[00:00:51] Speaker 02:
и у вас есть 5 минут на время для революции, верно?

[00:00:54] Speaker 02:
Да, ваше право.

[00:00:57] Speaker 02:
Окей.

[00:00:58] Speaker 02:
Мы готовы вам перейти.

[00:01:00] Speaker 03:
Спасибо, ваше право.

[00:01:00] Speaker 03:
Я Деккер Камак.

[00:01:01] Speaker 03:
У меня есть право и право в представлении инвентаря, Паула Хейза, которая здесь сегодня, в диспуте над вилититию патента с ПТАПом.

[00:01:15] Speaker 02:
Вы согласны с Бордом, который заявляет 17?

[00:01:19] Speaker 03:
Illustrative as to the invention, Your Honor.

[00:01:24] Speaker 03:
I believe it is.

[00:01:25] Speaker 03:
Okay.

[00:01:25] Speaker 03:
Thank you.

[00:01:28] Speaker 03:
That was a housekeeping question.

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Thank you, Your Honor.

[00:01:34] Speaker 02:
On page 1204 of the Joint Appendix.

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Just a moment, Your Honor.

[00:01:38] Speaker 02:
Let me get there.

[00:01:42] Speaker 02:
Well, I'll keep talking.

[00:01:43] Speaker 02:
Your expert, Mr. Blackburn, said that Sue discloses data transmission from a power meter to a remote site over a power line, and that it would be an external network to the remote server.

[00:02:01] Speaker 03:
Yes, Your Honor, he did say that.

[00:02:02] Speaker 02:
How can your case go forward after that?

[00:02:05] Speaker 03:
It's over a power line.

[00:02:06] Speaker 03:
It's over, I believe, if you look at 1207, Your Honor, in the appendix, he says, I don't agree, and this is at line 11 of his deposition, the question was, and you agree with what I just asked you, and that was from Mr. Bradley, and his answer was, I don't agree that the power line is an external power line.

[00:02:25] Speaker 03:
My interpretation of that is different than what you're saying.

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And he said, the paragraph eight of suh, and I say suh, we've gone sue suh,

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at a classmate at West Point who is Suh, and I defer to that, is that it includes the necessary communication components to communicate by telephone to periodically transfer collected data to a remote site.

[00:02:46] Speaker 03:
That's one possibility.

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But he then clarifies that he doesn't believe that the power line, whatever is communicated over a power line in Suh, or in any of the prior art, is external.

[00:03:01] Speaker 02:
On page 31 of the red brain,

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Itron says that you've quote, cited certain portions of Mr. Blackburn's testimony that the board had excluded without noting the board's exclusion of that testimony.

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Is that true?

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I'm sorry, where are you your honor?

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Page 31 of the red brief.

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I'd sort of be intimately aware of an allegation like that.

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Bottom of the page.

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I see it.

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Your honor, the excluded testimony was also included in his deposition transcript, so it's the same testimony.

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I don't believe that we violated any rule by including that testimony by Mr. Blackburn.

[00:04:06] Speaker 02:
You call that excluded testimony uncontroverted?

[00:04:10] Speaker 02:
In the blueberry.

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No, your honor.

[00:04:15] Speaker 02:
Take 17 in the blueberry.

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On page 48,

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ITRON notes that you, quote, never identify or explain any technical difference between transmitting IP formatted data over an internal power line versus an external power line.

[00:05:26] Speaker 02:
A, is that true that you don't?

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And B, is there any technical difference?

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A, it is not true that we don't.

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As a matter of fact, the filtering technology of the patent itself discusses that you have to have filtering technology to go from the internal, which is there is only one point.

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So if you're transmitting on an internal home network with, for example, X10 or Home Plug, you're transmitting to one receiving device.

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And so there's no point to point technology involved.

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With respect to your second question, there is no way, the patent itself discloses filters that prevent, and you cannot, at the time of the invention, you couldn't transmit over the wire technology, over the power line technology, without having filters and firewalls and explicit,

[00:06:30] Speaker 03:
encapsulation technology to, because otherwise it's just going to the grid and it has multiple endpoints.

[00:06:39] Speaker 02:
On page 12 of the BlueBerry, you say that even if SUH or sue is presumed and enabled, you quote, provided argument and expert testimony rebutting the same.

[00:06:54] Speaker 02:
Where's that argument and expert testimony on the record?

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Your Honor, I believe that our brief as it relates to the substitution argument is one place where the board found that you can substitute a modem, a power line modem, for a phone modem.

[00:07:30] Speaker 02:
The reason I'm asking the question is you didn't cite anything in this

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statement in your statement of facts.

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Yes, your honor.

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I mean, it was a statement of the summary of the case and the statement of facts as we go through the brief, though.

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If you look at paragraph B on page 15 of the blue brief.

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That wasn't part of the summary of that case.

[00:07:48] Speaker 02:
I wouldn't be asking you this question.

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It's part of the statement of facts.

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You don't have any citation.

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That's why I'm asking you.

[00:08:01] Speaker 02:
Because it's important.

[00:08:08] Speaker 03:
Well, Your Honor, I mean, it is a, you're talking about page 12 of the blue brief?

[00:08:13] Speaker 02:
Uh-huh, at the top.

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Even the first full sentence.

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Even so?

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Yeah.

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Even so?

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And then the next sentence is, to meet its burden, pet owner provided argument and expert testimony, rebutting same.

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But you don't tell me what it is.

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Your Honor, the entire brief is what it is.

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I mean, that, the entire brief is,

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The patent owner provided argument and expert testimony that nothing in SA provides the necessary component of a modem or communication over an external power line network.

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So it's just pass-in?

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You can consider it pass-in, Your Honor, but I believe that the rest of the argument absolutely encapsulates the issue which

[00:09:04] Speaker 03:
in our opinion, is that Dr. Ackle, when pressed and asked, could you, at the time of the invention, what technologies existed to convert power line signals from an internal home, post-metered home, to an external power line network, he said the 524 patent.

[00:09:25] Speaker 03:
The 524 patent, he cites the patent to invalidate the patent.

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That's the teaching.

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He says the teaching is in the 524 patent therefore one of ordinary skilled in the art would know how to do it.

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He's citing the patent to invalidate the very patent that he's citing.

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That's our point.

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That's why this is so in our opinion egregious that he's citing an abandoned patent application for the proposition that one would know how to do it and the way you would know how to do it is to look to the 524 patent itself.

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And that is, and if you want the page line or the appendix site for that, I can show you exactly where he gave that testimony.

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If there are any other questions, I'm happy to take them.

[00:10:19] Speaker 00:
No, I think we're fine.

[00:10:22] Speaker 00:
Thank you very much.

[00:10:23] Speaker 03:
I'll reserve my rebuttal time.

[00:10:24] Speaker 03:
Thank you.

[00:10:25] Speaker 02:
Okay, that's good.

[00:10:32] Speaker 02:
Mr. Bradley.

[00:10:39] Speaker 02:
May it please the court.

[00:10:41] Speaker 02:
Did you agree with your friend and the board that claim 17 is illustrative?

[00:10:46] Speaker 00:
Yes, Your Honor, and certainly the only claim disputed and truly the only limitation disputed is the last limitation of claim 17.

[00:10:54] Speaker 00:
So that's the only thing we're really needing to address here on appeal.

[00:10:58] Speaker 00:
Judge Wallach, turning to your question a moment ago to my colleague here.

[00:11:01] Speaker 00:
about page 12 of the blue brief, where, without citation, Smart Meter says that to meet its burden, patent owner provided argument and expert testimony, rebutting the presumption of validity.

[00:11:15] Speaker 00:
We too do not find it in the record.

[00:11:18] Speaker 00:
He says it's passem.

[00:11:20] Speaker 00:
The passem is repeated non-citation to the argument.

[00:11:24] Speaker 00:
In fact, when you look at what the board held, the board held and found

[00:11:28] Speaker 00:
Smart Meter does not acknowledge this presumption, much less come forward with sufficient argument or evidence to support its assertion.

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We put that in our red brief, highlighted it, they opted not to file a reply.

[00:11:43] Speaker 00:
There is no evidence supporting their argument.

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This is a straightforward case.

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We have a single reference with a single limitation of a single claim at issue.

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It's well supported by substantial evidence, the board's finding of non-obviousness and unpatentability.

[00:11:59] Speaker 00:
The board very meticulously went through the evidence relating to the Sioux reference.

[00:12:06] Speaker 00:
the testimony of our expert, Dr. Ackle, at times the admissions by Smart Meter and its expert, Mr. Blackburn, and went through, and all of that provides more than enough substantial evidence to support the board's determination of unpatentability.

[00:12:21] Speaker 00:
Their sole argument was that Sue's disclosure is not enabling.

[00:12:26] Speaker 00:
They admitted it three times in their patent owner response.

[00:12:30] Speaker 00:
They acknowledged, this is a quote, Sue acknowledges power line transmission over an external power line network.

[00:12:36] Speaker 00:
There was another place, quote, patent owner acknowledges that Sue pays lip service to transmitting consumption information over an external power line.

[00:12:45] Speaker 00:
Now they call it lip service.

[00:12:46] Speaker 00:
What that means is, yes, Sue says those words.

[00:12:50] Speaker 00:
It's in there.

[00:12:51] Speaker 00:
But we're not going to take it as face value.

[00:12:53] Speaker 00:
We're going to say it's not enabling.

[00:12:55] Speaker 00:
But again, the board found that they didn't even acknowledge that it's presumed to be enabling, much less come forward with evidence to rebut it.

[00:13:02] Speaker 00:
And that's where we are.

[00:13:03] Speaker 00:
This is a straightforward case where

[00:13:06] Speaker 00:
the board's findings are well supported by substantial evidence.

[00:13:10] Speaker 00:
We've put all these points and more in our red brief.

[00:13:13] Speaker 00:
They opted not even to file a reply responding to it, including all the arguments that they've waived, including for claim construction and more.

[00:13:21] Speaker 00:
This ought to be affirmed.

[00:13:22] Speaker 00:
Unless there's questions by the court, I'll sit down and have made the points.

[00:13:27] Speaker 02:
Thank you very much, counsel.

[00:13:28] Speaker 02:
We have no questions.

[00:13:34] Speaker 03:
Your Honor,

[00:13:36] Speaker 03:
Your Honors, the argument by Mr. Bradley or the statement of Mr. Bradley highlights the point.

[00:13:43] Speaker 03:
This was yet another case where the PTAB has essentially shifted the burden to the patentee to prove validity yet again, as opposed to the petitioner proving by preponderance of the evidence that the patent was invalid.

[00:13:59] Speaker 03:
This is, in our opinion, I mean, the non- I don't understand that argument.

[00:14:05] Speaker 01:
I mean, the petitioner

[00:14:06] Speaker 01:
put forth the SAW reference and explained how it invalidated the patent and the board agreed with them.

[00:14:15] Speaker 01:
Are you saying that the petitioner has to go further and affirmatively establish that every single prior art reference is enabled too?

[00:14:27] Speaker 03:
No, Your Honor, but there's a presumption of enablement of SAW.

[00:14:31] Speaker 03:
We're at a patent, it's not a patent, and we made that argument in our brief.

[00:14:34] Speaker 03:
So it's not a patent.

[00:14:37] Speaker 03:
It's a patent application.

[00:14:38] Speaker 03:
It was an abandoned patent application.

[00:14:40] Speaker 01:
What difference does that make?

[00:14:41] Speaker 01:
Are you adding an additional requirement that when petitioners rely on prior art that it has to show that it was enabled?

[00:14:52] Speaker 01:
Rather than it just discloses?

[00:14:56] Speaker 03:
Well, our argument, Your Honor, is that it doesn't disclose.

[00:14:59] Speaker 03:
It doesn't disclose communications over an external power line argument.

[00:15:03] Speaker 01:
That's a different question than whether it's enabled or not.

[00:15:08] Speaker 01:
What it discloses.

[00:15:09] Speaker 03:
Well, I believe the presumption only goes to issued patents.

[00:15:14] Speaker 03:
And it's not an issued patent.

[00:15:16] Speaker 03:
It's not enabled the argument they're making.

[00:15:20] Speaker 03:
Is it prior art?

[00:15:21] Speaker 03:
It is prior art.

[00:15:22] Speaker 03:
There's no question that it's prior art.

[00:15:24] Speaker 03:
We're not disputing that it's prior art.

[00:15:27] Speaker 03:
It discloses an external power line.

[00:15:30] Speaker 03:
It discloses an external power line.

[00:15:33] Speaker 03:
Because it discloses connection to an external power line network.

[00:15:38] Speaker 03:
What it does not disclose is communication over that external power line you're on.

[00:15:45] Speaker 03:
There's nowhere in SUP... But the board disagreed with you on that.

[00:15:49] Speaker 03:
The board disagreed.

[00:15:51] Speaker 03:
The board disagreed with their expert who claimed that there was no technology that allowed transmission over an external power line in SUP.

[00:16:03] Speaker 03:
By there, you mean the other side.

[00:16:05] Speaker 03:
I mean, by either side, by anybody but the patent owner.

[00:16:08] Speaker 03:
Their expert, Dr. Ackle, testified that the only place you could find that was in the 524 patent itself.

[00:16:15] Speaker 03:
That was the only place where it was disclosed.

[00:16:20] Speaker 03:
If there are no more questions.

[00:16:22] Speaker 03:
I thank you for your time.

[00:16:24] Speaker 03:
I would also like to thank Mr. Bradley and his colleagues for they've been wonderful adversaries and have done things in the spirit of the way lawyers ought to behave.

[00:16:35] Speaker 01:
Very good.

[00:16:35] Speaker 01:
Thank you for that comment and we thank counsel for their arguments.