didn't necessarily have to include the oscillation.

[00:03:42] Speaker 01:
Isn't that right?

[00:03:43] Speaker 01:
That just simply

[00:03:45] Speaker 01:
to take the broad aspect of placing a transparent covering and ignoring the oscillation.

[00:03:53] Speaker 01:
And isn't your argument necessarily that you couldn't combine them that way?

[00:03:59] Speaker 00:
Yes, Your Honor.

[00:04:00] Speaker 00:
You could not combine Bach and Westermann and get a working device.

[00:04:05] Speaker 01:
But why not?

[00:04:06] Speaker 01:
Why couldn't you do what the board did?

[00:04:09] Speaker 00:
Well, that's claim one.

[00:04:10] Speaker 00:
I mean, they ignored the sensors in Bach one.

[00:04:15] Speaker 00:
And in essence, just determined as based on some general knowledge of skill in the art without any evidence that a person of ordinary skill would know to use a touch screen.

[00:04:27] Speaker 00:
But that is really ground one that they refused to initiate the review upon.

[00:04:36] Speaker 00:
So the confusion arose because Samsung, it lumped its ground one, which was Westermann only.

[00:04:44] Speaker 00:
under 103, and it's ground two, which was Westerman and Bach.

[00:04:49] Speaker 00:
It lumped them together in one claim chart when it filed its petition.

[00:04:54] Speaker 00:
And in that claim chart, when you talk about the element that involves the touchpad or the transparent touchpad, there are two plus pages of single-space structure that are trying to support their claims based on Westerman.

[00:05:09] Speaker 00:
At the very end, again, they have 10 lines that address Bach.

[00:05:14] Speaker 00:
And in those 10 lines, they make nine references to the sensors or to a touch pad, which has to have sensors in order to be a touch pad.

[00:05:23] Speaker 00:
So the combination with Bach, and they refer to it as a fleeting, I think, reference to Bach, and it was, but it's the only reference to Bach.

[00:05:33] Speaker 00:
And every time they refer to Bach, they refer to the touch pad or the proximity sensors of Bach.

[00:05:39] Speaker 00:
And our evidence is that those

[00:05:41] Speaker 00:
The combination, and this was, again, undisputed, that if someone were to combine the censors of Bach into Westerman as alleged in their petition, it would not work.

[00:05:56] Speaker 00:
Westerman would not be able to provide the multi-touch and the sensitivity that it had.

[00:06:02] Speaker 00:
That was undisputed.

[00:06:03] Speaker 00:
There was no evidence that conflicted that.

[00:06:05] Speaker 00:
So that's the record before us.

[00:06:08] Speaker 00:
When we introduced the evidence of the inoperability,

[00:06:11] Speaker 00:
Then Samsung changed cores and started to rely on the sensors, apparently in its brief now, and the sensors in Westermann.

[00:06:21] Speaker 02:
The board said Petitioner did not propose replacing Westermann's sensors with Bach sensors, but rather relies upon Bach for its express teaching of the transparent touchpad.

[00:06:33] Speaker 00:
That is inaccurate, Your Honor.

[00:06:34] Speaker 00:
And that's another part of this error here.

[00:06:37] Speaker 00:
If we're looking at it, the Bach, the combination

[00:06:41] Speaker 00:
did reference.

[00:06:42] Speaker 00:
It's on pages 880 and 881 of the appendix, where they refer to Bach, and they refer to the Bach censors.

[00:06:49] Speaker 00:
At no time in this claim chart, or even in the discussion about it, did they ever allege that they would take, for example, a dumb screen, a piece of glass that's transparent from Bach, and put that into Westerman over the censors in Westerman.

[00:07:04] Speaker 00:
Another point that's important to understand that I need to make is that in Westerman,

[00:07:10] Speaker 00:
The examiner had already determined that Westerman was not transparent.

[00:07:16] Speaker 00:
He made that determination twice in the prosecution of the 303 patent.

[00:07:20] Speaker 00:
He said, Westerman fails to teach the transparent touchpad for positioning over a visual display.

[00:07:27] Speaker 00:
That was a decision by the examiner, the expert, and based on that decision, the board decided not to institute on ground one, Westerman only,

[00:07:39] Speaker 00:
and to only institute on the combination.

[00:07:42] Speaker 00:
So our position here is that the arguments relating to whether you can just take Westermann and make it transparent.

[00:07:51] Speaker 00:
We're not properly before the board.

[00:07:53] Speaker 00:
They're not properly before this court.

[00:07:56] Speaker 00:
That is a ground that was never instituted upon.

[00:07:58] Speaker 00:
The ground involving Westermann included a combination with the box sensors.

[00:08:05] Speaker 00:
They would not work.

[00:08:06] Speaker 00:
And the law in the N. Ray Motech case is very clear, and I think the board erred, unfortunately, in that ruling, in saying that the box sensors need not be incorporated into Westerman.

[00:08:21] Speaker 00:
That's just contrary to decades of jurisprudence from this court, as well as others.

[00:08:27] Speaker 00:
N. Ray Motech, this court, expressly addressed both issues, one issue being if you insert components from one

[00:08:37] Speaker 00:
one piece of art into another one.

[00:08:40] Speaker 00:
You know, the person of ordinary skill is contemplating them.

[00:08:42] Speaker 00:
Would it destroy the physical structure?

[00:08:45] Speaker 00:
That was an issue that was raised in that case, and the court said you don't have to address that.

[00:08:49] Speaker 00:
But those are two separate questions.

[00:08:51] Speaker 00:
In the same case, one paragraph below it, this court also addressed inoperability as a separate issue.

[00:08:58] Speaker 00:
So our point is it is an error of law for the board to have concluded that it need not determine

[00:09:07] Speaker 00:
or need not dispense with the inoperability issue by merely concluding that physical substitutions are not required.

[00:09:15] Speaker 00:
It mixed the two tests that are distinct, tests that were set out in the Westerman opinion.

[00:09:24] Speaker 00:
Then after it made that error, then it addressed this Westerman, and our position there again is that it really tried ground one, which it denied

[00:09:36] Speaker 00:
institution on, and we were denied an opportunity to process, an opportunity to present our case.

[00:09:43] Speaker 00:
A quote from the board states, this is in Appendix 143, it's in each of the final decisions, but the board stated, for both obviousness grounds, based on Westermann alone and in combination with Bach, petitioner relies on Westermann and not Bach to teach the suggested censors.

[00:10:05] Speaker 00:
That sentence, I respectfully submit, is loaded with error.

[00:10:09] Speaker 00:
First of all, for both obviousness grounds based on Westerman alone, what was the board even inquiring about Westerman alone?

[00:10:16] Speaker 00:
It specifically said it was not going to institute based on Westerman alone.

[00:10:20] Speaker 00:
It should not have been addressing this issue and the decision.

[00:10:24] Speaker 00:
So it wrapped the analysis on Westerman, revisited what the examiner did, but inserted it under the name of the Bach combination.

[00:10:32] Speaker 00:
That was outside the scope of what was set forth in the decision to institute.

[00:10:37] Speaker 00:
And then the last half of that sentence is even more error, because then the board said, in combination with Bach, petition relies on Westerman and not Bach to teach us suggested censors.

[00:10:49] Speaker 00:
That's just not accurate either.

[00:10:51] Speaker 00:
As we stated in page 880 to 881 of the appendix and the other ones involved in the other three, they clearly reference the Bach censors.

[00:11:01] Speaker 00:
Samsung can't have its cake and eat it, too.

[00:11:04] Speaker 00:
The examiner stated that the sensors, that Westerman was not transparent.

[00:11:11] Speaker 00:
There's evidence in the prosecution that it had transistors.

[00:11:14] Speaker 00:
Our evidence was that transistors were not transparent at that time.

[00:11:19] Speaker 00:
Westerman, the expert from, Samsung's expert, did not dispute that.

[00:11:26] Speaker 00:
So

[00:11:32] Speaker 00:
Losing my train of thought here.

[00:11:33] Speaker 00:
So, oh.

[00:11:37] Speaker 00:
It happens.

[00:11:39] Speaker 00:
Yeah.

[00:11:39] Speaker 00:
It gets more senior, Your Honor.

[00:11:40] Speaker 00:
I'm sorry.

[00:11:41] Speaker 00:
Oh, so any event, so they can't have their cake and eat it, too, is my point.

[00:11:47] Speaker 00:
The Westerman censors are opaque.

[00:11:50] Speaker 00:
And that was clearly, there's no evidence.

[00:11:52] Speaker 00:
They were not transparent.

[00:11:54] Speaker 00:
That was not a transparent screen.

[00:11:57] Speaker 00:
That's what the evidence shows.

[00:11:58] Speaker 00:
The examiner believed it.

[00:12:00] Speaker 00:
The board refused to go forward with that.

[00:12:02] Speaker 00:
So where are you going to get the sensors from?

[00:12:03] Speaker 00:
We're still trying to figure this out today based on the vague submission that they had in their chart.

[00:12:10] Speaker 00:
If they turn to Bach and try to use those sensors, they won't work.

[00:12:14] Speaker 00:
It's inoperable and that's not disputed.

[00:12:16] Speaker 00:
They get the sensors from Westerman, it's opaque and you don't have a transparent screen.

[00:12:21] Speaker 00:
So either way, they still have not satisfied their proof of establishing transparency.

[00:12:30] Speaker 00:
On the finger flick, Your Honors, I think the law is very clear there from the multi-tech versus Microsoft case that the statements made in a prosecution related, even if it's subsequently made, they were very

[00:12:49] Speaker 00:
clear statements of disavowal by the inventor.

[00:12:52] Speaker 00:
And the panel at the PTAP clearly erred in considering what it thought the examiner was thinking.

[00:13:02] Speaker 00:
The examiner's thoughts or comments are irrelevant.

[00:13:04] Speaker 00:
It's always been the law that what the inventor says is what needs to be looked at when you have a disavowal.

[00:13:10] Speaker 00:
And that's so the public will know what the inventor means by the scope of his invention.

[00:13:15] Speaker 01:
Thank you.

[00:13:15] Speaker 01:
Thank you.

[00:13:24] Speaker 01:
Mr. Dribble.

[00:13:28] Speaker 04:
May it please the court.

[00:13:29] Speaker 04:
Doug Hallward-Driemeier on behalf of Petitioner Samson.

[00:13:33] Speaker 04:
I think we need to establish that the petition did never suggest incorporating box sensors.

[00:13:44] Speaker 04:
The board made that finding specifically at page A55 to 56.

[00:13:49] Speaker 04:
And I have to apologize to the court

[00:13:51] Speaker 04:
I have been preparing with references to the 076 case, my friend to the 303 case, but the substance is the same with respect to these two things.

[00:14:03] Speaker 04:
So at page A55 to 56, the board specifically considered the inoperability argument and said that it is premised on an incorrect understanding of the combination, that it requires incorporating box sensors.

[00:14:19] Speaker 04:
And the petitioner had never suggested incorporating Bach sensors, but instead taking the teaching of transparency from Bach, which was explicit in Bach, and applying that to Westermann's multi-touch screen.

[00:14:34] Speaker 04:
And that's true.

[00:14:34] Speaker 04:
It traces through perfectly from the petition through institution to the final written decision.

[00:14:41] Speaker 04:
In the petition, and this is at A5289, we said,

[00:14:46] Speaker 04:
that it would be obvious and straightforward to use transparent materials to form Westermann's multi-touch screen as taught by Bach.

[00:14:56] Speaker 04:
So it's Westermann's multi-touch screen as taught by Bach to be transparent.

[00:15:01] Speaker 04:
In the institution decision.

[00:15:03] Speaker 01:
But your friend says it must include the oscillation aspect of Bach when you say as taught by Bach.

[00:15:10] Speaker 04:
Well, that's not so, Your Honor.

[00:15:13] Speaker 04:
First of all, on the first page of Bach,

[00:15:16] Speaker 04:
Oscillating sensors are just one of three forms of capacitors that are described.

[00:15:21] Speaker 04:
The reference to using a transparent screen over the display, the video display unit, to make it a superior screen does not reference oscillators or any other particular form of capacitor, oscillators being only one embodiment of box.

[00:15:39] Speaker 04:
And the other thing is, your honor, that

[00:15:43] Speaker 04:
We produced evidence in the form of Mr. Ward's testimony, which was credited at page A42, and seven different references that are cited in the paragraphs of his declaration that were relied on by the board of other references in the art at the time to make clear that transparent touchscreens were common.

[00:16:09] Speaker 04:
And it would have been obvious to a person of ordinary skill in the art

[00:16:12] Speaker 04:
to make Westerman's multi-touch screen of transparent materials, i.e.

[00:16:19] Speaker 04:
conductive or dielectric materials, is what was stated in petition at page 20.

[00:16:25] Speaker 04:
And this is quoted in a block quote in the final written decision at page A41.

[00:16:31] Speaker 04:
That paragraph at petition page 20 includes references to the underlying

[00:16:40] Speaker 04:
prior art that made clear that it was possible to make a screen transparent.

[00:16:47] Speaker 04:
And those include, for example, a citation to Clancy.

[00:16:52] Speaker 04:
Now in another paragraph, paragraph 79, which is quoted at length, is really kind of a summary paragraph.

[00:16:58] Speaker 04:
It cites those references and their page numbers.

[00:17:01] Speaker 04:
In another paragraph, paragraph 68, it includes the parentheticals that describe what those things do.

[00:17:07] Speaker 04:
So Clancy, for example, describes

[00:17:09] Speaker 04:
that you can make it a transparent substances includes a reference to iridium tin oxide, which is a transparent conductor, or a description in gin of making it of transparent materials.

[00:17:26] Speaker 04:
Again, another reference to tin oxide.

[00:17:29] Speaker 04:
There's no requirement that all of the substance in the touchscreen be transparent.

[00:17:36] Speaker 04:
It's only that enough light comes through

[00:17:39] Speaker 04:
the touch screen so that you can see the display below.

[00:17:44] Speaker 04:
And so the argument with respect to whether or not transistors in particular were transparent at the time is really neither here nor there.

[00:17:54] Speaker 04:
Again, the patent owner in their own filings here, in their own petition, acknowledged that there were transparent touch screens at ATMs, gas stations, and the like that were common.

[00:18:06] Speaker 04:
at the time.

[00:18:07] Speaker 04:
And again, our references, the seven of them cited on petition 20 that were incorporated by reference on A-41, the final written decision, make clear that it was supported in Mr. Ward's testimony that this would have been obvious to a person of ordinary skill in the art.

[00:18:26] Speaker 04:
So again, and I didn't say, and I probably should have at the very outset, that Westerman does indeed suggest this.

[00:18:35] Speaker 04:
I take issue with my friend's characterization that the board was relying on Westerman alone.

[00:18:41] Speaker 04:
It was not.

[00:18:42] Speaker 04:
It was relying on Westerman in light of Bach, as it had in the institution decision.

[00:18:46] Speaker 04:
Now, in the institution decision, it's true that the board did not institute on Westerman alone.

[00:18:52] Speaker 04:
But they said, in connection with instituting on Westerman in light of Bach, that petitioner recognizes Westerman implicitly discloses transparent multi-touch screen

[00:19:06] Speaker 04:
and submits that Westermann, in view of Bach, would render the limitation obvious because Bach expressly discloses a transparent sensing screen positioned over a video display.

[00:19:18] Speaker 03:
And that's because one of the ordinary skill in the art would have known which sensors to use with Bach in order to achieve transparency in Westermann?

[00:19:25] Speaker 04:
Well, in the various references that are cited, there are a lot of ways in which transparent screens can be made.

[00:19:35] Speaker 04:
As I said before, one of the teachings is that the substrate does not need to be 100% translucent to be transparent.

[00:19:44] Speaker 04:
It just has to be enough light that comes through.

[00:19:47] Speaker 04:
There was a reference in the deposition, actually the same page of the appendix that my friend referred to in terms of our expert acknowledging that he did not know whether transistors in particular were transparent at the time, referenced the concept of screen door transparency.

[00:20:03] Speaker 04:
Of course, a screen

[00:20:05] Speaker 04:
is not 100% translucent, but when you look through it, you can see what's on the other side, because there is enough light that passes through.

[00:20:13] Speaker 03:
It sounded to me as if your adversary's main argument was he believes that the board relied on the sensors.

[00:20:20] Speaker 04:
Well, the board made very clear that it was relying on westermen, and westermen

[00:20:27] Speaker 03:
Westerman suggests the benefits of transparency.

[00:20:32] Speaker 04:
And Westerman suggests the benefits of transparency.

[00:20:35] Speaker 03:
Bach has transparency.

[00:20:37] Speaker 03:
So they say, well, but instead of just combining Bach and Westerman, which your adversary thinks happens, Bach entirely, along with Bach's sensors, your argument is that the board was combining

[00:20:52] Speaker 03:
Westermann and Bach, but finding some sensors elsewhere in Westermann that would achieve the result.

[00:20:59] Speaker 04:
That's right, because Westermann had its own sensors.

[00:21:01] Speaker 03:
Because, you know, that elides the operability problem.

[00:21:05] Speaker 03:
That's right, and in fact the board... Would you agree that there is an operability problem if

[00:21:10] Speaker 03:
the sensors from Bach needed to be incorporated with Westermann to achieve the 103?

[00:21:17] Speaker 04:
I don't think so because there is an alternative argument that the board also agreed with us that the problems that are identified in supposedly combining Bach's oscillating sensors with Westermann are crosstalk and noise.

[00:21:34] Speaker 04:
There are a lot of ways to address cross-talking noise, and those are addressed in Westerman itself, as well as in Bach.

[00:21:43] Speaker 04:
Bach describes shielding.

[00:21:45] Speaker 04:
Westerman describes selective accessing through multiplexing, as well as filtering and smoothing.

[00:21:54] Speaker 04:
So there are ways to address that.

[00:21:57] Speaker 04:
But we don't need to rely on that because, as the board specifically found,

[00:22:02] Speaker 03:
This is on page A56, again, of the 076, is that... What's our standard of review for this isolated question of whether or not the board fetched the censors out of Bach as well as just fetching the notion of a transparency?

[00:22:21] Speaker 04:
Well, it's substantial evidence review.

[00:22:24] Speaker 03:
Is that part of the factual inquiry?

[00:22:26] Speaker 04:
It is part of the factual inquiry in terms of what

[00:22:30] Speaker 04:
are the teachings that are being combined.

[00:22:33] Speaker 04:
And they say at page 55 to 56, petitioner did not propose such a substitution of box sensors.

[00:22:40] Speaker 04:
More importantly, Westerman reasonably suggests using its own sensors and circuitry in a transparent multi-touch surface.

[00:22:47] Speaker 04:
And they cite for that two different disclosures, one about the fact that multi-touch pad

[00:22:56] Speaker 04:
reprogrammably can move the keys around.

[00:23:00] Speaker 04:
The keys are not affixed on the multi-touch screen, but instead they move around, which suggests that the light is coming up from beneath to show onto the surface.

[00:23:09] Speaker 04:
And more specifically, there is a disclosure at claim 10, which is column 62, lines three to four, of fabricating the multi-touch surface on the display, LCD display,

[00:23:26] Speaker 04:
underneath.

[00:23:27] Speaker 04:
Now, that language of claim 10 was not something that the examiner considered when the examiner was looking at Westermann.

[00:23:34] Speaker 04:
And that's one of the reasons that the board did institute on this issue.

[00:23:39] Speaker 04:
Again, we never argued that Westermann itself taught transparency.

[00:23:43] Speaker 04:
We said it was implicit.

[00:23:44] Speaker 04:
The board acknowledged that when it instituted on Westermann and Bach.

[00:23:48] Speaker 04:
So it was consistent all the way through from the petition institution to find a written decision exactly what it was.

[00:23:52] Speaker 03:
What's the other thing, teaching and being implicit,

[00:23:55] Speaker 04:
What's that?

[00:23:55] Speaker 03:
What's the difference between a reference that teaches and a reference that has something that jumps out of it because it's implicit?

[00:24:02] Speaker 04:
Well, I think we were being conservative.

[00:24:06] Speaker 04:
The board was being conservative.

[00:24:07] Speaker 04:
It certainly suggests.

[00:24:09] Speaker 04:
One of the arguments that the patent owner is making is that Westerman somehow teaches away from transparency.

[00:24:16] Speaker 04:
And to consider teaching away, you have to look at what's being borrowed.

[00:24:21] Speaker 04:
What's the new learning that's being applied?

[00:24:23] Speaker 04:
So the learning being applied to Westerman is transparency.

[00:24:27] Speaker 04:
There's nothing in Westerman that teaches away from transparency.

[00:24:30] Speaker 04:
In fact, there are many reasons in the board-sided compactness, flexibility, ease of use.

[00:24:38] Speaker 03:
What is it in Westerman that makes transparency implicit, specifically?

[00:24:43] Speaker 04:
Well, it's the fact that you have the light shining up through the multi-touch surface so that you can move the keys around depending upon where you put your fingers.

[00:24:51] Speaker 04:
So that suggests that

[00:24:53] Speaker 04:
the light is coming through, and then when it suggests putting the multi-touch surface, fabricating it on the LCD display below, again suggests that the light is coming through.

[00:25:05] Speaker 04:
Now, whether that was enough light to qualify as transparent or not, you know, it's silent as to that.

[00:25:13] Speaker 04:
That's why we propose combining with this teaching.

[00:25:16] Speaker 03:
Would Westermann work without this light coming through?

[00:25:19] Speaker 04:
What's that?

[00:25:20] Speaker 03:
Would Westermann function without the light coming through?

[00:25:23] Speaker 04:
No, it wouldn't function without at least some light coming through, Your Honor.

[00:25:26] Speaker 04:
Again, whether that's enough to be transparent, I don't know.

[00:25:29] Speaker 04:
But we didn't rely on it for that purpose because Bach explicitly called out making its sensor surface of transparent materials.

[00:25:38] Speaker 04:
And again, there are many, many other references that talk about using transparent materials to make touchpads and touchscreens.

[00:25:48] Speaker 04:
That was kind of the time the petitioner acknowledged it in their own patent.

[00:25:51] Speaker 04:
in the background where they talk about ATMs and gas stations and the like, that's really not disputed.

[00:25:57] Speaker 04:
And in fact, their own patent doesn't say how you do that, precisely because everybody would have known how you make the touchpads.

[00:26:05] Speaker 03:
How do you respond to your adversary's finger flick argument?

[00:26:08] Speaker 04:
The finger flick argument, Your Honor, is based on a mischaracterization of the prosecution history of the 068 patent.

[00:26:19] Speaker 04:
Because of the public notice function of patents, it must be clear and unmistakable that there's been a disavowal.

[00:26:28] Speaker 04:
And the perspective is that of a reasonable competitor, a third person looking at this.

[00:26:34] Speaker 04:
The petitioner proposes the language gain speed as it reaches the end for a flick.

[00:26:41] Speaker 04:
That that's essential.

[00:26:42] Speaker 04:
There is only one time in the entire 068

[00:26:46] Speaker 04:
prosecution history that they use that phrase, gain speeds.

[00:26:49] Speaker 04:
It was in the first instance, the examiner rejected it because it was not supported by the original disclosure.

[00:26:57] Speaker 04:
And then they came back and tried different approaches.

[00:27:01] Speaker 04:
Ultimately, as is acknowledged in the reply brief of the patent owner, they relied on an argument that they were asserting the customary usage of the word flick.

[00:27:13] Speaker 04:
And for that customary usage,

[00:27:16] Speaker 04:
They relied on other references that are indistinguishable from Harrison.

[00:27:24] Speaker 04:
So for example, this is at A4062.

[00:27:29] Speaker 04:
One of the references they used, it says, the direction of the flick gesture's important aspect as left to right flick is mapped to a different function than right to left flick.

[00:27:42] Speaker 04:
Flicking from left to right to left will turn to the next page,

[00:27:46] Speaker 04:
whereas left to right flick will turn to the previous page.

[00:27:49] Speaker 04:
That language, which says nothing about gain speed or acceleration, is indistinguishable from the disclosure of Harrison, which refers to the same gesture as a flick.

[00:28:01] Speaker 04:
So they did not stand on a definition of a flick that gains speed or accelerates.

[00:28:08] Speaker 04:
Again, once the examiner rejected that, those words, gain speed,

[00:28:14] Speaker 04:
or accelerate or increase, we did a search of the entire exhibit 2007.

[00:28:19] Speaker 04:
Those words don't appear again.

[00:28:21] Speaker 04:
Instead, as acknowledged in their own reply, they went to customary usage.

[00:28:26] Speaker 04:
And that customary usage by their own exhibits was indistinguishable from Harrison.

[00:28:32] Speaker 04:
Thank you very much, Max.

[00:28:33] Speaker 01:
OK.

[00:28:33] Speaker 01:
Thank you.

[00:28:44] Speaker 01:
Mr. McMahon.

[00:28:45] Speaker 00:
Thank you, Your Honor.

[00:28:54] Speaker 00:
I would dispute counsel's statement first at BAC, discuss multiple embodiments.

[00:28:59] Speaker 00:
At first page, it refers to different types of sensors, but those are the sensors that BAC was improving upon.

[00:29:06] Speaker 00:
These are not different embodiments.

[00:29:07] Speaker 00:
This is what they were improving upon.

[00:29:10] Speaker 00:
There's only one embodiment in BAC, and that is the oscillating sensors.

[00:29:14] Speaker 00:
Which, by the way, it is a sensor for many, many things.

[00:29:18] Speaker 00:
A very high powered sensor that can be used in an opaque wall, for example.

[00:29:23] Speaker 00:
A couple lines that mention transparency.

[00:29:25] Speaker 00:
It also says it's not to be touched.

[00:29:28] Speaker 00:
And the other one, it mentions they have rubber over it.

[00:29:31] Speaker 00:
So the back sensor, to the extent it discloses some kind of transparency, it is not to be touched.

[00:29:38] Speaker 00:
We're not claiming that Dr. Ludwig invented touch screens.

[00:29:43] Speaker 00:
The discussion that Council just made about whether Westermann implicitly discloses touchscreens, whether Westermann's, you know, what its censors may have done, I mean, a lot of that discussion is, again, all claim one, I'm sorry, ground one, that was not under review.

[00:30:03] Speaker 00:
We're spending a lot of time addressing a ground that the Board decided not to institute on.

[00:30:10] Speaker 00:
Judge Clevenger questioned some about the sensors and could they be obtained elsewhere?

[00:30:17] Speaker 00:
There is a problem here.

[00:30:18] Speaker 00:
That is the question that we have.

[00:30:21] Speaker 00:
Samsung had the burden to prove how this combination would work.

[00:30:26] Speaker 00:
The courts clearly say that.

[00:30:28] Speaker 00:
The sensors are very important for us to come up and question.

[00:30:32] Speaker 00:
We still don't know today what their combination is.

[00:30:34] Speaker 00:
If they're saying they would come from somewhere else, but we don't know where they're from.

[00:30:38] Speaker 00:
Harrison on the finger flick, it never addressed speed.

[00:30:43] Speaker 00:
It only looks to direction.

[00:30:45] Speaker 00:
And that's why the statements that the inventor made were clear and unequivocal.

[00:30:50] Speaker 00:
They were actually made twice, where he said the finger flick is not a drag.

[00:30:54] Speaker 00:
It accelerates speed.

[00:30:56] Speaker 00:
That's what he told the public his invention was.

[00:30:59] Speaker 00:
Thank you very much, Harrison.

[00:31:00] Speaker 01:
Thank you.

[00:31:00] Speaker 01:
Thank you both.

[00:31:01] Speaker 01:
The case is taken under submission.