[00:00:01] Speaker 02:
The next argued case is number 17-2381, telephone activity by Loggett Erickson against TCL Corporation.

[00:00:09] Speaker 02:
Ms.

[00:00:10] Speaker 02:
McComas.

[00:00:13] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
May it please the Court.

[00:00:16] Speaker 01:
We represent Erickson, who's the owner of U.S.

[00:00:19] Speaker 01:
Patent Number 6029052.

[00:00:21] Speaker 01:
This appeal focuses narrowly on Claim 18 of the 052 Patent and specifically one

[00:00:29] Speaker 01:
reference, the Jensen reference, relied upon by TCL and the Board to find Claim 18 unpatentable is obvious.

[00:00:37] Speaker 01:
Now we think the Board was wrong to rely on Jensen for two reasons.

[00:00:41] Speaker 01:
First, the Board violated its own rules and unreasonably and arbitrarily allowed TCL to introduce late filed information going to the date the Jensen article was publicly available.

[00:00:55] Speaker 01:
Second, even considering the Jensen article,

[00:00:58] Speaker 01:
The board's obviousness finding is based on a fundamental misreading of the reference that when corrected cannot seem.

[00:01:06] Speaker 01:
So I want to focus first on the rule and the board's failure to follow its own rules.

[00:01:12] Speaker 01:
We recognize that the board has discretion in implementing its rules.

[00:01:18] Speaker 01:
But that discretion is not unfettered.

[00:01:20] Speaker 01:
It has to be reasonable.

[00:01:21] Speaker 01:
It can't be arbitrary.

[00:01:23] Speaker 03:
Counsel, I'm puzzled by your raising

[00:01:26] Speaker 03:
an issue of procedure first, where the issue was abuse of discretion rather than getting to the merits.

[00:01:35] Speaker 03:
But on the merits, when I look at the gentile, if maybe it's gentile in German, it provides that phase shifters can be assembled by means of frequency dividers.

[00:01:53] Speaker 03:
Isn't that basically

[00:01:54] Speaker 03:
The invention?

[00:01:57] Speaker 01:
The invention in the O-15 patent does use a frequency divider.

[00:02:02] Speaker 01:
That's what made it unique.

[00:02:04] Speaker 01:
But you're right that the Jensil article does mention frequency dividers.

[00:02:09] Speaker 01:
But it doesn't apply a frequency divider.

[00:02:11] Speaker 01:
It applies a phase shifter.

[00:02:15] Speaker 01:
And Your Honor, if I can take you very quickly, I'll jump to that since you asked.

[00:02:20] Speaker 01:
If you look at the section as a whole,

[00:02:23] Speaker 01:
What the board found was that figure two, which we all agree, I think everyone here agrees, that figure two on its face doesn't tell you what kind of phase shifter should be used.

[00:02:35] Speaker 01:
You have to look to the rest of the publication.

[00:02:39] Speaker 01:
And if you look at the rest of the publication, there are three things you need to look at, not just the language of phase shifter.

[00:02:46] Speaker 01:
Although the language of phase shifter, which you're referring to at APPX 1186,

[00:02:52] Speaker 01:
talks about three things.

[00:02:54] Speaker 01:
It talks about conducting components, and it rules those out completely.

[00:02:59] Speaker 01:
It talks about a frequency divider, and it talks about some advantages and a big disadvantage to using a frequency divider.

[00:03:07] Speaker 01:
And then it goes on to talk about phase shifters.

[00:03:09] Speaker 01:
And the rest of that paragraph talks about phase shifters and concludes that phase shifters are suitable.

[00:03:16] Speaker 01:
But that's not the only thing we look at here.

[00:03:19] Speaker 01:
We have to look at the reference as a whole.

[00:03:21] Speaker 01:
And if you look in two other places, both prior to figure two, just ahead of figure two at APPX 1183, it talks about direct mixing receivers, which is what this is.

[00:03:35] Speaker 01:
It's what Jensel is disclosing.

[00:03:36] Speaker 01:
And under the direct mixing receivers, it says the mixers are controlled by a complex LO

[00:03:43] Speaker 01:
signal the frequency of which is in the center of the radio signal to be received.

[00:03:48] Speaker 01:
Now the second thing we all agree on here is that a frequency divider requires two times the signal when it starts and it becomes the same it divides it in half and therefore it's the right frequency when it goes through the mixer.

[00:04:03] Speaker 01:
So here if the frequency the complex LO signal is in the center of the radio signal to be received that cannot be a frequency divider.

[00:04:13] Speaker 01:
So what Jensil is talking about here under direct mixing receiver and what it must be talking about in Figure 2 is a phase shifter, not a frequency divider.

[00:04:25] Speaker 03:
You're discussing what the reference discloses.

[00:04:29] Speaker 03:
Correct.

[00:04:30] Speaker 03:
And that's a question of fact.

[00:04:33] Speaker 03:
And we give substantial evidence deference to the board on questions of fact.

[00:04:39] Speaker 03:
And we're not discussing that, deciding it anew, de novo.

[00:04:43] Speaker 01:
Right?

[00:04:44] Speaker 01:
I agree, but here you can look on the face of the reference and we're basically applying English.

[00:04:51] Speaker 01:
We're reading the document and it cannot on the, I mean what the expert, what the board relied upon.

[00:04:56] Speaker 03:
It's a translation from the German.

[00:04:58] Speaker 01:
It is, but we've all agreed to this translation.

[00:05:01] Speaker 03:
We're looking at the English.

[00:05:02] Speaker 01:
Right.

[00:05:02] Speaker 01:
And we've accepted that this is appropriate and this is right.

[00:05:05] Speaker 01:
So now I'm applying English.

[00:05:08] Speaker 01:
So I agree with that.

[00:05:09] Speaker 01:
But the board relied on basically the expert's testimony of what this says.

[00:05:16] Speaker 01:
We needed an expert to tell us what a frequency divider is and that it's 2x the others.

[00:05:23] Speaker 01:
The rest of it you can find a layperson can figure out simply by reading this.

[00:05:29] Speaker 01:
So an expert's testimony that contradicts the plain language of the reference shouldn't be accepted.

[00:05:35] Speaker 01:
Let's go one more.

[00:05:36] Speaker 01:
If you look at the LO emission and LO ghosting effect, that's at the bottom, APPX 1185.

[00:05:42] Speaker 01:
That's the page after Figure 2.

[00:05:45] Speaker 01:
We have one more that helps us.

[00:05:47] Speaker 01:
In there, it's talking about the local oscillator signal experiences, no noteworthy damping.

[00:05:55] Speaker 01:
But it says, since the frequency of the local oscillator is within the passband,

[00:06:01] Speaker 01:
That also is necessarily talking about something within the passband, not outside of it.

[00:06:06] Speaker 01:
So that's another clue that we have that this is really a phase shifter and not a frequency divider.

[00:06:13] Speaker 01:
So the board in its decision actually found that figure two with the text in gentle is disclosing a frequency divider instead of a phase shifter.

[00:06:25] Speaker 01:
So on its face, that's wrong.

[00:06:27] Speaker 01:
But then you've got the next question, which I think you were raising, Judge Laurie, from the beginning is, is there not disclosure also of a frequency divider?

[00:06:36] Speaker 01:
It mentions frequency divider.

[00:06:38] Speaker 01:
But we know from KSR and its progeny that you have to have more than simply a mention.

[00:06:44] Speaker 01:
You have to have a reason to take the phase shifter, the RC phase shifter, and replace it with the frequency divider.

[00:06:51] Speaker 01:
And I would submit there's nothing in this record that gets you to that finish line.

[00:06:55] Speaker 01:
The motivation to combine is not there.

[00:06:58] Speaker 01:
So that's the argument on the merit.

[00:07:01] Speaker 01:
But of course if we're right on the procedural issue, you never get there.

[00:07:05] Speaker 01:
And that's why we raise it first.

[00:07:07] Speaker 01:
And you never get there because gentle never comes in if we're right on this issue.

[00:07:12] Speaker 01:
And we do believe in this case,

[00:07:15] Speaker 01:
that there's been a little bit we do require some guidance or the board needs some guidance from this board on what the rules mean.

[00:07:23] Speaker 01:
There are two rules in play here.

[00:07:25] Speaker 01:
The first is 42.123B and 42.123B says if you're going to offer supplemental information more than 30 days after institution, you have to have a really good explanation

[00:07:41] Speaker 01:
You have to explain why the supplemental information reasonably could not have been obtained earlier and that consideration of the supplemental information would be in the interest of justice.

[00:07:54] Speaker 01:
Here, excuse me, I want to do the second rule too.

[00:07:57] Speaker 01:
42.25B says when you notice that relief needs to be sought, you have to be prompt about it.

[00:08:08] Speaker 01:
And if you look at the board's decisions below, with the exception of the current one, all of them really focus on these rules in tandem.

[00:08:17] Speaker 01:
And that's important because here, TCL's argument is, I needed time to get my affidavit in place and get it ready and put a pretty bow on it and make it perfect before I brought this to the board's attention.

[00:08:30] Speaker 01:
But the reality is the board in this case never even looked at 42.25.

[00:08:35] Speaker 01:
and B. They only ruled on 42.123B.

[00:08:40] Speaker 01:
And they went through the elements there.

[00:08:42] Speaker 01:
And that's very important.

[00:08:43] Speaker 01:
Because here, prompt, when to raise it, when to bring it to our attention, had to be much earlier.

[00:08:51] Speaker 01:
Even under the board's findings and even under TCL's arguments, they knew about this by April 14.

[00:09:00] Speaker 01:
They had in writing, according to the board's decision, they had in writing from Miss Michele a commitment to put this in an affidavit and to testify by April 21st.

[00:09:11] Speaker 01:
They waited until well after the patent owner's brief was filed.

[00:09:18] Speaker 01:
April 21st is a very critical date, by the way, because we're sending letters to them.

[00:09:23] Speaker 04:
Did they argue that there were problems involved in getting the translations perfected?

[00:09:28] Speaker 01:
That's certainly what they say.

[00:09:30] Speaker 04:
And then I thought the overall flow of the affidavit was that there was a lot of just difficulty getting people to agree to come forward and getting permissions for the person to be able to give an affidavit.

[00:09:44] Speaker 01:
There's certainly what they say.

[00:09:46] Speaker 04:
There were some that they tried that were denied, I believe.

[00:09:50] Speaker 04:
They went to another library first, as I recall the record, and someone said, I don't want to give an affidavit.

[00:09:58] Speaker 04:
That's true.

[00:09:58] Speaker 04:
So there's a certain amount of time involved in trying to get the folks in Germany to want to participate in this proceeding.

[00:10:06] Speaker 04:
That's true.

[00:10:06] Speaker 04:
I would submit to you that... Doesn't that account for some of the delay?

[00:10:12] Speaker 01:
I would suggest it shouldn't because when a petitioner comes to the court, they know these are the rules.

[00:10:18] Speaker 01:
They know what they're going to have to prove.

[00:10:20] Speaker 01:
They should have been looking at this from the beginning, but let's assume that's a harsh argument.

[00:10:26] Speaker 01:
and they should have some ability to clean it up after we object because we objected within 10 days of institution and said there's a problem with your evidence.

[00:10:35] Speaker 01:
So then their testimony, their affidavit say they went along and started getting information.

[00:10:42] Speaker 01:
What we know again is that by April 21st at the absolute latest they had somebody willing to give an affidavit.

[00:10:52] Speaker 01:
And then the excuse is, it took us a while to get it translated, get it in the right order.

[00:10:58] Speaker 01:
There's an interesting statement that comes in the Apple East brief that's also in the record that Miss Michelle testified below that she didn't know she was going to have to come give a deposition until June of 2016.

[00:11:14] Speaker 01:
And that's at the Apple East brief at

[00:11:17] Speaker 01:
Well, the Appellee's brief said that.

[00:11:18] Speaker 01:
It's in the appendix at 2532, but it's actually at 4972.

[00:11:21] Speaker 01:
I think it was the typo.

[00:11:25] Speaker 01:
So there's a lot of confusion in there as to what really happened when.

[00:11:29] Speaker 01:
What's important for the perspective of this court is that in the meantime, on April 21st, Erickson's counsel is sending a letter to TCL's counsel trying to get a deposition of the first person they said was their witness.

[00:11:45] Speaker 01:
And they knew at that point they had somebody else that was going to come testify.

[00:11:50] Speaker 01:
We are talking to them about changing our dates and getting extensions.

[00:11:55] Speaker 01:
We send them a letter on April 21st that says we're not going to amend.

[00:11:59] Speaker 01:
Let's move forward, get our depositions done, and get the patent owner's response done.

[00:12:04] Speaker 01:
And we come up with a date that we agree to with them as May 23rd.

[00:12:09] Speaker 01:
None of that likely would have happened if we had known there was another witness involved.

[00:12:14] Speaker 01:
We could have avoided all of this.

[00:12:16] Speaker 01:
There's substantial harm here because we had 35 pages of our brief dedicated to an issue that they changed in the middle of the case.

[00:12:27] Speaker 01:
And in district court, we see that type of thing happen all the time because there's time to change.

[00:12:32] Speaker 01:
You can amend your complaint because people have time to do more discovery.

[00:12:38] Speaker 01:
in the patent office in a PTAC proceeding, it doesn't work that way.

[00:12:41] Speaker 01:
It's very fun and loaded and it's fun and loaded on purpose.

[00:12:45] Speaker 01:
You have to come with your evidence mustered.

[00:12:48] Speaker 01:
And there are rules that allow you to fudge on that a little bit, but it has to be in very limited circumstances.

[00:12:56] Speaker 01:
And when you're playing a game where basically it's like the petitioner amended their petition after we had filed our response.

[00:13:05] Speaker 01:
And we got to respond to what was in the amended petition, but we lost a lot of pages in our brief.

[00:13:12] Speaker 01:
And if there's any argument that our obviousness briefing was weak below, or we didn't win the arguments against the other expert, we had 35 less pages to do it than we should have.

[00:13:24] Speaker 02:
Let's hear from the other side on this point, and we'll save you a rebuttal time.

[00:13:29] Speaker 02:
Thank you, Your Honor.

[00:13:35] Speaker 02:
Ms.

[00:13:36] Speaker 02:
Goldenberg.

[00:13:37] Speaker 00:
Thank you, your honor, and may it please the court.

[00:13:39] Speaker 00:
Julie Goldenberg on behalf of the Appellees.

[00:13:42] Speaker 00:
I would like to begin with discussing the merits, in particular Gentel's disclosure in figure three, or figure two.

[00:13:48] Speaker 00:
Both parties agree that figure two, on its own, does not disclose any particular type of phase shifter.

[00:13:55] Speaker 00:
And Erickson is wrong to suggest that Gentel's text somehow excludes a frequency divider.

[00:14:01] Speaker 00:
Our expert explained

[00:14:03] Speaker 00:
that with a frequency divider, you have two different local oscillation signals.

[00:14:08] Speaker 00:
The local oscillation signal output is half the frequency of its input.

[00:14:14] Speaker 00:
Now, Erickson relies on a line from Jentschel, particularly found on page appendix 1183, which opposing counsel quoted to you.

[00:14:23] Speaker 00:
It's the mixers are controlled by a complex LO signal, the frequency of which is in the center of the radio signal to be received.

[00:14:32] Speaker 00:
They argue this excludes a frequency divider.

[00:14:35] Speaker 00:
But the text is talking about the local oscillation signal that the mixers are controlled by, which is the output of the phase shifter, not the phase shifter's input.

[00:14:48] Speaker 00:
The phase shifter's output signal will be at the center of the frequency to be received by the mixers, because if you look at figure two, there's a line that goes directly from the phase shifter to the mixers.

[00:15:00] Speaker 00:
So no matter what kind of phase shifter you use,

[00:15:03] Speaker 00:
including frequency dividers, that'll be the case.

[00:15:06] Speaker 00:
Our expert explained this.

[00:15:08] Speaker 00:
We fully argued it to the board.

[00:15:10] Speaker 00:
And Erickson's arguments in both IPRs are premised on Gentel's figure two, excluding this frequency divider.

[00:15:19] Speaker 00:
The board's interpretation of Gentel is a question of fact.

[00:15:23] Speaker 00:
Indeed, what the prior art teaches is reviewed by this court for substantial evidence.

[00:15:29] Speaker 00:
Although Erickson has offered one interpretation of Gentel,

[00:15:33] Speaker 00:
TCL's expert has offered another.

[00:15:36] Speaker 00:
Substantial evidence supports the board's decision to agree with TCL's expert's interpretation of Gentile.

[00:15:44] Speaker 00:
Unless the court has any further questions regarding Gentile's disclosure, I can turn to the procedural aspect of the appeal.

[00:15:52] Speaker 00:
Erickson has criticized the board for abusing its discretion and even considering the supplemental information.

[00:15:59] Speaker 00:
The board's rules permit supplemental information to be introduced.

[00:16:03] Speaker 00:
specifically the regulation that opposing counsel quoted, 37 CFR 41.123.

[00:16:09] Speaker 00:
As long as the proponent demonstrates why the supplemental information reasonably could not have been obtained earlier and that consideration of the supplemental information would be in the interest of justice.

[00:16:21] Speaker 00:
TCL demonstrated why the information could not reasonably have been obtained earlier.

[00:16:27] Speaker 00:
It showed that as soon as Erickson challenged the date of gentile

[00:16:31] Speaker 00:
TCL diligently began looking for supplemental information.

[00:16:35] Speaker 00:
TCL worked with German counsel.

[00:16:38] Speaker 00:
They identified numerous individuals and librarians with knowledge of the public availability.

[00:16:43] Speaker 00:
Remember, this isn't a thesis.

[00:16:45] Speaker 00:
This was a magazine article that was published widely.

[00:16:48] Speaker 00:
In fact, there's some evidence that there were as many as 16,000 copies out there.

[00:16:53] Speaker 04:
TCL even contacted... Attorney argument?

[00:16:57] Speaker 04:
There was an attorney's affidavit that put that information in the record.

[00:17:01] Speaker 00:
Yes, it actually came from information from the editor-in-chief.

[00:17:06] Speaker 04:
The hearsay.

[00:17:07] Speaker 04:
Yes.

[00:17:07] Speaker 04:
And there was a hearsay objection to the evidence in the record?

[00:17:10] Speaker 00:
That is correct, which is why TCL eventually didn't rely.

[00:17:12] Speaker 04:
I'm not just calling you because what you're saying was a record was at the basis of an attorney affidavit.

[00:17:20] Speaker 00:
That is correct, Your Honor.

[00:17:21] Speaker 04:
And attorney affidavits don't cut the mustard in this court.

[00:17:24] Speaker 00:
Not on the priority date, but the affidavit does cut the muster for demonstrating diligence.

[00:17:28] Speaker 04:
I realize that the publication was widely disseminated.

[00:17:31] Speaker 04:
It appears to me that there's no predicate in the record to supporting those facts other than an attorney affidavit.

[00:17:37] Speaker 04:
Yes, I agree with Your Honor on that.

[00:17:39] Speaker 04:
And it was hearsay, and the hearsay was objected to.

[00:17:43] Speaker 04:
And that issue is taken off the table anyhow.

[00:17:46] Speaker 00:
That is correct, Your Honor.

[00:17:47] Speaker 00:
But the point here was just that TCL was working diligently to try to prove the fact that

[00:17:52] Speaker 00:
It appeared to be true.

[00:17:53] Speaker 00:
It had all of this information coming in, and it needed to get the evidence to reach the board in the court's level of invisibility.

[00:18:01] Speaker 00:
And all of that information was considered by the board.

[00:18:05] Speaker 04:
We have a nine-page opinion by the board where it explains... So your argument essentially is that if the information was indeed prior printed publication and it was publicly accessible, there was any specific duty to have it in the mix.

[00:18:20] Speaker 00:
Yes, Your Honor.

[00:18:20] Speaker 00:
And that goes directly to the interests of justice part of 37 CFR.

[00:18:26] Speaker 04:
There's no argument from your adversary on that aspect of the regulation?

[00:18:32] Speaker 00:
Yes.

[00:18:32] Speaker 00:
And just the response to that is simply that the board was acting within the interests of justice in letting this come in because the board is just searching for the truth here.

[00:18:42] Speaker 00:
And ultimately, this information seemed to support a fact that actually was true.

[00:18:48] Speaker 00:
So the board didn't

[00:18:49] Speaker 00:
It certainly didn't abuse its discretion, which is the standard here, in applying its own procedures, which allow it to admit supplemental information.

[00:18:58] Speaker 00:
And we have a reasoned nine-page opinion from the board explaining why it ruled that way.

[00:19:07] Speaker 00:
The board also permitted Erickson to file a supplemental brief and a reply brief.

[00:19:13] Speaker 00:
And Erickson had an opportunity that it took to take Ms.

[00:19:16] Speaker 00:
Mitchell's deposition.

[00:19:19] Speaker 00:
Erickson has failed to identify any prejudice from the admission of this information.

[00:19:24] Speaker 00:
It never asked the board for an opportunity to amend its claims in view of the supplemental information.

[00:19:30] Speaker 00:
The board very well might have allowed it.

[00:19:32] Speaker 00:
The board seemed more than willing in its opinion to make sure that there was no prejudice to Erickson in view of the supplemental information.

[00:19:38] Speaker 00:
But that was never before the board, so it shouldn't be considered by this court.

[00:19:43] Speaker 00:
Your Honors, this court reviews the board's application of its procedural rules for an abuse of discretion.

[00:19:50] Speaker 00:
Erickson has failed to demonstrate that the board abused its discretion in applying its own procedural rules for supplemental information.

[00:19:59] Speaker 00:
For these reasons, as well as the reasons articulated in our brief, the judgment of the board should be affirmed.

[00:20:05] Speaker 00:
Unless the court has any other questions, I'll return the rest of my time.

[00:20:10] Speaker 00:
Thank you.

[00:20:12] Speaker 02:
Thank you.

[00:20:16] Speaker 01:
Just quickly, Your Honors, on the direct mixing receiver at Appendix 1183, I understand how TCL is reading that.

[00:20:26] Speaker 01:
You can't read it that way and apply English, which we've decided is the controlling in this document.

[00:20:32] Speaker 01:
The modifier, the comma comes, for that purpose the mixers are controlled by a complex LO signal, comma, the frequency of which is in the center of the radio signal to be received.

[00:20:43] Speaker 01:
You can only read that to modify the complex LO signal, not the mixer.

[00:20:48] Speaker 01:
It's just plain English in the document.

[00:20:51] Speaker 01:
I want to go real quickly to just a few things that were said.

[00:20:56] Speaker 01:
We were permitted supplemental briefing only on the new evidence that was coming in.

[00:21:01] Speaker 01:
We weren't allowed to go back and make up the 35 pages.

[00:21:05] Speaker 01:
And we made that point to the board in our opposition to them asking for the supplemental that, hey,

[00:21:12] Speaker 01:
Our patent owner's response is already in.

[00:21:15] Speaker 01:
And we weren't allowed that.

[00:21:16] Speaker 01:
But I also want to point out what's important.

[00:21:20] Speaker 02:
You weren't permitted supplemental briefing on the merits.

[00:21:22] Speaker 01:
Isn't that right?

[00:21:23] Speaker 02:
No.

[00:21:24] Speaker 01:
Just on the issue of the public availability based on the new evidence.

[00:21:30] Speaker 01:
Our ability to respond was limited to that.

[00:21:33] Speaker 01:
We had 10 pages to respond to Ms.

[00:21:36] Speaker 01:
Michelle's affidavit and testimony.

[00:21:40] Speaker 02:
But the merits were argued, were they not?

[00:21:42] Speaker 02:
Of this reference?

[00:21:45] Speaker 01:
Yes.

[00:21:45] Speaker 01:
But our patent owner response, we spent 35 pages of it responding to the original.

[00:21:51] Speaker 01:
The original evidence they put in would have shown a date of October 1996.

[00:21:55] Speaker 01:
And that's the other point I wanted to make.

[00:21:58] Speaker 01:
This is a journal.

[00:21:59] Speaker 01:
And even if it was widely disseminated, when it came out wasn't always consistent.

[00:22:04] Speaker 01:
We all know from law review days, it may or may not come out in May or June.

[00:22:09] Speaker 01:
It may come out at a different time, and it often did.

[00:22:12] Speaker 01:
You can see that in the, I see my time is up if I can just quickly close this up.

[00:22:19] Speaker 01:
So a lot of times those come in at different dates.

[00:22:22] Speaker 01:
What we responded to was a swear behind using the October 1996 date because that's what we understood was the issue at the time.

[00:22:32] Speaker 01:
And nobody previewed to us there was going to be new evidence showing a different time.

[00:22:38] Speaker 01:
So we spent half of our brief, our merits brief,

[00:22:41] Speaker 01:
addressing specifically the issue of a swear behind that became moot because they had new evidence that they didn't disclose until our brief was filed.

[00:22:51] Speaker 01:
And we were never allowed to respond to that.

[00:22:53] Speaker 04:
How does that fit into the exercise of discretion by the board and whether or not to admit the evidence?

[00:23:00] Speaker 01:
I think it's an abuse of discretion to allow that type of briefing after our, certainly after the Patent Owner response has been filed.

[00:23:08] Speaker 01:
to allow that supplemental evidence in a way that prejudiced us.

[00:23:12] Speaker 04:
I actually think the rule is more stringent than that because the rule requires... What would your additional argument have been?

[00:23:20] Speaker 04:
It would have gone to accessibility?

[00:23:24] Speaker 01:
Some of the things we're discussing here, we would have had more pages to address the merits of the obviousness.

[00:23:31] Speaker 01:
We had to do that in half a brief rather than a full

[00:23:36] Speaker 01:
14,000 words, we probably spent 7,000 words on swear behind because without it there was no gentle.

[00:23:43] Speaker 01:
If we were right on the swear behind there was no gentle so there was nothing else to respond to.

[00:23:47] Speaker 01:
We would have had a full brief to respond to the obviousness argument that we're now being, it's a little bit having to fight that issue with one hand tied behind our back.

[00:23:59] Speaker 01:
So and then the board makes the

[00:24:01] Speaker 01:
decisions based on the evidence and the arguments we made in that brief, which were half the arguments we could have made, and now we're subject to an abuse of discretion standard on appeal.

[00:24:13] Speaker 01:
If there are no further questions.

[00:24:17] Speaker 02:
Thank you.