[00:00:00] Speaker 01:
Instict Technology Inc.

[00:00:01] Speaker 01:
vs. ITRON Network Solutions 19-1059

[00:00:49] Speaker 01:
Councillor Armand, you've observed five minutes of time for rebuttal.

[00:00:52] Speaker 01:
Yes, five minutes your honour.

[00:00:54] Speaker 01:
Okay, you may proceed.

[00:00:56] Speaker 03:
May it please the court?

[00:00:58] Speaker 03:
The board's decision and the IPRs below should be vacated and remanded based on two issues.

[00:01:04] Speaker 03:
One is a procedural issue and one is a substantive issue.

[00:01:08] Speaker 03:
The first procedural issue is the time bar and the time bar was triggered because

[00:01:15] Speaker 03:
ITRON, which was a time-barred party, was a real party in interest before the IPRs were instituted.

[00:01:23] Speaker 03:
And that's because, before institution, it was a clear beneficiary and it had a pre-existing and established relationship with the petitioner.

[00:01:32] Speaker 02:
And the – but the – in this case, a little bit unlike – was it Selton?

[00:01:39] Speaker 02:
Is that the – no, Power Integrations.

[00:01:40] Speaker 02:
Power Integrations.

[00:01:42] Speaker 02:
The agreement to merge as well as the execution of the agreement so that the closing of the merger both post-dated the institution?

[00:01:56] Speaker 02:
Yes, and Power – It's just that there were discussions beforehand.

[00:01:59] Speaker 03:
In power integrations, the merger was closed four days after institution.

[00:02:06] Speaker 03:
Our facts are different because the merger was announced publicly 10 days after institution and they closed the merger during the IPR proceeding.

[00:02:15] Speaker 03:
So what we had before institution was the Time Bard Party ITRON had approached Petitioner to acquire it before the petitions were even filed.

[00:02:26] Speaker 03:
And then after the petitions were filed, they negotiated an agreement to acquire Petitioner.

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They completed the due diligence during which they presumably learned about

[00:02:36] Speaker 03:
the litigation where these patents were asserted, and the IPRs, and then they made the offer to acquire Petitioner, and ITRON, the Time Bard party, said it was prepared to close the deal.

[00:02:48] Speaker 03:
But then there was a delay of a few weeks during which the board instituted IPR proceedings, and then they publicly announced 10 days later that ITRON was acquiring Petitioner.

[00:03:00] Speaker 02:
So on that sequence of events, obviously, there's a quite large sort of threshold question of whether this was all waived because you did not present it to the board.

[00:03:10] Speaker 02:
Why is this not a good situation for finding waiver?

[00:03:19] Speaker 03:
Because a time bar challenge to the board's jurisdiction is a jurisdictional challenge and is not waivable.

[00:03:27] Speaker 02:
What authority is there for taking the idea of non-wavability of federal court jurisdiction and transposing it into the agency realm where, even if one calls the time bar question a matter of agency jurisdiction?

[00:03:51] Speaker 03:
Well, we do have a number of decisions from this court that have characterized the time bar as jurisdictional, but the waiver is... Right, but I mean, as you know and as the Supreme Court has said, that word has been quite profligate in its use over time.

[00:04:06] Speaker 02:
And also, as you know, the Supreme Court's decision in the City of Arlington

[00:04:12] Speaker 02:
said, we're not really going to make distinctions between aspects of the agency's authority that are jurisdictional and aspects that are not.

[00:04:23] Speaker 03:
So the issue that we have here is whether the time of our argument is waivable.

[00:04:29] Speaker 03:
City of Arlington did not address that issue.

[00:04:33] Speaker 03:
It was concerned with a different issue, which was whether an agency's interpretation of its own jurisdiction should be given Chevron deference.

[00:04:42] Speaker 03:
And we don't have any Chevron deference issues here because the board never considered the time bar and never interpreted it in this appeal.

[00:04:50] Speaker 03:
There's only one case

[00:04:52] Speaker 03:
that I'm aware of in this circuit where this issue of wavability of a jurisdictional bar by the board has come up.

[00:05:00] Speaker 03:
And that's this court's decision in GTNX.

[00:05:03] Speaker 03:
And in that case, they did not look at the Section 315 time bar.

[00:05:08] Speaker 03:
They were looking at the analog to that, which is the Section 325 civil action bar, which uses very similar statutory language.

[00:05:17] Speaker 02:
That's the line in which the board after institution looked at some papers and realized that there was probably a problem here and then, roughly speaking, called in the parties and said to the patent owner, we invite a request for reconsideration of our institution decision.

[00:05:39] Speaker 03:
Correct, and so the allegation or the argument in GTNX was that the civil action bar had been raised untimely.

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And this court found that the civil action bar was jurisdictional and therefore not waivable and did not apply the doctrine of waiver.

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And so based on this court's decision in GTNX, the same rule should apply here for the section 315 time bar.

[00:06:06] Speaker 03:
and that argument is not waivable and may be considered by this court on appeal.

[00:06:10] Speaker 01:
So is it your argument that you can bring up a 315B time bar challenge at any time during the IPR?

[00:06:18] Speaker 03:
Yes.

[00:06:20] Speaker 01:
Doesn't that run contrary to the language of the statute itself?

[00:06:23] Speaker 03:
Well, the board may consider whether there is a time bar issue at any time because the board has discretion to reconsider its time bar or its institution decision at any time.

[00:06:35] Speaker 03:
But what the statute requires is that when the IPR is instituted, you know, in its institution decision, you must consider the time bar.

[00:06:44] Speaker 03:
So the only requirement is to consider it at institution, but of course, often the board revisits their institution decisions during the proceeding.

[00:06:52] Speaker 01:
But under your argument, you don't have to bring it up at all.

[00:06:55] Speaker 01:
You can just bring it up on appeal and say it's jurisdictional.

[00:07:00] Speaker 03:
That's correct.

[00:07:01] Speaker 03:
Because it's not waivable.

[00:07:02] Speaker 03:
It can be brought up for the first time on appeal.

[00:07:04] Speaker 03:
And here, that sure would do away with administrative exhaustion principles on all these kinds of issues, wouldn't it?

[00:07:12] Speaker 03:
Well, we have an interesting scenario here, because we have a time board party that's showing up pre-institution.

[00:07:19] Speaker 03:
And when they showed up pre-institution and were actively attempting to purchase the petitioner, the only parties that were aware of this were petitioner and ITRON.

[00:07:32] Speaker 03:
And it was not publicly announced until 10 days

[00:07:35] Speaker 03:
after institution.

[00:07:37] Speaker 03:
So in this case, there's very good grounds for the board to have considered it even after institution, because no one was aware of it.

[00:07:44] Speaker 01:
So you believe 315B time bar applies when there's a negotiation for a merger?

[00:07:51] Speaker 03:
There wasn't just a negotiation for a merger.

[00:07:53] Speaker 03:
Pre-institution, ITRON had made the offer that was later accepted, 10 days later,

[00:08:02] Speaker 03:
to acquire them and said, we're ready to close this deal.

[00:08:05] Speaker 03:
So the deal was all done except they had to sign the paperwork and do it.

[00:08:09] Speaker 03:
So they had a deal, so – and that was all done for institutions.

[00:08:13] Speaker 01:
Why didn't you bring that up to the attention of the agency?

[00:08:18] Speaker 03:
I do not know why it was not brought up below.

[00:08:23] Speaker 01:
If the parties don't bring it up and they know about it, why should the PTAD be held accountable to do this on their own?

[00:08:31] Speaker 03:
Well, the only party that was aware pre-institution that this merger was in the works and actually had an affirmative obligation to inform the board through its mandatory disclosures

[00:08:42] Speaker 03:
was the petitioner, and they never disclosed it.

[00:08:45] Speaker 03:
They never even disclosed it later after the merger was done, and to this day, we have no explanation why they did it.

[00:08:52] Speaker 01:
Suppose you don't have negotiations.

[00:08:53] Speaker 01:
All you have is a letter of intent or an MOU.

[00:09:00] Speaker 01:
Is that enough to institute the time bar?

[00:09:07] Speaker 03:
You have, in this case, we have an actual deal, an offer that was accepted and is after.

[00:09:12] Speaker 01:
No, I'm talking about this case.

[00:09:13] Speaker 01:
I'm giving you a hypothetical.

[00:09:16] Speaker 01:
Suppose that you don't have negotiations or even an announcement.

[00:09:21] Speaker 01:
All you have is a letter from one company to another one that says something like, let's meet next Wednesday, have lunch, and discuss potential murder.

[00:09:31] Speaker 03:
Is that enough?

[00:09:35] Speaker 03:
I think it depends on the facts and circumstances.

[00:09:38] Speaker 03:
But in this case, we have a much more happened.

[00:09:42] Speaker 03:
They had gone through the process.

[00:09:44] Speaker 03:
They'd completed due diligence.

[00:09:46] Speaker 03:
They had a deal.

[00:09:47] Speaker 03:
The deal was on the table.

[00:09:48] Speaker 03:
And that was the same deal that was accepted after institution.

[00:09:52] Speaker 03:
And there was a gap there.

[00:09:54] Speaker 03:
So the deal was done.

[00:09:57] Speaker 03:
Like, ITRON had an interest.

[00:09:59] Speaker 03:
They were a clear beneficiary.

[00:10:01] Speaker 03:
And they had a relationship because they were plotting to acquire the petitioner.

[00:10:06] Speaker 02:
Can I ask you to make your argument on the merits?

[00:10:10] Speaker 03:
Yes.

[00:10:12] Speaker 03:
So in addition to this procedural issue on the time bar, there's also a separate substantive issue, which is the claim construction error.

[00:10:20] Speaker 03:
The claims 3, 16, 17, and 20 all require a means plus function limitation, wide area network means, which is referred to as one means in the claim.

[00:10:33] Speaker 03:
And it's undisputed this is a means plus function limitation and therefore it needs to be construed according to the statute 112 paragraph 6 which requires the court to identify the function and the corresponding structure in

[00:10:49] Speaker 03:
in the specification.

[00:10:50] Speaker 03:
And here the board didn't do this.

[00:10:52] Speaker 03:
Instead, in the final written decision, they applied the Phillips standard and never identified the corresponding structure.

[00:10:59] Speaker 03:
And the only corresponding structure explicitly linked to that function in the specification was a conventional wand radio.

[00:11:08] Speaker 02:
And the board?

[00:11:09] Speaker 02:
Did the board not make sufficient findings that even accepting that a conventional WAN radio, because you don't make the argument anymore about WAN on a public network, which you did below, but you are not making it here.

[00:11:26] Speaker 02:
Why aren't the findings sufficient to support the finding, I guess, the conclusion that there is such a thing taught in the Breyer Art

[00:11:38] Speaker 03:
well they made no finding that there was a conventional wand radio in the prior art and petitioner conceded never even identified conventional wand radios in the prior art below to the board and we have two different IPRs here there's the IPR with the Mayo and Roach prior art ground petitioners not even disputing on appeal that that prior art includes a

[00:12:04] Speaker 03:
conventional on radio.

[00:12:05] Speaker 03:
So that certainly should be reversed.

[00:12:07] Speaker 03:
And on the other, which is the Argerudas, again, there was no finding.

[00:12:11] Speaker 03:
It was never identified.

[00:12:13] Speaker 03:
So there's no factual finding that could support the board's unpatentability finding.

[00:12:19] Speaker 03:
I'm into my rebuttal unless you have additional questions.

[00:12:23] Speaker 01:
No.

[00:12:23] Speaker 01:
Thank you.

[00:12:24] Speaker 03:
Thank you.

[00:12:48] Speaker 00:
May it please the court.

[00:12:51] Speaker 00:
ETI's two arguments on both the time bar and on the merits of the board's obviousness determination were both waived.

[00:12:58] Speaker 00:
They weren't raised in the proceedings below.

[00:13:01] Speaker 00:
The allegations that Petitioner

[00:13:06] Speaker 00:
in Silver Spring at the time, now ITRON Network Solutions Inc.

[00:13:10] Speaker 00:
concealed the merger is contradicted by the additional materials that ATI submitted into the record on appeal, which shows that ATI counsel was apprised of the merger.

[00:13:20] Speaker 00:
It knew about the merger.

[00:13:21] Speaker 00:
And in fact, INSI or ITRON Network Solutions Inc.

[00:13:26] Speaker 00:
argued to the district court that as a result of the merger, it became a licensee.

[00:13:32] Speaker 00:
The plan

[00:13:34] Speaker 00:
of merger and the agreement that was signed a few days after institution was publicly announced via press release.

[00:13:45] Speaker 01:
You must admit it looks kind of suspicious for the merger to occur in the way it was announced right after the institution and obviously it seems to me that if you're going to have a merger of this size that you're going to be involved in

[00:14:02] Speaker 01:
negotiations leading up to that time before you can make an announcement.

[00:14:08] Speaker 00:
Well, certainly there were negotiations leading up to that point in time.

[00:14:12] Speaker 00:
But as we set forth in our briefing, there were negotiations going on with 22 other companies.

[00:14:17] Speaker 00:
They're anonymized in the 14A disclosures, which we cited too.

[00:14:22] Speaker 00:
But it wasn't as if ITRON, Inc.

[00:14:25] Speaker 00:
and Silver Spring at the time had a pre-existing relationship like we see in the Cisco case, or that it had already been acquired

[00:14:33] Speaker 00:
and the merger had closed prior to institution as we saw in the power integrations case.

[00:14:39] Speaker 00:
In fact, Silver Spring and ITRON Inc.

[00:14:43] Speaker 00:
at the time were competitors.

[00:14:46] Speaker 01:
If we were to adopt a position, wouldn't we be leaving the door open to having companies just wait on an announcement or wait on a merger until

[00:14:56] Speaker 01:
you know, hours or days after institution?

[00:14:58] Speaker 00:
I don't think that's particularly likely, Your Honor.

[00:15:02] Speaker 00:
I think one is that the sort of size of a litigation that a company would be likely to rely on in timing their merger is not likely to be a frequent occurrence.

[00:15:13] Speaker 00:
And moreover, deciding the case on these facts

[00:15:19] Speaker 00:
The negotiations aren't the type that would give rise to a real party in interest.

[00:15:22] Speaker 00:
We're not saying, and our argument isn't, that you have to have a closed merger for a party to become a real party in interest or be in privity with another party.

[00:15:32] Speaker 00:
It's the circumstances, it's the totality of the factual arguments in the RPI determination

[00:15:38] Speaker 00:
under applications in time.

[00:15:41] Speaker 00:
And given the facts of this case, there just isn't any evidence of a real party and interest being created at any point prior to, at the earliest, January 5th, 2018, when the merger actually closed.

[00:15:57] Speaker 01:
As I mentioned, at the time, in the interim between the... Does the merger have to close in order for 350B to apply?

[00:16:03] Speaker 01:
Not necessarily.

[00:16:04] Speaker 01:
So there can be a letter intent?

[00:16:07] Speaker 01:
Would that do it?

[00:16:08] Speaker 00:
It depends on the circumstances and the relationships.

[00:16:12] Speaker 00:
It's hard to answer the hypothetical without the complete set of facts.

[00:16:16] Speaker 00:
But here, and the specific facts of this case, and one that's particularly important, is the relationship between the parties during these negotiations.

[00:16:25] Speaker 00:
They're represented by separate counsel.

[00:16:27] Speaker 00:
They set up clean room procedures.

[00:16:29] Speaker 00:
And I can direct your honors to appendix 6996 and 6997, which is one of the new materials introduced on appeal.

[00:16:37] Speaker 00:
where the parties had cleanroom procedures such that if the merger didn't close, it wouldn't put either company at a competitive disadvantage.

[00:16:48] Speaker 00:
And so that highlights that these are not companies that were informally cozy with one another prior to the merger or prior to the letter of intent or the agreement and plan and merger, which was executed and signed on September 17.

[00:17:02] Speaker 00:
These were competitors, which if the agreement did not close, if the merger did not close on January 5, 2018,

[00:17:10] Speaker 00:
Then in fact, ITRON Inc.

[00:17:12] Speaker 00:
had an interest in Silver Spring not prevailing in the IPRs and losing those IPRs because ITRON Inc.

[00:17:18] Speaker 00:
already had a license.

[00:17:20] Speaker 00:
It doesn't need to prevail in the IPRs for ITRON Inc.

[00:17:24] Speaker 00:
It would prefer that its competitors be subjected to the patents and be sued on them because it's already clear in three.

[00:17:30] Speaker 00:
And so under the facts of this case, the closing of the merger is important given the lack of any

[00:17:39] Speaker 00:
aligned interests prior to the closing of the merger.

[00:17:51] Speaker 00:
was alluded to earlier, the focus and briefing below was on the notion of the WAN means having to communicate over a public network.

[00:17:59] Speaker 02:
Yeah, focus, I think, is probably a pretty good word.

[00:18:01] Speaker 02:
But I'm not sure that a dropping of the focus is a waiver of the, I don't know, the unfocused but nevertheless present second piece of the proposed construction.

[00:18:15] Speaker 00:
I would agree with your honor that ordinarily it might not be.

[00:18:19] Speaker 00:
N. Ray Watts, which appellant site does say that changes in claim scope, which this is, it actually broadens the claim term, can give rise to waiver.

[00:18:30] Speaker 00:
But you're absolutely correct that we were on notice about the argument about conventional land radios.

[00:18:36] Speaker 00:
But we heard some criticism that we didn't make an argument about the argriotus grounds that it disclosed a conventional WAN radio, that the wireless remote metering unit, the WRMU, is a conventional WAN radio, and that the board didn't make any factual findings about that.

[00:18:56] Speaker 00:
And that's because in the proceedings below,

[00:19:00] Speaker 00:
Appellants didn't make any distinction over the prior art based on that element.

[00:19:05] Speaker 00:
The argument with respect to argriotis below and why it purportedly did not render this claim element obvious was that it didn't communicate over a public way.

[00:19:14] Speaker 00:
And so there wasn't an allegation below by the patent owner that

[00:19:20] Speaker 00:
A conventional WAN radio was not disclosed in Argriotis in the form of the WRMU.

[00:19:26] Speaker 02:
Just to be clear, because appeal is limited to claims 3, 16, 17, and 20, if those are invalid under Argriotis, it doesn't matter what happens in the Roach IPR.

[00:19:43] Speaker 00:
That's correct.

[00:19:46] Speaker 00:
That would be dispositive of the issue.

[00:19:48] Speaker 02:
And we put forth in our... There was only one claim different, 23, I think.

[00:19:52] Speaker 00:
Claim three is actually raised in the Argriotis grounds that's not raised in Nelson.

[00:19:57] Speaker 00:
So it's a broader set of claims in Argriotis.

[00:20:00] Speaker 00:
So it would dispose of all the claims in the 1060 appeal dealing with the Nelson, or I'm sorry, I'm getting confused, dealing with the Roach grounds.

[00:20:13] Speaker 00:
In our opposition brief, we also pointed out that even if the court were to be inclined to adopt the new construction proposed by ATI on appeal,

[00:20:28] Speaker 00:
The evidence still supports affirmance on the record, particularly in view of the fact that it was not argued below that Argriotis was missing this WAN means.

[00:20:38] Speaker 00:
And that's in appendix 1152, paragraphs 197 to 202, which correspond to our expert, Dr. Solomon's, opinions talking about the WRMU described in Argriotis, talking about how it uses CDMA communication, communicating over existing cell phone infrastructure

[00:20:58] Speaker 00:
or cell towers, and this corresponds to the conventional CDMA type WAN radio described in the patent at appendix 207, column 5, lines 5 to 15.

[00:21:11] Speaker 00:
This also aligns with

[00:21:13] Speaker 00:
ATI's description of what a conventional WAN radio is, which is a bit unclear from the briefing, but one thing we know is that from Appendix 558, they're radios that communicate over cell towers, existing cellular infrastructure.

[00:21:29] Speaker 00:
That's exactly what Dr. Solomon opined the WRMU and Ardriotis does, and therefore affirmance

[00:21:36] Speaker 00:
even if you get past the waiver point, even if you adopt ATI's construction on appeal, then

[00:21:46] Speaker 00:
affirmance is warranted.

[00:21:47] Speaker 00:
I will say that I don't think you should get to the point of adopting ATI's construction on appeal, even if you move past waiver, because I think if you read the board's decision, it's clear that they did in fact adopt our proposed construction as a means plus function term, where they said the function is transmitting.

[00:22:08] Speaker 00:
and the structure is transmitted.

[00:22:10] Speaker 00:
It is a structure that derives its name from the function that it performs, but there's nothing wrong with that under this court's precedent.

[00:22:21] Speaker 00:
The board, in rendering its decision, started out by articulating petitioner's argument, then patent owner's argument,

[00:22:30] Speaker 00:
And then it rejected patent owner's argument that it was limited to a public WAN or that the only type of structure that could satisfy the WAN means limitation was a conventional WAN radio.

[00:22:42] Speaker 00:
It's certainly one type of structure that can do it.

[00:22:45] Speaker 00:
But the specification itself refers to a WAN means such as a conventional WAN radio.

[00:22:53] Speaker 00:
Elsewhere, the function of transmitting is aligned with a conventional transmitter.

[00:22:59] Speaker 00:
And as a result, the board was just saying, we're rejecting patent owner's argument.

[00:23:03] Speaker 00:
It's not limited to a public WAN.

[00:23:05] Speaker 00:
It's not limited to a conventional WAN radio.

[00:23:09] Speaker 00:
The PTAP didn't suggest that it was departing from its construction in the institution decision.

[00:23:16] Speaker 00:
After ATI didn't challenge the initial construction put forth by Silver Spring, the petitioner, it didn't suggest that it was not construing the term as means plus function.

[00:23:26] Speaker 00:
And it didn't suggest that there was anything different about the construction that had applied previously in granting institution.

[00:23:39] Speaker 00:
Unless your honors have further questions.

[00:23:42] Speaker 01:
Thank you for your argument.

[00:23:44] Speaker 01:
Thank you.

[00:23:53] Speaker 01:
You have a little bit over four minutes of time left.

[00:23:55] Speaker 03:
Thank you, Your Honor.

[00:23:57] Speaker 03:
Just a few points.

[00:23:57] Speaker 03:
First, on the time bar, petitioner has argued that there was no deal.

[00:24:02] Speaker 03:
If you look at appendix 6565, the August 28, 2017 entry, that is where ITRON made the offer that was accepted of $16.25 per share for ITRON.

[00:24:17] Speaker 03:
And that was done a few weeks before institution.

[00:24:20] Speaker 03:
And if you could- I'm sorry.

[00:24:22] Speaker 02:
What was done?

[00:24:22] Speaker 02:
The making of the offer or the acceptance?

[00:24:24] Speaker 03:
They made the offer before institution.

[00:24:27] Speaker 02:
Right.

[00:24:27] Speaker 02:
I guess I wouldn't tend to say that there was a deal until the offer had been accepted.

[00:24:35] Speaker 03:
Well, and then there is this delay.

[00:24:37] Speaker 03:
And then right 10 days after institution, petitioner accepted that offer at $16.25 per share.

[00:24:46] Speaker 03:
And that is in their press release at appendix 68, 880.

[00:24:49] Speaker 03:
So there was an offer.

[00:24:50] Speaker 03:
And all they did was wait until after and ink the deal.

[00:24:55] Speaker 03:
So during Petitioner's argument, they made representations about the status of the relationship between Petitioner and ITRON pre-institution.

[00:25:06] Speaker 03:
We have been afforded no discovery.

[00:25:08] Speaker 03:
And we don't actually know what the relationship was.

[00:25:10] Speaker 03:
We're just learning things from their SEC filings and from what they told the district court.

[00:25:15] Speaker 03:
So this case should go back for the board to,

[00:25:18] Speaker 03:
take a full analysis and get all of the facts about exactly what the relationship was between Petitioner and the time-barred party, ITRON, to determine whether there is a time-bar issue here.

[00:25:29] Speaker 01:
Are you asking us to go outside the record and to use information developed several weeks ago to analyze whether the time-bar existed back in the Petitioner fund?

[00:25:45] Speaker 03:
I am not asking this court to make that decision.

[00:25:47] Speaker 03:
I'm asking this court to remand back to the board to do the analysis.

[00:25:52] Speaker 03:
And we have enough information just from petitioners' admissions in its briefing.

[00:25:57] Speaker 03:
These facts are not disputed.

[00:25:58] Speaker 03:
There appears to be a time bar problem in this case to go back for the board to determine whether it's time barred.

[00:26:05] Speaker 03:
And Council also argued that it had no interest in having Petitioner actually succeed because they were already licensed.

[00:26:16] Speaker 03:
Once they had made that offer and indicated they wanted to close the deal, of course they had an interest in seeing Petitioner succeed because that would impact the value of the company that they were trying to buy.

[00:26:28] Speaker 03:
Turning to the claim construction argument, that argument was not waived as counsel acknowledged they were aware of that argument.

[00:26:36] Speaker 03:
It was presented in our patent owner response at appendix 493.

[00:26:46] Speaker 03:
They also said that WAN means findings should be affirmed on these new grounds and these new arguments that they're making for the first time on appeal.

[00:27:01] Speaker 03:
This court cannot do that under the Administrative Procedures Act because judicial review is confined to the four corners of the board's decision, and the board did not make any determination that our jurutists disclosed a conventional WAN radio.

[00:27:14] Speaker 03:
And authority for that is in power integrations versus least.

[00:27:18] Speaker 02:
Can I ask you this quick question?

[00:27:20] Speaker 02:
My recollection is that you did not really present to the board specific factual contentions that the radio that was in our guillotine was unconventional apart from it didn't work on a public network.

[00:27:39] Speaker 02:
So why would we fault the board for not saying more when you didn't give it anything to respond to on this specific point about conventionality?

[00:27:50] Speaker 03:
It's petitioners' burden to show unpatentability.

[00:27:53] Speaker 03:
And they never identified a conventional radio in Argerutas.

[00:27:56] Speaker 03:
And the only excerpt that the board relied on to show unpatentability is this one section in column three of Argerutas that has no disclosure of hardware.

[00:28:06] Speaker 03:
So I mean, there's just nothing there.

[00:28:09] Speaker 03:
to find that there's a conventional long radio in our Gerutas.

[00:28:14] Speaker 01:
Okay, you're out of time.

[00:28:16] Speaker 01:
Thank you.