[00:00:01] Speaker 03: Sisvel International versus Cradle Point et al, 2022, 1494. [00:00:09] Speaker 03: Mr. Gariazza, when you are ready. [00:00:29] Speaker 01: Good morning. [00:00:29] Speaker 01: May it please the court. [00:00:30] Speaker 01: Robert Guyarza on behalf of Appellant Sisyphil. [00:00:33] Speaker 01: There are several issues that are discussed in the briefing today for this case. [00:00:36] Speaker 01: And I'm happy to answer questions about any of them. [00:00:39] Speaker 01: But if I may, I'd like to focus on two and maybe a third if I have the time to do that. [00:00:44] Speaker 01: The first issue I'd like to focus on is the board's analysis of reasonable expectation of success, which was one footnote on page Apex 21. [00:00:56] Speaker 01: And in that footnote, the board simply said that the known disadvantages of Qualcomm's approach are not considered by the board to be technical difficulties. [00:01:07] Speaker 01: There's no unusual problems that arise in making the change proposed by Qualcomm. [00:01:12] Speaker 01: As we explained in the briefing on page 37 of the blue brief, this court's precedent does recognize, contrary to what the board said, that technical difficulties in implementing a system should be considered and can be considered in the reasonable expectation of success analysis. [00:01:28] Speaker 01: And for that reason alone, for example, under the Endo case, which was cited to the board, which was cited to this court, it was not cited by red. [00:01:36] Speaker 01: I'm happy to discuss it. [00:01:37] Speaker 01: But that case does show that things such as being less effective, for example, the catalytic hydrogenation in that case of low ABUC oxymorphone was considered one process was less effective. [00:01:50] Speaker 01: The court also noted how other processes had material difficulties or had higher chances or had undesirable outcomes. [00:01:58] Speaker 01: All of those were relevant to reasonable expectation of success. [00:02:03] Speaker 01: And those are the same type of factors here that we told the board implementing Qualcomm and the TS standard would cause. [00:02:10] Speaker 01: Reduction of PDU size, for example, by 50 percent is an undesirable outcome. [00:02:15] Speaker 01: It also makes it less efficient. [00:02:17] Speaker 01: These are the technical difficulties that the board simply said are known disadvantages and did not consider fully in the reasonable expectation of success analysis. [00:02:26] Speaker 02: Are you saying that the board didn't consider them or didn't consider them technological difficulties and should have considered them technological difficulties? [00:02:37] Speaker 02: Help me understand exactly what you're faulting the board for on this point. [00:02:41] Speaker 01: I think it's probably a little bit of the first one and definitely the second one. [00:02:46] Speaker 01: It's that the board said we do not consider the known of disadvantages to be technological difficulties. [00:02:54] Speaker 01: In other words, the fact that PDU size would be reduced by 50% if you integrated Qualcomm into the TS standard here was not a technical difficulty. [00:03:04] Speaker 01: But in fact, that's exactly what a technical difficulty would be. [00:03:08] Speaker 01: For example, VOIP would require octet sizes for PDUs of 95 or 97. [00:03:14] Speaker 01: If Qualcomm was integrated into the TS standard, that would not be available, because the maximum octet size would be 64. [00:03:22] Speaker 02: But I thought the board was saying, the person at Skill and the Art would know how to do this. [00:03:28] Speaker 02: They would see the reduction in size to 500 bits, I think it is, as a disadvantage. [00:03:34] Speaker 02: I could do it. [00:03:35] Speaker 02: I know how to do it. [00:03:36] Speaker 02: It'd be a disadvantage. [00:03:37] Speaker 02: But I would weigh it against the advantages or benefits. [00:03:41] Speaker 02: And the board says the person of skill in the art would say, well, the benefits somewhat outweigh the disadvantages. [00:03:47] Speaker 02: Isn't that the board's analysis? [00:03:49] Speaker 02: And isn't there substantial evidence to support that? [00:03:52] Speaker 01: I think if the board had said that, Your Honor, we would be in a different scenario. [00:03:55] Speaker 01: But they didn't. [00:03:56] Speaker 01: What they did say at the end of that paragraph in their footnote was, the record does not suggest any unusual problems would arise in making the change. [00:04:06] Speaker 01: In other words, it seems from that paragraph, that sole discussion of reasonable expectation of success, what the board is looking at was merely operability. [00:04:14] Speaker 01: Could you potentially do that? [00:04:18] Speaker 01: One simple analogy, the only one that I can think of, is take for instance that you had a biofuel that could replace gasoline. [00:04:26] Speaker 01: It could be used in trains, planes, and automobiles. [00:04:29] Speaker 01: But you have prior art that has a different process for making something with an R group that falls under that claim. [00:04:34] Speaker 01: But it cannot be used in jets. [00:04:36] Speaker 01: It cannot be used in trains. [00:04:38] Speaker 01: And if you use it in your car, if you drive over 15 miles an hour, your engine shuts down. [00:04:43] Speaker 01: Those would be types of technical difficulties that one of ordinary skill in the arts should consider in the hypothetical analysis for motivation combined with this reasonable expectation of success, not operability, but success, in determining whether or not the invention was obvious. [00:05:00] Speaker 01: And it seems like what the board said in that scenario would be, well, your car can still be driven at 15 miles an hour. [00:05:07] Speaker 01: That's all we need to show. [00:05:09] Speaker 01: because there's nothing unusual in terms of operability. [00:05:12] Speaker 01: But as ENDO recognizes, there's trade-offs. [00:05:15] Speaker 01: And when you have these trade-offs, that does go to the heart of reasonable expectation of success. [00:05:20] Speaker 01: And there is critical objective evidence in this case that shows that Posita would not have expected success because this particular modification of TS was rejected by the working group. [00:05:33] Speaker 01: In other words, the Positas out there said, we're not gonna do this. [00:05:37] Speaker 01: And so we would submit that, for that reason alone, it would have to go back. [00:05:41] Speaker 01: The second issue, though, I would like to bring to the Court's attention, I think, is one that doesn't require remand. [00:05:46] Speaker 01: It requires outright reversal. [00:05:48] Speaker 01: We have consistently, throughout the brief, at least for the first half of it, we objected to the Board's findings and the basis for the Board's findings under substantial evidence. [00:05:59] Speaker 01: However, on page 44 of the brief, we refer back to those and we say, assume that the Board is right. [00:06:05] Speaker 01: Assume that the board's findings on the bottom of Apex 22 about Qualcomm are correct. [00:06:10] Speaker 01: That yes, the Qualcomm flag does show you that the first full SDU, the first full SDU in the PDU is contained entirely within the PDU. [00:06:24] Speaker 01: That finding, that factual finding about what Qualcomm teaches does not satisfy element 1b of the claims. [00:06:32] Speaker 01: Element 1b of the claims [00:06:33] Speaker 01: does not say the first full SDU, it requires something additional. [00:06:38] Speaker 01: It requires the first octet of the PDU to be the first octet of the SDU. [00:06:44] Speaker 01: In other words, it says you have to start at the beginning. [00:06:49] Speaker 01: So even under the board's findings, even arguing to assume that the board was right, that the Qualcomm flag teaches that the first full SDU in the PDU could potentially be flagged by Qualcomm, that's not the claim to the bench. [00:07:02] Speaker 01: The claimed invention says that in this window, you have to start at the beginning. [00:07:06] Speaker 01: The PDU octet has to line up with the SDU octet. [00:07:11] Speaker 01: And that is indeed the board's express construction, which is not on appeal here. [00:07:15] Speaker 01: The board's construction of length indicator on Apex 12 says that the length indicator, it requires providing information that the first octet of the data PDU is the first data octet, excuse me, of the PDU is the first octet of the SDU. [00:07:31] Speaker 01: Under the board's own construction of that limitation, they have to align. [00:07:35] Speaker 01: But the board's finding of what Qualcomm taught wasn't that they aligned. [00:07:40] Speaker 01: It was that you had the first full SDU and the PDU. [00:07:44] Speaker 01: And the reason that matters in context here is that there's no material dispute that SDUs do not always start at the beginning of the PDU. [00:07:53] Speaker 01: The patent itself gives an example in prior art and in the inventive in figure 12. [00:08:00] Speaker 01: And if you look at figure 12, it shows this very common situation. [00:08:04] Speaker 01: It's at apex 138. [00:08:05] Speaker 01: You'll see in the middle there, the second PDU says there's a last part, three octets, an RL size, STU size of 40 octets. [00:08:16] Speaker 01: So there's a leftover portion. [00:08:19] Speaker 01: So that next STU, STU of size 34 octets in that second PDU is, as the figure says, it's a complete STU. [00:08:29] Speaker 01: So in that example, you have an SDU that's starting three octets into the PDU, and it's complete. [00:08:38] Speaker 01: Under the board's factual finding of Qualcomm, that complete 34 octet long SDU would be contained entirely in the PDU, and it would be the first full SDU in the PDU. [00:08:53] Speaker 01: So in that instance, the flag will go up. [00:08:56] Speaker 01: And that's the diagram that we provided on page 27 of the blue brief. [00:09:01] Speaker 01: That's number four in that diagram. [00:09:03] Speaker 01: The Qualcomm system, accepting the board's factual findings as true, would indicate that flag for that SDU. [00:09:12] Speaker 01: But that SDU, indisputably and undeniably, is not the first octet of the first SDU. [00:09:20] Speaker 01: So under that own factual finding of the board, there is no element taught [00:09:25] Speaker 01: Their full element of element 1B is not taught by Qualcomm, even if you were to take the board's findings as undisputed. [00:09:36] Speaker 01: In addition to that, I would just like to touch, if I have a few minutes, on the length indicator itself. [00:09:42] Speaker 01: The board essentially found that the length indicator in Qualcomm was a 7-bit length indicator. [00:09:49] Speaker 01: And because of that, there was no requirement for the petition to show that you'd have a motivation to modify that 7-bit length indicator, to fit it into the 7-bit length indicator in the TS reference. [00:10:02] Speaker 01: What the board said on Apex 19 is that Sysable is using this length indicator language loosely because a length indicator can also indicate something besides length. [00:10:13] Speaker 01: And there's no dispute about that. [00:10:14] Speaker 01: A length indicator can also indicate something besides length. [00:10:18] Speaker 01: However, what the board said is when you have something like a 7-bit length indicator, it does not have to indicate a 7-bit long PDU so you have 128 octets in the PDU itself. [00:10:35] Speaker 01: The problem with that, however, is that [00:10:37] Speaker 01: the length, the bit length of the length indicator is inextricably intertwined with the length of the PDU that it can represent. [00:10:45] Speaker 01: We show your honors the math on page 20. [00:10:47] Speaker 01: The patent also explains, and the TS standard also explains, as we cited in the reply brief, it explains that if you have up to 125 octets, then you use a seven-bit length indicator. [00:11:00] Speaker 01: If you use over 125, that's when you switch to this 15-bit length indicator. [00:11:04] Speaker 01: If the board were correct that a seven bit length indicator had nothing to do with the actual length, all seven bits didn't have to be capable of representing the PDU. [00:11:15] Speaker 01: The statement that you use a seven bit length indicator up to 125 that's in the patent, that's in the TS reference wouldn't be true because the Qualcomm six bit length indicator could only represent 64 PDUs. [00:11:30] Speaker 01: That's the math that we showed your honors in detail on page 20 of the blue brief. [00:11:35] Speaker 01: I see that I'm into my rebuttal time. [00:11:37] Speaker 01: Unless Your Honors have any questions, I'd like to... [00:11:48] Speaker 00: May it please the court, Guy and I of Pearlconn, for the appellees and petitioners. [00:11:54] Speaker 00: If the court has any questions, I can answer them. [00:11:59] Speaker 00: But essentially responding to my friend's arguments, the first was the reasonable expectation of success. [00:12:08] Speaker 00: There is no doubt at all that the Qualcomm proposal to modify the technical specification [00:12:17] Speaker 00: would be operable. [00:12:18] Speaker 00: It would work. [00:12:20] Speaker 00: They're pointing to a disadvantage, which is that you would have to reduce the length of the PDUs, the packets that you stuff the SDUs into, and Qualcomm recognized that. [00:12:31] Speaker 00: They said, yeah, it means smaller PDUs, but there was unrebutted evidence about the advantages of doing that. [00:12:39] Speaker 00: Dr. Olivier, our expert below, talked about the reliability advantages of doing that, [00:12:46] Speaker 00: and that was unrebutted by either of patent owners experts. [00:12:51] Speaker 00: They had two experts below. [00:12:53] Speaker 00: Both of them, they talked about the [00:12:56] Speaker 00: the disadvantage of the smaller PDUs, and that was acknowledged by Qualcomm and by our expert, but they did not rebut the advantages that could outweigh those disadvantages. [00:13:07] Speaker 00: So this is not an issue of operability, it would work, there's no doubt that it would work, and that's, we just don't see the problem there with motivation to combine. [00:13:20] Speaker 00: Regarding the issue of whether the combined references teach every element, they certainly do, and the Qualcomm reference is somewhat concentrated because it's distributed at these working groups where everyone speaks the same language and they understand the technology pretty well. [00:13:40] Speaker 00: So it's a little bit concentrated, but it certainly discloses that the modified length indicator [00:13:48] Speaker 00: indicates that the first octet of the PDU is the first octet of an SDU that the length indicator refers to the end of. [00:13:58] Speaker 00: And I don't know if to get into any more technical detail here, but if your honors have any questions, I'm happy to answer those. [00:14:04] Speaker 00: But that's not a difference between the claim and the Qualcomm modification to the technical specification. [00:14:15] Speaker 02: Where would we go in the record to understand that because mr. Garrison says the board seems to have misunderstood exactly how the first octets have to line up I will be honest that I didn't entirely follow the argument. [00:14:28] Speaker 00: I think the board has [00:14:30] Speaker 00: understood the claim applied the reference correctly what I understand the claim to be saying the claim doesn't tell you how to construct the PDU out of STUs it doesn't tell you you must start a PDU with an STU it just says if the first octet [00:14:49] Speaker 00: of the PDU is the first octet of the SDU, that's indicated by the length indicator. [00:14:54] Speaker 00: And that's exactly what Qualcomm shows. [00:14:56] Speaker 00: You can see very clearly in the graphic of figure three, and this is in the, the Qualcomm reference is at appendix 1681, it's also, the figures are reproduced in the various briefs, but the figure I'm referring to here is figure three at appendix 1684. [00:15:22] Speaker 00: And what we can see here is the way that the flag, which is indicated at the top box of the length indicator, shows that the beginning of the PDU, meaning the first octet of data, is the beginning of an SDU. [00:15:46] Speaker 00: For example, if we look at scenario A, we have three PDUs, which are the protocol packets, and the SDUs are the audio packets that the service will put out, the SDUs. [00:16:00] Speaker 00: So you have SDU1, [00:16:02] Speaker 00: And because it begins at the beginning of the PDU, meaning it's first octet of data, the first octet of data is the first octet of the PDU as well, we have a yes in the flag. [00:16:14] Speaker 00: First SDU included, meaning is the first octet of the PDU a first octet of the SDU. [00:16:20] Speaker 00: That's exactly what that means. [00:16:25] Speaker 00: And the bottom portion of the box with the arrow shows where the end of the SDU is. [00:16:33] Speaker 00: So what we have, the length indicator, which is comprised of the flag and the address location, tells you precisely that this SDU has its beginning and its end in this PDU. [00:16:47] Speaker 00: And for example, the next one over, if you look at SDU two, you can see that [00:16:53] Speaker 00: There is a length indicator to show how long the SDU is, but you have a no because the first octet of that SDU is not the first octet of the PDU. [00:17:04] Speaker 00: It begins in the middle of the PDU. [00:17:08] Speaker 00: And then if we look at three, we start the PDU at the middle of the SDU, so we have a no again at the flag, and then if we look next to SDU four, [00:17:23] Speaker 00: which again, here's a yes flag again because the first beta octet of the SDU coincides with the first octet of the PDU. [00:17:34] Speaker 00: So we have a yes to show that that SDU which begins the PDU has its end as well in that same PDU as indicated by the location of the arrow [00:17:46] Speaker 00: of the address portion of the length indicator. [00:17:48] Speaker 00: For scenario A, but it's different for scenario B. Yes, that shows, what this shows here is why this is a solution to the problem. [00:17:56] Speaker 00: The problem that is, that the Qualcomm proposal addresses, what happens if you have a dropped PDU? [00:18:03] Speaker 00: Do you have to reset? [00:18:05] Speaker 00: And with the prior art, and this is what the 443 pattern was addressing as well, with the prior art, if you have a PDU that's dropped, [00:18:14] Speaker 00: Because you don't, and then you get the next one, you do receive the next one. [00:18:18] Speaker 00: You don't know whether the data that begins there, you have a complete SDU or you get it in the middle and so you have to get the prior one retransmitted and you need to throw this one out. [00:18:30] Speaker 00: It would just throw out the one that received because it didn't know whether it was the middle of an SDU or a whole SDU. [00:18:36] Speaker 00: And what this X here shows is that in scenario B, if [00:18:43] Speaker 00: PDU2 is dropped. [00:18:49] Speaker 00: You can distinguish, if you sort of cover over PDU2, PDU3 looks the same. [00:18:58] Speaker 00: If the receiver only received PDU3, it wouldn't know whether [00:19:03] Speaker 00: that SDU is complete or not. [00:19:05] Speaker 00: But by the flag, you know that in scenario A, it is the start of the SDU, and in scenario B, it's not the start of the SDU. [00:19:15] Speaker 00: But this is exactly what the claims talk about. [00:19:17] Speaker 00: This is what the reference shows. [00:19:21] Speaker 00: So there isn't really a problem of whether the Qualcomm reference teaches the recited claim orientation. [00:19:32] Speaker 00: Judge Stark, did I answer your question? [00:19:34] Speaker 00: I'm sorry. [00:19:35] Speaker 02: Well, yeah. [00:19:36] Speaker 02: It's only just I don't know from my notes and what I recall of what Mr. Garris has said if he somehow has a new argument today or a different argument. [00:19:47] Speaker 02: Because he clearly thinks that the prior art does not line up with what his claims say. [00:19:55] Speaker 02: But the explanation you just gave was my understanding of what the court said. [00:20:01] Speaker 00: So I don't know whether that argument was waived or not expressed as well in the blue brief as my friend did today. [00:20:09] Speaker 02: You didn't hear anything further from him today that you feel you need to respond further to? [00:20:14] Speaker 00: No. [00:20:14] Speaker 00: And finally, the issue of the length indicator. [00:20:19] Speaker 00: This is a semantic issue. [00:20:20] Speaker 00: The receiver is expecting a seven bit header, and that's exactly what the Qualcomm proposal does. [00:20:26] Speaker 00: It just says we're gonna say one bit of the length indicator we're gonna use for the flight. [00:20:33] Speaker 00: The six bits that remain are used as an address or a location, but it's still a seven bit length indicator, and we can see in the reference itself [00:20:43] Speaker 00: at appendix 1684, that same page we were looking at, it says use one bit of the length indicator, meaning the flag, the one bit flag is part of the length indicator. [00:20:54] Speaker 00: The remainder is an address, but there is nothing in the claims that requires every one of these seven bits to be used for an address or a location. [00:21:07] Speaker 00: Claims don't say that. [00:21:08] Speaker 00: They had an opportunity to amend the claims. [00:21:10] Speaker 00: They did amend the claims, and they didn't say this. [00:21:13] Speaker 00: They could have said, wherein the seven bits recite an address of up to 500 bits. [00:21:20] Speaker 00: They could have said that. [00:21:21] Speaker 00: They didn't do it. [00:21:22] Speaker 00: It's not in the claim. [00:21:25] Speaker 00: If your honors have any more questions, I'd be very happy to address them. [00:21:29] Speaker 03: If not, thank you, counsel. [00:21:32] Speaker 03: Mr. Piazza has some other comments. [00:21:38] Speaker 01: I would like to respond to two points. [00:21:40] Speaker 01: Number one, the last point that we heard about the amended claims. [00:21:45] Speaker 01: Perhaps I'm missing something, but the amended claims on APEX 547 and 548 specify the PDU size of 125 octets. [00:21:54] Speaker 01: And then the dependent claims from there say you have to use a 7-bit [00:22:00] Speaker 01: and they actually give the bit numbers 1111100 as an example. [00:22:05] Speaker 01: You have to use those with an octet size of 125 octets. [00:22:08] Speaker 01: That means all the bits in that 7-bit length indicator are representing size. [00:22:16] Speaker 01: So I'm not sure I understand my friend's statement that we didn't propose claims that specify a PDU size because that's exactly what the proposed claims state. [00:22:26] Speaker 01: I would like to go back though because it is a critical point in my mind to the [00:22:30] Speaker 01: The idea that even under the board's findings, element 1B is not practiced. [00:22:36] Speaker 01: And this, reading the papers below and reading the briefing, it seemed like there was a little bit of ships passing in the night. [00:22:43] Speaker 01: And I think I heard it again today. [00:22:45] Speaker 01: So I would just like to walk the court through this, because this is an important point. [00:22:49] Speaker 01: And I think it's a clear grounds for reversal. [00:22:52] Speaker 01: Below in the petition at Apex 223, [00:22:56] Speaker 01: The petitioner said that Qualcomm's flag indicates that the beginning of a corresponding SDU is included in the PDE. [00:23:04] Speaker 01: In other words, in this PDE window, they said the beginning of that SDU is somewhere in there. [00:23:10] Speaker 01: Our response to that at 461 of the record was, that doesn't say, like the claims require, that the beginning of the SDU starts at the beginning of the PDE. [00:23:22] Speaker 01: That's what we said to the board, and that's exactly the argument that the board recounted on Apex 22. [00:23:29] Speaker 01: At the top, two lines from the top, Qualcomm, this is Sissable arguing this, Qualcomm does not state that the beginning of the STU starts at the beginning of the PDU. [00:23:42] Speaker 01: And what the board said, that is not persuasive because the first STU is entirely included. [00:23:49] Speaker 01: But again, and this is a head scratcher for me, that doesn't mean if you have the first SDU entirely included, that doesn't mean that you're going to start at the beginning of the PVU. [00:24:01] Speaker 02: How, if at all, do you map your argument onto Figure 3 that we've walked through with your friend on the other side? [00:24:08] Speaker 01: Sure. [00:24:08] Speaker 01: So Figure 3 doesn't give an example of when you have an octet that bleeds over into another PDU, and then you have a full complete octet or full complete SDU in that PDU. [00:24:21] Speaker 01: That's what we showed on page 27 of our blue brief. [00:24:25] Speaker 01: And that is critical because that happens all the time. [00:24:28] Speaker 01: and that's shown in figure twelve of the patent itself and says you typically have this and in column twelve of the patent they explain why that matters and why you have to have certain indications one of those indications being the critical one here that the first octet of the STU is the first octet of the PDU because it impacts the next length indicator in what you're going to use and that indication is in column twelve but if you take a look at [00:24:56] Speaker 01: at Figure 3, this is a problem we have with the Board. [00:24:59] Speaker 01: The Board simply said, well, it so happens to be that these SDUs in Figure 3 do start at the beginning. [00:25:09] Speaker 01: That sounds like the classic kind of legal argument that an apparatus can practice a method claim one out of a hundred times. [00:25:17] Speaker 01: But that's not what these claims require. [00:25:18] Speaker 01: The board's claim construction requires the information provided. [00:25:22] Speaker 01: It's kind of like an over-height detector of a truck on the highway, where it says it's over-height. [00:25:28] Speaker 01: But your claim requires that it be the weight. [00:25:32] Speaker 01: The weight's over 50 tons. [00:25:33] Speaker 01: And the light keeps coming on. [00:25:34] Speaker 01: And I say, aha, the light's on for every truck that's gone over 50 tons. [00:25:40] Speaker 01: But what the board found was that the light is going on for the over height indicator. [00:25:44] Speaker 01: What the board found here is that the first full STU in the PDU is entirely contained. [00:25:50] Speaker 01: That does not mean, as we repeatedly told the board, as we repeated in the briefing here, [00:25:56] Speaker 01: on page 23, on page 44, on page 27. [00:26:00] Speaker 01: That does not mean that the first PDU octet is the same as the first octet of the SDU. [00:26:06] Speaker 01: That's the critical distinction. [00:26:08] Speaker 01: That's what, even assuming the board's right, arguing though, if the board is right, the claims do not practice, or sorry, the claim combination does not disclose the required element 1B. [00:26:20] Speaker 03: Thank you, counsel.