[00:00:00] Speaker 02:
Number 22, 12, 23, Phillips, North America, LLC versus Fitbit LLC.

[00:00:09] Speaker 02:
Okay, Mr. Thompson.

[00:00:15] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:28] Speaker 00:
The board erred in three respects in this case, two on legal grounds that are reviewed de novo, and one involving the failure of the board to explain the reasoning of motivation, which is twofold.

[00:00:41] Speaker 00:
In the first instance, as far as the explanation is de novo, but then diving into the evidence, it's substantial evidence.

[00:00:50] Speaker 00:
Let's talk about the first error, which involves the claim construction, claim interpretation,

[00:00:56] Speaker 00:
The board erred as a matter of law in failing to give substantial effect to the language in claim one that required governing of information transmitted between a first personal device and a second personal device.

[00:01:12] Speaker 00:
The board recognized that there was a dispute between the parties on that term.

[00:01:17] Speaker 00:
But in the end, the board failed to give it any meaning beyond security mechanism and thereby improperly read it out of the claim.

[00:01:26] Speaker 00:
focusing on the claim language itself and following the Phillips analysis, claims different terms are presumed to have different meanings.

[00:01:35] Speaker 00:
And that was something that actually was observed by this court in the Hamilton Beach case.

[00:01:40] Speaker 03:
Does the specification use the word governing?

[00:01:42] Speaker 03:
If I were to read the entire patent, would I see some form of the word govern?

[00:01:48] Speaker 00:
The governing was in the claims.

[00:01:50] Speaker 00:
That's fine.

[00:01:50] Speaker 03:
In the written description.

[00:01:52] Speaker 00:
In the specification, the word governing is not there, but the meaning of governing is explained at length.

[00:01:57] Speaker 03:
OK, so it shows up for the first time in claim one.

[00:02:01] Speaker 00:
Yes, well, it was there at the beginning.

[00:02:04] Speaker 00:
The word govern.

[00:02:05] Speaker 00:
Yeah, yeah.

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

[00:02:05] Speaker 00:
But the concepts are there throughout.

[00:02:07] Speaker 00:
And indeed, in looking at different terms, presumptively having different meanings, the claim itself talks about security mechanism, uses the word security in the front, and then contrasts that to governing in the back.

[00:02:21] Speaker 03:
And thereby... Spec talks about passwords and encrypting data transmissions, right?

[00:02:26] Speaker 00:
It talks about that as a tool.

[00:02:28] Speaker 00:
Yes, it does.

[00:02:28] Speaker 00:
And it gives examples of what the governing would be.

[00:02:31] Speaker 00:
For example, the specification talks about how a bystander would only receive authorized voice communications from the dispatcher and provide camera information to them.

[00:02:43] Speaker 02:
That's the exclusive meaning of governing.

[00:02:46] Speaker 02:
I mean, I don't see anything in the specification to say that that's the exclusive meaning of governing.

[00:02:51] Speaker 02:
In fact, you have dependent claims here, which talk about encryption as a form of governing.

[00:02:58] Speaker 00:
They talk about, I think, encryption in keys.

[00:03:01] Speaker 00:
If you look at the claims, you're talking about that being a tool that can be used.

[00:03:06] Speaker 02:
But what if the dependent claims make pretty clear that governing includes encryption?

[00:03:12] Speaker 00:
but not encryption just if encryption exists, then that must be governing.

[00:03:17] Speaker 00:
I don't think that's what this fair reading of the specification is.

[00:03:20] Speaker 00:
I don't think that's how the dependent claims relate to independent claims.

[00:03:24] Speaker 00:
If I understand the differentiation law of this court, what you say is that the independent claims do not have the dependent claims read into them.

[00:03:33] Speaker 00:
And I think that to say that

[00:03:36] Speaker 00:
Because encryption is mentioned in a dependent claim, for that matter, keys and other things are mentioned as tools, would mean that that's what the security mechanism is.

[00:03:47] Speaker 02:
It's not what the security mechanism is, but it has to be a security mechanism that's within the scope of point one.

[00:03:55] Speaker 00:
If the security mechanism does the things that are provided in the claim, that's what I'm saying.

[00:04:00] Speaker 00:
The encryption or keys can be a tool, but they are not the thing.

[00:04:05] Speaker 00:
the security mechanism has to govern the information that's transmitted.

[00:04:10] Speaker 00:
And the examples throughout the specification are there for each person, by the way.

[00:04:17] Speaker 00:
So in this particular patent, there's a victim, there's a bystander,

[00:04:21] Speaker 00:
there's a first responder and then there's a dispatcher and each one of them when you look at the specification.

[00:04:28] Speaker 03:
The problem I have with this claim which is breathtakingly broad is that it doesn't at all capture that scenario that you just referred to that's described in the written description about a victim, about a bystander, about

[00:04:43] Speaker 03:
some other third party and then a dispatcher.

[00:04:46] Speaker 03:
All we're looking at here in claim one is a first personal device and a second personal device talking to each other and a security mechanism that governs information transmitted between those single two devices.

[00:05:01] Speaker 03:
So this could be any scenario with when you have two devices, that's it.

[00:05:09] Speaker 03:
There's nothing about victim, bystander, dispatcher, et cetera.

[00:05:13] Speaker 00:
It talks, I would suggest that it's not as breathtakingly broad, perhaps, as Your Honor may seem at first blush.

[00:05:20] Speaker 00:
What I would say is that- I've seen a lot of claims.

[00:05:22] Speaker 03:
This one is pretty broad.

[00:05:24] Speaker 00:
There's not a lot of words.

[00:05:26] Speaker 00:
Your Honor, but the meaning is there.

[00:05:28] Speaker 00:
So the claim says that a communication channel is established.

[00:05:33] Speaker 00:
So that has to be in existence.

[00:05:35] Speaker 03:
And the patent talks about how a network- I don't think it says a communication is established.

[00:05:42] Speaker 00:
Well, I think that it says in the element above, it says the second device communicating with the first device.

[00:05:51] Speaker 00:
Right.

[00:05:52] Speaker 03:
But this is a product claim, right?

[00:05:54] Speaker 03:
This is not a method claim.

[00:05:56] Speaker 03:
And you certainly wouldn't assert that this is some hybrid claim.

[00:06:00] Speaker 03:
of a product claim with process steps inside of the product claim, right?

[00:06:05] Speaker 00:
So this is just a product claim.

[00:06:07] Speaker 03:
So maybe the better way to read the phrase you just read is a second device capable of communicating with the first device.

[00:06:15] Speaker 00:
And my point is that in reading then the element C, a security mechanism having security contrasted to governing and looking at the specification, of course,

[00:06:28] Speaker 00:
the court has ruled, going back to Phillips, that the patents are an integrated instrument, and the specification is the best way to understand what the meaning is when you explain the invention in this way.

[00:06:41] Speaker 00:
And it's very clear from the specification that governing is talking about

[00:06:46] Speaker 00:
is talking about regulating the level of access to certain types of transmitted information.

[00:06:52] Speaker 00:
That's what it's talking about.

[00:06:52] Speaker 00:
That's what governing is used there.

[00:06:55] Speaker 00:
It's regulating the amount of certain types of information between the devices, and it's very clear in the patent that that's a limitation, and that's what the prior art did not show.

[00:07:06] Speaker 00:
In fact, the prior art

[00:07:08] Speaker 00:
that was referenced by the petitioner here had only two things.

[00:07:13] Speaker 00:
One was a password that would disable a device so it wouldn't even communicate.

[00:07:17] Speaker 02:
Where's the language and the specification that says it's limited to having different levels of communication, particularly since governing doesn't even appear?

[00:07:27] Speaker 00:
Well, I think that you can start right with the abstract.

[00:07:29] Speaker 00:
You can start on the front page of the patent where it says that the system provides multiple levels of prioritization.

[00:07:36] Speaker 00:
That's on the face of the patent.

[00:07:38] Speaker 00:
And then you go into the specification and you see that the system that is described, that is the substance of this, isn't about like we came up with a system that would have encryption between devices.

[00:07:52] Speaker 00:
That concept really isn't in there.

[00:07:55] Speaker 00:
The concept that's explained at length is this governing concept where you use the security mechanism as a means to govern the amount of information between the devices that have the established communication.

[00:08:12] Speaker 00:
And so I think not only does the abstract refer to that,

[00:08:16] Speaker 00:
But then so does a number of instances, which I'm happy to reference, which is appendix 65, 12, 30 through 35, relates to the bystander providing voice communications and camera.

[00:08:31] Speaker 03:
I'm curious.

[00:08:32] Speaker 03:
This patent has 57 claims.

[00:08:34] Speaker 03:
Do any of them talk expressly about providing multiple levels of access to information being transmitted?

[00:08:46] Speaker 00:
That's in the independent claim.

[00:08:48] Speaker 00:
I know.

[00:08:48] Speaker 00:
OK.

[00:08:48] Speaker 03:
Let's assume for the moment it's not there in the claim one.

[00:08:53] Speaker 03:
My question was really more about expressly.

[00:08:56] Speaker 03:
Is there any claim that really gets that granular and talks about multiple levels of access, multiple levels of prioritization, et cetera?

[00:09:08] Speaker 00:
No.

[00:09:08] Speaker 00:
I think that the specification and explaining the governing, what is in the

[00:09:13] Speaker 03:
I'll just take it that the other 56 claims don't give me any more actual detail about this concept that you're getting at.

[00:09:25] Speaker 03:
You're using the word governing in claim one.

[00:09:28] Speaker 03:
as a stand-in for all of these more detailed ideas.

[00:09:33] Speaker 03:
I was just trying to figure out if, by any chance, other claims actually provided that detail.

[00:09:39] Speaker 03:
But if they don't, that's OK.

[00:09:40] Speaker 03:
Keep going.

[00:09:41] Speaker 00:
I will say that parsing out the governing, I don't believe, is in the dependent claims.

[00:09:47] Speaker 00:
The ones that were referenced before about tools, but the governing is in the independent claim and in the specification.

[00:09:55] Speaker 00:
as I explained, treating it as an integrated instrument.

[00:09:58] Speaker 00:
And then again, the application here is that they did not find that.

[00:10:03] Speaker 00:
That's not in the art.

[00:10:05] Speaker 00:
The prior art that the petitioner went searching for and found the best thing they could find was typing in a password that would disable a device.

[00:10:15] Speaker 00:
But once it was enabled, all of the information was transmitted.

[00:10:20] Speaker 00:
There was no governing of it at all.

[00:10:22] Speaker 00:
There was all the information, no certain types available, and that's the Jacobson device.

[00:10:29] Speaker 00:
The second device was the SAE device, and that had a sensor unit, like a sensor on your skin at the hospital maybe measuring your vitals, and a display unit.

[00:10:40] Speaker 00:
And in that instance, while that communication was encrypted, perhaps for identification as well, when the connection was made, it was a forced connection.

[00:10:50] Speaker 00:
There was no information that was governed whatsoever in that connection.

[00:10:55] Speaker 00:
So the two items of art that they relied upon don't have governing in them.

[00:11:01] Speaker 00:
Only if you take governing and treat it as equivalent to security and encryption do you get to the point where you can find that.

[00:11:09] Speaker 00:
A second issue that I'd like to raise relates to the board's error in ruling that the motivation for saying Gabi.

[00:11:23] Speaker 00:
This is the third point that was raised in our brief.

[00:11:26] Speaker 00:
In this particular instance, the board summarized what the parties had said and then just credited the petitioner.

[00:11:35] Speaker 00:
Didn't explain motivation, of course,

[00:11:37] Speaker 00:
this court has recognized that for hindsight bias, requiring the board to explain motivation is the guard against that.

[00:11:47] Speaker 00:
And that's the safety net to make sure that we don't let hindsight go into all of our cases.

[00:11:55] Speaker 00:
And in this particular instance, if you look through it, all the board found was pertinent art, I think is the term that they used.

[00:12:07] Speaker 00:
They did not go to explain why one would.

[00:12:09] Speaker 03:
What if we conclude what the board actually did there in effect was adopting the petitioner's rationale that it summarized in the opinion?

[00:12:18] Speaker 00:
So if you were to go past, that would go past the did they actually explain the motivation.

[00:12:24] Speaker 00:
You just say, well, they did sufficiently.

[00:12:27] Speaker 00:
Then I think the question becomes substantial evidence.

[00:12:30] Speaker 00:
And in this particular instance, there's no substantial evidence for motivation.

[00:12:34] Speaker 00:
There were only two things that were identified by the petitioners to show motivation.

[00:12:40] Speaker 00:
And they both came from the same reference.

[00:12:42] Speaker 00:
The first was that in the connection between the sensor unit and the display.

[00:12:50] Speaker 00:
So the sensor unit and display, the display could be small and have a pager effect.

[00:12:56] Speaker 00:
Well, that's not a new connection.

[00:12:59] Speaker 00:
Remember that for this particular claim, the claim requires that there be yet another device, another central device that the sensor would connect to.

[00:13:10] Speaker 00:
And in the SAVE reference, there's absolutely no motivation.

[00:13:13] Speaker 00:
They identified none.

[00:13:15] Speaker 00:
Why?

[00:13:15] Speaker 00:
Just because the display might connect to something else.

[00:13:19] Speaker 00:
That would mean that you would add something to the sensor unit.

[00:13:22] Speaker 00:
In fact, it would be contrary.

[00:13:23] Speaker 00:
to what Say describes, which is primarily the connection between the sensor unit and the display.

[00:13:30] Speaker 00:
That was the first thing that I noticed.

[00:13:31] Speaker 03:
The argument you just made right there, did you make that in your blue brief?

[00:13:34] Speaker 03:
I saw it in your yellow brief.

[00:13:36] Speaker 03:
I don't remember seeing it in the blue brief.

[00:13:38] Speaker 00:
Yes, I believe.

[00:13:39] Speaker 00:
That has been in our briefs going back to the patent owner's response, Your Honor.

[00:13:44] Speaker 00:
And I believe that was throughout.

[00:13:48] Speaker 00:
I can certainly give you a citation

[00:13:51] Speaker 00:
the patent owner's response, that argument may be found in appendix, see, Patent Owner Response 2022 and 2106 are some examples of that.

[00:14:10] Speaker 00:
I'd say then the second point that they raise,

[00:14:14] Speaker 00:
is they say that there can be a repeater unit.

[00:14:17] Speaker 00:
This was the doctor's office reference in their brief.

[00:14:20] Speaker 00:
In a repeater unit, you take the sensor, like you're in the hospital room, and then you repeat the sensor unit to the display.

[00:14:28] Speaker 00:
But it's that connection.

[00:14:29] Speaker 00:
It's the connection between the sensor unit and the display.

[00:14:33] Speaker 00:
Remember that the claim requires yet a different connection to the internet from the sensor.

[00:14:40] Speaker 00:
And they use that for motivation, but that doesn't show motivation at all.

[00:14:44] Speaker 00:
So there's no... My point is that's no evidence of motivation, and they certainly did not explain it.

[00:14:52] Speaker 00:
And in addition, I'll say that in the goodbye reference,

[00:14:56] Speaker 00:
What that reference is is a toy where the internet connection downloads the voice files and some other files, content files.

[00:15:04] Speaker 00:
It calls it a content dispatcher.

[00:15:07] Speaker 00:
That certainly would have no use in the say device where this is a sensor unit.

[00:15:13] Speaker 00:
It has no use for information like that.

[00:15:18] Speaker 00:
And so I would like to make one brief comment.

[00:15:21] Speaker 00:
I am a little bit over.

[00:15:22] Speaker 00:
I'll use one of my minutes from the following if it's okay.

[00:15:26] Speaker 00:
There's no following.

[00:15:27] Speaker 00:
You're out of time.

[00:15:28] Speaker 00:
Okay.

[00:15:29] Speaker 02:
Then I will stop.

[00:15:30] Speaker 02:
We'll give you two minutes for a vote.

[00:15:34] Speaker 00:
Okay.

[00:15:34] Speaker 00:
Thank you, Your Honor.

[00:15:39] Speaker 02:
Mr. Zylberger.

[00:15:48] Speaker 01:
May it please the court, I'll begin with the security mechanism limitation.

[00:15:53] Speaker 01:
Jacobson and Say each teach systems that govern information transmittal between the first and second device.

[00:16:01] Speaker 01:
And the intrinsic record rejects the notion that a password that regulates whether communication will occur, like in Jacobson, or encryption that's applied to information actually transmitted, like in Say, should be carved out of the meaning of the security mechanism.

[00:16:18] Speaker 01:
First, the claim is written broadly.

[00:16:21] Speaker 01:
It covers any security mechanism that's capable of governing information transmitted between the first and second device.

[00:16:30] Speaker 01:
As Your Honor's pointed out, the word govern does not appear anywhere in the specification.

[00:16:34] Speaker 01:
But what the specification does do is provide numerous examples of such a security mechanism.

[00:16:41] Speaker 01:
We see that, for example, at Appendix 63 in Column 8, where the patent specifically talks about a user entering a password to gain access to a device.

[00:16:50] Speaker 01:
And at Appendix 66, Column 13, we see several, in fact, non-limiting examples.

[00:16:56] Speaker 01:
This patent says that they're non-limiting examples, and it provides as the first example data transmitted to and from the personal device being encrypted,

[00:17:05] Speaker 01:
That's at column 13, lines 43 to 46.

[00:17:09] Speaker 01:
And as the fourth example, how a user of the personal device 100 may have a security key that he can enter to release information.

[00:17:17] Speaker 01:
That's at line 52.

[00:17:18] Speaker 01:
Now Phillips relies primarily on figure five and how in that scenario you have a user, example a patient, a bystander who's an intermediary, and a third device who's like a medic.

[00:17:32] Speaker 01:
And in that example,

[00:17:34] Speaker 01:
It's a situation where the bystander, you might not want the bystander to have access to the information.

[00:17:38] Speaker 01:
You might want the medic to have access to information.

[00:17:41] Speaker 01:
And so in that particular example, there might be a need for different levels of access to the information.

[00:17:48] Speaker 01:
But there's at least two big problems with Phillips's reliance on Figure 5.

[00:17:53] Speaker 01:
For one,

[00:17:54] Speaker 01:
the claim does not recite that example.

[00:17:57] Speaker 01:
It doesn't even recite the third device.

[00:17:59] Speaker 01:
It recites two devices and it only requires two devices.

[00:18:03] Speaker 01:
And in fact, in Phillips's yellow brief at page 28, it concedes that the claim is not limited to this specific example.

[00:18:10] Speaker 01:
Moreover, with respect to the multiple levels of access,

[00:18:14] Speaker 01:
Phillips's expert, Dr. Martin, conceded at deposition that if you had a different scenario where you didn't necessarily care whether the bystander had access to the information, you would not need to have different levels of access.

[00:18:28] Speaker 01:
It's okay if everyone has the same level of access, and that would still be covered by the claim.

[00:18:34] Speaker 01:
That testimony is available at appendix 1164 and 1165, and I would note, by the way, that

[00:18:40] Speaker 01:
The example that Dr. Martin referred to there was a scenario where a victim is being located, much like in Jacobson, where soldiers are being located.

[00:18:50] Speaker 01:
I'll conclude on this issue by pointing out that the security mechanisms in Jacobson and, say, in particular,

[00:18:56] Speaker 01:
are specifically tied to the communication itself, which is what gives breath to the governing information transmitted between the first and second device aspect of the security mechanism.

[00:19:07] Speaker 01:
In Jacobson, the password is explicitly disclosed as being used to protect soldier locations that are being transmitted in this system.

[00:19:16] Speaker 01:
And in SAE, encryption is specifically used

[00:19:19] Speaker 01:
to limit the use of medical sensor information that devices receive to only those devices that have the key to access that information.

[00:19:30] Speaker 01:
With respect to the combination of say and goodbye, Phillips is simply wrong that the board did not provide articulated reasoning to combine say and goodbye.

[00:19:41] Speaker 01:
In its final written decision, the board specifically referenced Dr. Paradiso's testimony at paragraphs 120 to 122, where Dr. Paradiso made, I think, three key points.

[00:19:53] Speaker 01:
For one, say itself teaches that there are situations where it's preferable to boost the signal coming from the unit.

[00:20:02] Speaker 01:
The example it gives in say

[00:20:04] Speaker 01:
and that Dr. Paradiso discusses is a scenario where a doctor's office or nurse's station wants access to that information, and so you want to extend the distance that it travels.

[00:20:13] Speaker 01:
In addition, Dr. Paradiso explained how Se and Gabai describe very similar systems from a structural perspective, where they both have sensors, they both have information transmittal.

[00:20:24] Speaker 01:
There's no dispute on our end that Se and Gabai have very different commercial purposes.

[00:20:29] Speaker 01:
Se is a medical device, Gabai is a toy,

[00:20:32] Speaker 01:
That's an argument Phillips raised below that goodbye is a non-analogous reference.

[00:20:36] Speaker 01:
The board rejected that argument, and Phillips does not challenge that finding on appeal, despite its many references to goodbye being a toy.

[00:20:45] Speaker 01:
Goodbye is an analogous reference, and that's not been challenged on appeal.

[00:20:52] Speaker 01:
I don't believe Phillips addressed its argument regarding grounds four to six, so unless the panel has any questions on that, I'll move on to our cross-appeal.

[00:21:02] Speaker 01:
Which is where the only error that the board's decision contains lies.

[00:21:08] Speaker 02:
I don't really understand your position with respect to Plan 14.

[00:21:15] Speaker 02:
You seem to be saying that a wireless port is the same as a USB port.

[00:21:21] Speaker 02:
That doesn't make any sense to me.

[00:21:24] Speaker 02:
If you have wireless communication, you're not doing that through a USB port.

[00:21:31] Speaker 02:
Obviously, this is a questionable claim, but again, we have a situation where instead of arguing that someone skilled in the art would know that it was easy to connect two communication devices using wires through USB ports, we've made some convoluted argument which is difficult.

[00:21:50] Speaker 02:
With respect to that, why are we in this situation?

[00:21:53] Speaker 02:
I mean, there's got to be plenty of prior art that shows the communication between wireless devices using wires and USB ports.

[00:22:03] Speaker 01:
Yes, Your Honor.

[00:22:04] Speaker 01:
I think we absolutely could have submitted an obvious miscombination to address the claim.

[00:22:08] Speaker 01:
It would have been trivial to do so.

[00:22:10] Speaker 01:
But the key here is that the claim doesn't recite that it's limited to a USB or similar type of data input output port.

[00:22:18] Speaker 02:
Why would you use the same kind of port for wireless communication and wired communication?

[00:22:23] Speaker 02:
That seems to me to be kind of true.

[00:22:25] Speaker 01:
I understand your question now, Your Honor.

[00:22:27] Speaker 01:
And the point is that we're not arguing that the wireless device itself has some sort of physical connection.

[00:22:35] Speaker 01:
Our argument below was that the

[00:22:38] Speaker 01:
the data input output port is actually contained within the wireless module itself, that the wireless transmission, the output of the wireless transmission is the output port, and when it receives data, that's the input port.

[00:22:51] Speaker 01:
And I would note, at Appendix 30, the board doesn't dispute that our prior art references have

[00:22:58] Speaker 01:
data input-output ports.

[00:23:00] Speaker 03:
No, don't go that far.

[00:23:02] Speaker 01:
At Appendix 30, Your Honor, with the Board held, I'm not saying the Board found it as a matter of fact, but they didn't dispute it.

[00:23:07] Speaker 01:
They said at Appendix 30, petitioner does not point to anything in Jacobson that discloses a data input-output port that is separate from the BodyLand 168.

[00:23:19] Speaker 01:
And the final decision recognizes earlier that BodyLand 168 is the wireless communication model.

[00:23:25] Speaker 01:
The Board acknowledged that

[00:23:30] Speaker 03:
Wireless communication modules have inputs and outputs, but it did not say that wireless communication modules have data input output ports.

[00:23:41] Speaker 03:
And so that is the problem you have here with respect to the reference that you're relying on that has a wireless communication module.

[00:23:50] Speaker 03:
Why would anyone say that a wireless communication module has a data port?

[00:23:57] Speaker 03:
Wireless communication modules have transmitters.

[00:23:59] Speaker 03:
and they have receivers.

[00:24:02] Speaker 03:
Why is a transmitter the data output port?

[00:24:06] Speaker 03:
Why is a receiver the data input port?

[00:24:09] Speaker 03:
I don't think your expert ever tried to make that explanation.

[00:24:15] Speaker 03:
And so that's the gap that we have here.

[00:24:18] Speaker 01:
Yes, Your Honor.

[00:24:20] Speaker 01:
What I would say is that in terms of the board's fact findings, the only reason why the board made the findings that Your Honor is referring to

[00:24:29] Speaker 01:
is because of its belief that Claim 14 would be rendered superfluous under our interpretation of the claim.

[00:24:37] Speaker 01:
And its explanation was that, well, if a wireless communication module already has a data input output port, Claim 14 doesn't say anything that Claim 1 does not say.

[00:24:50] Speaker 01:
But that doesn't quite work, because Claim 1, illustrating another example of its breath,

[00:24:56] Speaker 01:
It never says that it's the wireless communication module that's used for the communication.

[00:25:03] Speaker 03:
It says that there's a first and second device that are... Do wireless communication modules necessarily have, possess data input-output ports?

[00:25:13] Speaker 01:
That's not an issue that was necessarily below, Your Honor.

[00:25:16] Speaker 01:
We explained how Jacobson and Say in particular have data input-output ports, and the only basis

[00:25:21] Speaker 02:
There wouldn't be USB ports or something that would accommodate a wired connection, right?

[00:25:29] Speaker 02:
Even if it's just different.

[00:25:30] Speaker 02:
I mean, even if they have some sort of port, it wouldn't be a port that accommodates a wired connection.

[00:25:37] Speaker 01:
A wireless device would not have a wired connection.

[00:25:40] Speaker 01:
We're not suggesting that it does.

[00:25:42] Speaker 01:
Our position below and on appeal is that the wireless connection itself is a data input-output port.

[00:25:51] Speaker 01:
And again, the only basis, as a matter of fact, that the board gave to reject that interpretation was its view that claim one would be rendered superfluous.

[00:25:59] Speaker 01:
And that's just not correct as a matter of claim interpretation.

[00:26:02] Speaker 01:
I think it's a little bit more than that.

[00:26:03] Speaker 03:
It's the entire specification, including the figures, which illustrate how the data input output ports is a separate thing from the wireless

[00:26:18] Speaker 03:
module so that I think that's also a very strong problem here that that militates against your view that we can just sort of slap the data input output port into the wireless communication module and so it's beyond just the dependent claims which actually express and talk about

[00:26:42] Speaker 03:
further adding a data input output port, so structurally that goes against you, but it's the specification itself, both the way it separately discusses these two items and then the way it separately illustrates these two items in the figures.

[00:26:57] Speaker 01:
So my one response to that, Your Honor, would be that the Board did acknowledge at Appendix 20 that the specification does not provide any examples that would be harmonious or at least consistent with on all fours

[00:27:10] Speaker 01:
its interpretation of Claim 14.

[00:27:12] Speaker 01:
It said that even though the specific connections of components required by Claim 14 are not explicitly illustrated.

[00:27:21] Speaker 01:
And the specification certainly does have examples where you have different boxes of wireless modules and data input-output ports.

[00:27:30] Speaker 01:
But I would posit at best that threat support for scenarios where you have them separately but that doesn't require, as a matter of claim interpretation,

[00:27:40] Speaker 01:
them to be separate components.

[00:27:42] Speaker 01:
Is Claim 14 being asserted against you in a parallel district court proceeding?

[00:27:47] Speaker 01:
It was originally asserted, Your Honor, in the parallel litigation.

[00:27:51] Speaker 01:
Phillips has since dropped the claim.

[00:27:58] Speaker 01:
If there's no further questions, I'm happy to rest for now.

[00:28:03] Speaker 02:
Thank you.

[00:28:05] Speaker 02:
Mr. Thompson, you have two minutes.

[00:28:10] Speaker 03:
Is this patent now expired?

[00:28:15] Speaker 03:
Probably dates 2002.

[00:28:17] Speaker 00:
I think yes.

[00:28:19] Speaker 03:
OK.

[00:28:20] Speaker 03:
Is claim 14 being currently asserted in any of your parallel proceedings?

[00:28:24] Speaker 03:
No.

[00:28:25] Speaker 00:
OK.

[00:28:28] Speaker 00:
I wanted to comment a little bit.

[00:28:31] Speaker 00:
I think that the argument about the say goodbye obviousness as to claim 15

[00:28:41] Speaker 00:
Wait, excuse me.

[00:28:48] Speaker 00:
Yeah, as a claim 15, I think they're missing a point, and that's because they're not looking at the claim itself.

[00:28:56] Speaker 00:
Claim 15 is not claim one.

[00:28:59] Speaker 00:
Claim 15 depends from claim one, but it says that it further comprises a pretty common language for adding an additional

[00:29:11] Speaker 00:
element, further comprising a central communications base station communicating with the first personal device.

[00:29:19] Speaker 00:
So claim one is about a first personal device with a second personal device.

[00:29:23] Speaker 00:
This adds a new connection.

[00:29:26] Speaker 00:
The example that counsel gave, Your Honor, was an extension of the sensor unit to the display.

[00:29:36] Speaker 00:
That is clearly nothing like claim 15.

[00:29:40] Speaker 00:
which is a new communication, a separate channel which goes to what I was talking about.

[00:29:46] Speaker 00:
Now, as far as motivation to make a modification like that to get to claim 15, I think that the board's opinion on page 44

[00:29:56] Speaker 00:
which is appendix 44, really shows how much explanation they gave.

[00:30:01] Speaker 00:
I'll just read it.

[00:30:02] Speaker 00:
Like grounds four through six, we are persuaded that the petitioner has articulated sufficient reasoning with rational underpinnings to support the relevance of saying goodbye.

[00:30:12] Speaker 00:
That's it.

[00:30:14] Speaker 00:
There's no explanation.

[00:30:15] Speaker 00:
And I think it's supposed to be under precedent, thorough in searching.

[00:30:21] Speaker 00:
That's the thorough in searching.

[00:30:24] Speaker 00:
I think that that's insubstantial.

[00:30:26] Speaker 00:
And I think there's a reason for it, which is that there is no basis behind that.

[00:30:33] Speaker 00:
And then I'm happy to make just one sort of comment about the input-output device.

[00:30:40] Speaker 00:
That, again, is another further comprising claim.

[00:30:44] Speaker 00:
And you all are absolutely correct that figure two

[00:30:48] Speaker 00:
shows how those are different and then the specification at column three makes it absolutely clear that we're talking about a data input output point port which is a serial parallel or USB port and the

[00:31:04] Speaker 00:
Wireless communication module is infrared or radio frequency.

[00:31:08] Speaker 00:
You may find that column four at line 46.

[00:31:11] Speaker 02:
Thank you, Mr. Thompson.

[00:31:13] Speaker 02:
Mr. Zadler, anything more on the cross field?

[00:31:17] Speaker 01:
Sorry, Your Honor?

[00:31:18] Speaker 02:
Anything more on the cross field?

[00:31:20] Speaker 01:
No, Your Honor.

[00:31:20] Speaker 02:
Okay.

[00:31:21] Speaker 02:
All right.

[00:31:21] Speaker 02:
Thank both counsel.

[00:31:22] Speaker 02:
The case is submitted.

[00:31:24] Speaker 02:
That leads