[00:00:00] Speaker 02:
to Delta LLC versus DISH Network, et cetera.

[00:00:06] Speaker 02:
Again, an appeal from a decision of the Patent Trial and Appeal Board.

[00:00:11] Speaker 02:
And this is the case where there is a split argument.

[00:00:14] Speaker 02:
So I got it right now.

[00:00:16] Speaker 02:
All right, Mr. Petty, you want five minutes for rebuttal?

[00:00:22] Speaker 03:
That's fine.

[00:00:22] Speaker 03:
Thank you.

[00:00:23] Speaker 02:
OK.

[00:00:27] Speaker 03:
My name is Dave Petty and I represent the appellant TQ Delta.

[00:00:32] Speaker 03:
Substantial evidence does not support the board's findings that claims 2 and 12 of the 268 patent are unpatentable over the prior ARC and the two IPRs that are at issue on this appeal.

[00:00:42] Speaker 03:
Claims 2 and 12 recite the step of maintaining synchronization with the second transceiver during the low power mode.

[00:00:49] Speaker 03:
With respect to the DISH IPR, there are three reasons to reverse the board's finding.

[00:00:54] Speaker 03:
First, the board incorrectly construed the phrase maintaining synchronization found in the claims.

[00:00:59] Speaker 03:
Second, substantial evidence does not support a finding that the art teaches that limitation.

[00:01:04] Speaker 03:
And third, the board denied TQ Delta due process by adopting an unpatentability theory that was not asserted by DISH during the IPR.

[00:01:13] Speaker 03:
So the board construed the phrase maintaining synchronization with a second transceiver during the low power mode to cover intermittent synchronization.

[00:01:20] Speaker 02:
So what's your best support in the spec for your position that that construction's wrong?

[00:01:28] Speaker 03:
Well, there is support in the spec that discusses how synchronization is maintained

[00:01:33] Speaker 03:
by a timing reference signal being continuously transmitted between the receivers.

[00:01:38] Speaker 03:
And I believe that's in the spec at APPX 190 at column 7, 18 to 20, and column 9, 8 to 10.

[00:02:04] Speaker 02:
I guess what I'm trying to figure out is where does the word continue necessarily exclude continues through periodic synchronization?

[00:02:18] Speaker 03:
Well, again, I think the term is maintaining synchronization, and that does not encompass intermittent or periodic synchronization.

[00:02:28] Speaker 03:
Intermittent synchronization means that there's no synchronization in between receipt

[00:02:34] Speaker 03:
of the signal, whereas the claim maintain synchronization requires synchronization to be kept in the existing state.

[00:02:41] Speaker 02:
Well, you know, I don't mean to make your friends argument for them, but the example that was given to the board does have some intuitive appeal that you maintain a friendship that doesn't mean you see someone every single day.

[00:02:57] Speaker 02:
You can maintain it over a period of time with periodic contact.

[00:03:01] Speaker 02:
What's your response to that?

[00:03:03] Speaker 03:
Yeah, but those periodic interactions are

[00:03:07] Speaker 03:
connected to each other.

[00:03:08] Speaker 03:
They're related to each other.

[00:03:10] Speaker 03:
So they may be periodic, but at least there's a relation to them.

[00:03:14] Speaker 03:
Intermittent synchronization, there's no connection between the receptions of the signal there.

[00:03:20] Speaker 03:
Intermittent synchronization means there's no synchronization going on between, and there's no relation between the instances of synchronization that may occur.

[00:03:28] Speaker 03:
And therefore, it's not maintained.

[00:03:29] Speaker 03:
It's not kept in an existing state.

[00:03:31] Speaker 02:
Well, you maintain your car.

[00:03:32] Speaker 02:
That doesn't mean you're constantly

[00:03:34] Speaker 02:
tinkering with it, right?

[00:03:36] Speaker 03:
Well, yeah, I think that's a perhaps a different understanding of the word maintain in the context of this technology.

[00:03:41] Speaker 03:
You're maintaining synchronization between these transceivers such that when it comes out of low power mode, they'll be able to start activated and working right away.

[00:03:49] Speaker 03:
They've maintained information between each other and that has to be kept in an existing state.

[00:03:53] Speaker 03:
It can't be intermittent such that there is no connection.

[00:03:57] Speaker 02:
So that's part of my problem.

[00:03:58] Speaker 02:
Where in your spec do you believe is the best support for the

[00:04:03] Speaker 02:
the fact that maintain means being kept in an existing state continuously.

[00:04:11] Speaker 03:
Again, the spec discusses using a timing reference signal continuously to maintain a connection between two transceivers.

[00:04:17] Speaker 03:
But we also relied on a dictionary definition of maintain and expert testimony.

[00:04:23] Speaker 03:
And all those things taken together are what support our construction of maintaining synchronization.

[00:04:29] Speaker 02:
What about the reference to the frame synchronization?

[00:04:32] Speaker 03:
The frame synchronization, that's consistent with our construction because the frames are sent at regular periods, for example, every 250 microseconds from one frame counter in one transceiver to a frame counter in a second transceiver such that they are synchronized with each other and that synchronization is maintained.

[00:04:49] Speaker 03:
It is not intermittent synchronization that's occurring with the frame transmissions.

[00:04:57] Speaker 03:
So we believe that's consistent with our understanding of what maintaining synchronization means.

[00:05:03] Speaker 03:
that it's keeping in this existing state of synchronization during the low power mode and does not encompass bursts of data that might have individual unique synchronizations that are unrelated to each other.

[00:05:13] Speaker 02:
So we have to find that the claim construction is wrong before we could agree with you, right?

[00:05:22] Speaker 03:
Yes, to find that the art does not teach the limitation correct.

[00:05:25] Speaker 02:
OK.

[00:05:27] Speaker 01:
Synchronization is not limited to any particular type of synchronization, is it?

[00:05:35] Speaker 01:
It includes timing and frame synchronization?

[00:05:39] Speaker 01:
Correct, yes.

[00:05:40] Speaker 01:
And isn't there a certain intermittent character to at least frame synchronization?

[00:05:50] Speaker 03:
Well, no, because, again, it's sent at regular periods, and each side knows what's going on on the other side.

[00:05:56] Speaker 03:
They count the frames.

[00:05:57] Speaker 03:
One side sends it and counts.

[00:05:58] Speaker 03:
The other side counts it and says, I received it.

[00:06:00] Speaker 03:
So they are maintaining synchronization because it's at regular periods continuously, again, as opposed to intermittent bursts of data that may include synchronization bits that are unique to that data packet and unrelated to previous or subsequent receipts of other data packets that might have synchronization information.

[00:06:21] Speaker 03:
Okay, go on.

[00:06:25] Speaker 03:
So moving along, so under T.Q.

[00:06:26] Speaker 03:
Delta's construction, the teachings on Morelli reference, which we're kind of referring to, upon which Dish relied to teach the limitations of claims 2 and 12, do not actually teach those limitations.

[00:06:37] Speaker 03:
Again, Morelli teaches using synchronization bits as part of data packets, and those data packets are sent intermittently or in bursts between transceivers.

[00:06:47] Speaker 03:
And the synchronization information

[00:06:49] Speaker 03:
in those data packets are unique to the data packets, such that when a data packet is received, the synchronization that occurs is unrelated to synchronization that may occur upon the receipt of other data packets.

[00:07:02] Speaker 03:
Therefore, in the Morelli system, synchronization is not maintained because there is no synchronization between receipts of different packets.

[00:07:10] Speaker 03:
And again, the packets could come at random times.

[00:07:13] Speaker 03:
Therefore, the state of synchronization of Morelli is intermittent and, in fact, is the opposite of a maintained synchronization during the low power mode.

[00:07:22] Speaker 02:
But again, the fact that there was some even admission by Dish that Morelli teaches only intermittent synchronization is only relevant if we find that maintaining synchronization doesn't cover that, right?

[00:07:36] Speaker 03:
Right, correct.

[00:07:36] Speaker 03:
If it doesn't cover intermittent synchronization, correct.

[00:07:40] Speaker 03:
Lastly, with respect to the DISH IPR, the board's finding was based on an unpatentability argument that was never made by DISH and therefore violated TQ Delta's due process.

[00:07:52] Speaker 03:
The board found that the Morelli, Bowie, and ANSI standards together teach maintaining synchronization via a periodic

[00:07:59] Speaker 03:
super-frame synchronization, as purportedly disclosed by the combination of those references.

[00:08:05] Speaker 03:
But Dishonest Petition never argued or provided any evidence that claims 2 and 12 are taught by periodic super-frame synchronization.

[00:08:12] Speaker 03:
That phrase doesn't appear in their papers.

[00:08:15] Speaker 03:
The board's finding, therefore, is unsupported by any evidence or argument in the record and therefore violated T.Q.

[00:08:21] Speaker 03:
Delta's due process rights by coming up with this finding and its final written decision.

[00:08:25] Speaker 03:
Indeed, T.Q.

[00:08:26] Speaker 03:
Delta didn't have notice of this unpatentability theory until the final written decision and didn't have an opportunity to address it.

[00:08:34] Speaker 02:
That I'm having a hard time following because DISH specifically relied on the ADSL standard in combination with Bowie and Morelli.

[00:08:42] Speaker 02:
And I don't see how you could say you weren't on notice of that argument.

[00:08:49] Speaker 03:
But for the purposes of maintaining synchronization, they relied on the synchronizing bits of Morelli and made no reference to super-frame synchronization that may be found in the other references.

[00:09:00] Speaker 03:
In fact, the only thing they relied on for the standard was to teach, I believe, the ability to send internet or video data with respect to claim one.

[00:09:09] Speaker 03:
It never was relied on with respect to claim two.

[00:09:11] Speaker 03:
So at best what they did in their paper was analogize the intermittent transmissions of the data packets in Morelli.

[00:09:21] Speaker 03:
to the way superframes are transmitted in an ADSL system.

[00:09:27] Speaker 03:
But they did not say they were relying on ADSL superframes.

[00:09:30] Speaker 04:
Wait, so they referenced that argument in their papers, but they didn't say they were relying on it?

[00:09:34] Speaker 04:
They were analogizing Morelli to that.

[00:09:36] Speaker 04:
So you know that argument was there.

[00:09:38] Speaker 04:
That's what you need for due process.

[00:09:40] Speaker 04:
You could have responded to that if you wanted to.

[00:09:43] Speaker 04:
Was there an oral argument on this?

[00:09:45] Speaker 04:
There was, yes.

[00:09:46] Speaker 04:
Did they argue that during the oral argument?

[00:09:48] Speaker 03:
I believe that was referenced.

[00:09:50] Speaker 04:
Did you get a respond?

[00:09:52] Speaker 03:
I believe so.

[00:09:52] Speaker 04:
Did you ask for a server reply because you didn't have an adequate chance to respond to an oral argument?

[00:09:57] Speaker 04:
No.

[00:09:58] Speaker 04:
Why wasn't your chance at an oral argument to respond to an analogy they specifically made in their paper sufficient for due process?

[00:10:05] Speaker 03:
Well, again, we did respond to the analogy, but then the board swapped what they were relying on for the analogy.

[00:10:14] Speaker 03:
There was never any dispute that Dish was relying on the Morelli reference and the synchronizing bits to teach the limitation of maintaining synchronization.

[00:10:23] Speaker 03:
They never said that at the oral argument or in the reply that they were switching their basis for what teaches the limitation to this periodic super-frame synchronization theory that appeared for the first time in the final written decision as the basis for finding the claims unpatentable.

[00:10:38] Speaker 01:
Let me go back quickly to the claim construction and the patent describes us frame synchronization And it's in particular talks about data frames that are being transmitted Followed by a synchronization frame correct.

[00:10:55] Speaker 01:
So the synchronization frame is not continuously sent.

[00:10:59] Speaker 03:
It's intermittently sent Well, it's it's sent continuously that is sent at a periodic interval along with periodic, but it's not continuous.

[00:11:07] Speaker 01:
It's intermittent

[00:11:09] Speaker 03:
Yes, it is transmitted you could argue intermittently, but the synchronization that it may that it creates is maintained Because it is it is related to the previous and subsequent transmissions of super frames Okay Thank you your honor May it please the court

[00:11:35] Speaker 00:
The first thing I'd like to address is the fact that we just heard that intermittent had to be related, and that's nowhere in the specification nor described anywhere in the intrinsic record whatsoever.

[00:11:47] Speaker 00:
Instead, the board's claim construction was correct.

[00:11:51] Speaker 00:
The board's claim construction said that maintaining synchronization did not exclude periodic or intermittent.

[00:11:59] Speaker 00:
And it did so because the specification, as your honors have already pointed out, specifically calls to synchronizing the frames by sending async signal

[00:12:10] Speaker 00:
at the end of a super frame.

[00:12:12] Speaker 00:
So you get 68 frames, and then the last frame, the 69th, is a super frame.

[00:12:17] Speaker 00:
Then it starts over again, and the next 69th is a separate super frame.

[00:12:21] Speaker 00:
So I don't understand the argument that they have to be related to each other, because super frame number one has one sync signal, super frame number two has another sync signal that's not related to the first.

[00:12:32] Speaker 02:
Doesn't the specs continuous reference just detect

[00:12:35] Speaker 02:
teaching how synchronization occurs through 69 imply that it's continuous?

[00:12:43] Speaker 00:
It would again know your honor because what it does is a super frame includes the 68 frames plus the 69th which is the synchronizing frame.

[00:12:53] Speaker 00:
That's to make sure that 68 have gone by where you're not necessarily synchronized and in the 69th you say hey

[00:13:00] Speaker 00:
maybe we need to synchronize again.

[00:13:02] Speaker 00:
So it's not continuous for those 68.

[00:13:04] Speaker 00:
Just like any other intermittent type of signal where you send a signal and say, make sure that we're caught up to where we were before.

[00:13:13] Speaker 00:
That's exactly how the super frames operate.

[00:13:15] Speaker 00:
And to say now that maintaining has to be continuous and not intermittent,

[00:13:22] Speaker 00:
would read out the preferred embodiment of the super frame structure which only uses the 69th frame to cause the synchronization.

[00:13:32] Speaker 00:
And so the definition that the board gave was absolutely correct.

[00:13:37] Speaker 00:
And its application of our art to that definition is supported by substantial evidence and in fact, as your honor has also pointed out,

[00:13:44] Speaker 00:
not refuted, if it's the correct construction, there is no rebuttal that there would be obviousness based on the exact combination of Morelli, Bowie, and the ANSI standards.

[00:13:57] Speaker 00:
Even if you were to find that the construction somehow excluded intermittent, there's nothing in Morelli that says that it's intermittent.

[00:14:05] Speaker 00:
And in fact, what we heard was, so long as the synchronization is maintained, it doesn't matter if the transmittal of that bit is intermittent.

[00:14:15] Speaker 00:
And that's exactly what our expert testified.

[00:14:18] Speaker 00:
They only quote the first sentence when they say that our expert agreed that the synchronization is intermittent.

[00:14:24] Speaker 00:
If you look to page Apex 4756,

[00:14:27] Speaker 00:
He's asked, is the signal in Morelli continuous or intermittent?

[00:14:32] Speaker 00:
He says it's intermittent.

[00:14:33] Speaker 00:
He then is asked, is it your understanding that synchronization is intermittent?

[00:14:37] Speaker 00:
He says, correct.

[00:14:38] Speaker 00:
But the very next question, he's asked, well, then how does that meet the claim?

[00:14:42] Speaker 00:
And the expert clarifies, you asked me if the data transmission was intermittent, not the synchronization.

[00:14:49] Speaker 00:
The synchronization is continuous during all periods of transmission.

[00:14:53] Speaker 00:
The fact that the transmission itself is intermittent is not relevant to that argument.

[00:14:57] Speaker 00:
So even if, Your Honors, changed the claim construction, the combination still meets it.

[00:15:03] Speaker 02:
What's your response to your friend's argument that you never really did rely on the ANSI standards?

[00:15:07] Speaker 00:
No, Your Honor, we absolutely did rely on the ANSI standards, and we did rely on that combination.

[00:15:14] Speaker 00:
One of the most important things, if you look in the appendix at page 454 in our reply brief below, we specifically said that we reiterated that we only rely on Morelli for its general teaching that transceivers can maintain synchronization

[00:15:30] Speaker 00:
while in low-power mode.

[00:15:32] Speaker 00:
That same page, and this is argued in the red brief at page 29, that same page of the appendix 454 confirms that the combination could receive any data with sync information like the ASTL frames, and this is in the red brief from pages 27 through 31.

[00:15:49] Speaker 00:
we absolutely indicated that the frames could be received and the frames of Bowie.

[00:15:55] Speaker 00:
Bowie itself is an ADSL system.

[00:15:58] Speaker 00:
Bowie itself therefore has to match up to the ANSI standards.

[00:16:01] Speaker 00:
ANSI says when you're sending video, you use frames for synchronization.

[00:16:05] Speaker 00:
And we actually cite the fact that the combination could either attempt to bodily incorporate Morelli or it could simply turn the transceiver on and allow Bowie to continue receiving the frames

[00:16:19] Speaker 00:
that it had previously received.

[00:16:21] Speaker 00:
And that's in the appendix at pages 232 and 233, which also cites to appendix 678, citing page 240 in the petition that says, we want to make sure that we can continue receiving Bowie's frames.

[00:16:41] Speaker 00:
Unless your honors have any other questions, I'm not sure that I have anything else.

[00:16:45] Speaker 02:
OK, thank you.

[00:16:46] Speaker 00:
Thank you, your honor.

[00:16:48] Speaker 02:
Mr. Foster, you get a little extra time if you need it.

[00:16:58] Speaker 05:
Good morning.

[00:16:58] Speaker 05:
Theo Foster for Apley Cisco Systems.

[00:17:01] Speaker 05:
Claim two recites two different transceivers.

[00:17:04] Speaker 05:
There's the transceiver recited in claim one, and then claim two introduces a second transceiver.

[00:17:10] Speaker 05:
And looking at the figure in the blue brief on page 19, which was also in the case below,

[00:17:20] Speaker 05:
The figure shows that two transceivers communicate with each other.

[00:17:24] Speaker 05:
This is rather obvious.

[00:17:25] Speaker 05:
You can't have a phone call with only one phone.

[00:17:27] Speaker 05:
You need two transceivers to communicate.

[00:17:29] Speaker 05:
One transmits, the other receives.

[00:17:30] Speaker 05:
It's a bidirectional communication link.

[00:17:32] Speaker 05:
And so the opposite direction is also possible.

[00:17:35] Speaker 05:
And as the figure shows, there can be a modem that has its receiver on and its transmitter off.

[00:17:43] Speaker 05:
And that corresponds to the situation of claim one.

[00:17:47] Speaker 05:
and claim 11, in terms of what's on and what's off.

[00:17:51] Speaker 05:
The second transceiver is the other transceiver of the figure.

[00:17:55] Speaker 05:
Its receiver is off, its transmitter is on.

[00:17:59] Speaker 05:
And this situation, combined with Yamano's teaching, is what renders obvious claim two.

[00:18:08] Speaker 02:
I just want to make sure, let's go back to the basics.

[00:18:10] Speaker 02:
Now, your petition did not argue Yamano in combination with Bowie render

[00:18:17] Speaker 02:
them obvious, right?

[00:18:19] Speaker 02:
You relied on Yamano alone for your obviousness argument.

[00:18:22] Speaker 05:
So the petition referenced the teaching of Yamano with respect to the particulars of maintaining synchronization, the maintaining synchronization limitation of claim two.

[00:18:34] Speaker 05:
Claim two's reference to doing this while in the low power mode.

[00:18:39] Speaker 05:
The low power mode was taught by the combination of Bowie and Yamano.

[00:18:43] Speaker 05:
And that in the petition.

[00:18:48] Speaker 02:
Where do you recite in the petition the combination?

[00:18:55] Speaker 05:
So in the appendix at 49.54.

[00:18:59] Speaker 05:
This is a page from the petition.

[00:19:01] Speaker 05:
It's the analysis of claim two, continuing from the previous page.

[00:19:06] Speaker 05:
And we say, as discussed above in section 1.2.2, which was part of the analysis of claim one, UMANO teaches that the transmit and receive circuitry can operate independently, which results in lower power consumption when the modem is not transmitting data.

[00:19:23] Speaker 05:
And that section 1.2.2

[00:19:29] Speaker 05:
begins on appendix page 49, 48, and it makes very clear that we relied on the combination of Bowie and Yamano for the teaching of the low power mode that's claimed in claim one, and that claim one is not at issue on this appeal.

[00:19:49] Speaker 02:
So I guess I'm confused.

[00:19:50] Speaker 02:
So you're saying that you relied on the combination for a different claim,

[00:19:55] Speaker 02:
And that we're supposed to assume that the combination is still relevant to what's at issue here?

[00:20:00] Speaker 05:
The combination is still relevant here because claim two refers to the low power mode that was introduced in claim one.

[00:20:11] Speaker 05:
And to teach that low power mode, we relied on the combination.

[00:20:17] Speaker 05:
OK.

[00:20:17] Speaker 05:
If there are no other questions, I'll cede the rest of our time.

[00:20:33] Speaker 03:
Just in response to the argument made with respect to the Cisco petition, it seems clear looking at the petition that the reliance is solely on Yamano.

[00:20:41] Speaker 03:
It repeats twice in that portion of the petition with respect to claim two, that it's the Yamano receiver being in a low power mode that meets the aspect of the claim two limitation that says maintaining synchronization during the low power mode.

[00:20:55] Speaker 03:
Going back to a couple things that were said during the discussion of the DISH IPR,

[00:21:01] Speaker 03:
The analogy you asked about maintaining a friendship is not really to maintaining synchronization.

[00:21:06] Speaker 03:
It's not really the correct analogy.

[00:21:08] Speaker 03:
The correct analogy would be more like it's analogous to meeting a first person and then later meeting a different person who has no relationship to the first person.

[00:21:16] Speaker 03:
I think that would be a more apt analogy to what's going on with the Morelli reference.

[00:21:22] Speaker 03:
And that's why I don't think the maintaining friendship

[00:21:27] Speaker 02:
uh... meeting a relationship or friendship uh... uh... uh... uh... uh... uh... uh... uh...

[00:21:44] Speaker 02:
that Bowie taught the limitations of claim one, why is that not relevant to the arguments that they're making with respect to claim two?

[00:21:52] Speaker 02:
Why wouldn't you incorporate their arguments as to claim one into the claim two analysis?

[00:21:58] Speaker 03:
Right, so the problem is they repeatedly refer to Yamano's teaching of the receiver being in a low power mode as part of their argument as to what a low power mode is was

[00:22:09] Speaker 03:
a different portion of their it was argued in a different portion of their petition but they seem to be arguing in the in what their second claim to that the low power mode language of claim to is being met by the teaching of yamano of the receiver being in a low power mold where the pole is used and that creates a another issue the whole point of the periodic pole in yamano

[00:22:28] Speaker 03:
is that it's used to coordinate with a far end transceiver when to wake up the receiver in the Aumono device that's in the low power mode to a full power mode to start receiving data.

[00:22:39] Speaker 03:
So in other words, you wouldn't use the periodic pole with a receiver that's already in a full power mode.

[00:22:44] Speaker 03:
The whole point of the pole is to tell that receiver when to wake up and go into a full power mode.

[00:22:50] Speaker 02:
The point of the Aumono was to teach the synchronization, right?

[00:22:53] Speaker 03:
Yes, in order to coordinate when the receiver should wake up out of the low power mode.

[00:22:57] Speaker 03:
And the claim requires that the receiver be in a full power mode or receiving data when the device is in the low power mode.

[00:23:06] Speaker 03:
OK.

[00:23:07] Speaker 03:
With that being said, that's all I have to say.

[00:23:10] Speaker 02:
Thank you.

[00:23:10] Speaker 02:
OK, thank you.

[00:23:11] Speaker 02:
Thank you, Your Honors.

[00:23:12] Speaker 02:
OK, the case will be submitted.