[00:00:00] Speaker 03:
Before we begin our regular order of things, I would just like to, on behalf of the panel, thank the law school, their dean, and the students for participating in this.

[00:00:11] Speaker 03:
This is something our court does every year.

[00:00:13] Speaker 03:
We go to a different venue around the country, because we're a national court.

[00:00:18] Speaker 03:
And we sit in as many law schools as we can manage.

[00:00:24] Speaker 03:
And I'd also like to thank the parties,

[00:00:26] Speaker 03:
The cases are from all over the country, and they just have to come wherever we tell them to go.

[00:00:32] Speaker 03:
So you don't have local people here necessarily.

[00:00:35] Speaker 03:
But anyway, it's something that we do when we find it very rewarding.

[00:00:38] Speaker 03:
So I thank you all for participating.

[00:00:40] Speaker 03:
The first case for argument this morning is 172398, Innovative Memory versus Micron.

[00:00:47] Speaker 03:
Mr. Morris, whenever you're ready.

[00:00:51] Speaker 02:
Thank you, Your Honor.

[00:00:51] Speaker 02:
Good afternoon, and welcome to Minnesota.

[00:00:54] Speaker 02:
May it please the court, my name is Robert Morris and I represent Appellant Innovative Memory Systems.

[00:01:00] Speaker 02:
The 953 patent is entitled System for Configuring Compensation.

[00:01:05] Speaker 02:
The abstract says to compensate for coupling, the read or programming process for a given memory cell can take into account the program state of an adjacent memory cell and that's at appendix 465.

[00:01:20] Speaker 03:
Okay, so one of the claim construction issues is what is

[00:01:24] Speaker 03:
configures mean?

[00:01:25] Speaker 02:
Correct.

[00:01:26] Speaker 03:
And your view of what configures mean is what?

[00:01:29] Speaker 02:
Well, in our brief we say that per se we don't have a problem with it if it's looked at the way that we had contended that it was looked at.

[00:01:37] Speaker 02:
The board took the dictionary definition that Dr. Mattesetti had relied on, our expert, and then they chopped it off.

[00:01:47] Speaker 03:
Their definition, as I understand it, correct me if I'm wrong,

[00:01:50] Speaker 03:
is to initialize a device so that it operates in a particular way.

[00:01:57] Speaker 03:
That's what they said the plain meaning was, which seems to comport with what one would think the plain meaning of configures is, right?

[00:02:06] Speaker 02:
And that's true.

[00:02:06] Speaker 02:
And to some extent, if you look at both Dr. Mattesetti and if you look at Dr. Subramanian, they both said that means to selectively enable or disable

[00:02:19] Speaker 02:
I mean, the interesting thing or the bizarre thing, depending... But what is the problem?

[00:02:23] Speaker 04:
Are you concerned about the claim construction, or is it more that you think that the board had a construction of its construction that you disagree with?

[00:02:32] Speaker 02:
There's pieces of all of this.

[00:02:34] Speaker 02:
At some level, if you read through the final written decision, the final written decision makes a determination of what the claim construction is that just says it's to do it in a particular way.

[00:02:44] Speaker 02:
Later on in the

[00:02:46] Speaker 02:
final written decision.

[00:02:47] Speaker 03:
Do you have it with you so you can give us the pages in the appendix?

[00:02:51] Speaker 02:
Sure.

[00:02:55] Speaker 03:
In appendix... I've got a definition.

[00:03:08] Speaker 03:
The one I read is on appendix nine.

[00:03:11] Speaker 02:
Yes, I think that was the page I had just said.

[00:03:15] Speaker 02:
Yeah, appendix nine.

[00:03:16] Speaker 02:
And then the board goes on and it criticizes us on Appendix 10.

[00:03:23] Speaker 02:
It says, petitioner argues patent owners attempting to limit the claims to a preferred embodiment without showing a disclaimer or definition in the specification.

[00:03:32] Speaker 02:
The board then goes on at some point in time and cites a whole bunch of pages.

[00:03:38] Speaker 02:
They cite that they're looking for

[00:03:47] Speaker 02:
evidence within the specification that without any other intrinsic evidence but then they cite to the spec where the 953 patent actually does configure it to turn compensation on during programming or to turn compensation on during reading.

[00:04:07] Speaker 03:
What rules?

[00:04:08] Speaker 03:
We're doing claim construction.

[00:04:10] Speaker 03:
There's a plain and ordinary meaning.

[00:04:11] Speaker 03:
then there has to be a really strong something in the specification.

[00:04:16] Speaker 03:
We've called it disclaimer.

[00:04:17] Speaker 03:
We've called it other things.

[00:04:19] Speaker 03:
Is your view that there's no plain and ordinary meaning, so we don't need to have any kind of disclaimer stuff in the spec?

[00:04:26] Speaker 03:
Or is that even if this is the plain and ordinary meaning, there's enough in the specification to dislodge that?

[00:04:33] Speaker 02:
Even if this is the plain and ordinary meaning, the specification and Dr. Mattisetti, the evidence that was of record,

[00:04:41] Speaker 02:
went in one direction.

[00:04:43] Speaker 02:
Their expert in his declaration went in a different direction and Micron at the PTAB went in the shortened direction and just took the smaller portion of the IEEE definition.

[00:04:55] Speaker 02:
When Dr. Subramanian was deposed, however, his definition of what CONFIGURES was was exactly what Dr. Mattisetti had testified.

[00:05:07] Speaker 04:
Is the board limited when it's looking at what a proper construction is?

[00:05:11] Speaker 04:
And it's going through all the intrinsic evidence, which is the claims and the specification.

[00:05:17] Speaker 04:
Is it limited to just what the extrinsic is?

[00:05:19] Speaker 04:
It sounds to me as if you're saying the two experts had a different view than the board.

[00:05:24] Speaker 04:
But the board isn't obliged to adopt the claim construction proposed by the experts.

[00:05:29] Speaker 04:
Isn't that right?

[00:05:30] Speaker 02:
The board can do whatever the board's going to do.

[00:05:32] Speaker 02:
But the board relied solely on a dictionary definition, solely on extrinsic evidence.

[00:05:38] Speaker 02:
The board said it's going to take the part of the dictionary definition that Dr. Mattis said he had cited from the IEEE dictionary.

[00:05:47] Speaker 03:
Well, if one side relies on the dictionary definition of a claimed term, is that using extrinsic evidence, or is that determining the plain and ordinary meaning of that term?

[00:06:00] Speaker 02:
I think both sides are trying to get at what the plain and ordinary meaning of the term configures is.

[00:06:06] Speaker 00:
So here's a problem.

[00:06:09] Speaker 00:
have with the argument, you said in your blue brief, you say, IMS does not take issue per se with the board's construction of configures.

[00:06:17] Speaker 00:
So you're okay with the construction that the board arrived at?

[00:06:20] Speaker 02:
In general, we are okay with that construction.

[00:06:23] Speaker 02:
But then when you take that construction and you apply it in the way that the board did or didn't.

[00:06:29] Speaker 00:
The basis of your argument is not construction, it's the application of the construction.

[00:06:35] Speaker 02:
Yes, if you want to say that, I could agree with you, Your Honor.

[00:06:39] Speaker 02:
The problem is when the board found that that Harari met the claim limitation, the board didn't even apply its own construction.

[00:06:50] Speaker 02:
The board applied the construction that Dr. Subramanian had testified about, which was contrary to his testimony and his declaration.

[00:07:00] Speaker 03:
Can I move you to the second term before your time runs out here?

[00:07:04] Speaker 03:
The second term that you're objecting to the plan construction is?

[00:07:09] Speaker 02:
Programming.

[00:07:10] Speaker 03:
Programming.

[00:07:11] Speaker 02:
During programming.

[00:07:12] Speaker 03:
OK.

[00:07:13] Speaker 03:
So you want to limit it.

[00:07:15] Speaker 03:
What was the board's construction?

[00:07:17] Speaker 03:
The dispute here is you want it to limit it to ISPP.

[00:07:22] Speaker 03:
And they don't, right?

[00:07:24] Speaker 02:
Right, the board did not limit it to during the ISPP process.

[00:07:27] Speaker 03:
So where do you get that other than in one embodiment?

[00:07:32] Speaker 03:
And if so, if it's just referred to in one embodiment and you've got language that is not at all limiting to ISPP, why under our principles of claim construction would you get the construction you're advocating?

[00:07:46] Speaker 02:
Because it's not really one embodiment.

[00:07:47] Speaker 02:
The patent has, I think, 27

[00:07:51] Speaker 02:
31 figures, there's 29 columns of text.

[00:07:56] Speaker 02:
You go through all the different flow charts and all the different examples, there's a whole bunch of different embodiments.

[00:08:01] Speaker 02:
Every single embodiment, every single embodiment has, you can do compensation during programming and programming is when you apply a voltage to change, to set the threshold voltage and you actually want to change the value of the cell.

[00:08:16] Speaker 04:
Are there different kinds of programming that could have been used?

[00:08:20] Speaker 04:
other than ISPP programming?

[00:08:23] Speaker 02:
Yeah, there probably are.

[00:08:25] Speaker 04:
Then why would it be appropriate, under the broadest reasonable interpretation, to interpret the language compensate for floating gate coupling during programming?

[00:08:35] Speaker 04:
Why would it be appropriate to limit it to one particular type of programming?

[00:08:41] Speaker 02:
I guess the issue, once again, it's a little murky.

[00:08:44] Speaker 02:
And the reason why it's a little murky has to do with Chen and the way that Chen has come into all of this.

[00:08:49] Speaker 02:
Chen has a single sentence that Micron relied on.

[00:08:52] Speaker 02:
And in that single sentence, Chen says, you can also use the same technique herein, and the word same is critical there, to do compensation.

[00:09:02] Speaker 04:
Let me back up for a minute.

[00:09:03] Speaker 04:
I understand you're talking about the prior art that was relied on by the board, right?

[00:09:07] Speaker 04:
So you're trying to tell me why it's important that the programming term be interpreted.

[00:09:13] Speaker 04:
But under our case law, we're not supposed to look at the accused device to interpret

[00:09:17] Speaker 04:
the patent owner's patent claims.

[00:09:20] Speaker 04:
And so what is the evidence that you would have us rely on for why it is that the board erred by interpreting the broad word programming to be broader than just ISPP programming?

[00:09:34] Speaker 02:
I mean, the claim terms are supposed to be construed in light of the specification.

[00:09:38] Speaker 02:
The specification, when it talks about programming, and by saying within ISPP, we're trying to say that

[00:09:46] Speaker 02:
that that term has to do with actual programming.

[00:09:49] Speaker 02:
It has to do with when you apply the voltage to change the state of the memory cell.

[00:09:53] Speaker 00:
You're not arguing that the specification provides a specific definition for programming, correct?

[00:09:59] Speaker 02:
No, it doesn't.

[00:10:01] Speaker 02:
It doesn't.

[00:10:01] Speaker 00:
OK.

[00:10:02] Speaker 02:
The specification talks about two completely totally different processes.

[00:10:06] Speaker 02:
One that it defines as programming in general.

[00:10:10] Speaker 02:
And programming, however you accomplish that, is when you apply a voltage

[00:10:15] Speaker 02:
to the memory cell that you're trying to program and you go and change the voltage of that versus reading when you go in and read a cell and it's actually the opposite holds true because if you apply too much voltage, if you do something wrong, you're going to change the value of the cell and those require two different kinds of compensation because the process is to accomplish those regardless of which programming method you use are different.

[00:10:43] Speaker 02:
And so all we're trying to say is programming is programming, reading is reading.

[00:10:52] Speaker 04:
When you say programming is programming and reading is reading, how does that build in the ISPP part of programming?

[00:10:59] Speaker 02:
In the ISPP, at least the way that it was defined within the scope of the patent itself, you would go and you would program.

[00:11:08] Speaker 02:
And when you were done, and I see my time is up

[00:11:13] Speaker 02:
because I have five minutes for a bottle, that when you would come back and you would do a read verification step to go and see, okay, now that I apply these incremental pulses, because the way it programs, it applies little tiny pulses, and that's what ISPP refers to, even though the board said that ISPP is not per se in the spec, that is what's described.

[00:11:36] Speaker 02:
It's applying incremental tiny pulses to push the threshold voltage up to a certain level.

[00:11:42] Speaker 02:
And when you get there, you have to do a read-verify.

[00:11:44] Speaker 02:
You have to make sure, OK, did it get to where I wanted to?

[00:11:47] Speaker 02:
But when you do that, it's called a read-verify because it's reading, not programming.

[00:11:56] Speaker 03:
Why don't we save the remainder of your time?

[00:11:57] Speaker 02:
Thank you very much, Your Honor.

[00:11:58] Speaker 02:
Thank you.

[00:12:00] Speaker 01:
Good afternoon, Your Honors.

[00:12:08] Speaker 01:
Jason Lange on behalf of Micron.

[00:12:11] Speaker 01:
If it may please the Court, to start with, importantly, what we heard from IMS is that they are not challenging the claim construction of configuring.

[00:12:20] Speaker 01:
And that is important because that renders all of their arguments with respect to configuring irrelevant.

[00:12:27] Speaker 01:
All of their arguments in their opening brief have been... Your opponent didn't say that.

[00:12:31] Speaker 00:
He said that he, that it was the application of the construction that was erroneous.

[00:12:38] Speaker 01:
right, Your Honor, but in their application, they're assuming that configuring means that you have to make available or unavailable.

[00:12:46] Speaker 01:
This is in their brief at 34 through 37.

[00:12:49] Speaker 01:
And in their opening brief, they had argued that the configuring was not met because in Harari, it's always available.

[00:12:59] Speaker 01:
That is the precise requirement of configuring that the board rejected.

[00:13:04] Speaker 01:
And that was on pages appendix seven through nine.

[00:13:09] Speaker 01:
And I want to point it out, because they rejected that the functionality thereafter becomes available, unavailable.

[00:13:18] Speaker 01:
In IMS's opening brief, they precisely argue that HRARI does not disclose functionality to be available or unavailable for use.

[00:13:28] Speaker 01:
That's at the opening brief at 34.

[00:13:30] Speaker 01:
And there is a good reason that's not a requirement configuring.

[00:13:36] Speaker 01:
And the board did not base this definition of configuring only on the dictionary definition.

[00:13:44] Speaker 01:
Rather, they looked to the specification.

[00:13:46] Speaker 01:
This is the decision seven through nine, appendix seven through nine.

[00:13:50] Speaker 01:
They looked at the decision.

[00:13:51] Speaker 01:
They found no disclaimer, no definitional language.

[00:13:55] Speaker 03:
Wait, you don't get to whether, you don't start looking for a disclaimer until and unless you find that there's a really plain and ordinary meaning that's clear in the claimed language, right?

[00:14:06] Speaker 03:
Yes, your honor.

[00:14:07] Speaker 03:
So the board must have, before it started searching the spec for a disclaimer, have concluded that there is a plain and ordinary meaning of configure.

[00:14:16] Speaker 01:
Yes, your honor, and I believe they did, and that was based on the IEEE definition that both experts cited.

[00:14:22] Speaker 01:
Both experts cited to the same IEEE definition, and the board concluded that was a plain and ordinary meaning.

[00:14:28] Speaker 04:
For plain and ordinary meaning, is that what our court and district courts usually do and what the board usually do?

[00:14:35] Speaker 04:
They'll look at just a dictionary to determine the plain and ordinary meaning, or will they also look to the specification to see if the plain and ordinary meaning is just within the discussion of the specification?

[00:14:50] Speaker 01:
I think here the board correctly looked to all three.

[00:14:55] Speaker 01:
They looked to the expert's testimony,

[00:14:58] Speaker 01:
They looked to the specification and found that the definition was used consistently with the specification.

[00:15:05] Speaker 03:
Where is the definition and specification?

[00:15:07] Speaker 03:
Are you saying the specification contains the definition for configure?

[00:15:11] Speaker 01:
No, Your Honor.

[00:15:12] Speaker 01:
I meant to say they found the descriptions of configuring consistent with what they found to be the plain, ordinary meaning.

[00:15:19] Speaker 04:
Is the word configure found in the specification that is in the written description?

[00:15:25] Speaker 01:
The word configuring is in the specification.

[00:15:28] Speaker 01:
There's several embodiments where there's discussion about configuring.

[00:15:33] Speaker 01:
And importantly, the most important embodiment in the board's decision was the embodiment which configuring occurred at the time of manufacturing.

[00:15:42] Speaker 04:
Where is that described in the specification?

[00:15:45] Speaker 01:
That's described on column 28.

[00:16:01] Speaker 01:
I believe line 49.

[00:16:03] Speaker 00:
What was the patient number?

[00:16:06] Speaker 01:
Let me pull that up in the appendix.

[00:16:22] Speaker 00:
I apologize.

[00:16:24] Speaker 00:
I'm having trouble locating that.

[00:16:27] Speaker 00:
Are you looking for Dr. Mercedez?

[00:16:30] Speaker 00:
IMS is expert this month.

[00:16:33] Speaker 00:
I'm sorry your honor.

[00:16:34] Speaker 00:
Are you looking for dr. Matt?

[00:16:36] Speaker 00:
It said he's not testimony.

[00:16:38] Speaker 04:
I know I was looking for I believe you wanted the embodiment of Okay, I think maybe column 28 on page a 500 You said 85 no 500

[00:17:09] Speaker 01:
Yes, Your Honor.

[00:17:10] Speaker 01:
On line 46 of column 28, it refers to a flag.

[00:17:17] Speaker 01:
And on line 47, it says, during the manufacturing or testing process, a ROM fuse can be set to either indicate that compensation be performed during reading or during programming.

[00:17:28] Speaker 04:
Were you also thinking of, up at the top of that same column, around line 15 to 16, it says, at some point during or after the manufacturing process, the memory system can be configured so it will perform compensation either during read process only or during the programming process only?

[00:17:47] Speaker 01:
That's right, Your Honor.

[00:17:50] Speaker 01:
And this part of this embodiment was critical to the board's decision.

[00:17:56] Speaker 01:
I want to point out something.

[00:17:58] Speaker 03:
Well, why don't we look to the board decision?

[00:17:59] Speaker 03:
Because I'm looking at that right now, and I can't see where the board did anything than rely on the plain and ordinary meaning and then search the spec for a disclaimer or a definition.

[00:18:15] Speaker 03:
When the board of- Am I right about that?

[00:18:19] Speaker 03:
Tell me in the board opinion.

[00:18:22] Speaker 01:
I'm not seeing, I presume you're right, but I don't see where they were relying on the... Yes, on page 19, when the board applied the Harare Chin, on page 19, the fourth line down, it's making a finding with respect to the teachings of the prior art.

[00:18:45] Speaker 01:
And the board says, this type of setup is consistent with the configuring described in the specification.

[00:18:51] Speaker 01:
where the managing circuit is configured at the manufacturer to operate in a particular way.

[00:19:04] Speaker 03:
So the key part about this is... No, but it seems to me, there they're looking at the prior art and they're saying what reads onto the prior art and what doesn't.

[00:19:12] Speaker 03:
It seems to me that their discussion of what this term means, the claim construction, is on 8-9.

[00:19:18] Speaker 01:
That's right, Your Honor.

[00:19:22] Speaker 01:
Whether you want to look at it as a claim construction issue, or I believe how IMS has argued it, that it's how you apply the prior art, what the board found is certainly in the scope of configuring, whether it's based on just a pure construction on page seven through nine, or on the application.

[00:19:39] Speaker 01:
It has to include within its scope the teachings of Harari and Chin, because it configures in precisely the same way as this embodiment.

[00:19:55] Speaker 01:
And this is an important point.

[00:19:59] Speaker 01:
In the briefing, we had pointed out in our opening brief that one of the reasons Dr. Mattis said his testimony was discredited in this regard was that it was reading out this important embodiment.

[00:20:11] Speaker 01:
In the reply brief at page 12, footnote 2, IMS has argued that that testimony is taken out of context.

[00:20:24] Speaker 01:
Because we didn't have a sir reply, we weren't able to put this in the joint appendix.

[00:20:29] Speaker 01:
But as part of the record, Micron Exhibit 1009, page 89, that's Dr. Matticetti's testimony, he made very clear he was reading out this embodiment when he was applying the claims.

[00:20:47] Speaker 04:
I understand you to be telling us right now that you're relying on something that is not in the appendix today.

[00:20:53] Speaker 04:
It's in the record.

[00:20:55] Speaker 04:
It's in the record, but not in the appendix.

[00:20:57] Speaker 01:
Yes.

[00:20:58] Speaker 01:
And I'll read it to you.

[00:20:59] Speaker 01:
It came up because they cited something in their reply.

[00:21:01] Speaker 01:
They said, we took it out of context.

[00:21:05] Speaker 01:
But they didn't cite anything.

[00:21:06] Speaker 01:
Here's the full context, Your Honor.

[00:21:09] Speaker 01:
This is on lines 12 through 17.

[00:21:11] Speaker 01:
Question.

[00:21:12] Speaker 01:
Well, I am trying to get an understanding of what your interpretation of claim one was before you gave opinions about non-obvious relating to it.

[00:21:22] Speaker 01:
Answer.

[00:21:22] Speaker 01:
This is Dr. Mattasetti.

[00:21:25] Speaker 01:
Yes, my understanding I described earlier with respect to the configuring that can occur, that claim one requires configuring occur, be required to occur after manufacturing.

[00:21:37] Speaker 01:
His opinions were based on the fact that he was excluding this embodiment from the interpretation.

[00:21:46] Speaker 01:
That's clearly a too narrow.

[00:21:48] Speaker 01:
There's certainly nothing to support.

[00:21:50] Speaker 01:
And my IMES has never cited to it.

[00:21:52] Speaker 01:
that you should reconfigure to read out an embodiment of the 953 patent.

[00:22:04] Speaker 04:
I'm sorry, but is this the same testimony that's at A1074 of the appendix?

[00:22:11] Speaker 01:
This continued on.

[00:22:13] Speaker 01:
I don't believe it was on 1074.

[00:22:34] Speaker 01:
No, this is the testimony that would be on the nest page of that, on page 89.

[00:22:41] Speaker 01:
Again, that's page 89, 12 through 17.

[00:22:52] Speaker 01:
So I'll close up on the configuring limitation here with one thing.

[00:22:59] Speaker 01:
The board's decision is very clear.

[00:23:01] Speaker 01:
Configuring means initialized to work in a particular way.

[00:23:05] Speaker 01:
When you combine Harari with Chin, you can compensate for read or for program.

[00:23:12] Speaker 01:
When you combine them, it initializes to work in a particular way the two-tier approach of Harari.

[00:23:19] Speaker 01:
That's all that's required.

[00:23:20] Speaker 01:
That's what the board found.

[00:23:23] Speaker 01:
The board went on to describe what that way is.

[00:23:27] Speaker 01:
And if you look at the board's decision on page 19, it says,

[00:23:30] Speaker 01:
the benefits it describes.

[00:23:43] Speaker 01:
On page 19, the first full paragraph, the combined system would attain the benefit of enhanced reliability.

[00:23:51] Speaker 01:
And the board goes on to continue the way in which it would work.

[00:23:55] Speaker 01:
But that's not required for configuring.

[00:23:58] Speaker 01:
The configuring was met

[00:24:00] Speaker 01:
that it was initialized to work in a particular way.

[00:24:05] Speaker 04:
Did you want to talk about programming it?

[00:24:07] Speaker 01:
Yes.

[00:24:08] Speaker 01:
Yes, Your Honor.

[00:24:09] Speaker 01:
Mr. Morris, I believe, had described that programming was defined in the specification of the 953 patent.

[00:24:17] Speaker 01:
The problem is it's not defined.

[00:24:21] Speaker 01:
IMS did not cite to in its briefing, nor here today, any express definition, any disclaim.

[00:24:29] Speaker 01:
And to put this in context.

[00:24:31] Speaker 03:
Well, that assumes, again, that we start with the premise that there's a plain and ordinary meaning of the claim language.

[00:24:36] Speaker 03:
And therefore, you need a disclaimer, or you need to have been acting as your own lexicographer.

[00:24:44] Speaker 03:
So is that your position?

[00:24:46] Speaker 03:
That yes, the plain language is unassailable.

[00:24:49] Speaker 03:
The plain and ordinary meaning is broad.

[00:24:51] Speaker 01:
Yes, Your Honor.

[00:24:52] Speaker 01:
And the prior order of record demonstrates that.

[00:24:54] Speaker 01:
Chin, for example, refers to programming.

[00:24:57] Speaker 01:
There's been no evidence of record that programming has some type of particular meaning in the 953 patent that is different.

[00:25:07] Speaker 03:
Well, there's a discussion of ISPP programming in the specification.

[00:25:12] Speaker 01:
ISP is not referenced.

[00:25:15] Speaker 01:
There are examples of programming given.

[00:25:18] Speaker 01:
ISP is not even a term in the patent.

[00:25:25] Speaker 01:
The important thing here, to put this in context, Chin, priority reference, same time frame, uses the word compensation during programming process.

[00:25:36] Speaker 01:
What IMS is attempting to do is take programming in the claim of the 953 patent and exclude programming from it.

[00:25:45] Speaker 01:
But what in the 953 patent would suggest that the broad word programming, the straightforward word programming that's used commonly in the art

[00:25:55] Speaker 01:
as Chen demonstrates, as Harari demonstrates, why does programming a 953 patent have some type of special meaning?

[00:26:02] Speaker 01:
There's nothing in the specification other than the examples that they're pointing to.

[00:26:06] Speaker 01:
This is a classic Phillips case where you would be reading a example into the claim limitation.

[00:26:23] Speaker 01:
Final word.

[00:26:24] Speaker 01:
Final word with respect back to the configuring limitation.

[00:26:29] Speaker 01:
When you reread the briefing, one thing that's become clear here today too, all they're doing is attacking the Harari reference individually.

[00:26:39] Speaker 01:
When the board made specific findings on page 18, appendix 18 of this decision, how Harari and Chin worked in combination, today what was only argued was that Harari does not disclose the limitation.

[00:26:53] Speaker 01:
But the combined teachings was not discussed in the briefings, nor was it attacked here today.

[00:27:00] Speaker 03:
Thank you, Your Honor.

[00:27:18] Speaker 02:
Please proceed.

[00:27:19] Speaker 02:
OK, Your Honor.

[00:27:20] Speaker 02:
I only have like four minutes here, so I'll try to fly through as much as I can.

[00:27:23] Speaker 02:
I'll take whatever questions that you have.

[00:27:26] Speaker 02:
The specification, it's clear that it only talks about programming in this ISPP context.

[00:27:33] Speaker 02:
It doesn't have, I agree, it doesn't have ISPP.

[00:27:35] Speaker 02:
You can't find those four letters in a row, but it talks about a sequential set of steps.

[00:27:42] Speaker 02:
The claim construction that the board found, as we were just talking about, on APP 8 and 9, it's never used again.

[00:27:51] Speaker 02:
It never shows up again.

[00:27:52] Speaker 02:
When the board is applying its quote unquote claim construction to say that Harari meets the limitation on A-19, the board says, Dr. Subramanian testifies that depending on the type of error detected, Harari makes a particular type of error correction available and makes the other type of error correction unavailable.

[00:28:13] Speaker 02:
That was the exact construction that Dr. Mattisetti had proposed that they rejected.

[00:28:18] Speaker 02:
Later in this page, they discount and they discredit him because he proposed this claim construction that they didn't like, and yet they use that construction.

[00:28:28] Speaker 02:
It's right in the center of the page.

[00:28:31] Speaker 02:
With regard to Harari, irregardless of everything else, Harari doesn't do what they say it does.

[00:28:38] Speaker 02:
Technically, it's not correct.

[00:28:41] Speaker 02:
doesn't meet the substantial evidence.

[00:28:43] Speaker 04:
Which page, you were talking about 8 through 9 of the board's opinion, which page of the board's opinion?

[00:28:49] Speaker 02:
Was I just referring to, that was A-19.

[00:28:53] Speaker 02:
In the dead center of A-19, there's a sentence that says, Dr. Subramanian testifies that depending on the type of error detected, Ferrari makes a particular type of error correction available and makes the other type of error correction unavailable.

[00:29:08] Speaker 02:
And the point is, A, that's different than the claim construction.

[00:29:12] Speaker 02:
The second point is that when he testified at his deposition, he said, oops, I'm wrong.

[00:29:18] Speaker 02:
I'm wrong.

[00:29:18] Speaker 02:
It doesn't do that.

[00:29:20] Speaker 02:
Harari never, not a single word, anywhere in the specification of Harari in any claim, in any column, in any figure, does Harari ever make anything unavailable.

[00:29:30] Speaker 00:
What about Harari where it says, I'm looking at 959, column 8,

[00:29:37] Speaker 00:
27 through 33.

[00:29:41] Speaker 00:
It says, error correction code is employed at all times to correct for soft errors as well as any hard errors that may arise.

[00:29:49] Speaker 00:
And it goes on to describe how it does it.

[00:29:52] Speaker 00:
Doesn't that mean that it's correcting both your reading and programming?

[00:29:57] Speaker 02:
That means it's correcting all the time.

[00:30:00] Speaker 02:
That's exactly my point.

[00:30:02] Speaker 02:
I actually have that exact page right here, and I was just going to talk about that.

[00:30:07] Speaker 02:
ECC has to be running all the time.

[00:30:10] Speaker 02:
That's what it is.

[00:30:11] Speaker 02:
And what Micron has tried to say is that ECC makes either soft errors available or compensation for hard errors available, and that Dr. Subramanian's testimony that they just relied on in A19 goes along that line.

[00:30:30] Speaker 02:
And then the board

[00:30:31] Speaker 02:
tries to say, well, because Harari makes one available and one unavailable, that's the same thing as the 953 patent, which does compensation during programming, or, and the word or is all over the place.

[00:30:43] Speaker 02:
It's in column 28 that you were talking about a few minutes ago on A500.

[00:30:47] Speaker 02:
It's in the claims.

[00:30:49] Speaker 02:
It's every place.

[00:30:51] Speaker 02:
And I've got like 40 seconds left.

[00:30:53] Speaker 02:
So Harari does say that, but Harari says at all times.

[00:30:58] Speaker 02:
Harari says as soon as

[00:31:00] Speaker 02:
A hard error is detected.

[00:31:02] Speaker 02:
It has to swap out the memory cell.

[00:31:04] Speaker 02:
It can't take time to reconfigure itself and say, oh, let me go get this other program from software or do something to apply it.

[00:31:11] Speaker 02:
It has to do it instantly.

[00:31:13] Speaker 02:
Both of the error correction techniques from Harari are available 100% of the time.

[00:31:18] Speaker 02:
With regard to programming, Micron's view of how the board applied it is incorrect because it reads out half the claim.

[00:31:27] Speaker 02:
And the reason why it reads out half the claim is because the claim says either during programming or during reading.

[00:31:34] Speaker 02:
And Chen, which only talks about compensation during reading, even in the sentence that Micron relies on, it says it's the same technique, which is the read compensation technique when you're doing a read verify, right?

[00:31:48] Speaker 02:
If it's really either reading

[00:31:51] Speaker 02:
or reading during programming, you don't need the either, you don't need the or, and half the claim language is just gone.

[00:31:57] Speaker 02:
And that can't be the right construction.

[00:31:59] Speaker 02:
It just can't be.

[00:32:00] Speaker 03:
OK.

[00:32:00] Speaker 03:
We've got your argument.

[00:32:02] Speaker 03:
Thank both sides of the cases.

[00:32:04] Speaker 03:
Thank you, Your Honor.