[00:00:00] Speaker 01:
We have four argued cases this morning.

[00:00:03] Speaker 01:
The first one is number 18-1138, NXP USA, Inc.

[00:00:09] Speaker 01:
versus NFC Technology.

[00:00:12] Speaker 01:
Mr. Howard Drymoner.

[00:00:23] Speaker 03:
May it please the court.

[00:00:24] Speaker 03:
There are three issues on which the board erred, and I'd like to address all three.

[00:00:30] Speaker 03:
The first two involve claim construction errors, which the board erroneously inserted negatively.

[00:00:35] Speaker 00:
Let's talk about header field, OK?

[00:00:38] Speaker 00:
If I were to look at the header field term without context, I agree that the use of comprising could be defined in many ways.

[00:00:49] Speaker 00:
And as you contend, potentially that can include the routing parameters.

[00:00:54] Speaker 00:
But wouldn't that contravene BRI?

[00:00:58] Speaker 03:
No, Your Honor, I think not.

[00:01:00] Speaker 03:
Because the header field, as you say, in normal parlance, that's a box into which information is put.

[00:01:09] Speaker 03:
Both the specification and the claims use the term header field in that fashion.

[00:01:14] Speaker 03:
So on A46, in the specification, it says the header fields contain the information required to control the router.

[00:01:23] Speaker 03:
So the header field

[00:01:24] Speaker 03:
contains the information.

[00:01:26] Speaker 03:
The header field isn't the information.

[00:01:28] Speaker 03:
It contains the information.

[00:01:31] Speaker 03:
And then in the claims themselves as well, and this is claim one, column 19, one to two, the controller data encapsulated in a frame having a header field.

[00:01:44] Speaker 03:
So the data, the controller data, is put into the header field.

[00:01:49] Speaker 00:
But the claim has to be interpreted with an eye towards giving effect.

[00:01:54] Speaker 00:
to all the terms in the claim, right?

[00:01:56] Speaker 03:
That's right.

[00:01:57] Speaker 00:
So claim one expressly requires the step of causing the controller to search for a destination point of the data in the routing table by using the routing channel number as an index to select the destination point to which the controller subsequently sends the data.

[00:02:15] Speaker 00:
But that step interacts with the step of saving

[00:02:23] Speaker 00:
in a routing table, the routing channel number and routing parameters, right?

[00:02:27] Speaker 03:
That's right, Your Honor.

[00:02:29] Speaker 03:
And I think what that structure does is support a reading in which the header table excludes the destination point.

[00:02:37] Speaker 03:
But it's only the destination point that is identified by the routing table.

[00:02:41] Speaker 00:
But then you create redundancy.

[00:02:42] Speaker 00:
Because with your argument, the interplay of those claim steps, to me, indicates it wouldn't make sense for claim

[00:02:51] Speaker 00:
one's method to save a routing parameter in the routing table, while also including that in the header field.

[00:02:57] Speaker 03:
Well, it just doesn't exclude that.

[00:03:00] Speaker 03:
And indeed, what's telling is that claim one doesn't say anything about other routing parameters, such as the protocol.

[00:03:09] Speaker 03:
And so that could be in both the header and the routing table, because claim one is simply silent about that routing parameter.

[00:03:19] Speaker 03:
And what the structure says,

[00:03:21] Speaker 00:
But the routing parameter is determined by using the routing channel number as an index to look at the routing.

[00:03:27] Speaker 03:
No, your honor, this is really important, your honor.

[00:03:30] Speaker 03:
I'm glad that you went to that.

[00:03:32] Speaker 03:
Because on Appendix 15, the board is quoting.

[00:03:34] Speaker 01:
Well, just to be clear, we're talking now about the second issue here.

[00:03:40] Speaker 03:
We're talking about the second of the three issues at the board.

[00:03:43] Speaker 01:
Yeah, and the second claim construction issue, which is whether the routing channel number

[00:03:50] Speaker 01:
has to be able to identify the destination point without any assistance.

[00:03:56] Speaker 03:
So that's a separate issue, the index.

[00:03:58] Speaker 03:
And I agree that they're related.

[00:03:59] Speaker 03:
But if I could, I think I need to answer.

[00:04:03] Speaker 01:
We're not talking about the index issue.

[00:04:05] Speaker 03:
We're talking about the header field, right?

[00:04:08] Speaker 03:
At this point, the header field, as Your Honor says,

[00:04:11] Speaker 03:
What the board said is it has to exclude the routing parameter, because you're using the routing channel number to identify the routing parameter.

[00:04:19] Speaker 03:
And that's on appendix 15.

[00:04:20] Speaker 03:
They're quoting from patent owner's brief.

[00:04:23] Speaker 03:
But that's not what the claim says.

[00:04:26] Speaker 03:
The claim says, and this is at column 19, lines 2 to 3.

[00:04:32] Speaker 03:
I'm sorry.

[00:04:33] Speaker 03:
Column 19, lines 8 to 9, basically.

[00:04:39] Speaker 03:
using the routing channel number as an index to select the destination point.

[00:04:45] Speaker 03:
So it's only the destination point that is selected by the routing channel number, not routing.

[00:04:50] Speaker 00:
Well, you have to read them all together.

[00:04:52] Speaker 03:
Excuse me?

[00:04:52] Speaker 00:
You have to read them together.

[00:04:54] Speaker 03:
You do have to read them together, your honor.

[00:04:56] Speaker 03:
But routing parameter, again, is a term that includes other things beyond the source point and the destination point.

[00:05:03] Speaker 03:
By the specifications-owned language, it includes things such as

[00:05:08] Speaker 03:
the protocol, and yet it's silent as to whether the protocol could be in the header or in the routing table.

[00:05:16] Speaker 03:
It could be in both, because it's silent about that.

[00:05:19] Speaker 02:
I guess maybe another way of asking Judge Wallach's question is, when you read the patent, the takeaway seems to be the interesting twist of this invention is stripping out all the data in the header, all the routing parameters, and just having a simple routing channel number and then

[00:05:38] Speaker 02:
You have a lookup table, a routing table, that has all the relevant routing parameter information for a given routing channel number being used as an index, as a lookup.

[00:05:52] Speaker 02:
And so therefore, you save all this kind of space in the frame.

[00:05:56] Speaker 03:
Well, Your Honor, on Appendix 5 in the board's decision,

[00:06:00] Speaker 03:
It says the routing parameters may include also the operating mode and the contactless communication protocol.

[00:06:10] Speaker 03:
But it doesn't say that those must be included in the table.

[00:06:15] Speaker 03:
It doesn't say they must be excluded from the header field.

[00:06:18] Speaker 03:
It doesn't say anything about those.

[00:06:21] Speaker 03:
And so the fact that they talk about having a shorter header field, it is a shorter header field, to be clear.

[00:06:30] Speaker 03:
If you simply take the destination address, which would be a longer, more bytes required, and insert instead a routing channel number, it's smaller.

[00:06:40] Speaker 03:
So you have accomplished that goal.

[00:06:42] Speaker 03:
Now mind you, over heading is a phrase used once in the specification.

[00:06:47] Speaker 03:
So to suggest that that one word controls everything about the claims, I think, is over reading the use of that.

[00:06:54] Speaker 03:
And the claims do accomplish that.

[00:06:57] Speaker 02:
describe what the inventive concept is communicated in the patent?

[00:07:01] Speaker 03:
Well, I think it is the fact that it uses the routing table.

[00:07:04] Speaker 03:
It uses the routing table because you can have less information.

[00:07:09] Speaker 03:
You don't have to use that in the, you don't have to buffer it.

[00:07:13] Speaker 03:
That's one of the things it describes, is you don't have to buffer it.

[00:07:16] Speaker 03:
So anything in the routing table you don't have to buffer.

[00:07:19] Speaker 01:
Would it be fair to say that in IBM,

[00:07:22] Speaker 01:
it achieves part of the purpose of the invention by narrowing the information in the header, but it doesn't go all the way, which is the objection here.

[00:07:30] Speaker 03:
I think it does go all the way, Your Honor, in the sense that what it does is it reduces the scope of the header, but what's claimed... No, no, but that was my premise, that it reduces the scope of the header, but the patentee argues that it doesn't reduce the scope of the header to a single number.

[00:07:52] Speaker 03:
The problem, Your Honor, is that reducing the header to a single number is never claimed.

[00:07:58] Speaker 01:
I understand what you're saying.

[00:08:02] Speaker 01:
And the argument is that the purpose of the invention requires that you reduce the header to the maximum possible extent.

[00:08:11] Speaker 01:
And they're saying that while IBM does reduce it to some extent, it doesn't reduce it to the maximum possible extent.

[00:08:18] Speaker 01:
That's not right?

[00:08:18] Speaker 03:
Your maximum possible extent is not in the specification.

[00:08:21] Speaker 01:
No, I understand.

[00:08:22] Speaker 01:
You're not on the same page that I'm on, okay?

[00:08:26] Speaker 01:
What I understand them to be saying is that this does not serve the purpose of the invention because there are still two numbers in the header and it would be a

[00:08:37] Speaker 01:
consistent with the purpose of the invention to eliminate that second number, even though IBM does go part of the way to reducing the contents of the head.

[00:08:47] Speaker 03:
I think you've accurately stated their position.

[00:08:49] Speaker 03:
Yes, sir.

[00:08:51] Speaker 01:
OK.

[00:08:51] Speaker 01:
Now, unless there are other questions about the head, could we go on to the second issue, which I find even more difficult than the first issue?

[00:09:01] Speaker 01:
And that is, as I understand it, looking at the language of the claim,

[00:09:07] Speaker 01:
that there's no question that at IBM the rooting channel number does help you get to the destination point, but it can't do that standing alone.

[00:09:17] Speaker 01:
Exactly.

[00:09:17] Speaker 01:
Right?

[00:09:17] Speaker 01:
That's correct.

[00:09:18] Speaker 01:
And so the question is, how do we interpret this language?

[00:09:21] Speaker 01:
Does it mean that the rooting channel number has to do it alone, or can it have some other assistance?

[00:09:27] Speaker 01:
I'm not sure that the board's use of the term or construction of the term index really

[00:09:35] Speaker 01:
gets the board where it would like to go.

[00:09:38] Speaker 01:
But what does the specification tell us about whether, in fact, the purpose here was to be able to do this with a single number without the use of another number, which I'd take it as the issue here, the second issue, right?

[00:09:54] Speaker 01:
Yes?

[00:09:54] Speaker 01:
No?

[00:09:54] Speaker 03:
Yes.

[00:09:55] Speaker 03:
I think that's right.

[00:09:56] Speaker 03:
And the specification does not say that that's essential to the invention.

[00:10:01] Speaker 03:
And you're right.

[00:10:03] Speaker 03:
I totally agree that index itself, in the library, you index books by author, but it doesn't mean that there's only one book by that author.

[00:10:12] Speaker 03:
And if we look at page 42 of our brief, there's no question in the diagram that the green VPI 5 will get you to VPI out, or VC 5, I'm sorry, will get you to VPI out.

[00:10:28] Speaker 03:
That's the destination, point 3.

[00:10:31] Speaker 03:
But you have to look at the VPI in to tell you what part of the table to look to.

[00:10:39] Speaker 03:
So it tells you to look to the box that's circled in yellow.

[00:10:44] Speaker 02:
So just so we're all on the same page, the incoming VCI, that value in and of itself is not enough to locate the destination point.

[00:10:56] Speaker 02:
Is that fair to say?

[00:10:57] Speaker 03:
in and of itself alone.

[00:10:59] Speaker 03:
That's right.

[00:10:59] Speaker 03:
That's really the dispute, is that the patent owner argued and the board adopted that it had to be the routing channel alone.

[00:11:07] Speaker 03:
And the claims don't claim that.

[00:11:08] Speaker 02:
And it's not inherent in this work.

[00:11:09] Speaker 02:
And then I guess the second issue is that when you look at your proposed column of incoming VCIs, you can have values that repeat in that table, like the number one, the value one can repeat.

[00:11:27] Speaker 02:
Another concern that I understand the board to be making is that you don't have a unique label for a given so-called routing channel number.

[00:11:38] Speaker 03:
Well, we always get to the right routing channel number because first you use the VPI, the path identifier.

[00:11:46] Speaker 02:
Right, you have to use an extra piece of information.

[00:11:49] Speaker 03:
where to look, and then from the routing channel number, you do get one destination point, and only one destination point.

[00:11:56] Speaker 02:
But I guess the concern I have with this view of the word index is, when I think of the word index is, it's supposed to serve as this efficient shortcut to be able to easily access some other information, some kind of data file or something like that.

[00:12:14] Speaker 02:
And what we have with your proposed index is,

[00:12:18] Speaker 02:
a limited amount of information that only reaches an ambiguous result.

[00:12:23] Speaker 02:
If you have a table with repeating values for your proposed index, then when you see that number value 1, you don't know what you're looking at.

[00:12:34] Speaker 02:
And so let me give you just an analogy.

[00:12:38] Speaker 02:
Assume you have a football team with 100 players, and they're all wearing jerseys, but with numbers.

[00:12:47] Speaker 02:
If you send 10 guys out on the field, all of them wearing the number 12, then those numbers can't serve as any kind of index as to who those people are running around out there and how much they weigh and what position they play, et cetera.

[00:13:02] Speaker 02:
you've defeated the whole purpose of the index and the using of the numbers.

[00:13:07] Speaker 03:
I'm reacting on the spot to your hypothetical, but if the hypothetical was that there was an offensive team that wore blue and a defensive team that wore white, and you had one person on the offensive team with 11 and one person on the defensive team with 11, 11 would still serve as an index for the player.

[00:13:23] Speaker 03:
You have to look first at are they offense or defense, but then 11 is the index.

[00:13:28] Speaker 03:
And I think visually you see that on page 42 in the diagram,

[00:13:32] Speaker 03:
5, which is the routing channel number, does appear twice.

[00:13:36] Speaker 03:
But you're not going to get to two different destination points.

[00:13:39] Speaker 03:
You're going to get to the right destination point because the path indicator has told you which part of the table to look at.

[00:13:48] Speaker 02:
Again, that's predicated on using the VPI in addition to your proposed index ICI.

[00:13:54] Speaker 02:
That's right.

[00:13:54] Speaker 03:
That's right, Your Honor.

[00:13:56] Speaker 03:
When the board said that that was in the nature of the index, it was construing the word index to insert this negative limitation of alone, which was not a construction of the word index that the patent owner had proposed.

[00:14:09] Speaker 03:
We had no notice of it.

[00:14:11] Speaker 03:
And so there was also the problem that the court had identified.

[00:14:14] Speaker 02:
Here's another analogy.

[00:14:16] Speaker 02:
What if I tried to save 10 different documents I was working on, all with the same file name 1?

[00:14:26] Speaker 02:
And then I look at my index and I see 10 ones.

[00:14:29] Speaker 02:
I don't know which one is which.

[00:14:31] Speaker 02:
I wouldn't be able to find my document in any kind of reasonably quick way.

[00:14:37] Speaker 02:
And so I've defeated the purpose of the index again, haven't I?

[00:14:41] Speaker 03:
Well, Your Honor, the question is whether it's alone.

[00:14:45] Speaker 03:
Once you're within the right spot in the table, you're only going to get to one

[00:14:50] Speaker 03:
destination point.

[00:14:53] Speaker 03:
Point three is the only destination point that's associated with routing channel five once you're in the yellow box there.

[00:15:00] Speaker 03:
And the question is can you use, this is on page 42 of our brief.

[00:15:04] Speaker 03:
It's the figure two eight of IBM.

[00:15:09] Speaker 03:
And so it says use as an index.

[00:15:13] Speaker 03:
And so am I using routing channel five as an index when I look to the box in the yellow

[00:15:20] Speaker 03:
And I look to 5, and it is associated with or correlated with BPI 3, which is the destination point.

[00:15:28] Speaker 03:
Yes, it's only associated with BPI 3.

[00:15:31] Speaker 03:
There's no other destination point with which it's associated.

[00:15:35] Speaker 03:
And so it is used as an index, as I just described.

[00:15:39] Speaker 03:
There is nothing in the claim language that excludes using something else as sort of a pre-index to tell you what part of the table

[00:15:50] Speaker 03:
to look at.

[00:15:52] Speaker 03:
And if I could just summarize in very quick fashion with respect to the third issue, because we do have all three issues, that's a classic example on page 33 of the board, laying out each party's position.

[00:16:05] Speaker 03:
They agree with one, but they don't explain why.

[00:16:08] Speaker 03:
And it's particularly disconcerting, because in the institution decision, they did the same thing, laid out each party's position.

[00:16:15] Speaker 03:
on App 213 and said that ours was persuasive.

[00:16:19] Speaker 03:
In the final written decision, they did the same thing.

[00:16:22] Speaker 03:
And they said ours is not.

[00:16:24] Speaker 03:
And then it's a non sequitur.

[00:16:25] Speaker 03:
They point to, we didn't explain how you would combine.

[00:16:27] Speaker 00:
Well, they also said they didn't believe your expert.

[00:16:30] Speaker 03:
Is that?

[00:16:31] Speaker 00:
They also said they did not believe your expert.

[00:16:34] Speaker 03:
Well, but they don't explain why again.

[00:16:35] Speaker 03:
They then lay out our position.

[00:16:38] Speaker 03:
And the why is that we didn't explain how you would combine

[00:16:43] Speaker 03:
IBM and Pekibi, but we haven't even been talking about Pekibi at that point.

[00:16:48] Speaker 03:
And there's eight pages of the petition in reply in which we explain how.

[00:16:52] Speaker 03:
Page 51 has a diagram which maps the two on, and there's no explanation about why that's not persuasive.

[00:17:02] Speaker 03:
So you have to be able to determine the basis of the board's rejection of a position, and that's just not explained.

[00:17:09] Speaker 01:
OK, well, we're out of time here.

[00:17:11] Speaker 01:
We'll give you two minutes for rebuttal.

[00:17:13] Speaker 01:
Thank you.

[00:17:13] Speaker 01:
It's here for you, Mr. Tucker.

[00:17:30] Speaker 04:
Good morning.

[00:17:30] Speaker 04:
May it please the court.

[00:17:32] Speaker 04:
The court should affirm the board's decision if it agrees with NXTCT

[00:17:36] Speaker 04:
with regard to any of NXP's three arguments.

[00:17:41] Speaker 01:
Let's start with the index issue.

[00:17:44] Speaker 01:
Why does using something as an index mean that you have to go to a single destination?

[00:17:51] Speaker 01:
For example, if there's a biography of someone and there's an index for the biography, there are going to be multiple entries, for example, if you look up the name Brown there.

[00:18:04] Speaker 01:
So why does

[00:18:05] Speaker 01:
index necessarily mean that it has to take you to a single place as opposed to help you in navigating how to get to a particular place?

[00:18:16] Speaker 04:
I think there are two reasons, and they're particular to this patent.

[00:18:20] Speaker 04:
So the first reason is the agreed construction of routing table, which requires a correspondence between the thing that's the index, the routing channel number, and what's being indexed, the routing parameter.

[00:18:32] Speaker 04:
That's one.

[00:18:33] Speaker 04:
The second thing

[00:18:34] Speaker 04:
is that it's not just about index here.

[00:18:36] Speaker 04:
It's what the index does in the claim.

[00:18:38] Speaker 04:
And the board noted that in its decision at A30 to 31.

[00:18:42] Speaker 04:
It's more than just index.

[00:18:44] Speaker 04:
It's an index to search for a destination point and to select a destination point.

[00:18:49] Speaker 04:
And the board's determination here was correct.

[00:18:53] Speaker 01:
Where is the language of the specification that talks about that?

[00:18:58] Speaker 01:
So we can understand that the specification tells us that's what the index has to be.

[00:19:04] Speaker 04:
Your honor, that's in the claim.

[00:19:07] Speaker 02:
OK, but nothing in the spec gives us any insight as to how we should think about index.

[00:19:16] Speaker 04:
The specification is consistent that what is described as the index, the routing channel number, uniquely corresponds to the channel number.

[00:19:25] Speaker 02:
Just so I can drill down, there isn't anything I could read in the spec right now that will

[00:19:31] Speaker 02:
further reinforce your position on how I should understand index as it's using the claim.

[00:19:36] Speaker 02:
Is that right?

[00:19:37] Speaker 02:
I disagree with that because I think that- Well then, where would it be in the spec?

[00:19:42] Speaker 04:
Sure.

[00:19:42] Speaker 04:
So I think the best place to point to is table three, which is NXP's best evidence that our position is wrong.

[00:19:51] Speaker 04:
But if you look at table three, and this is the embodiment's- Which page is this on?

[00:19:56] Speaker 04:
I'm sorry.

[00:19:56] Speaker 04:
This is A53.

[00:19:59] Speaker 04:
Table 3 spans columns 17 and 18.

[00:20:03] Speaker 04:
This is the embodiment NXP points to as potentially destroying our argument, but it doesn't.

[00:20:10] Speaker 04:
So NXP points to channel number 40 and says, well, you've sent the information to two different points, P1 and P2.

[00:20:20] Speaker 04:
So it doesn't uniquely identify the destination points.

[00:20:24] Speaker 04:
But this is wrong.

[00:20:25] Speaker 04:
P1 and P2 are both the destination points.

[00:20:27] Speaker 04:
and channel number four uniquely identifies them.

[00:20:30] Speaker 01:
Okay, but I understand that you're arguing against their use of the specification in this respect, but I think what Judge Chen was asking you, and what I was asking you also, is what is it in the specification that tells us that your interpretation is right?

[00:20:48] Speaker 04:
So again, I would point to the plain language of the claims.

[00:20:51] Speaker 01:
Okay, but it's not about the specification.

[00:20:54] Speaker 04:
So index is described a few times in the specification.

[00:20:58] Speaker 04:
Column 9 describes an index.

[00:21:00] Speaker 04:
Column 9, lines 25 through 28, describes using the routing channel number as an index to find the destination point in the routing table.

[00:21:10] Speaker 01:
What language here tells us that you're right?

[00:21:14] Speaker 04:
Because nothing else is used other than the routing channel number.

[00:21:20] Speaker 01:
Okay, but it doesn't say that nothing else can't be used.

[00:21:24] Speaker 01:
It just shows in this embodiment that only the routing channel number is being used, right?

[00:21:33] Speaker 01:
That's correct.

[00:21:39] Speaker 04:
So like I said, our argument is based on the plain language of the claim that requires the index.

[00:21:46] Speaker 01:
So under BRI, why can't you use something else in addition to the routing channel number to reach the destination?

[00:21:53] Speaker 04:
because then you're not using that one thing as an index to select the destination point.

[00:22:00] Speaker 04:
The VCI in ATM cannot be used as an index to select the destination point because you need the VPI as well.

[00:22:09] Speaker 04:
So it can't be used as an index to select the destination point.

[00:22:12] Speaker 04:
And the board noted that.

[00:22:13] Speaker 04:
The board noted not just that it was the nature of the index, which NXP points to, it was also the fact that the routing table stores these correspondences

[00:22:22] Speaker 04:
And then the correspondences are used to search for and select the destination point.

[00:22:29] Speaker 04:
If there aren't any other questions on index, I'd like to move on to the one issue that has the most deferential standard of review.

[00:22:37] Speaker 04:
Because I think all the parties agree here that the board only needs to agree with NFCT on one of these issues to affirm the board's decision.

[00:22:45] Speaker 04:
And that's the saving in the routing table claim element.

[00:22:50] Speaker 04:
that NXP addressed at the end of its oral argument.

[00:22:53] Speaker 04:
NXP admits that the board cited its evidence, but it argues that the board didn't explain why it agreed with us instead of NXP.

[00:23:05] Speaker 04:
We disagree, because the board explained that it accredited our expert over NXP's expert.

[00:23:11] Speaker 04:
And more importantly, that's enough under the law.

[00:23:14] Speaker 04:
So the synopsis versus Mentor Graphics case from 2016 explained that

[00:23:19] Speaker 04:
when the board provided sufficient reasoning for an argument regarding whether the prior disclosed a claim limitation by addressing the argument generally and saying that it relied on the prevailing party's expert.

[00:23:31] Speaker 04:
Similarly, in Novartis versus Thorin Pharma in 2017, the board cited to relevant pages of the report.

[00:23:38] Speaker 01:
But it seems to me that the problem, if you look at page 33 of the board's opinion, they say that merely acknowledging that the virtual has disclosed by IBM

[00:23:48] Speaker 01:
endpoint does not explain sufficiently how the IBM protocol can operably be integrated.

[00:23:53] Speaker 01:
Well, the evidence that the petitioner presented did more than that, didn't it?

[00:24:02] Speaker 01:
So I think there are two parts to this.

[00:24:06] Speaker 01:
Is that true or not true?

[00:24:08] Speaker 01:
That the petitioner's evidence did more than what the board characterized it as doing.

[00:24:15] Speaker 04:
No, Your Honor.

[00:24:16] Speaker 04:
I think that's not true.

[00:24:17] Speaker 04:
I think that the board correctly characterized the petitioner's evidence, and I think substantial evidence supports the board's finding.

[00:24:24] Speaker 01:
That oil was in the petitioner's evidence?

[00:24:27] Speaker 04:
The petitioner acknowledged that IBM's... You mean on that specific point?

[00:24:33] Speaker 04:
On that specific point, yes, Your Honor.

[00:24:35] Speaker 04:
Thank you.

[00:24:37] Speaker 04:
But there, the petitioner acknowledged that IBM, or argued that IBM's VPIs had endpoints.

[00:24:43] Speaker 04:
And then, but then it did not explain.

[00:24:45] Speaker 04:
And this was the point of our expert, Dr. Walker's testimony that was credited by the board.

[00:24:50] Speaker 04:
The petitioner did not explain why it swapped out a path identifier for a point identifier in the routing table that it devised.

[00:24:58] Speaker 04:
So that was the basis of the board's holding.

[00:25:00] Speaker 04:
The board said, NXP, we are going to adopt your combination as you proposed it.

[00:25:08] Speaker 04:
But even that combination falls short of meeting this claim.

[00:25:12] Speaker 01:
Where did your expert say that that's all that the petitioner's expert did?

[00:25:17] Speaker 04:
At paragraph 153.

[00:25:18] Speaker 04:
This is A, 3148, I believe.

[00:25:20] Speaker 04:
It may be 3147.

[00:25:23] Speaker 04:
I can find it for you in a second.

[00:25:31] Speaker 00:
It starts on 40.

[00:25:34] Speaker 04:
Yes.

[00:25:34] Speaker 04:
Thank you, Judge Walker.

[00:25:35] Speaker 04:
It starts on 47.

[00:25:36] Speaker 04:
It's paragraph 153.

[00:25:38] Speaker 04:
So first of all, Dr. Walker's testimony starts at paragraph 145 with regard to this.

[00:25:46] Speaker 04:
He explains why ATM falls short.

[00:25:49] Speaker 04:
He explains how it is.

[00:25:51] Speaker 01:
Where does he say what the board said?

[00:25:54] Speaker 01:
That's what my problem is.

[00:25:56] Speaker 01:
The board says simply explaining the two destination points isn't enough.

[00:26:03] Speaker 01:
interpretation is they're saying that's all the petitioner's expert did.

[00:26:08] Speaker 01:
And I've looked at the petitioner's expert testimony.

[00:26:11] Speaker 01:
This stuff is very complicated.

[00:26:13] Speaker 01:
It does seem to me that he did more than what the board is saying he did.

[00:26:18] Speaker 01:
And what I'm asking you to show me is where your expert says that that's all the petitioner's expert did.

[00:26:28] Speaker 04:
And I was pointing you to paragraph 153, where after explaining what was wrong,

[00:26:33] Speaker 04:
With NXP's combination, Dr. Walker explains that the petitioner and its expert didn't provide any reasoning why you would swap out the points identifier and the path identifier.

[00:26:46] Speaker 01:
But that's a different point.

[00:26:47] Speaker 01:
I think they're absolutely related, Your Honor, because- Well, they may be related, but they're not the same point.

[00:26:52] Speaker 01:
I mean, in other words, the board says all the petitioner's expert did was identify endpoints, and that's not enough.

[00:27:02] Speaker 01:
which sounds on its face probably correct.

[00:27:06] Speaker 01:
The question is whether the petitioner's expert did something more which the board ignored.

[00:27:11] Speaker 01:
And I don't see your expert saying that their expert limited himself to the two destination points.

[00:27:19] Speaker 01:
So he does say that he doesn't come up with a convincing reason to combine.

[00:27:28] Speaker 01:
That's true.

[00:27:29] Speaker 01:
But he doesn't say that all the petitioner's expert does is identify two destination points.

[00:27:37] Speaker 04:
I agree that that statement is not in here.

[00:27:40] Speaker 04:
But what Dr. Walker did, and the substantial evidence supporting the board's decision is in Dr. Walker's testimony, is he walked the board through the problem with the ATM reference, which is that the table doesn't include source and destination points.

[00:27:55] Speaker 04:
And so what NXP did, this is all Dr. Walker's explanation.

[00:27:59] Speaker 00:
You really have to look at 145 and 148.

[00:28:03] Speaker 04:
Yes, Judge Wallach, I agree.

[00:28:04] Speaker 04:
Like I said, it starts at 145, and it goes through 153.

[00:28:08] Speaker 04:
And this is the explanation that Dr. Walker gives.

[00:28:11] Speaker 04:
He says, the ATM reference itself doesn't disclose source points in the routing table.

[00:28:17] Speaker 04:
What NXP did is it took the part where you're supposed to identify paths, and it plugged in a point identifier instead.

[00:28:24] Speaker 04:
And then that's when paragraph 153 comes in.

[00:28:26] Speaker 04:
And he says, they never explained why they would do this.

[00:28:30] Speaker 04:
That's the testimony that the board credited.

[00:28:32] Speaker 04:
And that's substantial evidence to support the board's decision that even if you combine this as NXP proposes, NXP's combination falls short.

[00:28:43] Speaker 04:
That's enough to affirm the board's decision on all points in the case.

[00:28:48] Speaker 01:
Just on that point, what are we to make of this?

[00:28:51] Speaker 01:
language on page 29 of the board's opinion.

[00:28:56] Speaker 01:
Would they seem to say they're not going to address the combinability question?

[00:29:03] Speaker 04:
Thank you, Your Honor.

[00:29:04] Speaker 04:
I'm glad you asked this point, because NXP tries to make this into an admission by the board that it wasn't going to consider evidence.

[00:29:14] Speaker 04:
That's not what the board said.

[00:29:16] Speaker 04:
The board said at 829, because the combination, even if

[00:29:21] Speaker 04:
as proposed by the petitioner doesn't meet these claim limitations, we're not going to reach the issue of whether it would have been obvious to combine these two references in the first place.

[00:29:31] Speaker 04:
So first of all, there's two points here.

[00:29:34] Speaker 04:
First of all, reaching an issue and not considering evidence are two totally different things.

[00:29:39] Speaker 04:
The board didn't reach the issue of motivation to combine.

[00:29:42] Speaker 04:
It never said it didn't consider evidence.

[00:29:44] Speaker 04:
And the court is presumed to consider the evidence that is cited.

[00:29:47] Speaker 01:
Yeah, but this sounds like they're not reaching something other than motivation to combine.

[00:29:53] Speaker 01:
It sounds as though they're not reaching combinability.

[00:29:56] Speaker 04:
Exactly.

[00:29:56] Speaker 04:
And that was a different issue than the one that's on appeal here.

[00:29:59] Speaker 04:
So this was my second point, is you need to consider the context of the briefing to the board.

[00:30:07] Speaker 04:
So there were many other arguments below that didn't reach the appeal.

[00:30:11] Speaker 04:
There were three arguments that we made about the motivation or the rationale to combine.

[00:30:16] Speaker 04:
We argued that ATM was non-analysis art.

[00:30:18] Speaker 04:
We argued that it taught away.

[00:30:20] Speaker 04:
And we argued that there was no motivation to combine the references.

[00:30:23] Speaker 04:
That's the issue that the board didn't reach.

[00:30:26] Speaker 04:
But it's separable from this issue of whether or not the claim limitation is missing after what the board did was say, OK, NXP, we'll spot you your combination argument, but you still are falling short on this missing element here in the claim.

[00:30:41] Speaker 04:
Once you understand that context, the parties argued all these other things to the board.

[00:30:45] Speaker 04:
That's the issue the board didn't reach.

[00:30:47] Speaker 04:
It said, OK, we're just going to combine ATM and PIKIVI, the other reference.

[00:30:52] Speaker 04:
But even when we do that, you're still missing this claim limitation.

[00:30:55] Speaker 04:
Which limitation is that?

[00:30:56] Speaker 04:
This is saving in the routing table, the source and destination point identifiers.

[00:31:01] Speaker 04:
It's the third issue in the party's purview.

[00:31:05] Speaker 04:
Unless there are other questions on that, I'm happy to talk about the header field with the time that I have left.

[00:31:12] Speaker 04:
So the board correctly construed header field to exclude routing parameters saved in the routing table.

[00:31:19] Speaker 04:
I think one of the disputes between the parties here is a legal one, which is whether or not you need an express disclaimer or lexicography.

[00:31:29] Speaker 02:
I think the real question is what happens with the, what do we do with the word comprising, the header field comprising the routing channel number.

[00:31:37] Speaker 02:
Sure, Your Honor.

[00:31:37] Speaker 02:
So that suggests pretty strongly in patent law land that you can have other things besides the routing channel number contained in the header field.

[00:31:47] Speaker 04:
Comprising is an open-ended term.

[00:31:49] Speaker 04:
So what do we do?

[00:31:51] Speaker 04:
We should do what the board did, because the board applied the correct analysis here.

[00:31:56] Speaker 01:
The analysis was that the purpose wouldn't be served by having more than the routing channel number in the header, right?

[00:32:04] Speaker 04:
That is one of the three different things that the board found that weighed in favor of the broadest reasonable interpretation excluding routing parameters saved in the routing table.

[00:32:13] Speaker 04:
They looked at three different things.

[00:32:15] Speaker 04:
One, it was the structure of the claims.

[00:32:16] Speaker 04:
The claims require this routing table to store these correspondences and then require looking up the destination point in the routing table.

[00:32:26] Speaker 04:
It wouldn't make any sense to put them in the header if it's also in the routing table.

[00:32:29] Speaker 04:
It's like asking for directions when you know where to go.

[00:32:32] Speaker 04:
But it really doesn't make sense in light of the second.

[00:32:34] Speaker 00:
Well, it also is like making something more complicated when your point is to make it more simple.

[00:32:39] Speaker 04:
Exactly, Your Honor.

[00:32:40] Speaker 04:
And that's the purpose of the invention.

[00:32:42] Speaker 01:
And that's one of the specifications.

[00:32:43] Speaker 01:
That's a tough argument in terms of claim construction, that it serves some of the purpose of the invention.

[00:32:50] Speaker 01:
But the purpose of the invention requires that you go all the way in reducing the content of the header.

[00:32:56] Speaker 01:
I mean, that seems a little goosey goosey.

[00:33:02] Speaker 04:
Your Honor, I think it is the purpose of the invention.

[00:33:06] Speaker 04:
And that's described in column three of the patent.

[00:33:08] Speaker 04:
The patent explains these long and complex headers, the overheading problem.

[00:33:13] Speaker 04:
It then provides the solution two sentences later, which is a method.

[00:33:18] Speaker 04:
What line are you on?

[00:33:19] Speaker 04:
I'm sorry.

[00:33:19] Speaker 04:
So the overheading problem is described at column three, lines 50 through 56.

[00:33:26] Speaker 04:
And then in the very next paragraph, starting at line 57, it says,

[00:33:30] Speaker 04:
It is therefore desirable to provide a method for routing data in an NFC chipset that is simple to implement and does not require any long header fields.

[00:33:40] Speaker 01:
Yeah, but it doesn't say that it doesn't require more than one number in a header field.

[00:33:45] Speaker 04:
And like I said, it was three things that the board relied on.

[00:33:48] Speaker 04:
It was the structure of the claims.

[00:33:49] Speaker 04:
It was this distinction over the prior art.

[00:33:51] Speaker 04:
And then it was the specification making good on its promise.

[00:33:55] Speaker 04:
Every single embodiment in the specification supports our construction

[00:34:00] Speaker 04:
that if you save the routing parameters in the routing table, you also do not save them in the header.

[00:34:05] Speaker 02:
So the header field in your view can have one and only one number, the routing channel number.

[00:34:11] Speaker 02:
Is that how we should understand?

[00:34:12] Speaker 04:
It's not that it can have one and only one number, no.

[00:34:16] Speaker 04:
It's that whatever routing parameter is in the routing table, because you already have it in the routing table and you're going to look it up, those channel numbers are excluded.

[00:34:25] Speaker 04:
And that's actually a good point, because that was a dispute that happened below.

[00:34:29] Speaker 04:
is NXP tried to morph our arguments into an argument that we were trying to eliminate all routing parameters from the header.

[00:34:35] Speaker 04:
That's not our construction.

[00:34:36] Speaker 04:
Our construction is the routing parameters that are saved in the routing table are excluded from the header field.

[00:34:43] Speaker 04:
Only those routing parameters.

[00:34:46] Speaker 04:
I see that I'm out of time.

[00:34:47] Speaker 01:
All right.

[00:34:47] Speaker 01:
Thank you, Mr. Tucker.

[00:34:49] Speaker 04:
Thank you, Your Honors.

[00:34:57] Speaker 03:
If I may, I wanted to start with the header field point.

[00:35:02] Speaker 03:
And in terms of the need to exclude source point, I think it is instructive to look at claim 12, which is also, of course, one of the two claims at issue here, which at lines 38 to 40 says, upon receiving data from the source point encapsulated in.

[00:35:24] Speaker 03:
And so all we're suggesting is that the header

[00:35:27] Speaker 03:
might include the information of the source point from which it's coming.

[00:35:30] Speaker 03:
And I don't think that you can read the claims or the structures as necessarily excluding that.

[00:35:38] Speaker 03:
It doesn't need to.

[00:35:39] Speaker 03:
That's the language of the spec they pointed.

[00:35:41] Speaker 03:
It's not required.

[00:35:42] Speaker 03:
But it certainly doesn't suggest that you're excluding the source point from which the data came.

[00:35:49] Speaker 01:
Why don't you address the third point?

[00:35:52] Speaker 03:
In terms of the third point, Your Honor, I think

[00:35:54] Speaker 03:
that there's no question that our expert did explain that the path can identify the endpoint, the source point, or the destination.

[00:36:09] Speaker 03:
Of course, we know that that can be true as a general matter.

[00:36:11] Speaker 03:
If you're at the airport and you're looking up at New York, it's both the path that the plane is going to fly.

[00:36:17] Speaker 03:
It's also the destination point.

[00:36:19] Speaker 03:
And so there's nothing inconsistent with the path

[00:36:23] Speaker 03:
also identifying the destination point.

[00:36:26] Speaker 03:
And our expert explained that.

[00:36:29] Speaker 03:
And again, I think in the opinion, all the board does is lay out the two positions.

[00:36:34] Speaker 03:
And then it says, we adopt the position of the panel.

[00:36:38] Speaker 01:
Yeah, but I'm not sure they can't do that.

[00:36:40] Speaker 01:
Why can't they do that?

[00:36:41] Speaker 03:
Well, they have to explain it sufficient for this court to review it.

[00:36:46] Speaker 01:
Well, we can review it by looking at what the party said whose position has been adopted.

[00:36:52] Speaker 03:
I think, well, because this is deferential review of the board under the APA, it's only the board's rationale that can stand.

[00:37:01] Speaker 03:
And so we need to know what that rationale is in the first instance.

[00:37:04] Speaker 00:
Really?

[00:37:04] Speaker 00:
If they lay out the rationale articulated by a party and say we really like this rationale and we adopt it, that's not enough?

[00:37:13] Speaker 03:
They have to explain why.

[00:37:16] Speaker 03:
Again, in the institution decision, they laid them both out, and they said that ours was the more convincing.

[00:37:22] Speaker 03:
And of course, they can change their mind, but they have to explain why.

[00:37:25] Speaker 03:
When, in this opinion, they seek to explain why, it's a non sequitur.

[00:37:30] Speaker 03:
They talk about, we haven't shown how you would operably combine them.

[00:37:35] Speaker 03:
We have eight pages that explain how you operably combine them, and they haven't explained why that isn't sufficient.

[00:37:40] Speaker 03:
But it also is neither here nor there of whether a path can identify

[00:37:46] Speaker 03:
destination point because of course it can it does at the airport and it does in IBM and Our expert explained that and they haven't explained why that's not adequate Okay, thank you.

[00:37:57] Speaker 01:
We're out of time.

[00:37:57] Speaker 01:
Thank you.

[00:37:58] Speaker 01:
Mr. Hall with my thank both counsel the case is submitted