[00:00:10] Speaker 02: Mr. Spears? [00:00:12] Speaker 02: Yes, your honor. [00:00:13] Speaker 02: And you have five minutes of your time for rebuttal. [00:00:16] Speaker 02: Yes, your honor, thank you. [00:00:17] Speaker 02: Okay, thank you. [00:00:18] Speaker 02: You may proceed when you're ready. [00:00:19] Speaker 01: May it please the court. [00:00:20] Speaker 01: The board legally erred here in ignoring the 831 patents binding admission that interleaving packets together was already known in the art, and in declining to consider the background knowledge underlying the fact that interleaving packets together was already known. [00:00:37] Speaker 01: The 831 patent relates to a method for correcting errors. [00:00:41] Speaker 01: Could you speak up just a little bit? [00:00:42] Speaker 01: Yes, Your Honor. [00:00:43] Speaker 01: The 831 patent relates to a method for correcting errors in radio frequency communications, which has two material elements. [00:00:52] Speaker 01: The 831 patent admitted that the first element in coding construed as interliving packets together was already known in the art. [00:00:58] Speaker 03: My understanding of the grounds of your petition [00:01:03] Speaker 03: were premised on the READ reference teaching the encoding and that's what it was instituted on and then ultimately the board concluded no it's not teaching READ is not teaching encoding because encoding requires interleaving which there is now no dispute over that and so there wasn't an extra additional argument made by your side in the petition that [00:01:29] Speaker 03: even if read doesn't teach encoding because encoding requires interleaving, it would nevertheless be obvious to modify the disclosure of read such that one would instead of [00:01:46] Speaker 03: doing the interleaving of data between two R blocks in any given S block, you are now instead interleaving data between all of the S blocks on a given packet block. [00:01:58] Speaker 03: I did not see that additional extra distinct argument apart from your argument, which rested completely on the re-reference itself disclosing the encoding. [00:02:11] Speaker 01: Well, we did argue that Reed taught encoding and interleaving packets together on its own. [00:02:18] Speaker 01: But the petition also fully set forth for two pages that the submission was there. [00:02:23] Speaker 01: It was already known to interleave packets together as a means for correcting error. [00:02:28] Speaker 01: And that's at appendix page 105 to 106. [00:02:30] Speaker 01: And this was his background for all the grounds in the petition. [00:02:34] Speaker 01: The petition starts off and says, the patent admits that interleaving packets together was known in the art. [00:02:40] Speaker 01: the allegedly new thing is supposed to be varying the number of packets according to signal dropout characteristics. [00:02:47] Speaker 03: I'm looking at A125 to A127, I guess, which is where you took on the question of encoding packets into packet blocks. [00:03:00] Speaker 03: And you had two basic arguments. [00:03:06] Speaker 03: encoding is a very broad concept and it can include concatenation of the S blocks. [00:03:12] Speaker 03: Secondly, you relied on this one passage in column two of Reed that you believe supported the idea of data interleaving perhaps between the S blocks in Reed. [00:03:24] Speaker 03: That's correct. [00:03:25] Speaker 03: But there isn't the additional argument here in the petition that says, and in addition, it would have been obvious to modify the teachings of READ, not just relying expressly on the teachings of READ, but to actually modify the teachings of READ to data interleave between its S-blocks in light of the background knowledge in the ARC that the concept of data interleaving itself was well known, and so you could [00:03:53] Speaker 03: interleave, therefore, this way, that way, any which way you want, any which way you can. [00:03:58] Speaker 03: Reed's particular data interleaving could be replaced by virtually any iteration of data interleaving. [00:04:06] Speaker 01: Well, I mean, I'll go back and say this is an obvious analysis of non-anticipation. [00:04:11] Speaker 01: And because the patent already admitted that interleaving packets together was known in the art, and that's what's addressed in the background section for all the grounds, there is no need for this to be in Reed. [00:04:22] Speaker 01: Reed didn't need to teach this. [00:04:24] Speaker 01: because it was already admitted that this was known. [00:04:27] Speaker 01: Furthermore, the petition at the same page as I'm pointing to, 105 to 106, showed that this was part of the background knowledge that any person reading Reed and reading Mahaney would have already known that this was a type of interleaving. [00:04:43] Speaker 01: Now Reed indisputably teaches interleaving. [00:04:46] Speaker 01: And we can talk later about whether it's teaching interleaving across X-blocks or just within X-blocks. [00:04:54] Speaker 01: But there is no dispute that anyone looking at Reed would have already known, hey, interleaving the S-blocks, interleaving packets together, is another form of correcting data. [00:05:03] Speaker 01: And if you just take a look at, if you just are saying, is it in Reed or is it in Mahaney, and ignore this background knowledge, you're violating the precedence of KSR, which says you have to consider the background knowledge. [00:05:17] Speaker 03: But there's other precedent, too, which is the board is [00:05:23] Speaker 03: It's your burden in these IPR proceedings to create the arguments that the board has to be confronted with and then address. [00:05:31] Speaker 03: And the board isn't obligated on its own initiative to start taking what you've presented and then build out in different directions. [00:05:42] Speaker 03: I mean, there's an argument that perhaps it could, or at least [00:05:45] Speaker 03: raise questions to the parties to therefore grieve. [00:05:47] Speaker 03: But the board itself, as a fact-finding district, doesn't have the unilateral obligation to take the clay you've given it and then start molding it in interesting, different ways. [00:06:00] Speaker 01: I'd say the clay we gave was in the petition. [00:06:02] Speaker 01: Everything that was in the reply was in the petition. [00:06:07] Speaker 01: And all that the reply said was, the petition said, [00:06:13] Speaker 01: you know, Reed teaches interleaving, and it's confirming the submission and the background art set forth at page 106 and 107, 105 and 106 of the petition, that everybody knew you can interleave packets together. [00:06:26] Speaker 01: This has been known since 1970. [00:06:27] Speaker 01: So if you're in the patent on a response, distinguishing Reed by saying that's not the right type of interleaving, that doesn't change the fact that everyone already knew this. [00:06:38] Speaker 01: The patent admitted that everyone already knew this. [00:06:40] Speaker 01: It was in the background knowledge. [00:06:41] Speaker 01: And that's proper rebuttal. [00:06:43] Speaker 01: Moreover, I think the precedence from this Court, where the Board went off track is it saw these arguments based on background knowledge as being a new and different grounds of patentability. [00:06:56] Speaker 01: But this Court's precedent in Randall and in Ariosa is that that's just not the case. [00:07:01] Speaker 01: Arguing the background, the prior art has to be considered in view of the background knowledge. [00:07:07] Speaker 01: And in Randall, a very similar argument was made, and this Court said, [00:07:15] Speaker 01: held that patentability arguments based upon background art simply do not present a new theory of patentability. [00:07:24] Speaker 01: It's part of the consideration that the court has to go through, that the board has to go through anyway. [00:07:29] Speaker 01: And then later in Ariosa, following the decision in Randall, the board held that the court can't refuse to consider background art even if... Let me just ask this. [00:07:39] Speaker 04: I think this is the same point we've been discussing, but tell me if I'm wrong. [00:07:45] Speaker 04: The point can be made this way. [00:07:47] Speaker 04: There's a question about what Reed itself teaches, and a lot of stuff can be relevant to that. [00:07:53] Speaker 04: That's kind of the lesson, if it were needed, of Randall. [00:07:57] Speaker 04: Since we're talking about how a relevant skilled artisan would understand a piece of prior art, you need some [00:08:08] Speaker 04: basis for evaluating what would already be in the relevant skilled artisan's head, and a good basis for that would be to look at some other art that's fairly objective. [00:08:20] Speaker 04: But what I take to be the point we've been discussing is that by the time you got to the reply stage, the question was, all right, even if we're wrong about how a skilled artisan would understand what Reid taught, we now want to suggest that a skilled artisan would take what Reid taught, take other knowledge, modify it in the light of that other knowledge, and that, [00:08:49] Speaker 04: seems like a different argument, and therefore legitimately rejected by the board as coming too late made only in reply. [00:09:02] Speaker 01: I would say it's not a question of modifying Reed, it's a question of what someone reading Reed would understand. [00:09:08] Speaker 01: We're operating in a situation where, and foreshadowing a little bit the discussion of Reed, the board found [00:09:14] Speaker 01: read at worst ambiguous. [00:09:16] Speaker 01: It found it equally plausible that it could be talking about interleaving S blocks or interleaving R blocks. [00:09:21] Speaker 04: Well for that one sentence, I think actually you've over characterized what the board said in its, let's call it a quasi-mia culpa about the institution decision. [00:09:33] Speaker 04: It took the board to be saying nothing other than in the institution decision we said that every single sentence that referred to this in read referred [00:09:42] Speaker 04: to the R blocks, and then in the final written decision, I said, actually, there's one sentence that doesn't do that. [00:09:49] Speaker 04: Now we have a task of figuring out what that sentence, in light of, understood in the context of read, actually teaches. [00:09:56] Speaker 04: And ultimately, we don't think it teaches what you say it teaches. [00:10:00] Speaker 01: And my point is, you're operating in a situation where you have read, arguably ambiguous, I would say it isn't, in terms of whether it's talking about S blocks and R blocks, [00:10:10] Speaker 01: that anybody coming to read, reading it, already knows to interleave the S-blocks, dating back to 1970. [00:10:16] Speaker 01: They already knew that interleaving packets together, it was common knowledge. [00:10:20] Speaker 01: It was set forth in the petition that this was common background knowledge that anyone reading the reference would know. [00:10:26] Speaker 01: And it was even admitted in the 831 patent. [00:10:28] Speaker 01: There's no dispute anywhere that anybody reading this stuff would have already known to interleave packets together. [00:10:34] Speaker 01: So in a situation where you have a teaching in read of interleaving that at least comes close, [00:10:40] Speaker 01: you have the background knowledge of a person with a skilled artist and they already know Tenderly packets together and the specification of the A31 patent admits that this is in the prior art. [00:10:49] Speaker 01: There's no room to say that interleaving packets together somehow imports patentability to these clients. [00:10:56] Speaker 04: The removal from interleaving are the blocks. [00:10:59] Speaker 04: to also interleaving the S-blocks have no countervailing downside. [00:11:08] Speaker 04: Doesn't it increase the complexity? [00:11:11] Speaker 04: And didn't your own expert indicate that the more interleaving you do, I forget what the language was, there's more delay, at least delay. [00:11:22] Speaker 04: If there's any downside at all to expanding the scope of interleaving, then it seems to me you can't just look at Reed. [00:11:31] Speaker 04: Now you're talking about having to have evidence of why a skilled artisan would be motivated to do so, which means a different kind of point with different kind of evidence compared to what was in the petition when you were talking about what does Reed itself teach? [00:11:52] Speaker 01: Well, again, I go back. [00:11:54] Speaker 01: The petition also talked about the background knowledge. [00:11:56] Speaker 01: But I have two responses to that. [00:11:58] Speaker 01: First of all, the board's finding was that the element wasn't there anywhere, that a person of ordinary skill in the art, it would not have been obvious to this person that this thing that everyone knew how to do since 1970 could be done here. [00:12:11] Speaker 01: So it wasn't a motivation to combine issue. [00:12:13] Speaker 01: It was that the element was not present. [00:12:15] Speaker 01: So that's what you're talking about. [00:12:16] Speaker 03: The element was not taught by Reed. [00:12:18] Speaker 03: So the board, to give the board a little credit here, [00:12:22] Speaker 03: it was doing what it believed it was required to do, which was to answer the argument you raised in your petition. [00:12:32] Speaker 03: And your argument in the petition was that Reed teaches this encoding, this interleaving. [00:12:38] Speaker 03: And the board ended up looking at it and saying, no, it doesn't, because the only interleaving that's going on is with the R blocks, and it's not in between all the S blocks in Reed. [00:12:48] Speaker 03: And so therefore, the argument I'm confronted with [00:12:52] Speaker 03: that actually teaches this claim of limitation is wrong. [00:12:57] Speaker 03: Now you've got this other argument, which is, well, it would be obvious to do the modification. [00:13:02] Speaker 03: And so that's where I think Judge Toronto is raising the question of, well, what would that modification look like, first of all? [00:13:12] Speaker 03: not only continuing to interleave the two R blocks in every S block, but also, and in addition to that, interleaving all the data amongst the S blocks? [00:13:24] Speaker 03: Or would it be stop interleaving R blocks? [00:13:28] Speaker 03: Now we're only going to interleave among the S blocks. [00:13:34] Speaker 03: Which one is it that is your proposed modification? [00:13:41] Speaker 01: I think it goes too far to characterize it as a proposed modification. [00:13:45] Speaker 01: What does the reference teach? [00:13:47] Speaker 02: You didn't argue that read needs to be modified. [00:13:52] Speaker 02: You argued that this encoding of the S-blocks is already in read. [00:13:57] Speaker 01: We read that the modification of the S-blocks is already in read, but even if it's not there, [00:14:02] Speaker 01: anyone reading read, or even if it's ambiguous, anyone reading read would have already known how to do this. [00:14:08] Speaker 01: And I'll push back on the argument that it wasn't in the petition, the fact that this admission was made, the fact that this background knowledge was there. [00:14:15] Speaker 02: Would you agree that if we find that you were seeking a modification of read, then that would constitute a new argument, but that if you're not, then we don't have a new argument? [00:14:31] Speaker 01: I think that's putting, you know, to find a characterization on it. [00:14:35] Speaker 01: I mean, the point is, what would a person of skill in the art understand when they're looking at this instruction from Reed, where it expressly says at Column 2, further protection? [00:14:46] Speaker 03: I think the question is a little different. [00:14:48] Speaker 03: The question is, what was, if I was [00:14:52] Speaker 03: on the panel of the board in this case, what would I have deemed my responsibility to be based on the arguments presented in front of me, based on the content of your petition? [00:15:04] Speaker 03: And then I would make a judgment on that. [00:15:07] Speaker 03: And then I would compare that to anything that I perceive to be new in your reply and then try to figure out, is that an impermissible new argument? [00:15:17] Speaker 03: I think that's really the [00:15:19] Speaker 03: The issue we have now, before we can even get to the question of whether it be obvious to modify, read, to interleave the S-blocks. [00:15:29] Speaker 01: May I briefly respond to that? [00:15:31] Speaker 01: I'll be brief. [00:15:33] Speaker 01: I would say that the obligation of the board was to follow the law that prior art cannot be distinguished for failing to teach something which the specification admits is already known. [00:15:44] Speaker 01: There's a litany of cases on this, and that law is not disputed. [00:15:48] Speaker 01: And your obligation was also to follow this court's teaching in Randall and Ariosa, arguing to construe prior art in view of the background knowledge under which this stuff was already known. [00:16:00] Speaker 01: It's not a new theory of patentability. [00:16:02] Speaker 01: It's not something that needs to be separately enumerated as a grounds and petition. [00:16:05] Speaker 01: It's something that simply always has to be done. [00:16:07] Speaker 02: So what happens if you find in your favor? [00:16:10] Speaker 02: Do we remand? [00:16:11] Speaker 02: And then what happens? [00:16:13] Speaker 02: The board takes into account your reply. [00:16:18] Speaker 01: Certainly, I would urge remand rather than an affirmance. [00:16:24] Speaker 01: I would argue here, though, that for there to be a remand, there has to be some legally cognizable issue for the board to consider. [00:16:31] Speaker 01: And we set forth in our blue brief that obviousness can be determined as a matter of law where the grant factors are undisputed. [00:16:38] Speaker 01: And if you take into account what's known in the art and this admission, [00:16:41] Speaker 01: interleaving packets together simply can't be some importation of- I think the question I'm asking is, does your reply brief make a difference in the case? [00:16:51] Speaker 02: Does the reply brief- The arguments that you make in your reply, the arguments that were rejected. [00:16:58] Speaker 01: I would say certainly they would. [00:16:59] Speaker 01: I mean, the board did not understand Pharmastim and that they couldn't distinguish the prior work for failing to teach what was admittedly already known. [00:17:08] Speaker 01: And that's clear at page 15 of the appendix, [00:17:11] Speaker 01: And the board affirmatively declined to consider the background knowledge. [00:17:17] Speaker 01: OK. [00:17:17] Speaker 01: We have your argument. [00:17:21] Speaker 00: Thank you. [00:17:21] Speaker 00: Councilman Picard. [00:17:23] Speaker 00: Good afternoon. [00:17:24] Speaker 00: May it please the court? [00:17:26] Speaker 00: I do want to start with the precise theory of unpatentability that Erickson put forward to the board below. [00:17:34] Speaker 00: If you look at the joint appendix at 126, the last sentence of that page [00:17:39] Speaker 00: concludes accordingly, the 731 patent, that's the read reference, discloses that its S-blocks, i.e. [00:17:46] Speaker 00: packets, are further encoded into packets, i.e. [00:17:48] Speaker 00: packet blocks, through interleaving. [00:17:51] Speaker 00: What that sentence, what the board reasonably concluded that sentence meant, and as did IV, was that the argument on patentability was that read itself somehow interleaved its S-blocks, not that the skilled artisan would have thought to combine a teaching of interleaving. [00:18:06] Speaker 02: Well, but what about the petition? [00:18:07] Speaker 02: I mean, the petition makes clear [00:18:09] Speaker 02: and makes a very clear statement, and then leaves that statement alone. [00:18:14] Speaker 02: And that is that interleaving was known in the art. [00:18:17] Speaker 00: They do make that statement, and that statement wasn't contested in this case. [00:18:20] Speaker 02: So what we have to do is we have to look at that statement and say, well, a placida begins there. [00:18:26] Speaker 02: And a placida is assumed to know the prior art. [00:18:30] Speaker 02: And here, the pattern is just making clear. [00:18:33] Speaker 02: We can see that interleaving is known in the art. [00:18:39] Speaker 02: Now, when I read that, I read that that means all interleaving. [00:18:44] Speaker 02: It doesn't just mean some subsectors of it or parts of it or new ways and creative ways of looking at interleaving. [00:18:52] Speaker 02: It includes it all. [00:18:55] Speaker 00: If I may, let's look at the patent for a moment. [00:18:59] Speaker 02: We don't have to. [00:18:59] Speaker 02: I mean, it does say that, doesn't it? [00:19:01] Speaker 00: It does say that. [00:19:01] Speaker 00: But then in the next sentence, I think, and this is where the case was decided by the board, if we look at the 831 patent, [00:19:08] Speaker 00: At column 6, line 66, this is in the joint appendix at 61. [00:19:14] Speaker 00: There's this recognition that's not been disputed in this case that interleaving packets together. [00:19:20] Speaker 02: I'm sorry, you're going to have to slow down just a tiny bit. [00:19:22] Speaker 00: I apologize. [00:19:22] Speaker 02: Where are you? [00:19:23] Speaker 00: This is in the joint appendix at 61. [00:19:25] Speaker 00: This is column 6 from the 831 patent at line 66. [00:19:31] Speaker 00: I'm sorry. [00:19:35] Speaker 00: And the patent says, as Judge Raina pointed out, interleaving packets together is known in the arts. [00:19:41] Speaker 00: But then the patent continues. [00:19:42] Speaker 00: It says, however, varying the number of bytes in each packet interleaved together, according to the receiver speed, is novel and provides substantial advantages. [00:19:51] Speaker 02: Look at line 40 above that. [00:20:00] Speaker 00: I'm there, your honor. [00:20:01] Speaker 02: OK, it's talking about interleaving, that first nine packets are interleaved together so that, then it goes on and talks about combination. [00:20:09] Speaker 02: Is that, is line 40, is what's going on in line 40 addressed by interleaving packets in line 65? [00:20:20] Speaker 00: Well, the general, yeah, I'm sorry. [00:20:23] Speaker 00: Go ahead. [00:20:23] Speaker 00: What the patent recognizes is that the idea of interleaving packets together was known, but the insight [00:20:29] Speaker 00: to vary the number of packets that are interleaved together was not known, and that there are benefits to that. [00:20:35] Speaker 00: So when transmission conditions are poor, you interleave a fewer number of packets. [00:20:41] Speaker 00: When transmission conditions are high, we can interleave more packets. [00:20:46] Speaker 00: And that shows up in the claims. [00:20:47] Speaker 00: If we look at the two encoding steps, and the parties have agreed here that encoding should be construed to mean interleaving packets together, and the board confirmed that in its final written decision, [00:20:58] Speaker 00: the first encoding step, which no one disputes that that was not known in the art. [00:21:03] Speaker 00: Where the patentability in these claims comes in is in the varying step. [00:21:06] Speaker 02: So let's now look at 65. [00:21:10] Speaker 02: And it says, however, varying the number of accidents packet interleaved together according to receiver speed is novel. [00:21:19] Speaker 02: What's novel about that? [00:21:22] Speaker 02: which packets you're interleaving or the fact that now you're interleaving with respect to speed as opposed to something else? [00:21:30] Speaker 02: I think both are novel. [00:21:31] Speaker 00: So what's novel is let's, you can have an example where we interleave just two packets together. [00:21:37] Speaker 00: So we take some data from packet one and some data from packet two and we mix them up in the new packets on the transmission and on the backend we decode them, if you will. [00:21:46] Speaker 00: And you might just have two when the conditions are quite poor. [00:21:48] Speaker 00: We'll have more, more interleaving. [00:21:50] Speaker 00: We might take nine packets. [00:21:51] Speaker 00: So that was an insight. [00:21:55] Speaker 02: I see all of that as interleaving. [00:21:58] Speaker 02: All you're doing is still interleaving. [00:22:01] Speaker 02: You're just interleaving different packets. [00:22:03] Speaker 02: And when I read this, it says that the novelty is interleaving packets together according to receiver speed. [00:22:12] Speaker 02: So what's novel is that you're applying interleaving now to receiver speed. [00:22:18] Speaker 00: Right, because there was a recognition in the 831 patent that as receiver speed changes. [00:22:22] Speaker 00: But that's novel. [00:22:23] Speaker 02: That's what's novel is getting interleaving and applying it now to receiver speed. [00:22:29] Speaker 00: Changing the degree of interleaving based on receiver speed or signal quality as it appears in Claim 1. [00:22:37] Speaker 00: And if we look to the final written decision, [00:22:39] Speaker 00: The board recognized that the point of dispute in the case wasn't whether interleaving was generally known, but whether this particular novel feature that's called out in the patent was taught by the proposed combination that Erickson put forth. [00:22:55] Speaker 00: If we look at the appendix 15, the board says, rather the issue is whether the prior art teaches interleaving packets together to form packet blocks in a way that results [00:23:09] Speaker 00: and varying the number of packets encoded into the packet block, getting back to that. [00:23:13] Speaker 02: But that's what interleaving is all about. [00:23:16] Speaker 00: Respectfully, you can have static interleaving, you can have the interleaving that's described. [00:23:20] Speaker 02: That's my point. [00:23:20] Speaker 02: You can have many different types of interleaving, but interleaving is interleaving. [00:23:25] Speaker 02: A placida would sit there and read a pattern that says interleaving is well-known in the art, and the placida would say, well, I know all the different ways to interleave here. [00:23:36] Speaker 02: What's novel here is just simply that you've taken interleaving and applied it to speed. [00:23:40] Speaker 00: Well, you change the degree of interleaving based on the speed of the signal quality. [00:23:44] Speaker 00: So it's not enough to say we have an admission. [00:23:46] Speaker 02: Once the board gets there and starts determining that, what's the harm in allowing Erickson now to come back and to address that particular issue? [00:23:55] Speaker 00: Well, the harm is we didn't have an opportunity to address the new theory that showed up in their reply. [00:24:00] Speaker 00: As Judge Toronto alluded to in his question, there are some drawbacks. [00:24:04] Speaker 00: with interleaving, it does introduce delay. [00:24:07] Speaker 00: If we had been confronted in the petition with the theory that, well, the skilled arson would have looked at Reed's teachings, and it would have been obvious to interleave the S blocks with one another, we could have come in with a rebuttal case that looked different than the one we had. [00:24:20] Speaker 00: And it might have pointed out that there are trade-offs to interleaving. [00:24:23] Speaker 00: It causes delay. [00:24:24] Speaker 00: It adds hardware complexity. [00:24:27] Speaker 00: For example, you've got to synchronize your receiver and transmitter so that the receiver knows, oh, in this frame, [00:24:32] Speaker 00: we're going to have nine interleaf packets instead of two, which we had in the last one. [00:24:36] Speaker 00: There's a lot of complexity. [00:24:37] Speaker 00: We didn't have an opportunity to address that because it appeared for the first time in the reply. [00:24:42] Speaker 00: That would be the trade-off there, Your Honor. [00:24:44] Speaker 04: Can you explain? [00:24:45] Speaker 04: I think this is also at the bottom of page 15. [00:24:48] Speaker 04: It would, I think, benefit me a little bit if you can unpack the connection, which I think this goes to what Judge Randall was talking about. [00:25:00] Speaker 04: Column 6, Column 7 material in the patent at issue here says interleaving was known, but boy, not when you're varying the length. [00:25:10] Speaker 04: How does that novelty connect up with whether Reed teaches interleaving S-blocks and not just R-blocks? [00:25:20] Speaker 00: Right. [00:25:21] Speaker 00: So the way it came out in the case below, and we addressed this at the joint appendix starting at about 290, I guess at 290, [00:25:31] Speaker 00: So Intellectual Ventures first confronted, if you take it, Your Honors, returning to 290. [00:25:37] Speaker 00: You'll see there we lay out the independent claim one requires encoding packets into packet blocks and varying the number of packets encoded into the packet block. [00:25:45] Speaker 00: And there was sort of a two-pronged assault on the read reference. [00:25:48] Speaker 00: It was pointed out that skilled artisans would not understand read to teach that its S blocks are, in fact, interleaved. [00:25:56] Speaker 00: And then turned in the next breath to the R blocks, which had [00:26:01] Speaker 00: come up during Dr. Stark's cross-examination. [00:26:05] Speaker 00: Dr. Stark is the petitioner's expert. [00:26:08] Speaker 00: And this is at 293. [00:26:12] Speaker 00: Midway through that first paragraph under the heading, each instituted independent claim requires varying the number of packets encoded in the packet block. [00:26:19] Speaker 00: That claim requirement stands in contrast to Reed's unambiguous language that the R blocks in an S block does not vary. [00:26:26] Speaker 00: And we had the same sort of concluding argument on 294. [00:26:29] Speaker 00: So the dispute was really whether [00:26:31] Speaker 00: Reed taught this. [00:26:33] Speaker 02: Does Stark also go back and cite the patent and says that the patent admits that interleavers are well known at the time of the 831 patent's alleged intervention? [00:26:46] Speaker 00: He does, but that doesn't end the inquiry because, yes, the patentee recognized that interleaving was known. [00:26:52] Speaker 00: But in the very next breath said, but hold it, the notion of varying the degree of interleaving based on receiver speed, that's not known. [00:26:58] Speaker 00: That's novel. [00:27:00] Speaker 00: And that's what's fundamentally missing from the combination that the petitioners presented in their papers. [00:27:05] Speaker 04: Is there something in Reed that makes explicit what I think the board is saying about four lines up from, well, I guess, the very bottom of page 15. [00:27:15] Speaker 04: The number of S-blocks in one of Reed's packets can vary with Broadway. [00:27:20] Speaker 04: Where does Reed? [00:27:21] Speaker 04: Because I take it the board is saying, that's how we know [00:27:26] Speaker 04: That's why the question about whether S-blocks, whether there's interleaving across S-blocks is really the same as the question whether there is interleaving when the block size and the packet size is varied, because S-blocks vary in read, the number of S-blocks. [00:27:52] Speaker 00: I'm afraid I've lost the thread of your honor's question. [00:27:56] Speaker 04: Where in the world does read indicate that the number of S-blocks in one of the read packets here is, it can be two or four or nine? [00:28:07] Speaker 00: I'm having some difficulty putting my finger on the exact language. [00:28:17] Speaker 00: I can tell you that there's not a dispute in this case that what's going on in read is there's a 20 second, what it calls packet, [00:28:24] Speaker 00: And it changes the baud rate. [00:28:26] Speaker 00: And the effect of that change in baud rate is to transmit fewer or more S-blocks during the 20-second duration of the packet. [00:28:35] Speaker 00: That part of it wasn't in dispute. [00:28:37] Speaker 00: And that's the only Figure 7 to read. [00:28:42] Speaker 02: Figure 7 clearly shows. [00:28:43] Speaker 00: Yes, sir. [00:28:44] Speaker 00: Yes, thank you. [00:28:44] Speaker 00: Figure 7 shows. [00:28:45] Speaker 02: It's showing not only changing the size, but also encoding. [00:28:51] Speaker 00: No, Your Honor. [00:28:52] Speaker 00: There's no finding in this case that [00:28:54] Speaker 00: Figure seven teaches encoding. [00:28:56] Speaker 00: That would be interleaving. [00:28:57] Speaker 00: What it shows is concatenation. [00:28:59] Speaker 00: And there's not an argument in this appeal. [00:29:03] Speaker 00: And there wasn't an argument below, at least by the time of the final written decision, that concatenation taught encoding. [00:29:12] Speaker 00: I would like to turn to the question whether there was somehow a new interpretation of Reed. [00:29:16] Speaker 00: The issues come up in the blue brief here. [00:29:20] Speaker 00: What happened in the briefing below on Reed, the fundamental dispute was whether [00:29:24] Speaker 00: The S-blocks were in fact interleaved, or whether there needed to be some modifications. [00:29:29] Speaker 00: Intellectual Ventures argued, I think quite clearly, that S-blocks were not interleaved. [00:29:35] Speaker 00: And what the board did in its final written decision was simply decide with Intellectual Ventures, it made a fact finding about the content of the prior art. [00:29:41] Speaker 00: It was supported by declaration evidence from Dr. Wells. [00:29:45] Speaker 00: It had the benefit of the reference itself. [00:29:47] Speaker 00: And it adopted our interpretation. [00:29:49] Speaker 00: I think the only complaint that one could plausibly make, and it's not a fair one, [00:29:53] Speaker 00: would be to say, well, the board also looked at Claim Six in Read as part of its analysis, even though Claim Six in particular had not been cited. [00:29:59] Speaker 00: And I don't think that's a fair criticism of the board to say it should be faulted at looking at the entire reference now that we're on appeal in supporting its conclusion. [00:30:11] Speaker 00: Unless the panel has further questions, that's all I have. [00:30:13] Speaker 02: Thank you. [00:30:14] Speaker 02: Thank you. [00:30:18] Speaker 02: Councilor Speers? [00:30:23] Speaker 01: So I'd like to start by getting to Judge Raina's question. [00:30:29] Speaker 01: What was the novelty supposed to be here? [00:30:31] Speaker 01: The novelty never was supposed to be interleaving packets together. [00:30:34] Speaker 01: That's what the patent says. [00:30:35] Speaker 01: The novelty was supposed to be varying the number of packets encoded in a packet block based on signal dropout characteristics. [00:30:42] Speaker 01: The petition showed this was taught by Rita Mahaney and the appellee never disputed this fact. [00:30:50] Speaker 03: There's this sense of a distinction between static interleaving and dynamic interleaving, as the other side uses those terms. [00:31:01] Speaker 03: Data interleaving in a static sense is well known. [00:31:04] Speaker 03: You're always going to interleave a certain number of blocks together, a certain number of packets together. [00:31:10] Speaker 03: But what's going on here is a dynamic form of interleaving, as I understand it, which is you're going to change the number of packets you're going to be interleaving amongst each other based on the speed of the receiver and therefore the number of signal dropouts and fades you're going to have. [00:31:27] Speaker 03: the more fades you're gonna have, the fewer number of individual data packets are gonna actually be interleaving in any given patent block transmission. [00:31:37] Speaker 03: So I think to that extent, it's a little too simplistic to say there's nothing more going on here than just the garden-variety data interleaving, because now we are changing up the number of packets that are being interleaved dependent on a certain variable [00:31:57] Speaker 03: external variable that is the speed of the receiver. [00:32:00] Speaker 01: I would respond that wasn't the court's claim construction. [00:32:02] Speaker 01: The court's claim construction was that encoding only required interleaving packets. [00:32:07] Speaker 03: There's no question, I don't think you could debate that all the claims that we're dealing with here also have this notion of varying the number of data packets are going to be interleaving amongst each other based on the speed of the receiver. [00:32:22] Speaker 01: There was never a construction that required... I need to know, do you disagree with that? [00:32:30] Speaker 03: Because as I understand it, it's right there and the claim faces the language of the claim. [00:32:35] Speaker 03: It talks in those very terms. [00:32:36] Speaker 01: The claims require that you encode, which means interleave, and the claims require that you vary the number of packets in a packet block based on signal dropout characteristic. [00:32:46] Speaker 01: There was never a construction that required that when you're interleaving, [00:32:51] Speaker 01: you're varying the number of interleaved blocks based on signal dropout characteristics. [00:32:56] Speaker 01: I mean, that would be my first point. [00:32:57] Speaker 03: Well, it does talk about varying the number of packets encoded in the packet block according to signal dropout characteristics. [00:33:05] Speaker 01: You're varying the number of packets that are there. [00:33:07] Speaker 01: There was never a claim construction advanced by anybody which required that you're varying the number of packets being interleaved together. [00:33:17] Speaker 01: So at this speed, you're interleaving three. [00:33:18] Speaker 01: At this speed, you're interleaving five. [00:33:20] Speaker 01: There's a claim construction that required interleaving, and there's a claim construction that required varying the number of packets. [00:33:26] Speaker 01: But even then, I would go back to Judge Raina's point. [00:33:29] Speaker 01: I don't think it would be non-obvious that if you know to vary the number of packets and you know to encode all of your packets, that that gets you to the claim dimension. [00:33:43] Speaker 01: Again, what was novel here wasn't the interleaving. [00:33:46] Speaker 01: It was the varying step. [00:33:47] Speaker 01: And if you already know to interleave, [00:33:50] Speaker 01: all your packets together, according to the admission, then that gets you to the claim that's stated. [00:33:58] Speaker 03: The final point was... So what's your best statement in your petition? [00:34:02] Speaker 03: Because the other side pointed us to A126. [00:34:05] Speaker 03: Yes. [00:34:05] Speaker 03: Which, at least to me, if I just look at that page in isolation, makes it pretty clear to me that it was the petitioner's position that Reed actually teaches interleaving the S-blocks. [00:34:21] Speaker 03: And let's just say for the moment that the board's backfinding that it doesn't teach that is something that's supported by substantial evidence in the read reference itself. [00:34:34] Speaker 03: So the next question is, I don't see anywhere on A126 that talks about the additional argument that you're now making today, that you're now making the briefs. [00:34:45] Speaker 03: which is that it nevertheless would have been obvious to modify read so that even though read doesn't actually teach interleaving results, there would be good grounds to do that, to actually alter the teaching of read so that it's actually doing something different but an obvious variation of what it actually teaches. [00:35:08] Speaker 03: I don't see that on A126. [00:35:10] Speaker 03: Is there somewhere else, perhaps A125 or A127, that says it like that? [00:35:15] Speaker 01: I would say Reed, I'm sorry, at A126, it also says Reed confirms the statement in the petition, in the A31 patent, that danger-leaving packet blocks is already known in the art, referring back, and that refers back to page A105 to 106, where it's established and lived. [00:35:35] Speaker 01: This is something that was already known. [00:35:37] Speaker 02: Well, what about J904? [00:35:39] Speaker 02: And I'm talking about figure four. [00:35:41] Speaker 02: This is in Reed. [00:35:42] Speaker 02: And it says under for figure four, it says, it's a diagram of packet data comprised of the plurality of concreted S blocks, each S block being formed with the plurality of interweaved R blocks. [00:35:55] Speaker 01: You're at 194? [00:35:56] Speaker 01: Yes, sir. [00:35:56] Speaker 02: 904, figure four. [00:36:00] Speaker 02: Oh, OK. [00:36:01] Speaker 02: That was on the wrong page. [00:36:06] Speaker 02: And the statement in the written description about the diagram. [00:36:10] Speaker 01: There's the statement of written description describing the interleaving of R blocks to form S blocks, but there's also column two, around line 63, which says to... Interleaving two or more blocks of data. [00:36:30] Speaker 01: Interleaving two or more blocks of data. [00:36:32] Speaker 01: further protection against bursaries may be provided by interleaving two or more blocks of data. [00:36:37] Speaker 03: Right, this is the passage that the board ultimately concluded made a fact-finding on what it actually discloses and concluded that it discloses basically interleaving the data within each of the S-blocks on the S-block train. [00:36:51] Speaker 03: That is to say, interleaving the R-blocks, which is just exactly what is shown in Figure 4. [00:36:57] Speaker 03: Interleaving the two R-blocks [00:37:00] Speaker 03: as is further confirmed by the disclosure of column four describing figure four. [00:37:08] Speaker 03: That is to say, the board made a fact finding up and down that this is teaching interleaving of R blocks. [00:37:14] Speaker 03: It's not teaching the interleaving of S blocks. [00:37:17] Speaker 01: And the point we make in the blue brief and in the reply brief is that there was no substantial evidence supporting that finding. [00:37:24] Speaker 01: The board looked at column two and said, well, this must be talking about what's in figure four. [00:37:30] Speaker 01: column two says to interleave two or more blocks of data. [00:37:34] Speaker 01: Figure four is only showing interleaving two blocks of data. [00:37:37] Speaker 01: And both experts agreed that column two is talking about something different that was shown in figure four. [00:37:44] Speaker 01: So there's no substantial evidence to support what the board found there. [00:37:47] Speaker 01: Instead, all the testimony was directly to the contrary. [00:37:51] Speaker 01: And if you continue reading at column two, it says that the purpose of this interleaving was so that should burst errors occur, [00:37:59] Speaker 01: These will be spread equally over the interleaved blocks so that the blocks may nevertheless be recoverable. [00:38:04] Speaker 01: Going back to Judge Toronto's point, are there bad parts about interleaving broadly or narrowly? [00:38:10] Speaker 01: This is an express teaching. [00:38:11] Speaker 01: What you want to do is interleave broadly. [00:38:14] Speaker 01: And if you're just interleaving within the blocks of data, which is what the board was talking about, you're not at all accomplishing what Reid was saying. [00:38:21] Speaker 01: If I may have just 30 seconds to close. [00:38:24] Speaker 02: 30 seconds. [00:38:24] Speaker 01: And I think Randall, the case of Randall's summary is this. [00:38:28] Speaker 01: that what we're talking about is an obvious analysis. [00:38:31] Speaker 01: And an obvious analysis is not supposed to be centered on a blinker focus on individual documents. [00:38:37] Speaker 01: And to just pick up Reed and pick up Mahaney, put your blinders on, and say, I'm not even going to think about what was already known. [00:38:45] Speaker 01: I cannot even think about what the petition, what the patent admits is already known, is doing just that. [00:38:51] Speaker 01: All of that was in our petition. [00:38:53] Speaker 01: And our reply argument simply restated what we said in our petition. [00:38:57] Speaker 01: OK. [00:38:57] Speaker 01: Thank you very much. [00:38:59] Speaker 02: That's all the arguments for today.