[00:00:00] Speaker 04: The first appeal is docket number 24-1384, Kyosha Corporation versus Viasat. [00:00:07] Speaker 04: Mr. Hawes? [00:00:09] Speaker 03: Thank you, Your Honor. [00:00:09] Speaker 03: May it please the Court? [00:00:11] Speaker 03: I'll start with jurisdiction. [00:00:14] Speaker 03: After the reply brief was filed, Viasat filed a motion to expedite proceedings in which it did make a comment about Plaint 16. [00:00:21] Speaker 03: So I just wanted to bring that to the Court's attention. [00:00:24] Speaker 03: As we stated in our reply brief, [00:00:26] Speaker 03: the case that has the dispute over entrenchment was narrowed to claim 16. [00:00:32] Speaker 03: We originally appealed more than claim 16. [00:00:34] Speaker 03: At that time, it hadn't been narrowed. [00:00:36] Speaker 03: Obviously, time has gone by. [00:00:38] Speaker 03: But I did want to identify for the court that on page 3 of the motion to expedite, which is document 34 of the record, Viasat stated that claim 16 is the sole. [00:00:48] Speaker 04: You were talking about a motion to expedite in the district court, right? [00:00:51] Speaker 03: No, in this court. [00:00:52] Speaker 03: In this court. [00:00:52] Speaker 04: I'm not even familiar with this motion. [00:00:54] Speaker 04: I'm sorry. [00:00:55] Speaker 03: Well, I'm glad I'm bringing it to your attention. [00:00:58] Speaker 03: It was filed before, obviously, this was set for hearing, and it was denied. [00:01:04] Speaker 03: So this was back at the beginning of this year, I believe. [00:01:08] Speaker 03: I think it was January. [00:01:10] Speaker 03: But in any case, it was [00:01:12] Speaker 03: post our reply brief, which is why I want to raise it, because our reply brief talked about jurisdiction. [00:01:17] Speaker 03: I just want to update the court on what has happened since our reply brief. [00:01:21] Speaker 03: Before I get to the merits, I know the court wants to be confident of its jurisdiction before addressing an appeal. [00:01:27] Speaker 03: So in that motion to expedite, Viasat stated that claims to be in the 700 patent, they identified that as the sole claim that Viasat planned to assert at trial. [00:01:40] Speaker 03: We believe that we still have an apprehension of suit, and that that language is not clear enough for Kyosha to believe that it is not subject to Viasat asking to expand the claims in the district court. [00:01:54] Speaker 03: And therefore, we believe this court, we have standing to appeal as a petition, and that this court has jurisdiction as a result to decide the claims that are still live. [00:02:04] Speaker 03: Some were obviously canceled. [00:02:06] Speaker 03: But those live claims are claims two, 10 to 14, [00:02:10] Speaker 03: 16 and 23 to 25. [00:02:12] Speaker 03: Fifteen is gone. [00:02:14] Speaker 03: Fifteen has been canceled. [00:02:16] Speaker 03: All the independent claims were canceled. [00:02:18] Speaker 00: Okay. [00:02:18] Speaker 00: Well, what is the effect carrying this idea of events changing as we go through the post briefing process? [00:02:28] Speaker 00: What is the effect on claim 16 of the cancellation of claim 15, if any? [00:02:38] Speaker 00: Is there any collateral estoppel effect? [00:02:41] Speaker 00: Does it narrow the scope of our review, or what does it do to our consideration of Claim 16? [00:02:48] Speaker 03: Your Honor, I believe this Court is still reviewing the judgment of the PTAP. [00:02:52] Speaker 03: And the judgment of the PTAB was that claim 16 was not unpatentable. [00:03:00] Speaker 03: The judgment of the PTAB was also that claim 15 was not unpatentable, but we believe that decision is now moot. [00:03:05] Speaker 03: But for claim 16, I believe we look at the judgment of the PTAB with regard to claim 16 and see whether that analysis still holds up in determining whether or not that should be vacated and remanded. [00:03:16] Speaker 00: But the way the universe looks right now, claim 15 is gone. [00:03:21] Speaker 00: been deemed invalid, does that have any effect on Claim 16 for our purposes? [00:03:29] Speaker 03: Your Honor, I don't believe for the purposes of this appeal that it does. [00:03:33] Speaker 03: Obviously, it would have an impact on damages and other issues with Claim 16 if this were an appeal from an infringement finding. [00:03:40] Speaker 03: But because we're in an appeal from a PTAB, [00:03:43] Speaker 03: which is just looking at the subject matter as a whole of Claim 16, which was asserted to be obvious by Kyosha below. [00:03:52] Speaker 03: I believe we look at that subject matter as a whole in view of the grounds raised in this particular proceeding. [00:03:58] Speaker 03: Keep in mind, Claim 15 was invalidated based on the grounds in another proceeding, which LIHASAT then did not appeal. [00:04:06] Speaker 03: So I think this is independent. [00:04:07] Speaker 04: So in the sense we're still in the bubble of this appeal, in the sense that for you to succeed in your attack on Dependent Claim 16, you still need to win on your arguments as to why the lead reference teaches all the elements of Claim 15. [00:04:24] Speaker 03: Well, Your Honor, I think I need to win on showing that the PTAB erred. [00:04:30] Speaker 03: PTAB only discussed one of the limitations of 15. [00:04:34] Speaker 03: So I don't believe that. [00:04:35] Speaker 04: Right. [00:04:36] Speaker 04: But in terms of your overall goal of finding claims 16 unpatentable, [00:04:43] Speaker 04: It's contingent on you If you were to get a remand to succeed in proving that in fact this Lee reference discloses all the elements of coin 15 I agree with that wrong and well if we got yes if we get a remand that might we're challenging what the p-tab did here and [00:05:03] Speaker 03: But if we get a remand, we still have the grounds of our petition that, as the Supreme Court and this Court have said, bind the IPR. [00:05:10] Speaker 03: And we would need to act within the grounds of our petition and this Court's decision in order to establish that Claim 16, which includes all the limitations of Claim 15, had an obvious subject map. [00:05:22] Speaker 03: So moving specifically, given the amount of time I have, I am going to focus on claim 16. [00:05:29] Speaker 03: It's really important here to look at claim 1 versus claim 15, and especially the fact that the PTAB did that in the institution decision and recognized that they're critically different. [00:05:43] Speaker 03: This is not a situation where the PTAB all along said, claim 1, claim 15, they're really the same thing. [00:05:51] Speaker 03: Instead, what the PTAP specifically said, and this is in the appendix at page 333, is that petitioners' contention for claim 15 does not appear to suffer from the same deficiencies as petitioners' claim to challenge to claim 1. [00:06:08] Speaker 03: That's important because that same analysis for claim one that the PTAP put forward in the institution decision was the same claim construction analysis they put forward in the final decision. [00:06:20] Speaker 03: But then when we get to the final decision, all of a sudden the PTAP says, oh, and claim 15 just follows along with claim one. [00:06:27] Speaker 03: So in the institution decision, they're very different. [00:06:29] Speaker 03: In the final decision, all of a sudden they're one and the same for purposes of this question of decoding. [00:06:36] Speaker 03: And the language in the claims truly is different. [00:06:39] Speaker 03: So claim one talks about a decoding module and talks about partially decoded data streams. [00:06:46] Speaker 03: Claim 15 does not have the decoding module and does not have partially decoded data streams. [00:06:52] Speaker 04: I thought the board focused on the use of the term decode in claim one. [00:06:57] Speaker 04: and decoder in claim 15, and based on extrinsic evidence, found that those terms have a very, very well-established meaning in the art, and that in the end, there was nothing in the specification that clearly displaced that very well-established meaning for terms like decode and decoder. [00:07:21] Speaker 03: So if we turn to what the actual analysis in the decision as to claim construction, you'll see that starts on appendix page 13. [00:07:34] Speaker 03: After considering the party submissions, we are persuaded that the construction and the institution decision is correct. [00:07:39] Speaker 03: That's in the middle of that page. [00:07:42] Speaker 03: And what it's discussing there, as it admits earlier on, is specifically claim one. [00:07:48] Speaker 03: So under C, claim construction, they say, below we address the party's dispute about the meaning of one phrase in claim one. [00:07:57] Speaker 03: This is on page 12. [00:08:00] Speaker 03: So that's in the middle of page 12. [00:08:02] Speaker 03: The PTAP is very specific. [00:08:04] Speaker 03: They're talking about a phrase in claim one. [00:08:06] Speaker 03: And that's what they're construing, not claim 15. [00:08:09] Speaker 03: And that's important because claim 15 doesn't have, never says decoding, never says, [00:08:15] Speaker 03: has the function of decoding. [00:08:18] Speaker 03: And the language that's actually an issue that the PTAB relied upon is just retrieving. [00:08:23] Speaker 03: It's not decoding. [00:08:25] Speaker 03: And it's not retrieving partially decoded data streams. [00:08:28] Speaker 03: It's just decoding data streams. [00:08:30] Speaker 03: And when you look at the patent, and especially the summary of the patent, you'll see that that makes sense in view of what the patent said the invention was. [00:08:39] Speaker 03: So the summary only refers to decoding or decode in one spot, which is the second sentence of the summary. [00:08:46] Speaker 03: So this is in column number one, starting at line 31. [00:08:52] Speaker 03: So this is the only reference in the summary to this. [00:08:56] Speaker 03: And the sentence, the key part of that sentence is actually the parenthetical. [00:09:00] Speaker 03: because the parenthetical says, which may but need not be partially decoded. [00:09:05] Speaker 03: It's referring to these data streams. [00:09:08] Speaker 03: Claim 15 is the claim where it's not partially decoded. [00:09:13] Speaker 03: So if that language in the summary is to have any meaning, it must mean that claim 15 is not limited in the way that the board found claim 1 was limited. [00:09:24] Speaker 03: But despite that, the board just says, well, for the same reasons as claim one, we find claim 15 doesn't meet this decoding. [00:09:33] Speaker 03: The language is not there. [00:09:34] Speaker 03: It's not in their analysis of claim construction. [00:09:37] Speaker 03: And it runs straight into the summary that says it need not be partially decoded. [00:09:44] Speaker 03: So for claim 15 to have the scope. [00:09:47] Speaker 04: But we don't see anything in the spec that actually makes a comment on the meaning of the term decoder. [00:09:54] Speaker 04: Decoder is the actual term used in claim 15, right? [00:09:59] Speaker 03: Well, Your Honor, it is the term that's used as the top level term. [00:10:03] Speaker 03: So it's important here to note that there is a decoder in claim 15. [00:10:07] Speaker 03: Your honor is right. [00:10:08] Speaker 03: And then it is configured to, and it does a number of things. [00:10:12] Speaker 03: The only thing the board relied on was the very first function that it's configured to. [00:10:17] Speaker 03: Retrieve. [00:10:17] Speaker 03: The retrieve function. [00:10:23] Speaker 00: What do you think is wrong with the board's [00:10:25] Speaker 00: construction of the term decoding. [00:10:31] Speaker 00: You took issue with the board's constructions being too narrow. [00:10:36] Speaker 00: And it struck me distinguishing between error correction and information bits was at least a pretty accurate description of what decoding entails. [00:10:49] Speaker 00: What's missing in your view? [00:10:51] Speaker 03: Well, Your Honor, first of all, I would say that only applies to claim one. [00:10:54] Speaker 03: It does not apply to claim 15, which doesn't have the language of decoding. [00:10:57] Speaker 03: But I'll address your question. [00:10:58] Speaker 00: It doesn't say decoding, but presumably, I think we can infer. [00:11:02] Speaker 00: At least, it's likely that the term decoder is something that, at minimum, does decoding. [00:11:08] Speaker 03: Well, Your Honor, frankly, given the language in the summary, I don't think we can infer that. [00:11:12] Speaker 03: The summary specifically talks about the fact that it need not decode. [00:11:18] Speaker 03: That's in second sentence of the summary. [00:11:21] Speaker 03: It says, which may but need not be partially decoded. [00:11:25] Speaker 03: Partially decoded. [00:11:26] Speaker 03: Right. [00:11:26] Speaker 03: So need not be partially decoded. [00:11:27] Speaker 04: Where in that sentence does it tell us that's how we understand the term decoder? [00:11:33] Speaker 03: Well, Your Honor, that is the only sentence that's referring to the function that the [00:11:39] Speaker 03: board relied upon. [00:11:40] Speaker 03: The board relied upon retrieving data to form a plurality of data streams. [00:11:45] Speaker 03: That's the language the board relied upon. [00:11:47] Speaker 03: And this language goes directly to that portion of claim 15. [00:11:54] Speaker 03: And it says, need not be partially decoded. [00:11:57] Speaker 00: But if a decoder does not need to decode, then what is the definition, in your view, of decoder? [00:12:04] Speaker 03: Your Honor, in claim 15, [00:12:06] Speaker 03: The decoder allows that the detectors, which is, remember, also part of the function in claim 15 ascribed to the decoder, that it can be the detectors which, in the process step, are detected, they are, each of the submodules are, where each error detection submodule is configured to detect whether a portion of the respective received string contains an error. [00:12:32] Speaker 03: The decoding can occur there. [00:12:34] Speaker 04: So it sounds like you're [00:12:36] Speaker 04: position is that the term decoder, as it's used in Claim 15, is defined by the functions recited in the claim itself. [00:12:46] Speaker 03: Yes, Your Honor. [00:12:46] Speaker 03: I mean, it says it's a decoder configured to do one, two, quite a few. [00:12:51] Speaker 03: I think it's eight different functions. [00:12:56] Speaker 04: And so what's not required is [00:12:59] Speaker 04: things that we ordinarily attribute to decoder as a baseline function? [00:13:06] Speaker 03: Well, Your Honor, I certainly would say it's not required by one of the eight steps. [00:13:11] Speaker 03: You don't have to read decoder into every one of the eight steps. [00:13:14] Speaker 03: So it would be improper, especially here where claim one talks about partially decoded data streams and claim 15 just says data streams, to read decoder into the retrieve language to erase that distinction. [00:13:28] Speaker 03: There's a distinction between claim one and claim 15, which the board recognized in its institution decision, but then decided to erase in its final decision. [00:13:38] Speaker 03: And we shouldn't read decoder into every one of these functions in order to erase the distinctions between claim one and claim 15, especially where the summary of the invention says it need not be partially decoded at that stage, that retrieval stage, where we're creating a plurality of data streams. [00:13:55] Speaker 02: Do you believe mere buffering could be decoding? [00:13:58] Speaker 03: Your Honor, for claim one, I believe that's relevant, and I do believe that if you look at the language in the specification, it says that buffering and certain aspects of the decoding are alternatives within this invention. [00:14:17] Speaker 03: So it's unusual, but that is what it says. [00:14:20] Speaker 03: You're talking about column 6? [00:14:21] Speaker 00: Yes. [00:14:22] Speaker 03: Or it uses or, but then later it also uses e.g. [00:14:26] Speaker 03: Two terms that this court has said. [00:14:27] Speaker 03: Column 6 mentions it's one embodiment, right? [00:14:30] Speaker 03: That's right. [00:14:31] Speaker 03: So that's only one embodiment. [00:14:32] Speaker 03: There might even be others. [00:14:33] Speaker 03: So buffering might be one embodiment. [00:14:35] Speaker 03: There might be others as well. [00:14:37] Speaker 03: But that particular embodiment specifically says buffer, deinterleave, [00:14:42] Speaker 03: or perform certain aspects of the decoding process. [00:14:46] Speaker 03: So buffering is an alternative to performing certain aspects of the decoding process. [00:14:50] Speaker 03: And that's consistent with the summary that says, need not be partially decoded. [00:14:55] Speaker 03: Those line up between the summary and that particular discussion of an embodiment. [00:15:00] Speaker 03: I am well into my rebuttal, unless the panel has other questions. [00:15:04] Speaker 04: No, we'll give you minutes for rebuttal because we had that housekeeping issue in the first few minutes, so I'm sure that... Thank you, Your Honor. [00:15:15] Speaker 04: Let's hear from the other side. [00:15:20] Speaker 02: Mayor, please. [00:15:21] Speaker 02: Can you clarify addressing the housekeeping point that the opposing council raised in terms of which claims we would need to address in any decision? [00:15:29] Speaker 01: Absolutely. [00:15:30] Speaker 01: So we agree that there is standing here. [00:15:32] Speaker 01: There is no formal decision or formal stipulation from the district court dismissing with prejudice any of the dependent claims. [00:15:42] Speaker 01: So with respect to the dependent claims, we agree that there is standing. [00:15:46] Speaker 01: With respect to the independent claims, claims 1, 15, and 17, [00:15:51] Speaker 01: Those have been canceled. [00:15:52] Speaker 01: So we believe the appeal with respect to those is moot. [00:15:56] Speaker 01: However, the board's decision regarding claims 1, 15, and 17 is what drives this appeal. [00:16:05] Speaker 01: And so it's still proper to be discussing those. [00:16:09] Speaker 00: Well, but what about any potential collateral estoppel effects of the determination that's now final that claim 15 is [00:16:19] Speaker 00: not valid or at least it's been canceled, it no longer exists. [00:16:25] Speaker 00: How should we look at that question with regard to the viability of claim 16? [00:16:32] Speaker 01: Certainly with respect to those claims, we could not assert those in a district court proceeding. [00:16:36] Speaker 00: Right. [00:16:36] Speaker 00: But doesn't 15, the fact that 15 has been declared invalid, doesn't that affect our analysis of claim 16? [00:16:44] Speaker 00: Nobody talks about this in the briefs, but I'm [00:16:48] Speaker 00: Very interested in hearing what you had to say. [00:16:50] Speaker 01: No, I don't think the cancellation of claim 15 in the separate proceeding affects the analysis here, because what the board was tasked with was to take Keoksia's arguments, consider those arguments, and whether Lee, the reference, meets all of the limitations of claim 15 and claim 16. [00:17:11] Speaker 01: So the fact that the board found that Lee doesn't [00:17:15] Speaker 01: disclose all of those elements is what we should be focused on right now for Claim 16. [00:17:22] Speaker 04: Just curious, in the other IPRs, which ultimately led to Claim 15's cancellation, was Lee the reference that was used? [00:17:32] Speaker 01: Lee was not the reference used in that IPR. [00:17:34] Speaker 04: For Claim 15? [00:17:35] Speaker 01: Correct. [00:17:37] Speaker 04: Okay, just curious, what was the name of the reference? [00:17:40] Speaker 01: You're testing me. [00:17:41] Speaker 01: Okay. [00:17:42] Speaker 01: Not Lee. [00:17:43] Speaker 01: It was not Lee. [00:17:44] Speaker 01: Okay. [00:17:45] Speaker 04: Not Lee. [00:17:46] Speaker 04: Maybe that's all I need to know. [00:17:47] Speaker 01: Yeah, I apologize. [00:17:48] Speaker 01: I can certainly sit down. [00:17:49] Speaker 04: As long as it's not Lee. [00:17:50] Speaker 02: It is not Lee. [00:17:51] Speaker 04: Okay. [00:17:52] Speaker 02: That's fine. [00:17:52] Speaker 02: But just for to put a fine point, can you specify the specific claims that you think we need to have addressed in terms of any decision we're making? [00:18:01] Speaker 02: Absolutely. [00:18:02] Speaker 02: By claim number. [00:18:02] Speaker 02: I just want to make sure I've got the list and see if it's consistent with what opposing counsel says. [00:18:06] Speaker 01: Yes. [00:18:07] Speaker 01: The claims are claims two. [00:18:09] Speaker 01: 10 through 14, claims 16, and claims 23 through 25. [00:18:18] Speaker 04: You're not just claiming any of them, right? [00:18:20] Speaker 01: We are not just claiming any of them. [00:18:22] Speaker 01: No, Your Honor. [00:18:23] Speaker 00: So we could have a situation in which claim 15 has been canceled and held conclusively by the board, by the PTO, to be invalid. [00:18:36] Speaker 00: And yet, we could then rule, nope. [00:18:40] Speaker 00: It's valid. [00:18:41] Speaker 01: We're not asking you to rule that claim 15 is valid. [00:18:44] Speaker 00: But that's the consequence of your argument, right? [00:18:46] Speaker 01: No. [00:18:47] Speaker 01: We're asking you to rule that claim 16 is not invalid on the basis that Keoksia put forward in its position. [00:18:53] Speaker 00: Right. [00:18:53] Speaker 00: But you're not making a separate argument with respect to the feature of claim 16 that was added in the dependent claim. [00:19:00] Speaker 00: You're making an argument which is entirely predicated, as I understand it, on claim 15. [00:19:05] Speaker 01: That's correct, but that's based on what Keoksia chose to appeal in this petition. [00:19:12] Speaker 00: You understand my concern. [00:19:14] Speaker 01: I do understand your concern. [00:19:16] Speaker 00: I'm still not satisfied that we have a good handle on what we should be doing about the fact that this claim, which is the focus of this appeal, is gone. [00:19:29] Speaker 01: I would argue that the claim that we're focused on is not gone. [00:19:31] Speaker 01: I understand that I'm not. [00:19:33] Speaker 01: But it's gone and it's canceled. [00:19:35] Speaker 01: It doesn't exist. [00:19:37] Speaker 01: But claim 16 is not gone and is not canceled, Your Honor. [00:19:42] Speaker 00: OK. [00:19:43] Speaker 04: I guess the idea is the reference or references that were used to teach all of the elements of claim 15 are not here in front of us today. [00:19:53] Speaker 04: So we can't somehow rely on and use those other not leave references in the context of the challenge that we have in front of us today, which is whether the reference is asserted here [00:20:06] Speaker 04: i.e. [00:20:07] Speaker 04: Lee, in fact, has enough to disclose all the elements of claim 15 and, I guess, claim 16. [00:20:14] Speaker 01: Yes, that's exactly correct. [00:20:20] Speaker 02: Could you also address this whole connection, potentially, between decode and decoder? [00:20:26] Speaker 02: Because we've been talking about both claims, 1 and 15. [00:20:28] Speaker 02: I just want to give your take on that in particular. [00:20:31] Speaker 01: Yes. [00:20:31] Speaker 01: So the only issue that is actually in front of this court with respect to decode and decoder is whether the board correctly construed decode, the encoded data. [00:20:43] Speaker 01: That's a term that does not appear in claim 15. [00:20:47] Speaker 01: And counsel from Keoksia says the same thing. [00:20:50] Speaker 01: which means that changing the construction of decode can have no effect on claim 15. [00:20:59] Speaker 01: And all of the arguments that we heard from counsel today with respect to claim 15 and therefore claim 16 are entirely waived. [00:21:06] Speaker 01: These are brand new arguments that appear for the very first time in their reply brief. [00:21:12] Speaker 01: So the court need not reach any of those. [00:21:18] Speaker 00: about the term communicatively coupled between the decoder and the flash memory. [00:21:28] Speaker 00: The board said, nope, not communicatively coupled because there was a buffer in between the flash memory and the decoder. [00:21:38] Speaker 00: Now, why is it not the case that the communicatively coupled can have something [00:21:49] Speaker 00: between two items and they can still be communicatively coupled, whether it's a wire or signal or signal carrying device of any sort. [00:21:59] Speaker 00: What does it matter that it's a buffer? [00:22:02] Speaker 00: I mean, you would agree that if all there was between flash memory and the decoder was a wire, then you would never argue that, well, it's not communicatively coupled. [00:22:11] Speaker 00: Why does the fact that it's a buffer matter? [00:22:13] Speaker 01: So I don't think that the board was actually focused on the term communicatively coupled. [00:22:19] Speaker 01: And I agree that there could be pieces between the flash memory and the decoder. [00:22:25] Speaker 01: And those things could still be. [00:22:26] Speaker 00: Well, that argument was made before the board, at least in the reply brief of what now appellant petitioning, right? [00:22:38] Speaker 00: Certainly. [00:22:40] Speaker 00: And the board effectively rejected that, as I recall. [00:22:43] Speaker 01: I disagree with that. [00:22:45] Speaker 01: I think what the board rejected was that Lee does not retrieve encoded data from flash memory. [00:22:52] Speaker 01: That's different from the communicatively coupled language, because what it requires is a specific component, the decoder, to pull something, specifically the encoded data, from a specific place, the flash memory, and the board found [00:23:09] Speaker 01: that Lee doesn't teach that because in Lee, the decoder only pulls data from the page buffer. [00:23:17] Speaker 01: So it's not pulling data from the right place. [00:23:19] Speaker 00: But if the page buffer is doing nothing except interposing itself between the flash memory and the decoder, then it would seem to me that when the decoder calls for [00:23:31] Speaker 00: information from the flash memory goes through the buffer and into the decoder. [00:23:36] Speaker 00: That seems to me a kind of hyper-technical point, I guess I would say. [00:23:40] Speaker 01: Yeah, so this is an interesting point because actually in Li, there is a whole other component called a channel controller that is actually responsible for pulling data from the flash memory and getting it into the page buffer. [00:23:58] Speaker 01: So it's not the decoder 530 of Lee at all that is responsible for that action. [00:24:04] Speaker 01: And Kyoksia's expert testified to that effect. [00:24:07] Speaker 04: Did the board rely on that? [00:24:08] Speaker 01: The board did not, but it made it. [00:24:10] Speaker 04: My understanding was the board said the problem with the petitioner's argument is that Lee's decoder is not retrieving the encoded data directly from the flash memory. [00:24:23] Speaker 00: Yeah, not very directly. [00:24:25] Speaker 04: It's bolded. [00:24:26] Speaker 04: It's italicized. [00:24:27] Speaker 04: It's quite clear what the reasoning is of the board. [00:24:30] Speaker 04: And so because in its view, [00:24:33] Speaker 04: it's retrieving the data from the page buffer. [00:24:37] Speaker 04: And so there's a failure in their reasoning here. [00:24:40] Speaker 04: And so I think I have the same question as Judge Bryson, which is, where did this directly notion come from? [00:24:48] Speaker 04: If the page buffer really is nothing more than a pass-through kind of a component. [00:24:55] Speaker 01: Well, I think you're correct that the board didn't explicitly reach this question about the channel controllers, the alternative mechanism by which data is retrieved. [00:25:07] Speaker 01: But it made two undisputed factual findings that are very related. [00:25:11] Speaker 01: First, it did make the factual finding that decoder 530 [00:25:15] Speaker 01: doesn't pull data from the flash memory. [00:25:17] Speaker 01: It only pulls from the page buffer. [00:25:19] Speaker 01: And then it also made the factual finding that is undisputed that the page buffer is nothing more than a passive repository. [00:25:27] Speaker 01: So neither of the components that Keoksia pointed to in its petition as potentially, or in its briefing, as potentially being relevant to retrieval of data from flash memory are actually retrieving data from flash memory. [00:25:42] Speaker 01: And that's because in Lee, a separate component does lie. [00:25:45] Speaker 04: It still doesn't quite directly answer my question about where the board got [00:25:53] Speaker 04: the word directly from in terms of adding that to the claim when it comes to a decoder retrieving data from the flat memory. [00:26:03] Speaker 04: And why couldn't you still satisfy the claim if there was some sort of intermediary component, such as something relatively minor, like a buffer? [00:26:19] Speaker 04: in between the flash memory and decoder such that one could still find, yes, the decoder is getting data. [00:26:25] Speaker 04: Where is it getting data from? [00:26:27] Speaker 04: It's really getting it from the flash memory. [00:26:30] Speaker 01: I think if that were the argument in front of the board, then maybe our briefing would have been different and we would have been having a different discussion. [00:26:39] Speaker 04: I guess you would say none of this that I'm asking about is actually contained in the blue brief. [00:26:45] Speaker 01: That's correct. [00:26:46] Speaker 01: And much of this is also not contained [00:26:49] Speaker 01: in Kyoksio's IPR petition. [00:26:52] Speaker 04: Right. [00:26:52] Speaker 04: But I believe petitioners are permitted to respond to claim construction arguments that are raised in the patent owner response. [00:27:00] Speaker 04: And that's really all the petitioner did in its reply, is to say, oh, if the claim really means what the patent owner says, and we disagree with that, well, then here, nevertheless, here's why the leave reference, nevertheless, is retrieving data from the flash memory. [00:27:19] Speaker 01: Certainly, but patent owner didn't present this as a claim construction argument. [00:27:24] Speaker 01: We simply pointed out the predicate that Lee doesn't operate in this way. [00:27:31] Speaker 01: And then petitioners' response was to change the way that it was mapping Lee to the claims. [00:27:39] Speaker 01: And the board found that that was a new argument and declined to consider it. [00:27:50] Speaker 04: I understand your position is, oh, decode, decoder, claim 1, claim 15. [00:27:54] Speaker 04: They're all stand or fall together and can't be separated no matter what. [00:27:59] Speaker 04: But if we could just get to the merits a little bit more about how to understand decoder. [00:28:05] Speaker 04: You heard Mr. Hogg's earlier reference, a sentence, and a summary of the inventions. [00:28:11] Speaker 04: and then refer back to now what the language in claim 15 itself, and then try to draw a connection that when it comes to decoder as used in claim 15, we're not so concerned anymore about distinguishing error correction bits from information bits. [00:28:30] Speaker 04: What we're really caring about is retrieving encoded data [00:28:35] Speaker 04: and then doing the processing steps that are actually recited in the claim. [00:28:38] Speaker 04: So could you respond to that in terms of whether there is any daylight between how to think about decoder in this patent compared to just the term decoding Claymore? [00:28:51] Speaker 01: So I think a decoder, much like the word decode, would have a meaning to a person of ordinary skill in the art. [00:28:59] Speaker 01: And as the board found with respect to decode, [00:29:03] Speaker 01: Decode means more than just buffering. [00:29:07] Speaker 01: It means distinguishing error correction bits from error detection bits. [00:29:12] Speaker 01: And so when we think about a decoder in claim 15, it's also going to perform some of that function. [00:29:18] Speaker 01: That's a necessary part of decoding. [00:29:21] Speaker 01: And if we look at the language in claim 15, some of these other steps [00:29:31] Speaker 01: talk about the decoding process, not using exactly the same language, but for example, processing a different one of the plurality of data streams. [00:29:46] Speaker 01: That processing is also seen in claim six, or in column six where we are talking. [00:29:52] Speaker 04: This is the detection and correction of errors steps. [00:29:57] Speaker 01: Yes. [00:29:57] Speaker 04: That's the kind of processing that claim 15 is talking about. [00:30:00] Speaker 01: Yes. [00:30:01] Speaker 04: not breaking down the data to recover the data from how it was encoded? [00:30:09] Speaker 01: Well, that's a necessary part of the error correction and detection steps, is to reconstitute the data, correlate the correction bits with the detection bits, and only then can you carry on to process it. [00:30:25] Speaker 00: Let me ask you, then, turning back to column six, and in lines whatever it is, 10 through 14, I think, is the key language. [00:30:32] Speaker 00: There's some language later in the column, but that's not as central, I think, to the opponent's argument. [00:30:39] Speaker 00: How do you read, may buffer, interleave, or perform [00:30:46] Speaker 00: certain aspects of the decoding process. [00:30:49] Speaker 00: I take it that you read that not to permit buffering by itself to constitute decoding. [00:30:57] Speaker 00: Is that right? [00:30:58] Speaker 00: And if it's right, how do you square that with the use of the term R in a way that would appear to be in the disjunctive? [00:31:06] Speaker 01: Yeah. [00:31:07] Speaker 01: So I read that as three things that the decoder processor module are capable of doing. [00:31:12] Speaker 01: It's capable of buffering. [00:31:14] Speaker 01: It's capable of deinterleading. [00:31:15] Speaker 01: It's capable of partially decoding. [00:31:18] Speaker 00: Right. [00:31:18] Speaker 00: But it's capable of all three. [00:31:20] Speaker 00: But it need perform, at least if you take the word R in its dejunctive sense, only one of them. [00:31:27] Speaker 00: One of them which, for our present purposes, could be buffering. [00:31:31] Speaker 00: Why is that not? [00:31:33] Speaker 00: the best reading of that language, or do you think that this was simply clumsy language? [00:31:38] Speaker 01: Honestly, I think that this is simply clumsy language. [00:31:41] Speaker 00: I mean, that's a hard sentence to write in an opinion. [00:31:44] Speaker 00: Certainly. [00:31:45] Speaker 00: Just to say that this language can be disregarded because it was clumsy. [00:31:49] Speaker 01: Well, I don't think we need to disregard it because it's clumsy. [00:31:52] Speaker 01: I think the way to consider this is the board found that there is a plain and ordinary meaning of the term decode that does not encompass buffering alone. [00:32:02] Speaker 01: And so then the question is, should we depart from that plain and ordinary meaning that both parties agree on? [00:32:09] Speaker 01: And the only reason that we would depart from it is if there's lexicography. [00:32:13] Speaker 01: There's not lexicography here. [00:32:15] Speaker 01: Kyoksia has never argued that there's lexicography. [00:32:18] Speaker 00: And they even agree that the- I don't know that lexicography requires that you say, we are now going to give you a definition of this term. [00:32:24] Speaker 00: I mean, we've frequently said that, look, there's language in this specification that tells us what this word means. [00:32:31] Speaker 00: You might run into a sentence just like this. [00:32:33] Speaker 00: It says X or Y or Z. And you say, that's pretty clear what the patentee had in mind was it was one of those three. [00:32:41] Speaker 01: But Keopsia agrees that this sentence that we're talking about does not do that. [00:32:47] Speaker 01: It does not define or redefine decoding different from how a person of ordinary skill in the art would consider it. [00:32:55] Speaker 04: Their argument, nevertheless, is that [00:32:57] Speaker 04: Column 6 should channel our thinking into how to understand what a decoder really is for purposes of the claimed invention. [00:33:06] Speaker 01: Sure, but I don't think a single clumsy sentence in a specification can meet the exacting standards of lexicography. [00:33:13] Speaker 01: And I think the next sentence or the next part of the passage, the lower part, shows that all this is doing is [00:33:26] Speaker 01: giving examples of things that a decoder module processor can do. [00:33:31] Speaker 01: And that's entirely consistent with what both parties agree. [00:33:36] Speaker 01: There's no disagreement that buffering could be part of a decoding process. [00:33:40] Speaker 01: It just is not, buffering alone is not sufficient. [00:33:44] Speaker 01: And so there's nothing inconsistent with a buffer or with a decoder module processor [00:33:50] Speaker 01: being capable of doing some buffering. [00:33:53] Speaker 01: And that's all these sentences are saying. [00:33:56] Speaker 02: What is your best support for buffering alone? [00:33:59] Speaker 02: cannot equal decoding. [00:34:02] Speaker 02: What would you point me to as your best support? [00:34:04] Speaker 01: Yeah, I would point to appendix page 14. [00:34:06] Speaker 01: There is testimony of Keoksia's expert that says decode might include buffering, but buffering by itself would not be considered decoding to a person of ordinary skill. [00:34:19] Speaker 01: And also on appendix pages 14 and 15, there's other evidence that the board has marshaled [00:34:26] Speaker 01: that supports that defining decode to include mere buffering would be a departure from the plain and ordinary, meaning that a person of skill would understand. [00:34:37] Speaker 01: But is that all extrinsic support that you're pointing to in the amendment, intrinsic? [00:34:42] Speaker 01: Yes, that's all extrinsic support. [00:34:44] Speaker 01: But this is a factual finding that the board found. [00:34:47] Speaker 04: Well, to put a finer point on Judge Cunningham's question, is there something in the intrinsic evidence, something in the patent that provides some context [00:34:56] Speaker 04: that might guide us away from the appellant's position as to how to best understand this particular passage in column six. [00:35:05] Speaker 01: There isn't a specific example or any specific language in the patent that says this is what the term decode means to a person of skill in this art. [00:35:17] Speaker 01: That's because it's a well-known term that people of skill in this art would understand. [00:35:23] Speaker 02: Recognizing there's no specific language, is there any language you want to point me to in the specification that would help your argument? [00:35:36] Speaker 01: I mean, I think the sentences that we've been talking about are my argument that these are merely examples of things that a decoder module processor are capable of doing. [00:35:48] Speaker 01: One is buffering, which could be part of a decoding process. [00:35:52] Speaker 01: The other are things that could also be part of a decoding process. [00:35:56] Speaker 01: And there's nothing about those sentences that say or provide an example that decoding must be an example of buffering. [00:36:10] Speaker 01: Or buffering alone is an example of decoding. [00:36:16] Speaker 04: OK, thank you very much. [00:36:17] Speaker 01: Thank you. [00:36:19] Speaker 04: Mr. Hawes, you have five minutes. [00:36:26] Speaker 03: I won't tempt fate by saying I won't use it all. [00:36:29] Speaker 03: OK, three points. [00:36:31] Speaker 03: First point, looking at that extrinsic evidence, not only is it extrinsic, but if you look on Appendix Page 14, at the beginning of Dr. Korolek's testimony. [00:36:42] Speaker 03: So this is about 10 lines up. [00:36:45] Speaker 03: It says petitioner's expert Dr. Korlek agrees, aside from the 700 pattern. [00:36:52] Speaker 03: He's talking about he was asked. [00:36:55] Speaker 03: He was asked, ignore the 700 patent. [00:36:58] Speaker 03: Then what does it mean? [00:36:58] Speaker 03: And he says, aside from the 700 patent. [00:37:01] Speaker 03: So the fact that there's no intrinsic evidence that's supporting this, and the extrinsic evidence is specifically, well, aside from that patent, here's what it would mean. [00:37:10] Speaker 03: Under this court's law, you don't go with aside from the patent. [00:37:14] Speaker 03: This court has said the only ordinary meaning that matters is the ordinary meaning in the context of the intrinsic evidence. [00:37:21] Speaker 03: That's true. [00:37:22] Speaker 04: But we've also said many times that when there is a well-established technical definition in the art, then we presume that the claim is using that backdrop, understood definition, unless it's clear that the patent drafters sought to displace that definition [00:37:44] Speaker 04: based on something set in specification. [00:37:47] Speaker 04: And generally, we call that lexicography. [00:37:51] Speaker 04: And I'm hearing that you're not really relying on lexicography per se. [00:37:56] Speaker 04: So in the end, it sounds like you're really counting on this sentence in column six to displace the backdrop understanding of the coder. [00:38:07] Speaker 03: And Your Honor, it isn't a single clumsy sentence. [00:38:10] Speaker 03: I would also point the court in column six to the point. [00:38:15] Speaker 00: Sorry, Your Honor. [00:38:16] Speaker 00: Later on, it says something, but not quite as crisply, I would say. [00:38:20] Speaker 03: Well, it says EG. [00:38:21] Speaker 03: And this court has often said EG is examples. [00:38:24] Speaker 03: It's certainly not an and. [00:38:26] Speaker 03: And it also says et cetera. [00:38:28] Speaker 03: So Your Honor, this is down at, looks like, line around 50. [00:38:32] Speaker 03: You'll see there's a parenthetical. [00:38:34] Speaker 03: It's referring to what's happening. [00:38:36] Speaker 03: to create these data streams, and it says EG. [00:38:40] Speaker 03: So we're talking about examples here. [00:38:42] Speaker 03: For example, buffered, deinterleaved, decoded to some extent, et cetera. [00:38:48] Speaker 03: Examples is not just one clumsy thing at the top of the column. [00:38:52] Speaker 03: We've got it reiterated down here below. [00:38:55] Speaker 03: This court's law talks about OR and EG with the same brush of the pen. [00:38:59] Speaker 03: These are the words used by the folks writing these patent applications to indicate what are examples. [00:39:06] Speaker 03: And believe me, when they want to show entrenchment, they rely on this to say, hey, each of those, that's part of what we've got here. [00:39:12] Speaker 03: The other thing I'll point out is that counsel agreed that there are steps in Claim 15 [00:39:18] Speaker 03: the processing step specifically, performed by the decoder, where there may well be decoding going on. [00:39:24] Speaker 03: And that actually supports the idea that you don't import it into the retrieving step, which is what the board did. [00:39:31] Speaker 03: The board took decoder and said, oh, well, then the retrieving step must include some decoding. [00:39:37] Speaker 03: But we just heard that the processing step, which is one of the things the decoder does in claim 15, [00:39:44] Speaker 03: may well include decoding, or what was discussed as it has to happen, you have to separate these bits to do the detecting that is part of the processing step. [00:39:53] Speaker 03: And what that means is that there is no reason for the board, contrary to the language in the summary, and the language in two spots in column six, to say hey, decoder means that the retrieving language [00:40:05] Speaker 04: I guess that takes us back to what is Lee's page buffer 504 really disclosing. [00:40:13] Speaker 04: I mean, there's really nothing there to suggest that the page buffer is doing some of this well-understood decoding action. [00:40:25] Speaker 03: Well, it goes to the NAND, and it pulls data, and we know it takes one line, and it creates multiple lines. [00:40:33] Speaker 03: That's the retrieving step. [00:40:34] Speaker 03: We did not identify the page buffer for the processing steps. [00:40:37] Speaker 03: The board never reached the processing steps. [00:40:40] Speaker 03: We have no analysis of the board as to whether Lee shows the processing steps or not. [00:40:45] Speaker 03: That's further down in Figure 5B. [00:40:47] Speaker 03: The board never reached it because the board said, oh, well, there's no retrieving of data because for the same reasons as claim one. [00:40:54] Speaker 03: Which makes no sense when claim one talks about a decoding module, talks about the language that the board actually construed, and then the board just applies that to claim 15 where the language is different. [00:41:07] Speaker 04: Would you agree that there is no argument in your blue brief as to the directly construction of claim 15? [00:41:17] Speaker 03: We agree that what happened in reply [00:41:20] Speaker 03: So, yes, I'm giving you yes, and then I'm explaining. [00:41:25] Speaker 03: In our reply at the P tab, we said two things. [00:41:29] Speaker 03: We said, this is not a good claim construction, but even if there's this directly requirement, that would just mean that the page buffer is part of the decoder, and it would still meet all the requirements under this new construction. [00:41:42] Speaker 03: And the problem is that the board just said, well, look at claim one, that doesn't work either. [00:41:48] Speaker 03: with claim one having totally different claim language than claim 15. [00:41:52] Speaker 03: So we focused on that on appeal. [00:41:54] Speaker 03: We did not focus on the claim construction question. [00:41:57] Speaker 03: You're undecided. [00:41:58] Speaker 03: Thank you very much. [00:41:58] Speaker 03: I think we're out of time. [00:42:00] Speaker 03: That's fine. [00:42:00] Speaker 03: Thank you. [00:42:03] Speaker 03: The case is committed.