[00:00:05] Speaker 02:
Our next case is 2018-1439 Technology Properties Limited versus Huawei Technologies.

[00:01:06] Speaker 02:
Mr. Mori, please proceed.

[00:01:17] Speaker 03:
Good morning, Your Honors.

[00:01:18] Speaker 03:
May it please the Court?

[00:01:21] Speaker 03:
Appellants assert that what happened on remand here demonstrates the clear error that occurred when the Court's prior decision in this case was used to find that the very structure disclosed in the specification of the patent

[00:01:36] Speaker 03:
was deemed to be non-infringing on summary judgment.

[00:01:41] Speaker 03:
Accordingly, this case presents a unique situation where appellants asked this panel to revisit the court's prior claim construction to find that any disclaimer that occurred occurred when the claims were amended.

[00:01:54] Speaker 03:
With regard to the sheets reference, the entire oscillator was limited by amendment to overcome the sheets reference as reflected at APPX 2126.

[00:02:05] Speaker 03:
With regard to the MAGAR reference, the claim was amended to add additional elements to overcome the MAGAR reference.

[00:02:12] Speaker 03:
And that can be seen by comparing the issued claim with claim 73 at APPX.

[00:02:18] Speaker 01:
Are we debating what the claim construction is right now?

[00:02:23] Speaker 03:
Yeah.

[00:02:24] Speaker 01:
OK.

[00:02:24] Speaker 01:
The claim construction that we already issued a couple years ago?

[00:02:27] Speaker 03:
Correct.

[00:02:29] Speaker 01:
OK.

[00:02:29] Speaker 01:
Don't you need to get over some hurdles first before we revisit whether or not it's

[00:02:35] Speaker 01:
We should even be entertaining this kind of argument?

[00:02:38] Speaker 03:
I agree that we do have to get over some hurdles.

[00:02:39] Speaker 03:
We do have to show that there is clear error in order for the court to revisit, under the law, the case doctrine.

[00:02:46] Speaker 01:
There has to be some kind of manifest injustice for you to trounce the law of the case.

[00:02:52] Speaker 03:
Correct.

[00:02:53] Speaker 03:
And we believe the manifest injustice is that what happened here on summary judgment is that the actual embodiment of the patent was found to be non-infringing.

[00:03:04] Speaker 03:
so that those disclaimers that were imposed read out the entire embodiment that is disclosed in the specification.

[00:03:12] Speaker 03:
And that on its face is manifest injustice and clear error.

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And that is Appellant's position.

[00:03:20] Speaker 03:
on a clear error and not passing justice.

[00:03:22] Speaker 02:
Even if you're correct about what you just said, isn't it possible during prosecution history that in light of prior art that's brought to light by the Patent Office that someone, a patentee, could amend or limit their claims in ways to exclude embodiments that are otherwise disclosed in the spec?

[00:03:40] Speaker 02:
Isn't that something that can and does happen regularly?

[00:03:43] Speaker 03:
It can happen, but it didn't happen here.

[00:03:46] Speaker 03:
So I think that's the issue.

[00:03:48] Speaker 03:
With regard to the sheets reference, the patentee faced a single clock reference that was a VCO that was off chip and a CPU on a separate chip.

[00:04:00] Speaker 03:
And that was amended.

[00:04:01] Speaker 03:
The way that that reference was overcome was by amendment when the patentee added to the claim specific language to overcome that reference.

[00:04:11] Speaker 03:
And in particular, the patentee added that it was on a single integrated circuit

[00:04:17] Speaker 03:
constructed of electronic devices and that the fabrication or operational parameters associated with the integrated circuit stub straight.

[00:04:26] Speaker 03:
So specific amendments were made to overcome that particular limitation.

[00:04:31] Speaker 03:
So certainly statements can be made that are broader.

[00:04:34] Speaker 03:
I mean although we advocate in our brief certainly to preserve the issue that in fact prosecution history shouldn't be that broad in accord with Supreme Court precedent.

[00:04:44] Speaker 03:
I understand that this panel is bound by the

[00:04:47] Speaker 03:
precedent of this court but we do wish to preserve that issue and we think this case is an exemplary case where you have a situation where statements were made the statements were not relied on by the examiner what was relied on was the amendments and you had a single clock embodiment the patentee initially pursued the single clock embodiment the examiner said we're not going to give you the single clock embodiment they made some amendments to the claim and then ultimately what the examiner said was

[00:05:15] Speaker 03:
If you add these dependent limitations, which relate to another embodiment in the specification, then you can have the claim.

[00:05:24] Speaker 03:
So the entire oscillator limitation was issued as written when additional limitations were added to the claim.

[00:05:33] Speaker 03:
And so it is our position that the Court should revisit those limitations.

[00:05:40] Speaker 03:
But even still, the prosecution history is instructive when we consider what happened in the summary judgment proceedings.

[00:05:46] Speaker 03:
And in that case, even if the disclaimers are applied in this case, then we believe that there are still disputed questions of fact that preclude summary judgment here.

[00:06:00] Speaker 03:
What we have in this case is the exact structure that is disclosed in the specification in the defendant's accused products.

[00:06:09] Speaker 03:
It is a ring oscillator comprised of an odd number of inversions where the output of the ring oscillator is connected to the input of, sorry, the output is connected back to the input in a ring and therefore oscillates inherently.

[00:06:24] Speaker 03:
That's from the court's prior order in this case.

[00:06:29] Speaker 03:
And the defendants have exactly that structure in their product.

[00:06:34] Speaker 03:
In addition to that, we have an apparatus claim.

[00:06:37] Speaker 03:
It's an apparatus claim that is a microprocessor system comprising a CPU, an entire oscillator on the same substrate, an on-chip I.O.

[00:06:46] Speaker 03:
interface, and an off-chip external clock.

[00:06:49] Speaker 03:
The Q's products have all of those features.

[00:06:52] Speaker 01:
What about the phase lock loop though?

[00:06:54] Speaker 01:
Your patent spec doesn't contemplate or disclose the idea of having a phase lock loop that basically serves as a puppet master over the ring oscillator.

[00:07:05] Speaker 01:
Basically designed to

[00:07:07] Speaker 01:
prevent the ring oscillator from doing what it would naturally do due to parameter variation.

[00:07:14] Speaker 01:
In fact, the ring oscillator is totally regulated by the phase lock loop to maintain a stable frequency unless the PLL chooses to issue some kind of command input that then regulates the VCO to artificially accelerate or decelerate in terms of frequency.

[00:07:36] Speaker 03:
Exactly.

[00:07:37] Speaker 03:
So the PLL is there because the accused infringing structure is there.

[00:07:42] Speaker 03:
The ring oscillator will oscillate inherently.

[00:07:45] Speaker 03:
That's a feature of a ring oscillator.

[00:07:47] Speaker 01:
It can't, though, in the accused product, right?

[00:07:50] Speaker 03:
It does in the accused product, and that's why the PLL is there to compensate for it.

[00:07:54] Speaker 01:
The output of the VCO is not permitted to do what the VCO would do under normal circumstances.

[00:08:02] Speaker 01:
It's being entirely regulated by the PLL.

[00:08:05] Speaker 03:
In the addition of structure, additional structure does not mean that the actual apparatus is not present in the accused device as claimed.

[00:08:15] Speaker 03:
Because the other aspect of the apparatus as claimed is that it doesn't actually require any variation in operational parameters.

[00:08:24] Speaker 03:
If you read the actual language of claim six in the entire oscillator, and this was, I think it was in Appali's reply or opposition brief,

[00:08:33] Speaker 03:
They highlighted an aspect of the claim on page five of their brief, and they left off a really important portion of the claim, which says, thus varying the processing frequency of said first electronic devices and the clock rate of said second plurality of electronic devices in the same way as a function of a parameter variation in one or more fabrication or operational parameters.

[00:09:00] Speaker 03:
So this is an apparatus claim.

[00:09:02] Speaker 03:
that requires only variation in one or more fabrication or operational parameters.

[00:09:11] Speaker 03:
So even if I accept that the PLL limits the operation of the claim, the claim itself only requires variation in one fabrication parameter.

[00:09:21] Speaker 03:
And when the entire oscillator is fabricated on the same substrate as the CPU, that claim limitation is met.

[00:09:30] Speaker 03:
And the entire oscillator is present in the accused devices as claimed in Claim 6 of the claim.

[00:09:37] Speaker 01:
Are you saying that district court overlooked this argument?

[00:09:40] Speaker 01:
The district court overlooked this argument.

[00:09:41] Speaker 01:
Did you make this argument to the district court?

[00:09:44] Speaker 03:
We made the argument that the entire oscillator meets the limitate, meets the, strike that, that the.

[00:09:51] Speaker 01:
This more nuanced argument that you're making about the distinction between operational and fabrication parameters.

[00:09:59] Speaker 03:
It is a more nuanced argument that we made, but we did have the evidence in the record and make the argument that the inherent characteristics of the oscillator and the accused devices meet this entire oscillator limitation of claim six.

[00:10:17] Speaker 03:
And because it inherently has the characteristics and it is fabricated on the same semiconductor substrate as the CPO.

[00:10:32] Speaker 03:
So as we turn to the evidence that was actually presented with regard to summary judgment, assuming that the court does not revisit the disclaimers, as the court has already pointed out, the appellee is focused on the PLL and not the VCO.

[00:10:52] Speaker 03:
And I want to say one more thing about the disclaimers before I move on to the summary judgment evidence.

[00:11:00] Speaker 03:
It's the appellees themselves that invited reopening of the claim construction in this case.

[00:11:07] Speaker 03:
They introduced into evidence in the context of the disclaimers.

[00:11:10] Speaker 03:
Now the words that are in the disclaimers themselves appear nowhere in the claims and appear nowhere in the specification.

[00:11:18] Speaker 03:
So when it came to summary judgment, appellees put into the record an expert declaration that gave claim construction of the term command input.

[00:11:27] Speaker 03:
They relied on dictionary definitions

[00:11:30] Speaker 03:
They relied on expert testimony and they relied on patents, one of which post-dates the actual patent to come up with this claim construction of command input that allowed the district court to reach its decision.

[00:11:43] Speaker 03:
That claim construction of command input is essentially any input that influences the, that triggers the device to operate.

[00:11:54] Speaker 03:
So in the, in the

[00:11:55] Speaker 03:
In the claim construction that was actually adopted by the district court, which is a further modification of the disclaimers that we contend should not even be there, even the operating voltage of the entire oscillator would not, as it sits, as they claim that the patent exists, would not meet the limitation of sheets.

[00:12:18] Speaker 02:
One of your arguments in your briefs, and I know that you recognize that that would have to await in bank action,

[00:12:25] Speaker 02:
is that a prosecution disclaimer should not be able to occur by virtue of anything at all that you say to the PTO.

[00:12:31] Speaker 02:
It should only be able to occur by virtue of an actual amendment to claims.

[00:12:35] Speaker 02:
Is that accurate?

[00:12:36] Speaker 03:
It is accurate, except the one thing I would say is you could say in the prosecution, I disclaim this.

[00:12:42] Speaker 03:
Or you could make some unequivocal statement that I disclaim.

[00:12:45] Speaker 02:
Well, we already say for something to be a disclaimer, it has to be clear and unambiguous.

[00:12:48] Speaker 02:
So I think that actually equates to an unequivocal statement, unless I'm wrong.

[00:12:52] Speaker 03:
Yeah.

[00:12:52] Speaker 03:
So I think it would be a statement.

[00:12:54] Speaker 03:
I suppose the only exceptions that might be I disclaim

[00:12:58] Speaker 03:
an oscillator.

[00:12:59] Speaker 02:
So you think that magic words should have to be employed in order for a statement to count as a disclaimer?

[00:13:05] Speaker 03:
No.

[00:13:06] Speaker 03:
It is our position that only an amendment is what is required, which should be required.

[00:13:10] Speaker 02:
So just out of curiosity, do you know how many decades it's been where we've treated amendments, I mean, arguments as creating estoppels or disclaimer in addition to amendments?

[00:13:22] Speaker 02:
I do.

[00:13:23] Speaker 02:
How many?

[00:13:23] Speaker 03:
I believe it has been, well, I know that the

[00:13:26] Speaker 03:
The first case, I believe, was in the 90s.

[00:13:29] Speaker 03:
And then I think the place where it really went toward... So like 20 to 30 years, right?

[00:13:33] Speaker 02:
Correct.

[00:13:34] Speaker 02:
OK.

[00:13:34] Speaker 02:
So what's a patent term?

[00:13:36] Speaker 02:
I'm sorry?

[00:13:36] Speaker 02:
What's the current patent term?

[00:13:37] Speaker 02:
20 years.

[00:13:38] Speaker 02:
20 years.

[00:13:40] Speaker 02:
So do you have any sense of how many issued patents exist?

[00:13:44] Speaker 02:
Many.

[00:13:45] Speaker 02:
Many.

[00:13:45] Speaker 00:
Yes.

[00:13:45] Speaker 02:
Millions and millions of issued patents.

[00:13:47] Speaker 02:
Correct.

[00:13:47] Speaker 02:
Every one of those patents would have been issued with the understanding that you could create disclaimers because it was the clear and unequivocal law.

[00:13:54] Speaker 02:
you can create disclaimers and thereby modify your claim scope through argument as well as amendment.

[00:14:01] Speaker 02:
Today, one of the arguments you've brought to us and you intend to bring to our in-bank court is that we should disrupt those extraordinarily settled expectations and that every one of the many millions of patents that were issued with the understanding that arguments made could create a limitation on the scope of those claims would now be uncertain as to what their scope is because those were arguments not amendments

[00:14:24] Speaker 02:
and all competitors who would have been made business decisions based on those arguments would now be, I don't know, I probably shouldn't say the word screwed, but really in a bad way.

[00:14:33] Speaker 03:
I respectfully submit that I have never seen a case and I've not read all of these opinions on prosecution history stopple where there's ever been any evidence that a competitor has actually relied on it until an allegation of infringement has occurred.

[00:14:48] Speaker 02:
But wait a minute, but that's just it, right?

[00:14:51] Speaker 02:
If you make a clear statement of disclaimer in your

[00:14:54] Speaker 02:
prosecution history and every competitor can rely on it and those cases don't get brought the only cases that get brought I mean this is called the priest kind of selection effect theory so I'll tell you a little bit about economics the only cases to get brought are the close ones the ones where there's a potential dispute over what the statement means or doesn't mean or on the flip end of it

[00:15:13] Speaker 02:
sometimes they get brought if it's a Bet the Company kind of case.

[00:15:15] Speaker 02:
Either way, even if it's a dog of a case, it gets brought still.

[00:15:19] Speaker 02:
But so for the most part, the cases that you actually see written opinions on are generally closer cases because, you know, companies aren't dumb.

[00:15:27] Speaker 02:
They don't spend tons and tons of money litigating things that they can see clearly they're not going to prevail on.

[00:15:32] Speaker 02:
But you're asking us, I mean, I can't imagine stare decisis playing a bigger role than it does in what you're asking us to do because you are truly asking us to upset the settled expectations of the entire

[00:15:43] Speaker 02:
industrial business community that relies on patents because every single patent ever issued, which is still in existence, would be affected by the rule you're asking for.

[00:15:52] Speaker 03:
Your Honor, this patent was filed in the 80s.

[00:15:57] Speaker 02:
The rule of law you're asking us to change is a rule of law that all businesses have relied on to interpret all patents in existence.

[00:16:05] Speaker 03:
And if there had been evidence in any case where

[00:16:08] Speaker 03:
I've never seen a case where a company actually said, we relied on the prosecution history, even in the context of litigation, post-litigation, until after there's an accusation of infringement.

[00:16:19] Speaker 03:
But I agree that these are close cases.

[00:16:21] Speaker 03:
And that's another reason why here this disclaimer is all the more troublesome, because we've already been back and forth.

[00:16:27] Speaker 02:
Yes, but that was something you could have prevailed on the first time, but not under the manifest injustice standard.

[00:16:31] Speaker 02:
I understand.

[00:16:32] Speaker 02:
I understand.

[00:16:33] Speaker 02:
Close cases, which you just admitted this is, don't rise to the level of manifest injustice.

[00:16:38] Speaker 03:
Well, I think that the summary judgment record actually demonstrates that it does.

[00:16:41] Speaker 03:
When you get a summary judgment ruling that actually precludes the actual structure that is in the claim and meets the limitations of the claim as written, which doesn't require any of the variation.

[00:16:52] Speaker 01:
I guess what I'm curious about is why is it you think it's OK for a patent applicant to say one thing to a government agency about the scope and meaning of its claim, of its property interest,

[00:17:07] Speaker 01:
and then say a decade later, just say something completely else and say, don't worry about what I told the government agency.

[00:17:18] Speaker 03:
I mean, I understand that because the Supreme Court says that the claims define the meets and bounds and scope of a patent claim.

[00:17:25] Speaker 01:
That's right.

[00:17:27] Speaker 01:
And then we have to figure out what does those claim terms mean.

[00:17:32] Speaker 01:
And now we have the patent owner himself explaining what

[00:17:37] Speaker 01:
the scope and meaning of those claim terms are when he comes forward and expresses a specific conception of what those claim terms mean.

[00:17:47] Speaker 01:
And so then why would it be that we would less a patent owner's choice to forego and abandon those statements that it proactively made

[00:18:01] Speaker 01:
in front of the agency during the patent application process.

[00:18:04] Speaker 03:
Well, I think there's two things here.

[00:18:06] Speaker 01:
Why can you tell the examiner one thing and the district court judge another thing about the exact same claim term?

[00:18:11] Speaker 01:
That's what I don't understand.

[00:18:12] Speaker 03:
Sure.

[00:18:13] Speaker 03:
I don't actually think that's what's occurring here.

[00:18:15] Speaker 01:
I mean, what happened here was... Well, I'm trying to understand your theory for why it's wrong to have prosecution and history disclaimer in understanding the

[00:18:27] Speaker 01:
construction of claim terms.

[00:18:28] Speaker 03:
Well, I think it's, so disclaimer is not understanding the construction of claim terms.

[00:18:32] Speaker 03:
You can look at the prosecution history for the meaning of claim terms.

[00:18:36] Speaker 03:
What happened here was a finding of disclaimer, which is that I gave up claim scope.

[00:18:41] Speaker 03:
And my position is that the only, in the context of disclaimer, the claim scope was given up when the claim was amended.

[00:18:49] Speaker 03:
Initially when the claim did not make clear that the entire oscillator and the CPU were on the same substrate.

[00:18:55] Speaker 03:
And so the claim was amended to tie those two things together and to make them vary with regard to operational or fabrication parameters.

[00:19:06] Speaker 03:
Those limitations were added to the claim to make that happen.

[00:19:09] Speaker 03:
So I don't think there are inconsistent statements that are made.

[00:19:12] Speaker 03:
But when we're talking about prosecution, so I believe that the prosecution history can be used to interpret the claims.

[00:19:18] Speaker 03:
And as long as in accordance with Markman, it doesn't vary, diminish, or otherwise change the scope

[00:19:24] Speaker 03:
It is completely fair game.

[00:19:25] Speaker 03:
That is not my position.

[00:19:26] Speaker 03:
My position is, when you're talking about surrendering claim scope, that the way to surrender claim scope is through amendment.

[00:19:34] Speaker 03:
And that is exactly what happened in this case.

[00:19:38] Speaker 02:
OK.

[00:19:39] Speaker 02:
We will restore two minutes of time for rebuttal.

[00:19:42] Speaker 02:
Let's hear from Mr. Powell, please.

[00:19:46] Speaker 00:
Thank you, Your Honors.

[00:19:47] Speaker 00:
Please, the court.

[00:19:49] Speaker 00:
With respect to the claim construction and disclaimer issue, I will note that although the court has already addressed an argument today, stare decisis in law of the case, and so I won't repeat that.

[00:19:58] Speaker 00:
That's in our brief.

[00:19:59] Speaker 00:
But there's another hurdle that appellant needs to get over here.

[00:20:02] Speaker 00:
That's waiver.

[00:20:04] Speaker 00:
And in this case, this court has already set the claim construction.

[00:20:08] Speaker 00:
Appellant cites in the reply brief the Harris case for the proposition that you can revisit claim construction in a second appeal, but that rule is awfully narrow.

[00:20:17] Speaker 00:
What Harris says is that if the same concept is being addressed in the second appeal, you can do this.

[00:20:23] Speaker 00:
The concept here is quite different.

[00:20:25] Speaker 00:
In Harris, there was a situation where there was a two-step construction that was being advocated, and the only difference between the first argument and the second argument was whether it happened in the structure or the function.

[00:20:36] Speaker 00:
And in that case, this court found that the difference in argument was only slightly different or insubstantial.

[00:20:42] Speaker 00:
Here, there's not a same concept issue.

[00:20:45] Speaker 00:
In the first appeal, appellants took the view that this court's four decades long jurisprudence on disclaimer applied and then applied that to the facts of the case to argue that there was no disclaimer.

[00:21:00] Speaker 00:
Now they're not taking issue with the facts.

[00:21:03] Speaker 00:
They're saying that your law is wrong and should be reversed.

[00:21:07] Speaker 00:
That's not the same concept.

[00:21:08] Speaker 00:
That's a very different concept.

[00:21:09] Speaker 00:
So there has been a waiver here since this argument was not raised before.

[00:21:15] Speaker 00:
With respect to the balance of the arguments, the core of what appellant says in the reply brief, and we heard it three times today during oral argument, is that the oscillator that's described in the patent in the VCOs and the accused products are the same.

[00:21:33] Speaker 00:
If you look at the reply brief, it winds its way through almost every argument they make and is the premise of every argument they make.

[00:21:39] Speaker 00:
And today, you heard that that was the premise of their clear error argument.

[00:21:45] Speaker 00:
for the law of the Claes doctrine, and they also pin that as being the basis that even if the current claim construction survives, it's the premise of their non-infringement argument, or their infringement argument.

[00:21:58] Speaker 00:
But the problem with that is that unrebutted evidence shows that their position is wrong.

[00:22:02] Speaker 00:
And just as a reminder, their argument is that the accused VCOs only have one voltage input.

[00:22:09] Speaker 00:
And they say, well, guess what?

[00:22:11] Speaker 00:
There's only one voltage input in the ring oscillator that's described in the patent.

[00:22:16] Speaker 00:
And both of those, they say, are the operating voltage.

[00:22:18] Speaker 00:
And so they're the same.

[00:22:19] Speaker 00:
So how could it be that they don't infringe?

[00:22:22] Speaker 00:
Well, that's just attorney argument, because all of the evidence before this court is that the accused VCOs have two voltage inputs, an operating voltage and the control voltage.

[00:22:32] Speaker 00:
And the evidence of that comes from Dr. Subramanian's testimony in his declaration at PeraGraph's, excuse me,

[00:22:41] Speaker 00:
at paragraphs 47 through 51.

[00:22:43] Speaker 00:
That's at appendix 53, 28, and 31.

[00:22:46] Speaker 00:
And significantly, although Dr. Oklobja, the expert for appellants, submitted a very long declaration, he didn't take issue with anything that Dr. Sibbermanian said on this point.

[00:22:57] Speaker 00:
Dr. Sibbermanian testified in detail at appendix 53, 29, paragraph 48, that all semiconductors, by necessity, have to have an operating voltage, including all of the accused VCOs here.

[00:23:10] Speaker 00:
And then he went on to say, and I'm quoting, and this is at the same location, the existence of the operating voltage input is so commonly understood that it is often not shown in logic circuit diagrams.

[00:23:23] Speaker 00:
Significantly, when Appellant points to the ring oscillator that they say is identical to the accused VCOs, what did they point to?

[00:23:31] Speaker 00:
They point to figure 18 of the 336 patent.

[00:23:35] Speaker 00:
Guess what?

[00:23:36] Speaker 00:
Figure 18 of the 336 patent doesn't show a voltage input.

[00:23:40] Speaker 00:
of any kind, including the operating voltage, which underscores Dr. Sabramenian's undisputed testimony that such inputs are not shown.

[00:23:50] Speaker 00:
What is shown in both the representative diagram that the parties have used, the lawyer-written diagram that's in each of the three briefs in this case, it shows the voltage control.

[00:24:00] Speaker 00:
It's labeled the PLL control signal.

[00:24:04] Speaker 00:
That's the voltage control.

[00:24:05] Speaker 00:
And then they also point to the Qualcomm data sheet.

[00:24:07] Speaker 00:
And what's shown there is

[00:24:09] Speaker 00:
the control voltage again, because it's understood that there's an operating voltage.

[00:24:13] Speaker 01:
And you'll see that... Isn't there a figure somewhere in the briefing where, I guess, the other side is showing us a circuit diagram where the VCO can be switched between the PLL and ground?

[00:24:27] Speaker 00:
Thank you, Your Honor.

[00:24:27] Speaker 00:
I wanted to address that next, and I'll just lead right into that by saying there's not one site, not one site by an expert, a fact witness, or anyone in the seven

[00:24:36] Speaker 00:
Roughly the five pages that they address of this difference of the one input versus the two, at pages seven through 12 of the brief that supports their arguments, entirely attorney argument, which turns exactly to your question.

[00:24:48] Speaker 00:
Because what they go with next on page 12 and 13 is another entirely new argument.

[00:24:53] Speaker 00:
And by the way, I think I failed to mention this, but the one input versus two input argument, that argument is waived.

[00:25:00] Speaker 00:
It wasn't made before the district court, either in the papers, or an oral argument, or even in their initial brief here.

[00:25:06] Speaker 00:
Same thing is true of the argument that you just raised, Your Honor, at page 12 and 13.

[00:25:10] Speaker 00:
They argue that, in certain circumstances, the VCO of accused products is not connected to the rest of the PLL.

[00:25:16] Speaker 00:
That argument was not made in the district court, either in the papers or oral argument, nor was it included at the initial brief here.

[00:25:23] Speaker 00:
It was waived.

[00:25:25] Speaker 00:
Nor, you will see, Your Honor, if you look at the two pages, 12 and 13, there is not a single evidentiary site to the record

[00:25:32] Speaker 00:
supporting that argument, not one, not to an expert, not their expert, our expert, any expert.

[00:25:37] Speaker 00:
And so what we have here is they have attorney argument based on a figure, based upon the lack of evidence.

[00:25:43] Speaker 00:
And now in candor, Your Honor, there is no evidence on this issue.

[00:25:47] Speaker 00:
What happened, as you may recall, this case first initiated in the ITC many years ago.

[00:25:52] Speaker 00:
This patent was asserted three sets of counsel ago for appellants made this argument in the ITC.

[00:25:59] Speaker 00:
And that argument was rejected because there is undisputed evidence that when you look at that particular configuration, not just the switches in the middle that they point to, but the switches on the far end, that that configuration is never, ever used to clock the CPU.

[00:26:15] Speaker 00:
And claim six clearly requires that the oscillator be clocking the CPU at a clock rate.

[00:26:21] Speaker 00:
So in that configuration,

[00:26:23] Speaker 01:
So why is there a switch there between the VCO and the PLL?

[00:26:28] Speaker 00:
To put it into a different, it's in a different operating mode other than used for clocking to CPU.

[00:26:34] Speaker 00:
So the claim itself, your honor, requires that said, I'm quoting, I'm sorry, I'm quoting from column two, claim six, lines 20 through 22.

[00:26:43] Speaker 00:
It said, said oscillator, clocking said central processing unit with a clock rate.

[00:26:48] Speaker 00:
So what has to happen for this claimed to be practiced

[00:26:53] Speaker 00:
is that there has to be a frequency leaving the oscillator and clocking the CPU.

[00:26:58] Speaker 00:
In the configuration that's shown at page 12 of the reply brief, there is no frequency at all of any kind, not the fixed frequency that you see when the PLL is active and not this hypothetical change of frequency.

[00:27:13] Speaker 00:
Nothing's exiting the PLL to go to the CPU to clock it.

[00:27:18] Speaker 00:
Now, there's no evidence in the record on that because this argument was not raised until the reply brief on this appeal.

[00:27:23] Speaker 00:
It wasn't argued below, and it wasn't argued even in their opening brief.

[00:27:28] Speaker 00:
But I will represent to the court that this argument was made in the ITC.

[00:27:31] Speaker 00:
Evidence was presented of what I've just said, and it doesn't happen.

[00:27:35] Speaker 02:
Now, that should not lead to a remand because it... Did you also make the argument below the accused products are fixed by an external crystal as part of your summary, another basis for summary judgment?

[00:27:48] Speaker 02:
And the district court didn't reach that, right?

[00:27:50] Speaker 00:
Correct, Your Honor.

[00:27:50] Speaker 02:
But the picture of the accused product shows a court's crystal as the reference signal coming into the PLL control circuit.

[00:27:58] Speaker 02:
Correct.

[00:27:58] Speaker 02:
And so even if they were to prevail on summary judgment somehow in this particular appeal, the most they would get would be a vacating remand for the district court to then address the alternative arguments that you made which could also possibly entitle you to summary judgment.

[00:28:13] Speaker 00:
Well, Your Honor, we would say that

[00:28:15] Speaker 00:
this court could find that the alternative grounds exist.

[00:28:18] Speaker 00:
All of the evidence is before the court.

[00:28:20] Speaker 00:
And the undisputed evidence with respect, and it's been briefed by both parties, too, as to whether it applies, the MAGAR reference requires that the clock, the CPU, not be fixed by a fixed signal coming from the crystal clock.

[00:28:35] Speaker 00:
And here what we have, undisputed evidence, is that the reference signal that comes from the crystal is

[00:28:42] Speaker 00:
turned into or the ultimate control signal that governs the oscillator is always, 100% of the time, a fixed multiple of the reference signal.

[00:28:53] Speaker 00:
And that multiple is determined by values that are set in the programmable divisors that are part of the PLL.

[00:29:03] Speaker 00:
And so it is always the case that that fixed signal is being governed by the reference signal.

[00:29:08] Speaker 00:
And the flip side of it is the claim requires instead

[00:29:13] Speaker 00:
that the frequency that's output to the CPU be variable by PVT.

[00:29:19] Speaker 00:
And that never happens.

[00:29:21] Speaker 00:
So there are facts for this court, if it needed to, to uphold the judgment based upon the Maggard disclaimer as well.

[00:29:32] Speaker 02:
Anything further that you think we need to hear?

[00:29:39] Speaker 00:
Your Honor, just very briefly, I do want to

[00:29:43] Speaker 00:
point out the command signal because there was some argument to, I'm sorry, two things, just in rebuttal.

[00:29:49] Speaker 00:
There was an argument made that the fabrication parameter somehow is their, their, their savior to get out of here.

[00:29:58] Speaker 00:
But the fact of the matter is that there was no evidence in the court below that any of this alleged fabrication issues resulted in different frequencies that were output to the CPU.

[00:30:08] Speaker 00:
And in fact, Dr. Subramanian's testing would have

[00:30:12] Speaker 00:
shown any such variation, but there wasn't.

[00:30:14] Speaker 00:
And we saw Dr. Subramanian's testing variation showed that the variation issued from 0, I'm sorry, 0.000087 to 0.00064.

[00:30:28] Speaker 00:
And that is as compared to 0.01, which is the variation that you see with the crystal at the time of the invention.

[00:30:38] Speaker 00:
So if there had been some kind of fabrication variation, which they had never pointed to any evidence of, it would have been picked up by Dr. Subramenian's testing, but we never saw that.

[00:30:48] Speaker 00:
So there's no evidence to overturn the summary judgment ruling on that basis.

[00:30:55] Speaker 01:
And the last thing I want to say is there was a... Just curious, you're saying the output of the POL is more stable and more precise than the output from a crystal?

[00:31:05] Speaker 00:
Yeah, well, that's a very good point.

[00:31:07] Speaker 00:
The issue of what fixed means, I think, is logically tied to what the variation of a crystal would permit at the time of the patent, because that's the parties are talking about a fixed frequency.

[00:31:20] Speaker 00:
What is a fixed frequency?

[00:31:21] Speaker 00:
During prosecution, the applicant talked about the fact that a crystal would have variation even under PVT.

[00:31:29] Speaker 00:
That's at Appendix 2093.

[00:31:31] Speaker 00:
It acknowledged that it would vary minimally even under PVT.

[00:31:35] Speaker 00:
So Dr. Subramenian said that at that time, the variation that would be deemed fixed is 0.01.

[00:31:42] Speaker 00:
Now, more modern crystals, you can see somewhat even less variation.

[00:31:49] Speaker 00:
They're better than the old crystals.

[00:31:50] Speaker 00:
And that's in the papers too.

[00:31:52] Speaker 00:
I don't have the site for that right now, but Dr. Subramenian addressed that as well.

[00:31:56] Speaker 00:
And that's the difference.

[00:31:57] Speaker 00:
But from our perspective, what fixed means in the patent has to refer to

[00:32:02] Speaker 00:
what fixed meant to the parties at the time of the application.

[00:32:07] Speaker 00:
Now, with respect to the point that Council made in terms of command input, Council suggested that the District Court had somehow adopted a definition of command input that's not in, you can't find it in the District Court's order.

[00:32:24] Speaker 00:
The command input that's at issue here under Sheets is the digital command that's sent to

[00:32:31] Speaker 00:
the registers of the digital divisors to change the values that allows one fixed frequency to change to the other.

[00:32:39] Speaker 00:
The district court found that that was the command input.

[00:32:44] Speaker 00:
The district court also found that there was a second command input, which is the control voltage.

[00:32:49] Speaker 00:
That's what counsel's focused on.

[00:32:51] Speaker 00:
But Dr. Subramanian, all he did there was point to the fact that there were two patents in the field of inquiry here that equated a command input

[00:33:01] Speaker 00:
with a control voltage.

[00:33:05] Speaker 00:
And he happened to point to the dictionaries as supporting that.

[00:33:07] Speaker 00:
But he never suggested that an operating voltage was a command input, nor did the district court.

[00:33:12] Speaker 00:
That's all I have, Your Honor.

[00:33:13] Speaker 00:
I'm just having more questions.

[00:33:14] Speaker 02:
OK, thank you.

[00:33:15] Speaker 02:
Two minutes of rebuttal time.

[00:33:18] Speaker 02:
Ms.

[00:33:18] Speaker 02:
DeMorey.

[00:33:20] Speaker 03:
Thank you.

[00:33:21] Speaker 03:
Briefly, I just wanted to point out with regard to this fabrication issue, Judge Chen asked a question about it.

[00:33:26] Speaker 03:
And it's just now been stated that there was no evidence in the record about that.

[00:33:30] Speaker 03:
But this evidence was presented to the district court, and it was rejected in its footnote one at APPX 0005.

[00:33:39] Speaker 03:
And the evidence was in our expert declaration at pages 6538 and 6543 through 44 of the appendix.

[00:33:51] Speaker 03:
And so there is evidence, expert declaration testimony, about the fabrication parameter, which alone is enough.

[00:33:59] Speaker 03:
this argument right now about you can't tell a variation of fabrication parameter because of this testing.

[00:34:06] Speaker 03:
A variation of fabrication parameter means that both the CPU and the oscillator are fabricated on the same wafer and so they vary in the same fabrication parameter.

[00:34:20] Speaker 03:
There is evidence in the record of that that I decided and that is enough to reverse the district court's decision.

[00:34:27] Speaker 01:
In addition, I was... Is the output of the PLL slash VCO in the accused product varying in accordance to whatever the fabrication techniques were involved in creating the VCO?

[00:34:41] Speaker 01:
My understanding of the way this PLL slash VCO works is, regardless of the origins of fabricating the VCO, regardless of the PVT variations,

[00:34:56] Speaker 01:
overall chip might undergo, the output of the PLL slash VCO is going to remain stable.

[00:35:03] Speaker 01:
Unless there's something in the control voltage that forces the VCO to output something faster or slower for a period of time.

[00:35:13] Speaker 03:
Yeah, if you read COM 16 or 17 of the patent, though, when it talks about the fabrication parameter.

[00:35:20] Speaker 01:
I'm talking about the accused product right now and its PLL slash VCO output.

[00:35:25] Speaker 03:
Correct.

[00:35:26] Speaker 03:
I mean, I don't disagree with that.

[00:35:27] Speaker 03:
What I was going to say, though, is what the claim means in terms of fabrication parameter is that if the two devices are produced on the same chip, they have the same capabilities.

[00:35:37] Speaker 03:
So that if you don't have an oscillator, like you did in the past that was separate from the chip, that goes faster than the CPU.

[00:35:45] Speaker 03:
So they both have the same capability.

[00:35:47] Speaker 03:
That's what the specification means when they talk about varying in fabrication parameter.

[00:35:52] Speaker 03:
So the fact that the accused products have the CPU and the oscillator built on the same chip, they do vary in the fabrication parameter, and there was evidence in the record that the court rejected at footnote one of its opinion, but we believe it's enough to sustain the judgment.

[00:36:06] Speaker 02:
Okay, counsel, you are well over the time and the extra time I gave you, in fact, so we're going to call it for today.

[00:36:12] Speaker 02:
Thank both counsel.

[00:36:13] Speaker 02:
The case is taken under submission.

[00:36:15] Speaker 02:
Thank you.