[00:00:00] Speaker 03:
Okay, our last case of the day is ATI Technologies ULC versus ARM L. LTD, ARM, Inc.

[00:00:11] Speaker 03:
Cases number 2019 through 91, 2092 through 2094.

[00:00:18] Speaker 03:
Mr. Mooner, are you ready for argument?

[00:00:22] Speaker 03:
I am, Your Honor.

[00:00:24] Speaker 03:
You may proceed.

[00:00:26] Speaker 04:
Thank you, Your Honor.

[00:00:27] Speaker 04:
May it please the Court

[00:00:28] Speaker 04:
I'm William Union on behalf of ATI Technologies.

[00:00:32] Speaker 04:
And the PTAB's unpatentability decision should be reversed, because one, there was an admitted special definition that controlled claim construction in this matter that required a process called texture-aggress shading.

[00:00:48] Speaker 04:
And two, it's indisputable and indisputed that no grounds in any of the petitions ever even alleged

[00:00:56] Speaker 04:
the presence in the prior art of this required text or address shading process.

[00:01:02] Speaker 04:
For those two reasons alone, the correct claim construction in the absence of any grounds alleging unpatentability under that correct claim construction reversal is required here.

[00:01:14] Speaker 04:
Now, as you can tell from our brief, there's a host of other problems.

[00:01:17] Speaker 03:
Council, before you go any further, let me just clarify something.

[00:01:22] Speaker 03:
You don't dispute that the claim construction standard here is broadest reasonable interpretation, correct?

[00:01:29] Speaker 04:
That's correct, Your Honor.

[00:01:30] Speaker 03:
Okay.

[00:01:31] Speaker 03:
I just want to be clear on that.

[00:01:33] Speaker 03:
Thank you.

[00:01:34] Speaker 01:
Thank you.

[00:01:35] Speaker 01:
Council, this is Judge Stoll.

[00:01:37] Speaker 01:
I have a question for you, too.

[00:01:39] Speaker 01:
I just want to...

[00:01:40] Speaker 01:
I want to know exactly what it is you challenge with respect to the board's construction.

[00:01:44] Speaker 01:
Is it fair to say that your complaint focuses on whether the unified shader must perform texture address shading?

[00:01:53] Speaker 04:
That's it exactly, Your Honor.

[00:01:57] Speaker 01:
OK.

[00:01:58] Speaker 01:
And so your appeal really is limited to that issue in terms of that construction.

[00:02:06] Speaker 01:
I mean, in looking at that one plain term,

[00:02:09] Speaker 01:
That's really what we should be focusing on, is that question, is does that claim term require texture address shading?

[00:02:17] Speaker 04:
Yes, with regards to what's the correct construction of unified shader, the issue presented is whether texture address shading is a requirement of that shading unit.

[00:02:27] Speaker 04:
OK, thank you.

[00:02:29] Speaker 04:
Thank you.

[00:02:30] Speaker 04:
So I'm going to actually focus on that claim construction and the effect it has on the board's decision.

[00:02:37] Speaker 04:
And just to start with the very basics, because to be honest with you, this was missing from the board's analysis, any statement of what the correct claim construction analysis should be and the law that it needs to require.

[00:02:50] Speaker 04:
So the role on the same page is whether it's the broadest reasonable interpretation or whether it's the Phillips standard, it doesn't matter if the patentee specially defines a claim term, that definition is controlled.

[00:03:02] Speaker 04:
It doesn't matter that it's the broadest reasonable instruction.

[00:03:05] Speaker 04:
Now, the construction we have proposed here as the correct construction is a shading unit that performs both pixel color shading and texture address shading.

[00:03:15] Speaker 04:
That's our construction of the unified shader.

[00:03:18] Speaker 04:
And the 506 patent specially defines the clammed unified shader as exactly that.

[00:03:24] Speaker 04:
And I'll focus, as your honor has mentioned, on the fact that it requires, the special definition requires, texture address shading.

[00:03:33] Speaker 04:
The patent specifically says, I'm quoting from appendix 159 at column 6, line 50 through 55.

[00:03:41] Speaker 04:
This is from the patent.

[00:03:42] Speaker 04:
A unified shader is so named because the functions of a traditional color shader and a traditional texture address shader are combined into a single unified shader.

[00:03:54] Speaker 04:
The unified shader, again, this is still the patent defining unified shader, performs both color shading and texture address shader.

[00:04:02] Speaker 01:
What about that sentence, this is Judge Stoll again, what about that sentence that's just a little couple, like two sentences down and it says, in this way, any operation, be it for color shading or texture shading, may loop back into the shader and be combined with any other operation.

[00:04:21] Speaker 01:
Why isn't that reference to texture shading broadening out what the unified shader is?

[00:04:29] Speaker 04:
Because texture address shading is something that's specifically different from texture shading, but it's a process that can be used in texture shading.

[00:04:42] Speaker 04:
And if you look at the 506 pattern at column 10, starting at about line 4, and it goes through this entire column, it describes an embodiment of this unified shader.

[00:04:55] Speaker 04:
And it's really describing three different things that it can do, one,

[00:05:00] Speaker 04:
it's going to receive rasterized values from a rasterizer.

[00:05:06] Speaker 04:
Those are going to be the color information and texture address for a particular pixel.

[00:05:12] Speaker 04:
And it's going to store those.

[00:05:14] Speaker 04:
And then what happens, this is on line seven of kernel intent.

[00:05:20] Speaker 04:
It reads up to three source operands from the memory and executes a shader instruction.

[00:05:26] Speaker 04:
What it's describing there is shading

[00:05:30] Speaker 04:
a modification that's occurring that's happening to either the color information or that texture address information.

[00:05:39] Speaker 04:
And if you go below in column 10 at line 50, and again, this is on appendix 161, starting at about line 50 in column 10, the patent continues to describe exactly what's going on here, which is the initial rasterized texture address information.

[00:05:57] Speaker 04:
that the unified shader gets from the rasterizer is going to cycle through this unified shader a number of times.

[00:06:08] Speaker 04:
And it's talking about indirection levels here.

[00:06:10] Speaker 04:
An indirection level of 0 means that the texture address hasn't gone through and been shaded yet, hasn't gone through this loop.

[00:06:19] Speaker 04:
But it goes on to say, if the indirection level is 1, that means it's no longer the texture address

[00:06:27] Speaker 04:
that was received from the rasterizer that the unified shader is using, it's the texture address as modified in loop one.

[00:06:36] Speaker 04:
And then if it loops through again, the texture address is even further removed from that initial texture address that was received from the rasterizer.

[00:06:46] Speaker 04:
And then once all of that texture address shading is done, however many steps, however many operations, however many source operands,

[00:06:55] Speaker 04:
are applied to that texture address.

[00:06:57] Speaker 04:
Once that looping is done, then the resulting texture address is used to make a texture fetch.

[00:07:06] Speaker 04:
It's used to return a texture value.

[00:07:08] Speaker 04:
That's steps five and six at the top of column 10.

[00:07:13] Speaker 04:
So the texture address shading is used to produce the texture address, the modified texture address that gets used in texture shading.

[00:07:24] Speaker 04:
And that's what that language of the specification you mentioned, Your Honor, is talking about.

[00:07:29] Speaker 01:
So this one point, this is Judge Soule again, just one point of clarification.

[00:07:36] Speaker 01:
Was this material here that you've been referring to in column 10, was that in the specification as originally filed?

[00:07:47] Speaker 04:
I believe so, Your Honor.

[00:07:51] Speaker 04:
say 100% one way or another, but it hasn't been challenged as not being part, properly part of this specification.

[00:07:57] Speaker 04:
And in fact, the board explicitly relied on the language I was just talking about when construing unified shader.

[00:08:07] Speaker 04:
In other words, it's not, I'm not referring to the 133 patent right now that the board had determined

[00:08:16] Speaker 04:
was not incorporated by reference.

[00:08:19] Speaker 04:
This is actually column 10 of the 506 path.

[00:08:21] Speaker 01:
I'm looking at column 10.

[00:08:23] Speaker 04:
I see it.

[00:08:23] Speaker 04:
Thank you.

[00:08:25] Speaker 04:
Sure.

[00:08:26] Speaker 04:
And so to return to the special definition, it's an admitted special definition.

[00:08:31] Speaker 04:
The petitioners themselves in the petitions and in subsequent replies said themselves, for example, appendix page 181 is in one of the petitions and appendix 575 is one of the reply briefs.

[00:08:45] Speaker 04:
This is a quote that the 506 patent quote gives the term, referring to unified shader, quote, a definition unique to that patent, and then identifies that special definition as, quote, the 506 patent defines.

[00:09:00] Speaker 04:
And this is the petitioner.

[00:09:02] Speaker 04:
This is in the petition.

[00:09:04] Speaker 04:
The 506 patent defines a unified shader to mean a shading unit that performs both color shading and texture address shading.

[00:09:14] Speaker 04:
That's the petitioner saying there's a special definition.

[00:09:17] Speaker 04:
Excuse me.

[00:09:18] Speaker 04:
The experts confirmed there was such a special definition.

[00:09:22] Speaker 04:
Dr. Feister, petitioner's expert, said that in his deco... Excuse me.

[00:09:35] Speaker 04:
Dr. Feister said, excuse me, in his declaration, for example, but also in his testimony, his declaration appendix

[00:09:43] Speaker 04:
5206, paragraph 38.

[00:09:46] Speaker 04:
He's talking about the fact that unified shader does have an ordinary meaning.

[00:09:51] Speaker 04:
But then he goes on to say, quote, the 506 patent, however, clearly does not use the term in this way.

[00:09:58] Speaker 04:
It's not using it in its ordinary meaning.

[00:10:01] Speaker 04:
And he goes on to say, clearly, it instead, quote, gives the term a definition unique to the patent.

[00:10:08] Speaker 04:
I, Dr. Feister, their expert,

[00:10:11] Speaker 04:
apply the 506 patent's definition of unified shader for purposes of this opinion in this declaration.

[00:10:19] Speaker 04:
And what is that definition?

[00:10:20] Speaker 04:
It's exactly what I just said.

[00:10:22] Speaker 04:
The 506 patent defines a unified shader to mean a shading unit that performs both pixel color shading and texture address shading.

[00:10:32] Speaker 04:
There was never any dispute that there was a special definition here.

[00:10:36] Speaker 04:
The board didn't dispute there was a special definition here.

[00:10:39] Speaker 04:
It just declined to apply it for its own reasons.

[00:10:44] Speaker 04:
In the final written decision and in the institution decision, in both of those, the board acknowledged that the ordinary meaning did not apply, excuse me, the ordinary meaning of unified shader did not apply here and that the board was not going to apply it here.

[00:11:02] Speaker 04:
For example, in the institution at appendix 348, it said, we, the board,

[00:11:09] Speaker 04:
are not persuaded that the term unified shader has a plain and ordinary meaning.

[00:11:15] Speaker 04:
And again, in the final written decision, Appendix 10, we could not determine an ordinary and customary meaning of the term unified shader.

[00:11:26] Speaker 04:
The board didn't apply any ordinary meaning.

[00:11:30] Speaker 04:
It didn't apply the special definition.

[00:11:36] Speaker 03:
So the board...

[00:11:40] Speaker 04:
So I'll pause there right now and reserve the rest of my time, please.

[00:11:47] Speaker ?:
OK.

[00:11:48] Speaker 03:
Thank you.

[00:11:51] Speaker 03:
Let's hear from Mr. Anderson now.

[00:11:55] Speaker 00:
Yes, thank you, Your Honor.

[00:11:56] Speaker 00:
Kevin Anderson on behalf of Appellate Orm.

[00:12:01] Speaker 00:
What I'd like to start with is that this discussion of texture address shading

[00:12:07] Speaker 00:
Whether it's called texture address shading or texture coordinate shading, the board did a thorough and exhaustive analysis of it.

[00:12:15] Speaker 00:
And in their reply brief, and seemingly here implicitly, federal argument, they are driving a distinction between texture address shading and texture coordinate shading.

[00:12:29] Speaker 00:
And I need to clear that up in their opening brief on page 10.

[00:12:35] Speaker 00:
They said that text, and this is a quote, texture address shading, also known as texture coordinate shading.

[00:12:43] Speaker 00:
And then if we look at their positions actually below the board, they repeatedly said that the claims should be construed for texture coordinate shading.

[00:12:55] Speaker 00:
So in the, for example, on appendix page 1834, which is the patent owner's response,

[00:13:04] Speaker 00:
This is a quote.

[00:13:06] Speaker 00:
API proposes that the unified shader be construed as a single shader surface that can perform both color shading and texture coordinate shading.

[00:13:16] Speaker 00:
And on that same page, they said, because texture address shading and texture coordinate shading are admittedly equivalent, that's the reason they should be construed.

[00:13:28] Speaker 00:
So to see their reply brief and to hear their argument today,

[00:13:33] Speaker 00:
It's very confusing because the case below was always mitigated, at least by them, and understood by everybody that texture address shading is the same as texture coordinate shading.

[00:13:48] Speaker 00:
In fact, I started to count.

[00:13:49] Speaker 00:
It's in every brief.

[00:13:51] Speaker 00:
And I started to count the appendix places where this was stated to be the same.

[00:13:56] Speaker 00:
And I stopped at over 100.

[00:13:59] Speaker 00:
There's no doubt that texture address shading and texture coordinate shading

[00:14:04] Speaker 00:
were stated by everyone to be the same.

[00:14:09] Speaker 00:
So it's unsurprising that the board's analysis primarily used the term texture coordinate shading.

[00:14:18] Speaker 00:
If one looks at the board's claim construction analysis, and they did two, the board did a very yeoman's job here.

[00:14:25] Speaker 00:
They did two very lengthy and detailed analysis of this unified shader construction.

[00:14:32] Speaker 00:
One in the institution,

[00:14:34] Speaker 00:
and one in the final written decision.

[00:14:36] Speaker 00:
And they copied, obviously, those analyses were copied between the two petitions.

[00:14:43] Speaker 00:
But if one looks at... Apologies.

[00:14:47] Speaker 02:
Sorry to interrupt.

[00:14:48] Speaker 02:
It appears that one of the judges has dropped from the call.

[00:14:53] Speaker 02:
We'll pause the recording and the clock.

[00:14:55] Speaker 02:
Please bear with me.

[00:14:57] Speaker 03:
Mr. Anderson, please continue.

[00:14:59] Speaker 03:
And you won't be docked for this time that we spent offline, okay?

[00:15:03] Speaker 03:
Thank you, Your Honor.

[00:15:04] Speaker 00:
Yes, thank you, Your Honor.

[00:15:07] Speaker 00:
On this issue of texture address shading, the board extensively analyzed this and I would direct the court to the appendix at page 25 to 28, actually ending at appendix page 29.

[00:15:22] Speaker 00:
And the board started as one must with the specific language of the claim.

[00:15:28] Speaker 00:
And the specific language of the claim is texture shading.

[00:15:32] Speaker 00:
Then the board did an analysis where it discussed both parties' reference to the texture address shading in the specification.

[00:15:43] Speaker 00:
It analyzed all the different terminology here.

[00:15:49] Speaker 00:
On the bottom of page, Appendix 25, the board accurately notes that, quote, the 506 patent does not define

[00:15:59] Speaker 00:
texture shading, texture address shading, or texture coordinate shading.

[00:16:04] Speaker 00:
And that's true.

[00:16:05] Speaker 00:
And frankly, I don't even know at this point what petitioners or what patent owners trying to say texture address shading means.

[00:16:14] Speaker 00:
But the board then went on and analyzed all of these terms and ultimately concluded that regardless of what these terms mean, here's what's required by the claim.

[00:16:27] Speaker 00:
they don't identify any analysis that's incorrect with that.

[00:16:33] Speaker 00:
This was the fight that happened below.

[00:16:37] Speaker 00:
One can look at any of their briefs and see that the board addressed this fight on plane destruction about texture coordinate shading.

[00:16:47] Speaker 00:
And so it's unsurprising that the board went on and it had multiple holdings

[00:16:56] Speaker 00:
of invalidity.

[00:16:57] Speaker 00:
The first holding was under the board's construction.

[00:17:02] Speaker 00:
And these territorial arguments, they made no challenge to that.

[00:17:06] Speaker 00:
And the board had multiple alternative holdings, even under ATI's construction.

[00:17:15] Speaker 00:
Now, admittedly, the board characterized those alternative holdings under the term texture coordinate shading.

[00:17:23] Speaker 00:
But that's because ATI said,

[00:17:26] Speaker 00:
thousand times below, just as they said on page 10 of their opening brief here, that texture address shading and texture coordinate shading are the same thing.

[00:17:36] Speaker 00:
And on page 32 of the red brief, we detailed the citations, page 32 and 33, and then later in our brief, we detailed the citations where the board has alternate holdings, even under API claim construction.

[00:17:55] Speaker 00:
And the reply brief doesn't really challenge or even acknowledge those holdings.

[00:18:01] Speaker 00:
But the board did extensive analysis here, both under their own construction and API's alternative construction.

[00:18:13] Speaker 00:
I know there's a plethora of arguments raised in the briefing.

[00:18:21] Speaker 00:
I'm happy to address any questions that the court might have or to continue on.

[00:18:30] Speaker 00:
I'll pause for a second to allow if there's any questions on other issues and then I'll continue.

[00:18:37] Speaker 00:
Okay.

[00:18:37] Speaker 00:
So on the specific issue of the claims instruction, with HCI below stating that texture address shading is exactly the same as texture coordinate shading,

[00:18:51] Speaker 00:
the board properly did an analysis of texture coordinate shading and determined on the motion to amend that the specification of the 506 patent doesn't even support that construction.

[00:19:07] Speaker 00:
And that was something that didn't even get appealed.

[00:19:10] Speaker 00:
That was the written description issue.

[00:19:12] Speaker 00:
We described it in our briefing.

[00:19:16] Speaker 00:
So it's best I can tell what HCI is asking this court to do

[00:19:21] Speaker 00:
is to Sue Espante provide a claim construction of texture address shading or texture coordinate shading that the board below said no one knows what it means and they don't identify what it means on appeal and the board said was not supported by written description.

[00:19:42] Speaker 00:
That would be an unusual outcome here on appeal.

[00:19:51] Speaker 00:
We don't think that's proper.

[00:19:52] Speaker 00:
And the actual analysis by the board where it went through every portion of the specification and the argument is correct.

[00:20:04] Speaker 00:
And you don't hear any specific challenge either.

[00:20:09] Speaker 00:
You don't see it in the briefs.

[00:20:11] Speaker 00:
You don't hear on oral argument today saying this portion of what the board said was incorrect.

[00:20:18] Speaker 00:
They just don't like the ultimate outcome.

[00:20:20] Speaker 00:
But that's not liking the ultimate outcome does not mean there's error in that outcome.

[00:20:27] Speaker 00:
One would think that certainly under a broadest reasonable interpretation that the board's extensive analysis is more than thorough enough.

[00:20:38] Speaker 00:
And if there's something to actually complain about, we would hear it.

[00:20:42] Speaker 00:
Unless the court has any further questions on any of the issues,

[00:20:47] Speaker 00:
We'll stand on our briefing and the very thorough and detailed job that the board did below.

[00:20:55] Speaker 03:
OK.

[00:20:55] Speaker 03:
We thank you, Mr. Anderson, for your arguments.

[00:20:59] Speaker 03:
We thank the parties for their say no.

[00:21:02] Speaker 03:
We've got to hear from Mr. Mooner.

[00:21:04] Speaker 03:
Yes.

[00:21:05] Speaker 03:
Thank you, Your Honor.

[00:21:07] Speaker 04:
So the argument I just heard, I'll confess, has little relationship to the arguments that are in the briefs and the arguments

[00:21:17] Speaker 04:
and positions that are in the final written decision.

[00:21:19] Speaker 04:
So I'd like to focus on a few of those.

[00:21:21] Speaker 04:
The notion that we're somehow making a distinction between text or coordinate shading and text or address shading is not correct.

[00:21:29] Speaker 04:
Text or address shading and text or coordinate shading are the same thing.

[00:21:34] Speaker 04:
It's armed.

[00:21:35] Speaker 04:
It's the petitioner who tried to argue that those were different things.

[00:21:40] Speaker 04:
And they do mean the same thing.

[00:21:42] Speaker 04:
Text or coordinate and text or address agreed mean the same thing.

[00:21:46] Speaker 04:
Texture address shading, texture coordinate shading, agree, mean the same thing.

[00:21:50] Speaker 04:
They are the modification of a texture address that's been received from the rasterizer.

[00:21:57] Speaker 04:
A modification of the texture address, texture coordinate, whatever you want to call it, that's been received from the rasterizer.

[00:22:05] Speaker 04:
They mentioned in our brief below, appendix 409, we specifically say that it's texture address shading.

[00:22:13] Speaker 04:
is our construction.

[00:22:14] Speaker 04:
We go on to say the ITC has already agreed that in the 133 patent, which talks about texture coordinate shading, and in the 506 patent, the patent is the issue here.

[00:22:25] Speaker 04:
506 uses texture address shading.

[00:22:28] Speaker 04:
133 uses texture coordinate shading.

[00:22:31] Speaker 04:
They mean the same thing.

[00:22:33] Speaker 04:
So our point was ITC's already said, yes, use texture coordinate shading.

[00:22:38] Speaker 04:
Board, you should do the same.

[00:22:39] Speaker 04:
But it doesn't matter.

[00:22:40] Speaker 04:
Whether you look at the 133 or not,

[00:22:42] Speaker 04:
The 506 says, it's got to do text or address shading.

[00:22:46] Speaker 04:
What we didn't just hear from ARM right now, and that's not in their briefs, is any argument or any explanation as to how they admitted that text or address shading is the special definition here, but it's somehow not proper to use it.

[00:23:05] Speaker 04:
We didn't hear anything from ARM about text or address shading

[00:23:09] Speaker 04:
being alleged in any of the grounds in the petitions.

[00:23:11] Speaker 04:
You didn't hear that, because they didn't.

[00:23:13] Speaker 04:
And under SAS, because of that, they lose.

[00:23:17] Speaker 04:
Reversal is required here.

[00:23:19] Speaker 04:
They admit that texture address shading is required.

[00:23:23] Speaker 04:
They admit that texture address shading and texture coordinate shading are the same thing.

[00:23:27] Speaker 04:
It's the modification of a texture address.

[00:23:30] Speaker 04:
It's not texture shading, a completely different concept, which is what they argue in their petition, the unified shader does.

[00:23:37] Speaker 04:
It's texture address shading.

[00:23:39] Speaker 04:
It's missing from the petition.

[00:23:42] Speaker 04:
Because it's missing from the petition, the board could not have found that Arm and petitioners had met their burden of proof on proving that there was a unified shader here.

[00:23:54] Speaker 04:
They can't do it.

[00:23:54] Speaker 04:
They would be in violation of SAS.

[00:23:59] Speaker 04:
Are there any questions, Your Honors?

[00:24:04] Speaker 03:
It appears not, Mr. Mayor.

[00:24:06] Speaker 03:
So we thank you for your argument.

[00:24:09] Speaker 03:
Thank you very much.

[00:24:11] Speaker 03:
This case stands to move.

[00:24:16] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.