[00:00:00] Speaker 03:
Our next case is RF-Cyber Corporation versus the Secretary of Commerce, 2024-1614.

[00:00:09] Speaker 03:
Mr. Cowell.

[00:00:12] Speaker 01:
May I please support Richard Cowell for appellant RF-Cyber?

[00:00:16] Speaker 01:
The issue before the court today is whether the board erred in PTAB proceedings below in allowing Petitioner Apple to change its petition in its reply to point to a different structure as satisfying a claim element.

[00:00:29] Speaker 01:
In this petition, Apple pointed to the operating system of the Booho reference as satisfying the emulator device limitation.

[00:00:40] Speaker 01:
There was an agreed upon assumption that Apple proposed that an emulator device is a hardware device alone or containing software that pretends to be another device or program that other components expect to interact with.

[00:00:53] Speaker 04:
I have a question for you.

[00:00:55] Speaker 04:
On page 8131, I think that's the petition, under the figure it says, a PASIDA would have understood that operating system 314 running on processor 400 is an emulator device because it is a hardware device program that executes NFC applications.

[00:01:16] Speaker 04:
Why isn't that sufficient?

[00:01:20] Speaker 04:
for the board's conclusion here that the petition didn't just point to the operating system 314.

[00:01:27] Speaker 04:
It was pointing to the operating system 314 running on the processor 400.

[00:01:34] Speaker 01:
There's a few reasons for that, Your Honor.

[00:01:35] Speaker 01:
First, that statement itself, I think, illustrates the issue here.

[00:01:40] Speaker 01:
The statement says, the operating system running on processor is an emulator device because it is a hardware device or program that executes NFC applications.

[00:01:50] Speaker 01:
That OR program broadens the agreed upon construction beyond just hardware device.

[00:01:56] Speaker 02:
But it does say running on processor 400 before that.

[00:01:59] Speaker 01:
It does say running on processor 400.

[00:02:02] Speaker 01:
It never says that the processor, however, is the emulator device.

[00:02:09] Speaker 01:
It's the operating system.

[00:02:11] Speaker 01:
That's what they point to.

[00:02:12] Speaker 04:
What standard of review do we apply to determine whether the board erred in its reading of a petition?

[00:02:20] Speaker 01:
Whether the ground is new is de novo.

[00:02:23] Speaker 01:
Whether the board erred in understanding the petition, I believe, is abusive discretion.

[00:02:30] Speaker 02:
Would a skilled artisan know that operating software runs on a processor?

[00:02:35] Speaker 02:
Yes.

[00:02:40] Speaker 01:
The issue, however,

[00:02:49] Speaker 01:
So our cyber sought to dispel any confusion and, in fact, deposed petitioner's expert and asked him flat out, what was the emulator device?

[00:03:00] Speaker 01:
And he stated it was the operating system.

[00:03:02] Speaker 01:
And the question was, is there anything else?

[00:03:05] Speaker 01:
I'm not quoting exactly, but the question was essentially, is there anything else you're identifying as an emulator device?

[00:03:11] Speaker 01:
And he said no.

[00:03:12] Speaker 04:
Didn't he say, without reading my declaration in detail, I think that's what it is?

[00:03:17] Speaker 01:
He said something to that effect.

[00:03:19] Speaker 01:
He had the declaration in front of him.

[00:03:22] Speaker 01:
He was pointed to the exact paragraph which was being discussed.

[00:03:25] Speaker 01:
You can see that at appendix 3092.

[00:03:28] Speaker 01:
And I don't think the expert's lack of familiarity with his own testimony renders his cross-examination testimony irrelevant.

[00:03:39] Speaker 01:
He should have known.

[00:03:40] Speaker 04:
It might not be irrelevant, but it's hard to say it's a full admission, maybe.

[00:03:44] Speaker 04:
I mean, or at least the board could

[00:03:47] Speaker 04:
The question would be whether the board abused its discretion by reading it that way.

[00:03:54] Speaker 01:
I don't even recall if the board relied on that deposition testimony.

[00:03:57] Speaker 01:
I believe the director does in his brief.

[00:04:01] Speaker 04:
What about the next page in the appendix where he says an operating system, as I understand it, is a program that runs on a processor?

[00:04:09] Speaker 01:
That's not in dispute that an operating system runs on a processor.

[00:04:13] Speaker 01:
However, they didn't

[00:04:15] Speaker 01:
Again, Apple didn't point to the processor as the emulator device.

[00:04:18] Speaker 01:
They didn't explain how the processor was emulating anything.

[00:04:22] Speaker 01:
It was the operating system, and indeed the operating system, after it loaded certain applications, they said was emulating.

[00:04:31] Speaker 04:
Did the expert in his declaration refer to both the software and the hardware, that is, the operating system running on the processor 400?

[00:04:41] Speaker 04:
I believe the expert said...

[00:04:43] Speaker 01:
I believe the expert parroted the exact statements from the petition.

[00:04:47] Speaker 01:
So don't say, operating system running on processor.

[00:05:02] Speaker 04:
What about, I think, page 1647, paragraph 86.

[00:05:07] Speaker 04:
It says, I think this is his declaration.

[00:05:10] Speaker 04:
A PASIDA would have understood that processor 400, executing operating system 314, facilitates the emulation functionality discussed above.

[00:05:21] Speaker 04:
And then, thus, a PASIDA would have understood that operating system 314, stored in the memory of processor 400, is an emulator device.

[00:05:31] Speaker 04:
Why isn't that identifying both of them?

[00:05:36] Speaker 01:
Because again, the object of that sentence is the operating system.

[00:05:40] Speaker 01:
It's saying, OK, it's stored in this particular area.

[00:05:44] Speaker 01:
And in fact, it doesn't even explain.

[00:05:46] Speaker 04:
What about the first sentence of paragraph 86?

[00:05:49] Speaker 01:
Right.

[00:05:49] Speaker 01:
It says, in there, it doesn't even explain that entire construction.

[00:06:02] Speaker 01:
It doesn't even explain how the processor in that case is pretending to be another device.

[00:06:08] Speaker 01:
In fact, it says it facilitates the emulation functionality.

[00:06:11] Speaker 01:
Facilitates is a very broad statement.

[00:06:15] Speaker 01:
It just helps or makes it possible.

[00:06:17] Speaker 01:
It's not actually performing that functionality.

[00:06:27] Speaker 01:
When the board allowed Apple to repair its petition on its reply,

[00:06:32] Speaker 01:
it puts our cyber into a bind, as any patent owner is in this case.

[00:06:38] Speaker 01:
The patent owner should be allowed to rely on what's in the petition to craft its arguments.

[00:06:44] Speaker 01:
When on reply, Apple or any petitioner is able to change the structure to which it's pointing for an element, suddenly, first of all, it's crafted its reply to avoid the arguments in the patent owner response.

[00:06:57] Speaker 01:
And then the patent owner is left only with the sir reply to respond.

[00:07:00] Speaker 01:
which is usually under a much shorter deadline and is not, as a matter of the rules, allowed to include further evidence other than a deposition transcript of the expert.

[00:07:11] Speaker 02:
Well, intervene or respond to that by saying that there's authority that allows

[00:07:17] Speaker 02:
the board to permit patent owners to submit expert declarations with their surreplies when a reply allegedly raises a new question.

[00:07:25] Speaker 02:
And they cite Apple versus Messina for that.

[00:07:27] Speaker 02:
And they say that you didn't seek leave to file a declaration and not having done so, you can't now complain that you denied that opportunity.

[00:07:35] Speaker 02:
How do you respond to that?

[00:07:37] Speaker 01:
I think in that case, asking the board to suspend its own rules has to be considered an extraordinary relief.

[00:07:42] Speaker 01:
It's certainly not the ordinary course.

[00:07:45] Speaker 01:
And by requiring a patent order to do that in every case, you're elevating what should be extraordinary relief to the ordinary course of business.

[00:07:52] Speaker 01:
And it does not deal with the fact that the time limit is now severely shorter.

[00:07:59] Speaker 01:
In this case, it was down to 14 days.

[00:08:02] Speaker 01:
And it does not also address the problem with the lack of crystallization of petitioner's theory in its petition.

[00:08:12] Speaker 01:
In other words, petitioner can still

[00:08:15] Speaker 01:
Even if we're allowed to put it into the declaration later, the petitioner can still shift its arguments to avoid the patent owner response, leaving the patent owner to try to address it in the first place in the sir reply under a shortened timeline.

[00:08:28] Speaker 02:
So are you saying that if you are genuinely surprised by what is said in the reply, that there really is no procedural safeguard for you?

[00:08:39] Speaker 01:
I don't believe there's an effective procedural safeguard.

[00:08:43] Speaker 01:
The problem at the issue of this is that by being vague in this petition, the petitioner is allowed then to subtly shift its arguments over to avoid the Patent Owner response.

[00:08:55] Speaker 01:
In this case, by identifying a new structure to meet a claim limitation.

[00:09:07] Speaker 04:
And just to be clear, that new structure, as you call it, is Processor 400?

[00:09:13] Speaker 04:
with the operating system 314.

[00:09:15] Speaker 01:
Correct.

[00:09:20] Speaker 01:
There's no other questions.

[00:09:21] Speaker 03:
We will save you a little bit of time.

[00:09:24] Speaker 01:
Yes, sir.

[00:09:25] Speaker 01:
Thank you.

[00:09:27] Speaker 03:
Mr. Amin.

[00:09:40] Speaker 00:
Good morning, honors, and may it please the court.

[00:09:42] Speaker 00:
In our view, the petition clearly identified operating system 314 running on process of 400 at appendix 131 as being the emulator device.

[00:09:52] Speaker 00:
RF-Cyber acknowledged as much in its preliminary response when it quoted that contention as characterizing what Apple was contending was the emulator device.

[00:10:01] Speaker 00:
And the board's final written decision directly tracks that contention in describing its finding as to the emulator device.

[00:10:09] Speaker 00:
So we see no basis in this record to contend, on fair surprise, nor any reason to think that there was any sort of procedural error in terms of how the board resolved the emulator device limitation.

[00:10:25] Speaker 00:
Unless the court has any further questions for me, we would ask that the court affirm.

[00:10:30] Speaker 00:
I'm happy to see the rest of my time.

[00:10:32] Speaker 03:
No one ever loses points by giving up time.

[00:10:37] Speaker 01:
Thank you, Your Honor.

[00:10:38] Speaker 03:
I will rely on your briefs.

[00:10:41] Speaker 03:
Mr. Powell.

[00:10:49] Speaker 01:
To address the one point that counsel made, the POPR, which he's speaking of, there's no discussion saying, we're our sub is saying, ah, they're saying the processor is the emulator device.

[00:11:02] Speaker 01:
Here's why the processor can't meet that.

[00:11:04] Speaker 01:
What it is is a block quote of the petition.

[00:11:07] Speaker 01:
Nobody's denying that the language operating system running on processor 400 is in the petition.

[00:11:14] Speaker 01:
But the POPR addresses the petition, quotes it, and then presents a different argument, not based on whether it's a hardware device or not.

[00:11:22] Speaker 01:
So I don't think the POPR is relevant to any issue before this court.

[00:11:31] Speaker 01:
The only argument, if the court doesn't have anything, I would ask that the court reverse, as there's no dispute that an operating system alone cannot meet this limitation.

[00:11:38] Speaker 03:
Thank you to both counsel and cases submitted.