[00:00:00] Speaker 04:
The first case is case number 24-1426, Universal Electronics Inc.

[00:00:07] Speaker 04:
versus Roku Inc.

[00:00:09] Speaker 04:
Mr. Lucas, you reserve three minutes for rebuttal, is that okay?

[00:00:15] Speaker 04:
You can proceed when ready.

[00:00:17] Speaker 02:
Your Honor, James Lucas on behalf of the UEI, may it please the court

[00:00:22] Speaker 02:
UEI requests that the court reverse the board's conclusion that claims 1 through 11 and 13 through 16 of the 276 patent are obvious based on Hart, Fu, and Rosenberg for two reasons.

[00:00:38] Speaker 02:
The first, probably going to spend most of my time on, is that the board's obviousness conclusion is based on a theory that was raised for the first time by Roku in its reply and in its oral argument.

[00:00:51] Speaker 02:
before the board, but not included in the petition in violation of the Administrative Procedures Act.

[00:00:58] Speaker 03:
What specific theory are you alluding to?

[00:01:01] Speaker 03:
Because it seems to me that the original petition was fairly broad and encompassed pretty much everything that ultimately was at issue.

[00:01:14] Speaker 02:
Right, so I mean, I'm going to get into the details, but specifically, if you look at the petition, all of the argument and the expert evidence relates to when you want to get to the threshold to using Rosenberg's what we call current or ambient or environmental threshold.

[00:01:40] Speaker 02:
combining that and if you see if you look at the petition everything's about there's only two types of thresholds there's predetermined or static and there's ambient or environmental the current threshold where you're taking the the noise level currently okay the entire petitions about that what happened was and you'll see the theories changed over time because

[00:02:08] Speaker 02:
they weren't able to show that the Rosenberg current threshold was captured and set before you got voice and before you got the second noise level.

[00:02:25] Speaker 02:
So that's kind of like the crux

[00:02:28] Speaker 02:
of our position, and I'm going to lay it out.

[00:02:30] Speaker 02:
And the way we know these theories changed is, if you look at the motivations, which I just talked about, that's one of the big reasons.

[00:02:39] Speaker 02:
The motivations in the petition all talk about, look, it's ambient.

[00:02:44] Speaker 02:
You've got to choose ambient, as in Rosenberg.

[00:02:47] Speaker 04:
That's the current- Could you point us to specific JA pages that would help us see where you think there's this proposed change from the petition to the reply?

[00:02:54] Speaker 02:
Sure.

[00:02:55] Speaker 02:
I can do that.

[00:02:57] Speaker 02:
Yes.

[00:03:00] Speaker 02:
So if you look at, I'm looking at the petition here.

[00:03:05] Speaker 02:
This is...

[00:03:07] Speaker 02:
Maybe you can refer to the appendix.

[00:03:09] Speaker 02:
Sure.

[00:03:10] Speaker 02:
Appendix 137, it starts at, and if you look at the bottom, a positive would have been motivated to further modify the combination of heart and foo.

[00:03:18] Speaker 02:
And that's what we're talking about.

[00:03:19] Speaker 02:
We have the heart-foo combination and now we're doing a further modification and we want to add this Rosenberg current or ambient threshold to apply a threshold determined according to an environmental noise level as disclosed by Rosenberg.

[00:03:35] Speaker 02:
You go further down at 138, when they go further and talk about the Rosenberg threshold, the environment in which the device is operating, rather than a predetermined threshold detached from the dynamic operating environment.

[00:03:52] Speaker 02:
Later on, Appendix 138, very, very clear.

[00:03:55] Speaker 02:
Look, there's two thresholds.

[00:03:56] Speaker 02:
That's it.

[00:03:56] Speaker 02:
Their position is there's only two thresholds, preset and dynamically captured.

[00:04:01] Speaker 02:
That's right at the bottom of Appendix 138.

[00:04:04] Speaker 02:
They say there are only two.

[00:04:07] Speaker 02:
Okay.

[00:04:08] Speaker 01:
And your contention is the petition is limited to dynamically and not preset.

[00:04:13] Speaker 01:
Is that what you're saying?

[00:04:14] Speaker 02:
Well, what I'm saying is they never showed that you can use a Rosenberg, a Rosenberg dynamic

[00:04:25] Speaker 02:
beforehand it's all about current it's all they only say that that's current that that that and I'll get it good and further and and so there's never if you look at the claim argument that they said there's only two types of thresholds and in the petition they relied on one

[00:04:41] Speaker 01:
and in the reply and the final written decision, they relied on the other.

[00:04:46] Speaker 01:
Is that the argument?

[00:04:47] Speaker 01:
It's not just that.

[00:04:49] Speaker 01:
Is it at least partly that?

[00:04:50] Speaker 02:
It's part of that because what they do in the reply and in the, I'll get into that, what they do in the reply and the oral argument is they say, we're not using Rosenberg's threshold anymore.

[00:05:01] Speaker 02:
we're using foo's threshold to get the the the earlier threshold set we're setting it we're setting thresholds with foo now in the reply could you also point us to where in the reply we could look at the pages just for completeness yeah can i just can i can i just finish one thought with the petition because sure sure sure with 144 so appendix 144 that's where you get very clear rosenberg's teaching of a noise threshold established using

[00:05:29] Speaker 02:
ambient noise detected in the device's environment.

[00:05:34] Speaker 02:
And then one more spot, I think, that really kind of, so appendix 148.

[00:05:39] Speaker 02:
Accordingly, Rosenberg teaches a dynamic threshold that advances adjust to the device's current environment, okay?

[00:05:47] Speaker 02:
Current, so it's always current.

[00:05:50] Speaker 02:
And for relevance to the claim, that's when,

[00:05:54] Speaker 02:
you know, the voice comes.

[00:05:58] Speaker 02:
You get the voice before the current detection.

[00:06:01] Speaker 02:
So they're saying use Rosenberg.

[00:06:04] Speaker 02:
Now you asked about, Your Honor, and to be clear, it doesn't end there.

[00:06:10] Speaker 02:
If you look at, their expert says the same thing, and I just want to really, before I get into the reply, because I want to show you the two differences, Your Honor, at appendix 1608, 1609,

[00:06:24] Speaker 02:
There are experts very clear that we're using Rosenberg, which is a dynamic threshold, to do the current threshold.

[00:06:32] Speaker 02:
And that's what we're using to set the threshold.

[00:06:35] Speaker 02:
That's also at 1639, depending on 1639.

[00:06:37] Speaker 02:
So there are experts consistent with the petition.

[00:06:41] Speaker 02:
We're using Rosenberg's dynamic.

[00:06:43] Speaker 04:
Given the fact that we've got time limits here, why don't you take us to the reply?

[00:06:46] Speaker 02:
OK, so I'll go to the reply.

[00:06:47] Speaker 02:
And then I also want to talk about the oral argument, but we'll go to the reply first.

[00:06:50] Speaker 04:
Let's go to the reply.

[00:06:51] Speaker 02:
Let's just take it in order, OK?

[00:06:55] Speaker 04:
And show us the part that you think shows that there was a real change here in theory.

[00:07:00] Speaker 02:
Okay, so Appendix 176, they still say Foo's teaching, 176, the petition relies upon Foo's teaching of implementing a threshold for determining when to adjust volume output.

[00:07:15] Speaker 02:
and Rosenberg's teachings of how to set a threshold.

[00:07:18] Speaker 02:
So that's kind of consistent with the petition.

[00:07:21] Speaker 02:
Wait, what page?

[00:07:21] Speaker 04:
Let me just make sure I have the page that you just said.

[00:07:23] Speaker 02:
Can you say it again?

[00:07:25] Speaker 02:
Sure.

[00:07:25] Speaker 02:
Appendix 1716.

[00:07:27] Speaker 01:
So 1716 is the reply, but it's consistent with the petition.

[00:07:30] Speaker 01:
It's consistent.

[00:07:31] Speaker 02:
But they start mischaracterizing their petition.

[00:07:34] Speaker 02:
But it's consistent.

[00:07:35] Speaker 01:
It's consistent.

[00:07:36] Speaker 02:
But then we get into the, let's get into the oral argument.

[00:07:39] Speaker 04:
Wait, no.

[00:07:40] Speaker 04:
Let's stick with the reply.

[00:07:43] Speaker 04:
Stick with the reply and show us where there's an inconsistency between what was in the original petition and what's in the reply.

[00:07:49] Speaker 04:
That's the question I think all three judges want to know the answer to.

[00:07:53] Speaker 02:
So I think, and I think we, it's that they, let me just make sure of that because I want to, parties can articulate a position in a number of different ways.

[00:08:05] Speaker 03:
And the question is whether there was a significant shift, a significant enough shift

[00:08:13] Speaker 03:
in the basis for the petition to warrant taking, you know, the action that you want.

[00:08:21] Speaker 02:
No, I agree with that, Your Honor.

[00:08:22] Speaker 02:
I think what was happening was they were starting to realize that, look, Rosenberg didn't set it, doesn't set it previously, it's only current.

[00:08:31] Speaker 02:
And you could start to see, and so that's what they were doing.

[00:08:34] Speaker 04:
I highly recommend to you, though, give us the pages in the reply.

[00:08:38] Speaker 02:
Right, right, right.

[00:08:38] Speaker 04:
You think show a shift from the petition.

[00:08:40] Speaker 02:
Okay.

[00:08:50] Speaker 02:
I want to make sure I know what we brought it up.

[00:08:55] Speaker 02:
Try to find the pages that.

[00:09:03] Speaker 02:
OK, so I think it's 1721, 1722, and 1723 when they start saying that, look, we weren't just relying on Rosenberg to set the threshold.

[00:09:17] Speaker 02:
So it's 1722.

[00:09:24] Speaker 02:
There was a trial which provides a threshold based on previously received environmental audio signals in view of hearts continuous recording microphone and foos threshold teaching.

[00:09:33] Speaker 02:
So they're starting now.

[00:09:34] Speaker 02:
Now we're talking about who is setting the threshold.

[00:09:37] Speaker 02:
And then again,

[00:09:43] Speaker 02:
Same thing at 1723 in the middle.

[00:09:46] Speaker 02:
The teachings of Rosenberg modified the combination.

[00:09:49] Speaker 02:
So that's where they start going away from saying, oh, it's just Rosenberg to set the threshold.

[00:09:57] Speaker 04:
So now we do have your full list of pages from the reply that you think causes the shift.

[00:10:01] Speaker 04:
Is that correct, counsel?

[00:10:02] Speaker 02:
That's the beginning of the shift.

[00:10:03] Speaker 04:
No, no, wait.

[00:10:04] Speaker 04:
Answer my question.

[00:10:05] Speaker 02:
Is that correct?

[00:10:05] Speaker 02:
That's correct.

[00:10:06] Speaker 02:
That's correct.

[00:10:07] Speaker 02:
Then we get to the hearing where it's even more expressed, explicit.

[00:10:14] Speaker 02:
we see at 2010, as I've explained, we rely on FU for the threshold.

[00:10:23] Speaker 02:
So I think that's pretty clear.

[00:10:26] Speaker 01:
So the inconsistency is that they originally relied on Rosenberg for the threshold and later they rely on FU for the threshold?

[00:10:34] Speaker 01:
Correct.

[00:10:36] Speaker 01:
Are you also saying there's something different about the threshold?

[00:10:40] Speaker 02:
There is a difference because foo is preset.

[00:10:43] Speaker 02:
It's predetermined.

[00:10:44] Speaker 02:
It never captures anything from the environment.

[00:10:46] Speaker 02:
Whereas Rosenberg does current environment.

[00:10:50] Speaker 02:
So foo could never meet the first sound data used to set a threshold from the claim.

[00:11:03] Speaker 02:
That's the issue.

[00:11:04] Speaker 01:
Wasn't the obviousness theory a combination of Fu, Rosenberg, and I think Hart from the beginning and in the end?

[00:11:12] Speaker 02:
That's true, but now we're getting into the motivations.

[00:11:16] Speaker 02:
Remember, Fu is static or predetermined, and Rosenberg is strictly current or ambient.

[00:11:26] Speaker 02:
And all of their motivations talk about you have to only

[00:11:34] Speaker 02:
use use excuse me ambient or current like in Rosenberg and so that's what so and so what happens is you get you get to the board's decision and then the board is really confused and says it and says it's relying on the petition but then start saying you have that the petition or basically combines predetermined with

[00:12:03] Speaker 02:
with what they call predetermined with the current or the ambient of Rosenberg.

[00:12:11] Speaker 02:
So I'll get to that.

[00:12:14] Speaker 02:
And that's, let me show you, let's talk about the opinion here, the decision.

[00:12:22] Speaker 04:
And Council, you're coming into your rebuttal time.

[00:12:24] Speaker 04:
Do you want to talk about any other issues before?

[00:12:27] Speaker 02:
I do want to get into this.

[00:12:30] Speaker 02:
But I think, so if you look at, thank you, Your Honor, Appendix 24, now the board is saying it's predetermined and it's also dynamic, as in Rosenberg, with the predetermined threshold as taught in FU and with establishing such threshold based on the operating environment of a device, as in Rosenberg.

[00:12:50] Speaker 02:
Foo's teaching later on at 24 hour predetermined threshold with Rosenberg's teaching that such a threshold may be determined based on the volume.

[00:12:58] Speaker 02:
So the point here is that now the board is using Foo, which is predetermined, and Rosenberg, which is ambient or

[00:13:13] Speaker 02:
Dynamic.

[00:13:13] Speaker 02:
Dynamic, which I keep forgetting.

[00:13:15] Speaker 02:
Thank you, Your Honor.

[00:13:17] Speaker 02:
And it's combining them when the entire petition was, no, you have to use dynamic.

[00:13:21] Speaker 02:
You don't use predetermined.

[00:13:23] Speaker 02:
And finally, I mean, the inconsistency, like it continues today before this court.

[00:13:29] Speaker 02:
I mean, so if you look now, if you look now at what Roku is saying, is they're actually saying, and I want to just go through it.

[00:13:39] Speaker 02:
First, Roku argued that the predetermined is different than dynamic or current.

[00:13:42] Speaker 02:
and dynamic is better, so use Rosenberg.

[00:13:45] Speaker 02:
Then Roku argued foo sets the threshold or argument.

[00:13:49] Speaker 02:
Then the board found that Roku argued for a predetermined dynamic threshold, the board's decision.

[00:13:54] Speaker 02:
Now we have Roku saying before this court that he argued in the petition for a predetermined dynamic threshold with dynamic data and that all thresholds are predetermined.

[00:14:05] Speaker 04:
You're well into your rebuttal time.

[00:14:06] Speaker 04:
Do you want to reserve the rest or do you want to just keep arguing?

[00:14:09] Speaker 02:
I just, I'm going to stop right here, but I just want to, I want to, I want to point the, the panel to 33, the response brief where now they're saying, Rokri is now saying all thresholds are predetermined in the sense they must set prior to use.

[00:14:22] Speaker 02:
So now it's like further inconsistency that just highlights that the, that the board violated the act.

[00:14:30] Speaker 02:
Thank you, Your Honor.

[00:14:36] Speaker 04:
Council, how do you say your last name?

[00:14:38] Speaker 04:
McEwen.

[00:14:39] Speaker ?:
Okay.

[00:14:39] Speaker 04:
Please step up and proceed.

[00:14:44] Speaker 00:
Good morning, Your Honors.

[00:14:45] Speaker 00:
May it please the Court, Scott McEwen, on behalf of Roe Q, Inc.

[00:14:49] Speaker 00:
Appellant's argument here is with the institution decision, so I would direct your attention to the appendix at 1387.

[00:14:56] Speaker 00:
1387, Your Honor.

[00:15:07] Speaker 00:
So towards the top of that page, and again, this is the basis for the institution, the board explained in that first full paragraph, petitioner argues that the use of a predetermined dynamic threshold paren based on ambient noise is one of two possible options for use as a threshold in the proposed combination of heart and foo.

[00:15:29] Speaker 00:
So the board understood from the beginning what the argument was here, which is,

[00:15:36] Speaker 00:
We relied on Hart for the bulk of the claim features.

[00:15:40] Speaker 00:
What was missing was any discussion of a threshold.

[00:15:43] Speaker 00:
And so Foo teaches the use of a threshold in the same field of endeavor.

[00:15:48] Speaker 00:
What Foo is missing is that its data is predetermined.

[00:15:53] Speaker 00:
In other words, you'll use, for example, 50 decibels all the time.

[00:15:58] Speaker 00:
It doesn't use dynamic data.

[00:16:00] Speaker 00:
So it doesn't change that value from the time of day, for example.

[00:16:05] Speaker 00:
And so what's been argued here really is a sleight of hand to confuse the time of setting the threshold with the data itself.

[00:16:14] Speaker 00:
So when we talk about predetermined data in the context of foo, it's predetermined because you use the same data all of the time.

[00:16:23] Speaker 00:
And we cited to Rosenberg for the proposition that, well, whether you use a static value or a dynamic value,

[00:16:31] Speaker 00:
A dynamic value is known in the art, and so that is the reason we point to Rosenberg.

[00:16:37] Speaker 00:
And that's also in that same paragraph.

[00:16:40] Speaker 00:
Petitioner additionally cites Rosenberg's teaching of a volume threshold determined based on a volume of the ambient signals.

[00:16:48] Speaker 00:
This isn't about timing.

[00:16:50] Speaker 00:
All of Appellant's argument is about timing, and the crux of it is, well, take Rosenberg because they determine their threshold at the time they capture the data.

[00:17:00] Speaker 00:
and bodily incorporated into heart.

[00:17:02] Speaker 00:
And if you do that, you don't have this threshold that exists beforehand.

[00:17:08] Speaker 04:
What is your response to opposing counsel's argument that there was a shift in the position from the petition to the reply?

[00:17:16] Speaker 00:
My response would be that 1387 makes clear what the instituted ground is, that there is a predetermined dynamic threshold.

[00:17:25] Speaker 00:
And if you look at the citations on this page to the petition,

[00:17:29] Speaker 00:
And we can walk through those, for example, the petition at, or excuse me, the appendix at 148 makes clear that we are relying on, and the board cited to this not only in its institution decision, but at the final written decision, you could see there on page appendix 147, excuse me, and carrying over to 148,

[00:17:52] Speaker 00:
It is Fu's setting of the threshold.

[00:17:55] Speaker 00:
Fu teaches the threshold.

[00:17:57] Speaker 00:
We relied on Fu for this idea of, well, if we want to attenuate the volume in one of these systems and Hart doesn't tell us specifics, it's well known to use a threshold.

[00:18:07] Speaker 00:
And Fu teaches that here's this adjustment unit that would provide it that could set the value.

[00:18:13] Speaker 00:
The only thing Fu does not provide is changing the value of the threshold with a dynamic value.

[00:18:20] Speaker 00:
And so for that reason,

[00:18:22] Speaker 00:
… we're citing to Rosenberg.

[00:18:23] Speaker 00:
Nowhere in the petition, nowhere in the board's institution decision or final written decision could there be a ground where only Rosenberg's threshold is used, and not only do we rely on it for data, but somehow we rely on it for the time of setting.

[00:18:40] Speaker 00:
That was never the ground in the petition.

[00:18:43] Speaker 00:
As pointed out in the decision to institute, it was a predetermined dynamic threshold.

[00:18:48] Speaker 00:
That was the ground that was instituted.

[00:18:50] Speaker 00:
The arguments here are really attacking the petition.

[00:18:53] Speaker 00:
The positions never changed on behalf of the petitioner throughout the trial.

[00:19:00] Speaker 00:
It was consistent throughout.

[00:19:01] Speaker 01:
The only inconsistency.

[00:19:02] Speaker 01:
But the oral argument statement, we're only relying on FU or something to that effect at 2010.

[00:19:08] Speaker 00:
So two issues, the oral argument is not part of the trial record, right?

[00:19:12] Speaker 00:
The record was closed at that point, but in any event, what we were saying there is we rely on, just as I said, at Appendix 147, we rely on FU for the general teaching of a threshold and the use of the threshold to compare to the data that's coming in from the microphone.

[00:19:31] Speaker 00:
We modify, we further modify, and I think that was raised

[00:19:35] Speaker 00:
on appellant counsel's opening.

[00:19:39] Speaker 00:
It is the Hart-Fu combination that provides everything, the threshold, but with a static value.

[00:19:45] Speaker 00:
To modify that combination, we are bringing in the concept of you can use a value that changes because Rosenberg teaches that.

[00:19:55] Speaker 00:
If you go back to the petition, for example, you'll see some further explanation of this

[00:20:04] Speaker 00:
for example, at appendix 137.

[00:20:07] Speaker 00:
So we're talking about here, just the Hart-Fu combination.

[00:20:12] Speaker 00:
And you'll see there, towards the middle of the paragraph, there's a statement, adjusting output audio when ambient noise is greater, per end, or less than a predetermined threshold was well known in the art.

[00:20:23] Speaker 00:
And if Posito would have understood that such a method determining when to attenuate output audio, advantageously allows a user to set a threshold at a preferable point

[00:20:35] Speaker 00:
Preferable point relates to timing, so you want to set it at a different time.

[00:20:41] Speaker 00:
And then over on page 30 makes it even clearer towards the bottom of that large paragraph there.

[00:20:48] Speaker 00:
This is especially critical in home entertainment environment where different times of day may provide different levels of noise.

[00:20:55] Speaker 04:
So the time... According to appendix page 138.

[00:20:57] Speaker 00:
Yes, yes.

[00:20:58] Speaker 00:
Sorry, Your Honor.

[00:20:59] Speaker 00:
Appendix 138.

[00:21:00] Speaker 00:
So clearly we're talking about FU is setting this threshold when it makes sense, right at a preferable point in time, and using the dynamic data of Rosenberg.

[00:21:12] Speaker 00:
That's all there is.

[00:21:13] Speaker 01:
I certainly take your point about the oral argument is not the record, but do you, it looks like maybe you do, do you go on at 2011 to further explain what you meant in the petition about FU and Rosenberg?

[00:21:29] Speaker 01:
You pointed out the petition and you're explaining today, but did you also tell the board that?

[00:21:35] Speaker 00:
So at appendix 2011, you're talking about which line here, Your Honor?

[00:21:39] Speaker 01:
Well, you say the one that they called out was we rely on foo for the threshold.

[00:21:43] Speaker 01:
I think this is you speaking, right?

[00:21:45] Speaker 00:
Yes, that's correct.

[00:21:46] Speaker 01:
OK, you definitely said we rely on foo for the threshold.

[00:21:49] Speaker 01:
But then at the top of 2011, it's also undisputed.

[00:21:53] Speaker 01:
Hart doesn't compare a current environmental noise level to a previously captured threshold.

[00:21:57] Speaker 01:
Again, that is foo.

[00:21:59] Speaker 01:
Rosenberg in combination with Hart.

[00:22:02] Speaker 01:
Is that the same point you're making?

[00:22:04] Speaker 00:
Yes, your honor.

[00:22:04] Speaker 00:
That's the same point.

[00:22:06] Speaker 00:
Hart does not provide the threshold.

[00:22:08] Speaker 00:
Foo modifies Hart to provide the threshold again with Appendix 147, that estimation unit that provides that setting.

[00:22:17] Speaker 01:
And do you know if that dispute came up again during the oral hearing?

[00:22:22] Speaker 00:
I can't point you to a page, but the board did ask specifically about, well,

[00:22:29] Speaker 00:
in response to patent owner's argument about this threshold issue.

[00:22:35] Speaker 00:
Well, what about this appendix page 47 where the petition relies on the setting unit?

[00:22:41] Speaker 00:
And so that is in there.

[00:22:42] Speaker 00:
It's not on this particular passage, but it is in there.

[00:22:46] Speaker 04:
Could you point us to where we could find it in the JA?

[00:22:50] Speaker 00:
In the transcript?

[00:22:53] Speaker 00:
Yes.

[00:22:55] Speaker 00:
I don't know that I have that at my fingertips.

[00:22:59] Speaker 00:
But it would be the portion of the transcript where they were talking about the claim chart in the petition.

[00:23:11] Speaker 00:
But again, the arguments come down to arguing with the institution decision itself.

[00:23:18] Speaker 00:
It was clear that the board instituted the ground on a predetermined dynamic threshold.

[00:23:23] Speaker 00:
There's no further questions from me.

[00:23:24] Speaker 00:
I'll cede the remainder of my time.

[00:23:26] Speaker 00:
Thank you.

[00:23:30] Speaker 02:
Just really briefly Her counsel say that it's about data data was never mentioned in the petition Timing does matter the board The board has now held that the there's a sequential order to the claim.

[00:23:48] Speaker 02:
They never appealed that that's an appendix 10 Timing does matter.

[00:23:52] Speaker 02:
I now heard that they are saying it's a predetermined

[00:23:56] Speaker 02:
dynamic threshold, and that just makes no sense and is illogical because they argued that you have to use a dynamic threshold, not a predetermined.

[00:24:06] Speaker 02:
I'm just going to take you to a couple spots really quickly to kind of cap this off.

[00:24:10] Speaker 02:
Appendix 138, there's two options, preset and dynamically captured.

[00:24:14] Speaker 02:
Use the dynamically captured.

[00:24:15] Speaker 02:
Their expert at Appendix 1609,

[00:24:18] Speaker 02:
And I think this is it kind of just sums it up and in your analysis, you propose using Rosenberg's dynamic threshold sent currently in the combination of heart 786 and food, right?

[00:24:31] Speaker 02:
Yes.

[00:24:31] Speaker 02:
And the dynamic threshold is different than a predetermined threshold.

[00:24:35] Speaker 02:
Is that correct?

[00:24:36] Speaker 02:
Yes.

[00:24:38] Speaker 02:
So the idea that

[00:24:41] Speaker 02:
The board was right when it held that the combination includes a predetermined dynamic threshold.

[00:24:47] Speaker 02:
Makes no sense.

[00:24:48] Speaker 02:
Was not argued for in the petition.

[00:24:50] Speaker 02:
It was actually, they actually argued for the opposite.

[00:24:53] Speaker 02:
So I think it's two things.

[00:24:54] Speaker 02:
It's inconsistent with the petition and it's illogical and inconsistent with everything that Roku argued.

[00:25:01] Speaker 02:
Any other questions?

[00:25:04] Speaker 02:
Thank you.

[00:25:04] Speaker 04:
Thank you, Your Honor.

[00:25:06] Speaker 04:
The case is submitted.