[00:00:00] Speaker 03: Second argued case this morning is docket number 24-1483, Viasat versus Western Digital Technologies. [00:00:10] Speaker 00: Thank you, Your Honor. [00:00:11] Speaker 00: My name is Matt Ford. [00:00:12] Speaker 00: I'm counsel for Viasat in this appeal from the PTABS and validation of the 347 patent, specifically Claim 13. [00:00:19] Speaker 00: Claim 13 recites both a decoder and a controller, and it assigns functions to both of them. [00:00:24] Speaker 00: The functions that it assigns to the decoder are to retrieve the encoded data [00:00:29] Speaker 00: in the flash memory and second to correct errors in the retreat data. [00:00:35] Speaker 00: The prior art reference at issue here digs discloses a decoder that does not retrieve the encoded data from flash memory, but only corrects the errors in that data once it's received. [00:00:47] Speaker 00: Western Digital didn't argue below that Digg's decoder could be modified to retrieve data. [00:00:53] Speaker 03: You're referring to ECC Module 125? [00:00:58] Speaker 00: Yes. [00:01:00] Speaker 00: detection and correction module 125 in digs. [00:01:03] Speaker 00: And there was no argument that that ECC module would be modified to retrieve the encoded data from flash memory. [00:01:11] Speaker 00: And there was no argument that a portion of the decoding process occurs outside of that element. [00:01:17] Speaker 03: So my understanding is you [00:01:20] Speaker 03: You agreed that the ECC module, this detection and correction module, is a distinct component from Dix's controller, is that right? [00:01:34] Speaker 03: That's what I saw you say in your brief. [00:01:37] Speaker 00: Yes, that it should be distinct from the controller. [00:01:40] Speaker 03: It's a distinct component. [00:01:41] Speaker 03: And so that led me to think that [00:01:46] Speaker 03: You are agreeing that there can be distinct components inside this box labeled controller 114. [00:01:56] Speaker 00: Yes. [00:01:57] Speaker 00: That is our position that there can be distinct components within that box. [00:02:00] Speaker 03: So then there can be a decoder inside of a controller. [00:02:05] Speaker 00: Yes, we don't dispute that the decoder in DIGS is within the controller in DIGS based on its disclosure. [00:02:13] Speaker 00: But the decoder, the ECC module, is a distinct component from the controller. [00:02:19] Speaker 00: And it's distinct for the reasons laid out by our expert below in his declaration that a controller is generally understood to be a processor that controls the flow of data and other activity in a particular [00:02:33] Speaker 00: system, whereas the decoder is specialized circuitry that detects and corrects errors. [00:02:38] Speaker 03: And you also agree that Diggs's controller 114 is performing not only all of the controller functions recited in your claim, but also all of the decoder functions recited in your claim. [00:02:55] Speaker 00: Yes, to the extent that the [00:02:57] Speaker 00: ECC Detection and Correction module in DIGS is part of the controller. [00:03:01] Speaker 00: The controller is performing the functions that the claims divide between the controller and the decoder. [00:03:07] Speaker 03: And so why is it wrong for the board then to [00:03:13] Speaker 03: recognize that there's clearly some subcomponents inside of Diggs's controller that correspond to and amount to the claimed decoder when we know that the controller, Diggs's controller, has all of these functionalities. [00:03:37] Speaker 00: Because under a proper construction of the claim, the controller and the decoder are distinct components. [00:03:43] Speaker 04: You didn't ask for that construction, right? [00:03:45] Speaker 04: That construction was never asked for to the PTAL. [00:03:47] Speaker 00: Correct. [00:03:48] Speaker 00: The parties did not request a particular construction. [00:03:51] Speaker 03: Why didn't you ask for a claim construction like that? [00:03:56] Speaker 00: Well, we argued instead based on the structural disclosures of the claims that we thought were clear based on the plain language of the claims, that they didn't need a construction [00:04:06] Speaker 00: because they were distinct within the language. [00:04:08] Speaker 00: No party asked for a particular construction. [00:04:11] Speaker 00: It was only when the court, excuse me, the board, construed the claims, excuse me, rendered its obviousness analysis that it defined, as it said, the structure of the claim in 13. [00:04:22] Speaker 04: Are you continuing that the board did some type of implicit claim construction? [00:04:25] Speaker 00: Yes. [00:04:26] Speaker 00: Yes, Your Honor. [00:04:27] Speaker 00: And as this court has said in Google, in Apple, and in HTC Corp, the labels, whether the parties requested a claim construction, [00:04:35] Speaker 00: is not government, doesn't dictate whether a claim construction occurs. [00:04:38] Speaker 03: So what is the board supposed to do as a practical matter? [00:04:41] Speaker 03: They only have one year to get these things done. [00:04:43] Speaker 03: And they see that nobody wants a claim construction. [00:04:47] Speaker 03: So they presume they just need to use the fallback plain and ordinary meaning. [00:04:52] Speaker 03: And then they write a board decision based on that. [00:04:56] Speaker 03: And then a year later, the Federal Circuit tells them, no, even though nobody asked for a claim construction, [00:05:03] Speaker 03: you needed to do a claim, or you did do a claim construction in effect. [00:05:07] Speaker 03: And so now we're going to blame you for it. [00:05:11] Speaker 00: So I don't presume to know how the federal, excuse me, the PTAB should structure the process. [00:05:18] Speaker 00: But here, the PTAB created the issue, the claim construction issue, as part of the obviousness analysis based on the dispute between the parties. [00:05:26] Speaker 00: And once that arises, there's a dispute as to the claim terms that should be resolved. [00:05:30] Speaker 00: But even if we treat this just as obviousness as the question of, did the board reach the right decision with respect to the disclosures in digs, there's no substantial evidence to support that conclusion. [00:05:41] Speaker 00: because there is no disclosure in DIGS that the decoder, the fortune that detects and corrects errors, also retrieves the data. [00:05:48] Speaker 01: Why isn't it reasonable to say that the decoder, or let's just say the ECC number 125 in DIGS, is, why is it not fair to say that that is retrieving data from the storage? [00:06:04] Speaker 01: Because data is coming from storage into the [00:06:10] Speaker 01: 125 decoder. [00:06:12] Speaker 01: Why is that not a form of retrieval? [00:06:15] Speaker 00: I believe the parties, as we've litigated this case, have defined retrieval as effectively a read operation that occurs in the flash memory. [00:06:25] Speaker 00: And a read operation is pulling that data in to the system, as opposed to just receiving the data. [00:06:31] Speaker 00: This is language in the claims both this pattern. [00:06:33] Speaker 01: So you're distinguishing between receipt and retrieval? [00:06:37] Speaker 00: Yes, receipt and retrieval. [00:06:38] Speaker 00: And retrieval here is an active step. [00:06:40] Speaker 00: And the parties don't dispute that the actor in that step is the controller in digs as opposed to the ECC detection and correction module. [00:06:49] Speaker 03: And I suppose the board, in fact, said there's one portion inside of controller 114 that is doing the detection and correction. [00:06:59] Speaker 03: And then there's another portion of controller 114 that's getting the data or retrieving the data. [00:07:06] Speaker 00: Yes. [00:07:06] Speaker 00: And that is what the board said. [00:07:08] Speaker 00: It said explicitly. [00:07:09] Speaker 00: that this is at page 31 of the appendix, that although ECC module 125 handles the decoding and another portion of controller 114 handles data retrieval and goes on to say this division of labor is not inconsistent. [00:07:25] Speaker 00: So that is the factual finding that the board made. [00:07:28] Speaker 00: What it didn't say was that this other component of the controller is part of the decoder. [00:07:33] Speaker 00: It didn't say that. [00:07:34] Speaker 00: And quite frankly, DIGS does not provide a disclosure. [00:07:37] Speaker 03: Well, what if we were to conclude that that's really the best understanding of what the board was doing here, saying there is, in fact, the claim decoder inside of claim 14. [00:07:47] Speaker 03: Why do we know this? [00:07:48] Speaker 03: Because there's a portion ECC 125, and then there's another portion that's retrieving the data, is reading the data from the flash memory. [00:07:56] Speaker 00: that would not rest on substantial evidence saying that that portion that is retrieving the data from the controller, which DIGS defines as a conventional controller, that that is instead part of the decoder, that there's no record evidence in support of that. [00:08:11] Speaker 00: And if the board, that's ultimately why this is a question of plane construction, where if the decoder and the controller need to have a distinct structure of some sort, [00:08:20] Speaker 00: than saying that just anywhere in the control of the function. [00:08:23] Speaker 03: It's unclear to me what distinct structure means, because we know from your patent, and you agreed to this on your blue brief, page 25, that a decoder, as that term is used in the claim, can be made of multiple circuits. [00:08:40] Speaker 03: In other words, the decoder doesn't have to be some [00:08:43] Speaker 03: integrated unitary singular item it could actually be split up into multiple pieces and they don't need to be they could be located in different places and so in a way that's very consistent with the board's thinking here which is there are different portions inside this big box called 114 that [00:09:05] Speaker 03: Diggs chose to label as controller, quote-unquote, but nevertheless those pieces can amount to the claim decoder just as the patent here tells us that a decoder and coder controller, they can all be split up and divided up into multiple pieces. [00:09:23] Speaker 00: So two responses to that. [00:09:24] Speaker 00: The first is whether the decoder can be separated into multiple circuits is different. [00:09:29] Speaker 00: from whether one of those circuits is in the controller in digs. [00:09:33] Speaker 00: So for example, if we look at the box, the ECC Detection and Correction Module, it's a single box in digs. [00:09:39] Speaker 00: If that were comprised of multiple circuits, there's nothing wrong with that. [00:09:42] Speaker 00: That is the disclosure of the 347 patent, that that decoder can consist of multiple circuits. [00:09:50] Speaker 00: And the difference is saying that any of that circuitry is within the controller. [00:09:55] Speaker 00: There's no disclosure in digs that that would be the case. [00:09:58] Speaker 00: that the retrieval of data from the controller is associated with the decoder. [00:10:02] Speaker 00: The second response is that that's really the corollary to the plane construction argument. [00:10:07] Speaker 00: If you say that the function, the decoder is effectively the function that you find in the prior art. [00:10:13] Speaker 00: then you have read, or the board has, read that distinction between the controller and the decoder out of the claims. [00:10:19] Speaker 00: And effectively said, whatever performs these functions is that recited element. [00:10:25] Speaker 01: That is- So what's wrong with that? [00:10:28] Speaker 01: I mean, we're dealing with computers here where there is no little box, or typically at least, no little box somewhere in the computer that does this function, and another little box over here that does a different function. [00:10:40] Speaker 01: The patent even suggests that these functions and the physical elements that perform these functions can be intermingled. [00:10:50] Speaker 01: They can be done by one physical element or many. [00:10:53] Speaker 01: Why isn't that a way that the patentee is telling us these boxes that we have on pieces of paper didn't demonstrate ideationally the meaning of different components has nothing to do with the way that these things can't actually operate? [00:11:11] Speaker 00: I would respond in a few ways. [00:11:13] Speaker 00: The first is, in terms of what the patent tells us, we have the figures that identify these as separate components. [00:11:20] Speaker 00: And apart from that, you have the description of the boxes. [00:11:24] Speaker 00: We're talking about two boxes. [00:11:25] Speaker 00: We are. [00:11:25] Speaker 03: One saying controller and one saying decoder. [00:11:28] Speaker 00: Yes. [00:11:29] Speaker 00: And the point is well taken in terms of boxes and the complexity of the subject matter. [00:11:32] Speaker 00: But if you look at the figures, the data flow, which is what is described in the claims, the data flow has [00:11:40] Speaker 00: data and parity bits, which is the data and the encoding, going to the decoder. [00:11:45] Speaker 00: It is not going through the controller. [00:11:46] Speaker 00: It's not passing through anything else other than going directly to the decoder. [00:11:53] Speaker 00: So admittedly, the reality will be more complex. [00:11:57] Speaker 00: But there's no analogous disclosure in digs, which is what we're looking at. [00:12:01] Speaker 00: For a matter of infringement, it may be different. [00:12:02] Speaker 00: But for digs, there's no disclosure that that is the flow of data, how it is moving. [00:12:07] Speaker 00: Instead, the data is flowing to a general controller that handles the operations for many components and ultimately going down to the ECC Detection and Correction Module, whereas we submit the claims require that data flow to go directly into or go to the error decoder in this case. [00:12:27] Speaker 00: And so I appreciate that the complexity that the court has pointed out. [00:12:32] Speaker 00: But the disclosure in digs, we have to accept it at the level that we receive that disclosure. [00:12:37] Speaker 00: And it's not sufficient to provide that obvious sense of this claim. [00:12:42] Speaker 03: So just real quickly, what is it in the claim that demands the kind of distinctness that you would like us to believe as to the controller vis-a-vis the decoder? [00:12:58] Speaker 00: So it begins with the presumption that the courts articulated in HTC and Google and Apple that the use of different language to define different structures connotes that they're distinct. [00:13:08] Speaker 00: It's just a presumption. [00:13:10] Speaker 03: And if you look at the claims and you look at the... You're not arguing that, oh, there's a particular component or subcomponents inside of Diggs's controller 114 that [00:13:23] Speaker 03: the petitioner is trying to use for double duty like it's trying to be used both as Contributing to the controller functions as and also contributing to the decoder functions You're not making that argument, right? [00:13:39] Speaker 00: Well, I think if I if I understand the question correctly the controller what the petitioner has said is The disclosure and digs is the controller that discloses both the controller in the claim and the decoder in the claim [00:13:53] Speaker 00: And that failure to differentiate between what the controller is doing, the non-ECC detection portion, and the ECC detection portion, erases the structure that's laid out in Plan 13. [00:14:06] Speaker 01: Well, the controller presumably performs a potpourri of functions. [00:14:11] Speaker 01: And so it's just, as I look at it, it seems like controller is just a grab bag. [00:14:17] Speaker 01: It does this. [00:14:18] Speaker 01: It does that. [00:14:19] Speaker 01: It's in control. [00:14:20] Speaker 01: And when something needs to be done, the controller steps in. [00:14:23] Speaker 01: One of the things that needs to be done is receipt or retrieval. [00:14:29] Speaker 01: Retrieval. [00:14:30] Speaker 01: And why is it not reasonable to say that the decoder function is being performed with respect to retrieval by something in the controller, which is absolutely indistinguishable from drawing the little box a little more broadly and writing the word retrieval in the second part of that box that you've just added. [00:14:52] Speaker 01: It seems to be just not really what real life really entails here. [00:15:02] Speaker 01: I'm bothered by that. [00:15:04] Speaker 00: With permission, can I address Judge Breslin, please? [00:15:07] Speaker 00: Yes, please. [00:15:08] Speaker 00: I think, again, as I said earlier, we have to look at the disclosures that are in digs versus the example that you cite, which would be more of the complicated world of infringement. [00:15:19] Speaker 00: And here, we have a decoder as an understood [00:15:22] Speaker 00: term in the art, it's defined, it's not defined, but it's described in the patent with respect to the functions that it performs. [00:15:29] Speaker 00: And throughout the disclosures in the patents, the decoder is retrieving the data from flash memory, not the controller, which the patent distinguishes. [00:15:37] Speaker 00: To the extent that the controller in the patent does anything, it is to assign the portions of the decoder that retrieve data from the flash. [00:15:46] Speaker 00: There's no comparable disclosure in digs of that type of structure, and to your point, [00:15:51] Speaker 00: you know, couldn't we draw a different box in order to have this fall within the claim? [00:15:57] Speaker 00: That's certainly not the case that the petitioner brought. [00:16:00] Speaker 00: That's not the arguments that they need. [00:16:01] Speaker 01: But if we did, this is an obvious miscase, right? [00:16:04] Speaker 01: Yes. [00:16:04] Speaker 01: So to the extent that if we drew an extra box, or at least an extension of the current 125 box, and added retrieval there, how different is that? [00:16:17] Speaker 01: Isn't that an obvious extension of Diggs? [00:16:20] Speaker 00: There is no support in the record for that extension of DIGS, for that conclusion that the, quote, conventional controller in DIGS, because that's how it's described, would have that portion of the decoder such that you could draw that box. [00:16:33] Speaker 00: There's no evidence of that in the record. [00:16:35] Speaker 00: And so to some extent, I understand [00:16:37] Speaker 00: what you're saying, that it's simply not the case that the petitioner has tried here. [00:16:41] Speaker 00: And we think that there would be good reasons why you would not do that. [00:16:44] Speaker 00: You would not draw that box based on the disclosures in DIGS. [00:16:48] Speaker 01: I'm well... I'm sorry. [00:16:52] Speaker 01: I want to pursue that last point. [00:16:54] Speaker 01: Why would that not be a very natural thing to assume that... I mean, would a computer scientist not look at the DIGS diagram and realize it doesn't matter [00:17:07] Speaker 01: that there is that extra box or not. [00:17:10] Speaker 01: It's still the same invention, right? [00:17:13] Speaker 00: There has been no opinion from a person of ordinary still in the art as to that. [00:17:16] Speaker 00: And to the who cares point, which I think you're getting at, it's a different architecture to say we have a general controller that's going to be pulling data from Flash in addition to all the other functions that it's doing versus having the decoder, the portion that detects and corrects errors, directly pull that or pull that data in directly or indirectly. [00:17:37] Speaker 00: And that's a different architectural decision. [00:17:39] Speaker 00: I'm not a person of skill in the art, and I can't tell you, I can't opine on that. [00:17:43] Speaker 00: But the record was never developed below as to that point. [00:17:47] Speaker 04: Is part of your argument just a, what am I going to call it, physically separate argument? [00:17:52] Speaker 04: No. [00:17:52] Speaker 04: So you're not making that up? [00:17:54] Speaker 00: No, we're not. [00:17:54] Speaker 00: No. [00:17:54] Speaker 00: That was, no, I believe that was in the response, [00:17:58] Speaker 00: petitioners brief below, but that's not the argument that we're making. [00:18:02] Speaker 00: There is physically separate limitations in the disclosure as well as in related families. [00:18:08] Speaker 00: But we're not saying that the decoder and the controller have to be physically separate from each other. [00:18:13] Speaker 03: Right. [00:18:13] Speaker 03: You use the term conceptually distinct. [00:18:17] Speaker 00: Well, I believe we're responding to either conceptually or [00:18:21] Speaker 00: technologically distinct. [00:18:22] Speaker 01: What does that mean, though? [00:18:23] Speaker 01: What does technologically distinct mean as opposed to conceptually distinct? [00:18:28] Speaker 01: Because I don't think conceptually distinct is going to help you much. [00:18:31] Speaker 01: Maybe technologically distinct does. [00:18:34] Speaker 01: What does it mean in your view? [00:18:35] Speaker 00: So let me explain by reference to the background in appendix 365 to 67, as well as 1122 to 23, where there's an overview of what ECC is. [00:18:48] Speaker 00: It's well understood in the art. [00:18:49] Speaker 00: That's not in dispute. [00:18:50] Speaker 00: And it's basically math. [00:18:51] Speaker 00: It's a form of logarithmic assessment of whether a one should be a zero or vice versa. [00:18:56] Speaker 00: To do that, you need either specialized functions, specialized circuitry. [00:19:02] Speaker 00: It is a specific act that the decoder is performing in identifying the ones that should be zeros and vice versa. [00:19:08] Speaker 00: And so that process is distinct, whether it is implemented through code that does that. [00:19:13] Speaker 00: It's a very slow way to do it. [00:19:15] Speaker 00: Or whether it's implemented through specialized circuitry that's tailor-built to do that as fast as possible. [00:19:20] Speaker 00: So there is a technological distinction between that portion, I guess, conceptually, you would say, but then into the technology of that portion that's detecting and correcting errors by applying these algorithms versus the controller, which is just air traffic control, effectively, at least in the context of DIGS. [00:19:39] Speaker 03: OK. [00:19:40] Speaker 03: Let's hear from you. [00:19:40] Speaker 00: Thank you. [00:19:41] Speaker 03: We'll make sure you get a little bit of time for rebuttal. [00:19:44] Speaker 03: Thank you. [00:19:47] Speaker 03: Mr. Baroker. [00:19:48] Speaker 02: Thank you. [00:19:49] Speaker 02: May it please the court, Brian Barocha for Western Digital. [00:19:52] Speaker 02: I guess I want to start with the idea that this appeal was premised upon their argument that the board engaged in an implicit claim interpretation. [00:20:01] Speaker 02: And that's the premise of their entire argument. [00:20:03] Speaker 02: If they can't convince this court that there was an implicit claim construction, as I read the brief, they don't argue that there's a lack of substantial evidence under the plain, ordinary meaning. [00:20:13] Speaker 02: They must convince the court that there was an implicit claim construction, and there was not one. [00:20:17] Speaker 02: If you read the passages of the appendix with a court that the board goes through its analysis, it's clearly just trying to apply the claims, their plain, ordinary meaning, what a decoder is, defined in the terms of this claim, and the controller defined in the terms of this claim, and compare that to the digs disclosure. [00:20:37] Speaker 02: That's the analysis that's on appendix page 31. [00:20:40] Speaker 02: And in the decoder limitation. [00:20:42] Speaker 03: In 831, they also talked a little bit about this division of labor thing, where it's OK for the claim decoder to be maybe all over the place. [00:20:55] Speaker 03: And so once they said that, maybe that's a particular conception of what's called for the claim. [00:21:04] Speaker 02: That wasn't the argument that they were challenging as being the implicit claim construction, though. [00:21:10] Speaker 02: allegedly implicit claim construction, was this idea that the decoder and the controller had to be distinct. [00:21:17] Speaker 02: That's the premise that they argued. [00:21:19] Speaker 02: This portion you're talking about, the board's saying, and the decoder can be comprised of multiple parts. [00:21:25] Speaker 02: And they point to the patent specification for that. [00:21:27] Speaker 02: That's a different point. [00:21:29] Speaker 02: They need to establish the decoder and the controller have to be distinct. [00:21:33] Speaker 02: And under the case law, they just cannot do that. [00:21:38] Speaker 01: to say that they can't show that the board's claim construction is wrong. [00:21:46] Speaker 01: I mean, it seems to me that all they have to do, and maybe this is overly simplified, but it strikes me that all they have to do in order to turn a factual case into a claim construction case is to say something about the structure that we're dealing with. [00:22:03] Speaker 01: They could say, for example, that the decoder has to be green. [00:22:07] Speaker 01: in order to satisfy the, you know, to be prior art that satisfies the requirements. [00:22:15] Speaker 01: And the board would say, of course not. [00:22:16] Speaker 01: It doesn't have to be green. [00:22:17] Speaker 01: Haven't they just done a claim construction? [00:22:20] Speaker 01: Implicit or explicit. [00:22:22] Speaker 01: So it seems to me that's this case. [00:22:24] Speaker 01: They're saying these things have to be distinct. [00:22:27] Speaker 01: The board says, no, they don't. [00:22:28] Speaker 01: Hasn't the board done claim construction at that point? [00:22:31] Speaker 01: I'm not sure it ultimately matters all that much. [00:22:34] Speaker 01: At least for precedent purposes, it seems to me that's claim construction, isn't it? [00:22:38] Speaker 02: I don't think so, because that would be true in every single case that comes on appeal. [00:22:42] Speaker 01: Every single case in which somebody makes a contention that the patent requires X, and there's a dispute about whether it requires that. [00:22:52] Speaker 01: But that's what claim construction is all about, is it not? [00:22:55] Speaker 02: Well, in this particular case, that's not the way this issue was framed. [00:22:58] Speaker 02: The issue was framed, we presented in the petition that this element satisfies the decoder. [00:23:03] Speaker 02: They said it did not. [00:23:05] Speaker 02: It wasn't that we were arguing that a decoder excludes something or includes something. [00:23:10] Speaker 02: We were merely applying what a decoder was to the prior art. [00:23:13] Speaker 02: That's application. [00:23:15] Speaker 02: That's step two of the invalidity analysis, the first step being claim construction, the second step being comparing it to the prior art. [00:23:22] Speaker 02: If every time somebody says the claim element isn't met, you're going to have a lot of implied claim construction cases from the board because [00:23:30] Speaker 02: that they like the anytime you lose, you want a better standard of review. [00:23:35] Speaker 02: And there are many cases from this court which you found there's no implicit claim construction where all the board was doing was comparing the claims as written to the prior. [00:23:43] Speaker 02: Even though the party, of course, is saying, well, the prior either does or doesn't satisfy the limitation, that's not always necessarily implicit claim construction. [00:23:52] Speaker 02: But to get to the second point, even if there was a claim construction here, it's absolutely the correct one for all the reasons your honor's questions have raised. [00:24:00] Speaker 02: This patent specification very clearly in the 347 patent, it's at column three, which is in appendix page 45. [00:24:10] Speaker 02: The important portion is from 33 to 47. [00:24:13] Speaker 02: It gives four different examples of the way in which all these components, the decoder, the controller, and the encoder, can all be either on a single circuit. [00:24:23] Speaker 02: They can be firmware within a processor, or they can even be functions on a processor. [00:24:29] Speaker 02: So if they're just functions on a processor, what that tells you is that a decoder and a controller in the context of this patent largely is functional language. [00:24:37] Speaker 02: And all you need to do is find that the function is met in some box. [00:24:42] Speaker 02: And that's what the board did. [00:24:43] Speaker 02: It found the box controller, as Judge Chen, your question elicited. [00:24:47] Speaker 03: But I'm a little concerned you're going too far in that you're turning [00:24:54] Speaker 03: a product claim, a system claim, into a pure functional claim. [00:24:59] Speaker 03: You know, they did in the end use terms like decoder and control, and then contend that there has to be some distinctness between the two items, and we can't just blur them all together into some big mash. [00:25:19] Speaker 03: And so their argument really boils down to when you look at [00:25:23] Speaker 03: Diggs's controller, 114, you see a very distinct component called ECC module 125. [00:25:34] Speaker 03: And so then they're saying what you're doing is then fishing around somewhere else inside big box 114 to find the portion of it that retrieves data. [00:25:48] Speaker 03: And then you're then electing to grab that and then [00:25:53] Speaker 03: and then connect it to ECC module 125, and then declare, game over, we have your claim decoder. [00:26:01] Speaker 03: And so in that way, there's an element of randomness to your theory in picking and choosing what you want inside the big box 113 to amount to the claim decoder. [00:26:16] Speaker 02: Well, Your Honor, if that would be true, if there were anything else in this claim that tells us what defines a decoder, and there's not. [00:26:23] Speaker 02: In this particular claim, 13, there's two things that have to be true for it to be a decoder. [00:26:29] Speaker 02: It has to do two steps. [00:26:30] Speaker 02: It has to do the first step, which is the retrieval of data, and it has to then correct the data. [00:26:35] Speaker 02: And that's what the board pointed to. [00:26:36] Speaker 02: It said the combination of a portion of 114, which does the retrieval, plus 125 together would be viewed as a person of skill in the art [00:26:45] Speaker 02: as a decoder. [00:26:47] Speaker 02: That's the language in appendix page 31. [00:26:49] Speaker 02: And then what's left over from the controller is what the board is, I think, pointing to fairly as satisfying the controller limitations in claim 13. [00:26:58] Speaker 02: All the other things, of course, modified in view of Chang, as the court did. [00:27:03] Speaker 02: But there's no real dispute about that. [00:27:05] Speaker 02: So it has done, even if there has to be some distinctness, if the court finds, yes, there's some distinctness required, we haven't overcome the [00:27:15] Speaker 02: the case law that says there's a presumption of distinctness, even based on this patent specification, which tells you that all these functions can be in a single chip. [00:27:25] Speaker 02: Even if that's true, the board's decision still finds distinctness by separating out a portion of 114 with 125 and saying that's the decoder, and then saying whatever is left, that's the control. [00:27:39] Speaker 02: In any way you turn, Your Honor, I think there's infirmance here, because either there's no implicit interpretation, which we argue is true. [00:27:47] Speaker 02: If there is, it's the correct interpretation, which allows there to be overlap between the decoder and the controller. [00:27:56] Speaker 02: But if there does have to be distinctness, the way the board wrote their opinion, there is distinctness between the different components. [00:28:01] Speaker 03: When you say overlap between the controller and decoder, just so I understand it, are you suggesting that they're inside of Diggs's controller 114? [00:28:11] Speaker 03: You are relying on some of the subcomponents in there twice? [00:28:15] Speaker 03: No. [00:28:16] Speaker 03: Some subcomponents contributing to both of the decoder and the controller as claimed? [00:28:22] Speaker 02: Yeah, I think when I said overlap, that was a misstatement. [00:28:24] Speaker 02: What I meant to say was that they [00:28:26] Speaker 02: co-located on the same structure, and that's what you see in DICS. [00:28:31] Speaker 02: DICS chose to draw its box 114, very big. [00:28:34] Speaker 02: There's a lot of things in 114, including that other box 124, which is a whole bunch of other functions that the controller can achieve. [00:28:42] Speaker 02: There's discussion in the patent specification about a bunch of other things that the controller can do. [00:28:46] Speaker 02: And all of those, some of which don't have their own box, to Judge Bryson's question, some of them don't have their own box. [00:28:52] Speaker 02: But they're all doing that in the controller, [00:28:54] Speaker 02: And what the board did was to view that as being two parts of the same whole. [00:29:02] Speaker 01: You alluded a little while ago to the, I don't know if it's a presumption or if it's that strong, but the line of cases that says that if you have two separate identified entities, the assumption is that they have to be distinct or separate, whichever word you want to choose. [00:29:24] Speaker 01: And you say, well, linear technology is an example of a case that cuts the other way. [00:29:31] Speaker 01: I think you said that the Court has consistently declined to construe claims in the computer setting pursuant to the presumption line of cases. [00:29:42] Speaker 01: And the only case I saw aside was linear. [00:29:44] Speaker 01: So they've been consistent in the sense that they haven't deviated from that case. [00:29:48] Speaker 01: But other than that, are there any other cases that [00:29:51] Speaker 01: give us any insight into what is required to overcome the presumption or implication? [00:29:58] Speaker 02: Yeah, I think Beckton calls it an implication, but in later cases, they've called it presumption, whichever one you want to call it. [00:30:04] Speaker 01: OK, you start the inquiry by assuming that that's going to be the case, and then you look for something that tells you it's not. [00:30:10] Speaker 01: So what else should we be looking at other than the language of linear? [00:30:16] Speaker 02: I think what the test has laid out in those cases is that you look to see whether there is an example in the patent specification where the two elements of the claim can be co-located or can be part of the same structure. [00:30:32] Speaker 02: Because that's what the holding of the linear technologies case was, that the two different circuits, you just look to see if the functions are achieved. [00:30:41] Speaker 02: And so, and that's what we see here with this language in appendix page 45, that column three. [00:30:49] Speaker 01: This is the column three language, yeah, A6. [00:30:51] Speaker 01: Correct. [00:30:51] Speaker 02: The A6, and then the bottom part of that language is even stronger, which the very last sentence talks about the fact that each of these functions can be on a single processor. [00:31:00] Speaker 02: So not just on the same circuit. [00:31:02] Speaker 02: They can be software that's on the same processor. [00:31:04] Speaker 02: So if you view it that way, they're teaching people a skill, and they're not just a coder and encoder and controller boxes. [00:31:11] Speaker 02: can be even just software on a single microprocessor. [00:31:13] Speaker 01: This is lines 44 through 47 on column three. [00:31:16] Speaker 01: Is that what you're calling this? [00:31:19] Speaker 01: Yes. [00:31:19] Speaker 02: So the very last sentence to start the functions of. [00:31:22] Speaker 02: Right. [00:31:22] Speaker 02: I got it. [00:31:23] Speaker 02: I mean, so that paragraph lays out, one, it can be all in the same ASIC. [00:31:28] Speaker 02: Two, they can be on the same processing unit on a single. [00:31:32] Speaker 03: All instructions on the same memory. [00:31:34] Speaker 02: Yeah. [00:31:34] Speaker 02: And then the last portion there is all of these instructions can be in a memory on a single computer. [00:31:40] Speaker 02: And so that, I think, is the language that would overcome this presumption that's required when you have different elements that, yes, you give them different meaning, but then can they be, do they have to be physically or distinct structures, which is what that test lays out. [00:31:56] Speaker 02: And the answer to that in light of this passage is no. [00:31:59] Speaker 02: And maybe we shouldn't have said consistently linear technologies is the only case that we found. [00:32:04] Speaker 02: We haven't found any other cases in the computer art like this. [00:32:09] Speaker 02: But there's even cases not in the computer, like the PAL case from this court, where there were two separate physical structures in a device, a cutting box, and a dust collection structure in this court found those could be the actual same structure because the pad specification there said they could be the same structure. [00:32:27] Speaker 02: So if there's language in the spec, it tells you they can be in the same processor like we have here. [00:32:33] Speaker 02: Like in PAL, the cutting box is the same structure. [00:32:36] Speaker 02: It should overcome any presumption. [00:32:38] Speaker 02: of distinctness based on there being different elements. [00:32:43] Speaker 02: If Your Honors don't have any other questions, then I'll... Okay. [00:32:46] Speaker 02: Thank you. [00:32:47] Speaker 02: ...save my time. [00:32:47] Speaker 02: Thank you. [00:32:49] Speaker 03: Let's give Mr. Ford two minutes. [00:32:52] Speaker 03: Two minutes. [00:32:54] Speaker 00: Thank you, Your Honor. [00:32:55] Speaker 00: I'd like to just address a few points that my friend made very briefly. [00:32:59] Speaker 00: The first is that [00:33:01] Speaker 00: If we're looking for a computer case, HTC Corp is instructive in that setting. [00:33:07] Speaker 00: It deals with telecommunication system in which messages were transmitted. [00:33:11] Speaker 00: It's not exactly the same as a computer case, but it is, for all intents and purposes, as close as we're going to get in this court's case law. [00:33:19] Speaker 00: And that case is instructive because it finds this distinction between the diverting unit and the controlling entity, which is similar to a controller, [00:33:29] Speaker 00: within the language of the claims, applies that presumption, and says, where in the spec does it disabuse or does it overcome that presumption? [00:33:37] Speaker 00: And did not find an instance of the same structure performing both of the recited functions within the claim. [00:33:44] Speaker 00: It's very similar to what we have here. [00:33:45] Speaker 00: It's very far afield from Bechtin and the mechanical arts. [00:33:50] Speaker 00: And it provides some guidance as to how that distinction can be carried out. [00:33:53] Speaker 03: I think your last point will have to be to answer for column three. [00:33:57] Speaker 00: Answer for, so certainly. [00:33:59] Speaker 00: Column three, this goes back to the discussion that I was having with Judge Bryce in a minute ago. [00:34:06] Speaker 00: The fact that you have all of these functions defined in code does not mean that they're all the same. [00:34:14] Speaker 00: So if you have a, the function as we discussed for detecting and correcting errors, and it's purely a matter of software, and it's code, and it's stored in the same chip presumably, [00:34:24] Speaker 00: there still is distinction among the functions that are described in the claim. [00:34:28] Speaker 00: There is a portion of that code that handles decoding, that looks and applies the math that we discussed earlier and the algorithm to identify the ones that should be zeros and vice versa. [00:34:39] Speaker 00: So the fact that they can be implemented in software doesn't mean that there's no distinction between the controller and the decoder in this instance. [00:34:48] Speaker 00: That distinction would be something that a person of ordinary skill in the art would have to look for. [00:34:52] Speaker 00: As it's germane here, there's no discussion of that distinction whatsoever in DICS. [00:34:58] Speaker 01: Other than a difference in function, how would that distinction manifest itself in the equipment itself? [00:35:07] Speaker 00: In the equipment itself physically, you would have, and this is our expert at 1138, 39 of the appendix. [00:35:14] Speaker 00: Generally, when it's put in circuits, an error detection correction, a decoder, is specialized circuitry. [00:35:20] Speaker 00: A computer is a general processor. [00:35:22] Speaker 00: And so you're going to have specific circuitry that will flip the ones and zeros as is appropriate that is distinct from the general processor that is the controller. [00:35:32] Speaker 01: But if you had something like a function such as retrieval of the stream of information and parity bits, how would you be able to say structurally or even [00:35:48] Speaker 01: conceptually that that is or isn't part of the decoder. [00:35:53] Speaker 00: That is a question for a person of ordinary skill. [00:35:55] Speaker 00: And the art that I would submit is on the infringement side, looking to see within the system. [00:36:00] Speaker 03: Or the substantial evidence side for purposes of invalidity. [00:36:03] Speaker 00: But if it's substantial evidence for purposes of invalidity, there is no disclosure within DIGS that the portion that [00:36:11] Speaker 00: detects and corrects errors, retrieves the data. [00:36:14] Speaker 03: We have disclosure from your patent, though, that the functions of each unit may be implemented in whole or in part with instructions embodied in a memory. [00:36:22] Speaker 00: Yes, and if that was what Diggs had disclosed, some difference in the instructions, [00:36:28] Speaker 00: That would be a different disclosure than what we're addressing. [00:36:31] Speaker 03: I guess my point goes to the relative demand needed for distinctness between all these different claim elements when we know that the patent contemplates all of these different units can just be implemented via instructions embodied in a memory. [00:36:55] Speaker 00: If I understand what you're saying, the distinctiveness would be among the instructions. [00:37:00] Speaker 00: There would be distinct instructions associated with the decoder that is separate from, or in the case of the patent, the controller that reads the data over from flash memory. [00:37:12] Speaker 00: So that distinctiveness [00:37:13] Speaker 00: Again, it would be a question for a personal skill in the art. [00:37:16] Speaker 00: And I'm over my time, and thank you for your time. [00:37:18] Speaker 01: Let me just, if I could explain one more question. [00:37:20] Speaker 01: Oh, please. [00:37:21] Speaker 01: Yes. [00:37:22] Speaker 01: So what is your answer to Mr. Baroker's answer to my example of the green encoder? [00:37:30] Speaker 01: He says that if my admittedly simple-minded type distinction between implicit claim construction and not is accepted, then virtually every time there's a dispute, [00:37:44] Speaker 01: it will come out as be requiring at least an implicit claim construction. [00:37:53] Speaker 01: What is your answer to that? [00:37:54] Speaker 00: Well, I don't think that's necessarily the case in every case. [00:37:59] Speaker 01: I can say that here the board said... How would I be able to tell the difference, I guess, between one in which that is required and one in which that is not required so much as has happened in effect without perhaps anybody recognizing it? [00:38:14] Speaker 00: I think this court has answered that question in HTC, which says you look at the effect of the decision, whether it's labeled obviousness, whether it's labeled anticipation. [00:38:25] Speaker 00: If the effect of the decision is to define the scope and boundaries and meaning of the claims, then that's claim construction. [00:38:34] Speaker 00: That has occurred. [00:38:35] Speaker 00: Here, we have the board saying explicitly [00:38:38] Speaker 00: that it's comparing the structure of Dix, and it says that that, quote, fits comfortably within the structure defined by claim 13. [00:38:45] Speaker 00: So I don't know the edge case, necessarily, for drawing the line. [00:38:49] Speaker 00: I can't say here that it is the finding by the board that it is examining the structure of the claims and comparing that to Dix. [00:38:57] Speaker 00: Thank you. [00:38:58] Speaker 00: Thank you. [00:38:59] Speaker 03: Case is submitted.