[00:00:39] Speaker 04:
The next case for argument is 181676, Netlist versus ITC.

[00:01:13] Speaker 03:
Proceed when you're ready.

[00:01:24] Speaker 02:
Good morning.

[00:01:25] Speaker 02:
Good morning, Your Honours.

[00:01:26] Speaker 02:
May it please the Court?

[00:01:28] Speaker 02:
I also have laryngitis, so I apologize.

[00:01:34] Speaker 02:
Let him argue.

[00:01:37] Speaker 02:
The fundamental issue in this case

[00:01:39] Speaker 02:
is an issue of claim construction.

[00:01:42] Speaker 02:
We're dealing with patents here that cover memory modules that are able to train their own on-module components.

[00:01:54] Speaker 02:
And there's no dispute as to how the accused devices in this case function.

[00:02:01] Speaker 02:
All the parties agree that the on-module control circuit generates a write command

[00:02:07] Speaker 04:
And then that right command... So your view of generate is that it generates even if it involves the stuff that's unpacked.

[00:02:16] Speaker 04:
This is a packing or unpacking case, right?

[00:02:18] Speaker 04:
This is packed together and then stuff is extracted for certain purposes.

[00:02:24] Speaker 04:
And you're saying that that extraction constitutes generating, right?

[00:02:30] Speaker 02:
That's correct.

[00:02:31] Speaker 02:
We are saying that the term generate

[00:02:35] Speaker 02:
that any transformation or modification is wholly contained within the meaning of generate.

[00:02:42] Speaker 02:
So if there's any transformation from what is input to what is output, if there's any modification from what is input to what is output, that would satisfy the meaning of generate.

[00:02:52] Speaker 02:
And that's consistent.

[00:02:53] Speaker 04:
OK, so if you have a big box, a gift box for Christmas, and you've got glass in there, so you've packed between the glass certain buffers so that the glass won't break.

[00:03:04] Speaker 04:
So when it's delivered and the other person receives it, they extract the glass and they extract the buffers.

[00:03:11] Speaker 04:
Is your view that that second step is also generating?

[00:03:17] Speaker 02:
Well, it's certainly different than a pass-through in which the package just went down a conveyor belt unopened.

[00:03:23] Speaker 02:
So there has been a transformation in that situation.

[00:03:28] Speaker 04:
Well, the glasses you sent are the same glasses that you meant to send.

[00:03:32] Speaker 04:
The other stuff was just extra stuff to protect the glasses.

[00:03:36] Speaker 04:
But you're saying some new product exists once you remove the glasses from the package?

[00:03:41] Speaker 02:
Well, I think that we're hyper-focusing on individual data bits.

[00:03:44] Speaker 02:
The claim language is data.

[00:03:47] Speaker 02:
And the construction is data.

[00:03:49] Speaker 02:
So if you're looking myopically at individual training bits and what we want to happen to those, then I think you're looking at the wrong place.

[00:03:56] Speaker 02:
What happens in the accused device is that 20 bits of data come in.

[00:04:01] Speaker 02:
So the packaging and the data and the training bits are all packaged in data.

[00:04:07] Speaker 02:
And then that data is transformed.

[00:04:09] Speaker 04:
And then you say that by extracting these eight bits, that's the transformation that

[00:04:15] Speaker 04:
That's right.

[00:04:18] Speaker 02:
28 bits come in, 8 bits go out.

[00:04:20] Speaker 02:
So there's been a transformation.

[00:04:21] Speaker 03:
I have a question that will make you very sad, but if we actually say both of the other cases should be affirmed, this case just goes away as dismissed, right?

[00:04:32] Speaker 03:
I can't see any claims that are left in this case that aren't covered if we affirm the two earlier cases.

[00:04:39] Speaker 02:
So first, that would make me very sad.

[00:04:41] Speaker 03:
Yes.

[00:04:42] Speaker 03:
But would it be correct?

[00:04:43] Speaker 03:
I prefaced it.

[00:04:45] Speaker 03:
I have a sad question.

[00:04:47] Speaker 02:
I think that I have to concede that if finally all of the appeals are finally over with and PTAB has extinguished the claims of these patents, we wouldn't be able to continue to assert them.

[00:05:01] Speaker 03:
I just want to make sure all of the same claims were covered, that the ITC proceeding doesn't involve any

[00:05:07] Speaker 03:
want to make sure factually with you the ITC proceeding doesn't involve any claims that wouldn't have already been covered by prior invalidations and or this these two invalidations that's correct but I don't think that right necessarily renders this case moot yet until there's been a final resolution as to the outcome

[00:05:31] Speaker 02:
where all judicial avenues have been exhausted.

[00:05:35] Speaker 03:
I don't understand.

[00:05:36] Speaker 03:
If we affirm the other two, which invalidate all the claims, why doesn't that render this case moot?

[00:05:43] Speaker 02:
Well, it would, eventually.

[00:05:44] Speaker 02:
I mean, if we are granted certiorari, if we appeal en banc, we still wouldn't have the absolute final mandate for some time.

[00:05:53] Speaker 02:
And until that happens, I think this case remains relevant.

[00:05:59] Speaker 03:
I think technically we often say cases are mooted when there are companion cases that remove all the claims and they're on the same timeline as the others, so you can always pursue and bank.

[00:06:13] Speaker 02:
Go ahead.

[00:06:14] Speaker 02:
So I think it's important to understand where the construction of January comes from.

[00:06:18] Speaker 02:
And it comes from a PTAB decision.

[00:06:20] Speaker 02:
So the ALJ in this case adopted a PTAB's construction of the term generate and PTAB had construed this under the broadest reasonable interpretation.

[00:06:30] Speaker 02:
And what was going on at PTAB was that there was an individual data byte being sent through a circuit and petitioners were trying to expand the meaning of generate

[00:06:40] Speaker 02:
to such an extent that intermediate switches would be considered data generation elements just because data was passing through them.

[00:06:51] Speaker 02:
And PTAP therefore expressly stated that

[00:06:57] Speaker 02:
within the scope, actually excluded from the scope of generate, merely pass throughs.

[00:07:03] Speaker 02:
So if you just provide or send or relay a signal, that's not going to be considered generate.

[00:07:11] Speaker 02:
However, if during the course of this relaying, there is a transformation of the data signal, the data signal is modified in any way,

[00:07:23] Speaker 02:
then that would be considered by PTAB under the Broadest Reasonable Interpretation Standard a generation of that data.

[00:07:33] Speaker 02:
And that was the construction that the ALJ in our case ultimately adopted.

[00:07:42] Speaker 04:
But obviously he construed it differently than you're construing it.

[00:07:46] Speaker 04:
What he looked at now was that it's simply unpacking.

[00:07:50] Speaker 04:
these bits from the other bits that are there to make sure that the data handlers properly receive the previously generated test data.

[00:08:01] Speaker 04:
So that's the way he construed the PTab's meaning of generate, right?

[00:08:06] Speaker 02:
Well, it's not finally clear to me how he construed it.

[00:08:09] Speaker 02:
We know what he thinks does not count as data generation, but that's at odds with

[00:08:16] Speaker 02:
PTAB's understanding of the exact same construction.

[00:08:22] Speaker 02:
PTAB agrees with Netlist that any difference from data coming in to data coming out is sufficient to show a modification and therefore sufficient to show a generation.

[00:08:33] Speaker 04:
So even if that were correct, even if you were correct on that, where does that lead us?

[00:08:40] Speaker 04:
Is your view that he was required

[00:08:43] Speaker 04:
to adopt the PTAB's BRI construction as you understand it?

[00:08:49] Speaker 02:
Well, he did adopt it.

[00:08:52] Speaker 02:
In the ID, he looked to PTAB, he looked to the language of PTAB, then he adopted that.

[00:08:59] Speaker 04:
So your argument is not that he should have adopted a different construction, it's that he misinterpreted the construction that he adopted?

[00:09:08] Speaker 02:
He subsequently narrowed the scope

[00:09:11] Speaker 02:
to while looking so improperly looking at the accused device to say whatever type of transformation we just saw there because he does admit that it's arguably transformed and he does admit that it's reassembled but he says whatever kind of transformation we're talking about there that doesn't rise to the level of bringing to existence

[00:09:30] Speaker 02:
He didn't tell us what would be a transformation that would rise to the level of bringing something into existence.

[00:09:37] Speaker 04:
What was brought into existence in the accused device?

[00:09:42] Speaker 04:
What is your view of brought to existence?

[00:09:45] Speaker 02:
Well, what happened in the accused devices is the data came in and there was a command that issued to the data buffer.

[00:09:52] Speaker 02:
and that command was 28 bits long and it instructed the data buffer to then form ultimately to write into its multipurpose registers an 8 byte bit of data that came into existence and became at that point ready to write to the DRAMs.

[00:10:09] Speaker 02:
And before

[00:10:11] Speaker 02:
Before that happened, the data buffer couldn't write that data to the DRAMs because there would just be a pass-through.

[00:10:19] Speaker 02:
If this was just a passive circuit, we would have seen all 28 bits get sent right up to the memory devices, but that's not what happened.

[00:10:27] Speaker 02:
Instead, what happened is they brought the 8-bit byte into existence and then divided it and sent it up to the memory to continue the training procedure.

[00:10:53] Speaker 02:
kind of reserve the remainder of my time.

[00:11:03] Speaker 04:
We've got a split argument here, so we'll run your clock at eight minutes.

[00:11:06] Speaker 00:
Thank you, Your Honor.

[00:11:06] Speaker 00:
Good morning, may it please the Court.

[00:11:08] Speaker 00:
First off, I would agree with Judge Moore's assessment that this appeal does become moot if you affirm the previous PTAB cases to give a previous

[00:11:18] Speaker 00:
case from last year x y case was directly on point we had concurrent peta proceedings and affirmed in validity so then appeal would therefore become moot this is a classic case of the patentee here netless first agreeing to a claim construction and then simply disliking the non-infringement outcome that naturally followed from the

[00:11:40] Speaker 04:
Is your friend correct that the ALJ at the ITC conceded that under the board's construction word transformation or whatever this might be broad enough but it just doesn't cover it?

[00:11:58] Speaker 00:
And construed, generate in accordance with the agreed upon construction of the parties to mean produce, i.e.

[00:12:05] Speaker 00:
bring into existence, including by transformation or modification of information.

[00:12:10] Speaker 04:
So your friend's relying on the transformation and that something has been transformed here.

[00:12:15] Speaker 04:
And I thought he suggested, if I heard him correctly, that the ALJ kind of sort of acknowledged that there was some sort of transformation going on here.

[00:12:24] Speaker 04:
It just didn't rise to the level of generate what was contemplated by the plain language.

[00:12:29] Speaker 04:
Do you know what I'm talking about?

[00:12:32] Speaker 00:
Yes, that is arguably correct.

[00:12:37] Speaker 00:
ALJ detailed what occurs in the accused products.

[00:12:42] Speaker 00:
External to the accused products themselves, these eight training bits are generated.

[00:12:48] Speaker 00:
And again, they're just simply passed through or transmitted through the accused products.

[00:12:52] Speaker 00:
Yes, 20 extraneous bits are put on, but they're taken off by the accused products.

[00:12:57] Speaker 00:
and these same eight bits unaltered in either value or sequence are written to memory.

[00:13:02] Speaker 00:
And the full limitation recites generate data for writing to memory.

[00:13:06] Speaker 00:
So that's the key component, what is being generated for written to memory.

[00:13:11] Speaker 00:
And it's these same eight-trainer bits.

[00:13:12] Speaker 04:
But if transformation is part of the claim construction of generate, I think his argument is, well, you're taking these 28 bits and you're transforming them into eight bits at the end of the day.

[00:13:24] Speaker 04:
Why wouldn't that satisfy not necessarily generate, but apparently what appears to be the construction of generate, which includes transformation?

[00:13:35] Speaker 00:
Right, but what council is doing is reading out the bringing to existence part.

[00:13:40] Speaker 00:
There has to be a bringing to existence something different than what was already previously generated.

[00:13:47] Speaker 00:
The agreed upon construction includes transformation modification, but has to bring into existence through that transformation modification.

[00:13:53] Speaker 00:
Here, nothing is being brought into existence.

[00:13:55] Speaker 00:
It's the same externally generated eight bits, put on some header and footer bits, take them off, and then write them to memory.

[00:14:03] Speaker 00:
The same eight bits unaltered in either value or sequence are then written to memory.

[00:14:09] Speaker 00:
I think your glass delivery analogy was spot on.

[00:14:12] Speaker 00:
The same glass that's known is put in a box, you put in the tissue paper,

[00:14:16] Speaker 00:
and take off the tissue paper, it's the same glasses that are delivered.

[00:14:20] Speaker 00:
Nothing is transformed or modified.

[00:14:23] Speaker 00:
These are the same bits that are written to memory, therefore, contrary to the agreed upon construction, contrary also to the specification, also contrary to the arguments they made before the PTAB to avoid, and validity where they clearly excluded that

[00:14:38] Speaker 00:
generate can mean pass through or transmit or cause has to be bring into existence, including by transformation modification.

[00:14:46] Speaker 00:
This is not performed here by the Q's products.

[00:14:51] Speaker 00:
Was there any other questions from the?

[00:14:54] Speaker 00:
Thank you then.

[00:15:02] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:15:04] Speaker 01:
I will try to be brief, although I do have full voice today, so I can... any questions you may have.

[00:15:10] Speaker 01:
Judge Moore, like my friend just said, what I perceive to be actually a happy question from you as to what happens in the event that you affirm the prior decisions is that this clearly is moot.

[00:15:20] Speaker 01:
XY says it becomes moot immediately.

[00:15:21] Speaker 01:
It doesn't wait until after the rehearing process or anything else.

[00:15:24] Speaker 01:
It operates immediately, and that's the proper disposition of this appeal, is to dismiss it on that basis.

[00:15:30] Speaker 01:
This is not a claim construction case.

[00:15:32] Speaker 01:
This is a straightforward question of substantial evidence to support the construction that everyone agreed upon.

[00:15:40] Speaker 01:
I like your Christmas present example.

[00:15:43] Speaker 01:
I also liked our experts baggage example at the end of the day.

[00:15:47] Speaker 01:
What brings something into existence?

[00:15:50] Speaker 01:
Well, it's not taking it from one place to another.

[00:15:52] Speaker 01:
They can see that in front of the IPR.

[00:15:54] Speaker 01:
You have to create it.

[00:15:56] Speaker 01:
You have to produce it.

[00:15:58] Speaker 01:
And when you take eight bits here and you put eight bits here, they didn't come into existence during that process, or at least that is a reasonable inference for the drier effect that have drawn in this case based on that claim construction.

[00:16:12] Speaker 01:
And that's all that's at issue for this court.

[00:16:16] Speaker 01:
If there are no questions, I'll cede you back my time.

[00:16:17] Speaker 01:
Thank you, Your Honors.

[00:16:31] Speaker 02:
I'd like to provide you with just a couple of sites to the ID in which the ALJ conceded that there was a transformation or arguably a transformation or at least that the data buffers were reassembling the data and that's in Appendix 71 and Appendix 72.

[00:16:52] Speaker 02:
Also, this is a claim-constructing case.

[00:17:01] Speaker 02:
It's been a claim construction case all along.

[00:17:05] Speaker 02:
The ALJ and his ID acknowledged that there was a difference in the understanding of this claim term and the understanding of the scope of his construction and his ID.

[00:17:15] Speaker 02:
And he did so at Appendix 60.

[00:17:18] Speaker 02:
He noted that Netlist contended that Hynix was limiting the type of transformation to bit flipping, and that's at Appendix 70.

[00:17:31] Speaker 02:
He also noted and failed to resolve the dispute with respect to the claim scope during his claim construction analysis.

[00:17:39] Speaker 02:
He noted that Netlist had an over-expansive interpretation of generate, and that's at appendix 71.

[00:17:48] Speaker 02:
is about the meaning of the term generate, and in particular, the meaning of what it means to treat... Yeah, but where does that get us?

[00:17:55] Speaker 04:
I mean, yeah, he observed, and it's probably true in a lot of cases, that there's a great amount of internal inconsistency in each party's arguments concerning the claim term generate.

[00:18:05] Speaker 04:
But that's at 60, and the analysis, I don't... That didn't seem to infect in any way, shape, or form as far as I can discern the analysis and the conclusions in which he reaches later on in the opinion.

[00:18:17] Speaker 02:
I think it does.

[00:18:19] Speaker 02:
If you look at Appendix 72, he notes that implicit in Complainant's argument is the idea that transformation and modification are specific examples that are wholly contained within the meaning or the scope of produce and bring into existence, which is exactly Netlist's position and which is exactly in accord with PTAB's position.

[00:18:41] Speaker 02:
PTAB said that generate encompasses, so wholly contains,

[00:18:47] Speaker 02:
any modification or transformation of data received from another component.

[00:18:52] Speaker 02:
So the fact that the ALJ has somehow limited the very construction that he adopted, yet not delineated where and how he's limited that construction, but instead just told us that the accused products don't practice whatever his limitations are, is problematic in, I think, legal error.

[00:19:24] Speaker 02:
And then I'd like to discuss PTAB.

[00:19:28] Speaker 02:
We never disclaimed our current understanding of Generate.

[00:19:33] Speaker 02:
Our understanding at PTAB has always been the same.

[00:19:37] Speaker 02:
Any signal that's coming through, if the data's coming through one end of a device and it's going out the other end unaltered or unmodified,

[00:19:46] Speaker 02:
then we don't consider that to be a generation.

[00:19:49] Speaker 02:
However, if there's any transformation, there's any modification, then that we do consider a modification and that is a generation and that is the same position that PTAB took in what ALJ adopted and what we asked this court to apply to the facts in this case.

[00:20:10] Speaker 04:
Thank you, Your Honours.

[00:20:11] Speaker 04:
Thank you.

[00:20:11] Speaker 04:
We thank both sides and the case is submitted.

[00:20:16] Speaker 04:
The next case for argument is 191177, Phillips vs. Google.