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

[00:00:39] Speaker 01:
May it please the Court.

[00:00:42] Speaker 01:
The Board determined that a person of ordinary skill would have been motivated to replicate the second signal of the two-signal invention of the 933 patent for three reasons.

[00:00:54] Speaker 01:
One, to save power.

[00:00:56] Speaker 01:
Two, to save cost.

[00:00:58] Speaker 01:
And three, to supposedly enhance flexibility.

[00:01:02] Speaker 01:
I'd like to emphasize today what I think the briefs and the record make plain in that these are made up reasons

[00:01:09] Speaker 01:
which are unsupported by any competent evidence, let alone substantial evidence.

[00:01:15] Speaker 01:
Hence, I think the board's decision must be made up.

[00:01:18] Speaker 04:
Made up reasons?

[00:01:19] Speaker 01:
Made up in the sense that there is no factual or rational or logical underpinnings for these reasons.

[00:01:27] Speaker 01:
And I'd like to go through them, if I may.

[00:01:29] Speaker 00:
Well, can you just start with the one I'm more interested in, which is it seems that even your expert conceded

[00:01:36] Speaker 00:
that there's some power savings would be achieved by the combination, right?

[00:01:40] Speaker 01:
My expert recognized that it was possible that there could be an immaterial power saving of a few millions of a watt.

[00:01:50] Speaker 01:
But beyond that, our expert, Dr. Padran, testified without refutation that no person of ordinary skill would have any motivation to combine the references to save a few millions of a watt.

[00:02:06] Speaker 01:
That is, it's just not refuted.

[00:02:12] Speaker 01:
Dr. Davis didn't come back.

[00:02:14] Speaker 04:
Thank you.

[00:02:15] Speaker 01:
I apologize.

[00:02:16] Speaker 04:
Did you dispute the PTAB's findings when it identified the two expressed benefits of combining Casemin with Allen and Breen reduction in cost due to eliminating a conductor and improving flexibility resulting from allowing the same power supply to work with different

[00:02:36] Speaker 04:
devices?

[00:02:38] Speaker 01:
Yes, they didn't raise the cost issue until their reply brief before the PTAB.

[00:02:43] Speaker 01:
I contested it during oral argument, and I've cited the relevant transcript pages for that.

[00:02:51] Speaker 01:
Good.

[00:02:52] Speaker 01:
Please do.

[00:02:52] Speaker 01:
Beyond that, I'm sorry.

[00:02:54] Speaker 01:
Please do.

[00:02:56] Speaker 01:
Beyond that is demonstrated in... No, no.

[00:02:58] Speaker 01:
I'm sorry.

[00:02:59] Speaker 04:
Please do cite the relevant transcript pages.

[00:03:10] Speaker 01:
I'm sorry, Your Honor, my memory is not as good as it used to be.

[00:03:13] Speaker 04:
It's mine, Esper.

[00:03:23] Speaker 04:
It's not saying mine.

[00:03:51] Speaker 01:
Yes, Your Honor, I did dispute it.

[00:03:56] Speaker 01:
It's at page 11 of Camargo's reply brief, appendix 1106 at 27, colon 18, to appendix 1107 at 28, colon 2.

[00:04:06] Speaker 01:
1106.

[00:04:12] Speaker 04:
Where?

[00:04:13] Speaker 04:
What line?

[00:04:13] Speaker 04:
I'm sorry?

[00:04:14] Speaker 01:
I'm sorry.

[00:04:18] Speaker 01:
Page 11 of Camargo's reply brief.

[00:04:20] Speaker 01:
Appendix 11.06 at page 27, colon 18, to Appendix 11.07 at 28, colon 2.

[00:04:33] Speaker 01:
The point I made during the argument is that you cannot eliminate a conductor in the cable.

[00:04:41] Speaker 01:
And we've established that, again, with that refutation from Apple, in our principal brief at pages 30 to 31,

[00:04:49] Speaker 01:
where, with reference to figure four of Allen, the wires between Allen's power detection circuit 74 and Allen's AC identification circuit 77 and 78 would have to be run, two wires would have to be run to the end of the conductor if you were going to make the substitution, or excuse me, move Green's receiver responders to the end of the connector, as Apple argued.

[00:05:19] Speaker 01:
But I think it's pretty clear that you would add a wire if you did that.

[00:05:25] Speaker 01:
You wouldn't eliminate a wire.

[00:05:26] Speaker 01:
Therefore, there are no cost savings.

[00:05:28] Speaker 04:
And therefore, the reason is that... I'm going to say two things to you.

[00:05:32] Speaker 04:
Sure.

[00:05:33] Speaker 04:
First is, what I see here at 27 and 28, at those lines, is purely attorney argument.

[00:05:42] Speaker 04:
But the second thing, more importantly to me, sitting up here,

[00:05:46] Speaker 04:
is what you're saying in front of me is not the same as what you say in pages 27 and 28.

[00:05:54] Speaker 04:
There's some overlap, but not much.

[00:05:57] Speaker 01:
Well, the problem was, Your Honor, they didn't raise the cost-saving argument until the reply brief before the board.

[00:06:06] Speaker 01:
And they didn't even articulate it very much.

[00:06:09] Speaker 01:
So I feel, and I pointed it out in the principal brief, that we got a little bit snookered.

[00:06:16] Speaker 01:
That's neither here nor there.

[00:06:17] Speaker 01:
I mean, I think the record establishes that there is no way that you could save money by eliminating a cable in the, excuse me, a conductor or a wire in the cable.

[00:06:29] Speaker 01:
It's not there.

[00:06:30] Speaker 01:
It's a made-up reason.

[00:06:33] Speaker 01:
We also have the flexibility issue.

[00:06:36] Speaker 01:
And that raises, in my view, two paths, both which have to end up in dead ends.

[00:06:45] Speaker 01:
On the one hand, Apple and the board say moving the conductor, or excuse me, the circuit from the power supply to the conductor would enhance flexibility.

[00:06:56] Speaker 01:
But I don't see how that enhances flexibility, as pointed out in the brief, if the cable is permanently attached to the power supply.

[00:07:03] Speaker 01:
There would be no reason to move the circuit from the power supply where it belongs to a conductor.

[00:07:12] Speaker 01:
You just can't enhance flexibility

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with a permanently attached cable.

[00:07:20] Speaker 01:
And then on the other hand, the other dead end is that if the cable is detachable and you put the circuitry at the end of the cable, well then you have what we call the mismatch problem because that cable can be put into different power supplies.

[00:07:35] Speaker 01:
It doesn't know what the power supply is, could give, would give, as Apple's expert Dr. Davis acknowledged,

[00:07:44] Speaker 01:
a wrong signal which could lead to hazardous operation.

[00:07:51] Speaker 01:
Apple takes the position, maybe the board does too, that, well, that's just a trade-off.

[00:07:58] Speaker 01:
On one hand, we get flexibility.

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On the other hand, we have the potential for dangerous operation.

[00:08:06] Speaker 01:
I can't believe that the law would recognize such a trade-off.

[00:08:10] Speaker 01:
And then the third point on the flexibility issue, which Apple clearly raised for the very first time.

[00:08:16] Speaker 02:
What's the legal authority for that statement, other than you can't believe it?

[00:08:20] Speaker 01:
Well, what person of ordinary skill in the art having a choice between, oh, I can adopt an avenue which leads to fire or hazardous operation, as is the term of art in all the patents, or I can go for flexibility.

[00:08:36] Speaker 01:
I don't think that any person of ordinary skill in the art would opt for

[00:08:40] Speaker 01:
hazardous operation.

[00:08:42] Speaker 01:
And I can't believe that the law would recognize that sort of trade-off for purposes of the motivation test in the obvious inquiry.

[00:09:08] Speaker 01:
I think I hit all my high points.

[00:09:09] Speaker 00:
That's perfectly fine.

[00:09:11] Speaker 00:
Why don't you save the rest of your time?

[00:09:12] Speaker 01:
Thank you, Your Honor.

[00:09:23] Speaker 05:
Good morning, and may it please the Court.

[00:09:25] Speaker 05:
The very first statement by Appellant makes Apple's case here, and that is that the Board found three different motivations.

[00:09:35] Speaker 05:
What Comarco wants to do is

[00:09:38] Speaker 05:
re-argue the case.

[00:09:39] Speaker 05:
They want this Court to weigh the, in some cases, conflicting opinions of the experts and the arguments that were all considered in the final written decision, and second-guess the board.

[00:09:53] Speaker 05:
And that, of course, isn't proper under the substantial evidence test, which... And in some cases, not conflicting.

[00:10:00] Speaker 05:
And precisely, Your Honor, in some cases, there was no challenge to the proffered motivations.

[00:10:07] Speaker 05:
These, let me try to just go directly to the points here, because I think they really determine the outcome of this appeal.

[00:10:15] Speaker 05:
First of all, the appellant's argument appears to be based almost entirely on this idea that Apple did not raise the cost savings motivation to combine the Castleman location of the circuit until our reply brief.

[00:10:33] Speaker 05:
That's just not true.

[00:10:34] Speaker 05:
It is clearly stated

[00:10:36] Speaker 05:
at page 38 of the Petition, which is page 524 of the appendix.

[00:10:41] Speaker 05:
The Petition itself in turn cites to paragraph 97 of Dr. Davis's opinion, which is appendix page 601, wherein he cites for further support what is now appendix pages 393 and 396, which are the Castleman references.

[00:10:59] Speaker 05:
So with respect to Castleman, we don't simply have appellant asking this Court to second-guess

[00:11:06] Speaker 05:
the board, the appellant's asking this Court to second-guess Castleman.

[00:11:13] Speaker 05:
I've never seen any case when that would be appropriate.

[00:11:15] Speaker 05:
We take one of ordinary skill to be fully appreciating the disclosures of the prior art, and there's no dispute that Castleman itself, the prior art, describes the motivation to place the circuitry in the output connector.

[00:11:33] Speaker 04:
Kennedy Where on 601 is the cost savings?

[00:11:36] Speaker 04:
Let me see if I have it there.

[00:11:38] Speaker 04:
He's talking about design choice.

[00:11:41] Speaker 04:
I should be able to locate it.

[00:11:49] Speaker 05:
It is at the bottom of page 601 of Dr. Appendix 601.

[00:11:54] Speaker 05:
In addition, Castleman provides a motivation to place the memory check.

[00:11:58] Speaker 05:
Oh, got it.

[00:12:00] Speaker 05:
Okay.

[00:12:00] Speaker 05:
Got it.

[00:12:01] Speaker 05:
So with respect to Castleman, we don't think there's a close call here at all.

[00:12:06] Speaker 05:
This isn't a case where there's even a challenge to an expert not having a basis.

[00:12:11] Speaker 05:
It's in the reference itself.

[00:12:13] Speaker 05:
The motivation is there.

[00:12:15] Speaker 05:
With respect to the Breen reference, again, and it was clear, I think, from Appellant's presentation here this morning, that there is not a dispute that there would be some reduction in power.

[00:12:26] Speaker 05:
The magnitude of that reduction was in dispute, but the board acknowledges in detail in its final written decision that it weighed that.

[00:12:33] Speaker 05:
And it decided that even if

[00:12:36] Speaker 05:
all we had to go on in this case was the testimony of Dr. Davis regarding a power savings for replacing Allen's one-way signal with a call and response signal like brain teaches, then it still would have a sufficient motivation to combine.

[00:12:53] Speaker 05:
But Appellant hasn't even addressed the other issue that the board raised, and of course we raised in our petition.

[00:12:58] Speaker 05:
This is the classic application of sort of the common sense test that KSR taught us.

[00:13:04] Speaker 05:
I've been practicing long enough, and I remember I had to point to this quarter, to the trial quarter, to explicit teaching of motivation to combine.

[00:13:11] Speaker 05:
And in this case, we do believe we have it with respect to Dr. Davis.

[00:13:15] Speaker 05:
But of course, KSR envisions a situation where one of ordinary skill confronted with two known options.

[00:13:22] Speaker 05:
And that's what Allen and Breen are.

[00:13:25] Speaker 05:
Allen and Breen not only are addressed to the idea of providing power to a mobile computing device.

[00:13:32] Speaker 05:
They're not only addressing the issue

[00:13:34] Speaker 05:
of how to solve the problem of letting that mobile computing device know the nature of the power supply.

[00:13:41] Speaker 05:
But they both have a solution, and they're only slightly different.

[00:13:44] Speaker 05:
Alan teaches a one-way constant communication of a signal so that the device knows the nature of the power supply.

[00:13:53] Speaker 05:
And Breen merely explains that, you know what, you can do this more efficiently and only send that signal when you're asked to do so by the device.

[00:14:01] Speaker 05:
That's the classic example.

[00:14:03] Speaker 05:
of one of ordinary skill, taking known options and applying them in a predictable manner.

[00:14:09] Speaker 05:
And I would submit that if it's not Allen and Breen, there would not be any combination that would meet that test, unless the court has any other questions for me.

[00:14:17] Speaker 00:
Thank you.

[00:14:18] Speaker 05:
Thank you.

[00:14:31] Speaker 01:
On this, pardon me, on the cost saving issue, looking at page, I guess it was 601, was that what it was?

[00:14:40] Speaker 01:
Yeah, at the bottom of 601.

[00:14:42] Speaker 01:
They haven't articulated anything.

[00:14:45] Speaker 01:
And if you go and you look at Castleman, their main citation is to a paragraph in Castleman, I think on column 16, but don't hold me to that, where it talks about when we're dealing with legacy devices,

[00:15:00] Speaker 01:
It may make sense to put a... Were you on notice when they said cost-benefits associated?

[00:15:09] Speaker 01:
Yeah, but I didn't know what they were talking about.

[00:15:11] Speaker 01:
What I'm trying to say is, if you look at the bottom of page six, or column 16, they're talking about... Pardon me, Your Honor.

[00:15:18] Speaker 04:
No, no.

[00:15:19] Speaker 04:
Sorry.

[00:15:19] Speaker 04:
Pardon me.

[00:15:20] Speaker 04:
When you say, yeah, but I didn't know what they were talking about, I said, were you on notice when they said cost-benefits?

[00:15:28] Speaker 04:
And you give me a yes-but.

[00:15:30] Speaker 04:
But to me, it's the yes that matters.

[00:15:32] Speaker 04:
You were on notice.

[00:15:38] Speaker 01:
Yes, I suppose I was on notice.

[00:15:40] Speaker 01:
Was I apprised of what the argument was or what they were driving it?

[00:15:45] Speaker 01:
No.

[00:15:47] Speaker 01:
But if you look at Castleman on column 16, he's talking about cost benefit in the sense of if you have a legacy device,

[00:15:54] Speaker 01:
You save money by putting a memory chip in the end of a conductor as opposed to reopening an up device and putting the chip in there.

[00:16:01] Speaker 01:
That's not the argument they're making here or now.

[00:16:08] Speaker 01:
I have a hard time believing that Dr. Davis's testimony is competent.

[00:16:14] Speaker 01:
I mean, he flat-out said, I made a guess.

[00:16:18] Speaker 01:
I didn't do any study, and I conclude that maybe you'd save a few thousand watts of power.

[00:16:24] Speaker 01:
against that testimony of if not an equally competent or better electrical engineer who says even if you could save a few thousands or a few millions of watts, no person of ordinary skill in the art would do it.

[00:16:41] Speaker 03:
You're describing a classic circumstance where the Trier effect weighs evidence.

[00:16:48] Speaker 03:
But I. And then you're talking to an appellate court.

[00:16:50] Speaker 01:
But I don't see how.

[00:16:52] Speaker 01:
Dr. Davis' testimony is evidence.

[00:16:56] Speaker 01:
He hasn't explained.

[00:16:57] Speaker 01:
He hasn't refuted Dr. Pedram's testimony.

[00:16:59] Speaker 01:
He disappeared.

[00:17:02] Speaker 01:
The best who he had from Dr. Davis in his initial declaration was, well, it's a matter of common sense that somebody would employ the receiver-responders instead of the continually broadcasting circus, because, oh, you're going to say you'll save power.

[00:17:17] Speaker 01:
But how much power?

[00:17:20] Speaker 01:
If we're going to have a flexible analysis of obviousness in light of concerns in the design community, the marketplace, et cetera, I think you have to take into the fact that if there's no gain foreseen or benefit to be realized, the person with ordinary skill in the art isn't going to take the time or spend the money or whatever to combine references unless he knows what the invention is in hindsight.

[00:17:48] Speaker 01:
We create an argument to combine the references.

[00:17:51] Speaker 01:
And I think that's exactly what has happened here.

[00:17:53] Speaker 01:
We've explained it with regard to the power saving issue.

[00:17:56] Speaker 01:
We've explained it with regard to the cost saving issue and with the flexibility issue.

[00:18:02] Speaker 01:
The evidence doesn't support those reasons.

[00:18:07] Speaker 01:
It's to the contrary.

[00:18:09] Speaker 01:
The evidence points to the fact that the person with an ordinary skill would not have been motivated

[00:18:17] Speaker 01:
replicate the invention.

[00:18:31] Speaker 01:
Any other questions?

[00:18:33] Speaker 00:
Thank you.

[00:18:33] Speaker 00:
Thank you very much for your time.