[00:00:00] Speaker 04:
day of arguments today for different cases.

[00:00:05] Speaker 04:
And we have some internal timing issues that we need to deal with.

[00:00:11] Speaker 04:
So what that means is that everybody gets their allotted time for arguments.

[00:00:17] Speaker 04:
But we're going to ask that you stick to the allotted time and all.

[00:00:23] Speaker 04:
And I'll keep track of that as well.

[00:00:25] Speaker 04:
We're going to hear three arguments this morning.

[00:00:27] Speaker 04:
And then the bench is going to retire for brief deliberations.

[00:00:31] Speaker 04:
And then we'll be back at about 15 to 20 minutes later.

[00:00:37] Speaker 04:
And we'll hear the last case, the Quake case, at that point in time.

[00:00:42] Speaker 04:
So we'll hear that around 1250, maybe 1 o'clock.

[00:00:47] Speaker 04:
or 12 o'clock rather.

[00:00:49] Speaker 04:
And so unless there's not any questions from the parties.

[00:00:56] Speaker 04:
Okay, so our first case today is TQ Delta LLC versus Cisco Systems Inc.

[00:01:04] Speaker 04:
Dish Network.

[00:01:05] Speaker 04:
Comcast cable communications and at all So and the number of the cases is 2018 1766 through 1767 So we're all set Morning your honors may please the court

[00:01:30] Speaker 00:
The final written decisions in the 10-20 and 10-21 matters should be overturned for at least three reasons.

[00:01:36] Speaker 00:
First, there is not substantial evidence of record to support the board's finding on motivation to combine.

[00:01:42] Speaker 00:
One of ordinary skill in the art would not have recognized any problem with the primary reference, which is chivalry that required fixing.

[00:01:51] Speaker 00:
Chivalry does not have any problems caused by an increased or high peak to average power ratio, which we refer to as PAR.

[00:01:59] Speaker 00:
that would have benefited in any way from a power reduction technique.

[00:02:04] Speaker 00:
Second, even if there was a problem and there isn't, it was only through hindsight and the conclusory opinion of Petitioner's expert, not substantial evidence, that the board concluded that one of skill and the art would look to combine shyly with a power-reducing, phase- scrambling technique.

[00:02:21] Speaker 03:
And third, the stopler reference- What else besides the expert's testimony do we need to affirm based upon a substantial evidence ground?

[00:02:30] Speaker 03:
I mean, the expert gave a declaration.

[00:02:32] Speaker 03:
He explained why he would combine these two references.

[00:02:36] Speaker 03:
Isn't that substantial evidence for the Boer's finding?

[00:02:40] Speaker 00:
Your Honor, it's not substantial evidence when you consider the totality of the record.

[00:02:43] Speaker 00:
And the totality of the record must be considered, and the panel below must address the full record.

[00:02:50] Speaker 00:
And what the full record discloses is that

[00:02:54] Speaker 00:
the petitioner's expert, Dr. Tolado, essentially abandoned his first position.

[00:02:59] Speaker 00:
He realized that his opinion in the first instance was inadequate, that he had used the wrong standard.

[00:03:06] Speaker 03:
Wait a minute.

[00:03:06] Speaker 03:
Are you now arguing your point about excluding this testimony or ignoring it?

[00:03:11] Speaker 03:
I didn't ask you that.

[00:03:12] Speaker 03:
I ask you, if we accept his statement about why there is a reason to combine this, isn't that substantial evidence?

[00:03:20] Speaker 03:
You're asking us to ignore it.

[00:03:23] Speaker 00:
Your Honor, I'm asking you to consider the totality of the record.

[00:03:26] Speaker 03:
But that's not our job to consider the totality of the record anew and reach a new conclusion.

[00:03:33] Speaker 03:
Our job is to look at the board's conclusion, which was that there was a motivation to combine here, and then look at the record to see if there's evidence that supports that conclusion.

[00:03:43] Speaker 03:
Of course, we look at the record to see if there's evidence that detracts.

[00:03:47] Speaker 03:
But we don't make that decision new.

[00:03:49] Speaker 03:
If there's any evidence that supports the board's conclusion, that a reasonable person could conclude supports it, we have to affirm, don't we?

[00:03:57] Speaker 03:
That's the standard of review.

[00:03:58] Speaker 00:
I agree that if that was the situation below that you would have to affirm.

[00:04:03] Speaker 00:
But that's not the circumstances below.

[00:04:04] Speaker 00:
The PTED panel did not consider the totality of the record.

[00:04:08] Speaker 00:
You do not have a record.

[00:04:09] Speaker 03:
Let's assume I disagree with you about that, because I think they looked at everything here and they wrote an opinion that, for better or worse, says what it says.

[00:04:17] Speaker 03:
But it looked at all the evidence before them.

[00:04:21] Speaker 03:
It may not have gone through it at all in detail and said, there's a motivation combined here.

[00:04:25] Speaker 03:
See expert opinion.

[00:04:28] Speaker 00:
Well, Your Honor, there's still room for a mistake.

[00:04:30] Speaker 00:
So there's still room for the PTAB panel.

[00:04:32] Speaker 03:
That's what I'm going to ask.

[00:04:33] Speaker 03:
What is the mistake?

[00:04:35] Speaker 03:
The mistake is... Is the mistake you want me to say that the expert's opinion is not good enough, opinion that it should have been disregarded under Dalbert or excluded somehow?

[00:04:46] Speaker 03:
You didn't make enough

[00:04:48] Speaker 03:
objections to that, or do you just want us to say, we're not going to look at the expert's opinion, even though that is on the record and can support substantial evidence?

[00:04:58] Speaker 00:
Well, what we think at a minimum should have been considered below is the evidence that was destroyed, that wasn't available in the record.

[00:05:05] Speaker 00:
The evidence that was destroyed would have shown that the expert's opinion... Well, that's a different argument, right?

[00:05:10] Speaker 03:
That's an argument that

[00:05:11] Speaker 03:
We should have excluded his opinion or excluded part of his opinion, but the board recognized that problem and said specifically it wasn't relying on the paragraphs that related to that issue, right?

[00:05:24] Speaker 03:
So that is not a problem.

[00:05:26] Speaker 03:
If you're now saying they should have excluded his opinion altogether, you didn't preserve that argument.

[00:05:31] Speaker 00:
I'm not saying they should have excluded.

[00:05:33] Speaker 00:
I'm saying they should have considered it.

[00:05:34] Speaker 00:
They should have recognized that there was test evidence.

[00:05:37] Speaker 03:
They did recognize it and said they weren't considering that part of the case because you'd moved to exclude those paragraphs.

[00:05:46] Speaker 00:
We moved to exclude his opinions that were insufficient.

[00:05:49] Speaker 00:
And the insufficient opinions were

[00:05:51] Speaker 00:
were what he refused to produce, that he continued to criticize our expert's opinion that there is no par problem.

[00:06:01] Speaker 00:
The first part of this case devolves down into whether there is a motivation to combine.

[00:06:05] Speaker 03:
That's not the part of his opinion that we're talking about that the board relied on for motivation to combine, is it?

[00:06:10] Speaker 03:
We're talking about a different part of his opinion, which you didn't move to exclude.

[00:06:18] Speaker 00:
We didn't move to exclude it because it wasn't there.

[00:06:21] Speaker 00:
It was concealed from us.

[00:06:23] Speaker 03:
So what was not part of the opinion that the board relied on in finding a motivation to combine.

[00:06:30] Speaker 03:
So your honor, let me just move on.

[00:06:34] Speaker 03:
You're not going to change my mind on this.

[00:06:37] Speaker 04:
Apart from that evidence that was or was not excluded improperly, if we move on and we ask ourselves, does Shiley disclose a par problem?

[00:06:50] Speaker 04:
And what about where Shiley does disclose?

[00:06:53] Speaker 04:
Now, granted, it doesn't use the word par.

[00:06:57] Speaker 04:
But it does say that Shirely discloses that the invention is applicable to other kinds of multi-carrier and multi-channel singling as will be understood by those skilled in the art.

[00:07:08] Speaker 04:
Wouldn't a person skilled in art look at that and say, okay, I can address the problem in Shirely by scrambling techniques.

[00:07:17] Speaker 04:
And that gets us to where we are today.

[00:07:19] Speaker 04:
I mean, that's the motivation to combine there, isn't it?

[00:07:22] Speaker 00:
But Your Honor, that presumes that Shively would be recognized as having a power problem.

[00:07:26] Speaker 00:
And it would not be.

[00:07:28] Speaker 00:
And the fact that Petitioner's expert destroyed the evidence would have shown that definitively that there is no power problem.

[00:07:35] Speaker 00:
Petitioner's expert pivoted.

[00:07:36] Speaker 00:
He put in a vague opening opinion.

[00:07:39] Speaker 00:
He recognized based on the opinion of patent owner's expert

[00:07:43] Speaker 00:
that it was insufficient, that you have to gauge a PAR problem with respect to something.

[00:07:49] Speaker 00:
Saying increased PAR or high PAR has to be, there has to be a bar to gauge whether that is an issue and whether there can be any improvement.

[00:07:57] Speaker 00:
So the way that a Shively modem is designed, and it's according to the ADSL standard, and the ADSL standard is mentioned in both Shively, the prior reference, and in our patent.

[00:08:07] Speaker 04:
But Shively presumed that there's a problem with sending the same bit of information over multiple carriers.

[00:08:13] Speaker 00:
Shively doesn't describe it as a problem.

[00:08:15] Speaker 00:
That's actually Shively's solution.

[00:08:17] Speaker 00:
Shively's solution is that when there are fewer, so there's roughly 256 carriers.

[00:08:21] Speaker 00:
It's a solution to what problem?

[00:08:23] Speaker 00:
It's a solution to the fact that you have carriers that have a low signal to noise ratio or a low, they have too much attenuation and therefore the carriers are either totally unusable and that's more than half of the carriers in Shively.

[00:08:39] Speaker 00:
More than half of them are totally unusable and that's the basis

[00:08:42] Speaker 00:
for our experts saying that there could never be a power problem, because the amplifiers will be designed, if you will, and I'll try to analogize this, let's say that the amplifiers are designed to go to 10.

[00:08:53] Speaker 00:
When Shively eliminates half of his carriers, because that's what his technique is for, his technique is for when you've eliminated carriers and your data rate drops, what Shively's technique is for is using carriers at the margin of usable and unusable, to use those to squeeze

[00:09:08] Speaker 00:
through a few additional bits.

[00:09:10] Speaker 00:
What it does is it combines carriers together, for example, a group of four, uses the small little SNR margin that it has available, and squeezes through an additional bit.

[00:09:19] Speaker 00:
What that does is that creates repetition.

[00:09:22] Speaker 00:
And we agree, as our experts said, that that will create a small uptick in PAR, a small uptick in PAR.

[00:09:28] Speaker 00:
However, that small uptick in PAR is a grain of sand on the beach.

[00:09:33] Speaker 04:
Why is it that small uptick in PAR sustains a lot of us?

[00:09:36] Speaker 00:
No, it's not because their expert understood he knew that the only way an uptick in PAR becomes a problem or becomes something that you can improve on is if it causes clipping above the acceptable rate and the standards.

[00:09:52] Speaker 02:
Where in the record are you relying for that?

[00:09:54] Speaker 02:
I understand your argument to be that the kind of PAR increase that you see in shyly isn't significant enough

[00:10:00] Speaker 02:
present a problem.

[00:10:02] Speaker 02:
And it sounds as if you're saying that Dr. Toledo agreed with that.

[00:10:06] Speaker 02:
But where in the record are you relying on for that support?

[00:10:09] Speaker 00:
So, Your Honor, what I'm saying is it's a tacit agreement.

[00:10:12] Speaker 00:
Because he pivoted in his reply declaration and decided to put in simulations, and in fact said that the only way one of Skill in the Art would understand whether you have a PAR issue would be to run these simulations.

[00:10:23] Speaker 00:
He ran MATLAB simulations.

[00:10:25] Speaker 00:
And there's a statement by Dr. Tolado that the only way one of Skill in the Art would understand whether there is an uptick in clipping rate is to run a simulation.

[00:10:34] Speaker 00:
So he ran the simulations.

[00:10:35] Speaker 00:
He ran a simulation on an 18,000 foot loop, which is what Shively discloses.

[00:10:39] Speaker 00:
Shively's technique is for long loops, 18,000 feet or longer, where you're going to have impaired carriers.

[00:10:46] Speaker 00:
He ran that simulation and then destroyed evidence of it.

[00:10:49] Speaker 02:
I understand that.

[00:10:50] Speaker 02:
I just wanted to know where, you know, we've got a situation where the board has said that it's going to rely on certain things and it's not going to rely on other things.

[00:10:58] Speaker 02:
Assuming for a minute that we agree or we're not going to change the board's evidentiary determinations, where does your argument go from there?

[00:11:08] Speaker 02:
Where is your argument to support the idea either that Shively doesn't have a power problem or that Stockler somehow is supposed to be addressing a power problem?

[00:11:18] Speaker 00:
Well, Your Honor, can I return to the first point you made there?

[00:11:21] Speaker 04:
But the problem that we have is when the board says... Incidentally, you're into your rebuttal time now.

[00:11:26] Speaker 00:
We've got five minutes.

[00:11:27] Speaker 00:
Thank you, Your Honor.

[00:11:28] Speaker 00:
Let me just finish this one point.

[00:11:29] Speaker 00:
So the problem we face is when the board says, we're not going to rely on the evidence

[00:11:35] Speaker 00:
that would have favored patent owner.

[00:11:38] Speaker 00:
We're not going to rely on the simulation evidence of an 18,000 foot loop that would have favored patent owner.

[00:11:44] Speaker 00:
And pretend that that didn't happen.

[00:11:46] Speaker 00:
Pretend that the expert didn't run that simulation and didn't realize that it would have favored us, and therefore concealed it.

[00:11:53] Speaker 00:
When they say we're not going to rely on that, that doesn't seem right.

[00:11:56] Speaker 03:
That seems like they're- Didn't you move to exclude that evidence?

[00:11:59] Speaker 00:
We didn't move to exclude that evidence.

[00:12:00] Speaker 00:
We moved to exclude the 12,000 foot simulation that we said was a cherry pick scenario that had nothing to do with it.

[00:12:05] Speaker 03:
And they said they weren't going to rely on the evidence you moved to exclude.

[00:12:08] Speaker 00:
That's correct.

[00:12:08] Speaker 00:
They didn't rely on the 12,000 foot scenario either.

[00:12:10] Speaker 03:
But our point is that when they didn't rely on the evidence that didn't exist because, in your view, he destroyed it.

[00:12:20] Speaker 00:
Well, Your Honor, I think the record is very clear that he did.

[00:12:22] Speaker 03:
Did you ask for the board to draw an adverse inference from that?

[00:12:25] Speaker 00:
We did, Your Honor.

[00:12:26] Speaker 03:
And they declined, right?

[00:12:28] Speaker 00:
They did decline.

[00:12:29] Speaker 03:
And that kind of evidentiary determination is an abuse of discretion standard, isn't it?

[00:12:36] Speaker 00:
Correct, Your Honor.

[00:12:37] Speaker 00:
We believe it's an abusive discretion vote.

[00:12:39] Speaker 00:
What it led to is it led to an incomplete record that the panel refused to address the entirety of the record.

[00:12:46] Speaker 00:
What the panel is supposed to address.

[00:12:49] Speaker 03:
I'm not sure what they refused to address.

[00:12:51] Speaker 03:
They knew about this evidence.

[00:12:52] Speaker 03:
They decided it didn't change their mind.

[00:12:54] Speaker 03:
You made all these arguments, which are all completely factual arguments to the board, and they disagreed with you.

[00:13:00] Speaker 03:
And now you're saying, well, the board should have looked at this part of the record instead of the part of the record they looked at.

[00:13:05] Speaker 03:
we do on a substantial evidence review?

[00:13:08] Speaker 00:
The law is that they're supposed to consider the entire record, including evidence that detracts from their ultimate conclusion.

[00:13:15] Speaker 02:
Can I ask you a question about Dr. Toledo's declaration and the board's determination of obviousness?

[00:13:23] Speaker 02:
I just want to understand what you think the board relied on.

[00:13:26] Speaker 02:
I mean, I read the board is relying on Stauffer itself, Shively itself, and Dr. Toledo's declaration.

[00:13:34] Speaker 02:
Is that providing the support for why one would have been motivated to combine Shively and Stauffer?

[00:13:41] Speaker 02:
Do you agree with that?

[00:13:42] Speaker 00:
I agree that they're relying on, in part, Shively itself, but it's not Shively alone, because Shively does not say, I have a par problem.

[00:13:49] Speaker 00:
There is no discussion of par and Shively whatsoever.

[00:13:52] Speaker 00:
They're relying on

[00:13:53] Speaker 00:
What I believe is tainted testimony of an expert that says because there's an increase, you would try to solve that.

[00:14:00] Speaker 00:
There is no increase that needs solving.

[00:14:03] Speaker 00:
Again, your amplifier goes to 10, and if you're operating at 5, even if you have a slight uptick to 5.1, there is no motivation of any kind to go fix that.

[00:14:12] Speaker 00:
You've already got a 10.

[00:14:13] Speaker 02:
What about Stopler?

[00:14:14] Speaker 02:
Do you think Stopler is a dressing park?

[00:14:17] Speaker 00:
Stopler, again, does not mention PAR.

[00:14:20] Speaker 00:
It does not mention peak average power ratio.

[00:14:22] Speaker 00:
It doesn't mention any problems with clipping.

[00:14:24] Speaker 02:
What evidence do you think the board relies on to conclude that Stopler actually teaches a technique for solving PAR?

[00:14:32] Speaker 00:
Again, they rely on the testimony of Dr. Tolado that we believe is tainted.

[00:14:36] Speaker 00:
His exclusives say so.

[00:14:38] Speaker 02:
Well, assuming it's not tainted, do you think his testimony is adequate to support that point?

[00:14:42] Speaker 00:
I don't believe it's adequate, because what he didn't address adequately is that Stoppler does not describe a PAR problem.

[00:14:48] Speaker 04:
Instead, what Stoppler describes... But he does describe scrambling.

[00:14:51] Speaker 02:
He does, but he describes a single frequency interferer problem, and the only way... Assuming for a minute that it... I know you've got this technical argument that it's just a single frequency, but assuming for a minute that the board got it right on that point, do you also have an argument that Toledo doesn't teach the use of its technique for solving PAR problems?

[00:15:12] Speaker 00:
Yes, Your Honor.

[00:15:13] Speaker 00:
Stauffler does not describe using its techniques to solve the power problem.

[00:15:17] Speaker 00:
That's true.

[00:15:18] Speaker 02:
Where do you think there's any evidence that the board relied on for that conclusion?

[00:15:23] Speaker 00:
I don't believe that there is any other than the say-so of Dr. Talato.

[00:15:29] Speaker 02:
He's an expert in the field.

[00:15:30] Speaker 02:
Why can't he just say so?

[00:15:32] Speaker 00:
Well, he can't just say so.

[00:15:33] Speaker 00:
He needs to have facts and data that back up his opinion.

[00:15:38] Speaker 00:
Of course, we can't just let experts say anything they want and treat that as fact, because it's not fact.

[00:15:43] Speaker 00:
The fact is the record itself, the prior references themselves, and logical, informed opinions of experts.

[00:15:52] Speaker 04:
You're down to like 37 seconds.

[00:15:55] Speaker 04:
And we'll move the story back to two minutes.

[00:15:57] Speaker 04:
Thank you, Your Honor.

[00:16:09] Speaker 05:
Good morning.

[00:16:09] Speaker 05:
May it please the court, Theo Foster, on behalf of the Appellees.

[00:16:12] Speaker 05:
I believe the court well understands the standard of review here and seems to understand the record.

[00:16:18] Speaker 04:
Why would a post even look at a chip if it doesn't deal with power, doesn't even mention power?

[00:16:26] Speaker 04:
What is it that would attract a postita to look at?

[00:16:32] Speaker 05:
I'm not sure I completely understand your question, Judge Raina.

[00:16:36] Speaker 05:
Are you asking why a person of ordinary skill would look at applying Shively's technique to a DSL modem in general?

[00:16:43] Speaker 04:
Why would, on the motivation to combine, why would a proceder have a motivation to combine Stopper with Shively?

[00:16:51] Speaker 05:
So the motivation to combine rests on three facts.

[00:16:55] Speaker 04:
And looking at Shively, does it mention PAR?

[00:16:57] Speaker 04:
Does it deal with PAR?

[00:16:59] Speaker 05:
Shively does not discuss PAR.

[00:17:02] Speaker 05:
But as the board found, and this is in the appendix of page 29, the board found that persons of skill in this field were well aware of the issues and the potential problems associated with the high peak to average power ratio that are intrinsic to these multi-carrier communications.

[00:17:19] Speaker 04:
You're now going back to par, the high peak ratio, but that's not what Shipley's about.

[00:17:25] Speaker 05:
Shively is about increasing the data rate through the communication line.

[00:17:31] Speaker 05:
That's at the top of column 8 of Shively.

[00:17:32] Speaker 05:
It describes increasing the data rate.

[00:17:34] Speaker 05:
So that's the reason that you would use Shively in the first place.

[00:17:36] Speaker 05:
It makes DSL modems faster, and the board agreed with that.

[00:17:41] Speaker 02:
Go ahead.

[00:17:42] Speaker 02:
I'll ask you my question in a minute.

[00:17:44] Speaker 05:
The problem with what Shively is doing is that Shively's technique of repeating bits across multiple carriers will cause those carriers to constructively interfere, they will cause high peaks, and that increases the PAR.

[00:18:02] Speaker 05:
The Blue Brief essentially agreed with that.

[00:18:04] Speaker 04:
A high peak does not necessarily mean a PAR problem.

[00:18:09] Speaker 05:
So the phrase par problem is Appellant's rephrasing of the motivation and combine that sidesteps what the board actually found.

[00:18:19] Speaker 05:
The board's finding was that Shively's technique increases par.

[00:18:25] Speaker 05:
The question of whether or not that causes clipping

[00:18:28] Speaker 05:
is a second question.

[00:18:30] Speaker 05:
But there's substantial evidence here showing that an increase in PAR has many downsides.

[00:18:38] Speaker 05:
Clipping is just one of them.

[00:18:40] Speaker 05:
An increase in power associated with an increase in equipment size, in equipment cost, power consumption.

[00:18:46] Speaker 04:
The problem that Shively seeks to solve is not clipping, correct?

[00:18:50] Speaker 05:
Well, Shively is trying to solve the problem of getting more bits down the line, of making modems faster.

[00:18:59] Speaker 05:
And it has a technique for doing that.

[00:19:00] Speaker 02:
What about Stopler for a minute?

[00:19:02] Speaker 02:
I understand your position on Shively, that it doesn't say that it has a par problem, but you're saying that it at least increases par, so it could potentially have one.

[00:19:12] Speaker 02:
But what about Stopler?

[00:19:14] Speaker 02:
I mean, Stopler doesn't say anything about solving par.

[00:19:20] Speaker 02:
Nor is there anything in the record other than Dr. Gelato's testimony that looks at Stapler and says, oh, it seems as if this would be a good idea to try to do this phase shifting in order to be able to avoid this problem.

[00:19:35] Speaker 02:
But neither Stapler nor anything else says that that's a solution.

[00:19:44] Speaker 05:
The art has to be looked at through the eyes of the person of ordinary skill.

[00:19:48] Speaker 05:
And that's what Dr. Tolado is bringing to this case, is he's looking at it and explaining it to us how skilled engineers familiar with these systems look at these references.

[00:20:00] Speaker 02:
This is my concern.

[00:20:02] Speaker 02:
And I appreciate your pointing this out, that I do think it comes down to Dr. Tolado's testimony.

[00:20:07] Speaker 02:
I agree with you.

[00:20:08] Speaker 02:
But why isn't it conclusory on this point?

[00:20:11] Speaker 05:
I think it's not conclusory, because he explains.

[00:20:15] Speaker 02:
Can you point to me?

[00:20:16] Speaker 02:
Let's walk through the appendix, because you can maybe identify for me where you think this is specifically addressed.

[00:20:25] Speaker 05:
So specifically with respect to why a person of ordinary skill in the art would have seen Stopler's technique as reducing par?

[00:20:33] Speaker 05:
Is that that point Judge Stoll?

[00:20:35] Speaker 05:
Right.

[00:20:35] Speaker 01:
I think it's like at page 2928 to 2929.

[00:20:59] Speaker 05:
You said 29-29?

[00:21:00] Speaker 02:
I think the part of his declaration that you would be looking at, if there is any support, would be at 29-28 to 29-29.

[00:21:20] Speaker 05:
So the board,

[00:21:24] Speaker 05:
at page 22 in the appendix, cited a variety of evidence, including the testimony of TQ Delta's Dr. Short, to support their finding that Stopler's phase scrambler operates on single symbols one at a time, and that that technique then reduces PAR.

[00:21:46] Speaker 02:
But where is there disclosure that that reduces PAR?

[00:21:58] Speaker 02:
That's the key that I can't find anywhere.

[00:22:18] Speaker 05:
On page 22, the board citing Dr. Short's testimony stated that it agreed that Stopler is referring to phase scrambling QAM symbols.

[00:22:29] Speaker 05:
So a QAM symbol is the symbol transmitted on one carrier out of the multiple carrier system.

[00:22:34] Speaker 05:
So every carrier then is being face scrambled.

[00:22:38] Speaker 02:
I have no dispute with that.

[00:22:40] Speaker 02:
I think there are substantial evidence to support the board's finding on that.

[00:22:43] Speaker 02:
What I'm asking you about is something different.

[00:22:45] Speaker 02:
What I'm asking you about is, where is there any evidence at all that shows that what Stapler is doing reduces our problem, other than the patent itself?

[00:22:59] Speaker 05:
If we look, for example, at the blue brief at pages 10 and 11,

[00:23:08] Speaker 02:
Is this the blue brief now?

[00:23:10] Speaker 02:
Yes.

[00:23:10] Speaker 02:
I mean, what about in Dr. Toledo's declaration?

[00:23:13] Speaker 02:
Are you relying on that at all?

[00:23:17] Speaker 04:
Look at page 2928, the last two sentences.

[00:23:35] Speaker 05:
Last two sentences on 2928, so paragraph 67.

[00:23:38] Speaker 05:
Yes.

[00:23:48] Speaker 04:
My books are faster than your iPad, it seems like.

[00:23:53] Speaker 05:
Yes.

[00:23:54] Speaker 05:
I may need to go back to paper.

[00:23:59] Speaker 03:
You need to go back to something that allows you to have the record before you so that you can discuss it with us.

[00:24:05] Speaker 03:
Do you not have this in front of you?

[00:24:06] Speaker 05:
I have the record, Judge Hughes, yes.

[00:24:09] Speaker 03:
Well then, why don't you answer Judge Tolle's question about whether that supports

[00:24:15] Speaker 03:
the decision or the conclusion that Stopler teaches of solving a PAR problem.

[00:24:20] Speaker 02:
It says paragraph 67 says, Stopler provides a solution for reducing the PAR of a multi-carrier transmitter.

[00:24:26] Speaker 02:
And where is the support for that?

[00:24:28] Speaker 02:
Stopler doesn't even mention PAR.

[00:24:29] Speaker 02:
So I'm looking for support for why that is so.

[00:24:34] Speaker 05:
So Dr. Tolado's testimony is that

[00:24:40] Speaker 05:
The increase in PAR from Shively comes from the carriers being phase aligned because the same data is being sent on those same carriers.

[00:24:50] Speaker 05:
And so because the same data is there, it's the same symbol, they phase align and they cause a peak.

[00:24:57] Speaker 05:
The phase scrambling in Stopler undoes that phase alignment.

[00:25:01] Speaker 05:
And when the phases are not aligned, then the increase in PAR goes away.

[00:25:07] Speaker 05:
That's what Dr. Tolotta was explaining.

[00:25:09] Speaker 05:
That's what the board found and explained in its opinion.

[00:25:15] Speaker 02:
In other words, because Shively's problem is caused by phase alignment, tada, the solution is to not have it aligned anymore.

[00:25:23] Speaker 05:
Yes.

[00:25:27] Speaker 02:
And I'm supposed to get that from what part of Dr. Talatos?

[00:25:31] Speaker 02:
Is that further in paragraph 67 that you see that?

[00:25:35] Speaker 05:
So at the top of page 2929, the next full sentence, he states, a posita would have recognized that by randomizing the phase of each subcarrier, Staubler provides a technique that allows two or more subcarriers in Shively's system to transmit the same one or more bits.

[00:25:52] Speaker 05:
So Shively's technique is still implemented.

[00:25:54] Speaker 05:
but without those two or more sub-carriers having the same phase.

[00:25:58] Speaker 05:
Since the two sub-carriers are out of phase with one another, the sub-carriers will not add up coherently at the same time, and thus the peak to average power ratio for the overall system will be less than in Shively's original system.

[00:26:19] Speaker 02:
Where is the support that they would have recognized it?

[00:26:22] Speaker 02:
A posita would have recognized by randomizing the phase of each subcarrier stopper provides a technique.

[00:26:29] Speaker 02:
Why would a posita have recognized?

[00:26:32] Speaker 02:
the desire to randomize.

[00:26:34] Speaker 05:
So if we look at the board's opinion at page 29, the board addressed that the question of whether or not a person of ordinary skill in the art was familiar with peak to average power ratio as a potential problem in multi-carrier solutions or multi-carrier communication systems and what it meant, where it comes from.

[00:26:51] Speaker 05:
And the board found that there was substantial evidence to support that, including the board cited to the statements of Dr. Short, who stated that engineers knew how to design these systems to account for the possibility of high PAR.

[00:27:05] Speaker 05:
And they also pointed to the ANSI standard, which described the fact that high PAR.

[00:27:10] Speaker 02:
Right.

[00:27:10] Speaker 02:
I'm recognizing that PAR is a problem.

[00:27:14] Speaker 02:
I'm not supposed to and I cannot consider of course the other articles including dr. Toledo's theses We can't consider any of that because the board did not consider any of it right the the board

[00:27:28] Speaker 05:
did not consider it and therefore dismissed his motion to exclude that.

[00:27:33] Speaker 05:
I would point out that during Dr. Toledo's first deposition, he pointed the patent owner to his thesis and indicated that they should go look at his thesis and look at the papers he cited there and stated in his first deposition that there was a lot of support for his statements that phase scrambling was a well-known technique.

[00:27:51] Speaker 02:
However, the problem is that we can't consider that, because the board didn't consider it, right?

[00:27:56] Speaker 05:
You cannot consider the specific references that he pointed to.

[00:27:59] Speaker 02:
I believe- Not his testimony.

[00:28:00] Speaker 02:
As I understand it, the board also said it wasn't going to rely on his deposition testimony.

[00:28:05] Speaker 05:
The board did not rely on portions of his second deposition testimony.

[00:28:09] Speaker 05:
His first deposition testimony, which TQ Delta did not object to and did not move to exclude, is when he stated that phase scrambling was the- Can you give me a site for that?

[00:28:21] Speaker 05:
Yes, ma'am.

[00:28:27] Speaker 05:
The appendix, page 3860, lines 14 and 15.

[00:28:41] Speaker 05:
Dr. Tolado was asked a series of questions about techniques for reducing PAR that he knew about.

[00:28:50] Speaker 05:
And he gave several examples.

[00:28:52] Speaker 05:
Then he pointed them to his thesis and said that there were still further examples there.

[00:28:59] Speaker 05:
And then on lines 14 and 15, he stated, phase scrambling was probably the most popular way.

[00:29:06] Speaker 02:
Did the board rely on this testimony at all in making its determination that Stapler discloses solving a power problem?

[00:29:15] Speaker 05:
I do not believe the board cited this testimony.

[00:29:22] Speaker 05:
The last issue I'd like to just briefly address in my remaining time, the red brief accused Dr. Tolotto of dishonesty, and because I believe he's an honorable man, I'd just like to point out that T.Q.

[00:29:35] Speaker 05:
Delta has not identified any statements in his deposition testimony that he believes were untruthful, and they have not identified any evidence that Dr. Tolotto was under an obligation to disclose that he concealed.

[00:29:49] Speaker 05:
For any other issues, we'll rely on our briefs.

[00:29:50] Speaker 05:
Thank you.

[00:30:00] Speaker 04:
Mr. McAndridge, you have two minutes.

[00:30:03] Speaker 00:
Thank you, Your Honor.

[00:30:04] Speaker 00:
I just want to briefly address the issue of whether there was substantial evidence of record to support looking to Stopler to try to solve a problem.

[00:30:13] Speaker 00:
And Stopler itself does not describe itself as solving that problem.

[00:30:17] Speaker 00:
And there was reference to some deposition testimony.

[00:30:21] Speaker 00:
Again, the problem with that deposition testimony is that the panel did not rely on that deposition testimony.

[00:30:26] Speaker 00:
The other part about it is that it's just a vague reference to this general notion that possibly you could do face scrambling

[00:30:33] Speaker 00:
What's not acknowledged there is that we had no opportunity to respond to that.

[00:30:36] Speaker 00:
There is no detailed expert opinion disclosed as the basis for combining whatever that art is.

[00:30:42] Speaker 03:
When you say that Stapler doesn't show anything about reducing a PAR problem, you're talking about the reference on its face and its specific teachings, right?

[00:30:51] Speaker 03:
Not the Dr. Tolotta's view of what PAR does.

[00:30:55] Speaker 00:
That's correct.

[00:30:56] Speaker 03:
Dr. Tolotto has a different view than... And isn't that his job as an expert to read the references and determine what he thinks a skilled artist would do?

[00:31:07] Speaker 00:
It is, but that should be an honest and informed opinion.

[00:31:10] Speaker 03:
And we believe that Stopler... Stop talking about this dishonesty stuff.

[00:31:13] Speaker 03:
I don't care.

[00:31:14] Speaker 03:
I'm going to accept his opinion for what it's worth, for what it's true.

[00:31:18] Speaker 03:
So address his opinion head on instead of trying to get us to ignore it.

[00:31:22] Speaker 03:
He says, in the parts we just read from the record, Stopler provides a solution for reducing PAR.

[00:31:30] Speaker 03:
He goes on to explain what a PCDA would have recognized, and then he explained what Stopler does, and he then says in the following statement, combining Stopler's phase scrambler into Shibley's transmitter would have been a relatively simple and obvious solution to reduce PAR.

[00:31:46] Speaker 03:
Why isn't that substantial evidence?

[00:31:48] Speaker 03:
Do you think something more is required that he has to support his conclusions with independent evidence from the record?

[00:31:57] Speaker 03:
Does he have to point to passages in Shively and Stapler that actually specifically talk about it?

[00:32:05] Speaker 03:
Because that seems like the old teaching suggestion and motivation test that this Supreme Court got rid of.

[00:32:11] Speaker 00:
No, Your Honor, what we're saying is that because on its face, Stoppler does not mention any PAR.

[00:32:17] Speaker 00:
Because of that, there should be some other record evidence.

[00:32:22] Speaker 00:
There must be some other substantial evidence of record that would show that one of skill in the art isn't just going to take Shively.

[00:32:27] Speaker 00:
Let's assume for a moment that Shively has a PAR problem.

[00:32:29] Speaker 03:
Isn't that what his testimony says?

[00:32:32] Speaker 00:
But his testimony is essentially he's created prior art.

[00:32:35] Speaker 00:
He's created out of whole cloth a category of prior art.

[00:32:39] Speaker 03:
He's read the two references and he says this is what a skilled artist would think about them.

[00:32:44] Speaker 00:
There is no evidence of record that any skilled artisan other than... Except his statement.

[00:32:49] Speaker 03:
Except his statement would believe that... Are you saying that expert testimony alone can't provide substantial evidence that you have to look to the teaching of a specific reference?

[00:32:57] Speaker 00:
I'm saying that expert testimony cannot take the place of prior art.

[00:33:00] Speaker 00:
And what we don't have is any prior art of record that says I am... That seems inconsistent with KSRB.

[00:33:08] Speaker 00:
So what we don't appear to have of record is any prior art that says I am going to solve

[00:33:15] Speaker 00:
a peak to average power ratio by performing phase scrambling.

[00:33:19] Speaker 00:
That is not in the record.

[00:33:20] Speaker 00:
That is specifically what the board said that they would not consider.

[00:33:23] Speaker 00:
And by the way, had we gone and considered that, there would have been all sorts of problems with those references, as we were prepared to point out.

[00:33:29] Speaker 00:
Again, that's not in the record.

[00:33:30] Speaker 00:
I'm not going to go into that.

[00:33:32] Speaker 00:
And given the time constraints the panel has today, I'm going to rest.

[00:33:38] Speaker 04:
Thank you, Your Honors.

[00:33:38] Speaker 04:
Thank you very much, Mr. McGinnis.