[00:00:00] Speaker 03: Speaking of proceedings, I'd just like to, one, thank the court here and Chief Judge Barbara Lynn and Clerk Karen Mitchell and the entire staff for being so accommodating to us through this whole process. [00:00:16] Speaker 03: And I'm also a real treat for me. [00:00:18] Speaker 03: The best thing I do every year is judge the high school movement court competitions for the Brett and Marshall Constitutional Law Project. [00:00:27] Speaker 03: And we understand that the Texas Mock Trial Team from East Dallas, Bishop Lynch High School is here today to observe. [00:00:36] Speaker 03: So why don't you stand so we can all recognize you. [00:00:49] Speaker 03: Welcome, we're thrilled to have you. [00:00:51] Speaker 03: For better or for worse, we're doing patent law this morning. [00:00:55] Speaker 03: You may be seated, but thank you for attending. [00:01:00] Speaker 03: First case this morning is 182008, Evolved Wireless versus ZTE. [00:01:06] Speaker 03: Mr. Schulz, whenever you're ready. [00:01:24] Speaker 06: May I please record? [00:01:25] Speaker 06: One housekeeping question. [00:01:26] Speaker 06: Yes sir. [00:01:27] Speaker 05: Do you agree claim one is illustrative? [00:01:30] Speaker 05: Yes, yes sir. [00:01:32] Speaker 05: The issue in this case is that because there is no disclosure in the references relied upon by the board and the appellees, the board improperly and without support expanded the disclosures that were cited to set by the appellees in support of their decisions. [00:01:49] Speaker 03: Let me start off by, I mean we [00:01:51] Speaker 03: We've got a threshold claims instruction issue, and I understand in this case it's not an issue because the board agreed with your claim instruction, right? [00:01:59] Speaker 03: That's correct, Your Honor. [00:02:00] Speaker 03: So on the legal question to know about review, you prevailed. [00:02:05] Speaker 03: That's correct. [00:02:06] Speaker 03: Is there anything that we're going to hear about this morning that isn't reviewed by us under substantial evidence? [00:02:11] Speaker 05: Not for much, Your Honor. [00:02:13] Speaker 05: So it's important to keep in mind what the invention is of the 236 patent. [00:02:18] Speaker 05: The 236 patent invention is about sending the right data at the right time. [00:02:23] Speaker 06: And it does that by the... You argue that in contrast to prior, 236 discloses, and I'm sort of quoting you more or less, transmission of the stored message three buffer data [00:02:39] Speaker 06: Only when a random access response of leaked rain is received in a random access procedure. [00:02:50] Speaker 06: But very shortly after technical spec 321 was released, two of the three GPP members independently, says the record, submitted within three hours of each other [00:03:08] Speaker 06: Nearly identical proposals to clarify the technical spec 321 are requiring that the user could receive a random access response uplink grant before transmitting the correct third message in a random access procedure. [00:03:28] Speaker 06: How's that not evidence of simultaneous development? [00:03:32] Speaker 05: Great question, Your Honor. [00:03:33] Speaker 05: So a couple points. [00:03:34] Speaker 05: One, there's nothing in the record that it was independent. [00:03:37] Speaker 05: Okay, LG came first, Qualcomm came second. [00:03:41] Speaker 05: And that's why I said that the way I did, yeah. [00:03:44] Speaker 05: It's important to keep in mind how this process works with these standard setting developments. [00:03:47] Speaker 05: First of all, their burden to show is independent invention. [00:03:52] Speaker 05: All they just said was, Qualcomm comes a little later, Qualcomm's a different company, therefore it must be independent. [00:03:57] Speaker 05: That's not enough. [00:03:58] Speaker 05: The way these standard setting processes work is there's a lot of communication behind the scenes. [00:04:02] Speaker 05: It's group thinking. [00:04:04] Speaker 05: Yeah, and they're trying to build consensus. [00:04:05] Speaker 05: So it's not surprising that all of a sudden [00:04:07] Speaker 05: two companies say this is the way to go because that's how you change the standard. [00:04:11] Speaker 05: And I think what's important to keep in mind too is there was a change. [00:04:15] Speaker 05: The prior specification of the 321 that the petitioners, or I'm sorry, the appellees and the board relied on was changed to reflect the claimed invention in the 236. [00:04:27] Speaker 05: So on one hand here, the appellees are saying it was already there, but on the other hand, acknowledging that [00:04:36] Speaker 05: the standard setting body said, it's not there, we need to change it because there is this problem that LG had identified and ultimately reached consensus where Samsung, ZTE, and HTC voted to approve the change. [00:04:51] Speaker 05: But yet they come in now saying, no change was ever needed, it was already disclosed there. [00:04:56] Speaker 05: And it wasn't, because the two conditions in the prior standard. [00:05:00] Speaker 05: What they said was there was a technical flaw that they corrected. [00:05:06] Speaker 05: It's a problem. [00:05:08] Speaker 05: What happened is when you get errant messages coming in that aren't expected between these two, the device and the base station, the system has to restart. [00:05:16] Speaker 05: And every time it restarts, it's more delayed, and you're trying to improve the speed and efficiency of the system here. [00:05:23] Speaker 05: And that's what LG had invented, was it said under the prior version of 321, that standard doesn't have the right checks. [00:05:31] Speaker 05: It's conditions that are disclosed. [00:05:33] Speaker 05: Is it there's not going random access procedure? [00:05:36] Speaker 05: and if there's data stored in the message three buffer, then you send stored message three. [00:05:40] Speaker 05: But as you see in figure eight of the patent, which I think is a good graphical illustration of the problem, which is APX 159, you can have an errant message coming. [00:05:50] Speaker 05: And when that happens, the wrong data is sent. [00:05:54] Speaker 05: And that's why under the board's construction that it adopted, it said you can only transmit stored message three data when those two conditions are true. [00:06:02] Speaker 05: The fact is the 321 specification is the only disclosure that the Pelley's site and the board relied on that actually talks about conditions, what to look at to determine what data should be sent. [00:06:17] Speaker 05: And on the face of the document, the conditions of the claim are not there. [00:06:23] Speaker 05: And so the board improperly then expanded the disclosure to say, well, [00:06:28] Speaker 05: Ongoing random access procedure is the same that's receiving uplink grant on the random access file. [00:06:35] Speaker 05: That's false. [00:06:36] Speaker 05: They are not the same. [00:06:38] Speaker 05: There are in fact two conditions. [00:06:39] Speaker 05: The standard was changed to make that correction. [00:06:42] Speaker 05: And in fact, if you look at APX 1388, which is the 321 specification at issue, if you look at 5.4.1, it talks about what the device will do upon receiving an uplink grant. [00:06:55] Speaker 05: And there, [00:06:56] Speaker 05: It says the uplink grant comes on the random access response, or if it comes on PDCCH, which is another different message, the same action will occur. [00:07:06] Speaker 05: Namely, you will indicate that uplink grant was received for that time interval. [00:07:11] Speaker 05: And so again, that's all illustrating the problem here. [00:07:15] Speaker 05: The prior art didn't care where the uplink grant came from. [00:07:19] Speaker 05: And so it would not, there were no disclosures that the stored message street buffer [00:07:26] Speaker 05: will only be sent when the uplink grant is on the random access response and they're stored message-free debt. [00:07:34] Speaker 03: Okay, this is a really complicated issue on the complex on the technology, but in this case on the process issue, your expert was given no aid and the other side did have an expert, right? [00:07:48] Speaker 03: And you challenge, you're challenging blue-green. [00:07:52] Speaker 03: seems to talk about the board's exclusion of the declaration by your only expert witness. [00:07:58] Speaker 03: But it wasn't really an exclusion, right? [00:08:00] Speaker 03: The board didn't exclude the declaration. [00:08:03] Speaker 03: They just said they were not going to give it anyway because it was not sworn. [00:08:07] Speaker 06: And they said that you'll acknowledge that your expert's declaration was defective. [00:08:13] Speaker 06: You took no steps to curate it. [00:08:15] Speaker 05: Well, several parts to that, those questions, and I'll try to attempt them all. [00:08:19] Speaker 05: First of all, this court doesn't need to reach that issue because there's just a complete lack of evidence to support the board's decision. [00:08:28] Speaker 05: And it's the appellee's burden to come forward with that evidence. [00:08:31] Speaker 05: And the evidence that they have come forward with isn't sufficient. [00:08:34] Speaker 05: Nevertheless, if this court was to remand the case for any reason dominant, the court should remand for the consideration of [00:08:42] Speaker 05: our experts decoration by yes if [00:08:44] Speaker 05: It was effective. [00:08:45] Speaker 05: There are a couple of things. [00:08:46] Speaker 05: One, there is no regulation for us, for Evolve Wireless, to have fixed the problem. [00:08:52] Speaker 05: The board never granted any such relief, and there are no regulations for it. [00:08:56] Speaker 03: I don't know the regulations word by word, but there are regulations that require that the declaration submitted somehow be sworn, right? [00:09:05] Speaker 05: There are regulations on that, but there are no regulations about how to fix the issue once it was raised. [00:09:10] Speaker 05: What should have happened was the defendant raised the objection, [00:09:13] Speaker 05: then there is a regulation to allow us to supplement where we would have done it. [00:09:18] Speaker 05: And I think we need to just step back and keep in mind. [00:09:22] Speaker 03: The burden is on them when yours is sufficient. [00:09:26] Speaker 03: I mean, they did call you out on the reply. [00:09:28] Speaker 03: So you did have an opportunity to cure it right. [00:09:31] Speaker 05: Well, there's no mechanism after the reply. [00:09:33] Speaker 05: The regulations don't allow us to file a surreply. [00:09:36] Speaker 05: There is such a thing as a creative civil procedure. [00:09:38] Speaker 05: Did you try making a motion? [00:09:40] Speaker 05: We did, Your Honor. [00:09:42] Speaker 05: But I think what's important for the Court to keep in mind here, this is really formal for substance here. [00:09:46] Speaker 05: First of all, two days before the deposition of our expert was to occur in these BTAB scenes, the appellee pulled the deposition, likely because they'd know once they took his deposition under oath that this issue would go away. [00:09:58] Speaker 03: Two, in the concurrent disorder... It's not that it's declarative, it's not you call it formal substance, we call it litigation. [00:10:04] Speaker 06: And not necessarily, because there's plenty of law that says that a declarant can't intervene their own declaration of a deposition. [00:10:14] Speaker 05: He was not going to testify differently than testify totally consistent with it and also note in the concurrent district court litigation with the same [00:10:23] Speaker 05: Appellees are not that. [00:10:25] Speaker 01: I mean, that's the whole point of making him swear to his declaration rather than just submit it. [00:10:30] Speaker 01: It's saying that he agrees and he thinks it's true and he's going to be bound by that. [00:10:35] Speaker 01: Without swearing to it, he could have come to his deposition and said something completely different. [00:10:40] Speaker 01: I know you say he's not going to do it, but we have no idea. [00:10:43] Speaker 01: And the board has no idea whether he actually stands behind those statements. [00:10:47] Speaker 01: That's the whole point of swearing behind it. [00:10:50] Speaker 05: I understand. [00:10:51] Speaker 05: I also just want to know. [00:10:52] Speaker 05: As I told the board, he had profiled similar, if not substantially the same, opinions in the concurrent court litigation, all under oath. [00:10:59] Speaker 05: He took his deposition on it, gave the same testimony. [00:11:02] Speaker 05: So again, I really think that this issue, again, the court doesn't need to reach it because I think the evidence is not sufficient to support the board's decision. [00:11:10] Speaker 05: But if it was, this should be a decision where we are allowed to get this case remanded back. [00:11:15] Speaker 01: You know, you didn't make any attempt to correct it once it was pointed out to you. [00:11:21] Speaker 05: Again, there was nothing for us to do other than to ask the court for permission. [00:11:24] Speaker 05: But darn, it wasn't a regulation. [00:11:25] Speaker 01: But that's always how you ask to make fixed mistakes. [00:11:29] Speaker 01: Things like this. [00:11:30] Speaker 01: There's not something out there that is a rule that says, here's what you do to fix mistakes. [00:11:35] Speaker 01: You just ask. [00:11:37] Speaker 05: Well, there is a regulations on motions to supplement, which is what I was getting at. [00:11:41] Speaker 05: So that would be the way. [00:11:41] Speaker 01: Well, that's not a supplement. [00:11:42] Speaker 01: It's correcting your mistake and your failure to have them swear. [00:11:47] Speaker 01: And even if it was considered that, you should have still filed a motion for Lee to do it. [00:11:52] Speaker 05: Understood, Your Honor. [00:11:52] Speaker 05: So if I can move on, though, to the Kidzoe application, because I only have a limited time. [00:11:58] Speaker 03: No, but I have one thing to ask you, brother. [00:12:00] Speaker 03: And that is you raised these constitutional challenges in this case. [00:12:04] Speaker 03: And you've had numerous issues involving constitutional challenges. [00:12:08] Speaker 03: And the other side filed, as it should have done, 28 J letters about our recent cases that [00:12:15] Speaker 03: arguably have resolved those issues. [00:12:17] Speaker 03: Do you agree those issues are gone and withdrawn from this case? [00:12:21] Speaker 05: Well, I understand under the precedent that this panel is bound to follow those prior decisions and so at this time we're not asking the panel to do that. [00:12:30] Speaker 05: go contrary to the case law. [00:12:32] Speaker 03: And you understand, therefore, this case is consumed. [00:12:34] Speaker 03: It is under the umbrella of what we've already decided in other cases, which came after the briefing in Fair to CEO. [00:12:41] Speaker 05: Yeah, I understood, Your Honor. [00:12:42] Speaker 05: And if we decide at some point to move on that issue, perhaps then we would exercise our right to have the issue decided that way under the precedent of the court. [00:12:53] Speaker 05: But at this time, we think those decisions hold. [00:12:55] Speaker 06: Before you walk away entirely from that area, [00:12:58] Speaker 06: At page 20 of the grade brief, you say that PTAT wrongly excluded your defective declaration because, quote, giving no evidentiary weight to filed exhibits is equivalent to excluding the evidence. [00:13:13] Speaker 06: I mean, is there any legal authority for that? [00:13:17] Speaker 05: Do you have any? [00:13:17] Speaker 05: No, we don't, Your Honor, but I think the effect of it was the same as exclusion. [00:13:23] Speaker 05: So we think, well, again, what you call it, [00:13:27] Speaker 05: We don't think it's the ultimate matter of how it came to be. [00:13:31] Speaker 06: So, supposing they had let it in and they said, we don't believe a word in this. [00:13:36] Speaker ?: That would be the same as exclusion too. [00:13:39] Speaker 05: It's worth a saying. [00:13:40] Speaker 05: Well, because then you would have at least considered it. [00:13:42] Speaker 05: You know, but having not even considered it. [00:13:44] Speaker 05: They said they did consider it. [00:13:46] Speaker 05: Well, they said they weren't going to give it any weight, which we would argue is the same as if it had not even been on the record. [00:13:52] Speaker 06: Let me move you on to a different subject. [00:13:56] Speaker 06: On page 61, same area, but on page 61 of the blue brief, you say PTAB's actions concerning that declaration, quote, were intended to preclude consideration of a full record so that the PTAB could try to end the proceedings by simply adopting ZTEs and Apple's arguments. [00:14:22] Speaker 06: Well, that's a pretty serious charge. [00:14:25] Speaker 06: What proof do you have of that in town? [00:14:29] Speaker 06: I'm sorry, I'm just trying to find the exact gender. [00:14:32] Speaker 06: You said page 61 of those. [00:14:33] Speaker 06: 61 of the delivery. [00:14:43] Speaker 05: So again, by not giving any consideration to evidence that was in the record, to have a full and fair [00:14:52] Speaker 05: record for them to decide the facts and just simply having one side only. [00:14:57] Speaker 05: That's how it therefore results in the PDEM only looking at the one side, not having a full and fair record for it to decide the issue. [00:15:05] Speaker 03: To understand the different judge walla, excuse me, was just you say the board's actions were intended to preclude reconsideration. [00:15:13] Speaker 03: It's one thing to say the board's actions here resulted [00:15:19] Speaker 03: in our not having the ability to have this considered. [00:15:23] Speaker 03: But you're ascribing kind of an intent to the board. [00:15:27] Speaker 03: We want to get rid of this case. [00:15:28] Speaker 03: We want to go for petitioners. [00:15:29] Speaker 03: So we're going to not consider the full record, and we want to just get this over with. [00:15:34] Speaker 03: That's the essence of what I read the sentence. [00:15:36] Speaker 03: It's saying wrong. [00:15:38] Speaker 05: That was not the intent of the statement. [00:15:41] Speaker 05: The intent of the statement was more that [00:15:43] Speaker 05: Because the board didn't offer any opportunity for us to fix the issue, it then ultimately made a decision based on an incomplete... Words matter, counsel. [00:15:54] Speaker 05: That's not a statement. [00:15:55] Speaker 05: It's an accusation. [00:15:57] Speaker 05: Well, the result of them not including ours is that all that was left was petitioners' side. [00:16:03] Speaker 05: What you did is an accusation of judicial misconduct. [00:16:09] Speaker 05: That is not what we were... [00:16:11] Speaker 05: stating there over just again stating was that what the board ultimately then ends up with is just the one side of the story. [00:16:19] Speaker 05: Now, if I could just move on to Kit and Zoe really quick, I'm running. [00:16:22] Speaker 03: Okay, you're out of your time. [00:16:24] Speaker 03: So if you want to take an extra minute, if you have another, an additional point to make, I assume I'm gonna threshold it to you. [00:16:30] Speaker 05: Yeah, so just on Kit and Zoe, the main issue again is that, like the other evidence, only talks about the sending of the message to you. [00:16:37] Speaker 05: It doesn't talk about what data is in the message to you or what conditions were used, [00:16:41] Speaker 05: to look at what data put in Mr. Sweets of Kittzoe, like section 300, doesn't disclose the claim invention and again the board, and improperly expand the disclosure that was in Kittzoe to reach its ultimate decision. [00:16:56] Speaker 05: So for both, for those reasons, we would submit that all of the final grade decisions lack any evidence in support, much less even substantial evidence. [00:17:05] Speaker 05: Thank you. [00:17:05] Speaker 03: Will we still have a couple minutes of rebuttal? [00:17:07] Speaker 03: Thank you, Your Honor. [00:17:10] Speaker 03: Ms. [00:17:10] Speaker 03: Brooks, okay, we've got a confusing situation of three people splitting their time, which is not our favorite thing. [00:17:16] Speaker 03: So why don't you tell us who's gonna argue what, so I don't know what to ask. [00:17:19] Speaker 03: Why don't you just argue the whole thing? [00:17:22] Speaker 02: I don't think Mr. McMann would be very happy with that. [00:17:24] Speaker 02: I'm only gonna argue Kittzoe, and very, very briefly, since there were very little questions about Kittzoe. [00:17:31] Speaker 06: Let me ask you a question. [00:17:32] Speaker 06: Yes, Your Honor. [00:17:33] Speaker 06: Do you agree that recline one is representative? [00:17:36] Speaker ?: Yes, Your Honor. [00:17:36] Speaker ?: Good, thank you. [00:17:37] Speaker 02: So let's begin with what I think [00:17:40] Speaker 02: because there was a pivot between the blue brief and the blue library. [00:17:44] Speaker 02: In the blue brief, one of the arguments was that Kidizowie, while it taught this transmission of message three pursuant to an uplink grant coming in an RAR random access response message, that it didn't specifically say that that message three came from the data stored in the message three buffer. [00:18:05] Speaker 02: Just to address that, [00:18:06] Speaker 02: very quickly and very clearly, if you, the court looks at page 35 of the blue brief, it is conceded that the prior art taught that the message three buffer is the source of the content of the transmission in message three that is responsive to a random access request message, which contains an uplink grant. [00:18:30] Speaker 02: So to say we didn't show it when they conceded in the blue brief, I think, [00:18:35] Speaker 02: is then a non-argument. [00:18:37] Speaker 02: The more important argument, the bigger argument is that Kitazoi apparently doesn't send message three buffer data, that there's no exclusion in Kitazoi preventing message three buffer data from being sent in response to a non-granted access response message. [00:18:54] Speaker 02: Well, first of all, we don't have to. [00:18:56] Speaker 02: Under AC Chem, I'm sorry, AC Tech in suit chemi cases, you do not have to, the prior doesn't have to have an explicit statement of the exclusion. [00:19:06] Speaker 02: Instead what we have here at multiple places in Kitazoi is that the only time message three is sent is only when there is an uplink grant sent in a random access response message. [00:19:21] Speaker 02: That's it. [00:19:21] Speaker 02: There are no other circumstances in which it is sent and therefore implicitly it is only if the random access response message contains the uplink grant. [00:19:33] Speaker 02: Of course, we are looking at a substantial evidence standard. [00:19:37] Speaker 02: And the Kidazoi reference was described through the view of one of skill in the art by Dr. Wells, which the PTAP found both credible and reasonable. [00:19:46] Speaker 02: And as we know that there was no expert testimony on the other side. [00:19:49] Speaker 02: Correct, Your Honor. [00:19:50] Speaker 02: And so that takes it out of the realm of the Facebook case, which is a non-precedential case that Appellant is relying on, because in Facebook, they said there was no expert testimony in support of the negative limitation being taught in the prior art. [00:20:04] Speaker 02: Here we have the opposite. [00:20:05] Speaker 02: We have expert testimony saying it's implicit in the prior art, and no expert testimony to the contrary. [00:20:12] Speaker 02: Last, we come to that second transmitting limitation about when new data is allowed to be sent. [00:20:18] Speaker 02: In the blue brief, [00:20:20] Speaker 02: It appeared that they were, the appellant was arguing that the prior art didn't teach that new data was sent only if the uplink grant was in a non-random access response message. [00:20:35] Speaker 02: They hid it in the reply brief, and now they seem to concede that the prior art does in fact teach that. [00:20:41] Speaker 02: And I think they have to. [00:20:42] Speaker 02: Because if you look at Appendix 1706, specifically, so column 13, lines 15, year 20, [00:20:49] Speaker 02: it says that the UL grant is included in the content resolution message. [00:20:56] Speaker 02: That's message four. [00:20:58] Speaker 02: And therefore, that is not the random access response message. [00:21:02] Speaker 02: So that's what Kit and Zoe teaches. [00:21:04] Speaker 02: So what happens in the reply group is that they pivot and now say that we have to show that this new data is sent during the random access procedure when in fact [00:21:17] Speaker 02: Random access procedure and the word dore are nowhere in the claim. [00:21:21] Speaker 02: So this is a new argument on their part. [00:21:23] Speaker 02: It's really a plain construction argument that has been waived and that we do not need to address. [00:21:27] Speaker 02: And unless the court has any other questions, I will see the rest of my time. [00:21:31] Speaker 02: Thank you. [00:21:31] Speaker 02: Thank you. [00:21:42] Speaker 04: Good morning, Your Honors. [00:21:42] Speaker 04: May it please the court? [00:21:44] Speaker 04: Judge Wallach, we agree to claim one as representative. [00:21:48] Speaker 04: I just wanted to walk through, I'm Charles McMahon on behalf of ZTE, HTC, and Samsung in connection with the underlying 757 and 1345 proceedings addressing the 300 and 321 references. [00:22:01] Speaker 04: Just walk through them very briefly to show that they do present substantial evidence supporting the board's conclusion. [00:22:07] Speaker 04: The first point is the 321 reference itself, which shows, and this is an Appendix 1388, the same page that Mr. Shultz pointed to, at the bottom of the page there's an if-then-else structure. [00:22:19] Speaker 04: The first part of that shows that you can transmit message 3 if you're in a random access procedure and there is data in the message 3 buffer. [00:22:27] Speaker 04: The second part says else you transmit new data. [00:22:31] Speaker 04: Now, patent owners suggest that [00:22:33] Speaker 04: The first part of that is not enough because it says random access procedure as opposed to responding to a random access message. [00:22:41] Speaker 04: That is a piece of this particular standard document that was later clarified. [00:22:46] Speaker 04: However, this document did not stand on its own, nor did we present it on its own in support of the Invalidity Round. [00:22:53] Speaker 04: We presented it in combination with the 300 reference. [00:22:57] Speaker 04: The 300 reference at appendix 1292 shows a figure [00:23:02] Speaker 04: which is probably become quite familiar to the court. [00:23:05] Speaker 04: It's a four, back and forth of four messages, and that is the random access procedure. [00:23:11] Speaker 04: Message one is sent by the user equipment, which then waits for message two, which is the random access response, and then, and only then, [00:23:20] Speaker 04: does the user equipment send message 3? [00:23:23] Speaker 04: That is clear from both the figure in the 300 reference as well as the text that bridges pages 1292 and 1293, demonstrating that it was [00:23:35] Speaker 04: known to those in the art, in working group two at the time, and it was documented in the 300 reference that you only send message three if you've received message two. [00:23:44] Speaker 04: And that's what this whole piece is about, knowing when to send message three and not sending message three when you're not supposed to. [00:23:51] Speaker 04: This document? [00:23:52] Speaker 04: Yes. [00:23:53] Speaker 06: I asked your opposing council about, as Perry said, a statement in the reference that [00:24:05] Speaker 06: two individuals within three hours of each other, both sent substantially, they weren't exact, but substantially similar suggestions or questions to the standard. [00:24:18] Speaker 06: And I've worked with those kinds of groups before, and it is sort of a root thing kind of thing. [00:24:25] Speaker 06: There wasn't anything I could find in the record that showed me what was going on. [00:24:29] Speaker 06: Is there something that shows those were independent, or were they? [00:24:32] Speaker 04: Do you believe they were independent? [00:24:34] Speaker 04: I believe they were independent, Your Honor, and this is what I can say. [00:24:37] Speaker 04: Substantively, they were identical in what they attempted to accomplish. [00:24:40] Speaker 04: But the expression of the idea was very different between the two. [00:24:44] Speaker 04: So if you compare Appendix 3008 to 3009, that's the Qualcomm submission. [00:24:51] Speaker 04: And if you look at the text, [00:24:53] Speaker 04: It's redlined on those pages, what Qualcomm was proposing to change. [00:24:57] Speaker 04: What Qualcomm proposed was different in expression and text than what LG proposed, and that's at Appendix 3013 to 3014. [00:25:06] Speaker 04: So the independence of expression, they were both expressing the same idea, but they went at it different ways, which to me, if Qualcomm were trying to do a me too, [00:25:16] Speaker 04: of what LG did, you'd think that they would have said, we support LG, or at least would have submitted exactly the same text. [00:25:23] Speaker 04: That's not what happened here. [00:25:24] Speaker 04: So it seems to me from the record that they did come up with the same idea independently, and they submitted functionally the same idea with slightly different expression. [00:25:35] Speaker 04: I'd also note that the board didn't rely exclusively on two things. [00:25:38] Speaker 04: First of all, this is simultaneous development. [00:25:41] Speaker 04: This is just reaffirming the underlying obviousness case, which, of course, is based on substantial evidence of the 30321 references. [00:25:49] Speaker 04: Those two stand alone, even without the simultaneous development evidence. [00:25:55] Speaker 04: But the board did say simultaneous development reinforces our otherwise robust view of obviousness. [00:26:02] Speaker 04: And they pointed not only to the Qualcomm proposal, which came after the filing date of the patent application, they also pointed to another submission earlier from Philips and NXP Semiconductor, which also showed a logic tree where message three is only sent in response to message two. [00:26:19] Speaker 04: Again, it reinforces the substantial evidence that supports it, and that NXP [00:26:26] Speaker 04: document is discussed in the final written decision at pages 28 to 29, and the submission itself is with Appendix 3001. [00:26:36] Speaker 04: That's a useful and good, solid answer. [00:26:39] Speaker 04: Thank you. [00:26:40] Speaker 04: I'd be happy to address any other questions the court may have, otherwise I yield the rest of my time. [00:26:44] Speaker 04: Thank you. [00:26:53] Speaker 00: Good morning, you guys. [00:26:54] Speaker 00: I'm also going to be extremely sure it does, and on behalf of the United States on the constitutional issues, as this court has recognized and as everybody in this room seems to agree. [00:27:03] Speaker 06: You guys know we were wrong? [00:27:06] Speaker 00: No, I'm not. [00:27:07] Speaker 00: This court's decisions, including Chief Judge Bruss' decision and Celgene, are absolutely correct, and both Celgene and Artrex [00:27:15] Speaker 00: foreclosed the entirety of the constitutional challenges here. [00:27:19] Speaker 00: We would just urge the court to express or state what constitutional challenges were raised in this case, and that they're foreclosed by precedent of the survey. [00:27:28] Speaker 00: Thank you. [00:27:40] Speaker 05: Council for Appellees did not come up and point to exact specific disclosures in the references for the claim to mention. [00:27:50] Speaker 05: I heard words of implicit and other words along the same lines. [00:27:57] Speaker 05: There was no disclosure where you got a reference A has element one, reference B's got element two. [00:28:03] Speaker 05: You put them together, you have the claim to mention. [00:28:05] Speaker 05: It's not there. [00:28:06] Speaker 05: Again, what Council for ZTE said [00:28:09] Speaker 05: It's all about sending message three. [00:28:11] Speaker 05: That is not the claim invention. [00:28:14] Speaker 05: The claim invention is not about the sending message three. [00:28:17] Speaker 05: It's about the data that is in message three. [00:28:20] Speaker 05: And again, you did not hear from them showing that what conditions, the claimed conditions were the ones considered in the prior art in order to send the right message three data at the right time. [00:28:35] Speaker 05: As a kid of Zoey argument, I would just note for the court, [00:28:39] Speaker 05: Only when was the construction that the board adopted. [00:28:44] Speaker 05: Only when has to have meaning. [00:28:46] Speaker 05: And only when means you can only send stored message three data when these conditions are true. [00:28:52] Speaker 05: Kittas always lacks any disclosure. [00:28:55] Speaker 05: And the only disclosure they then rely on is the 321 specification, which I talked about earlier, also discloses different conditions. [00:29:06] Speaker 05: That is just a prime, [00:29:08] Speaker 05: example of a lack of any evidence, much less substantial evidence, of the claim to mention in the references. [00:29:16] Speaker 05: So for those reasons, again, we reiterate that there is no evidence, much less substantial evidence, to support the board's findings of all the proceedings. [00:29:27] Speaker 05: As for the NXP reference, the NXP reference has nothing to do with when and send what data in Message 3. [00:29:34] Speaker 05: All it just says is [00:29:36] Speaker 05: Sometimes when message three can happen to be sent. [00:29:39] Speaker 05: That's it. [00:29:40] Speaker 05: That's not relevant to the issue here. [00:29:42] Speaker 05: So that doesn't answer the question, Judge Wallach, that you posed of is there evidence of simultaneous invention? [00:29:48] Speaker 05: There's not. [00:29:49] Speaker 05: And to be clear, it's undisputed, LG came first. [00:29:55] Speaker 05: They didn't come second, they were first. [00:29:57] Speaker 05: In any way, people saw the idea and said that's a great idea, let's move forward with it. [00:30:03] Speaker 05: With that, there are no further questions. [00:30:05] Speaker 05: I will submit the case. [00:30:06] Speaker 03: Thank you. [00:30:07] Speaker 03: And we thank all sides and the case is submitted. [00:30:10] Speaker 03: And let me just say what I should have said at the outset, which is that our court does this typically once a year, sometimes twice a year. [00:30:18] Speaker 03: And we travel to different venues, which we feel is our obligation because we're a national court. [00:30:23] Speaker 03: But we bring our cases with us. [00:30:25] Speaker 03: So our being successful in being able to do this depends on the cooperation of council traveling in many cases outside of your space when moving from Washington. [00:30:37] Speaker 03: Sometimes it ends up being more convenient, which is a nice coincidence. [00:30:40] Speaker 03: But we thank all the parties here today for their cooperation in this. [00:30:44] Speaker 03: Yes, sir. [00:30:45] Speaker 06: This is a personal note. [00:30:47] Speaker 06: Ms. [00:30:47] Speaker 06: Birx, I know Mr. Countryman was on the [00:30:50] Speaker 06: the brief and you have all of our entire force's condolences. [00:30:57] Speaker 03: Thank you very much. [00:30:58] Speaker 03: And you knew him and really respected his talent. [00:31:01] Speaker 03: Thank you very much. [00:31:03] Speaker 03: Thank you.