[00:00:00] Speaker 05:
Number 18, 1806, is Cisco Systems against TQ Delta and ARIS against TQ Delta.

[00:00:08] Speaker 05:
And you've divided your time as to the two petitioners.

[00:00:15] Speaker 05:
You're Mr. Foster?

[00:00:16] Speaker 02:
Yes, Judge Newman.

[00:00:17] Speaker 05:
Okay, please proceed.

[00:00:19] Speaker 02:
Thank you, and may it please the court.

[00:00:21] Speaker 02:
The board wrongly construed the term synchronization signal by narrowly requiring it to comply and limiting it to the preferred embodiment found in column 5 of the 404 patent.

[00:00:35] Speaker 03:
You argued that the board erred by having a markedly more restrictive construction than the district.

[00:00:48] Speaker 03:
Yes.

[00:00:49] Speaker 03:
What authority do you have for your underlying proposition?

[00:00:52] Speaker 03:
that if the PTAB's construction is narrower than the district court, it can't be the BRI.

[00:00:58] Speaker 02:
So we cited to the Facebook the pragmatist case, which I understand was not itself presidential.

[00:01:05] Speaker 02:
In the time since the briefing, the court has issued another case, NRA CSB Systems International.

[00:01:12] Speaker 02:
That's at 832 F3rd, 1335.

[00:01:16] Speaker 02:
And at page 1341 of that opinion,

[00:01:18] Speaker 02:
The court said, if anything, the Phillips standard would result in a more narrow claim scope.

[00:01:24] Speaker 02:
So the court, in a presidential opinion, has affirmed that the

[00:01:29] Speaker 02:
the broadest reasonable interpretation, which is the interpretation applicable here, needs to be at least as broad as the Phillips standard, which is applicable in district court and is the standard that the district court applied here in finding a much broader interpretation, and specifically an interpretation that's quite consistent with the interpretation proposed by Cisco and quite similar to the construction proposed by patent owner itself,

[00:01:59] Speaker 02:
and supported with the testimony of their expert, which – and that is in the record at Appendix Page 1479.

[00:02:16] Speaker 02:
We believe that the proper construction should be that proposed by Cisco or the substantially similar proposals from TQ Delta and its preliminary response, which in its full response, it stated it continued to believe was correct or the construction taken by the district court.

[00:02:36] Speaker 04:
Isn't the board correct, though, that there's a difference between the synchronization signal and the synchronization frame?

[00:02:47] Speaker 02:
So the board is correct that the claim requires and recites both a super frame, which includes a synchronization frame, and it separately recites receiving a synchronization signal.

[00:03:01] Speaker 04:
And those are two different things, right?

[00:03:03] Speaker 02:
Those are two different things.

[00:03:05] Speaker 04:
A synchronization frame is a chunk of data that occurs at a certain time.

[00:03:12] Speaker 02:
The synchronization frame is the period of time

[00:03:17] Speaker 02:
at the end of a super frame, so it's a period of time.

[00:03:20] Speaker 04:
So if you have a super frame of 69 frames, the synchronization frame would be the 69th one.

[00:03:28] Speaker 02:
That's correct.

[00:03:29] Speaker 04:
And it has a symbol, it has

[00:03:32] Speaker 04:
Something that flags it as the last page in the deck, so to speak.

[00:03:37] Speaker 04:
The last card in the deck.

[00:03:38] Speaker 02:
The fact that it is the 69th frame is what signals that it is the last one.

[00:03:43] Speaker 02:
And the frame is data, yes.

[00:03:46] Speaker 03:
The frame is a way of encompassing data.

[00:03:49] Speaker 02:
The frame is a period of time.

[00:03:51] Speaker 02:
The data transmitted during the frame is the symbol.

[00:03:55] Speaker 02:
And that's made clear in the patent itself in column two, where it explains

[00:04:10] Speaker 02:
that the – this is in column two at line seven, appendix page 54 – that the period of time allocated for transmission of a symbol is a frame.

[00:04:21] Speaker 02:
And so there's a distinction between a symbol and a frame.

[00:04:23] Speaker 02:
And Cisco relied on that distinction in making its petition, making its case for obviousness.

[00:04:30] Speaker 02:
Cisco pointed to the synchronization frame.

[00:04:34] Speaker 02:
of the ANSI standard as the synchronization frame called for in the claim.

[00:04:39] Speaker 02:
And it pointed to the synchronization symbol transmitted during that frame as the claimed synchronization signal.

[00:04:47] Speaker 04:
No, but a synchronization signal is a different animal, is it not?

[00:04:53] Speaker 04:
The claim is quite broad and doesn't identify... I'm not referring to the... I'm just trying to get a handle on the concepts here and the language here.

[00:05:02] Speaker 04:
The synchronization signal is a clock signal, right?

[00:05:07] Speaker 04:
It's a signal that causes synchronization.

[00:05:11] Speaker 02:
The claim itself does not say how the synchronization occurs.

[00:05:16] Speaker 02:
And that is part of the board's error.

[00:05:18] Speaker 02:
The board restricted the synchronization signal to the preferred embodiment, which uses clocks for synchronization.

[00:05:24] Speaker 04:
Other techniques?

[00:05:26] Speaker 04:
What else would you use a synchronization signal for other than to synchronize two different transceivers?

[00:05:35] Speaker 02:
I agree it could be used to synchronize two different transceivers.

[00:05:39] Speaker 02:
The problem with the board's construction is that it limited it to synchronizing clocks within that receiver.

[00:05:45] Speaker 02:
That was the first error.

[00:05:46] Speaker 04:
What's wrong with that?

[00:05:48] Speaker 02:
The claim doesn't require clocks.

[00:05:51] Speaker 02:
There's no limitation in the claim requiring that a transmitter or receiver have a clock.

[00:05:55] Speaker 04:
Yeah, but then you're trying to take it one step further.

[00:05:58] Speaker 04:
You want to get rid of the clock limitation so that you can

[00:06:03] Speaker 04:
read synchronization signal to mean broadly just synchronizing two transceivers.

[00:06:11] Speaker 04:
Which would be broad enough so that it would arguably read on a synchronization frame.

[00:06:19] Speaker 02:
Respectfully, Judge Lynn, if I can continue, I see I'm into my rebuttal time.

[00:06:23] Speaker 02:
But if I can answer your question.

[00:06:25] Speaker 02:
Please answer the question.

[00:06:26] Speaker 02:
We're not trying to remove a clock limitation.

[00:06:30] Speaker 02:
We're pointing out that there is no clock limitation in the claim.

[00:06:37] Speaker 04:
The problem, as I see it, is that you're doing that simply because you then want to get into the argument about what the references teach in terms of synchronization frames.

[00:06:51] Speaker 04:
And it seems to me that those are different concepts.

[00:06:55] Speaker 02:
Well, I'm not sure I entirely understand your question.

[00:06:59] Speaker 02:
I would point out that the board misunderstood Cisco's position and mistakenly believed that Cisco was relying on a synchronization frame as being the synchronization signal.

[00:07:10] Speaker 02:
And that's simply incorrect.

[00:07:13] Speaker 03:
The signal is within the frame.

[00:07:16] Speaker 02:
The symbol transmitted during the frame, that is what Cisco identified as the synchronization signal.

[00:07:22] Speaker 02:
And that was clear in the petition.

[00:07:24] Speaker 02:
It was made clear again in the petitioner's reply.

[00:07:28] Speaker 02:
at pages 344 and 345.

[00:07:32] Speaker 02:
We identified the symbol as the signal.

[00:07:35] Speaker 02:
And if you look at the board's decision here, at page 14 of the appendix, the board inaccurately states that the petition relies on the synchronization frame as teaching the synchronization signal.

[00:07:48] Speaker 02:
And that's simply incorrect.

[00:07:50] Speaker 02:
And the board erred in understanding Siska's position.

[00:07:53] Speaker 02:
So the frame is a period of time.

[00:07:54] Speaker 02:
Yes.

[00:07:55] Speaker 03:
And the signal is effectively a period of time, is it not?

[00:08:00] Speaker 02:
It's the last part.

[00:08:04] Speaker 02:
The signal was not construed as being a period of time.

[00:08:07] Speaker 02:
The signal was construed here as a signal allowing synchronization between clocks, which is not a period of time.

[00:08:20] Speaker 03:
What you're saying to us is

[00:08:23] Speaker 03:
that there's a synchronization signal within the frame.

[00:08:27] Speaker 03:
Yes.

[00:08:28] Speaker 03:
What is that signal?

[00:08:29] Speaker 02:
It is the synchronization symbol, which is the... And the symbol is the last subpart of time, right?

[00:08:39] Speaker 02:
The symbol is the information transmitted during that last period of time in a superframe.

[00:08:45] Speaker 04:
But is it the symbol that makes it a synchronization frame or the fact that it's the 69th frame?

[00:08:52] Speaker 04:
What is it that makes it a synchronization frame?

[00:09:00] Speaker 02:
It is a synchronization frame because the synchronization frame is a synchronization frame because it is the last frame.

[00:09:06] Speaker 04:
Because it's the 69th in a 69 frame super frame.

[00:09:10] Speaker 02:
Yes.

[00:09:11] Speaker 04:
And the synchronization... It has nothing to do with the data contained within it, correct?

[00:09:17] Speaker 02:
I believe that is correct.

[00:09:19] Speaker 02:
So why are we discussing a symbol?

[00:09:22] Speaker 02:
Because the symbol is what Cisco identified as the synchronization signal that is separately recited.

[00:09:29] Speaker 02:
And the synchronization symbol is what's used to correct for timing errors.

[00:09:34] Speaker 02:
And that makes it a synchronization signal.

[00:09:41] Speaker 05:
OK, now you're sharing your time with Mr. Gresham.

[00:09:50] Speaker 05:
Are you going to take up a different issue?

[00:09:53] Speaker 01:
Yes, I'd like to take up a different issue.

[00:10:00] Speaker 01:
The discussion that I'd like to make is that Harris pointed out when the patent owner filed a response and made these claim construction arguments that the panel has been discussing this morning.

[00:10:17] Speaker 01:
Eris pointed out in its reply, even if the board accepted the construction that TQ Delta had offered, that the petition still showed that the synchronization signal was met, even under that narrowed construction, and even under the board's ultimately narrowed construction in the final written decision.

[00:10:41] Speaker 03:
Well, I'm sorry to take you away from where you want to go.

[00:10:43] Speaker 03:
Yes, sir.

[00:10:44] Speaker 03:
But on page 35 of the Eris blue brief,

[00:10:46] Speaker 03:
You say the PTAB failed to understand that the claimed synchronization frame and synchronization symbol elements are separate, though related, attributes necessarily present in any DSL transceiver, including the transceivers described in 404 and Benzelingham.

[00:11:09] Speaker 03:
Tell me the authority for that proposition.

[00:11:11] Speaker 03:
I want a further estimate.

[00:11:13] Speaker 01:
Okay.

[00:11:13] Speaker 01:
The authority for that proposition first is there's really no dispute that there's anything inventive in the 404 patent.

[00:11:21] Speaker 01:
with regard to the full power mode.

[00:11:23] Speaker 01:
And that's where the board made this big distinction that the full power mode, you receive the synchronization frame, which basically defines the structure of the data.

[00:11:33] Speaker 01:
It's broken down into these 69 time periods.

[00:11:36] Speaker 01:
And then the symbol.

[00:11:37] Speaker 03:
Is there a symbol in that 69?

[00:11:40] Speaker 01:
Yes, the symbol is the data that is transmitted during that particular time period.

[00:11:47] Speaker 01:
And that's the distinction that Mr. Foster was making, and that's a distinction that Eris agrees with.

[00:11:52] Speaker 04:
But is that symbol different in character from the symbols that are in any of the other frames in the super frame?

[00:12:01] Speaker 01:
Yes, the symbol is a

[00:12:04] Speaker 01:
The data transmitted in that final frame is the symbol that demarcates the end of a frame and the beginning of a new frame.

[00:12:21] Speaker 04:
signals that it's the end of the super frame or the fact that it's frame number 69?

[00:12:27] Speaker 01:
Well, the receiver is looking for frame number 69.

[00:12:30] Speaker 01:
If the receiver receives frame number 69 and does not receive the symbol, then it knows it's out of synchronization.

[00:12:39] Speaker 01:
So the symbol has to be received during that particular time period, transmitted and received during a particular time period in order for the receiver to... What is it in that symbol that is special?

[00:12:54] Speaker 04:
I mean, are you just saying it has to receive some data to signify that there was, in fact, a 69th frame?

[00:13:01] Speaker 01:
It has to receive the same data, the symbol that is transmitted during that time frame.

[00:13:08] Speaker 01:
in order for the both sides of the transmitter and the receiver to be in synchronization.

[00:13:14] Speaker 01:
But I mean, not to avoid this issue, but what I was trying to do, and this is what we tried to do to keep the board from going down the rabbit hole of this, is first, full power mode was never in dispute.

[00:13:27] Speaker 01:
Second, the court heard this morning the case preceding hours.

[00:13:32] Speaker 01:
That case involved the very same references that Eris raised in our case.

[00:13:37] Speaker 01:
And in that case, the board specifically held that Van Zingalum's pilot tone teaches the recited synchronization signal.

[00:13:47] Speaker 01:
The board held that in the 1799 appeal.

[00:13:50] Speaker 01:
In our appeal, Eris made the same argument in reply

[00:13:55] Speaker 01:
to the alternate claim construction offered by TQ Delta.

[00:13:59] Speaker 01:
And the board pointedly refused to consider that portion of the reply.

[00:14:04] Speaker 01:
And in doing so, Harris in the reply pointed back to the petition.

[00:14:09] Speaker 01:
They did not raise a new argument.

[00:14:11] Speaker 01:
The petition basically discussed what was known as frequency synchronization and frame synchronization.

[00:14:18] Speaker 01:
ARIS proposed the construction that the term synchronization signal be construed as a signal allowing frame synchronization.

[00:14:29] Speaker 01:
The board accepted that in the institution decision.

[00:14:32] Speaker 01:
In the patent owner's response, TQ Delta came back and said, no, no, you're focusing on frame synchronization.

[00:14:38] Speaker 01:
It really should be construed as only applying to frequency synchronization.

[00:14:43] Speaker 01:
In reply, Harris said, we don't agree with that, but if the board goes down that road and adopts that construction, we want to make it easier for the

[00:14:53] Speaker 01:
board to reach a decision, our petition shows how the references teach both frequency and frame synchronization.

[00:15:01] Speaker 01:
And we pointed back to the petition and showed how the frequency synchronization is taught in view of the pilot tone.

[00:15:10] Speaker 01:
And that is that Appendix 2339, when we described how the van Zingelum reference worked, we described the pilot tone.

[00:15:22] Speaker 01:
It was admitted by the patent owner that van Zingelum teaches the pilot tone, which the board found in 1799 meets the synchronization signal.

[00:15:32] Speaker 01:
But the board refused to consider it in our case.

[00:15:35] Speaker 01:
And we think our argument and our alternative argument is squarely governed by this court's decision in the Erickson versus Intellectual Ventures case that's cited in our reply brief.

[00:15:47] Speaker 01:
It was a case decided after we filed our appellates brief, but it's at 901 Fed 3rd, 1374.

[00:15:54] Speaker 01:
We think we're on all fours with that case.

[00:15:56] Speaker 01:
In that case, the board initially adopted construction proposed by the petitioner.

[00:16:02] Speaker 01:
Patent owner's response resulted in a change of construction.

[00:16:06] Speaker 01:
The petitioner pointed back to the petition and said, we meet that construction.

[00:16:10] Speaker 01:
The board refused to consider it.

[00:16:12] Speaker 01:
This court reversed and basically told the board, you committed clear error by not considering that reply because it was made in view of the petition.

[00:16:23] Speaker 01:
And I'd like to reserve what little time I have for the problem.

[00:16:38] Speaker 00:
I'm going to start with the ARIS appeal first.

[00:16:45] Speaker 00:
The court should affirm the PTAP's finding that the claims of the 404 patent are not unpatentable.

[00:16:50] Speaker 00:
There is no dispute that in its petition, ARIS pointed to the synchronization frame described in the T1.413 standard as teaching both the claimed synchronization frame and the synchronization signal.

[00:17:03] Speaker 00:
Based on this understanding, ARIS proposed a construction for synchronization signal as a signal that allows frame synchronization.

[00:17:11] Speaker 00:
TQDelta disputed that construction.

[00:17:14] Speaker 00:
In its reply, ARIS sought to change its invalidity theory by pointing to a new element from the standard, the pilot tone, to argue that the pilot tone limitation teaches a synchronization signal and the synchronization frame limitation

[00:17:32] Speaker 00:
The SYNC symbol from the T1.413 standard teaches a synchronization frame.

[00:17:37] Speaker 00:
The board found that this was a new theory and they refused to consider this argument.

[00:17:43] Speaker 00:
ARIS recognizes that the board's determination of whether a reply exceeds the scope of a proper reply in violation of 37 CFR is reviewed for an abuse of discretion.

[00:17:52] Speaker 00:
Here the board exercises discretion and correctly found that ARIS's reply constituted a new theory.

[00:17:58] Speaker 00:
Under the proper construction of synchronization signal, the board found that ARIS's original invalidity theory that it proffered in its petition was deficient.

[00:18:07] Speaker 00:
That should settle the matter.

[00:18:09] Speaker 00:
They argued for a construction.

[00:18:12] Speaker 00:
They had an invalidity ground that was based on merely the synchronization frame in combination with the Bowie reference.

[00:18:20] Speaker 00:
In their reply, they sought to come back and add another teaching from the evidence that wasn't relied on in the petition.

[00:18:29] Speaker 05:
But why not?

[00:18:29] Speaker 05:
They were replying to what you had raised.

[00:18:33] Speaker 00:
They are replying with a new ground.

[00:18:36] Speaker 00:
They are replying with new evidence.

[00:18:38] Speaker 00:
They were free to argue.

[00:18:40] Speaker 05:
Of course, because of the argument which had been presented.

[00:18:43] Speaker 05:
And so they said, well, in that case, there is this additional response.

[00:18:48] Speaker 05:
Well, what's wrong with that?

[00:18:52] Speaker 00:
What's wrong with that is it added

[00:18:55] Speaker 00:
It wasn't this evidence.

[00:18:57] Speaker 00:
It changed their invalidity theory.

[00:18:59] Speaker 00:
Their invalidity theory was synchronized sync frame from T1.413 standard plus Bowie.

[00:19:08] Speaker 00:
renders receiving a synchronization signal in full power mode, it teaches it.

[00:19:14] Speaker 00:
That was their position.

[00:19:16] Speaker 00:
They came back, and they sought to rewrite their reply to say, no, here's an additional signal, the pilot tone, that we now want to add into our combination to render this element.

[00:19:27] Speaker 05:
The violence of the defense that had been raised, they were replying to that information presented in response.

[00:19:35] Speaker 05:
And therefore they said, well in that case there is something new.

[00:19:39] Speaker 05:
What's troubling, had all of this taken place in a federal court, in a district court, of course all available information must be considered.

[00:19:51] Speaker 05:
to cut it off because it wasn't presented at the threshold of the administrative process is extremely troubling.

[00:19:59] Speaker 05:
It seems to me that what's appropriate is to consider the merits of all aspects of the technology to try and get it right.

[00:20:09] Speaker 05:
And here we are trying to get it right.

[00:20:12] Speaker 05:
And you say, well, no, there's this evidence which could change the result.

[00:20:17] Speaker 05:
But because this is an administrative agency, the bureaucracy has spoken.

[00:20:23] Speaker 00:
Yes, in some ways the administrative agency says that a petitioner should make their case in chief in their petition.

[00:20:31] Speaker 00:
They set the table based on their petition, and those are the ground rules.

[00:20:35] Speaker 00:
And the board does allow you to respond, does allow a petitioner to respond in their reply.

[00:20:42] Speaker 00:
The board retains discretion to determine if something crosses the threshold from being just a proper response to something that exceeds the scope of the response.

[00:20:51] Speaker 00:
In this case,

[00:20:52] Speaker 00:
the board found that changing the theory of invalidity to include this pilot tone exceeded the scope of their initial invalidity theory.

[00:21:02] Speaker 00:
That's essentially what the board found.

[00:21:04] Speaker 05:
And so if they did not receive any semblance of federal due process in the agency, where does the estoppel come in, which would take place in an infringement suit, and all the rest of it?

[00:21:17] Speaker 05:
Our goal is really

[00:21:20] Speaker 05:
to find the right answer using the standard procedures of litigation.

[00:21:28] Speaker 05:
And here we have the agency interposing some rules which might apply at threshold examination, but these are judicial processes taking place.

[00:21:41] Speaker 00:
Your Honor, the PTABS rules cut both ways.

[00:21:45] Speaker 00:
There are instances when a patent owner believes a new argument is raised in a reply.

[00:21:52] Speaker 00:
The board finds the other way and does not give a patent owner a chance to provide a sub-reply because the board can exercise discretion.

[00:21:59] Speaker 00:
to determine if a sir reply is proper.

[00:22:02] Speaker 00:
So the way the WALL-E is set up is those are the rules of the game.

[00:22:06] Speaker 00:
You get a petition, you make your case in chief in the petition, and you get to reply.

[00:22:11] Speaker 00:
And the board decides if a reply was a proper scope.

[00:22:14] Speaker 05:
All the statute requires of the petition is one to show that one claim might be vulnerable, and then the rest of it comes out during the litigation procedures.

[00:22:28] Speaker 00:
Yes, but consider a district court case, if you want to consider a district court case.

[00:22:34] Speaker 00:
You have an invalidity theory.

[00:22:35] Speaker 00:
You provide an invalidity contention.

[00:22:37] Speaker 00:
It's in your contention chart.

[00:22:39] Speaker 00:
That's the contention you're stuck with.

[00:22:41] Speaker 00:
Even when the experts on the stand, and if the expert tries to rely on a new reference or teaching from a reference to bolster his or her invalidity case,

[00:22:53] Speaker 00:
the other side can object and the judge doesn't let it come in.

[00:22:56] Speaker 00:
That's essentially what happened here.

[00:22:58] Speaker 00:
Though, of course, it happened at the reply stage.

[00:23:02] Speaker 00:
But it's common even in district court litigation where a party is held to their infringement contentions and they're held to their invalidity contentions.

[00:23:15] Speaker 00:
Just because there's an evolving understanding of the record doesn't allow a party to change their invalidity grounds

[00:23:23] Speaker 03:
when there's no option for the patent owner to respond to these new invalidity grounds.

[00:23:43] Speaker 03:
And in it, I want to take you towards the bottom.

[00:23:47] Speaker 03:
You say that Eris didn't provide any expert testimony regarding synchronizing counters.

[00:23:53] Speaker 03:
And you say instead, Eris just pointed to the language and the specification about synchronizing the frame counters and made conclusory statements that the synchronization signal was properly construed as a signal allowing frame synchronization between the transmitter and the receiver.

[00:24:09] Speaker 03:
And then you leap to, accordingly,

[00:24:13] Speaker 03:
Because frame counting is not the same as frame synchronization, the section of the specification relied upon by Eris does not support its construction of synchronization signal.

[00:24:24] Speaker 03:
Supposing we disagree with you on your underlying premise based on our prior discussions, and we agree with Eris that synchronization signal is properly construed the way they say.

[00:24:42] Speaker 03:
What does that do to your argument?

[00:24:46] Speaker 00:
Synchronize it.

[00:24:49] Speaker 00:
So you're on just to understand your question.

[00:24:51] Speaker 00:
Your question is?

[00:24:52] Speaker 03:
The question is, if we agree with Eris on its prior arguments about synchronization signals, what does it do to your argument here in defense of the board's position?

[00:25:04] Speaker 00:
I think it doesn't change the argument that much.

[00:25:08] Speaker 03:
One of the reasons the board found... The reason I'm asking that question is because you based everything following on the presumption that you were correct.

[00:25:19] Speaker 00:
We were correct because that is what the patent specification teaches of what a synchronization signal means.

[00:25:24] Speaker 00:
The board construed synchronization signal as the signal 62A, which allows the clock at one end to operate in synchronism with the other.

[00:25:35] Speaker 00:
In fact, the word synchronism appears several times.

[00:25:37] Speaker 00:
If frame counting is the same as frame synchronization, what does that do to your argument?

[00:25:42] Speaker 03:
Let me put it that way.

[00:25:44] Speaker 00:
It doesn't harm our argument because, like the board said, the claim requires two distinct elements, synchronization frame and synchronization signal.

[00:25:56] Speaker 00:
By referring to the synchronization signal as something that does frame synchronization, you essentially are conflating the synchronization frame that's being received in the full power mode and the synchronization signal that is also being received in the full power mode.

[00:26:09] Speaker 04:
But the synchronization signal also triggers frame counting, correct?

[00:26:18] Speaker 04:
In other words, the frame counter is connected to the clock.

[00:26:25] Speaker 00:
It is one of the things it's used for.

[00:26:28] Speaker 04:
The clock is used to keep time, but the goal... So the two are associated together, are they not?

[00:26:38] Speaker 00:
We disagree that the goal of frequency or timing synchronization is to keep the PLLs at either end in lock, so that if you're operating at 50 kilohertz on this side, you're operating at 50 kilohertz on the other side.

[00:26:52] Speaker 04:
But is it not then important to associate the frame counter with the clock?

[00:27:00] Speaker 00:
No, the frame counter moves by counting these individual frames as they're coming in.

[00:27:05] Speaker 00:
The frame counter is keeping track of frame counter one, two, three, four, five as they're coming in.

[00:27:11] Speaker 04:
Doesn't the frame counter receive a signal from the clock?

[00:27:16] Speaker 04:
The frame counter is keeping... I thought that's what, if you look at figure two, I'm sorry, figure one,

[00:27:30] Speaker 00:
The clock is going to the controller and the controller is something like a computer, if you will, that's just keeping track of, is just counting the frames.

[00:27:49] Speaker 00:
So at the end of the day, the clock is the heart of that machine.

[00:27:54] Speaker 00:
It's what keeps the machine going.

[00:27:56] Speaker 00:
It's the metronome.

[00:27:57] Speaker 00:
That drives all the operations.

[00:27:59] Speaker 00:
But maintaining synchronization means maintaining your clocks in synchronization.

[00:28:07] Speaker 00:
Nothing else is going to work if your clocks are not synchronized.

[00:28:11] Speaker 00:
And that is what the Boats Construction addresses.

[00:28:14] Speaker 00:
The Boats Construction says that

[00:28:17] Speaker 00:
that you use a clock signal, the synchronization signal is used to keep the two clocks synchronized.

[00:28:23] Speaker 00:
And our position is that the board got the construction correct.

[00:28:27] Speaker 03:
At page 51, you characterize Eris making a peculiar argument.

[00:28:35] Speaker 03:
And then you respond saying, this argument has nothing to do with whether the board erred in its construction of synchronization signal.

[00:28:44] Speaker 03:
And then you say, second,

[00:28:46] Speaker 03:
Whether Erics showed that the prior art teaches the limitation of receive in the low power mode, a synchronization signal, is not an issue on appeal.

[00:28:57] Speaker 03:
What do you mean by that?

[00:28:58] Speaker 03:
Is that a concession on your part?

[00:29:00] Speaker 00:
No, it's not a concession.

[00:29:01] Speaker 00:
The board did not get, the board got to the third element of the claim, which is receive in full power motor synchronization signal, and found Harris's petition to be deficient in that they hadn't shown a teaching in the prior art of a synchronization signal under the correct construction.

[00:29:17] Speaker 00:
So they did not go down to the other elements of the claim to investigate if receive in full, in the low power motor synchronization signal is met by the combination.

[00:29:26] Speaker 00:
The board never reached the merits of that argument.

[00:29:29] Speaker 00:
So that there is nothing in the final written decision directed to that element of the claim received in the low power mode.

[00:29:40] Speaker 03:
I'm not sure why that doesn't make it an issue in the appeal.

[00:29:45] Speaker 03:
It may be that they aired you're not doing it.

[00:29:47] Speaker 03:
Is that not correct?

[00:29:49] Speaker 00:
The board addressed the arguments made in the petition, and I don't believe the board is required to address every argument made.

[00:30:00] Speaker 00:
Once they've shown that the petition is deficient and the claims are not unpalatable, they don't need to keep going and addressing each and every limitation of the claim.

[00:30:11] Speaker 00:
Once they've made a determination that the claim is not unpalatable, at least for one reason.

[00:30:26] Speaker 00:
I would like to turn to the Cisco argument in the one minute that I have left.

[00:30:32] Speaker 00:
Cisco's petition pointed to the synchronization frame as teaching both the claim synchronization frame and the synchronization signal received in full power mode.

[00:30:42] Speaker 00:
Cisco in its reply continued to press this understanding.

[00:30:46] Speaker 00:
The board disagreed and based on an in-depth analysis of the patent specification concluded that the claim synchronization signal is only used for timing synchronization and based on that understanding adopted a construction.

[00:31:01] Speaker 00:
Cisco makes several arguments.

[00:31:02] Speaker 00:
Several of these arguments are new.

[00:31:04] Speaker 00:
They were never made.

[00:31:05] Speaker 00:
They were never made in any of the papers down below.

[00:31:08] Speaker 00:
We've mentioned that in our briefs that certain of these arguments were waived.

[00:31:14] Speaker 00:
This distinction that they're trying to draw between a synchronization frame and a synchronization signal and what data is in a synchronization frame is the synchronization signal.

[00:31:24] Speaker 00:
These are arguments that appear nowhere in the record below.

[00:31:27] Speaker 00:
This is an argument created of whole cloth that expert devoted merely a paragraph in his expert report regarding this claim element.

[00:31:38] Speaker 00:
Cisco comes back in its brief here with four pages of evidence that has never been cited for this proposition.

[00:31:47] Speaker 00:
I'm out of time here.

[00:31:50] Speaker 05:
One last sentence.

[00:31:53] Speaker 00:
Cisco argues the board aired because it misinterpreted Cisco's argument that was relying on the symbol transmitted within the frame as disclosing the synchronization signal.

[00:32:02] Speaker 00:
The distinction that Cisco seeks to draw was never raised below.

[00:32:04] Speaker 00:
TQ Delta pointed out in its POR that Cisco was improperly relying on the synchronization frame as teaching both.

[00:32:12] Speaker 00:
Cisco did not reply, did not come back with all this evidence in his reply and said, no.

[00:32:16] Speaker 00:
Cisco should have clarified, no, we are pointing to two different things.

[00:32:19] Speaker 00:
They did not come back in their reply and point it out.

[00:32:23] Speaker 00:
Instead, now, they come back with four pages of new argument.

[00:32:29] Speaker 00:
Cisco also argues that this court should entertain the attorney argument offered during the oral hearing at the PTAB.

[00:32:34] Speaker 00:
This argument was a new theory that was never argued in any papers.

[00:32:38] Speaker 00:
No experts opined on it.

[00:32:40] Speaker 00:
Under Delvey-Exceleron line of cases, the board was correct in not entertaining any of the arguments that were made at the oral argument.

[00:32:47] Speaker 05:
OK.

[00:32:47] Speaker 05:
Thank you.

[00:32:52] Speaker 05:
OK.

[00:32:52] Speaker 05:
You have two minutes.

[00:32:58] Speaker 02:
Thank you, Your Honor.

[00:32:58] Speaker 02:
I'd like to address opposing counsel's statement that Cisco is making new arguments here on appeal.

[00:33:05] Speaker 02:
and I direct the Court's attention to Appendix Page 345.

[00:33:08] Speaker 02:
There, this is part of the petitioner's reply that was filed in the case below.

[00:33:13] Speaker 02:
We stated that the petition establishes that a posita, a person of ordinary skill in the art, would understand that a synchronization symbol in the ANSI specification is a type of synchronization signal because it is used to maintain timing synchronization with a remote transceiver.

[00:33:32] Speaker 02:
Cisco was very clear, first in its petition and even more clear here in its reply, that what it was relying on to teach the claimed synchronization signal was the prior arts synchronization symbol.

[00:33:47] Speaker 02:
And the allegations that that is a new argument are simply inconsistent with the statement that I just read from the record.

[00:33:57] Speaker 02:
Then Judge Lynn, you asked a question about what is it about the synchronization symbol that makes it special.

[00:34:03] Speaker 02:
And I'd like to answer that question by directing attention to appendix page 1319 and 1320, where the synchronization symbol is described in the ANSI standard.

[00:34:16] Speaker 02:
And specifically on page 1320, it explains that there's a specific data pattern used to generate the synchronization symbol.

[00:34:26] Speaker 02:
It's defined by a particular pseudorandom sequence, which is a defined data pattern provided under the standard.

[00:34:33] Speaker 02:
And that is what allows both the transmitter and receiver to know that this data is the synchronization symbol.

[00:34:40] Speaker 02:
That's a square answer.

[00:34:41] Speaker 02:
Thank you.

[00:34:43] Speaker 05:
Thank you.

[00:34:43] Speaker 05:
Thank you.

[00:34:53] Speaker 05:
Senator Mr. Gresham.

[00:34:56] Speaker 01:
Very quickly.

[00:34:57] Speaker 01:
I'd like to point out that in the 1799 appeal, which involved the same references relied upon by Ayres, notably TQ Delta did not challenge on appeal the court's finding that pilot tone taught the synchronization signal.

[00:35:12] Speaker 01:
There's really no dispute, especially with regard to full power mode.

[00:35:16] Speaker 01:
And we cited this in our brief, that there's all sorts of admissions that full power mode is shown by the ADSL standard, period, paragraph.

[00:35:24] Speaker 01:
There's nothing inventive about the full power mode.

[00:35:27] Speaker 01:
I would just like to point out with regard to the reply in the argument TQ Delta, one of their final arguments, faulted Cisco for not raising some argument in the reply and said the board was correct in not considering it because it was not in the reply.

[00:35:43] Speaker 01:
Harris did raise an argument in the reply.

[00:35:46] Speaker 01:
The board did not consider that, and TQ Delta also says that that's correct.

[00:35:51] Speaker 01:
The board didn't abuse its discretion.

[00:35:53] Speaker 01:
We submit that this court has squarely held in the Ravalma case, the court said, when a patent owner argues for a claim construction in its response, a petitioner can and should, quote, present a case for unpatentability under that construction when it has the opportunity in its reply.

[00:36:13] Speaker 01:
The party in that case didn't do it in the reply, and the court essentially held that they had their chance in the reply, and they didn't address it.

[00:36:21] Speaker 01:
Harris did address it in the reply and the board refused to consider it.

[00:36:26] Speaker 01:
We would also say if the board

[00:36:29] Speaker 01:
affirms the 1799 case, then that would also be dispositive of this case, because basically that case challenged the same patent on the same grounds.

[00:36:40] Speaker 01:
The only difference being that that case did not address some of the dependent claims, and Harris challenged all the claims 1 through 20.

[00:36:48] Speaker 01:
And there was no argument below whatsoever of any independent patentability of the dependent claims, except for the patentability of the independent claim.

[00:36:59] Speaker 05:
Okay, thank you.

[00:37:01] Speaker 05:
Thank you all.

[00:37:02] Speaker 05:
This is taken under submission.