[00:00:11] Speaker 03:
Good morning, Your Honors, and may it please the Court, Robert Stern for Patent Owner, Capella with me at Council Table, or Deidre Wells and Jonathan Chumannaro.

[00:00:21] Speaker 03:
The Board's decision, Your Honor, must be reversed for three reasons.

[00:00:24] Speaker 03:
First, the Board's construction of court is clearly unreasonable in light of the specification and all of the intrinsic evidence.

[00:00:32] Speaker 03:
And, under this proper construction,

[00:00:35] Speaker 03:
Appellees did not provide any evidence to show that the combination would render obvious these claims.

[00:00:46] Speaker 03:
And in addition, the combination that has been used by the board destroys Boyovich's, the primary references, principle of operations.

[00:00:56] Speaker 03:
And finally, the Smith reference, we were never given an opportunity to respond to Cisco's claim chart when it was submitted at the very end of the case.

[00:01:05] Speaker 03:
So let's go, if we could please, to the claims.

[00:01:09] Speaker 03:
Claim one of the 678 patent requires, and I want to read it very carefully, multiple fiber collimators providing an input port for a multi-wavelength optical signal and a priority of output ports.

[00:01:26] Speaker 02:
Now, let's assume for the moment that we disagree with you as to the meaning of the word port.

[00:01:34] Speaker 02:
And then we're still faced with this 678 patent with this providing language.

[00:01:43] Speaker 02:
Why was the board wrong in saying that providing doesn't mean the same as being?

[00:01:53] Speaker 02:
In other words, that the five or kilometers don't have to be the ports.

[00:01:59] Speaker 03:
Your Honor, this goes to the whole heart of this case and why this invention was so successful.

[00:02:10] Speaker 03:
This invention overcame the need for use of circulators.

[00:02:15] Speaker 03:
It provided a single device that would allow an input white signal with multiple bands of light to be switched to any number of individual output ports.

[00:02:25] Speaker 03:
It's the basis of the present internet that we have today.

[00:02:30] Speaker 02:
We have figure nine in the provision, which is described as an embodiment of the present invention.

[00:02:39] Speaker 02:
You would agree that that figure nine doesn't show the fiber collimators serving as the quarters, right?

[00:02:49] Speaker 03:
No, that figure shows that the collimators

[00:02:52] Speaker 03:
are serving as the courts, but not the circulators.

[00:02:56] Speaker 03:
So let's go to Figure 9.

[00:02:57] Speaker 04:
What page is that?

[00:02:59] Speaker 03:
That is at 4945 of the appendix, Your Honor.

[00:03:04] Speaker 02:
It does not show the circulators being courts?

[00:03:06] Speaker 03:
No, it does not.

[00:03:09] Speaker 02:
That's the whole issue here.

[00:03:12] Speaker 02:
Suppose it did show the circulators as being courts.

[00:03:16] Speaker 02:
You would read in the board and it was right?

[00:03:18] Speaker 02:
No, because it doesn't show that.

[00:03:21] Speaker 02:
No, I understand that.

[00:03:22] Speaker 02:
But you've got to accept my hypothetical.

[00:03:24] Speaker 02:
The hypothetical is, let's assume that Figure 9 does show the fiber kilometers carrying the signal, but that the ports are circulators and not fiber kilometers.

[00:03:36] Speaker 03:
Fiber kilometers, Your Honor.

[00:03:38] Speaker 03:
Sorry.

[00:03:39] Speaker 02:
Do you lose then?

[00:03:41] Speaker 03:
No, we don't lose then, because the principle of operation of Vuevich is destroyed by the combination.

[00:03:49] Speaker 01:
Can you speak up a little bit?

[00:03:50] Speaker 03:
Yeah, I'm sorry, Your Honor.

[00:03:52] Speaker 03:
The principle of operation of Boyavich is destroyed by the secondary references.

[00:03:57] Speaker 02:
Okay, well why don't you go back and tell us why in Figure 9 the ports are not circulators.

[00:04:02] Speaker 03:
Okay, so let's look at Figure 9, which is in Appendix 49-45.

[00:04:07] Speaker 03:
Now, the circulators, Your Honor, are denoted as circles below the arrows.

[00:04:15] Speaker 03:
And above the arrows, it's labeled ports.

[00:04:19] Speaker 03:
The box that is shown is what is called a WSR.

[00:04:23] Speaker 03:
If we go back to the claim, it says that the, your honor, let's, let's take a look if we could at the first sentence of the summary of the invention, where it states, and I quote, and this is that line three, 54 through 58, which is that the appendix at 282, this is the patent.

[00:04:46] Speaker 03:
And this is the same in both specifications.

[00:04:49] Speaker 03:
It says the present invention provides a wavelength separating routing WSR apparatus and method.

[00:04:58] Speaker 03:
Now the box in figure nine that's hashed is the WSR apparatus and method.

[00:05:04] Speaker 03:
And it goes on to say in the summary, which employs an array of fiber collimators serving as an input port and a plurality of output ports.

[00:05:16] Speaker 03:
So what is being shown in figure nine, Your Honor, is that the WSR, which is at the top of the figure, has these fibers coming off of it, one for each port as they're labeled.

[00:05:30] Speaker 03:
Ports one, two, three, and four.

[00:05:32] Speaker 02:
But the circles at the bottom are circulators, right?

[00:05:35] Speaker 03:
Yeah, but it shows the claimed invention, which is the box.

[00:05:41] Speaker 03:
In a large, in the context of a larger optical system, these switches reside in larger optical systems that includes circulators.

[00:05:52] Speaker 03:
Does this drawing show collimators?

[00:05:55] Speaker 03:
No, it does not specifically show.

[00:05:56] Speaker 03:
Where would they be?

[00:05:57] Speaker 03:
They would be in the hash box, your honor.

[00:06:00] Speaker 03:
That's where they would be.

[00:06:01] Speaker 03:
And if you look at all the figures.

[00:06:02] Speaker 03:
And what's your evidence for that?

[00:06:04] Speaker 03:
Well, I mean, that's the only logical thing to see.

[00:06:08] Speaker 03:
If you look at all the figures... That's a problem because we're not expert in this art.

[00:06:13] Speaker 03:
No, no, no, but I'm not... This is in the provisional and in the non-provisional... Is there any testimony about this?

[00:06:21] Speaker 02:
I mean, this is a periodic problem that we have here, that lawyers get up and they essentially start testifying as part of the argument as to what the technology means, and that's difficult for us.

[00:06:32] Speaker 02:
And so we say, do you have an expert who said this?

[00:06:39] Speaker 03:
Do you?

[00:06:39] Speaker 03:
Yes.

[00:06:40] Speaker 03:
So if we look at the appendix at 49.43, this is again the provisional.

[00:06:46] Speaker 03:
It states... Oh wait, but I asked, do you have an expert?

[00:06:50] Speaker 03:
Is the answer no?

[00:06:52] Speaker 02:
No, Your Honor.

[00:06:53] Speaker 02:
I want to go to the specification.

[00:06:55] Speaker 02:
I asked you, do you have expert testimony about this?

[00:06:58] Speaker 02:
Is the answer yes or no?

[00:07:06] Speaker 03:
No, we do not, Your Honor.

[00:07:08] Speaker 03:
Okay.

[00:07:08] Speaker 01:
And doesn't the 217 also refer to the circulator ports as add-drop ports?

[00:07:17] Speaker 03:
No, they are add or drop, or input or output.

[00:07:22] Speaker 03:
That is a functional term, but they're not ports.

[00:07:25] Speaker 01:
Ports, Your Honor, is a... Look at 4933.

[00:07:34] Speaker 03:
Your Honor, if we would look at the appendix at 4933, it says, quote, circulators are situated on... Which paragraph?

[00:07:47] Speaker 03:
This is in 4933.

[00:07:49] Speaker 04:
I know which paragraph.

[00:07:50] Speaker 04:
That's a big page.

[00:07:52] Speaker 03:
It's the text right below the text.

[00:07:57] Speaker 03:
It's the fourth paragraph.

[00:08:02] Speaker 03:
Your Honor, it's the... I got it.

[00:08:04] Speaker 03:
It's the fourth paragraph.

[00:08:06] Speaker 03:
It says, the third architecture, figure nine, is also bidirectional, but uses only one WSR unit.

[00:08:17] Speaker 03:
Circulators are situated on all of the physical input-output ports, allowing for two-way optical propagation.

[00:08:32] Speaker 01:
All right, and then read the next sentence.

[00:08:34] Speaker 03:
This design has the restriction that each of the add drop ports, the add drop and wavelengths must be the same.

[00:08:44] Speaker 03:
So what we're talking about here is that the circulators are the circles, your honor, that are shown below the arrows.

[00:08:53] Speaker 03:
And what this invention, if you look at all of the figures in the non-provisional and all of the specification and the claims,

[00:09:04] Speaker 03:
you see that the ports in a reasonable construction in this case are the collimators.

[00:09:16] Speaker 03:
The background section of the patent describes the need to not use circulators because of their problems.

[00:09:24] Speaker 03:
They add additional components and they provide attenuation issues.

[00:09:29] Speaker 03:
This claimed invention fundamentally changed the architecture of the

[00:09:33] Speaker 03:
of the internet.

[00:09:34] Speaker 03:
And so the elimination of circulators was the whole purpose.

[00:09:39] Speaker 03:
So figure nine is just showing the switch with the various ports in the context of a larger system, which would use circulators.

[00:09:50] Speaker 03:
But the word port as used in the specification is specific to this specification and not just a general use of the word port.

[00:10:00] Speaker 03:
This is not a broad as possible interpretation.

[00:10:03] Speaker 03:
This is a broadest reasonable interpretation case.

[00:10:06] Speaker 03:
And here what the board did was brought us possible interpretation.

[00:10:11] Speaker 01:
But aren't you referring simply to certain embodiments?

[00:10:16] Speaker 03:
All the embodiments are consistent.

[00:10:18] Speaker 03:
The specification is consistent.

[00:10:21] Speaker 03:
The collimators provide the ports, and all ports are collimators.

[00:10:27] Speaker 03:
That's the way the patent is written.

[00:10:29] Speaker 03:
And it has to be this way.

[00:10:31] Speaker 03:
in order for the system to work in its intended way.

[00:10:34] Speaker 03:
It can't work with circulators because circulators, the signal comes in in one input, call it a port, and it comes out that next input, that next output, which is also a port.

[00:10:48] Speaker 03:
But ports as used here is you have one input port and then the signals are directed with the two axis mirrors to a specific output port.

[00:10:59] Speaker 03:
The collimator takes the light that's in free space inside the switch and puts it back onto the fiber.

[00:11:06] Speaker 02:
I mean, you know, you're standing up here and you're basically testifying as to what this technology means.

[00:11:13] Speaker 02:
And that's a problem for us.

[00:11:15] Speaker 02:
I don't know why, if you thought that this was the case, that you didn't put any expert testimony in explaining this.

[00:11:25] Speaker 03:
Your honor, throughout the entire

[00:11:27] Speaker 03:
throughout the entire trial.

[00:11:28] Speaker 03:
This has been our position.

[00:11:30] Speaker 03:
We have not waived this.

[00:11:31] Speaker 03:
We have not changed this.

[00:11:33] Speaker 02:
It's not a question of waiver.

[00:11:34] Speaker 02:
It's a question of we have to deal with the record.

[00:11:39] Speaker 02:
And in order to understand the record, we have to have guidance from someone skilled in the art when you're dealing with something as complicated as this is.

[00:11:50] Speaker 03:
Your Honor, the summary of the invention section, as I said earlier, states that the invention

[00:11:56] Speaker 03:
This is what the inventors contemplated.

[00:11:59] Speaker 03:
They state this at the very beginning.

[00:12:01] Speaker 03:
Let me read it again, if I may.

[00:12:05] Speaker 03:
Excuse me, judges.

[00:12:08] Speaker 03:
We are at column three, lines 54 through 58 of the patent.

[00:12:14] Speaker 04:
Okay, I'm sorry.

[00:12:17] Speaker 03:
It's appendix 282.

[00:12:18] Speaker 03:
54 through 58.

[00:12:25] Speaker 03:
It says, again, and this is what the inventors contemplated, Your Honors, as their invention.

[00:12:32] Speaker 03:
This is the very first sentence of the summary.

[00:12:35] Speaker 03:
It says, the present invention, we're not talking about embodiments.

[00:12:39] Speaker 03:
And by the way, this is consistent throughout the entire specification in the figures, the drawings.

[00:12:44] Speaker 03:
Everything is totally consistent.

[00:12:47] Speaker 03:
The present invention provides a wavelength separating routing apparatus.

[00:12:52] Speaker 03:
That's the switch.

[00:12:53] Speaker 03:
Wavelength separating, it separates the signals, and then it routes them.

[00:12:57] Speaker 03:
That's the switching function.

[00:13:00] Speaker 03:
Which employ an array of fiber collimators, and you see that in every one of the figures.

[00:13:05] Speaker 03:
Those are those round tubes in the figures.

[00:13:08] Speaker 03:
An array of fiber collimators serving as an input port, that's shown in every figure, and a polarity of output ports.

[00:13:16] Speaker 03:
So that's what the inventors contemplated as their invention.

[00:13:19] Speaker 02:
Well, that language does support your position, but it doesn't necessarily tell us what figure nine means in the provisional.

[00:13:28] Speaker 03:
Well, it does, your honor, I submit, because if you read figure nine in the context of the non-provisional patent, it makes total sense.

[00:13:36] Speaker 03:
I mean, the idea that you have circulators outside of the switch is described in the background section of the patent.

[00:13:43] Speaker 03:
We're eliminating the circulators.

[00:13:46] Speaker 04:
I mean, is your response in Figure 9 that it doesn't show collimators at all so we don't know where they are?

[00:13:55] Speaker 03:
Well, we know the collimators have to be within the switch because that's what the summary of the invention says.

[00:14:00] Speaker 03:
And the switch is the box.

[00:14:03] Speaker 03:
The switch is the box.

[00:14:06] Speaker 03:
The box is labeled.

[00:14:07] Speaker 03:
The text of the box is labeled.

[00:14:12] Speaker 03:
If you look at Figure 9,

[00:14:35] Speaker 04:
I mean this 3945 doesn't say anything about what's in the box.

[00:14:49] Speaker 03:
So your honor, sorry if we could go to appendix 4945 please.

[00:14:58] Speaker 03:
So it shows a wavelength separation and routing.

[00:15:01] Speaker 03:
Right.

[00:15:02] Speaker 03:
That's the switch.

[00:15:03] Speaker 03:
Now, you have these functional lines.

[00:15:05] Speaker 03:
They're labeled port one, lambda one.

[00:15:08] Speaker 03:
These are each of the individual light beams that are coming out in the individual ports.

[00:15:13] Speaker 03:
Port one, port two, port three, port four.

[00:15:16] Speaker 03:
And then, so the collimators, if you will, could be either construed as being inside the box or that arrow.

[00:15:23] Speaker 03:
But once they come off the arrow, they go into this circle.

[00:15:27] Speaker 04:
Well, that's the problem.

[00:15:28] Speaker 04:
I mean, again, you're asking us to

[00:15:32] Speaker 04:
trust you on where the collimators are in this drawing, it seems to me they could be any number of places.

[00:15:39] Speaker 04:
It doesn't show that at all.

[00:15:40] Speaker 04:
Can you point to me to either expert testimony or something in specifications that specifically say where?

[00:15:47] Speaker 04:
I'm not sure this

[00:15:50] Speaker 04:
necessarily hurt you all that much if it doesn't show where the collimators are at all.

[00:15:55] Speaker 04:
But, I mean, you're testifying as to where you think they are.

[00:15:59] Speaker 04:
It's not something I'm going to accept.

[00:16:01] Speaker 03:
Let me back up.

[00:16:03] Speaker 03:
Let me just say that I don't know of any specific evidence that I can say to support what I'm saying other than the reading of this in the context of the non-provisional.

[00:16:15] Speaker 02:
That's all I'm going to say.

[00:16:19] Speaker 02:
PTO reached a different conclusion as to the meaning of figure nine, correct?

[00:16:26] Speaker 02:
No, the PTO construed the term port under BRI to be... That's certainly true, but we're skipping over that for the moment because we're proceeding on the assumption... Yeah, the PTO swept in... You can't interrupt.

[00:16:43] Speaker 02:
We're proceeding on the assumption here that we don't accept your interpretation of port

[00:16:48] Speaker 02:
so that we're focusing on providing language, which does appear in some of the claims.

[00:16:57] Speaker 02:
Are you saying that the board didn't make such a finding?

[00:17:00] Speaker 03:
The board swept in circulators to their definition of courts.

[00:17:05] Speaker 04:
Right.

[00:17:07] Speaker 04:
Can I echo my colleague?

[00:17:09] Speaker 04:
Let's assume we disagree with you about that.

[00:17:11] Speaker 04:
We're still concentrating on

[00:17:13] Speaker 04:
Do the collimators have to be the ports, or can they be broader?

[00:17:18] Speaker 04:
And we think circulators can be ports, but does that providing language mean that the collimators have to provide that port?

[00:17:27] Speaker 04:
I mean, your drawing certainly, the drawing of the patent with the multiple collimators certainly shows each individual collimator being one input port and multiple output ports, but we're talking about

[00:17:43] Speaker 04:
the figure nine and the provisional and whether the PTO could rely on that to show that it showed collimators or ports that were similar to the prior art.

[00:17:57] Speaker 04:
And you haven't given us any guidance about where the collimators are in there.

[00:18:01] Speaker 04:
I mean, as the answer, we just don't know because nothing in the specifications talk about it and you don't have any expert testimony about it.

[00:18:09] Speaker 02:
That's correct.

[00:18:11] Speaker 02:
Okay.

[00:18:12] Speaker 02:
Your time, we'll give you two minutes for a bottle.

[00:18:18] Speaker 02:
Okay, Your Honor, I'll reserve my bottle time.

[00:18:21] Speaker 02:
There's nothing to reserve.

[00:18:22] Speaker 02:
We'll give you two minutes anyway.

[00:18:24] Speaker 02:
Okay, thank you.

[00:18:34] Speaker 02:
Okay, Ms.

[00:18:35] Speaker 02:
Skusky, is that how you pronounce it?

[00:18:36] Speaker 00:
Correct.

[00:18:38] Speaker 00:
Most people don't get that on the first try.

[00:18:42] Speaker 01:
Is there really any dispute about where the columnators are in Figure 9?

[00:18:46] Speaker 01:
Isn't the dispute over whether circulators are also located in the same place?

[00:18:54] Speaker 00:
Correct.

[00:18:54] Speaker 00:
Whether circulators are also part of Figure 9 and also whether those circulators provide ports or are part of the ports in Figure 9.

[00:19:04] Speaker 01:
So where is it your view or the board's view

[00:19:07] Speaker 01:
where do they think the circulators in Figure 9 are?

[00:19:11] Speaker 01:
In the WSR?

[00:19:14] Speaker 00:
The circulators are the round pieces that you see towards the bottom of the figure on 49-45.

[00:19:23] Speaker 00:
It's where you see the ad and the drops coming out.

[00:19:28] Speaker 00:
And to Your Honor's point before on 49-33, those are directly

[00:19:36] Speaker 00:
related and are in fact the add drop ports that are referred to in the paragraph describing Figure 9.

[00:19:45] Speaker 01:
So that's the question is that says add and drop and there seems to be one going into the circulator and one going out of the circulator, right?

[00:19:53] Speaker 01:
Correct.

[00:19:54] Speaker 01:
So if the add drops go in and go out, why is the circulator also a port?

[00:20:02] Speaker 00:
The circulators are providing the physical structure of the port in Figure 9.

[00:20:07] Speaker 00:
So the ads are going in through the circulator port, as are the drop signals.

[00:20:19] Speaker 01:
And so you're saying that the circulator can't just be circulating what's coming in and out of the ports?

[00:20:26] Speaker 00:
Correct.

[00:20:28] Speaker 00:
It could be doing that.

[00:20:29] Speaker 00:
That's not what it's doing in Figure 9.

[00:20:31] Speaker 00:
And that's actually a chief distinction between what's disclosed in Figure 9 and the background section in the two challenge patents that relate to circulators, which is, if you don't mind, a point that I'd like to address that came up in the opening.

[00:20:52] Speaker 00:
If you look in the background section of

[00:20:55] Speaker 00:
patents in 368, there are a number of, and that's the same for the 678, there are a number of prior art configurations that are described.

[00:21:08] Speaker 00:
What Capella has not done, either below or in this case, is looked at what do those disclosures really have to do with circulators.

[00:21:16] Speaker 00:
And if you look only, I think, three out of the four described prior art systems, the circulators were actually implemented

[00:21:24] Speaker 00:
as the switching routing mechanism within the configuration.

[00:21:29] Speaker 00:
So they weren't being used as ports like in Figure 9 and how it's claimed in these two patents.

[00:21:35] Speaker 00:
Instead, it was the primary switching, sorting, separating apparatus.

[00:21:41] Speaker 00:
So the issues around circulators that come up in the background section are independent of how circulators are used in the prior art references that the PTAB considered.

[00:21:52] Speaker 00:
and also how the claims themselves recite the invention.

[00:21:56] Speaker 01:
Well, OK, so going back to the providing language, the providing language only says that the culminators provide the input port and the output ports.

[00:22:10] Speaker 01:
And you're conceding that the add-drop ports are different from the circulator, right?

[00:22:20] Speaker 00:
No.

[00:22:20] Speaker 00:
Those are the ports of the circulator.

[00:22:26] Speaker 00:
So add would be add and then also input on figure nine of in the upper left of 4945.

[00:22:36] Speaker 00:
Input in the adds would be consistent with input ports.

[00:22:40] Speaker 00:
The drops would be consistent with output ports in the claims, including the 678 claims that recite the providing language.

[00:22:48] Speaker 01:
What is your response to

[00:22:50] Speaker 01:
Mr. Stern's contention that the whole point of this patent was to do away with the circulators.

[00:22:56] Speaker 00:
That goes back to what I was saying about the Capella support for that is the statements that are in the background section and the way circulators are discussed in that section have to do with using circulators elsewhere in the ODEM technology and the wavelength separating technology, not

[00:23:17] Speaker 00:
in the sense of providing the input and output outside of the components that are responsible for separating and switching.

[00:23:25] Speaker 00:
And in fact, one of those references that they don't address doesn't have a circulator at all in it.

[00:23:33] Speaker 00:
So the notion that circulators are somehow, or the elimination of them, are somehow central to the invention just doesn't support it by the only support that they cite.

[00:23:43] Speaker 02:
So if I understand the question we're talking about,

[00:23:47] Speaker 02:
It's whether the circulators can serve as the ports or whether the fiber collimators have to be the ports, right?

[00:23:55] Speaker 02:
Correct.

[00:23:56] Speaker 02:
And did the board make a determination as to the meaning of Figure 9?

[00:24:06] Speaker 00:
The board most definitely evaluated it and agreed with petitioners.

[00:24:15] Speaker 02:
Where do we find

[00:24:16] Speaker 02:
a finding of fact as to what Figure 9 discloses.

[00:24:54] Speaker 00:
I'll refer your honors to Appendix 14.

[00:24:58] Speaker 00:
And this is one example of the six final written decisions that came to the same conclusion.

[00:25:04] Speaker 00:
It's the final written decision for the 368 patent in the Cisco set of IPRs.

[00:25:13] Speaker 00:
And the sentence starts about the fourth line down.

[00:25:18] Speaker 00:
Not about, it actually is the fourth line down.

[00:25:20] Speaker 00:
Moreover, petitioner further demonstrates that a provisional application to the 368 patent in fact uses circulator ports as ports.

[00:25:30] Speaker 00:
And then it refers back to in the site exhibit 1008, figure 9, which in the record below is.

[00:25:39] Speaker 04:
I understand that.

[00:25:39] Speaker 04:
The problem I have with that reference is it doesn't answer the question, at least, that I think I'm asking.

[00:25:46] Speaker 04:
I think I agree with you that you could have a circulator as a port

[00:25:50] Speaker 04:
that still doesn't get to the language about in the claims that the collimators provide the port and in the specific language in the discussing in the summary of what they mentioned that the summary says the collimators provide the ports.

[00:26:04] Speaker 04:
It's not that circulators can't be additional ports, but at least collimators themselves provide individual and multiple output ports.

[00:26:12] Speaker 04:
That doesn't address that question at all.

[00:26:17] Speaker 04:
And this is the problem with Figure 9 for me, is that nobody explains to me where the collimators are in Figure 9.

[00:26:25] Speaker 00:
Understood.

[00:26:25] Speaker 00:
I'll break that into a couple of pieces.

[00:26:29] Speaker 00:
First, you mentioned the language and the summary of the invention that refers to collimators in the present invention.

[00:26:37] Speaker 00:
4933, which again is in the provisional, at the very top

[00:26:47] Speaker 00:
It reads, three different odum architectures disclosed in the present invention are shown in figures seven through nine.

[00:26:57] Speaker 00:
So with the provisional as part of the intrinsic record here, figure nine is also part of the present invention.

[00:27:08] Speaker 04:
Well, I get that, but that still doesn't answer my question, because figure nine could certainly be consistent with their interpretation.

[00:27:15] Speaker 04:
it's the collimators are in that black box instead of somewhere else.

[00:27:21] Speaker 04:
If there are multiple collimators in that black box, one of which is an input and four of which are an output or three of which is an output, that's entirely consistent with their argument, isn't it?

[00:27:37] Speaker 00:
I don't think so, and I don't think that figure nine is so limited, and it doesn't actually require collimators.

[00:27:43] Speaker 04:
Why not?

[00:27:43] Speaker 04:
I mean, then it would look just like if that black box opened up and looked like exactly what's in the rest of the figures we're talking about, where it's very clear that the collimators are ports, and each are separate ports, then it would be exactly the same, wouldn't it?

[00:28:00] Speaker 04:
I mean, the answer is yes, because my hypothetical assumes that that's what the box shows.

[00:28:04] Speaker 04:
And if that's the case, then example nine

[00:28:07] Speaker 04:
doesn't help you, it helps them.

[00:28:09] Speaker 04:
But since example nine doesn't show anything either way, I'm not sure how it helps supports the board's interpretation.

[00:28:18] Speaker 00:
Two other things to note about figure nine, and it's right on the figure itself.

[00:28:26] Speaker 00:
If you look at the title of figure nine on 49-45, it actually recites in parentheses at the end that it is the circulator scheme.

[00:28:35] Speaker 00:
says nothing about collimators.

[00:28:37] Speaker 00:
Collimators don't have to be there.

[00:28:39] Speaker 00:
This is about circulators providing ports.

[00:28:42] Speaker 04:
Again, I don't know how that helps you.

[00:28:44] Speaker 04:
That seems to me to suggest that this drawing isn't relevant to where the collimators are.

[00:28:49] Speaker 04:
It's adding an additional circulator scheme, but not addressing where the collimators are.

[00:28:55] Speaker 04:
Is there anything anywhere in the record that suggests where the collimators are in Figure 9?

[00:29:02] Speaker 02:
I thought there were some other figures here.

[00:29:05] Speaker 02:
I thought your interpretation and the board's interpretation of providing is that what that means is not that the collimators are the ports, but that the collimators provide the signal to the ports.

[00:29:20] Speaker 02:
And that's within the meaning of providing the ports.

[00:29:24] Speaker 02:
Am I understanding that correctly?

[00:29:26] Speaker 00:
That's correct.

[00:29:27] Speaker 02:
And I thought there were other figures here.

[00:29:30] Speaker 02:
which showed collimators providing signals to ports, to circulators.

[00:29:37] Speaker 02:
Am I mistaken on that?

[00:29:39] Speaker 02:
I'm not able to find it immediately, but I thought there were some other figures that were part of this.

[00:29:47] Speaker 02:
Not in the provisional, but.

[00:29:50] Speaker 00:
The closest in the patent that you get, a good example of it is figure five of the, or both patents.

[00:30:11] Speaker 00:
And both in figure five and in the discussion of figure five, there's not reference that's being specifically made to a specific type of port.

[00:30:23] Speaker 00:
It doesn't have to be a collimator.

[00:30:24] Speaker 00:
It doesn't have to be a circulator.

[00:30:25] Speaker 00:
What page are you looking at?

[00:30:26] Speaker 00:
Oh, sure.

[00:30:27] Speaker 00:
So the figure itself is appendix 257.

[00:30:45] Speaker 01:
I thought that the point the board was making is that it's not so much that there's no evidence of culminators providing ports in this patent.

[00:30:57] Speaker 01:
It's that there's nothing that would exclude circulators from also providing the right ports.

[00:31:03] Speaker 00:
That's exactly right.

[00:31:04] Speaker 00:
And it's also consistent with, it's actually a portion of the specification that Capella cites in its briefing both here and below.

[00:31:14] Speaker 00:
in column 6 of the 368, so it's 261 of the patent we have now, that's describing figure 1A.

[00:31:21] Speaker 00:
And this is a figure that Capella has contended, supports this construction, where it notes, starting at line 57, the WSR apparatus 100 comprises multiple input-output ports, which may be in the form of an array of collimators.

[00:31:42] Speaker 00:
So even in the discussion,

[00:31:44] Speaker 00:
relating to collimators in the patent itself, it's may, it's permissive language, not mandatory language.

[00:31:50] Speaker 01:
And the patent owner's expert said that a person of ordinary skill when reading the patent would understand that the patent was discouraging the use of circulators as ports, right?

[00:32:03] Speaker 01:
Or at least discouraging, maybe more.

[00:32:05] Speaker 00:
That is what their expert testified.

[00:32:10] Speaker 00:
There was rebuttal evidence.

[00:32:12] Speaker 00:
The board considered both of those things and made a factual determination that the evidence supported a finding that actually a person of ordinary skill in the art would not make that assumption.

[00:32:26] Speaker 01:
Well, is that right?

[00:32:27] Speaker 01:
Or did they say even if we accept his testimony that a person of ordinary skill would make that assumption, it didn't rise to the level of a full disability?

[00:32:36] Speaker 01:
That's correct.

[00:32:41] Speaker 01:
But in terms of Judge Dyke's original question, is there any support other than what's in the patent and then the figures itself?

[00:32:50] Speaker 01:
There is at least a testimony from their expert, even if the board didn't think it got them all the way there.

[00:32:56] Speaker 00:
That is correct.

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

[00:33:03] Speaker 02:
Thank you.

[00:33:05] Speaker 02:
And then we have Mr. Sayers, is that right?

[00:33:15] Speaker 04:
Your Honor, this is Mr. Browend.

[00:33:17] Speaker 04:
You were going to go next?

[00:33:18] Speaker 04:
Okay.

[00:33:19] Speaker 04:
We'll save our time and we've submitted our time for discussion.

[00:33:23] Speaker 02:
Okay, so there's no further argument then?

[00:33:25] Speaker 02:
That's correct.

[00:33:25] Speaker 02:
Okay, thank you.

[00:33:28] Speaker 02:
Mr. Stern, you have two minutes here.

[00:33:40] Speaker 04:
Can I just ask you this?

[00:33:41] Speaker 04:
I mean, I understand your argument that there has to be a one-to-one port for a collimator, but a collimator itself is not a port, right?

[00:33:50] Speaker 03:
A collimator is a port.

[00:33:53] Speaker 04:
No, I mean, what a collimator does is focus the light, right?

[00:33:56] Speaker 04:
Do I misunderstand this?

[00:33:58] Speaker 03:
Correct.

[00:33:59] Speaker 03:
On one side, Your Honor, it's free space.

[00:34:02] Speaker 04:
So there has to be some, I mean, if you just have a

[00:34:06] Speaker 04:
Collimator, which I assume is an actual physical device.

[00:34:10] Speaker 03:
Correct.

[00:34:11] Speaker 04:
It's not necessarily, it's not a port until you attach it to something.

[00:34:14] Speaker 03:
No, it's a port because the light comes in from free space and goes into a fiber.

[00:34:19] Speaker 03:
Collimator makes the light parallel.

[00:34:22] Speaker 00:
Right.

[00:34:22] Speaker 03:
Right, so it provides the port.

[00:34:24] Speaker 03:
Yeah, but it acts as the port.

[00:34:26] Speaker 03:
It is the port.

[00:34:27] Speaker 03:
The collimator and the port are the same thing.

[00:34:28] Speaker 02:
Isn't it correct to say that it can be the port, but that it isn't necessarily the port?

[00:34:34] Speaker 02:
You could have a situation where the collimator provides the signal to a circulator port, right?

[00:34:40] Speaker 03:
Right, but that is not the way the claim is written.

[00:34:42] Speaker 02:
No, I understand, but I'm just trying to get at the structure here.

[00:34:46] Speaker 02:
So we have a situation in which the collimator could be a port, but isn't necessarily a port.

[00:34:53] Speaker 02:
No, I'm not talking about in the patent, I'm talking about just generally.

[00:34:56] Speaker 03:
Oh yes, Your Honor, there's ports all through optical systems.

[00:35:00] Speaker 03:
You have ports on your phone, you have ports on your laptop, everything that

[00:35:03] Speaker 03:
allows the signal to go in or out as a port.

[00:35:06] Speaker 03:
That's just a general term in the technology.

[00:35:09] Speaker 03:
We're talking about the port as used in the summary of the invention and in the claims.

[00:35:13] Speaker 03:
And I should note that the 368 patent does not incorporate the provisional.

[00:35:19] Speaker 03:
It's not incorporated by reference.

[00:35:21] Speaker 04:
And in the 678 patent, though it is incorporated by reference, as I've been... So here, I find this case very difficult and I find some aspects of your argument compelling and I find some aspects of

[00:35:33] Speaker 04:
The other side compelling, don't make a face on me.

[00:35:37] Speaker 04:
But you could, even though I think your reading of the patent seemed more natural, if you look at it as the board did and say, there is an array of collimators.

[00:35:47] Speaker 04:
There's a bunch of them.

[00:35:48] Speaker 04:
And with that array, there is one import port and a bunch of output ports attached to them.

[00:35:55] Speaker 04:
Then why isn't Borovich prior art for that?

[00:35:58] Speaker 04:
Because you have

[00:36:00] Speaker 04:
a couple of collimators and you have at least one input port attached to them and you have an array of output ports attached to them.

[00:36:07] Speaker 03:
Well, because your honor, the way the board construed port was you had the two lenses in Boyovich, right?

[00:36:15] Speaker 03:
12A and 12B.

[00:36:17] Speaker 03:
Then you had a fiber between those lenses and then way outside the system, you had a circulator and they expanded out the definition.

[00:36:26] Speaker 03:
They separated.

[00:36:28] Speaker 04:
You're going back to the argument that

[00:36:30] Speaker 04:
about the definition of port, which I think we've all long told you not to do because we don't agree with you, or at least I don't.

[00:36:37] Speaker 04:
So it seems to me that if we look at this, we have to figure out that this language somehow says multiple fiber collimators with one of those collimators being an input port and with multiple other ones being output ports.

[00:36:52] Speaker 04:
But it's not what it says.

[00:36:54] Speaker 04:
am struggling with whether the board's interpretation of providing is unreasonably broad.

[00:37:01] Speaker 04:
And I don't see how it is if we look at this as we have a group of collimators needing the right number, and that group provides one input port and then provides multiple output ports.

[00:37:16] Speaker 04:
And it doesn't say necessarily that it has to do it directly.

[00:37:21] Speaker 03:
But, Your Honor, it's

[00:37:22] Speaker 03:
That's a possible interpretation, but it's not reasonable.

[00:37:27] Speaker 03:
It's not a reasonable interpretation.

[00:37:28] Speaker 03:
I mean, if that's a possible interpretation, I would agree with you there.

[00:37:32] Speaker 03:
But what they've done is what I would call a broadest possible interpretation.

[00:37:36] Speaker 04:
And it's not reasonable because why?

[00:37:38] Speaker 04:
Because there's nothing in your specification that suggests that?

[00:37:41] Speaker 03:
There's nothing in the specification.

[00:37:43] Speaker 04:
Except for figure nine, which we can't figure out what it shows because there's no testimony about it.

[00:37:50] Speaker 04:
Right.

[00:37:50] Speaker 03:
Your honor, just real quick, I know I'm way past my time, but if we go to appendix 4946, which comes right after figure nine and the provisional, you see just fiber collimators.

[00:38:03] Speaker 03:
You don't see any circulators there.

[00:38:06] Speaker 03:
So these lines are the ports and the ports are collimators.

[00:38:10] Speaker 03:
And if you look at figure 4946 in the appendix, if you go further and you look at 4950 and then you go even further in the provisional and you look at 4954 and you look at 4955.

[00:38:26] Speaker 02:
But the problem is, and I understand the board to be upset,

[00:38:31] Speaker 02:
was that there are some embodiments where there are circulators as the ports, and there's some embodiments where the fiber kilometers are the ports.

[00:38:44] Speaker 03:
Your Honor, I go back to 4933, where it describes Figure 9.

[00:38:48] Speaker 03:
It says, the third architecture is also bidirectional, but uses only one WSR unit.

[00:38:55] Speaker 03:
Circulators are situated on all of the physical input-output ports.

[00:39:01] Speaker 03:
They're situated.

[00:39:02] Speaker 03:
They're not the ports.

[00:39:03] Speaker 03:
They're situated on.

[00:39:05] Speaker 02:
Okay.

[00:39:05] Speaker 02:
I think we're out of time.

[00:39:06] Speaker 02:
Okay.

[00:39:07] Speaker 02:
Thank you.

[00:39:07] Speaker 02:
Thank both counsel.