[00:00:00] Speaker 04: begin this morning with motions for admission to the bar. [00:00:06] Speaker 00: Thank you. [00:00:11] Speaker 00: I move the admission of Nicola Felice, who's a member of the bar and is in good standing in the highest court state of New York. [00:00:20] Speaker 00: I have knowledge of her credentials and I'm satisfied that she possesses the necessary qualifications. [00:00:28] Speaker 00: I'm able to say that because Ms. [00:00:30] Speaker 00: Fleece has served as my law clerk over the last approximately 12 months with a distinction of great help to me and to the court. [00:00:44] Speaker 04: Yes. [00:00:45] Speaker 04: Motion is granted. [00:00:49] Speaker 00: One more. [00:00:49] Speaker 00: Yes. [00:00:50] Speaker 00: I also move the admission of Stephen DeSalvo [00:00:54] Speaker 00: who is a member of the bar and is good standing in the highest court of the state of New York. [00:00:59] Speaker 00: I also have knowledge of his credentials and am satisfied that he possesses the necessary qualifications for the same reason. [00:01:07] Speaker 00: He served as my law clerk with distinction and great skill. [00:01:11] Speaker 00: I therefore move his admission to the bar. [00:01:14] Speaker 04: We will grant your motion. [00:01:17] Speaker 04: Should we do all of the admissions, the swearing in after Judge Hughes? [00:01:23] Speaker 02: It's motion today. [00:01:24] Speaker 02: I have two as well. [00:01:27] Speaker 02: I move the admission of David Katz, who is a member of the bar and is in good standing with the highest court of New York. [00:01:32] Speaker 02: I have knowledge of his credentials, and I am satisfied that he possesses the necessary qualifications. [00:01:38] Speaker 02: And like Judge Cleverner, I know that because he's been my law clerk for a little under a year. [00:01:45] Speaker 02: He's got a couple months more to go still, but he's been superb and always. [00:01:53] Speaker 02: And I move the admission of Brian Barnes, who is a member of the Bar and is in good standing with the highest court of Colorado. [00:02:01] Speaker 02: I have knowledge of his credentials, and I'm satisfied that he possesses the necessary qualifications. [00:02:06] Speaker 02: And likewise, Brian has been a tremendous clerk for the last year or so. [00:02:11] Speaker 02: He also has about a month to go. [00:02:13] Speaker 02: And I look forward to seeing how he turns out in his career. [00:02:18] Speaker 02: And I'm going to be sad to miss him and David in my chambers. [00:02:24] Speaker 04: We'll grant the motions and I think it's time for swearing in. [00:02:52] Speaker 04: So our first argument of the day is CRIMAR systems against Juniper Networks, number 181499, and accompanying cases. [00:03:06] Speaker 04: Please come to the lectern and begin when you are ready. [00:03:10] Speaker 03: Thank you, Your Honor. [00:03:11] Speaker 03: May it please the Court, my name is Frank Angeliari for CRIMAR. [00:03:16] Speaker 03: The board made two fundamental errors in these proceedings. [00:03:19] Speaker 03: The first was allowing what I believe is an unprecedented amount of new material, both a brand new theory and extensive new evidence in the reply, and then compounding that error by not giving CRIMAR any chance to submit supplemental evidence. [00:03:38] Speaker 03: The second error was construing the term powered off device to cover any device that has a component not operating. [00:03:47] Speaker 02: Didn't the board give you exactly the relief you asked for? [00:03:49] Speaker 02: I looked at your motion. [00:03:51] Speaker 02: It says motion to strike, leave promotion to file a motion to strike, or in the alternative, a server apply. [00:03:59] Speaker 02: And they granted you leave to file a motion to strike. [00:04:03] Speaker 02: I mean, maybe it was improperly worded, poorly worded, and you should have said, [00:04:08] Speaker 02: Either you strike this or we get a serve reply, but that's not what you asked for. [00:04:11] Speaker 02: And they gave you what you asked for. [00:04:13] Speaker 03: I believe, Your Honor, might be referring to the email that was sent to request the motion, which was the procedure at that time. [00:04:20] Speaker 03: And the email, admittedly, it had one sentence on this point. [00:04:27] Speaker 03: And the board construed it to, as Your Honor suggested, that we were asking for one motion. [00:04:32] Speaker 03: I think the fair reading of the email is that we were asking for relief in the alternative, as Your Honor described. [00:04:38] Speaker 03: Strike it and if please if you're not going to strike it then give us a chance for a surply to the extent there was any doubt we made that clear in the Hearing I think it was about a 30 minute hearing Maybe it's a 30 page transcript on that request and then we also made an offer of proof of a specific evidence at the oral hearing so I think we made it very clear that we were looking for more than simply a motion to strike and [00:05:06] Speaker 04: So on the merits of your major argument here, putting aside Powered Off for a moment, as I understand it, the board said two things. [00:05:22] Speaker 04: One, as to each of the items about which you complain, we don't actually rely on it for our conclusions. [00:05:32] Speaker 04: It's supportive, but we don't rely on it. [00:05:35] Speaker 04: And second, [00:05:36] Speaker 04: that each of the items that we pay any attention to at all is properly responsive to the patent owner's response. [00:05:45] Speaker 04: Start with the first. [00:05:46] Speaker 04: What item, if any, that you object to do you think that the board actually did rely on? [00:05:56] Speaker 04: Because if the board is right about this, then it suggests that regardless of whether there was error, it was harmless error. [00:06:04] Speaker 03: Sure. [00:06:05] Speaker 03: I believe the board effectively relied on all of it. [00:06:09] Speaker 03: But probably the two most significant pieces of evidence that were pretty clearly relied on is the new isoethernet theory, which was offered for ground one. [00:06:19] Speaker 03: The board actually made a finding, and this is in APX 132, that Hunter's figure two depicts an isoethernet system. [00:06:29] Speaker 03: Now, figure two is sort of the key point for Hunter. [00:06:34] Speaker 04: These claims are directed to... Where should I be looking in a joint appendix? [00:06:44] Speaker 03: Please say A32. [00:06:46] Speaker 03: Appendix 132 is the finding where the board said that figure two of Hunter depicts an isoethanate system. [00:06:54] Speaker 03: And I can wait for your honor. [00:06:55] Speaker 04: Right, got it. [00:06:57] Speaker 03: That's really a central finding. [00:06:59] Speaker 03: And it illustrates, in some respects, many of the things we're talking about. [00:07:04] Speaker 03: Figure 2 is, I would say, one of the most important parts of Hunter that the board relied on, because it shows what they call phantom power. [00:07:12] Speaker 03: Our claims require DC current via a path along what we call ECS pairs, in other words, the Ethernet data path. [00:07:21] Speaker 03: And they pointed to Figure 2 as having phantom power, which they said was along that path. [00:07:25] Speaker 03: And then they said it could be an Ethernet device. [00:07:29] Speaker 03: Well, if you're going to make a finding that Figure 2 is an iso-Ethernet system, [00:07:34] Speaker 03: The fundamental question is, what is ISO Ethernet? [00:07:37] Speaker 03: And that was something that was certainly not briefed because that was never presented. [00:07:41] Speaker 04: Is what you are saying responsive to, I guess I'll put it this way. [00:07:48] Speaker 04: Did the board say, even aside from ISO Ethernet, we would make the same finding on, I forget what the other reference was, Ethernet? [00:07:59] Speaker 03: It's a reference to the term 10-Base-T-Bus. [00:08:02] Speaker 03: 10-Base-T-Bus, right. [00:08:03] Speaker 03: When the petition first, why isn't that good enough? [00:08:08] Speaker 03: Yes, why is it not good enough? [00:08:09] Speaker 03: Because the 10 base T bus is simply wires. [00:08:11] Speaker 03: It doesn't have anything to do with the type of device. [00:08:13] Speaker 03: It doesn't necessarily imply the type of device that's on it. [00:08:17] Speaker 03: It certainly doesn't necessarily imply the claimed ethernet terminal equipment which has again DC current over, [00:08:27] Speaker 03: path, via a path across the ECS pairs. [00:08:30] Speaker 03: It's simply a set of wires. [00:08:31] Speaker 03: It doesn't mean, it doesn't imply anything about the, and the petitioner switched. [00:08:37] Speaker 03: In their petition, they pointed to figure two and said, it has a 10 base T bus, therefore it must be an Ethernet terminal equipment. [00:08:46] Speaker 03: We said, that's not true. [00:08:47] Speaker 03: And they came back with this ISO Ethernet argument where they said, hey, figure two is ISO Ethernet. [00:08:53] Speaker 03: And they argued that ISO Ethernet can't have a 10 base T mode, and therefore it can meet the claims. [00:09:00] Speaker 03: That's a brand new theory. [00:09:01] Speaker 03: The board actually made a finding. [00:09:04] Speaker 03: And the reason I'm pointing to the finding, Your Honor, is you said, well, the board said they didn't need it. [00:09:09] Speaker 03: And what I'm saying is that's almost definitionally incorrect, because they made a central finding on what Hunter teaches. [00:09:17] Speaker 03: They made a finding that Hunter's figure 2, which is the key figure on this phantom power idea, [00:09:23] Speaker 03: teaches an isoethernet system, which means a fundamental question with respect to Hunter is, what is isoethernet? [00:09:32] Speaker 03: That is an issue that was not presented in the petition. [00:09:36] Speaker 03: All they did was that they've got the petition has four references to the word isoethernet. [00:09:41] Speaker 03: None of those four references explain isoethernet. [00:09:44] Speaker 03: There's no discussion of what it is. [00:09:46] Speaker 03: And as soon as the board makes a finding that Hunter's figure two is isoethernet, [00:09:51] Speaker 03: The paramount question is, well, what is isoethernet? [00:09:54] Speaker 03: And that is a question that was raised first in reply. [00:09:57] Speaker 03: And when we asked to submit evidence on it, we specifically asked to submit an IEEE standard from 1999 that says that when isoethernet is operating in 10 base T mode, which is the mode they rely on, it does not support phantom power. [00:10:14] Speaker 03: And again, they're saying phantom power gets us the DC current across the contacts. [00:10:20] Speaker 03: Hunter has phantom power in figure two, and figure two is isoethernet. [00:10:25] Speaker 03: So the whole thing breaks down. [00:10:27] Speaker 03: So that's the first point, Your Honor, with respect to ground one, going back to your question. [00:10:34] Speaker 03: With respect to ground two, the petitioners at police [00:10:40] Speaker 03: They make a, in their brief, they have an argument that this is essentially harmless error. [00:10:45] Speaker 03: And they point, I think it's pages 37 to 40 of the red brief. [00:10:48] Speaker 03: And they say that there's substantial evidence on the ground one because of this 10 base t-bots argument, which is defective for the reasons I described. [00:10:57] Speaker 03: They make no such argument with respect to ground two. [00:10:59] Speaker 03: They don't set up and say, hey, just the information submitted with the petition is sufficient to support this decision. [00:11:07] Speaker 03: I think that's a tacit admission. [00:11:09] Speaker 03: I'm sure they'll disagree. [00:11:10] Speaker 03: But the other significant factor is there are so many exhibits offered with respect to ground two. [00:11:20] Speaker 03: I think it's 16 exhibits. [00:11:22] Speaker 03: I don't think it's reasonable to carve it up and say, well, we didn't need it. [00:11:27] Speaker 03: This is where we make our statutory argument. [00:11:28] Speaker 03: When you submit that level of evidence in your reply that is directed to the case in chief, I don't think it's proper for the board to carve it up. [00:11:39] Speaker 03: There is a sort of weight of the evidence. [00:11:42] Speaker 03: This, I believe, is an unprecedented amount of evidence. [00:11:46] Speaker 03: But there are two additional reasons why, again, I don't believe it's correct to say that the petition alone is fission. [00:11:53] Speaker 03: First, Fisher is a brand new piece of prior art that was submitted in reply, and it was offered for the very leap that ground two says is obvious. [00:12:04] Speaker 03: By that, I mean this. [00:12:06] Speaker 03: Ground two is block plus IEEE. [00:12:08] Speaker 03: Block is a phone system that has what they call phantom power and phone data on the lines. [00:12:17] Speaker 03: IEEE is, of course, the standard for an Ethernet terminal device. [00:12:22] Speaker 03: And the leap is that you would take Block's phantom power and create an Ethernet device that would accept it. [00:12:29] Speaker 03: You'd have to create it. [00:12:30] Speaker 03: And that's the leap. [00:12:31] Speaker 03: And Block was, I don't know, a plain old telephone system. [00:12:34] Speaker 03: Plain old telephone system. [00:12:35] Speaker 03: And Block, to be very clear, that's not the invention of Block. [00:12:39] Speaker 03: The invention of Block doesn't say put phantom power. [00:12:42] Speaker 03: That's actually old. [00:12:45] Speaker 03: And in the background section of Block, toward the bottom of the first column, it describes the fact that it's old to have power and data on the same lines. [00:12:53] Speaker 03: The invention of Block was putting even more data. [00:12:55] Speaker 03: So it's not like Block was trumpeting the benefits of man and power, but it's a plain old phone system. [00:13:00] Speaker 03: But the point is, the very leap that supposedly is obvious is taking this plain old phone and putting on [00:13:06] Speaker 03: We said that's not obvious, and you haven't proved it, and you have a conclusively paragraph from your expert. [00:13:11] Speaker 03: Well, they offer Fisher as evidence of the very leap. [00:13:15] Speaker 03: In other words, they say, well, Fisher has phantom power on Ethernet. [00:13:19] Speaker 03: Therefore, it's obvious. [00:13:20] Speaker 03: It is not just evidence of what a person is skilled in the art. [00:13:24] Speaker 03: It is evidence offered for the very leap in question. [00:13:28] Speaker 03: It also fails in and of itself, because Fisher itself doesn't have the claim requirements of current [00:13:35] Speaker 03: across the ethernet contacts. [00:13:37] Speaker 03: When Fisher teaches phantom power, it sends it across the ethernet lines, but it splits it off before it gets the device for the very reasons that we said it's a problem. [00:13:45] Speaker 03: But anyway, to answer your question, I know this is a long answer. [00:13:47] Speaker 03: The point is they don't have a prima facie case without this reply evidence. [00:13:53] Speaker 04: And can you just remind me, what's the relation between ground one and ground two? [00:13:58] Speaker 04: If the board was committed no reversible error on ground one, does ground two matter? [00:14:05] Speaker 04: or are all the same claims covered? [00:14:07] Speaker 03: They're redundant, Your Honor. [00:14:08] Speaker 03: OK. [00:14:09] Speaker 03: But it is of note that in some of the findings for ground two, when they were going through the reason to combine findings, they actually cited Hunter as evidence of power over ethernet being extant. [00:14:21] Speaker 03: So they cross over. [00:14:23] Speaker 03: But to answer your question, Your Honor, the two grounds are independent. [00:14:27] Speaker 04: So we have to win those. [00:14:28] Speaker 04: Since you're getting close to your rebuttal time, can I just ask you, [00:14:32] Speaker 04: Switch for a minute to the powered off claims, which is a small subset, but it has a separate issue. [00:14:39] Speaker 04: And my understanding is that the board's key question, or at least key argument on the other side, is the board gave you what you asked for. [00:14:52] Speaker 04: So why is that wrong? [00:14:54] Speaker 03: So you could say they reconstrued the construction or they applied it incorrectly. [00:14:58] Speaker 03: I think that's a distinction without a difference. [00:15:00] Speaker 03: At the end of the day, there's no substantial evidence to support a finding that these combinations teach powered off under the agreed construction. [00:15:09] Speaker 03: Why? [00:15:10] Speaker 03: The construction says powered off is without operating power. [00:15:13] Speaker 03: The Hunter Boo Land, which is ground one, again, the member of the claims require two different DC currents across these pairs. [00:15:20] Speaker 03: And then now with the powered off, you've got to do it while powered off. [00:15:24] Speaker 03: So 100 Bullion doesn't generate these two levels of current unless and until it applies operating power. [00:15:29] Speaker 03: And that's right in the findings. [00:15:31] Speaker 03: The board talks about how the 100 Bullion combination distinguishes between essentially a normal operating current startup and a current surge, which is even more than operating. [00:15:41] Speaker 03: So you don't even get to the two levels unless and until you apply operating power. [00:15:46] Speaker 03: So that's 100 Bullion. [00:15:49] Speaker 03: With respect to Block and IEEE, there's no evidence whatsoever of the amount of power being applied to this device. [00:15:56] Speaker 03: And this is their burden. [00:15:57] Speaker 03: They've got to show that this phone device doesn't have any operating power. [00:16:03] Speaker 03: The Block phone is essentially a telephone waiting to ring. [00:16:06] Speaker 03: It's just like the phones we all have on our desks now. [00:16:08] Speaker 03: It's sitting there. [00:16:10] Speaker 03: It's operating. [00:16:10] Speaker 03: As soon as it rings, you pick it up and you answer. [00:16:13] Speaker 03: They found that the Block phone was powered off because a specific [00:16:18] Speaker 03: component, namely the speakerphone, was not operating. [00:16:21] Speaker 03: But that's not the test. [00:16:22] Speaker 03: That can't be the test. [00:16:25] Speaker 03: So the reason I said the claim construction versus the question of new construction versus reinterpreting their construction versus misapplying their construction, that's a distinction without a difference. [00:16:38] Speaker 03: Because at the end of the day, with respect to Block, they found [00:16:44] Speaker 03: that it's powered off merely because a component, the speaker phone, is not operating. [00:16:50] Speaker 03: It was their burden to prove, petitioners' burden to prove that Block didn't have operating power. [00:16:54] Speaker 03: There's nothing about how much operating power is going. [00:16:57] Speaker 03: That's why the only evidence on which the board relied is the fact that a component is not operating. [00:17:03] Speaker 04: And that... You have just a minute left, so you've used two-thirds of your rebuttal. [00:17:08] Speaker 03: I'll stop. [00:17:08] Speaker 04: I was trying to answer your question, but I'll stop. [00:17:10] Speaker 04: Thank you. [00:17:10] Speaker 04: We'll restore the rebuttal. [00:17:12] Speaker 04: Thank you. [00:17:16] Speaker 01: Good morning, Your Honor. [00:17:18] Speaker 01: May it please the Court, Jonathan Kagan of IRL and Manila, representing Juniper Networks, arguing for the Apple East. [00:17:26] Speaker 01: So I want to address Kramer's argument that there was a new ISO Ethernet theory that was advanced, essentially in reply, or that the Board found, and that was the basis of their due process argument. [00:17:44] Speaker 01: The fact is there was no new isoethernet theory. [00:17:49] Speaker 01: There is no isoethernet theory at all. [00:17:52] Speaker 01: The grounds advanced in the petition were essentially twofold on the Hunter and Boulon reference. [00:18:00] Speaker 01: First, we said if you look just at the Hunter figure two embodiment as it stands, [00:18:07] Speaker 01: That renders the claim obvious because the patent mentions that it uses a 10 base T bus and a 10 base T hub. [00:18:20] Speaker 01: So a person looking at that embodiment as it stands would understand that it practices Ethernet. [00:18:28] Speaker 01: The second argument was, even if you do not like that argument, [00:18:33] Speaker 01: There is a reference in the patent. [00:18:35] Speaker 01: The patent itself teaches at lines 19, sorry, column 19, lines 2 through 8, that this system is not limited to any particular standard. [00:18:48] Speaker 01: It applies to any local area network, including but not limited to ISO Ethernet, Ethernet, ATM, and token ring. [00:18:57] Speaker 01: So there's essentially two arguments being advanced here. [00:19:02] Speaker 01: What the patent donor does in response is they say that the figure two embodiment does not actually teach Ethernet because there are some ISO Ethernet components in that embodiment. [00:19:20] Speaker 01: And ISO Ethernet is not compatible with Ethernet. [00:19:25] Speaker 01: They argue that ISO Ethernet does not carry 10 base T signals. [00:19:33] Speaker 01: The evidence in reply showed that this argument was false. [00:19:37] Speaker 01: We pointed to evidence, including evidence in the record, exhibit 1010, page 165, which was filed with the petition, that expressly shows that ISO Ethernet has a 10-base-T mode, and it can operate in that mode. [00:19:54] Speaker 00: So the patent donor's argument... What's our standard of review to decide whether you're correct or Mr. Engler is correct on this subject? [00:20:03] Speaker 01: Well, on this subject, it depends exactly what we're talking about. [00:20:06] Speaker 01: Generally speaking, it's an abusive discretion standard with regard to the board and decisions that they make interpreting their regulations. [00:20:15] Speaker 00: Yeah, but as to what is being taught by Figure 2, is that a substantial evidence question? [00:20:21] Speaker 01: That would be a substantial evidence question. [00:20:23] Speaker 01: If there are factual determinations that the board made, and those would be reviewed for substantial evidence. [00:20:34] Speaker 01: So we, the petitioners, are not making an ISO Ethernet argument at all. [00:20:41] Speaker 01: And we have never advanced an ISO Ethernet argument. [00:20:44] Speaker 01: Our argument is that figure two as it stands, including the components, including ISO Ethernet components that are disclosed, does teach Ethernet. [00:20:53] Speaker 01: And if you look at the final written decision, you'll see the board [00:20:57] Speaker 01: looks at the evidence and cites to the evidence of there being a 10-base T hub and a 10-base T bus, and said one of ordinary skill in the art would understand that this teaches ethernet. [00:21:11] Speaker 01: But in addition, none of this argument relates in any way to the second ground on which the board also found that the claims were obvious, which is that the specification on the patents of the Hunter is not limited to ISO ethernet. [00:21:26] Speaker 01: It goes to any local area network using any standard. [00:21:32] Speaker 01: So that would certainly incorporate isoethanol. [00:21:34] Speaker 01: So they don't even challenge that. [00:21:35] Speaker 01: And to your question, because all the claims are redundant, there's only one ground on which the board need to be affirmed. [00:21:43] Speaker 01: And all the claims in this case are going to be canceled. [00:21:49] Speaker 01: So there is, and you can look at on the petition page 7982, appendix 799. [00:21:54] Speaker 04: That's not true about the small number of powered off questions. [00:21:59] Speaker 01: That's correct, Your Honor. [00:22:00] Speaker 01: Right. [00:22:01] Speaker 01: I was speaking on the reply issue and the due process. [00:22:06] Speaker 01: On the power and off limitation that does apply to a small number of claims and I'm happy to address that as well This is one thing I did want to mention before I got there was this is exactly the relief that The patent owner hadn't requested they had sought leave to file a motion to strike or in the alternative a motion for a sir reply [00:22:28] Speaker 01: There was actually a finding in the final written decision by the board. [00:22:32] Speaker 01: They explained that this is exactly what the patent donor said. [00:22:35] Speaker 04: Why is that a sensible reading of what they request? [00:22:40] Speaker 04: And I don't mean just textually. [00:22:42] Speaker 04: Let's assume that they actually, as I think is true, they literally did ask for permission to file one motion or in the alternative or another. [00:22:53] Speaker 04: But how could that reasonably have been [00:22:56] Speaker 04: interpreted to be something other than a sloppy way of saying either get rid of the evidence or let us respond. [00:23:03] Speaker 01: Well, it may have been a sloppy way of saying it, but it's their sloppy way. [00:23:09] Speaker 01: What the board found was that, and this is in the final written decision, was that [00:23:15] Speaker 01: They never followed up and said to the board, look, we would really like either a clarification of a ruling. [00:23:20] Speaker 01: We want this ruling now. [00:23:21] Speaker 01: We want an opportunity to file a surreply because the hearing is coming up. [00:23:26] Speaker 01: So if you look in the final written decision, it's not simply that they made the sloppy ruling. [00:23:31] Speaker 04: I think Mr. Angeliari, just correct me if I'm misheard or if this is not right, I think he said that at the [00:23:40] Speaker 04: oral argument, what's called a hearing there, even though it's just lawyers talking, made this point that they wanted an opportunity to respond if the evidence was going to stay in the record, clarifying what was [00:23:57] Speaker 04: probably pretty evident anyway from what they originally had. [00:24:03] Speaker 01: I respectfully would disagree with that. [00:24:04] Speaker 04: That they didn't say that at the oral argument? [00:24:07] Speaker 01: At the oral argument, and this is in the record, the transcript of the oral argument, these pages, what they asked for was either they wanted Leaf to file a 10-page cert reply and the [00:24:20] Speaker 01: The ALJ was very specific. [00:24:21] Speaker 01: He said, how many pages do you want? [00:24:22] Speaker 01: He said, we want a 10-page sir reply with two exhibits, or we want a seven-page motion to strike. [00:24:30] Speaker 01: And this may be sloppy, but this could also be a strategic decision on their part, because if the [00:24:37] Speaker 01: If the evidence, if our evidence, the evidence that we introduced was truly just responsive, was a reply evidence, it may not have had any bearing on the ultimate determination, which is exactly what happened. [00:24:49] Speaker 01: So what the board found for each of these pieces of evidence was it had actually no bearing on the actual outcome because the arguments that we made in the petition [00:25:00] Speaker 01: we're sufficient, we're strong enough to support invalidity of all the claims. [00:25:04] Speaker 04: Can you respond to Mr. Angeliari's point about why the reference in Hunter to 10B, 10BASE-T cannot itself be sufficient to have supported the board's conclusion so that [00:25:21] Speaker 04: there must have been an actual reliance on the ISO Ethernet so that it can't be harmless. [00:25:30] Speaker 04: Then one would get to the question whether it was responsive, but at least it wouldn't be harmless. [00:25:34] Speaker 04: So why was 10 base T not sufficient in your term? [00:25:42] Speaker 01: So the question is, what would one of ordinary skill in the art understand? [00:25:47] Speaker 01: This figure this example to teach would it teach someone with someone of skill in the art looking looking at this thing? [00:25:55] Speaker 01: This could be an Ethernet system or not and so what we have is we have a piece of a 10 base t hub that's in the system Which is a piece of they it's a piece of terminal equipment and we also have wiring that is referred to as a 10 base t bus and [00:26:14] Speaker 01: So the question is, would one of skill in the art, looking at this, knowing that the infrastructure is supposed to be 10 base T, which is ethernet, and there is a piece of terminal equipment in here, which is also ethernet, would they look at this system and think this is an ethernet system, or this teach is an ethernet system? [00:26:33] Speaker 01: And the board found that they did. [00:26:35] Speaker 01: We presented evidence. [00:26:36] Speaker 01: We presented an expert declaration saying a person of skill in the art would understand this to be an ethernet system. [00:26:43] Speaker 01: The isoethernet components are completely consistent with a 10 base T system. [00:26:51] Speaker 01: Had the patent owner presented evidence about power in isoethernet, it did not get into the record. [00:26:58] Speaker 01: But had it been in the record, we would have presented contrary evidence. [00:27:01] Speaker 01: They had a decision to make in terms of how to respond to the exhibit to figure two. [00:27:08] Speaker 01: Because there's ISO Ethernet equipment in the entire infrastructure. [00:27:12] Speaker 01: And they had a decision to make. [00:27:14] Speaker 01: They're trying to say this doesn't teach Ethernet. [00:27:17] Speaker 01: And they're going to try to use the ISO Ethernet equipment to make that argument. [00:27:22] Speaker 01: So they could go one of two ways. [00:27:24] Speaker 01: They can say, well, ISO Ethernet is simply not compatible with Ethernet. [00:27:28] Speaker 01: Or they could say, well, it is compatible, but it won't allow power to pass. [00:27:34] Speaker 01: These are two bad arguments that they could make, but they're incompatible arguments. [00:27:38] Speaker 01: and they have to decide which bad argument are we going to make? [00:27:40] Speaker 01: Bad argument number one or bad argument number two? [00:27:43] Speaker 04: They might not have thought of it in those terms. [00:27:44] Speaker 01: Well, they should know they can't make both arguments because they can't argue both isoethernet doesn't operate in 10 base T and it does operate in 10 base T, but then it won't pass power. [00:27:54] Speaker 01: They're inconsistent arguments. [00:27:55] Speaker 01: I believe it's hard to make both arguments. [00:27:58] Speaker 01: So they chose. [00:27:59] Speaker 01: Which one did they want to use? [00:28:02] Speaker 01: By the way, they could have used the argument that it doesn't pass power. [00:28:05] Speaker 01: They're aware that isoethernet equipment was in there. [00:28:08] Speaker 01: They could have presented that evidence in their patented response if they'd wanted. [00:28:12] Speaker 01: They made the strategic decision not to. [00:28:13] Speaker 01: They instead went with that argument number one. [00:28:17] Speaker 01: They went with the argument that ISO Ethernet is simply incompatible with 10-Base-T. [00:28:21] Speaker 01: They're wrong. [00:28:24] Speaker 01: We said they were wrong. [00:28:26] Speaker 01: That evidence is in reply. [00:28:27] Speaker 01: That's a completely proper reply, as the board found. [00:28:30] Speaker 04: Can you turn to the power it off and, in particular, address the point that whether one calls what was going on in the final written decision claim construction or application, where do the relevant prior art references? [00:28:48] Speaker 04: I guess it's Hunter in the first round. [00:28:50] Speaker 04: I'm not sure which. [00:28:51] Speaker 04: I guess it must be IEEE in the second. [00:28:54] Speaker 04: It's blocked up on the block side. [00:28:58] Speaker 04: teach what the board ultimately interpreted, powered off to require. [00:29:05] Speaker 01: First off, we believe this is simply an application of the thing construction, which is the board said... In which case, why is it supported by substantial evidence? [00:29:16] Speaker 04: Okay. [00:29:17] Speaker 01: So in Hunter plus Boulogne, what you have is a startup sequence that the Boulogne circuit does. [00:29:26] Speaker 01: And so before it allows operating power to get to the terminal equipment, there's this DC to DC converter. [00:29:34] Speaker 01: And so when the power starts up, it goes through essentially a check, and it determines if the system is operating correctly. [00:29:42] Speaker 01: And if and only if it determines that the system is operating correctly, and it may go through several iterations to do this, does it then send power to the terminal equipment, operating power to the terminal equipment. [00:29:56] Speaker 01: So the terminal equipment itself is powered off unless and until that startup circuit is complete. [00:30:02] Speaker 01: And I think the board does a very good job in the final written decisions of explaining this. [00:30:06] Speaker 01: In that startup sequence, it's undisputed that the system itself, remember Hunter is a system for providing power, powering terminal equipment, powering other equipment. [00:30:16] Speaker 01: It's not doing that. [00:30:18] Speaker 01: It's going through the startup check and suggests this component [00:30:22] Speaker 01: It's only this component of the equipment. [00:30:23] Speaker 01: It's not the equipment itself that is receiving power. [00:30:27] Speaker 01: And this is where I think CRIMAR is playing word games. [00:30:32] Speaker 04: And during that process, before the terminal equipment comes on while the checking is going on, are all the other elements of the claim met? [00:30:42] Speaker 01: Well, the other elements of the claim are met, except for the ones that require actual power motion. [00:30:48] Speaker 01: But one of the elements of the claim is that certain things happen [00:30:51] Speaker 01: while the system is powered off, certain things that are not challenged on appeal. [00:30:57] Speaker 01: So the only element that's being challenged on appeal is the powered off limitation in terms of this claim construction. [00:31:05] Speaker 01: And so it's during that startup sequence. [00:31:07] Speaker 01: That's what the board talked about. [00:31:08] Speaker 01: That's what the board relied on for Hunter plus Goulon. [00:31:13] Speaker 01: The equipment is off. [00:31:14] Speaker 01: And by the way, CRIMAR itself agreed at the hearing [00:31:17] Speaker 01: The question is not whether a component, such as the DC converter, the Boulogne circuit has power. [00:31:24] Speaker 01: It's not whether a component has power. [00:31:26] Speaker 01: They argued at the hearing, the oral hearing itself, that the question is whether the equipment as a whole has power. [00:31:34] Speaker 01: And it is not disputed that during the startup sequence, the equipment as a whole is not receiving power. [00:31:45] Speaker 01: I can go to the block reference, block IEEE. [00:31:50] Speaker 01: So the block is a little bit more than just a regular telephone. [00:31:54] Speaker 01: It's a system where you have a central unit and a remote terminal unit, like a speakerphone, and you have a central unit that sort of controls the communications. [00:32:04] Speaker 01: In block, what the board found is when the phone is off, when it's on the hook, when the speaker phone is off, when it's receiving, it's essentially receiving no, the terminal itself is receiving no power, there are still control signals that are being sent between the phone and the central unit that are done by having slight changes in the amount of power that's going back and forth that provide status information about the phone. [00:32:28] Speaker 01: So power is being received at varying levels while the equipment itself [00:32:34] Speaker 01: is powered off. [00:32:35] Speaker 00: What's the purpose of that power before it's turned off? [00:32:38] Speaker 01: So you have a central system. [00:32:39] Speaker 01: So for example, I don't know if you remember the old phones where there were buttons and there were lights when you would hit what line was on and what line was off. [00:32:50] Speaker 01: So at the central station, this is a way that someone who's not in that room can see which lines are being used, for example. [00:32:57] Speaker 01: So you could send a little pulse saying line one is on the hook, line two is off the hook. [00:33:04] Speaker 01: So just providing status information about what lines are being used or not used is an example. [00:33:16] Speaker 04: Nothing further? [00:33:18] Speaker 04: No further. [00:33:18] Speaker 04: Are you powered off? [00:33:20] Speaker 01: I will power off. [00:33:23] Speaker 04: Thank you. [00:33:24] Speaker 04: Thank you. [00:33:24] Speaker 04: And Mr. Angeliari, three minutes for rebuttal. [00:33:30] Speaker 03: Thank you, Your Honor. [00:33:31] Speaker 03: I think it's two points. [00:33:34] Speaker 03: One is my colleague does not understand our position with respect to powered off in one very significant respect. [00:33:43] Speaker 03: I believe he said that there's no dispute that in the Hunter Blue Land ground one, I believe he said there's no dispute that the device as a whole is not receiving power, something to that effect. [00:33:55] Speaker 03: That is definitely disputed. [00:33:57] Speaker 03: In the Hunter Blue Land system, you have a terminal device [00:34:01] Speaker 03: And the board found that the DC converter is part of that device. [00:34:07] Speaker 03: That entire device is receiving this operating power. [00:34:10] Speaker 03: And on the front, they're doing the sort of flipping that creates the different magnitudes current. [00:34:15] Speaker 03: But our position is that the entire device is, in fact, receiving greater than operating power. [00:34:20] Speaker 03: So that is our position. [00:34:23] Speaker 03: It may be that components downstream of the DC to DC converter have not yet started to operate. [00:34:29] Speaker 03: But the device as a whole is receiving operating power. [00:34:33] Speaker 03: And that's confirmed by the findings of the board where they talked about surge in current and normal versus greater than. [00:34:39] Speaker 03: That's point number one. [00:34:40] Speaker 03: Point number two. [00:34:42] Speaker 04: But then that would get to the question whether some component, essentially the television example that was talked about, whether that [00:34:52] Speaker 04: could still reasonably be considered in the powered off state. [00:34:57] Speaker 03: Yes. [00:34:59] Speaker 03: And the specification has an example where, and the television is consistent with this, where a device as a whole is powered off even though a tiny component is receiving a tiny amount of power which cannot operate the whole device. [00:35:15] Speaker 03: Perhaps, for example, in our spec, because it's isolated from the rest of the device. [00:35:20] Speaker 03: And so the television component argument is that it's just like the device and the spec, where if you have one component that is operating but perhaps isolated from the rest of the system, and it's getting power perhaps from a different path than the device receives, which is exactly how our spec works, [00:35:39] Speaker 03: Then it's the device as a whole isn't getting operating power and can't get operating power under Moulin is fundamentally different because the device as a whole is in fact receiving all of its operating power during this startup phase. [00:35:51] Speaker 03: So that's point number one. [00:35:52] Speaker 03: You are point number two with respect to Hunter and figure two. [00:35:59] Speaker 03: Judge Clevenger, you asked a question about the standard of review for what figure two teaches, and I want to clarify that we are not disputing the board's finding that figure two teaches isoethernet. [00:36:12] Speaker 03: Rather, that is a fundamental reason why the board got it wrong on this whole question of a new theory in reply. [00:36:22] Speaker 03: The question of what isoethernet is was never raised in the petition. [00:36:27] Speaker 03: And if Hunter Figure 2 is an ISO Ethernet system, then a fundamental burden of the petitioners is to prove that an ISO Ethernet system meets the claim. [00:36:37] Speaker 03: That's something that they didn't make any effort to do. [00:36:41] Speaker 03: It's not a question of whether Figure 2 is an Ethernet system or an ISO Ethernet system. [00:36:46] Speaker 03: That question is settled by the board at their request. [00:36:49] Speaker 03: It is an ISO Ethernet system. [00:36:51] Speaker 03: Therefore, the fundamental question that they had to answer in the petition [00:36:55] Speaker 03: is whether an iso-ethanol system meets the claims. [00:36:58] Speaker 03: They made no effort to do that. [00:36:59] Speaker 03: Now, Mike, you're over your rebuttal time, so please wrap up. [00:37:03] Speaker 03: I will. [00:37:04] Speaker 03: With respect to whether we made a bad decision on how we characterized iso-ethanol in our patent owner response, we had no reason to fully develop what an iso-ethanol system is, because they never argued that that was an iso-ethanol system. [00:37:20] Speaker 03: At appendix 27033, which is the hearing, we affirmatively said that we wanted to offer evidence which showed that an ISO Ethernet system does not deliver operating power when operating an Ethernet load. [00:37:34] Speaker 03: Thank you very much. [00:37:35] Speaker 03: Thank you. [00:37:36] Speaker 03: The case is submitted.