[00:00:00] Speaker 04:
And good morning, everyone.

[00:00:05] Speaker 04:
The first argued case this morning is number 181310, Samsung Electronics Company against USILLC.

[00:00:16] Speaker 04:
Mr. Modi.

[00:00:24] Speaker 01:
Good morning, Your Honors.

[00:00:25] Speaker 01:
May it please the Court.

[00:00:27] Speaker 01:
To convince the Patent Office to re-examine the 183 patent at issue here, UUSI admitted that it would have been obvious to arrive at the claim feature at issue here based on the teachings of Graffiti.

[00:00:40] Speaker 01:
But when Samsung presented Graffiti for the same claim feature using the same reasoning as UUSI, UUSI did an about face and now argues that it would not, 104.0 skill would not even look at Graffiti.

[00:00:54] Speaker 01:
The board not only ignored the clear admission by UUSI, it legally erred in its obviousness analysis with respect to motivation to combine and reasonable expectations.

[00:01:05] Speaker 03:
The board found differences between multi- and

[00:01:12] Speaker 03:
and single point devices.

[00:01:16] Speaker 03:
And it said the considerations described in Patent Ingram and Caldwell are wholly absent from GERFI.

[00:01:25] Speaker 03:
And they went through a substantial analysis.

[00:01:29] Speaker 03:
And so this has been gone through an original examiner and a board of three administrative patent judges.

[00:01:41] Speaker 03:
And they credited testimony of one person over another.

[00:01:45] Speaker 03:
Why should we be reversing?

[00:01:47] Speaker 01:
Let me explain why, Judge Lowery.

[00:01:48] Speaker 01:
I think there are a number of reasons.

[00:01:50] Speaker 01:
If we could start with the motivation to combine, and I think we can go right to the issue of why would a foreigner's skill would look at the teachings of graffiti, which allegedly is a reference that only teaches single point systems.

[00:02:02] Speaker 01:
So if we can start there, we believe the board legally erred by misapplying this court standard on analogous art.

[00:02:10] Speaker 01:
As this court has made clear multiple times, that prior art is analogous if the art is from the same field of endeavor.

[00:02:18] Speaker 01:
And if we look at the evidence here, starting with the 183 patent issue, we can look at the claims, we can look at the specification, we can look at the drawings.

[00:02:27] Speaker 01:
We can look at the evidence collectively here, we believe, shows that the field of endeavor was capacitive, touch-responsive systems.

[00:02:39] Speaker 01:
And then UUSI represented the same to the patent office here.

[00:02:43] Speaker 01:
UUSI, during the re-exam, Judge Laurie, that you referred to at A1430.

[00:02:47] Speaker 03:
Frankly, as far as I'm concerned, I wouldn't waste my time in the non-analogous art issue.

[00:02:51] Speaker 03:
Of course, it's analogous.

[00:02:53] Speaker 03:
They both relate to capacitive touch systems.

[00:02:58] Speaker 03:
The board noted that the art, I quote, evinces a long-standing distinction between single-point and multi-point capacitive touch response systems.

[00:03:09] Speaker 03:
So they are analogous, but that doesn't mean combining them was the motivation to combine them.

[00:03:17] Speaker 01:
Your Honor, I think if you look at the underlying evidence that the board looked at, there was only one statement in Rimpulski that the court relied upon, which was a 1981 patent.

[00:03:26] Speaker 01:
And here, we're talking about the relevant time frame is 1996, which was the filing date of the 183 patented issue.

[00:03:33] Speaker 01:
And I think the board erred.

[00:03:34] Speaker 01:
Judge Laurie, if we go back, and I think what's telling here is if you look at the re-examination, we have yet to hear from UUSI a response on the merits with respect to the arguments they themselves made regarding their fire date during re-examination.

[00:03:48] Speaker 01:
If we could look at A1446 of the appendix, there, UUSI itself said,

[00:03:55] Speaker 01:
And I quote, graffiti discloses selectively providing signal output frequencies.

[00:04:02] Speaker 01:
Not only did they say that, they also said it would have been obvious, and this is again at A1446.

[00:04:10] Speaker 01:
Judge Dyke, let me know when you're there.

[00:04:12] Speaker 01:
I'm there.

[00:04:13] Speaker 01:
So if you look at A1446, they also said it would have been obvious to one of ordinary skill in the art at the time of the invention to determine the single RF signal of buoy, which was a multipoint reference that they even admitted would map to the keypad.

[00:04:29] Speaker 01:
by evaluating the extent of interference at a given signal frequency and selecting a different frequency when a substantial interference is detected as taught by graffiti.

[00:04:40] Speaker 01:
That is precisely the same rationale that Samsung relied upon before the board in the IPR.

[00:04:46] Speaker 06:
I wonder if there's a claim construction issue here that underlies some of the differences between the parties and underlies the board decision which

[00:04:56] Speaker 06:
And in some respects, it seems to me the board is saying that you have to have a different frequency for each key.

[00:05:05] Speaker 06:
And that that's not shown in the prior art.

[00:05:08] Speaker 06:
And I'm not sure that that construction of the claim is correct.

[00:05:14] Speaker 06:
Certainly, the patentees experts seem to say that that's what the patent required.

[00:05:23] Speaker 06:
If I'm right that the board seemed to agree with that implicit construction, is that a problem here?

[00:05:31] Speaker 01:
Yes, your honor.

[00:05:32] Speaker 01:
I think that would be a problem here one.

[00:05:34] Speaker 01:
We don't believe that construction would be supported by By the claims or the specification here as your honor is aware in fact the 183 patent that issue if you look at the 183 patent issue it doesn't actually from our perspective teach you how you would select a row and provide a different frequency to each row and

[00:05:54] Speaker 01:
But at a minimum, I think that would require a vacatur and remand, Judge Dyke, if that's how you read the board's decision.

[00:06:02] Speaker 01:
And we think here, going back to that point, if you look at, again, the underlying evidence, you know, starting with our expert, Dr. Subramanian, certainly the board did, in its final decision at one point, said his testimony was conclusory as to a certain point.

[00:06:16] Speaker 06:
But do you read the board's decision as resting on that claim construction of a different frequency for each row?

[00:06:22] Speaker 01:
Just like I believe it, if you look at it from that perspective, we think that's certainly one way to look at it.

[00:06:30] Speaker 01:
But we disagree, of course, with that reasoning, as we've explained in our briefs.

[00:06:37] Speaker 01:
And we think at a minimum, a vacature would be required in that instance, because the claims here clearly are much broader.

[00:06:44] Speaker 01:
They require the microcontroller to selectively provide signal and output frequencies to the terminals of the keypad.

[00:06:52] Speaker 01:
And again, if you go back to Dr. Subraminian's testimony, I think it's telling here.

[00:06:58] Speaker 01:
Samsung's expert Dr. Subraminian offered reasons, which actually the board at institution stage, and this is at 8264, the board said Samsung had set forth detailed motivations to combine the cited references.

[00:07:12] Speaker 01:
Well, all of a sudden at the final decision stage, that testimony became conclusory according to the board.

[00:07:17] Speaker 01:
We think the board was applying

[00:07:20] Speaker 01:
this applied this court's case line but going back to the testimony at issue if you actually look at the underlying testimony that was presented by Samsung here we think there are multiple reasons why we win first if you look at that underlying testimony dr. Subramanian clearly explained and this is that it's in the record at

[00:07:38] Speaker 01:
A564 to 566, where Samsung's expert actually, sorry, it's A565 to A568.

[00:07:47] Speaker 01:
Samsung's expert goes through very methodically explaining why it would have been obvious to combine the teachings of perfidy, namely the electrical interference negation, into a system that's Ingram and Caldwell.

[00:08:01] Speaker 01:
Now, what do we have from their expert?

[00:08:02] Speaker 01:
Interbuttal.

[00:08:03] Speaker 01:
Their expert does not come back and say, well, it was not known to have an issue of electrical interference.

[00:08:09] Speaker 01:
Their expert never said that.

[00:08:11] Speaker 01:
He never rebutted Dr. Subramanian's testimony with respect to the point that one of skill would have had the skill level to actually implement such functionality in the Ingram-Colville combination.

[00:08:23] Speaker 01:
So we have no rebuttal to such testimony.

[00:08:25] Speaker 01:
And we think that's telling.

[00:08:27] Speaker 01:
The testimony that the board did rely upon, we believe, is legally irrelevant.

[00:08:31] Speaker 01:
For example, the board looked at, when it was looking at the motivation to combine, it kept on going back to the problem solved by the 183 patent.

[00:08:40] Speaker 01:
As this course of error, just because one problem is solved by the 183 patent, that's certainly not dispositive.

[00:08:45] Speaker 01:
The prior art needs to be looked at for everything that it teaches.

[00:08:49] Speaker 01:
And here, they themselves admit it.

[00:08:51] Speaker 01:
During re-examination, for the same reasons that Samsung advanced, that it would have been obvious to combine graffiti,

[00:08:58] Speaker 01:
even if you say it's a single point system with the multiple point system of buoy, which was a reference that was at issue in reexamination.

[00:09:07] Speaker 01:
And what's more here is the board not only erred with respect to the analogous art issue, which Judge Laurie, you seem to agree with us that certainly this is analogous art.

[00:09:16] Speaker 01:
The board drew this artificial distinction that you refer to, this whole multi-point and single point system.

[00:09:21] Speaker 01:
But like I said, again, the prior art is available for everything it teaches, not just specific points.

[00:09:27] Speaker 01:
And then with respect to the motivation to combine, the board also erred by combining motivation to combine and predictability.

[00:09:34] Speaker 01:
And as this court has time and again indicated, that's legal error for the fact finder to be combining the legal requirements of motivation to combine and predictability.

[00:09:45] Speaker 04:
The question isn't just whether it would have been obvious to go

[00:09:49] Speaker 04:
from the single-point touchpad to the multiple, but how it was done using the oscillator and the various steps.

[00:09:59] Speaker 04:
And this is a harder issue to overcome, is it not?

[00:10:04] Speaker 01:
Certainly, Your Honor, that going from

[00:10:09] Speaker 01:
A single point system to multi point system there are all these considerations that that are taken into account But I think if you look at the underlying evidence here again if we can look at it for example if you look at a 565 the testimony of Samsung's expert He clearly goes through explains step-by-step Why one of order skill would have combined the teachings of their Friday with the Ingram Caldwell combination he goes on to explain that

[00:10:33] Speaker 01:
Well, Garfide tells you how you negate this electrical interference problem, and then he explains that this would have been within the skill set of one of ordinary skill in the art to implement such functionality based on the teachings of Garfide.

[00:10:47] Speaker 01:
And again, we don't have any rebuttal evidence from the other side, from their expert, where he came in and said, okay, yes, it was not known.

[00:10:57] Speaker 01:
that this electrical interference problem would have existed in the Ingram-Colvo system.

[00:11:01] Speaker 06:
But what he does, it's 3788 there, the patentee's expert says, well, it wouldn't have achieved the invention because the prior art doesn't say anything about using multiple frequencies to differentiate between neighboring touchpads, which again seems to me

[00:11:23] Speaker 06:
yet to have within it an implicit claim construction that that's what the invention requires.

[00:11:29] Speaker 06:
That's what the claims require.

[00:11:31] Speaker 01:
So your honor, two responses to that.

[00:11:32] Speaker 01:
One is exactly what you said.

[00:11:34] Speaker 01:
They're obviously reading more in the claims than what's actually stated in the claims.

[00:11:39] Speaker 01:
And we think at a minimum this court should vacate and remit for the board to determine the correct

[00:11:45] Speaker 01:
claim construction.

[00:11:46] Speaker 01:
And in fact, they tried to raise this issue during the institution phase.

[00:11:50] Speaker 06:
And they're right, aren't they, that in terms, at least in terms of reasonable expectation of success, if it's required to have different frequencies for different keys, that that wasn't shown in the prior art, right?

[00:12:03] Speaker 01:
Certainly, Your Honor, if you go to that level, we don't think the evidence goes to that level in terms of, but we don't think that's required by the claims.

[00:12:13] Speaker 01:
Again, if you look at

[00:12:14] Speaker 01:
their specification and the intrinsic evidence, nowhere do they actually disclose talking, you know, they talk about dynamically changing the frequencies of the different rows.

[00:12:25] Speaker 01:
Nowhere is that disclosed in the 183 patent, and we think it would be legal error, and therefore this court, at least at that point, should vacate and remand.

[00:12:33] Speaker 01:
But the second point here, Judge Dyke, in terms of the testimony that you're referring to, again, one of the issues, as you all know, that we have with respect to the reasonable expectation of success is that the board legally erred by requiring physical incorporation.

[00:12:48] Speaker 01:
And that's exactly what the expert is doing here in paragraph 118 on A3788.

[00:12:53] Speaker 01:
I believe that's what you were referring to, Judge Dyke.

[00:12:55] Speaker 01:
And as this court is aware, that is... I don't think that's a physical incorporation problem.

[00:13:00] Speaker 06:
I think what he's saying is that the prior art didn't teach you to have different frequencies for different keys, which is true.

[00:13:07] Speaker 06:
But the question is, do the claims require that?

[00:13:10] Speaker 01:
Right.

[00:13:10] Speaker 01:
And again, our position, Judge Dyke, is that it's not required.

[00:13:13] Speaker 01:
And if I could just point the court to the physical incorporation requirement where we believe the board did err.

[00:13:22] Speaker 01:
If you look at A23 to A24, this is in the board's decision.

[00:13:27] Speaker 01:
We think the board could not have been clearer that they did have a physical incorporation requirement.

[00:13:32] Speaker 01:
This is what the board said.

[00:13:34] Speaker 01:
It said, neither petitioner nor Dr. Subramanian explains how this statement reasonably indicates graphitis interference algorithm, which functions in the context of having all electrodes tied together to form a single electrode and calculates drift in position across the electrode, would function successfully in the multi-touch keypad based on increment callback.

[00:13:55] Speaker 01:
And we think that was legal error with respect to reasonable expectation of success.

[00:13:59] Speaker 06:
Mr.. Hadley good morning may it please the court in this case so isn't there isn't the board's decision here rest on a implicit claim construction which your expert

[00:14:26] Speaker 06:
Suggested that you had to have different frequencies for different sheets, and if that is the claim construction, then there's a problem At least with reasonable expectation of success because the priority doesn't show that but Maybe that's not the correct claim construction Not exactly the implicit claim construction was raised at the institution stage and carried over the claim construction that petitioners argued

[00:14:56] Speaker 02:
was that the, that different frequencies needed to be selectively provided to the array.

[00:15:06] Speaker 02:
What the board said, which I think is correct, is that yes, you have to have, that the claim language is selectively provide signal output frequencies to an array of multi-touchpad devices.

[00:15:19] Speaker 06:
Yeah, but what does that mean?

[00:15:21] Speaker 06:
Does that mean that you have to have different frequencies for different keys?

[00:15:25] Speaker 06:
Or just that you have to select among frequencies to find the most effective frequency under graffiti for every key.

[00:15:32] Speaker 06:
And if it's the latter, then graffiti does seem to disclose that.

[00:15:36] Speaker 06:
But if it's the former, it doesn't.

[00:15:40] Speaker 02:
It's the latter.

[00:15:41] Speaker 02:
And graffiti does disclose selectively providing signal output frequencies.

[00:15:48] Speaker 02:
But it does it for a different purpose and a much different way than what is claimed in the one-day... Well, what difference does it make in terms of motivation to combine that it's for a different purpose?

[00:15:57] Speaker 06:
Because if the purpose is to avoid frequency interference, that's certainly provides a motivation to use it, right?

[00:16:06] Speaker 02:
To combine it.

[00:16:06] Speaker 02:
It makes a difference because the way that GERPiD or GERFiD selectively provides the signal output frequencies

[00:16:17] Speaker 02:
is that it monitors the frequencies as the single pad is operating and measures electrical interference.

[00:16:26] Speaker 02:
And when it finds a certain level of electrical interference, it performs an algorithm and then adjusts the frequencies on the back end.

[00:16:35] Speaker 02:
And what it essentially does is, because there are multiple rows within the single touch pad, is that it ties them all together to create a single electrode.

[00:16:44] Speaker 02:
Now, when a 3-patent

[00:16:47] Speaker 02:
deals with selectively providing frequencies in a completely different way for a completely different purpose.

[00:16:53] Speaker 06:
Different frequencies for different keys?

[00:16:57] Speaker 06:
What it does is it says... No, no, answer.

[00:16:59] Speaker 06:
Does it require different frequencies for different keys?

[00:17:02] Speaker 02:
No, it says that different frequencies have to be available for different keys.

[00:17:07] Speaker 02:
There are dependent claims.

[00:17:09] Speaker 06:
One of the dependent claims says that... I'm not sure what the difference is between what I just said and what you just said.

[00:17:14] Speaker 06:
It sounds to me, OK, different frequencies available for different keys, that's not taught in the prior art.

[00:17:21] Speaker 06:
Therefore, there's no reasonable expectation of success.

[00:17:24] Speaker 06:
That's the theory.

[00:17:25] Speaker 06:
Correct.

[00:17:26] Speaker 06:
But that rests on a claim construction, which it seems to me may not be correct.

[00:17:32] Speaker 02:
The claim construction was correct.

[00:17:34] Speaker 02:
And what the claim construction said, and dependent claims supported this, was that as long as you have different frequencies available from which the microprocessor can select to give to the array to reduce crosstalk and prevent unintended actuation, that's what the claims require.

[00:17:50] Speaker 02:
And there are, in fact, dependent claims, one of which says that the microprocessor selects different frequencies for each row.

[00:17:57] Speaker 02:
And another dependent claim says that the microprocessor selects the same frequency

[00:18:02] Speaker 02:
for each row.

[00:18:03] Speaker 02:
So both are encompassed within the claim construction.

[00:18:06] Speaker 02:
But the reason why it matters in terms of looking at GERP-hide is because if you take GERP-hides back in procedure for determining which frequency of many to provide to which rows, the undisputed testimony is that it does not work in the 183 patent where you have multiple touchpad devices.

[00:18:27] Speaker 02:
Now what

[00:18:29] Speaker 02:
the petitioner argued is that, well, you don't have to worry about this selectively providing.

[00:18:34] Speaker 02:
And it was legal error to consider the whole

[00:18:38] Speaker 02:
back-end procedure versus the 183 patents front-end procedure, because we're going to rely on Codwell for the selectively providing.

[00:18:47] Speaker 02:
So in other words, we're going to take this sentence, we're going to parse it out, we're going to say, Codwell teaches selectively providing, and all we're using GURPIED for is to teach frequencies, and so you don't have to consider how GURPIED does it, and you don't have to consider what GURPIED does it for,

[00:19:04] Speaker 02:
And you don't have to consider the difference between multi-pad and single-pad in GURP-hide versus Codwell because in GURP-hide we're just looking at frequencies and Codwell gives us everything else.

[00:19:16] Speaker 02:
But that's wrong because Codwell doesn't teach selectively providing.

[00:19:21] Speaker 02:
What Codwell teaches is that you have a single frequency.

[00:19:24] Speaker 05:
It depends what you mean by selectively providing.

[00:19:27] Speaker 02:
What I mean by selectively providing is that you select the appropriate frequency for the array.

[00:19:34] Speaker 02:
Now, it can be, and you have to have multiple frequencies available.

[00:19:38] Speaker 02:
The only art that shows... For different keys.

[00:19:40] Speaker 02:
Correct.

[00:19:41] Speaker 06:
The only art, so as long as... Well, maybe that's not the right claim construction.

[00:19:46] Speaker 02:
I disagree.

[00:19:47] Speaker 02:
I think that it is the right claim construction because as long as you can select

[00:19:51] Speaker 02:
among multiple frequencies, that is all that the claim language requires, and that's what the board said.

[00:19:58] Speaker 02:
So you can select the same frequency for the array, or you can select different frequencies for each row, as long as you have multiple frequencies available.

[00:20:08] Speaker 02:
But Codwell can't make that selection because Codwell never has more than one frequency available.

[00:20:15] Speaker 02:
Instead, what Codwell does is it sequentially

[00:20:18] Speaker 02:
Runs the single frequency through each row one at a time right that's not selectively providing question is whether that is Selectively provided which is a claim construction issue I agree that that is potentially a claim construction issue But that's selectively providing claim construction issue was never raised by either party and what the board said when the board describes cadwell and this is an appendix I believe page 13 to 14 and

[00:20:43] Speaker 02:
What the board said is that Cadwell sequentially runs each frequency through each individual row.

[00:20:51] Speaker 02:
That can't be selectively providing frequencies, plural.

[00:20:55] Speaker 05:
Maybe it can't.

[00:20:56] Speaker 05:
But I mean, that's the question, whether that's what the claim requires or not.

[00:21:00] Speaker 02:
That is what the claim requires.

[00:21:02] Speaker 02:
But that's not what Cadwell does because it can't.

[00:21:05] Speaker 02:
There aren't multiple frequencies to select from.

[00:21:09] Speaker 06:
It can almost... More sequentially multiple frequencies, right?

[00:21:12] Speaker 02:
No.

[00:21:13] Speaker 02:
Codwell only has one frequency and it says... The only thing that Codwell arguably does is select one row at a time and it does so sequentially.

[00:21:30] Speaker 06:
about providing multiple frequencies sequentially.

[00:21:34] Speaker 06:
So you choose which one is the best one for solving the interference problem.

[00:21:38] Speaker 02:
No.

[00:21:39] Speaker 02:
Garfide does not teach selectively providing sequentially.

[00:21:43] Speaker 02:
What Garfide teaches is selecting the appropriate frequency to nullify electrical interference.

[00:21:51] Speaker 06:
So there's never any... The question as to whether that's what the claim is satisfied with.

[00:21:57] Speaker 02:
The claim language requires selectively providing frequencies.

[00:22:00] Speaker 02:
But if you're going to look at whether it would work when you combine graffiti with cod well, you have to consider how graffiti does it because of the selectively providing requirement.

[00:22:12] Speaker 02:
And there's no evidence.

[00:22:14] Speaker 02:
In fact, the only evidence in the record is that if you take how graffiti does it, the back end procedure, that will not work in the combination

[00:22:26] Speaker 02:
with Codwell and Ingram 1, the kitchen appliance keyboard, because that is an array, and when you take graffiti and use the back end procedure to tie the electrodes together, the only evidence in the record, and this is a factual finding that the board made,

[00:22:45] Speaker 02:
which without some evidence can't be revisited on appeal, the only evidence that the board found as a factual matter was that when you consider how graffiti selects frequencies through the back-end procedure, that will not work in the combination.

[00:23:04] Speaker 02:
That is undisputed, and for that reason alone, this panel should affirm.

[00:23:09] Speaker 04:
But I'm looking to see where the method of selectively providing is somehow specified in the broadest claims.

[00:23:21] Speaker 02:
Claim 40, every independent claim uses the phrase selectively providing signal output frequency.

[00:23:30] Speaker 04:
Yes, it uses the term, but as you've been explaining it to us, it is specific to this particular construct.

[00:23:40] Speaker 02:
Correct.

[00:23:41] Speaker 02:
It's specific to the particular, it's specific to those claims.

[00:23:47] Speaker 02:
But it's still a requirement.

[00:23:49] Speaker 02:
So in other words, in the prior art, if this combination, this three-way combination is going to work, there has to be some way of selectively providing frequencies as opposed to what was already in CADWELL, which is sequentially running the same frequency through each line.

[00:24:06] Speaker 02:
That has to be there.

[00:24:08] Speaker 02:
Gurpide, I admit Gurpide teaches that.

[00:24:11] Speaker 02:
Gurpide teaches selectively providing frequencies, but it does so by a backend algorithm procedure that everybody agrees won't work in the combination.

[00:24:23] Speaker 02:
So therefore there would have been no motive.

[00:24:25] Speaker 06:
That is if you want to have different frequencies for different keys.

[00:24:29] Speaker 02:
You need to have that available.

[00:24:31] Speaker 02:
You need to have the ability to select different frequencies for each key.

[00:24:35] Speaker 02:
The only way that GURPIDE teaches that is through the backend algorithm and monitoring and then frequency adjustment for a single pad.

[00:24:45] Speaker 02:
And again, the only evidence is that GURPIDE, that GURPIDE procedure will not work in the combination and therefore a person of ordinary skill in the art

[00:24:58] Speaker 02:
would not have been motivated to make the combination.

[00:25:01] Speaker 02:
That's essentially what the board found is a factual matter.

[00:25:04] Speaker 02:
And the board said, look, there is substantial evidence to support the fact that a person of skill in the art would not have been motivated to make this combination and expected it to work.

[00:25:14] Speaker 02:
because GERPI deals with single pads, the other two deal with multiple pads.

[00:25:19] Speaker 02:
GERPI uses a backend algorithm and monitoring procedure that won't work with the other two.

[00:25:26] Speaker 02:
That was the board's factual finding.

[00:25:29] Speaker 02:
And there was more than substantial evidence to support it.

[00:25:33] Speaker 02:
And no matter what argument that the petitioner makes about legal error, it was proper under Graham versus John Deere to consider the scope and content of the prior art and the differences between that art and the claimed invention.

[00:25:53] Speaker 02:
And those differences include how Gerphide calculates

[00:25:58] Speaker 02:
and determines which frequency to apply to each row.

[00:26:03] Speaker 02:
And again, the board found that doesn't work in this combination.

[00:26:08] Speaker 02:
Therefore, there has to have been substantial evidence to support the board's position.

[00:26:18] Speaker 04:
Any more?

[00:26:18] Speaker 04:
Any questions for Mr. Head?

[00:26:20] Speaker 02:
I have three minutes, but unless the panel has further questions for me.

[00:26:24] Speaker 02:
Actually, just quickly, if I could briefly raise this admission issue.

[00:26:29] Speaker 02:
One of the ways that they tried to get around the fact that Gerbhide won't work in the combination, say, well, we admit it that it would.

[00:26:38] Speaker 02:
But that admission, again, was that Gerbhide teaches selectively providing the frequencies.

[00:26:46] Speaker 02:
And we said that raises a question of patentability, and it did.

[00:26:50] Speaker 02:
But if you're going to hold that as an admission, even though we think it was waived, you have to take the admission as a whole, including not just the frequency part of gurpide, but the selectively providing the frequency part of gurpide, including the procedure to do it, which doesn't work in the combination.

[00:27:08] Speaker 04:
But gurpide does vary the oscillator frequency.

[00:27:11] Speaker 04:
And isn't that the key now to this multi?

[00:27:15] Speaker 02:
The key isn't just varying the oscillator frequency.

[00:27:20] Speaker 02:
It's varying the oscillator frequency using the Gerbhide procedure of back-end monitoring.

[00:27:27] Speaker 06:
Which doesn't get you different frequencies for different keys, is your argument.

[00:27:32] Speaker 02:
Oh, no.

[00:27:32] Speaker 02:
It can.

[00:27:34] Speaker 02:
My argument is that it can.

[00:27:35] Speaker 02:
I admit that it can.

[00:27:36] Speaker 02:
It's just that it won't work in the combination.

[00:27:39] Speaker 06:
Because when you try to put that... Do you admit that GERPIDE provides different frequencies for different keys?

[00:27:47] Speaker 02:
GERPIDE can provide different frequencies.

[00:27:50] Speaker 02:
Well, in the context of a single pad it can, because it ties all the rows together to form a single electrode.

[00:27:59] Speaker 02:
And that's why GERPIDE, when GERPIDE does provide different

[00:28:04] Speaker 02:
Actually, it doesn't provide different frequencies.

[00:28:05] Speaker 02:
I apologize, Your Honor.

[00:28:07] Speaker 02:
I misspoke.

[00:28:08] Speaker 02:
It provides one frequency for, I think, 32 cycles, and then it can change that frequency through further monitoring.

[00:28:15] Speaker 06:
It doesn't provide different frequencies for different keys.

[00:28:18] Speaker 02:
Not at the same time.

[00:28:20] Speaker 02:
But regardless, the point is that it can vary the oscillator frequency, but the way it does it, again, won't work in the combination.

[00:28:29] Speaker 02:
And so if you take the re-examination, that was exactly what happened in the re-examination.

[00:28:35] Speaker 02:
We said this raises a substantial question of patentability.

[00:28:39] Speaker 02:
But when you try to combine Gerbhide with the other art, it won't work.

[00:28:43] Speaker 02:
And therefore, the invention is not obvious.

[00:28:51] Speaker 03:
Was not obvious.

[00:28:54] Speaker 03:
Was not obvious.

[00:28:55] Speaker 02:
Correct.

[00:28:55] Speaker 02:
Was not obvious.

[00:28:58] Speaker 02:
Now I'm down to 20 seconds, and unless there are more questions, I'll give up the rest of my time.

[00:29:04] Speaker 04:
OK, I think we have the argument.

[00:29:05] Speaker 04:
Thank you, Mr. Hadley.

[00:29:10] Speaker 04:
Mr. Moody?

[00:29:15] Speaker 01:
Your Honor, just a few points.

[00:29:18] Speaker 01:
I think one of the problems that we've had throughout the proceeding below and even here today is that the patent owner, UUSI, keeps on injecting limitations into the claims that are not present in the claim.

[00:29:30] Speaker 01:
Going back to the claim construction issue, Judge Dyke, that you raised, if you look at claim 45, so if you look at A69, which has claim 45, one of the challenge claims at issue here,

[00:29:47] Speaker 01:
It actually says that you can provide the same frequency to all of the rows, which shows that the board's narrow claim construction would be incorrect here.

[00:29:59] Speaker 01:
And the claim is broad enough to encompass the same frequency being provided to the different rows.

[00:30:08] Speaker 01:
So and given their admissions in the re-exam, we think when you look at Dr. Subramanian's testimony again, which is unrebutted on the electrical interference point, that Ingram Caldwell would have had that issue.

[00:30:20] Speaker 01:
When you couple that with their re-examination admission, again, I have not heard on the merits the statement.

[00:30:26] Speaker 01:
They just didn't say that the graffiti system selectively provides signal output frequencies.

[00:30:31] Speaker 01:
They said more than that.

[00:30:32] Speaker 01:
They said it would have been obvious to one of ordinary skill in the art to modify a system, a multi-point system, in that case it was buoy, to implement the teachings of graffiti.

[00:30:43] Speaker 01:
And when you say something is obvious, it would have been obvious those were their statements.

[00:30:47] Speaker 01:
They said more than they perhaps needed to, but they have to live with those admissions.

[00:30:51] Speaker 01:
When they said it would have been obvious, that obviously encompasses both motivation to combine and reasonable expectation of success.

[00:30:58] Speaker 01:
And in terms of the measuring aspect, if you look at A3330, we have additional testimony from Dr. Subramanian, Samsung's expert, who explained how one-of-order skill would have combined graffiti with the teachings of Ingram and Caldwell.

[00:31:16] Speaker 01:
With respect to the 183 patent, again today, again and throughout their briefing and before the board, they keep on going back to the problem solved by the 183 patent.

[00:31:25] Speaker 01:
In terms of what the board looks at or what this court looks at from an obviousness perspective, obviously it's not limited to the problem solved by the 183 patent.

[00:31:35] Speaker 01:
Finally, on the Caldwell issue, I heard them say that, well, Caldwell doesn't teach selectively providing.

[00:31:42] Speaker 01:
But if you look at the record below, and it's at A13 to 14, the board certainly did not address that issue.

[00:31:48] Speaker 01:
It certainly had no issue with the Ingram-Caldwell combination selectively providing A frequency.

[00:31:54] Speaker 01:
And that's where GERFIDI came in, where it teaches providing multiple frequencies and provides the motivation why you would change, go from a single frequency to multiple frequencies.

[00:32:05] Speaker 01:
Unless you have any other questions, that's all.

[00:32:09] Speaker 04:
Thank you.

[00:32:10] Speaker 04:
Thank you both.

[00:32:11] Speaker 04:
The case is taken under submission.