[00:00:01] Speaker 02: The next case is Flan versus Sampson, electronic 18-1832. [00:00:33] Speaker 04: Mr. Statham, you've got three minutes of rebuttal time. [00:00:48] Speaker 02: Is that correct? [00:00:50] Speaker 02: 12 and 3, yes, Your Honor. [00:00:51] Speaker 02: OK. [00:00:51] Speaker 02: And did I pronounce your name correctly? [00:00:54] Speaker 02: Statham? [00:00:55] Speaker 01: Statham, yes. [00:00:56] Speaker 01: All right. [00:01:00] Speaker 01: May it please the court. [00:01:04] Speaker 01: I'm going to talk about three things. [00:01:05] Speaker 01: First, I'm going to talk a little bit about the patent and the prior art. [00:01:10] Speaker 01: Then I'm going to talk about the principal issue on this appeal, and then finally address the merits. [00:01:17] Speaker 02: You can assume that we understand the patent and the prior art. [00:01:21] Speaker 02: Can you just get to the issue at play here? [00:01:24] Speaker 01: Excellent, Your Honor. [00:01:27] Speaker 01: The main issue is whether there is substantial evidence [00:01:33] Speaker 01: motive to combine. [00:01:40] Speaker 01: I would start out the catamora patent makes it absolutely clear that the time to change the temperature doesn't make any difference at all as long as it meets one requirement and that is that the time is if they're equal [00:02:02] Speaker 01: to the time to change out the gas or less. [00:02:08] Speaker 01: So the first question is, how could combining Matsumura's recipe with catamara make any difference? [00:02:20] Speaker 01: There's two possibilities. [00:02:22] Speaker 01: One is that the time selected would be [00:02:26] Speaker 02: Equal or less than the time to change out the answer so you have generally you have three questions It's related to your argument that you bring up in your argument of motivation to combine But you presented no expert testimony to to support that those three questions, did you? [00:02:46] Speaker 02: And and it seems to me that Samsung introduced expert testimony and [00:02:53] Speaker 02: Your argument is supported only by inventor statements. [00:03:00] Speaker 01: Actually, I think our argument is based on logic. [00:03:05] Speaker 01: And I don't think we need. [00:03:07] Speaker 01: I mean, if you stop and think about it, there's two possibilities if you take a recipe. [00:03:21] Speaker 02: I know that logic is involved in in all our cases, but we're really looking under a standard to review here and the what we're looking for is to whether the decision is supported by substantial evidence correct and a decision has been made in that regard and that's what we're reviewing can you address your argument with with why there's not substantial evidence supporting the decision I [00:03:48] Speaker 01: Well, that's what I'm trying to do. [00:03:50] Speaker 01: And what I'm saying, first of all, is given what Katamara clearly teaches, that the time to change the temperature doesn't make any difference at all as long as it's equal or less than the time to change out the gas. [00:04:09] Speaker 01: So if we take a recipe that gives a specific time [00:04:17] Speaker 01: to change the temperature, there's two possibilities. [00:04:22] Speaker 01: One is that time is equal or less than the time to change out the gas, in which case it doesn't make the slightest bit of difference. [00:04:30] Speaker 02: These are arguments that you made to the board. [00:04:34] Speaker 02: These are arguments that you made to the board. [00:04:36] Speaker 02: Yes. [00:04:37] Speaker 02: And the board made its decision based on the expert testimony that was presented by Samsung. [00:04:45] Speaker 02: Yes. [00:04:46] Speaker 02: And the board found that there's credibility, that Simpson's evidence was credible. [00:04:54] Speaker 02: Yes. [00:04:55] Speaker 02: What evidence did you present that rebutted that? [00:05:01] Speaker 01: I'm trying to say that as a matter of logic, it makes no sense. [00:05:06] Speaker 04: But that doesn't work. [00:05:07] Speaker 04: We don't get to reject substantial evidence of an expert opinion just because you disagree with its logic. [00:05:15] Speaker 04: And you didn't move to exclude the expert testimony or at least you didn't get it excluded. [00:05:20] Speaker 04: So it's on the record and it's there to support a substantial evidence review. [00:05:26] Speaker 04: You're just re-arguing the facts to us and you don't get to do that. [00:05:31] Speaker 01: I don't think I'm re-arguing the facts. [00:05:33] Speaker 01: I'm talking about that it makes absolutely no sense to do what they're talking about. [00:05:38] Speaker 04: That's re-arguing the facts. [00:05:39] Speaker 04: We have a factual finding from the board that there's a motivation to combine these two references because the second one will improve the first one with the control recipes. [00:05:49] Speaker 04: There is expert testimony, which is evidence, supporting that factual determination. [00:05:55] Speaker 04: And in a substantial evidence review, if there is evidence that a reasonable person could rely on to support that, then that's enough. [00:06:03] Speaker 04: And usually expert testimony that hasn't been discredited is enough. [00:06:10] Speaker 04: Are you saying this expert testimony is so unreliable and so out of bounds that it's just not credible? [00:06:18] Speaker 04: Yes. [00:06:19] Speaker 04: But did you make that challenge to the board? [00:06:21] Speaker 04: Yes. [00:06:22] Speaker 04: And did they reject it? [00:06:23] Speaker 04: Yes. [00:06:24] Speaker 04: And did you raise that challenge here that it was an abuse of discretion to accept this evidence? [00:06:30] Speaker 01: What we're saying is that there's not substantial evidence. [00:06:33] Speaker 04: I take that as a no, that you didn't challenge the inclusion of this expert testimony in the record. [00:06:39] Speaker 04: That's correct. [00:06:39] Speaker 04: Here. [00:06:40] Speaker 04: Well, then it's in the record. [00:06:41] Speaker 04: Correct. [00:06:44] Speaker 02: So the question is, if what's in the record. [00:06:46] Speaker 02: Hold on. [00:06:47] Speaker 02: So following up on Jake. [00:06:49] Speaker 01: accuses questions to you then the record contains substantial evidence that supports Samson's position I Disagree if the if the if the evidence makes no sense logically How can you accept it? [00:07:12] Speaker 01: And just stop and think about this what Katamara is saying is [00:07:17] Speaker 01: is it doesn't make any difference what the time is to change the temperature. [00:07:23] Speaker 01: What their expert is saying is that you should use a recipe, and that will improve things. [00:07:31] Speaker 01: And what I'm saying is, logically, it makes no sense at all, as long as the time to change the temperature. [00:07:41] Speaker 02: Sir, your argument is not evidence. [00:07:45] Speaker 02: Your attorney argument. [00:07:47] Speaker 02: is not evidence. [00:07:49] Speaker 01: I'm not talking about evidence. [00:07:50] Speaker 01: I'm talking about logic. [00:07:54] Speaker 01: I mean, if you look at what Katamara says and you add a recipe or add another part to the recipe you already had, it's not going to make any difference at all. [00:08:09] Speaker 01: There's two possibilities. [00:08:11] Speaker 01: One is that the time that you assert in the recipe is equal or less [00:08:17] Speaker 01: than the time to change out the gas. [00:08:20] Speaker 01: If that's the case, it doesn't make any difference to what catamaran is doing. [00:08:26] Speaker 01: The other possibility is that the time that you choose is greater than the time to change out the gas, in which case you will make catamaran worse, not better. [00:08:43] Speaker 03: Didn't the board also say that it's [00:08:46] Speaker 03: good motive to provide better temperature control in order to enhance reliability and prevent irregularities in the products that you're making? [00:08:55] Speaker 01: Yes, it does. [00:08:58] Speaker 03: So standardizing the time interval and the temperature control from T1 to T2 would be a benefit because then you could regularize the output of the products that you're making. [00:09:13] Speaker 01: What the board failed to recognize and Samsung failed to recognize is that Katamara teaches quite clearly that his temperature control is controlled finely. [00:09:28] Speaker 01: Now, the board is saying that you could get better temperature control. [00:09:36] Speaker 01: When something says something is better, you need something to compare it to. [00:09:41] Speaker 01: So B is better than A. Neither the board nor Samsung talks about A, which is what Catamara says, which is that he controlled his temperature finally. [00:10:01] Speaker 01: The other thing that the board said, and probably the main thing, is, and I'll quote, [00:10:10] Speaker 01: Massimo's recipe would have been able to provide accurate temperature control of the substrate temperature, because the recipes would have allowed the accurate control of the thermal history curve. [00:10:26] Speaker 01: Now, we argued in both of our briefs that that is basically a totology. [00:10:33] Speaker 01: It's saying the same thing in two different ways. [00:10:36] Speaker 01: And you stop and think about it. [00:10:40] Speaker 01: is designed to result in the thermal history curve. [00:10:48] Speaker 01: So if you follow the recipe, you get the thermal history curve. [00:10:53] Speaker 01: So this statement is devoid of content. [00:10:58] Speaker 01: It's a tautology. [00:11:01] Speaker 01: And it seems to me that common sense tells us [00:11:10] Speaker 01: that if that's the case, there is no showing of motivation to combine. [00:11:19] Speaker 01: Certainly not substantial evidence of motivation to combine. [00:11:28] Speaker 01: Thank you, Your Honor. [00:11:29] Speaker 01: Thank you, sir. [00:11:38] Speaker 00: Good morning, Your Honors. [00:11:40] Speaker 00: May it please the Court. [00:11:41] Speaker 00: As this Court recognizes, this appeal involves a purely factual issue, motivation to combine. [00:11:47] Speaker 00: In finding a motivation to combine, the Board properly considered all the arguments and weighed all the evidence. [00:11:54] Speaker 00: Substantial evidence supports the Board's decision. [00:11:57] Speaker 00: Let me briefly explain why. [00:11:58] Speaker 00: I think some of the arguments already have been highlighted by Your Honor's question, so I'll be brief. [00:12:03] Speaker 00: So if you look, start with Samsung's expert. [00:12:06] Speaker 00: the testimony that we have from Samsung's expert, which the board credited, contrary to what Flam's council just indicated, the board credited that testimony. [00:12:15] Speaker 00: And Dr. Shandfield, Samsung's expert, explained why it would be beneficial to incorporate the recipes from Matsumura or those types of recipes into Katamura because it would provide for better temperature control. [00:12:30] Speaker 00: And that's at, for example, in the decision at A26. [00:12:35] Speaker 00: We also have, in Katamora, why would you do that in Katamora? [00:12:39] Speaker 00: The reason you would do that is because it is important to control the temperature change in Katamora, because if the temperature change exceeds the time to change the gases, throughput would be affected. [00:12:53] Speaker 00: And not only did we have testimony from Samsung's expert, Dr. Flam, the inventor himself, admitted that during cross-examination. [00:13:00] Speaker 00: And that's at A1421. [00:13:02] Speaker 00: And in fact, Flam's counsel also admitted that during oral argument before the board, that the time to change the temperature is a factor in Katamora, and that you can find at A94 of the appendix. [00:13:15] Speaker 00: So if you look at the totality of the evidence, the evidence here more than supports the board's factual finding on motivation to combine. [00:13:24] Speaker 00: And I think Judge Chen, the board summed it up very nicely at 826, that all of this evidence supports a motivation to combine, that a person of ordinary skill would have recognized [00:13:37] Speaker 00: that modifying Katamura's dry etching apparatus and method to include Matsumura's control recipes would yield the benefit of providing better temperature control, thereby enhancing reliability and preventing irregularities in the manufacture devices. [00:13:52] Speaker 00: This is because Matsumura's recipes would allow accurate control of the thermal history curve. [00:13:58] Speaker 00: So there is more than enough evidence in the record. [00:14:01] Speaker 00: And as this court has recognized during questioning today, it is not this court's job to reweigh the evidence. [00:14:06] Speaker 00: We think the board evaluated the evidence and looked at Dr. Flam's testimony, looked at Samson's testimony, and properly weighed that evidence. [00:14:15] Speaker 00: Unless the court has any other questions, that's all I have. [00:14:17] Speaker 02: OK, we thank you for your argument. [00:14:19] Speaker 00: Thank you, Your Honor. [00:14:22] Speaker 01: If you have any more questions of me? [00:14:24] Speaker 02: No, sir, I don't think so. [00:14:25] Speaker 02: OK, thank you, Your Honor.