[00:00:00] Speaker 02: 19-1061, we have the same council arguing here before us. [00:00:06] Speaker 02: I'm going to ask that barring any questions that my colleagues have, additional questions regarding 315B, that issue that has been briefed. [00:00:17] Speaker 02: Unless you have something new to add that we just move on to the other issues. [00:00:21] Speaker 02: I think we heard some robust arguments from both parties and I think that may be enough now. [00:00:28] Speaker 02: My colleagues may want to ask additional questions, or you may have something new and different. [00:00:33] Speaker 02: Otherwise, let's move on to the other issue. [00:00:43] Speaker 01: All right. [00:00:44] Speaker 01: Thank you, Your Honor. [00:00:45] Speaker 01: You're correct. [00:00:45] Speaker 01: The time-bar arguments are the same, so I'm going to move to the substance. [00:00:48] Speaker 02: Okay. [00:00:48] Speaker 02: Thank you. [00:00:49] Speaker 01: So for this appeal, we're dealing with the child patent, the 841 patent. [00:00:54] Speaker 01: And in addition to the procedural argument of the time bar, we do have the additional substantive arguments. [00:00:59] Speaker 01: In this IPR, there are three grounds on which the board found unpatentability. [00:01:04] Speaker 01: There was the NETCOM anticipation ground. [00:01:06] Speaker 01: The board's finding lacked substantial evidence because there was no board finding that the NETCOM reference actually disclosed CDMA technology. [00:01:16] Speaker 01: And they instead resorted to obviousness in an attempt to fill in the gap in that reference. [00:01:21] Speaker 01: And that was error and that unpatentability funding should be reversed. [00:01:27] Speaker 01: The second ground was anticipation based on gastionitis. [00:01:32] Speaker 01: And that, there's no substantial evidence showing anticipation because the board erred in mapping the identical structure, which was the remote station on both the control and relay, which were separate elements in claim eight of the 841 patent. [00:01:49] Speaker 01: And so because of that, that unpatentability finding should also be reversed. [00:01:55] Speaker 01: The third ground was the Nelson and Roach obviousness combination. [00:02:01] Speaker 01: There there were two issues first. [00:02:03] Speaker 01: There is no substantial evidence Supporting a motivation to combine those references The court the board made no factual findings which they are required to do to show a motivation to combine instead They did essentially a book report summary of petitioners attorney argument and found that that had rational underpinning without actually making a finding [00:02:26] Speaker 01: that there was reason to combine those references to one of skill in the art. [00:02:33] Speaker 01: And then they made a very similar error as with gastonitis, and they mapped the same EMR structure on two separate elements of the claim. [00:02:41] Speaker 01: the meter and the relay. [00:02:44] Speaker 01: And unless you have further questions. [00:02:45] Speaker 03: Well, can I just ask, do I understand, am I remembering right, that the dispute about NETCOM is whether when the board credited [00:02:59] Speaker 03: it trans experts testimony to the effect that the net com reference was in fact referring to frequency hopping cdma that that the board said that's enough for anticipation and [00:03:20] Speaker 03: And there's no contrary expert testimony. [00:03:23] Speaker 03: And you think that that's inappropriate, that that effectively turns it into an obviousness inquiry? [00:03:30] Speaker 01: Yeah. [00:03:30] Speaker 01: The problem is that NETCOM does not have CDMA technology. [00:03:35] Speaker 01: It's using a conventional radio frequency point-to-point communication, which makes sense because it's an old reference and it predates CDMA. [00:03:44] Speaker 01: So the problem was it's just not there. [00:03:50] Speaker 03: But tell me, am I remembering incorrectly that their experts said, I read this actually to be a reference to, what is it, FH CDMA? [00:04:02] Speaker 03: Is that frequency hopping? [00:04:03] Speaker 01: He offered that testimony, but his testimony, if you read it, is all conclusory. [00:04:08] Speaker 01: There's no citation. [00:04:09] Speaker 01: So he just says, it says this, and that means CDMA. [00:04:13] Speaker 01: And we know from the TQ Delta decision that a conclusory, unsupported [00:04:18] Speaker 01: opinion of an expert cannot actually provide substantial evidence that You know the reference discloses the limitation, so that's the issue Any further questions, thank you, okay, thank you I [00:04:48] Speaker 00: I'm going to please the court. [00:04:50] Speaker 00: I want to touch on one minor thing on the time bar before moving on, and that was counsel's comment that they were afforded no discovery. [00:04:58] Speaker 00: And I just want to make clear that's because it wasn't requested for at no point in the IPR proceedings, even after I personally informed counsel for ATI [00:05:08] Speaker 00: who at the time was the same council that represented ATI in the litigation against ITRON Inc. [00:05:14] Speaker 00: in 2010 and 2011 that gave rise to the purported time bar, did they say, hey, we want to understand a little bit more about the relationship between the parties, we want to seek discovery, and they just didn't raise that issue below. [00:05:29] Speaker 00: Turning to the merits of the three grounds dealing with a single claim, [00:05:34] Speaker 00: If the court affirms on any one of these grounds, that disposes of the dispute between the parties. [00:05:40] Speaker 00: It's all on claim eight, the only claim that was asserted in the litigation. [00:05:45] Speaker 00: With respect to the first grounds dealing with NETCOM, Your Honor was exactly right that [00:05:51] Speaker 00: Dr. Solomon's opinion was saying, look, I'm explaining the reference. [00:05:56] Speaker 00: I'm saying what a person of ordinary skill in the art would understand this disclosure in the NETCOM paper to be. [00:06:03] Speaker 00: And that corresponds to FHCDMA. [00:06:07] Speaker 00: It certainly does not. [00:06:08] Speaker 00: There's no dispute. [00:06:09] Speaker 00: It doesn't use the acronym CDMA. [00:06:12] Speaker 00: But as Dr. Solomon pointed out, CDMA was not something new when ATI's patents were filed. [00:06:19] Speaker 02: Was that rebutted? [00:06:20] Speaker 02: Was any of Dr. Solomon's opinion rebutted? [00:06:25] Speaker 00: It was not. [00:06:26] Speaker 00: And in fact, the only discussion from ATI's expert, who's also the inventor of the patent, is that Appendix 2180, paragraph 57, in which his rebuttal focuses solely on the fact that NETCOM does not disclose commercial DS CDMA or direct sequence CDMA. [00:06:46] Speaker 00: He does not challenge Dr. Solomon's opinion that a person of ordinary skill in the art would understand that reference to be teaching FHCDMA, nor was that probed at all in Dr. Solomon's deposition. [00:07:00] Speaker 00: So Dr. Solomon walks through at appendix 878 through 880. [00:07:08] Speaker 00: In those paragraphs, he explains what FH CDMA compared to direct sequence CDMA are. [00:07:22] Speaker 00: And that's his discussion of the difference between those technologies with respect to the reference particularly [00:07:39] Speaker 00: This is at appendix 893 to appendix 896, dealing with the element labeled as 8.3.1 in the appendix. [00:07:56] Speaker 00: Paragraphs 165 to 176, and specifically paragraph 168, Dr. Solomon, based on his discussion above, opines that [00:08:08] Speaker 00: a person, or actually it's the discussion below, opines that a person of ordinary skill in the art would recognize that the radio communication... And in the reference itself, that's at 934, the left-hand column, right smack in the middle. [00:08:24] Speaker 00: I'm sorry, I didn't catch you. [00:08:25] Speaker 03: And in the reference itself, that's at page 934 of the appendix in the left-hand column, right? [00:08:33] Speaker 03: Each radio access is 240 channels over the 902928 megahertz band using a programmable pseudorandom pattern. [00:08:42] Speaker 03: makes a network highly immune to interference since radios will dynamically hop over any unusable channel, isn't that? [00:08:49] Speaker 03: That's what paragraph 169 is referring to. [00:08:51] Speaker 00: That's right. [00:08:52] Speaker 00: And the dispute is certainly that's what Dr. Solomon's relying on in these paragraphs to say, yes, you'd understand this is frequency hopping. [00:09:00] Speaker 00: They're each assigned a unique address. [00:09:02] Speaker 00: And that's essentially dividing the channel by this frequency hopping code, which is what frequency hopping CDMA is. [00:09:09] Speaker 00: The dispute between the parties, if you read this reference, it certainly discloses that. [00:09:13] Speaker 00: It doesn't use the word CDMA. [00:09:15] Speaker 00: It doesn't say it communicates by frequency hopping CDMA. [00:09:20] Speaker 00: As I understood counsel's argument, it was that this, in fact, is not frequency hopping CDMA. [00:09:27] Speaker 00: But there's no evidence in the record to contradict Dr. Solomon's opinion. [00:09:31] Speaker 00: And keep in mind, he was characterized as a CDMA wizard by ATI's counsel at oral argument. [00:09:40] Speaker 00: And there's nothing contradicting his opinion. [00:09:42] Speaker 03: Well, maybe for a CDMA wizard, everything looks like CDMA. [00:09:47] Speaker 00: He specifically opined from the perspective of one of ordinary skill in the art. [00:09:51] Speaker 00: And as a result, there's no testimony rebutting his opinion from that perspective that FHCDMA is, in fact, disclosed expressly [00:10:01] Speaker 00: in the Netcom reference. [00:10:02] Speaker 00: And so therefore, there's substantial evidence supporting the board's final written decision on those grounds. [00:10:08] Speaker 00: With respect to Gastoniotis, again, it's an anticipation reference. [00:10:13] Speaker 00: And the argument is that the remote control station disclosed in Gastoniotis cannot be both [00:10:22] Speaker 00: the claimed relay and the claimed control. [00:10:25] Speaker 00: And the claim is set up so that you have a control communicating through a relay, which communicates with a meter and back and forth, using CDMA at some point in the path. [00:10:39] Speaker 00: Our argument is not, and was not below, as the board recognized, that a single remote station constitutes both the control and the relay. [00:10:50] Speaker 00: Our argument was that Gastoniotis expressly describes multiple remote control stations, daisy change, such that one serves as the control, which Gastoniotis describes. [00:11:03] Speaker 00: And then at appendix 968, column 4, lines 32 to 42, [00:11:09] Speaker 00: Gasconiotis says data obtained by one remote station can be communicated to a central location using the other remote stations as a relay. [00:11:19] Speaker 00: And so Gasconiotis expressly teaches that the infrastructure and the system used to communicate from the meter to the control station can have multiple remote stations in between the [00:11:32] Speaker 00: sort of end terminal remote control station that function as a relay. [00:11:37] Speaker 00: And so our argument is not that one box, so to speak, is satisfying two claim elements. [00:11:45] Speaker 00: It's that there are separate claim elements, and the board recognized that that was our argument and rejected the same argument that ATI is making now at appendix 2.3.5. [00:11:58] Speaker 00: With respect to [00:12:00] Speaker 00: The third grounds, Nelson and Roach, there's a similar attack on that combination on the grounds that what's called the EMR in Nelson is serving as both the relay and control. [00:12:13] Speaker 00: Our response to that is the same as it is with respect to Gastoniotis. [00:12:17] Speaker 00: The pictures in Nelson that we included in our briefing at appendix [00:12:23] Speaker 00: 1018 and figures 15 through 17 in that Nelson reference specifically show the daisy chain I just described. [00:12:32] Speaker 00: The primary challenge to the Nelson and Roach obviousness grounds is one of [00:12:39] Speaker 00: an allegation that there was conclusory testimony and that the board didn't make sufficient factual determinations on motivations combined. [00:12:46] Speaker 00: Again, we have unrebutted expert testimony at appendix 912 to 16, paragraphs 231 to 241 from Dr. Solomon, opining on why a person of ordinary skill in the art at the time of the invention [00:13:01] Speaker 00: would have taken the system in Nelson and used the CDMA teaching from Roach and applied that to the system in Nelson. [00:13:09] Speaker 00: And that's unrebutted. [00:13:12] Speaker 00: Council referred to the recent TQ Delta decision indicating that the board cannot rely on conclusory expert testimony. [00:13:20] Speaker 00: Here it's robust expert testimony that the board considered in detail and adopted. [00:13:26] Speaker 00: as its own. [00:13:28] Speaker 00: It is not conclusory. [00:13:29] Speaker 00: I think if you take a look at paragraphs 231 to 241, again that starts at appendix 912, you'll see that Dr. Solomon set forth in detail why one of the ordinary skill in the art would have been motivated to do the proposed combination. [00:13:44] Speaker 00: So with that, unless there are additional questions, I'll waive the rest of my time. [00:14:08] Speaker 01: I'll address each of the three grounds. [00:14:10] Speaker 01: So briefly, NETCOM does not disclose CDMA. [00:14:16] Speaker 01: If you look at Appendix 934, it's not there. [00:14:19] Speaker 01: They talk about these radio frequency communications. [00:14:23] Speaker 01: If you look at the expert testimony that [00:14:27] Speaker 01: petitioner is relying on to fill in the gap at appendix site eight ninety three eight ninety six It's entirely conclusory. [00:14:37] Speaker 01: There's no analysis, and there is no support so [00:14:42] Speaker 01: The petitioner has the burden on this. [00:14:46] Speaker 01: So if they don't meet their burden, it is not incumbent upon us to present competing expert testimony on this point. [00:14:53] Speaker 01: And they have not met their burden to show that NETCOM either expressly or inherently disclosed CDMA. [00:14:59] Speaker 01: So turning to the second round, gastonitis. [00:15:06] Speaker 01: Claim 8 requires three separate elements. [00:15:10] Speaker 01: There is the utility meter. [00:15:12] Speaker 01: There is the relay that communicates the metering data back to a control where it is read. [00:15:20] Speaker 01: And the purpose of the system is to eliminate the need for human meter readers and make this a fully automated system. [00:15:26] Speaker 01: here the issue is that they are mapping the remote station as both the relay the communicator and the end that's actually collecting all of the data and if you look at gastonitis appendix 968 at column [00:15:45] Speaker 01: four lines twenty-one through twenty-three what gastonitis teaches is that the remote station is either a handheld device or something in a car or something at the house that's actually gathering data from the meter and so if you say that that is both the communication means and the end thing you have this odd situation which we have here which is a [00:16:08] Speaker 01: human meter reader partially automated system being contorted to anticipate the fully automated system we have in the 841 patent and that just makes no sense and it is inconsistent with this court's decision in Bechtin. [00:16:24] Speaker 01: Finally, we have the Nelson and Roach ground. [00:16:33] Speaker 01: Under Nubasive, the board is required to make their own findings. [00:16:37] Speaker 01: They're not just allowed to summarize the party's attorney's argument. [00:16:42] Speaker 01: And Nelson already had a communication system in there, and the board made no finding as to why one of ordinary skill in the art would have substituted out Nelson's communication system with the CDMA system in Roach. [00:16:58] Speaker 01: So unless you have further questions. [00:17:01] Speaker 01: Thank you very much.