[00:00:01] Speaker 03:
The first case for argument this morning is 17-1395, Atlas versus St.

[00:00:07] Speaker 03:
Jude.

[00:00:07] Speaker 03:
Mr. Toppick, whenever you're ready.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
I'd like to focus today on the transmitting limitation.

[00:00:17] Speaker 01:
I have a few things I'd like to say about claims 11 and 21.

[00:00:20] Speaker 01:
But I think it might be good to start

[00:00:23] Speaker 01:
with a passage from this court's decision in Medtronic, which was construing some of the limitations it issued here in talking about the purpose of this patent.

[00:00:33] Speaker 01:
So this is on page 605 to 606 of Medtronic.

[00:00:36] Speaker 01:
If the hub does not define the intervals when the hub will transmit to the remotes, when each remote will transmit to the hub, multiple communicators, e.g.

[00:00:46] Speaker 01:
the hub and a remote or two remotes, could transmit simultaneously and their signals would collide.

[00:00:52] Speaker 01:
Thus, the hub sent information must indicate both the start and end time of the intervals of each communication cycle.

[00:01:00] Speaker 01:
So with that in mind, I'd like to start with the transmitting limitation and how it should be properly construed.

[00:01:06] Speaker 01:
The claim limitation says the hub transmitting information to the remotes to establish the communication cycle and a plurality of predeterminable intervals during each communication cycle.

[00:01:20] Speaker 01:
The board construed that

[00:01:21] Speaker 01:
to mean that, quote, the transmission limitation only requires the hub to transmit the starting time and duration of the communication cycle and at least two intervals and not all of the intervals within the cycle.

[00:01:35] Speaker 01:
That cannot be reconciled with this court's decision in Medtronic and in St.

[00:01:39] Speaker 03:
Jude, which said... Let me just ask you, just so we can take this one step at a time.

[00:01:43] Speaker 03:
The word plurality appears in the claims.

[00:01:47] Speaker 03:
What is your definition?

[00:01:48] Speaker 03:
What is your view of the word plurality?

[00:01:50] Speaker 01:
It means that there must be a plurality of intervals within the cycle.

[00:01:54] Speaker 01:
There must be two or more intervals within the cycle.

[00:01:58] Speaker 01:
And the board said?

[00:02:00] Speaker 01:
Well, the board said that regardless of how many intervals are in the cycle, the hub need only transmit the required information

[00:02:11] Speaker 01:
for a plurality, which could be only two out of a larger set of intervals.

[00:02:16] Speaker 03:
And the earlier decision, I want to hear what you have to say about our earlier decision, because I didn't see how our earlier decision really resolved that question.

[00:02:25] Speaker 01:
It certainly didn't squarely address it.

[00:02:28] Speaker 01:
It wasn't an issue.

[00:02:29] Speaker 01:
But what this court said was that the hub must, quote, define and transmit the start time and duration of each communication cycle

[00:02:36] Speaker 01:
and its constituent intervals in advance of any transmission opportunity slots.

[00:02:42] Speaker 01:
So this court used the term constituent intervals, which implies it's the intervals that make up the cycle.

[00:02:48] Speaker 01:
Maybe the cycle has two, maybe it has 1,000.

[00:02:51] Speaker 01:
However many it has, those are the constituent intervals.

[00:02:55] Speaker 01:
And there must be duration and start and end time for each of those intervals sent by the hub before the remotes can transmit.

[00:03:03] Speaker 01:
Which makes sense, because the passage I started with made clear that one of the purposes is to avoid collisions.

[00:03:09] Speaker 01:
So if you don't have that information for all of the intervals, then- But then, aren't you reading out the word plurality in the claim?

[00:03:18] Speaker 03:
No, I don't believe we're reading- So what work does plurality do, in your view, of how it works?

[00:03:24] Speaker 01:
It defines how many intervals can be within the cycle.

[00:03:29] Speaker 01:
It doesn't say, it doesn't limit

[00:03:32] Speaker 01:
the number of intervals that the hub must send information for.

[00:03:39] Speaker 01:
So you could have five intervals.

[00:03:42] Speaker 01:
You could have two intervals.

[00:03:44] Speaker 01:
But however many intervals there are within the repeating cycle, the hub has to transmit information for all of those intervals.

[00:03:52] Speaker 00:
Is this a claim construction issue?

[00:03:54] Speaker 01:
Well, there are both claim construction issues.

[00:03:57] Speaker 01:
And then within that construction, the petitioner disputes, even under our construction,

[00:04:02] Speaker 01:
whether Naderajan teaches the limitation as we've concerned.

[00:04:06] Speaker 00:
I mean, it looked to me like the claim construction issue is really focused at appendix 41.

[00:04:12] Speaker 00:
It's in the rehearing decision of the board below, where they deal with the question of what the antecedent basis for the plurality is.

[00:04:22] Speaker 00:
Isn't that what the fight is over?

[00:04:24] Speaker 01:
I mean, yes, the fight is over.

[00:04:27] Speaker 00:
So if you lose that, I mean, you said you argued that the antecedent basis for the plurality is not intervals.

[00:04:36] Speaker 00:
And so if we agree with the board's interpretation, then you don't have a leg to stand on, do you?

[00:04:44] Speaker 01:
We don't dispute that for the transmitting limitation, if you agree with the board's construction, then there is substantial evidence that Nadrajin teaches

[00:04:53] Speaker 01:
the transmitting limitation under that construction.

[00:04:56] Speaker 01:
We'd still have to deal with claim 11 and claim 21, which have additional limitations.

[00:05:01] Speaker 00:
What is your argument on this core claim construction issue on the antecedent basis or the plurality?

[00:05:09] Speaker 01:
I didn't really see it so much as an antecedent basis issue, so much as just which intervals need to be addressed by the hub.

[00:05:18] Speaker 01:
Under what this court held before, what's discussed, I could talk about what's in the

[00:05:22] Speaker 01:
specification, the file history, it talks about constituent intervals, and it also talks about the need to avoid collusion.

[00:05:30] Speaker 00:
Right, but you have a language and a previous opinion that you're trying to shoehorn yourself into, right?

[00:05:35] Speaker 01:
Well, I would say that we were bound by that language in that case, and that language would apply here as well.

[00:05:42] Speaker 01:
That issue was not squirreling before the court.

[00:05:44] Speaker 01:
But even if we go beyond the constituent intervals language that was in

[00:05:49] Speaker 01:
the court's opinion in the Medtronic case.

[00:05:53] Speaker 01:
I point to some other supporting evidence as well.

[00:05:56] Speaker 01:
The specification, and this actually was discussed in Medtronic.

[00:06:00] Speaker 00:
Does the board appreciate your argument based on the previous case?

[00:06:05] Speaker 01:
The argument is for me.

[00:06:06] Speaker 01:
I mean, the board did not agree with the argument.

[00:06:08] Speaker 00:
Didn't address it, did it?

[00:06:10] Speaker 00:
Did they address that argument in their opinion?

[00:06:13] Speaker 01:
I believe they just said it didn't resolve it.

[00:06:16] Speaker 01:
I would have to look to remember, but they didn't accept the argument, certainly.

[00:06:22] Speaker 03:
The specification talks about... They requested supplemental briefing once the client construction came out in the other case.

[00:06:31] Speaker 03:
Correct.

[00:06:31] Speaker 03:
So there was supplemental briefing.

[00:06:32] Speaker 03:
So clearly they considered it.

[00:06:34] Speaker 00:
Yes.

[00:06:35] Speaker 00:
But that's not the same case you're talking about.

[00:06:37] Speaker 00:
The supplemental briefing was over the Atlas case, right?

[00:06:43] Speaker 01:
It was both decisions that came out basically at the same time.

[00:06:47] Speaker 01:
So the board had, after, and I was not in the proceedings below, but after the trial, before there was a decision, the decisions came out from this court construing the transmitting limitation, which had not really been the area of focus in the

[00:07:00] Speaker 01:
in the IPR previously, but under the construction that created new issues that the parties then addressed.

[00:07:07] Speaker 01:
And we made our arguments based on transmitting at that time after this court had rendered its construction.

[00:07:13] Speaker 01:
So it was addressed.

[00:07:17] Speaker 01:
I just, sitting here, I don't recall exactly what the board said about this court's construction or decision in electronic, but definitely did not adopt the interpretation that we had.

[00:07:27] Speaker 04:
What is wrong with the board's conclusion that the antecedent basis for plurality of predetermined intervals is not intervals generally, but the plurality has set forth in the parent claim?

[00:07:44] Speaker 01:
The issue is, among others, the collision issue that this court noted in Medtronic, that if you have an interval in which there is uncontrolled communication,

[00:07:55] Speaker 01:
which to jump ahead a little, that's period C in Natarajan.

[00:07:58] Speaker 01:
It's a contention-based interval.

[00:08:00] Speaker 01:
The remotes can send whatever they want whenever they want to.

[00:08:04] Speaker 01:
You're going to have collisions.

[00:08:05] Speaker 01:
And as the court noted in Medtronic, that was the very purpose of this patent was to avoid collisions.

[00:08:12] Speaker 01:
And so you will continue to have collisions.

[00:08:15] Speaker 01:
You will have wasted power, which again is something that the patent was focused on.

[00:08:20] Speaker 01:
if you have uncontrolled intervals.

[00:08:22] Speaker 01:
And the only way to ensure that the intervals are all controlled is plurality of intervals needs to mean the constituent intervals, all of the intervals that are within that cycle.

[00:08:33] Speaker 04:
But does the claimed invention have to avoid all collisions?

[00:08:38] Speaker 04:
Maybe it's an imperfect recitation.

[00:08:45] Speaker 01:
It was certainly central to the Medtronic decision was the notion that you needed to avoid collisions.

[00:08:50] Speaker 01:
Now, there is a limited exception in our patent for the TSOP request interval, which my colleague certainly pointed out in his brief.

[00:09:02] Speaker 01:
That is a limited exception that goes to a different claim.

[00:09:05] Speaker 01:
It's claim three.

[00:09:07] Speaker 01:
And that is a contention-based period.

[00:09:09] Speaker 01:
But it's solely for the purpose of requesting bandwidth in the next cycle, primarily for new remotes who necessarily couldn't be scheduled.

[00:09:18] Speaker 01:
So overall,

[00:09:19] Speaker 01:
as the court found in Medtronic, that the purpose of this patent is to reduce collisions.

[00:09:25] Speaker 00:
Could you just tell us quickly in the real world what this invention is used for?

[00:09:30] Speaker 00:
I gather hospitals use this?

[00:09:33] Speaker 00:
What does this do?

[00:09:36] Speaker 00:
Who transmit what to whom?

[00:09:38] Speaker 00:
Notices to doctors?

[00:09:40] Speaker 00:
What's happening here?

[00:09:41] Speaker 01:
It's a communication protocol.

[00:09:43] Speaker 01:
It isn't specific to any particular industry or any particular usage.

[00:09:47] Speaker 00:
Not unlike CDMA or TDMA or other kinds of protocols like that that are used for... Which are sending messages from a central hub out to remote places and receiving information back.

[00:09:59] Speaker 00:
That's what it's about?

[00:10:00] Speaker 01:
Correct.

[00:10:01] Speaker 01:
In broad strokes, yes.

[00:10:03] Speaker 01:
And so, I mean, the St.

[00:10:04] Speaker 01:
Jude case involved medical products of St.

[00:10:07] Speaker 01:
Jude, so did the Medtronic case.

[00:10:08] Speaker 01:
It's not specific to those industries.

[00:10:10] Speaker 01:
Those are one of the issues here.

[00:10:13] Speaker 01:
Just a few other things on the claim construction point on transmitting.

[00:10:16] Speaker 01:
I did want to point out.

[00:10:18] Speaker 01:
The specification 27, line 57 talks about control information that, quote, defines the starting time and durations of the subsequent intervals of the present communication cycle.

[00:10:30] Speaker 01:
So it's talking about intervals as a whole.

[00:10:32] Speaker 01:
It's not talking about at least two of a greater set of intervals.

[00:10:38] Speaker 01:
In the file history, this is at appendix 408, we distinguished the Natarajan reference and said, quote, as a result of this scheduled protocol,

[00:10:47] Speaker 01:
there would appear to be more power consumed than if the complete information concerning all the intervals and functions during each complete cycle is communicated at one time.

[00:10:56] Speaker 01:
So we need to talk about the notion of all intervals.

[00:10:59] Speaker 01:
And then I would just point to petitioners' positions in the IPR.

[00:11:04] Speaker 01:
So among those was, quote, Atlas's arguments are inaccurate because Natarajan 1992 transmits at the start of its communication cycle the length of all intervals in the cycle.

[00:11:14] Speaker 01:
So before the construction came down, that was the way that that had been phrased.

[00:11:21] Speaker 01:
The petition also identified Nadarajan's cycle as having, quote, multiple interviews or intervals, including periods A, B, and C, and that the duration of a frame was subdivided into three intervals.

[00:11:33] Speaker 01:
I mean, it wasn't in the context of a claim construction argument, but nonetheless, they were approaching it the same way, at least initially.

[00:11:40] Speaker 01:
So we believe that makes clear that transmitting requires that the start time and duration and time of all the intervals must be transmitted from the hub to the remotes before the remotes can begin transmitting.

[00:11:54] Speaker 01:
From there, there are two different reasons why Nataraja does not teach that limitation under that construction.

[00:12:01] Speaker 01:
One is specific to period C. The other is specific to the time slots within period C.

[00:12:07] Speaker 01:
And again, the board found that basically that period C was irrelevant because there only needed to be two intervals addressed by the hub when it sent the control information.

[00:12:19] Speaker 01:
So as to period C in Natarajan, the argument that the board accepted was that the length of period C is broadcast in header AH and header BH, which both occur before period B, which is the first time that the remotes can transmit.

[00:12:35] Speaker 01:
But in doing so, it assumed that the length of period C couldn't change between those different headers or between those different time periods.

[00:12:44] Speaker 01:
And there was not substantial evidence before the board that would support that conclusion.

[00:12:49] Speaker 01:
The limitation itself says the hub will, quote, establish the length of the intervals.

[00:12:53] Speaker 01:
And this court in Medtronic defined that to mean set up on a firm or permanent basis.

[00:12:58] Speaker 01:
So because Natarajan leaves open the possibility that the length of period C can change, then

[00:13:04] Speaker 01:
The remotes do not have the necessary information and start and end times for period C until they get header CH, which occurs after period B. And I think everyone agrees that once we come to a conclusion of which intervals matter, that the length of those intervals has to be transmitted to the remotes by the hub before the remotes can begin transmitting.

[00:13:30] Speaker 03:
You're well into your rebuttals, so you want to

[00:13:34] Speaker 03:
retained some of it.

[00:13:35] Speaker 01:
Oh, I misread the clock.

[00:13:36] Speaker 01:
I apologize.

[00:13:38] Speaker 01:
I do want to retain it in the time slots, then I'll stand on the briefs.

[00:13:45] Speaker 01:
As to claim 11, I think the board misconstrued revoking.

[00:13:51] Speaker 01:
When you actually look at Bella, it says that the remotes essentially cancel themselves and that the other remotes interpret the lack of communicating as a cancellation.

[00:14:02] Speaker 01:
There's not an actual revoking.

[00:14:03] Speaker 01:
And as to Claim 21, it's as simple as A-H, B-H, and C-H are not the same.

[00:14:09] Speaker 01:
And under the two frames limitation, they must all be the same.

[00:14:13] Speaker 01:
I'll save an example.

[00:14:19] Speaker 03:
Mr. Smith?

[00:14:22] Speaker 02:
Thank you, Chief Judge Prost, Matthew Smith, Smith Bluch, LLP for the St.

[00:14:28] Speaker 02:
Jude Appellees, although we'll be arguing for all of the appellees.

[00:14:33] Speaker 02:
Let me begin where Mr. Toppick left off, and that is the factual distinctions over the prior art.

[00:14:41] Speaker 02:
I think this case, in some ways, is a little bit more simple than it seems, because Atlas is really arguing under the wrong standard.

[00:14:49] Speaker 02:
APJ Pettigrew, in her two decisions, which were quite thorough and detailed, made numerous factual findings that are supported by substantial evidence.

[00:14:58] Speaker 02:
citations to the text of the references themselves and to the testimony of St.

[00:15:04] Speaker 02:
Jude's expert, Dr. Haas, and really unencumbered by any contrary evidence in the record.

[00:15:10] Speaker 02:
Atlas Below didn't submit any expert testimony to the board, did not take advantage of its opportunity to cross-examine Dr. Haas, and so on appeal, Atlas is really left with the assertions of its attorneys about the facts of the case

[00:15:27] Speaker 02:
contrary to findings made by the board supported by substantial evidence, and often for the first time on appeal.

[00:15:33] Speaker 04:
What's your response to Mr. Topik's argument about plurality, meaning all of the intervals?

[00:15:42] Speaker 02:
So first, I would look at the language of the transmitting limitation, Judge Lin.

[00:15:48] Speaker 02:
The transmitting limitation begins by saying the hub transmitting cycle establishing

[00:15:55] Speaker 02:
I'm sorry, that's claim one.

[00:15:56] Speaker 02:
Let me go to claim six, which is different.

[00:16:04] Speaker 02:
I'm looking at claim 14.

[00:16:05] Speaker 02:
Claim 14?

[00:16:06] Speaker 03:
Isn't that the one that you called representative?

[00:16:10] Speaker 02:
Claim 14 says, the hub transmitting information to the remotes to establish the communication cycle and a plurality of predeterminable intervals during each communication cycle.

[00:16:21] Speaker 02:
So the language, in a very straightforward way, makes clear

[00:16:25] Speaker 02:
that the transmission of information has to establish a plurality of intervals.

[00:16:29] Speaker 02:
What I heard Mr. Toppick saying was the claim language has a sort of additional implicit limitation that the communication cycle is entirely divided into this plurality of intervals.

[00:16:42] Speaker 02:
In other words, the plurality of intervals is all the intervals in the communication cycle.

[00:16:47] Speaker 02:
And that's just not what the language says.

[00:16:50] Speaker 04:
Well, I understood him to say that, well, if it's not all the intervals, then there would be a conflict and that's what this is intended to avoid.

[00:17:00] Speaker 02:
Yes.

[00:17:00] Speaker 02:
And that is correct.

[00:17:01] Speaker 02:
That is what he said, your honor.

[00:17:03] Speaker 02:
But in a very real sense, conflicts are allowed in the 734 patent and in real world systems in the 734 patent.

[00:17:16] Speaker 02:
I believe every single embodiment in the patent has the TXOP request interval 86, which Mr. Toppick referred to.

[00:17:24] Speaker 02:
That is a contention-based interval, and what that means is the remotes are allowed to transmit at the same time.

[00:17:32] Speaker 02:
And if their transmissions happen to interfere, they won't get an acknowledgement back from the hub, so they'll figure that out.

[00:17:38] Speaker 02:
But the design of the system allows for that.

[00:17:40] Speaker 02:
And so a claim construction that would exclude that particular part of the 734 patented bodyments would effectively exclude everything in the specification.

[00:17:50] Speaker 02:
And I think that's consistent with how prior panels of the court decided in the Medtronic and St.

[00:17:58] Speaker 02:
Jude cases the construction for the transmitting limitation.

[00:18:02] Speaker 02:
And what the court was addressing there, of course, is, I think, the colloquy.

[00:18:06] Speaker 00:
But Mr. Toppitt points to language and Medtronic saying that you don't want to have collisions.

[00:18:13] Speaker 02:
Yes, I think that is correct.

[00:18:16] Speaker 00:
What do you do with that language?

[00:18:17] Speaker 02:
Because the 734 patent does not require perfect avoidance of collisions, as Judge Lynn's question pointed out.

[00:18:26] Speaker 02:
There is an advantage to avoiding collisions, for example, in the scheduled

[00:18:32] Speaker 02:
allocated transmission opportunities of the remotes.

[00:18:35] Speaker 02:
That is, some remotes are going to get specific time.

[00:18:37] Speaker 00:
But the language in that earlier opinion should have said, preferably, that the invention, preferably, wants to avoid collisions.

[00:18:45] Speaker 00:
Yes.

[00:18:46] Speaker 00:
But that's not what he's hanging his hat, isn't he, on language in a former case?

[00:18:51] Speaker 02:
Yes, he is.

[00:18:52] Speaker 02:
And it's reasoning leading to a distinct claim construction that the court came up with, which was put before it by the parties.

[00:18:59] Speaker 02:
And that question addressed, of course, when this establishing transmission takes place, not what the plurality of intervals are.

[00:19:08] Speaker 02:
And in fact, the court's construction leaves open that the plurality of intervals are not all of the intervals in the case.

[00:19:16] Speaker 02:
The court had before it a narrower construction in the St.

[00:19:20] Speaker 02:
Jude case.

[00:19:21] Speaker 02:
And the narrower construction would have required this scheduling information to be transmitted

[00:19:28] Speaker 02:
in the prior communication cycle.

[00:19:30] Speaker 02:
So the remotes would have the entire schedule prior to any interval within that communication cycle.

[00:19:36] Speaker 02:
And that would obviously be the most efficient formulation.

[00:19:41] Speaker 00:
The definition of that limitation in the district court in the earlier St.

[00:19:46] Speaker 00:
Jude case said you have to transmit all three, right?

[00:19:50] Speaker 02:
In the St.

[00:19:51] Speaker 02:
Jude case, the court held that the establishing transmission in the transmitting limitation

[00:19:57] Speaker 02:
has to occur in the prior communication cycle.

[00:20:01] Speaker 00:
So it was a timing question more than- In our court, I'm talking about what happened in the district court in that case.

[00:20:07] Speaker 02:
Right.

[00:20:08] Speaker 02:
In the district court, the district court also addressed the same timing question and found that the establishing transmission has to take place in advance of the entire communication cycle.

[00:20:20] Speaker 02:
And that was the claim construction that this court in part overturned about a broader construction.

[00:20:26] Speaker 02:
the transmission of the establishing information can come later.

[00:20:31] Speaker 02:
But that means that the remotes don't have that scheduling information for at least some part of the communication cycle.

[00:20:38] Speaker 02:
And so that's why I say that the court's prior opinion leaves open that the plurality of intervals that have to be established by this transmission are not all of the intervals in the communication cycle, because the court's claim construction allows that schedule to come in the middle of the communication cycle.

[00:20:54] Speaker 02:
or even towards the end as long as it's before the first opportunity of the remotes to transmit in that cycle.

[00:21:01] Speaker 02:
So the court's prior claim construction does not say in any way, shape, or form that all of the intervals have to be established through that establishing transmission.

[00:21:11] Speaker 02:
And I don't think there's any support in the 734 patent specification for that idea either, at least not support that is sufficiently strong to get you past the clear language of the claims which says,

[00:21:24] Speaker 02:
transmitting information to establish a plurality of intervals.

[00:21:28] Speaker 02:
The 734 patent talks about power savings, for example, as being significant or considerable, but not perfect, not maximal, not optimal.

[00:21:38] Speaker 02:
And that's really the kind of construction, that's really the kind of language in the 734 patent that Atlas would need.

[00:21:47] Speaker 02:
But even if Atlas could rewrite the transmitting claim language,

[00:21:54] Speaker 02:
to say something like, there is a communication cycle that is entirely divided into a plurality of intervals such that there are no other intervals, and there's a transmission to establish those intervals, that wouldn't distinguish the Natarajan reference.

[00:22:08] Speaker 02:
And this is part of the problem with Atlas' case.

[00:22:12] Speaker 02:
The board held several times in its opinions, and I'm referring specifically to appendix pages 18 to 19 in the final written decision and in the rehearing decision

[00:22:24] Speaker 02:
pages 38 to 39, that by the time of the first interval in Natarajan's communication cycle, that is, interval AH, all of the constituent intervals of the Natarajan cycle, that is AH, A, BH, B, CH, and C, have had their timing established.

[00:22:45] Speaker 02:
And that's because in interval AH, Natarajan transmits the timing of all of those intervals, the length of all of those intervals.

[00:22:52] Speaker 02:
And so at that point in time, all of the remotes of Natarajan, right in the beginning of the communication cycle, know the entire length and start time of the communication cycle and all of the constituent intervals therein.

[00:23:04] Speaker 02:
So even rewording the claims in the way that Mr. Topik suggested in his opening argument wouldn't get you past Natarajan.

[00:23:13] Speaker 02:
The board specifically made that finding.

[00:23:16] Speaker 02:
Based that on Natarajan itself, in appendix page 321, there's an actual figure which points out what is in interval AH.

[00:23:25] Speaker 02:
Based that also on Dr. Haase's testimony in paragraphs 115 to 123 of his declaration.

[00:23:31] Speaker 02:
And there's no contrary evidence.

[00:23:33] Speaker 02:
The only argument that Atlas puts forward on appeal is that there is a possibility that the timing of the last interval, interval C, could change.

[00:23:44] Speaker 02:
But that really gets the standard backwards.

[00:23:46] Speaker 02:
The question is not whether there's some possibility that it could change.

[00:23:49] Speaker 02:
The question is whether the board found that it didn't change, which it did, on appendix page 39, and whether that decision was supported by substantial evidence, which it is, based on the text of Nararajan and based on the testimony of Dr. Haas.

[00:24:02] Speaker 02:
And I don't know how Atlas can actually get past that on appeal.

[00:24:07] Speaker 02:
The transmitter limitations, I'm switching limitations now, is similar.

[00:24:13] Speaker 02:
to the extent that the board made specific findings that are contrary to the arguments that ATLAS is now making on appeal to the facts ATLAS is asserting on which its arguments depend.

[00:24:26] Speaker 02:
Those findings were supported by substantial evidence, and ATLAS really hasn't shown that the board or that no reasonable person could have come to a different decision than the one it is advocating.

[00:24:38] Speaker 02:
In the transmitter limitation,

[00:24:41] Speaker 02:
The remotes are required to power off their transmitters during times other than those which they would be allowed to transmit.

[00:24:51] Speaker 02:
And Atlas's argument is that in Nadarajan's period C, that last contention interval, that the remotes are not, in fact, allowed to transmit.

[00:25:02] Speaker 02:
But the board specifically found that the remotes in Nadarajan can transmit in interval C. This is on appendix page 14.

[00:25:11] Speaker 02:
in the rehearing decision on appendix page 40.

[00:25:15] Speaker 02:
Even though Atlas did not make this argument to the board, the board specifically made findings that the remotes in interval C can transmit.

[00:25:24] Speaker 02:
And so the remotes in interval C are allowed to transmit during that interval.

[00:25:29] Speaker 02:
Atlas's argument here conflates being allowed to do something with having some guarantee of success.

[00:25:37] Speaker 02:
Atlas is essentially saying that because interval C is a contention interval,

[00:25:41] Speaker 02:
There's a possibility that two remotes could transmit at the same time and their transmissions would interfere with one another.

[00:25:48] Speaker 02:
But interference is always a possibility in radio systems.

[00:25:52] Speaker 02:
It doesn't have to come from within the system.

[00:25:53] Speaker 02:
It could come from a microwave or a garage door opener or something like that.

[00:25:58] Speaker 02:
But the more important point is that

[00:26:01] Speaker 02:
If the remotes are allowed to transmit, that's enough under the claims.

[00:26:05] Speaker 02:
They don't have to have a clear path to transmit.

[00:26:08] Speaker 02:
They don't have to have free access to the airwaves within the radio system.

[00:26:12] Speaker 02:
And that is, in fact, what the board found.

[00:26:14] Speaker 02:
And Atlas doesn't show that the board's finding was not based on substantial evidence.

[00:26:21] Speaker 02:
For the revoking limitation, and this is specific to claim 11, which is the only climate issue that has that limitation, the

[00:26:31] Speaker 02:
Hub is required to listen to the airwaves.

[00:26:37] Speaker 02:
And certain remotes may have a standing reservation to transmit, so like a standing 7 o'clock reservation at a restaurant.

[00:26:46] Speaker 02:
In the Natarajan system, the remotes can cancel that reservation, but they have to send a message to the hub, essentially.

[00:26:54] Speaker 02:
And then the hub cancels the reservation.

[00:26:57] Speaker 02:
The claims require that the hub listen to the airwaves,

[00:27:00] Speaker 02:
And if the remotes don't use that scheduled opportunity to transmit, then the hub will cancel that reservation, essentially.

[00:27:09] Speaker 02:
That's why we have a secondary reference, which the board sustained, the Bella reference, which teaches the correct cancellation mechanism.

[00:27:19] Speaker 02:
And in the Bella reference, the communicators send out reservation requests.

[00:27:25] Speaker 02:
Everybody notes that a certain time is reserved for a certain communicator.

[00:27:29] Speaker 02:
But if the communicator, the radio, doesn't transmit during that time frame, the other remotes are going to listen to that.

[00:27:36] Speaker 02:
They're going to hear the absence of any transmission, and they're going to use that as a signal that they can cancel the reservation.

[00:27:42] Speaker 02:
So it's like not showing up to your Thursday night standing dinner reservation and having the restaurant staff simply cross you off the book because you didn't show up.

[00:27:50] Speaker 02:
The board found, specifically, all of those facts, that that's how the Bella system worked, that my characterization of how the Natarajan reference worked,

[00:27:59] Speaker 02:
was in fact how it worked.

[00:28:01] Speaker 02:
And the board found specific motivation to combine the Narrajan and Bella reference.

[00:28:06] Speaker 02:
And that's not challenged by Atlas on appeal.

[00:28:09] Speaker 02:
All of those facts are based on citations to the Bella reference and citations to Dr. Haas' testimony.

[00:28:16] Speaker 02:
The only thing Atlas is saying on appeal is that in the Bella reference, the communicators just stop, and that's the end of the story.

[00:28:24] Speaker 02:
But that's not what the board held.

[00:28:25] Speaker 02:
The board held that in the Bella reference,

[00:28:27] Speaker 02:
And this is specifically the citation on appendix page 23, column 11, lines 3 to 9, that the communicators in the bellow reference listen for the absence of transmission and then make the decision to remove the transmission slot that's been reserved for the other communicators.

[00:28:45] Speaker 02:
And so here again, Atlas is simply asserting facts on appeal, often in this case also for the first time, that don't meet the standard that Atlas has to meet.

[00:28:56] Speaker 02:
Lastly, in the last 30 seconds, I'm going to talk about Claim 21.

[00:29:00] Speaker 02:
This is a very short argument in the opening brief.

[00:29:03] Speaker 02:
It's about two-thirds of the page.

[00:29:05] Speaker 02:
And Atlas states, in header AH, Natarajan establishes the periods, but header BH only establishes when the remotes are allowed to transmit in period B. And nothing about the other two intervals, namely when the hub is allowed to transmit frames to the remotes and when each remote is expected to receive a frame from the hub.

[00:29:27] Speaker 02:
That's on page 42 of the opening brief.

[00:29:30] Speaker 02:
That simply ignores the board's relevant findings.

[00:29:33] Speaker 02:
The board found that in interval BH, the Natarajan hub establishes BH, BCH, and C. And the board specifically found that those two other categories that Atlas points out here were established by that transmission.

[00:29:50] Speaker 02:
So Atlas, again, is simply arguing under the wrong standard.

[00:29:53] Speaker 02:
It needs to show

[00:29:54] Speaker 02:
but the board's findings were not supported by substantial evidence and it simply hasn't done that.

[00:30:01] Speaker 03:
Thank you.

[00:30:07] Speaker 01:
Okay, as to the TSOP request, it is not correct that that is present in all of the claims or even any of the claims it issued.

[00:30:15] Speaker 01:
That's the period that was identified as being contention-based.

[00:30:19] Speaker 01:
It corresponds to claim three, which is not an issue.

[00:30:21] Speaker 01:
If you look at claim three, you can see it specifically talks about the TSOP request that is not called out in the claims that are an issue.

[00:30:30] Speaker 01:
There was also argument about collisions could still occur.

[00:30:34] Speaker 01:
Just to go back to the Medtronic decision,

[00:30:37] Speaker 01:
There's reasoning and then there is a conclusion that comes from that reasoning and the conclusion is what went into the claim construction.

[00:30:43] Speaker 01:
And what the court says is if the hub does not define the intervals, when the hub will transmit to the remotes and when each remote will transmit to the hub, multiple communicators could transmit simultaneously and their signals would collide.

[00:30:56] Speaker 01:
That's the collision issue that we've mentioned.

[00:30:58] Speaker 01:
And then the court goes on to say,

[00:31:01] Speaker 01:
the hub sent information must indicate both the start and end time of the intervals of each communication cycle.

[00:31:08] Speaker 01:
So it wasn't talking about it being preferred.

[00:31:10] Speaker 01:
It was talking about being essential to construing that claim.

[00:31:12] Speaker 01:
That's an essential part of what the claims require.

[00:31:16] Speaker 01:
And that's why in addition to the period C issue under Natarajan, meaning that the time period could change, the individual time slots within

[00:31:28] Speaker 01:
period C are contention based and run squarely into the problem that was identified in Medtronic and was the reasoning that led to the construction.

[00:31:39] Speaker 01:
Last point I want to make was on claim 11.

[00:31:44] Speaker 01:
I think council has sort of misconstrued even what the board has said.

[00:31:47] Speaker 01:
What the board said, and this is referring to the Beller reference, other stations monitor packets transmitted on the network and interpret the lack of packets

[00:31:56] Speaker 01:
in the time slot as a cancellation of the reservation.

[00:32:00] Speaker 01:
So Bella is not a system in which the other remotes cancel a different remotes slots.

[00:32:07] Speaker 01:
It's one in which the remotes cancel themselves, and then they're interpreted that way by the other remotes.

[00:32:13] Speaker 01:
Thank you.

[00:32:15] Speaker 01:
Thank both sides.

[00:32:16] Speaker 01:
The case is submitted.