[00:00:01] Speaker 00:
No, that was well done.

[00:00:41] Speaker 01:
Our next case is active services versus microchip technology, 2019, 1537, 38, 1601, and 1603.

[00:01:06] Speaker 01:
Mr. McEwen.

[00:01:13] Speaker 04:
Thank you, honor.

[00:01:14] Speaker 04:
Good morning.

[00:01:14] Speaker 04:
May it please the court.

[00:01:16] Speaker 04:
Furakawa uses the terminology no switching to describe no re-enumeration.

[00:01:22] Speaker 04:
Distracted by this difference in terminology, the PTAD misconstrued the technical disclosure of Furakawa, compounding its error by speculating that Furakawa operated exactly opposite its technical description and exactly opposite the USP standard.

[00:01:36] Speaker 04:
This is a substantial evidence argument you're making, right?

[00:01:40] Speaker 04:
As to the 102 grounds, that's correct.

[00:01:43] Speaker 04:
OK.

[00:01:43] Speaker 04:
And the reason that there's no substantial evidence in this case is because of the fundamental misstatements of the board.

[00:01:51] Speaker 04:
And for the court to reverse on Furukawa, we only need focus really on the appendix at 37, which is the explanation of the board as to why it found no anticipation in Furukawa.

[00:02:05] Speaker 04:
And it starts out with this argument that, well,

[00:02:10] Speaker 04:
Because the words enumeration and re-enumeration are not in Furukawa, we can then make some conclusions or we can go on and speculate as to what Furukawa may be doing.

[00:02:23] Speaker 04:
So even though Furukawa said no switching, maybe Furukawa meant some switching.

[00:02:29] Speaker 04:
And then the board goes on to say that, well, perhaps what Furukawa was doing was it was just avoiding the loading and unloading of drivers.

[00:02:39] Speaker 04:
be an avoidance of some switching, and perhaps it was doing re-enumeration anyway.

[00:02:45] Speaker 04:
But we know that's incorrect.

[00:02:47] Speaker 04:
And we know it's incorrect because Furukawa explains that that's not how the standard works.

[00:02:51] Speaker 04:
The USB standard itself explains that that's not how it works.

[00:02:55] Speaker 04:
Both experts explain that that's not how it works.

[00:02:59] Speaker 04:
And in the supplemental briefing we filed on Furukawa, the attorney arguments bolded the portions of Furukawa that explains that's not how it works.

[00:03:08] Speaker 04:
And I'm talking specifically

[00:03:10] Speaker 04:
about Furukawa paragraph three, which states, the device driver for the peripheral device must be loaded, unloaded each time the switching is performed.

[00:03:22] Speaker 00:
I'm just going to tell you exactly where I am on your case.

[00:03:24] Speaker 00:
I mean, you're going to argue all day long.

[00:03:27] Speaker 00:
And the worst part for me is I agree with you.

[00:03:29] Speaker 00:
De Novo used to be an electrical engineer.

[00:03:32] Speaker 00:
This technology is old enough.

[00:03:33] Speaker 00:
I actually understand it.

[00:03:34] Speaker 00:
It's not that complicated for me.

[00:03:36] Speaker 00:
I agree with you.

[00:03:37] Speaker 00:
I'd have decided that Furukawa discloses exactly what you say it does.

[00:03:41] Speaker 00:
But under a substantial evidence standard, I can't reverse the board.

[00:03:45] Speaker 00:
And the reason I can't is they speculated that Furukawa's, it may be the controlling circuit C, which comprises of repeater hub,

[00:03:53] Speaker 00:
Controller 14 and CPUs use the stores address from the FIFA to perform a re-enumeration or reconfiguration on the device destination because a prior connected host used a different address and just different configuration.

[00:04:04] Speaker 00:
I don't think that's what it does, but they speculated that it might do that, that that might be what's going on and that might not meet the claim limitation then of no re-enumeration, no reconfiguration.

[00:04:18] Speaker 00:
I don't think that's what it's disclosing, but it might.

[00:04:21] Speaker 00:
And under the substantial evidence standard, I can't second guess them.

[00:04:25] Speaker 00:
It's not my job as an appellate judge to sit here as some expert in technology from the time that I was an electrical engineer.

[00:04:33] Speaker 00:
And so I just can't do that.

[00:04:34] Speaker 00:
So they gave a reason.

[00:04:36] Speaker 00:
I don't think it's exactly right in my reading.

[00:04:39] Speaker 00:
But they gave a reason that's not unreasonable.

[00:04:42] Speaker 00:
It's not totally crazy.

[00:04:44] Speaker 00:
And under the substantial evidence standard, I have trouble reversing.

[00:04:48] Speaker 00:
So you can see, I'm not usually this open about where I'm coming from.

[00:04:53] Speaker 00:
But this is where I am.

[00:04:55] Speaker 00:
If I were doing this as a matter of first impression, you have my vote 100 times over.

[00:04:59] Speaker 00:
But you don't on the substantial evidence standard.

[00:05:02] Speaker 00:
And so I just want you to know exactly why I am where I am and where I am.

[00:05:07] Speaker 04:
I appreciate the candid comments, your honor, but let me explain why you can reverse this case, because it's unreasonable.

[00:05:15] Speaker 04:
The statement that they're making is unreasonable, because Furukawa tells you, every time you switch, you're doing unloading and unloading of drivers.

[00:05:23] Speaker 04:
And what the board has said is, well, you might avoid the loading and unloading of drivers and still do switching.

[00:05:29] Speaker 04:
They're connected.

[00:05:30] Speaker 00:
Yeah, the switching could be on the back end, right?

[00:05:31] Speaker 00:
I mean, I'm not going to try to get as deep into the technology with you.

[00:05:36] Speaker 00:
But you've got really three layers and a buffer in between, which is storing the memory of IP addresses, for example.

[00:05:42] Speaker 00:
It could be the switching on the back end.

[00:05:44] Speaker 00:
That could be happening.

[00:05:46] Speaker 00:
It's not necessarily precluded.

[00:05:48] Speaker 00:
It could be for a commas just talking about the switching on the top end.

[00:05:51] Speaker 00:
I don't know.

[00:05:51] Speaker 00:
I don't think I would have read it that way.

[00:05:53] Speaker 00:
But the PTO raised it as a possible thing

[00:05:57] Speaker 00:
that might be happening in this reference.

[00:05:59] Speaker 00:
I can't say there's no substantial evidence for that.

[00:06:02] Speaker 04:
Well, which gets to sort of the second issue and the problem with this.

[00:06:06] Speaker 04:
It can't work that way because, as the petitioner's expert said, in which the board just completely dispatched altogether, is if you do it the way that the board contemplates, in other words, you're still doing enumeration on the back end, as you said, Judge Moore, then what's the point in Furakawa having buffers?

[00:06:23] Speaker 04:
You don't need those buffers.

[00:06:25] Speaker 04:
You're basically saying Furukawa may do it just like the prior art did it.

[00:06:29] Speaker 04:
In other words, you're doing enumeration for each connection.

[00:06:32] Speaker 04:
There's no way you can take that premise out of the decision and make any sense at all of Furukawa.

[00:06:39] Speaker 02:
Well, as I understand what the board is trying to do here, is they're trying to read the full context of Furukawa.

[00:06:47] Speaker 02:
And I think there's another way.

[00:06:53] Speaker 02:
The board could have read it, but the way it chose to read it was to say that Furukawa seems very focused on eliminating the loading and unloading of drivers.

[00:07:03] Speaker 02:
And that's one piece of the switching pie.

[00:07:07] Speaker 02:
But then when it goes on in that same paragraph to say, so we want to eliminate switching, in context, I think the board is trying to say that

[00:07:18] Speaker 02:
Furukawa is talking about the loading and unloading of drivers part of the switching.

[00:07:25] Speaker 02:
And because Furukawa doesn't go further and talk about the need or the desire to avoid re-enumeration, the board was left at a little bit of a loss to

[00:07:39] Speaker 02:
decide whether Furukawa necessarily is also avoiding any form of renumeration when it does talk about sending the addresses along.

[00:07:52] Speaker 02:
And so therefore, maybe there's a possibility that when you're doing these different addresses, there is some reconfiguration going on at the printer.

[00:08:03] Speaker 04:
But it applies that speculation, divorced from what for account tells you what it does with that address, and divorced from what the petitioner's expert said that address is for.

[00:08:14] Speaker 04:
So if I'm talking to a printer, I'm addressing it.

[00:08:17] Speaker 04:
So I want to talk to printer A. Both hosts are trying to talk to printer A. The controller looks at the address.

[00:08:23] Speaker 04:
With different addresses, right?

[00:08:25] Speaker 04:
The addresses are assigned.

[00:08:28] Speaker 04:
So there's no way you can simultaneously access the same printer if you have different addresses.

[00:08:35] Speaker 04:
And that's the problem here.

[00:08:36] Speaker 04:
You're disconnecting the way that the standard works, just to put a finer point on it.

[00:08:41] Speaker 04:
If I want to talk to a printer, I need to have the address of the printer and the printer comes back and the printer tells me, I'm an HP 2000 printer, here's my driver, load it.

[00:08:51] Speaker 04:
I can't get to that conversation if I'm not already enumerated and talking to the printer.

[00:08:56] Speaker 04:
So that's what I'm saying here, and that's what the petitioner's expert said.

[00:08:59] Speaker 04:
Compliant USB operation would require that enumeration would be done by the first host to process the detach.

[00:09:06] Speaker 04:
So there's a disconnection.

[00:09:07] Speaker 04:
This would cause the device drivers to unload.

[00:09:10] Speaker 04:
And then on the next connection or the next enumeration, when you start talking to the printer again.

[00:09:15] Speaker 00:
But that's your expert filling in a lot of stuff that's not in for a comma.

[00:09:19] Speaker 00:
And the patent office is free to not believe him, not follow it.

[00:09:25] Speaker 00:
And you can't ask us on a substantial evidence standard to overturn it.

[00:09:30] Speaker 00:
I mean, look, if I had been the fact finder, I'd have gone the other way on this.

[00:09:36] Speaker 00:
I'm not sure what they did is wrong, given this is an IPR.

[00:09:38] Speaker 00:
And you had the burden of proof by preponderance of the evidence.

[00:09:42] Speaker 00:
And they're saying there's something missing from this reference.

[00:09:45] Speaker 00:
We're just not sure.

[00:09:46] Speaker 00:
And if they're just not sure, you haven't gotten the 51%.

[00:09:50] Speaker 00:
And that's really what they said.

[00:09:52] Speaker 00:
What they didn't say is for a comma, definitely doesn't disclose this.

[00:09:55] Speaker 00:
They said, it's just not clear that it really discloses all of what would be involved in re-enumeration.

[00:10:00] Speaker 00:
And I think that's exactly what they're supposed to do in IPRs.

[00:10:04] Speaker 04:
Well, and I understand what they said, Your Honor, but that can't be reconciled with what Furakawa actually states at paragraph three.

[00:10:13] Speaker 04:
The device driver for the peripheral device must be loaded, unloaded each time the switching is performed.

[00:10:18] Speaker 04:
And the board is saying, well, maybe you can still have this benefit and still do the switching.

[00:10:24] Speaker 04:
That's not what Furakawa describes.

[00:10:28] Speaker 04:
And then it goes on to there's an additional aspect of talking about

[00:10:33] Speaker 04:
And this is in paragraph 5.

[00:10:35] Speaker 04:
Moreover, there is no overhead and having to load and unload device drivers.

[00:10:40] Speaker 04:
So, loading and unloading device drivers is one aspect of it.

[00:10:43] Speaker 04:
And then you have the switching overhead, which is the enumeration that triggers that process.

[00:10:48] Speaker 04:
There's nothing in this record where you can reasonably read what the board said and say, well, yes, it's reasonable to disconnect these two processes.

[00:10:57] Speaker 04:
The patent owner's expert said the same thing.

[00:11:00] Speaker 04:
Enumeration and configuration happened at the same time.

[00:11:02] Speaker 04:
Our expert says it, the USB standard says it, and Furakawa says it.

[00:11:07] Speaker 04:
So that's why it's unreasonable.

[00:11:09] Speaker 04:
And that's why substantial evidence is not met here on Furakawa.

[00:11:14] Speaker 04:
And then, furthermore, on top of the record, there's unchallenged testimony from our expert.

[00:11:21] Speaker 04:
He was the chair of the USB standard.

[00:11:23] Speaker 04:
He wrote the standard and hand drew the figures.

[00:11:26] Speaker 04:
He provided 20-plus paragraphs of explanation.

[00:11:29] Speaker 04:
The board simply said,

[00:11:30] Speaker 04:
There's no facts or data to support it.

[00:11:33] Speaker 04:
He was providing testimony on the scope and content of the prior art.

[00:11:37] Speaker 04:
He went through the paragraphs of Furukawa.

[00:11:39] Speaker 04:
He compared them to the patents that issued here.

[00:11:42] Speaker 04:
He referenced the standard.

[00:11:44] Speaker 04:
He described how Furukawa works.

[00:11:47] Speaker 04:
That can't be ignored.

[00:11:48] Speaker 04:
That was substantial evidence that the board nowhere discusses.

[00:11:53] Speaker 04:
And then on top of that, you look at this from what the patent owner told the patent office, which is our disclosure doesn't disclose re-enumeration or the lack of re-enumeration, but it describes simultaneous access, which is the board also identified in Furukawa.

[00:12:08] Speaker 04:
And that's good enough.

[00:12:10] Speaker 04:
So why is that good enough for the patent owner, but yet they can basically try to have it both ways and attack the prior art for having the same exact disclosure as they have?

[00:12:21] Speaker 04:
So for those reasons, I think the court can reverse on substantial evidence here, because the premise here is just factually incorrect.

[00:12:30] Speaker 04:
And that's directly contradicted by the Furr-Cowell reference, which the board was interpreting, and all of the evidence in this case, again, including the patent owner's expert, JA 3137, line 12, configuration and enumeration are part and parcel of the same process.

[00:12:48] Speaker 04:
Let me move on to

[00:12:51] Speaker 04:
the Dickens issue, unless there are any further questions on Farakawa.

[00:12:57] Speaker 04:
As to Dickens, there are a number of dependent claims in this portion of the appeal that were, we'll say, left uncovered by the Dickens grounds and the board's decision.

[00:13:08] Speaker 04:
Specifically, there are some claims that discuss coupled between, the board interpreted between as a structural limitation.

[00:13:16] Speaker 04:
This is despite the fact that the figures are described as logic diagrams.

[00:13:22] Speaker 04:
The patent owner's expert made clear that these are not circuits.

[00:13:26] Speaker 04:
Nevertheless, the board applied this narrow definition to coupled between to require some kind of physical or spatial relationship in a physical sense.

[00:13:36] Speaker 04:
There is no basis to get there, given that all of the diagrams in this patent are logical diagrams.

[00:13:46] Speaker 04:
additional dependent claims which recite ACR information.

[00:13:49] Speaker 04:
The base claims say you do not do re-enumeration, which is you don't need to go get a new address.

[00:13:55] Speaker 04:
And so another way of saying that is, well, if I don't get the new address, I must be keeping the old address and the configuration that was loaded.

[00:14:03] Speaker 04:
That's the ACR information.

[00:14:05] Speaker 04:
If you're doing one, especially keeping the address, what we've said in the petition and in the claim charts is

[00:14:12] Speaker 04:
that is maintaining that data by definition, because you're not going out and getting new data and new addresses.

[00:14:19] Speaker 01:
You're well into your rebuttal time.

[00:14:20] Speaker 01:
You can continue or save it.

[00:14:23] Speaker 04:
I will just finish up quickly with the shared USB device block and claims 23 and 25 of the 243 patent.

[00:14:30] Speaker 04:
The board made clear that they interpreted shared USB device block as a function, yet they interpreted it as a physical printer.

[00:14:37] Speaker 04:
And we believe that is reversible error.

[00:14:40] Speaker 04:
I'll reserve the remainder of my time for rebuttal.

[00:14:42] Speaker 01:
Thank you, counsel.

[00:14:43] Speaker 01:
Mr. Banner.

[00:14:50] Speaker 03:
Thank you, Your Honor.

[00:14:51] Speaker 03:
May it please the Court, Brian Banner on behalf of Microchip Technology.

[00:14:55] Speaker 03:
It's no surprise today that my colleague does not mention the main issue in this, one of the main issues in this appeal, and that is that Aptiv failed to challenge the board's finding that the furacala reference does not disclose concurrent USB connections.

[00:15:12] Speaker 03:
This was not raised in their brief.

[00:15:14] Speaker 03:
It was absolutely found by the board at appendix 111, when the board said, the petition does not sufficiently disclose concurrent connections between multiple USB hosts and the same shared USB.

[00:15:25] Speaker 03:
Is that where the board was describing its institution decision?

[00:15:28] Speaker 03:
The board, if you read that paragraph as a whole, the board discussed its institution decision.

[00:15:33] Speaker 03:
It also changed.

[00:15:34] Speaker 02:
I had a little bit of a hard time

[00:15:37] Speaker 02:
finding a statement in the board decision or either of the board decisions that said, we reiterate what we said before.

[00:15:44] Speaker 02:
Instead, it seemed to migrate over to this no re-enumeration analysis and conclusion.

[00:15:52] Speaker 03:
The way the board handled this, Your Honor, is it discussed the issue that was first at issue in the institution decision.

[00:16:00] Speaker 03:
And it said, we found that there are no concurrent USB connections.

[00:16:03] Speaker 03:
It then went on to address the new arguments that were made in the post SAS briefing, which had to do with the reconfiguration.

[00:16:11] Speaker 02:
Well, I guess I'm trying to say, isn't there a way to read the final written decision as observing what it had said in the institution decision, but then not

[00:16:23] Speaker 02:
not reaching it again, because instead it wanted to focus on no re-enumeration.

[00:16:32] Speaker 03:
I don't believe there's a way to read that, especially when you go to appendix at 118, and this is also at the appendix at 38, I believe.

[00:16:41] Speaker 03:
This is when the court is discussing the dependent claims and whether the dependent claims are rendered invalid in light of Furukawa.

[00:16:52] Speaker 03:
And the board says, and I quote, because we are not persuaded that Furukawa discloses expressly or inherently concurrent connections by multiple hosts to one peripheral device as recited in each independent base claim from which these dependent claims depend, we are also not persuaded by preponderance of the evidence that Furukawa discloses every limitation of these claims.

[00:17:13] Speaker 03:
That is unequivocal.

[00:17:14] Speaker 03:
The board absolutely confirmed what it found in its institution decision, that there are no concurrent

[00:17:19] Speaker 03:
USB connections disclosed in the Furukawa reference.

[00:17:24] Speaker 02:
Where did it say that in the claim one analysis?

[00:17:29] Speaker 02:
In the claim one analysis?

[00:17:30] Speaker 02:
Where it says, you know, we remain unpersuaded by the petitioner's arguments as to this claim limitation, as we already stated in our institution decision.

[00:17:46] Speaker 02:
It doesn't specifically say we remain unpersuaded.

[00:17:48] Speaker 02:
It doesn't say that.

[00:17:49] Speaker 02:
It says, we agree with petitioner that Furukawa is directed to solving the same problem, and then goes on and says, we're not persuaded by the argument that Furukawa necessarily discloses performing these operations without re-enumeration.

[00:18:03] Speaker 03:
Yes, I agree, Your Honor.

[00:18:04] Speaker 02:
Period.

[00:18:04] Speaker 03:
And then it moves on.

[00:18:05] Speaker 03:
I agree that that portion of the- Why don't we focus on that part?

[00:18:09] Speaker 03:
OK.

[00:18:10] Speaker 03:
So let's focus on that part.

[00:18:12] Speaker 03:
The board in discussing on this is on appendix 110 to 111, the board

[00:18:16] Speaker 03:
first started out talking about, based on the preliminary record at the time of our institution decision, said we found there were no concurrent USB connections.

[00:18:26] Speaker 03:
Then it changes tense.

[00:18:27] Speaker 02:
And the sentence said- Furukawa says no switching, right?

[00:18:31] Speaker 02:
Eliminating switching.

[00:18:32] Speaker 03:
That's correct, Your Honor.

[00:18:34] Speaker 03:
But switching is not- I don't believe that switching has anything to do with these connections.

[00:18:40] Speaker 03:
Because what Furukawa says is that there is a one-to-one connection set up between

[00:18:46] Speaker 03:
the host and a peripheral.

[00:18:48] Speaker 02:
Is there something about switching as a term of art where you can untangle different operations such that switching cannot include re-enumeration, reconfiguration?

[00:19:05] Speaker 03:
There is no evidence of record that switching includes reconfiguration or re-enumeration.

[00:19:11] Speaker 03:
Well, what about your expert's deposition testimony?

[00:19:14] Speaker 03:
He's talked about that, right?

[00:19:15] Speaker 03:
He talks about the fact that, and this is, and we don't dispute that loading and unloading of drivers, that's what Furukawa discusses as a switching operation.

[00:19:26] Speaker 03:
The loading and unloading of drivers.

[00:19:27] Speaker 02:
Well, I mean, your expert at A3137, which the other side cited, right, says when you're doing switching, you're doing exchanging enumeration and configuration.

[00:19:39] Speaker 02:
That's what your expert said.

[00:19:41] Speaker 02:
So it's something in the record.

[00:19:44] Speaker 02:
Are you not familiar with A3137?

[00:19:46] Speaker 03:
Yes, I'm familiar with that, but he wasn't talking about the switching operations of Furukawa.

[00:19:52] Speaker 02:
Right, but he was talking about basic switching in this USB art.

[00:19:57] Speaker 03:
Well, the patent certainly discloses that there were prior art switches that were known in the industry that were known, and those included switching operations.

[00:20:07] Speaker 03:
But those switches, like Furukawa, only connected one peripheral to one

[00:20:13] Speaker 03:
one host at a time.

[00:20:14] Speaker 03:
It's a one-to-one connection.

[00:20:15] Speaker 03:
And so yes, there are switching.

[00:20:17] Speaker 03:
Switching is part of that.

[00:20:19] Speaker 03:
But that is not what the patent is claiming.

[00:20:23] Speaker 03:
The patent is claiming a new way of doing this, where it doesn't have to do that kind of switching, where it doesn't have to go from a one-to-one connection to another one-to-one connection.

[00:20:33] Speaker 03:
You're talking about the patent in this case.

[00:20:35] Speaker 02:
Correct.

[00:20:35] Speaker 03:
Right.

[00:20:37] Speaker 03:
And so yes, switching is part of the prior art.

[00:20:40] Speaker 03:
And that's exactly what Furakawa is doing.

[00:20:41] Speaker 02:
So then when people in the prior art discuss how the way their system works, there's no switching.

[00:20:48] Speaker 02:
Why wouldn't that necessarily include, as your expert acknowledged, OK, so then you're not doing enumeration and reconfiguration?

[00:20:57] Speaker 03:
Because what the patentee explained was that when there was a disconnection that occurs, that is when renumeration and reconfiguration is required again.

[00:21:07] Speaker 03:
And so Furukawa talks about releasing and setting up connections each time one of the hosts wants to access a peripheral.

[00:21:14] Speaker 03:
And that's the distinction that's being made here, is that when a connection is released, that is what our expert is talking about.

[00:21:21] Speaker 03:
That requires a re-enumeration again.

[00:21:23] Speaker 03:
But what the patent is talking about is it's talking about alternating access between each host getting access to the peripheral without having to have that

[00:21:34] Speaker 03:
connection release so that re-enumeration happens.

[00:21:36] Speaker 03:
And the way it achieves that goal, it provides a multi-host USB device that has two host interfaces.

[00:21:44] Speaker 03:
It has endpoint buffers and a port for each of the hosts.

[00:21:47] Speaker 03:
And so it doesn't need to have that switching like Furukawa has, which Furukawa has a single off-the-shelf printer as its peripheral, which only has one connection.

[00:21:57] Speaker 03:
And so that is why Furukawa has to

[00:22:00] Speaker 03:
establish connections for a host that wants to access Furukawa, and then release that connection once that host is done using the printer.

[00:22:09] Speaker 03:
And that distinction that was made, that's the distinction the board made when the board found that there were no concurrent connections disclosed in Furukawa.

[00:22:19] Speaker 03:
And Aptives completely missed the point and did not challenge that fact finding on appeal.

[00:22:26] Speaker 03:
And for that reason, that reason alone,

[00:22:28] Speaker 03:
This court should affirm the board's finding below that Furukawa does not anticipate any of the claims.

[00:22:34] Speaker 03:
Now, moving on to the issue of the re-enumeration.

[00:22:39] Speaker 00:
Do you think that's true, even though Furukawa expressly says that the problem in the prior art was that you cannot use the peripheral device simultaneously, and thus you must have a switching circuit, and then they go on to say the precedent of invention was created to overcome that problem.

[00:22:55] Speaker 00:
Do you think that still the board

[00:22:58] Speaker 00:
decision about concurrent use is correct in light of Furukawa's statement of simultaneous?

[00:23:04] Speaker 03:
Yes, I do.

[00:23:05] Speaker 03:
Why is that?

[00:23:06] Speaker 03:
And the board justified it and relied on, and this is in the institution decision, but the board relied on the understanding that Furukawa's simultaneous access meant that one host could access one peripheral at the same time that another host could access a different peripheral.

[00:23:26] Speaker 03:
And so, again, that is the scenario that the board believed that Furukawa was disclosing.

[00:23:31] Speaker 03:
And that is, again, the one-to-one connection between a host and a peripheral that, when released, would require another enumeration or configuration of the peripheral vise.

[00:23:42] Speaker 00:
So when they say,

[00:23:44] Speaker 00:
The object of the present invention is to provide a USB hub that enables a peripheral device to be shared by a plurality of computers and which requires no switching operation.

[00:23:55] Speaker 00:
So you think that is a plurality of host computers sharing one printer, but it still has to be plugged and unplugged from each one individually.

[00:24:04] Speaker 00:
They can't concurrently use it.

[00:24:06] Speaker 03:
So what that's explaining is the switching operation, which is the unloading and loading of device drivers on the host.

[00:24:13] Speaker 03:
So from the host perspective, the host does not have to perform that type of switching because it believes it's connected the entire time.

[00:24:22] Speaker 03:
But as you mentioned when my colleague was arguing, that there are three different layers to Furukawa.

[00:24:29] Speaker 03:
And the enumeration and the switching is actually occurring in the middle layer, the layer that's controlling the access through the controlling circuit C that the host gets the peripheral device.

[00:24:45] Speaker 03:
Moving on to the issue of the reconfiguration, the board's finding here is supported by substantial evidence.

[00:24:54] Speaker 03:
Aptiv has not submitted any evidence or made any arguments that should unseat the board's finding that.

[00:25:00] Speaker 02:
I'm sorry.

[00:25:01] Speaker 02:
You're talking about a new issue, but you said the word reconfiguration, which I thought was the issue we'd been talking about for the past 10 minutes.

[00:25:08] Speaker 03:
Well, there are two different claim limitations that the board found missing.

[00:25:12] Speaker 03:
The first was the concurrent USB connections.

[00:25:15] Speaker 03:
The second is the lack of eliminating reconfiguration or re-enumeration.

[00:25:20] Speaker 02:
Right.

[00:25:21] Speaker 02:
And I thought that second one is the one that I've been talking about with you already.

[00:25:27] Speaker 03:
OK.

[00:25:28] Speaker 03:
I was under the impression that we were discussing the concurrent connections and the board's finding that there were no concurrent connections.

[00:25:35] Speaker 02:
That finding alone.

[00:25:36] Speaker 02:
Right.

[00:25:37] Speaker 02:
I know that's the one you want to talk about.

[00:25:39] Speaker 02:
I understand.

[00:25:41] Speaker 02:
OK.

[00:25:41] Speaker 02:
Go on.

[00:25:42] Speaker 03:
OK.

[00:25:43] Speaker 03:
The board concluded that the only switching operation overhead expressly eliminated in Furukawa is the overhead of loading and unloading device drivers on the host each time a switch is made between two hosts sharing a USB device.

[00:25:57] Speaker 03:
That's the appendix 116.

[00:25:59] Speaker 03:
This is important to know because enumeration involves a number of steps.

[00:26:06] Speaker 03:
And as a petitioner argued and conceded at appendix 224 and 225,

[00:26:11] Speaker 03:
Enumeration includes things such as identifying and assigning addresses to devices on the bus, the hosts, loading and unloading device drivers, configuring devices, which includes getting information from the device and also sending instructions to device to set their device configuration.

[00:26:31] Speaker 03:
So there are lots of processes that are involved in enumeration.

[00:26:35] Speaker 03:
Furukawa is aimed at eliminating one of those processes.

[00:26:40] Speaker 03:
the loading and unloading of devices.

[00:26:42] Speaker 03:
It doesn't concern itself with configuration or re-enumeration of the downstream device itself.

[00:26:49] Speaker 03:
It's limited to the hosts unloading and loading the drivers.

[00:26:52] Speaker 03:
And that's the basis on which the board found that Furukawa does not disclose eliminating reconfiguration.

[00:26:59] Speaker 03:
It doesn't say it eliminates reconfiguration.

[00:27:02] Speaker 03:
All it says is that it eliminates the loading and unloading of device drivers.

[00:27:06] Speaker 03:
So the board's finding is supported by substantial evidence.

[00:27:09] Speaker 00:
Did your patent say it eliminates reenumeration?

[00:27:13] Speaker 03:
Does our patent say that?

[00:27:14] Speaker 03:
Yes, it does.

[00:27:15] Speaker 00:
Is it in the spec?

[00:27:17] Speaker 03:
It's in the spec.

[00:27:17] Speaker 03:
It's in each of the claims.

[00:27:19] Speaker 00:
And what do you define reenumeration as in that spec?

[00:27:24] Speaker 03:
The specification is not specific as to what the reenumeration is.

[00:27:28] Speaker 00:
No, it links it to switching.

[00:27:29] Speaker 00:
It links re-enumeration to switching.

[00:27:32] Speaker 00:
Doesn't it link reconfiguration or re-enumeration to the switching concept?

[00:27:36] Speaker 03:
What it claims and what it describes is that the device does not have to be reconfigured when each host is alternating access.

[00:27:45] Speaker 03:
So the claims are about the device.

[00:27:47] Speaker 03:
And so when it's talking about the re-enumeration and the reconfiguration, it's talking about the types of operations that occur on the device side, such as?

[00:27:55] Speaker 00:
I had trouble reading your spec and seeing how

[00:27:59] Speaker 00:
it somehow offered this much more detailed process of what amounted to renumeration or reconfiguration than what Furukawa discloses?

[00:28:10] Speaker 03:
Certainly.

[00:28:11] Speaker 03:
And the difference between Furukawa and the specification is the fact that the specification and the claims are directed to the device.

[00:28:19] Speaker 03:
And the device eliminating having to reconfigure, such as getting the configuration information from the device, setting that information on the device,

[00:28:29] Speaker 03:
and setting addresses, et cetera, on the device so that communication can happen.

[00:28:34] Speaker 03:
Those are different parts of re-enumeration that are specific to the device.

[00:28:38] Speaker 00:
And you don't think it would have even been reasonable for the board to have read for a comma as eliminating reconfiguration in light of what it says?

[00:28:46] Speaker 03:
I think that Furukawa is silent as to the actual how it works with respect to the claims at issue here.

[00:28:55] Speaker 03:
And I think that the board weighed the evidence.

[00:28:58] Speaker 00:
When it says no switching operation, it says simultaneous use and all of that.

[00:29:03] Speaker 00:
You don't think the board could have even read it the way your opponent suggests it could have been read?

[00:29:10] Speaker 00:
His expert certainly did.

[00:29:12] Speaker 03:
His expert certainly did, but could have is not the

[00:29:16] Speaker 03:
is not the benchmark for anticipation analysis, unless we're talking about an inherent anticipation analysis which was waived below.

[00:29:24] Speaker 03:
And even under inherently.

[00:29:26] Speaker 00:
Could have certainly is.

[00:29:27] Speaker 00:
I'm talking about how could the board have read this?

[00:29:29] Speaker 00:
When this patent says simultaneous use, no switching operation, I read that as meaning no reconfiguration.

[00:29:38] Speaker 00:
So you think that is an unreasonable reading of this in light of?

[00:29:44] Speaker 03:
I think it's an unreasonable reading of it the board explained what the simultaneous access meant and that meant one host is accessing one peripheral while another thought that through you don't want to tell a judge her purview is unreasonable because all you needed to say in response to me which you're somehow missing is

[00:29:59] Speaker 00:
is that's not your standard of review, Your Honor.

[00:30:01] Speaker 00:
Your standard of review is, do you think there's no way the board could have read it that way?

[00:30:05] Speaker 00:
Not, could you have read it different?

[00:30:07] Speaker 00:
Not, could a reasonable fact finder have read it different?

[00:30:10] Speaker 00:
You've already heard me say several times over, I would have read it different.

[00:30:12] Speaker 00:
So you didn't have to go so far as to tell me my position was unreasonable.

[00:30:16] Speaker 00:
You could have stopped short of that and said, even if you're right, Your Honor, you still have to defer to the board.

[00:30:21] Speaker 00:
Just as a kind of hint for the future, I understand.

[00:30:24] Speaker 00:
You're zealously defending your client.

[00:30:25] Speaker 00:
I don't hold it against you.

[00:30:26] Speaker 02:
Unless you believe the court's views is unreasonable.

[00:30:32] Speaker 00:
I guess I didn't think of that possibility.

[00:30:35] Speaker 03:
I don't pretend to know the court's view at this point in time.

[00:30:37] Speaker 03:
And so I would not know whether or not it's unreasonable.

[00:30:40] Speaker 00:
Were you not listening?

[00:30:42] Speaker 03:
Except for in that instance, I do know that, which I would agree with.

[00:30:48] Speaker 01:
Your time has expired.

[00:30:51] Speaker 01:
We would give you two minutes for rebuttal on the cross appeal.

[00:30:55] Speaker 01:
which is all you're entitled to, if Mr. McEwen addresses it such that there's something for you to respond to.

[00:31:02] Speaker 01:
If not, then your time is expired.

[00:31:06] Speaker 03:
OK.

[00:31:07] Speaker 03:
So do I have one more minute, Your Honor?

[00:31:09] Speaker 01:
No, your time is expired.

[00:31:10] Speaker 03:
OK, thank you.

[00:31:11] Speaker 01:
You're a minute over, not a minute under.

[00:31:19] Speaker 04:
Thank you, your honor.

[00:31:20] Speaker 04:
Just to get quickly to the waiver issue, this is the appendix of 35.

[00:31:24] Speaker 04:
The board credited the petitioner's reply at page 6, which interestingly enough also cites 2 paragraph 3 of Farrakhal, which I spent most of my time on in the opening, which gets us back to this question of substantial evidence and how can it be reasonable for the board to construe Farrakhal, which says that it does no switching, to in fact do some switching.

[00:31:48] Speaker 00:
Well, where did you dispute the concurrent connections?

[00:31:52] Speaker 00:
Is that a separate claim limitation?

[00:31:55] Speaker 00:
If I read the board's opinion as having reaffirmed what they said in the institution decision on concurrent connections, did you really address that?

[00:32:05] Speaker 04:
Well, yes, and we did so for the same reason that the patent owner represented to the Patent Office, because if you show a lack of renumeration, you're showing shared connections and vice versa, which is what you raised earlier.

[00:32:17] Speaker 00:
Do you think it was embedded within your argument on no reconfiguration, even though you didn't sort of separately call it out?

[00:32:24] Speaker 04:
Yes.

[00:32:25] Speaker 04:
And you can look at the record here.

[00:32:27] Speaker 04:
No one argued that there was a difference in meaning between enumeration and reconfiguration, even though the claims say A and B. And the reason that there's no argument there is because, as I've been saying all along, they're linked.

[00:32:37] Speaker 04:
If you do one, you do the other.

[00:32:39] Speaker 04:
So there's no point in arguing.

[00:32:40] Speaker 04:
And there's certainly no point in highlighting that, well, configuration means something very specific.

[00:32:45] Speaker 04:
And it's kicked off by enumeration, because then the House of Cards unravels that that's not the way furikawa works.

[00:32:51] Speaker 04:
And furikawa specifically states

[00:32:53] Speaker 04:
that you can't possibly load and unload drivers unless you're also doing the switching, which the board is speculating is somehow done.

[00:33:03] Speaker 04:
There's no further questions.

[00:33:04] Speaker 01:
Thank you, counsel.

[00:33:05] Speaker 01:
The case is submitted.