[00:00:00] Speaker 03: Also called Colabo Innovations against Sony Corporation. [00:00:19] Speaker 02: May it please the court? [00:00:20] Speaker 02: I represent Colabo Innovations in this appeal as well. [00:00:24] Speaker 02: My name is Dan Oleko. [00:00:25] Speaker 02: We seek reversal of the board's final decision. [00:00:28] Speaker 02: on two grounds, an erroneous construction of peripheral circuit region, as well as the finding that Asano renders obvious the patent and discloses the peripheral circuit region under the board's construction. [00:00:44] Speaker 02: We also seek vacator of the board's decision on the grounds that the IPR was unconstitutional. [00:00:52] Speaker 02: With respect to the peripheral circuit region construction, the board [00:00:56] Speaker 02: read out a portion of the claim language. [00:00:59] Speaker 02: We're talking about the claim language as peripheral circuit region. [00:01:03] Speaker 02: The board construed that to mean a region located in the periphery that is used for circuits. [00:01:09] Speaker 02: It didn't require that there are any peripheral circuits in the peripheral circuit region, which defies basic grammar. [00:01:18] Speaker 02: When you're talking about peripheral circuit region, you've got two noun modifiers both describing what the region is. [00:01:26] Speaker 02: So peripherals describing what kind of circuits are in the region. [00:01:33] Speaker 02: But the board interpreted peripheral to only relate to where the region's located, which renders a portion of the claim redundant. [00:01:43] Speaker 02: The full phrase is a peripheral circuit region formed on a main surface of the semiconductor substrate and formed in an outer peripheral portion of the imaging region. [00:01:54] Speaker 02: If peripheral circuit region, if the peripheral part was only modifying region and it was not peripheral circuit, then it would have been unnecessary to use peripheral again later on in that same clause. [00:02:10] Speaker 02: Excuse me. [00:02:12] Speaker 02: So the word peripheral clearly modified circuit and the board did not require the presence of any circuits at all in the peripheral circuit region. [00:02:20] Speaker 04: What do you make of the board's [00:02:22] Speaker 04: characterization of the claim is requiring that not any particular specific type of circuit be formed in the peripheral circuit region, but instead the claims require only a peripheral region that is used for circuits. [00:02:39] Speaker 04: So that sounds like it isn't simply saying that circuits have no relation to the peripheral region. [00:02:47] Speaker 02: Well, the board there was injecting a use limitation into a purely apparatus claim. [00:02:52] Speaker 02: There's no place for that as this court decided a decade ago in Paragon Solutions. [00:02:58] Speaker 04: Don't read used for circuits to be a shorthand for where circuits are present? [00:03:04] Speaker 02: Well, that is not what the board said. [00:03:08] Speaker 02: I mean, the board said used for circuits. [00:03:10] Speaker 01: I was going to say it says it doesn't require any particular type of circuit. [00:03:17] Speaker 01: And you take that in juxtaposition, which is that it has to be used for circuits. [00:03:22] Speaker 01: seems to support our understanding that what the board is saying here is that it has to be circuits, not reading out the word circuits, but instead we're not going to limit it to a particular type of circuit as argued. [00:03:38] Speaker 02: Well, I understand that interpretation of the board's decision, but the real problem is that it didn't require any particular type of circuits to be present. [00:03:50] Speaker 04: So that's really the heart of your argument, is your argument that the circuits had to be a specific type of circuits, including a MOSFET. [00:03:57] Speaker 02: They had to be peripheral circuits in the peripheral circuit region, which makes sense, I think. [00:04:04] Speaker 02: Right. [00:04:04] Speaker 02: But not just circuits in the peripheral region. [00:04:07] Speaker 02: Peripheral circuits is a special term. [00:04:11] Speaker 02: It's used throughout the specification, and the specification refers to protection circuits in particular as a type of peripheral circuit. [00:04:20] Speaker 04: How about the point that a diode is a form of protective circuit? [00:04:29] Speaker 02: I think a diode is a part of a circuit. [00:04:34] Speaker 04: Yeah, I wondered about that. [00:04:35] Speaker 04: The references to the diode sometimes refer to it as the diode, as in rectifier, but sometimes seem to refer to it as a circuit. [00:04:47] Speaker 04: I wonder if that isn't the diode [00:04:50] Speaker 04: when referred to as the circuit isn't just a shorthand form of a circuit containing a diode. [00:04:57] Speaker 02: Are you talking in reference to a particular part of the specification or just the prior art in general? [00:05:02] Speaker 04: The prior art. [00:05:03] Speaker 02: The prior art. [00:05:04] Speaker 02: So I don't think the prior art specifically referred to the diode as a circuit, but even in the only reference at issue here is a sano. [00:05:14] Speaker 02: In a sano's reference to a protective diode, [00:05:17] Speaker 04: That's the reference I'm talking about, is the protective diode in a sano. [00:05:22] Speaker 02: The protective diode in a sano, well, so first off, Petitioner's appellee had the burden of showing that the protective diode was a circuit, and I don't believe they really addressed that, they just assumed it was a circuit element, I think was their expert's conclusion, without any real basis, but even assuming that is [00:05:47] Speaker 02: a circuit, it was disclosed in a manufacturing process portion of Asano, which describes the manufacturing process for a CCD chip. [00:06:00] Speaker 02: And the figures 1 and 8, those embodiments in Asano, which Sony relied upon to show the disclosure of the initial portions of the claim elements, are not a CCD. [00:06:13] Speaker 02: So you can't take a process for manufacturing a CCD [00:06:16] Speaker 02: and apply it to a non-CCD structure unless you have some motivation to do so, and their expert never provided any testimony about that whatsoever. [00:06:26] Speaker 02: Obviousness, even on a single source reference, requires some motivation to combine if you're gonna be combining and mixing and matching different embodiments of that reference. [00:06:40] Speaker 02: So the issue with Asano is primarily one of [00:06:45] Speaker 02: There's no motivation to combine that embodiment related to a manufacturing process with the other embodiments in Asano that do not disclose in the figures or it doesn't disclose in the text a reference to a protective diode. [00:07:11] Speaker 02: But as I noted, [00:07:13] Speaker 02: pretty clear throughout the specification that the peripheral circuit region must include a peripheral circuit or at least a protective circuit. [00:07:24] Speaker 02: Every embodiment talks about having the specific semiconductor layers that form a protective circuit or a peripheral circuit. [00:07:34] Speaker 02: All the figures show those layers. [00:07:37] Speaker 02: The logical conclusion, because of all of the disclosures in the embodiments, is that [00:07:42] Speaker 02: peripheral circuit region requires a peripheral circuit. [00:07:47] Speaker 02: In addition, the patent's intended purpose deals with preventing source leakage, dark current associated with etching through a PNN junction. [00:08:00] Speaker 02: We don't have a PNN junction if you don't have a circuit present in those circuit layers. [00:08:08] Speaker 02: So if there was no peripheral circuit in the peripheral circuit region, [00:08:12] Speaker 02: you wouldn't even need the patent. [00:08:16] Speaker 02: The patent wouldn't be accomplishing its intended purpose, at least. [00:08:21] Speaker 02: And importantly, the board ignored Dr. Aframowicz's testimony with respect to this limitation. [00:08:30] Speaker 02: Dr. Aframowicz's testimony was uncontradicted. [00:08:34] Speaker 02: At least the board just never addressed it. [00:08:39] Speaker 02: The board's analysis [00:08:41] Speaker 02: discussed it generally in the summaries of the party's arguments, but it never explained why it disagreed with Dr. Oframowicz, which is in itself an error because the board is required to explain the basis for its decisions and didn't do so there. [00:08:59] Speaker 02: And while Sony argues that Dr. Oframowicz's testimony is inconsistent with Collabo's claim construction, the board declined to address that issue specifically in its decision. [00:09:10] Speaker 01: I didn't read your brief necessarily as raising that last issue of whether the board adequately explained its reasoning by not clearly addressing your expert's testimony. [00:09:24] Speaker 01: Is that raised in your brief? [00:09:26] Speaker 02: It's discussed at least in the reply brief, but I don't know if it's teed up specifically as a separate issue for vacator. [00:09:36] Speaker 01: I didn't see it in your opening brief. [00:09:40] Speaker 02: And with respect to the retroactivity issue with the 724 patent, we don't dispute the fact that that patent issued after the AIA. [00:09:52] Speaker 02: The problem here is that the patent had a notice of allowance immediately before the passage of the AIA. [00:09:58] Speaker 02: And so the AIA happened just in that intervening period between the notice of allowance and between issuance. [00:10:05] Speaker 02: In fact, the IPR statute itself, by virtue of the AIA, [00:10:09] Speaker 02: wasn't even in effect until a year after the AIA's passage. [00:10:14] Speaker 02: So the IPR statute, in the end, is being applied retroactively to the 724 patent. [00:10:23] Speaker 02: So it suffers the same unconstitutional and constitutionality issues as the 714. [00:10:29] Speaker 04: Do you think, for retroactivity purposes, the effective date of the statute is what governs as opposed to the date in which it was enacted? [00:10:39] Speaker 04: Everyone's on notice as of the day it's enacted. [00:10:42] Speaker 02: That's true. [00:10:44] Speaker 02: And while it's generally true that the law applies as of the date of the issuance of the patent, it's also true, and I don't think this is really disputed by the cases, but it's reflected in Justice Stevens' dissent in Aldrich v. Ashcroft, that Congress can't change the bargain between the public and the patentee in a way that disadvantages the patentee. [00:11:07] Speaker 02: And that's really what happened here. [00:11:09] Speaker 02: When you get to that process of going through prosecution, getting a notice of allowance, you've already disclosed your invention to the public. [00:11:17] Speaker 02: The patentee has already provided its end of the bargain. [00:11:21] Speaker 02: And to have the bargain change at the last minute is just unfair. [00:11:26] Speaker 02: And I think it's detrimental, just as it is for a patentee who gets their patent issued before the AIA. [00:11:36] Speaker 02: So I'm going to reserve there some time for a vote. [00:11:38] Speaker 02: Thank you. [00:11:40] Speaker 05: Thank you, Your Honors. [00:11:46] Speaker 05: Matthew Smith for the appellee again. [00:11:49] Speaker 05: Let me begin by addressing, I think, the confusion regarding the construction of Purple Circuit region. [00:11:57] Speaker 05: In the gray brief, Collabo has a footnote, too, which says, Sony's argument that the specification does not require [00:12:05] Speaker 05: MOSFETs formed the p-type and n-plus type semiconductor layer in the peripheral circuit region as a straw man argument, and Collabo did not make this argument in its opening brief. [00:12:16] Speaker 05: The thing is that was Collabo's argument to the board. [00:12:20] Speaker 05: MOSFETs formed in a p-type and n-plus type layer. [00:12:24] Speaker 05: And that argument is now being characterized as Sony bringing up a straw man, which presumably means sort of weak argument you bring up to easily shoot it down [00:12:33] Speaker 05: So I think this is an acknowledgement that the Collabo is just flat out changing the construction on appeal. [00:12:40] Speaker 05: And I understand there's some latitude to look into the intrinsic evidence and maybe support the construction in a different way without waiver, but I don't think that latitude extends to a wholesale different construction on appeal, which I understand the construction on appeal now to be that the peripheral circuit region has to have a protective circuit, not a MOSFET, a protective circuit formed in [00:13:03] Speaker 05: P-type and N-plus type layers and a MOSFET. [00:13:07] Speaker 05: So I think it's changed to that on a few. [00:13:10] Speaker 05: But regardless of what various constructions may be out there, I think the board is right in the way it construed the claims. [00:13:19] Speaker 05: They were right to reason, I think, from the literal language of the claims, the way claim one is set up as dividing the chip into an imaging region, a peripheral circuit region, [00:13:29] Speaker 05: and specifying the components that are in each region to the extent they want to do that. [00:13:34] Speaker 05: The board noted the imaging region has some specific components while the peripheral circuit region does not, and I think that's certainly telling and certainly something the board was correct to factor in. [00:13:46] Speaker 05: Collabo's argument also, I think, depends on a peripheral circuit being a sort of known thing in the specification. [00:13:56] Speaker 05: And it's just not. [00:13:57] Speaker 05: It's the only place that peripheral circuit [00:13:59] Speaker 05: occurs on its own in the specification is in column two, lines six to eight. [00:14:04] Speaker 01: Are you saying that there is that kind of a lexicography you're responding to, a suggestion that there's a lexicography argument going on here, there's an express definition? [00:14:14] Speaker 05: Yes, there's certainly a lexicographic, lexicographical element to that, Judge Stoll, but there's another element to that too, and it relates to Colabo's argument that there's a redundancy in the claim because the claim says [00:14:26] Speaker 05: peripheral circuit region and then gives a location which is on the periphery. [00:14:30] Speaker 05: And I think what the inference collaboration wants to draw from that is that the word peripheral, although in sort of its ordinary parlance would mean on the edges, is actually here talking about a type of circuit. [00:14:43] Speaker 05: And so that leads to the question, well, what is a peripheral circuit in the specification? [00:14:47] Speaker 05: Because if a peripheral circuit is broadly defined or undefined in the specification, then the board was just right to say, [00:14:53] Speaker 05: There's a region out there on the periphery and it has to be used for circuits. [00:14:56] Speaker 05: But if it's something specific in the specification, then maybe the board needed to include that in the construction. [00:15:02] Speaker 05: So that's the issue it's driving at. [00:15:03] Speaker 05: And there isn't anything specific in the specification that says a peripheral circuit is this. [00:15:08] Speaker 05: The only time peripheral circuit is mentioned on its own without region following it is that passage in column two where the 724 patent [00:15:21] Speaker 05: seems to set it off in juxtaposition to the protective circuit, which is what Collabo now wants to read into the claim language. [00:15:31] Speaker 05: Specifically, it says the peripheral circuit, comma, the protective circuit, and the like are- What line are you on? [00:15:37] Speaker 05: I'm sorry. [00:15:37] Speaker 05: I'm on column two, line six. [00:15:40] Speaker 05: Okay. [00:15:42] Speaker 05: The protective circuit and the like are formed in the P-type semiconductor layer 112. [00:15:46] Speaker 05: That's the only place I could find where peripheral circuit stands on its own. [00:15:49] Speaker 05: as opposed to being descriptor for the term region. [00:15:54] Speaker 03: There are certain... Just to be precise, there's standalone and then there's with something else. [00:15:59] Speaker 03: Is something else always the word region or might there be something, a different word from region that makes it not standing alone? [00:16:07] Speaker 05: I don't think I've done that analysis, Your Honor, but from memory, I believe it is region every single time. [00:16:15] Speaker 05: Consistently region, but with a qualification. [00:16:21] Speaker 05: Peripheral circuit region is described in some of the embodiments as having various things, but what Collabo is attempting to add now, I think, which is the protective circuit that is formed in a p-type and n-plus type layer, is not necessary in any way for the invention, I think, despite what my counterpart said. [00:16:41] Speaker 05: In fact, the invention, as the board described it in appendix pages three to seven of their [00:16:46] Speaker 05: was avoiding having the through electrode cut across a p-n junction. [00:16:52] Speaker 05: So it's really the absence of a p-n junction in the region of a through electrode that constitutes what they're describing as the invention, which means that you can have the invention without having a p-n junction there. [00:17:04] Speaker 05: The important point for the invention is that the p-n junction is absent in the region of the through electrode. [00:17:11] Speaker 05: And so it's not necessary to have [00:17:13] Speaker 05: a protective circuit formed of a p-layer and an n-plus type layer in order to achieve what the patent is describing as the invention. [00:17:22] Speaker 05: And I would also point out that the patent actually says that in the peripheral circuit region you don't need to form the p-type layer and you don't need to form the n-type layer, and this is at column five, lines 38 to 47, and it's repeated a couple of times in the specification. [00:17:40] Speaker 05: And I think that just goes back to the fact that you can [00:17:44] Speaker 05: form what they thought of as the invention, having a through electrode that doesn't cut across these various layers and therefore doesn't generate the leakage and the dark current without having P and N-type layers there. [00:17:54] Speaker 05: Because the point is the absence of those layers around where the electrode is penetrating through the entire semiconductor. [00:18:03] Speaker 05: Let me address quickly the question of whether, Judge Bryson's question of whether the diode is a circuit. [00:18:08] Speaker 04: Yes, thank you. [00:18:08] Speaker 04: I was just going to ask. [00:18:10] Speaker 05: No problem. [00:18:14] Speaker 05: as background was not an issue that was brought up below. [00:18:17] Speaker 05: So we're now sort of fishing around in the record on appeal. [00:18:20] Speaker 05: But the 724 patent does it exactly the same way. [00:18:26] Speaker 05: So at column five has a protective circuit. [00:18:31] Speaker 05: The word circuit is attached to the diode, and it's only a diode. [00:18:36] Speaker 05: And this is column five, lines 36 to 38. [00:18:38] Speaker 04: But that's really not precisely accurate, right? [00:18:41] Speaker 04: A diode [00:18:42] Speaker 04: Standing alone is not a circuit anymore than a capacitor or a resistor is a circuit, right? [00:18:48] Speaker 05: Yeah, it gets a little bit metaphysical. [00:18:50] Speaker 05: It's a circuit element. [00:18:52] Speaker 04: Just down at the much below metaphysical level, which I operate, it seemed to me that I can go to, well, I used to be able to go to Radio Shack and get a diode. [00:19:05] Speaker 04: And it would come in a little package, and it would be, it would have a wire going at one end and a wire going at the other. [00:19:13] Speaker 05: There's no way that's a circuit, right? [00:19:14] Speaker 05: Right. [00:19:15] Speaker 05: So I would say a couple of things to that. [00:19:17] Speaker 05: One is that in the complete circuit in any computer system is the connection all the way back to the power plant, right? [00:19:23] Speaker 05: It's the full closed loop, okay? [00:19:26] Speaker 05: But in normal parlance, you wouldn't say, well, the laptop I have here with me doesn't have circuits in it, because it doesn't have circuits until I hook it up to power, right? [00:19:35] Speaker 05: In the normal parlance... Battery, that's probably good enough. [00:19:37] Speaker 05: Yeah, but you could, can see, just take the battery off and the same thing would apply, right? [00:19:42] Speaker 05: There's a closed, there's an open circuit there that's not a complete circuit, and yet we're still going to call it circuits. [00:19:48] Speaker 05: In the 724 patent, they also call it a circuit, and it's just a diode. [00:19:52] Speaker 05: This is what I was referring to at column five, lines 36 to 38, where they say the P layer and the N plus layer forms the protective circuit. [00:20:01] Speaker 05: And that is a diode. [00:20:03] Speaker 05: Just a P and an N layer together is a diode. [00:20:06] Speaker 05: And that is what they call the protective circuit. [00:20:09] Speaker 01: You're saying 36 to 38? [00:20:11] Speaker 01: 36 to 38. [00:20:16] Speaker 05: So the 724 patent itself is calling the diode that it says exists in the peripheral circuit region in this embodiment a protective circuit. [00:20:26] Speaker 05: So it's using the shorthand as a diode for a circuit. [00:20:29] Speaker 05: And the third thing is [00:20:30] Speaker 05: The protective part of the diode doesn't occur unless one side of the diode is hooked up to the bonding pad and the other side is hooked up to ground or to power, depending on what kind of diode it is. [00:20:42] Speaker 05: The function of the protective circuit is to allow a pathway for current that might build up if there's a static electricity charge to go to ground. [00:20:51] Speaker 05: And it's not protective if the ends of it aren't hooked up in a circuit. [00:20:54] Speaker 05: So the very fact that the Asano reference says protective diode indicates that it's hooked up in a circuit. [00:21:00] Speaker 05: If that's the issue of whether a sano is implanting a sort of dead diode in the peripheral circuit region, I don't think that's technically a very telling issue. [00:21:12] Speaker 05: Of course the protective diode on a sano is hooked up and it works the way one expects protective diodes to work, but also not an issue that was raised below, so we don't necessarily have the record to say that. [00:21:25] Speaker 05: I just want, in the 20 seconds that are left, bring one factual issue relating to the constitutional issues, and that is that in the Takings analysis, in the retroactivity analysis, there's this idea of investment-backed expectations. [00:21:38] Speaker 05: Colabo actually purchased these patents in 2014, both the 714 and the 724, that's the subject of this appeal. [00:21:45] Speaker 05: That's also not in the record because the constitutional issues weren't raised below, so something perhaps that could have been developed. [00:21:51] Speaker 03: And since you mentioned Takings, [00:21:54] Speaker 03: My misremembering that in takings law the Supreme Court has said the time of acquisition is not actually going to essentially start but set the clock back to zero on the takings claim. [00:22:09] Speaker 05: I don't know whether you're misremembering that or not, Your Honor. [00:22:14] Speaker 05: Thank you very much. [00:22:15] Speaker 00: Thank you, Your Honor. [00:22:23] Speaker 00: I just wanted to make [00:22:24] Speaker 00: Two quick points. [00:22:26] Speaker 00: First, in this case, their constitutional challenge fails at the threshold because, as has already been discussed, the patent was issued after the AIA was passed. [00:22:34] Speaker 00: So there's no retroactive application of the law here at all. [00:22:37] Speaker 00: Second, just on the forfeiture question, I just would be remiss if I didn't mention in Ray DBC in which this court held that a constitutional challenge to the Board of Patent Appeals and Interferences was waived because it wasn't raised before the board. [00:22:51] Speaker 00: And on the DC Circuit case that... I don't remember that case. [00:22:55] Speaker 03: In that case, were there or could there easily have been properly appointed board judges who could have then proceeded to carry out the statutory function? [00:23:05] Speaker 00: Yes, Your Honor. [00:23:05] Speaker 00: There were... They could have assigned the case to a panel of judges that were properly appointed. [00:23:10] Speaker 03: And just so here... That's not really true here. [00:23:12] Speaker 03: Here, the option for the agency [00:23:18] Speaker 03: to make the challenge non-feudal is just to go out of the IPR business. [00:23:23] Speaker 00: Not entirely, but with respect to a particular challenge. [00:23:28] Speaker 00: I think the key point is that in both cases it wouldn't have been futile. [00:23:31] Speaker 00: But again, if this court disagrees, even the Supreme Court has explained in Elgin [00:23:37] Speaker 00: that there are reasons to require litigants to raise claims for agencies. [00:23:41] Speaker 03: Was that about essentially the statutory authority or was it more of a procedural sort of claim? [00:23:50] Speaker 00: Your Honor, I believe that case involved the Merit Systems Protection Board. [00:23:56] Speaker 00: It had to do with whether the claims had to be channeled through the agency or [00:24:04] Speaker 00: could directly be brought in district court. [00:24:06] Speaker 00: And in the course of addressing that argument, the court explained that even if the agency didn't have expertise in the particular constitutional questions, there are lots of things that the agency could have explained, could have applied its expertise to that could have aided a court in later reviewing the constitutional issue. [00:24:22] Speaker 00: And we think that that's generally true and would be true here as well. [00:24:25] Speaker 00: And lastly, in the DC Circuit case that my counterpart mentioned, there was one claim there that the court held was not forfeited because the agency could have [00:24:34] Speaker 00: regulated in a way that would have obviated the constitutional challenge that they were bringing. [00:24:38] Speaker 00: And I think the same is true here for the reasons we've discussed. [00:24:40] Speaker 00: The board could have declined to institute in a party's review if it thought that there was merit to the constitutional challenge. [00:24:49] Speaker 00: If there are no further questions, thank you. [00:25:02] Speaker 02: Again, I just have a few [00:25:03] Speaker 02: comments based on my counterparts' arguments. [00:25:06] Speaker 02: First, it was suggested that we've changed our claim construction on appeal with respect to the peripheral circuit region issue. [00:25:13] Speaker 02: That's not actually true. [00:25:14] Speaker 02: As the board noted in footnote eight of its decision, this is on appendix page 14, it's unclear from the record whether Pat Noehner proposes that peripheral circuit region requires at least transistors that have source trains or a protective circuit comprising P-type semiconductor layer and an N-type semiconductor layer. [00:25:33] Speaker 02: or at least MOSFETs formed of a p-type and an n-type, n-plus type semiconductor layer. [00:25:39] Speaker 02: So that there were several different proposals that were raised in the patent owner response below. [00:25:45] Speaker 04: Arguably... What is your position now with respect to the MOSFET? [00:25:51] Speaker 02: The position now is that the peripheral circuit region should have a source drain region of a MOSFET. [00:26:00] Speaker 04: Of a MOSFET. [00:26:01] Speaker 04: So it does have to have a MOSFET. [00:26:03] Speaker 02: At least the source strain region of the MOSFET. [00:26:08] Speaker 02: Yes. [00:26:09] Speaker 02: Yes. [00:26:09] Speaker 02: It does have to have a MOSFET, and that's based on the portion of the specification. [00:26:13] Speaker 04: That was my understanding of the position, so it's all right. [00:26:16] Speaker 02: But it doesn't have to be made or formed of a p-type and n-plus-type semiconductor layer. [00:26:23] Speaker 02: We didn't make that argument in our opening brief, and maybe that was referenced below to the p-tab, but we're not advocating for that currently. [00:26:32] Speaker 02: Well, go ahead. [00:26:34] Speaker 02: My counterpart mentioned that there's no definition of peripheral circuit region in the specification. [00:26:43] Speaker 02: Well, that's not necessary for the specification to limit or inform the claim construction here because of the references in all embodiments to this particular set of layers that form a protective circuit. [00:27:06] Speaker 02: And my counterpart mentioned that we hadn't brought up below this issue of whether a protective diode is a circuit or not. [00:27:12] Speaker 02: We did argue below that Mr. Guidosch, Sony's expert, merely provided a conclusory statement that called the diode a circuit or a protective circuit without any support whatsoever. [00:27:31] Speaker 02: So that's really the issue, is not whether [00:27:36] Speaker 02: The issue is whether Sony met its burden of showing that claim element. [00:27:44] Speaker 02: And finally, with respect to the cases that the government relies on for waiver, the case it cited in its brief NRA-DCB involved agency action, the action of appointing ALJs by the PTO. [00:27:59] Speaker 02: It wasn't a constitutionality issue of a statute. [00:28:03] Speaker 02: I think that's a very relevant distinction. [00:28:06] Speaker 02: Here we're dealing with a federal statute, whether that statute is unconstitutional, and the board just doesn't have authority to strike down that statute or anything else that's for this court to resolve the court system. [00:28:21] Speaker 02: Unless you have any further questions. [00:28:24] Speaker 03: Thank you for your arguments. [00:28:26] Speaker 03: The case is submitted, and thanks to all counsel for both arguments.