[00:00:02] Speaker 01:
The next two cases which have been consolidated for argument are 19-1152 and 19-1154, Colavo, Innovations versus Sony.

[00:00:15] Speaker 01:
Anyone over here, sir?

[00:00:25] Speaker 02:
Good morning, may it please the court.

[00:00:27] Speaker 02:
A wall is not a set of stairs, and a wall is not a pergola.

[00:00:33] Speaker 02:
Yet, under the board's construction of the term reflecting walls, both of those structures would qualify.

[00:00:39] Speaker 02:
That's inconsistent with the plain and ordinary meaning of a wall that we all understand.

[00:00:44] Speaker 01:
Did you ask the board for construction?

[00:00:47] Speaker 02:
We did.

[00:00:47] Speaker 02:
During the oral argument, we made it very clear that we were asking for a construction and that the arguments raised by petitioner were inconsistent with the plain and ordinary understanding of the word reflecting wall.

[00:01:01] Speaker 01:
Well, what I have from JA 1462, so maybe there's another site not looking at,

[00:01:10] Speaker 01:
One of the APJs said, no, when you realized that our construction was incorrect, did you alert us to the problem?

[00:01:18] Speaker 01:
And somebody said, Your Honor, no, we did not.

[00:01:20] Speaker 01:
It's not in the record.

[00:01:22] Speaker 01:
So where's the preservation in the record?

[00:01:25] Speaker 02:
Well, we argued, and we may not have put a heading in our Patent Owner Response, we dispute the claim construction of the board, but that's not required under this Court's precedent to challenge a claim construction.

[00:01:38] Speaker 02:
We challenge the application of

[00:01:42] Speaker 02:
the board.

[00:01:43] Speaker 02:
We challenged that construction in the application of the art onto the claims and argued that the prior art did not disclose a reflecting wall.

[00:01:55] Speaker 02:
It didn't disclose a wall at all and didn't disclose one that met

[00:02:00] Speaker 02:
the purpose of the patents, which is to reflect oblique light onto a photodiode.

[00:02:08] Speaker 02:
At the oral hearing, we said plain and ordinary meaning, but we didn't have an opportunity to

[00:02:17] Speaker 02:
really spell out our construction.

[00:02:20] Speaker 02:
We requested additional briefing before the board at the oral hearing, and that ended up getting denied.

[00:02:28] Speaker 02:
But look, our arguments on appeal are absolutely consistent with our arguments below.

[00:02:33] Speaker 02:
And that's really what's required under this court's precedent to preserve an issue.

[00:02:37] Speaker 02:
This is a purely legal issue.

[00:02:40] Speaker 02:
This is one where

[00:02:43] Speaker 02:
The briefing was, look, Sony was on notice that we challenged the construction.

[00:02:47] Speaker 02:
They admitted in their reply brief below that we were challenging the board's construction.

[00:02:53] Speaker 02:
So this isn't like a notice issue.

[00:02:55] Speaker 02:
They knew we were challenging it.

[00:02:57] Speaker 02:
And they in fact had a whole section of their brief saying the board's construction is correct.

[00:03:01] Speaker 02:
Colabo is not applying it right.

[00:03:03] Speaker 02:
And then we made it clear at the oral hearing, yes, Sony got it right.

[00:03:07] Speaker 02:
We are challenging the construction.

[00:03:09] Speaker 02:
So just because we didn't propose a particular construction, just because we didn't put it in a heading, that's not waiver.

[00:03:16] Speaker 02:
And this court found in the entertainer case, in nearly exact circumstances, where the patent owner

[00:03:24] Speaker 02:
even said, as we unfortunately did below, it suggested that we were applying the board's construction in the patent owner's response, even where that happened and the construction ended up being challenged within the distinguishing of the prior art that this court would consider

[00:03:46] Speaker 02:
that claim construction argument on appeal.

[00:03:49] Speaker 01:
Well, at some point early on, you said for the purpose, you didn't just sort of acquiesce by saying nothing.

[00:03:56] Speaker 01:
You said you're applying the board's construction for your analysis.

[00:04:00] Speaker 01:
You were explicit that you're reserving the right to challenge it in another proceeding, but not in this proceeding, misstating the record.

[00:04:08] Speaker 02:
Absolutely not.

[00:04:09] Speaker 02:
But that statement is unfortunate.

[00:04:12] Speaker 02:
Well, it's unfortunate.

[00:04:14] Speaker 02:
It contradicts what we actually argued later on in the Patanona response within our arguments distinguishing the prior art.

[00:04:21] Speaker 02:
And in fact, in both proceedings below, both of these IPRs were on the same track

[00:04:30] Speaker 02:
And in the second IPR, the 115-4, the one below, we actually said in our Patanona response that the board's construction was overbroad.

[00:04:40] Speaker 02:
So we said right there, this construction's overbroad.

[00:04:43] Speaker 02:
We might not have said that in both responses, but I'm not sure why.

[00:04:48] Speaker 02:
I think there was some mix-up.

[00:04:49] Speaker 02:
But we certainly made the same arguments about the prior art not disclosing or reflecting any wall as a person would understand it to be.

[00:04:59] Speaker 01:
You want to move on to the trapezoid issue?

[00:05:02] Speaker 01:
Certainly.

[00:05:03] Speaker 01:
And there are only a few claims that are affected by that second argument, right?

[00:05:07] Speaker 02:
That's right, 3 and 12.

[00:05:10] Speaker 02:
Yes.

[00:05:11] Speaker 02:
So claims 3 and 12 require that the cross section of the reflecting wall is a trapezoid with an upper base that is longer than the lower base.

[00:05:22] Speaker 02:
Sony pointed to a cup-shaped structure disclosed in a prior art reference called Ave.

[00:05:27] Speaker 02:
This cup-shaped structure doesn't have an upper base.

[00:05:33] Speaker 02:
A cross-section of a cup only has three sides, and under the board's own definition of a trapezoid, and I don't think it's under dispute, trapezoid is a quadrilateral having four sides.

[00:05:44] Speaker 02:
It doesn't have three sides.

[00:05:45] Speaker 02:
So Sony

[00:05:47] Speaker 02:
in its original petition, drew a trapezoid over the cup and said, aha, this must be a trapezoid because we can draw over it.

[00:05:56] Speaker 03:
Well, that- It filled in a structure that was drawn in Abbey itself.

[00:06:00] Speaker 03:
There's a line in Abbey that goes across the top, just short of the extended arms, right?

[00:06:07] Speaker 03:
Yes, but that filling- They filled in the gap with the transparent insulation material.

[00:06:16] Speaker 02:
in their annotation they did, but they didn't argue that in their petition.

[00:06:21] Speaker 02:
They didn't say in their argument that... Well, their petition showed the same annotation.

[00:06:28] Speaker 02:
The petition had that annotation, right.

[00:06:31] Speaker 02:
But the same, if you look at Abe, the filling of the cup is the same argument.

[00:06:36] Speaker 03:
The argument is that there's no substantial evidence to support this conclusion.

[00:06:40] Speaker 03:
because there's no teaching in Abbe that Abbe would have filled up the gap with the insulating material to create a structure.

[00:06:48] Speaker 02:
A trapezoid structure.

[00:06:51] Speaker 03:
And even if you did, even if one were going to add the material and blew the transparent insulation, then the only way you get the trapezoid structure is by including the walls.

[00:07:05] Speaker 02:
Right.

[00:07:06] Speaker 03:
And then you are adding the two materials.

[00:07:09] Speaker 03:
And you say that's not fair, that's not what Abby teaches, that's what the patent teaches.

[00:07:15] Speaker 03:
So they're in essence what the board was doing was reading the patent onto the prior art to say you'd combine the two materials to create this reflective wall.

[00:07:25] Speaker 02:
That's absolutely right.

[00:07:26] Speaker 02:
I mean, it's total hindsight.

[00:07:28] Speaker 02:
I'm sorry.

[00:07:28] Speaker 03:
It's a two-step argument, as I understood it from your lack of substantial evidence.

[00:07:34] Speaker 03:
There's no support in Abe for using the blue to create a wall in the first place.

[00:07:44] Speaker 03:
But even if there were, it wouldn't be a wall just with the insulating material.

[00:07:48] Speaker 03:
You'd have to add the yellow arms.

[00:07:50] Speaker 03:
And there's certainly no teaching in the prior art of combining materials.

[00:07:55] Speaker 03:
It's only in the patent itself.

[00:07:57] Speaker 02:
That's right.

[00:07:58] Speaker 02:
And their expert never opined that a person of ordinary skill in the art would have filled that in and seen a trapezoidal shape there.

[00:08:06] Speaker 02:
The expert merely, just as they did in their petition, say, aha, that's a trapezoid, they drew this picture over it.

[00:08:14] Speaker 02:
The picture is not evidence.

[00:08:15] Speaker 02:
What is evidence is what is in Abbe.

[00:08:18] Speaker 02:
And Abbe doesn't teach that that is a trapezoid at all.

[00:08:23] Speaker 02:
And the same substance,

[00:08:24] Speaker 02:
is in the cup in Abbe as is outside of the cup in Abbe.

[00:08:30] Speaker 03:
So if you... What's the role of the transparent insulation in Abbe for purposes of reflection of light?

[00:08:39] Speaker 02:
Well, I think the... I'm not sure that it's supposed to reflect the light at all or impact the light.

[00:08:46] Speaker 02:
I think that the light just passes through that insulation.

[00:08:49] Speaker 03:
The yellow walls are reflective surfaces.

[00:08:51] Speaker 02:
I believe that's true.

[00:08:52] Speaker 02:
And so the light would bounce

[00:08:55] Speaker 02:
into that cup and then out of the sensor away from the photodiode.

[00:09:00] Speaker 01:
Can I just focus you on, it's at appendix 170, figure 5H.

[00:09:06] Speaker 01:
I realize figure 6 is the one I'm talking about when we're talking about trapezoid walls.

[00:09:18] Speaker 01:
Because 5H, it seems like they're three metal sides filled

[00:09:24] Speaker 01:
and then it's filled with something else.

[00:09:26] Speaker 01:
So this looks, except for the fact that it's not the trapezoid, it's a rectangular shape.

[00:09:31] Speaker 01:
It seems very much like what Abe is talking with, or how they're construing Abe, which is, OK, you've got three sides, cup-filled, and you've got that fill, and that forms the figure.

[00:09:47] Speaker 02:
Sure.

[00:09:48] Speaker 02:
So the difference is, in this figure 5H, 5I, the filling, we're not arguing that you can't have a trapezoidal reflecting wall that's made of multiple materials.

[00:09:59] Speaker 02:
That's not our argument.

[00:10:00] Speaker 02:
It needs to be a consistent material.

[00:10:02] Speaker 02:
You can have different materials that make up this reflecting wall and have a filling like you see in figure 5.

[00:10:08] Speaker 02:
However, the filling in this cup in Abe is not the same as this filling that's disclosed here.

[00:10:14] Speaker 02:
This filling that's disclosed in Figure 5 is going to be a reflective material that's like the outside.

[00:10:21] Speaker 02:
Well, at the very least, it forms an upper base.

[00:10:26] Speaker 02:
Even if it's not reflective, it's going to form an upper base of the trapezoid.

[00:10:31] Speaker 02:
Whereas in abe, the filling doesn't really create an upper base.

[00:10:35] Speaker 02:
It doesn't connect the two ends of the cup.

[00:10:37] Speaker 01:
But let's look at 5H.

[00:10:38] Speaker 01:
So are you saying the filling in 5H creates an upper base?

[00:10:42] Speaker 02:
Yes.

[00:10:43] Speaker 01:
And what's the difference between that and Abbe?

[00:10:46] Speaker 02:
Well, the Abbe doesn't really have a filling such as that.

[00:10:49] Speaker 02:
It's the same filling on the outside of the cup in Abbe as is inside the cup in Abbe.

[00:10:54] Speaker 02:
And clearly, here in figure 5H, the filling of the cup is different than what's on the outside of the cup.

[00:11:00] Speaker 01:
Well, when you look at the specs,

[00:11:07] Speaker 01:
They're very loose, it seems to me.

[00:11:09] Speaker 01:
Maybe I'm not looking at the right thing.

[00:11:11] Speaker 01:
I know this is about Chapter 6, but in Column 9 they talk about...

[00:11:16] Speaker 01:
it is assumed the material of the reflecting wall is metal and the material is not limited there too.

[00:11:22] Speaker 01:
And then it goes on to talk about how we're not, you know, we're not sort of cabin into what you can fill it with.

[00:11:29] Speaker 01:
So doesn't that tell us, how does that limit that this isn't?

[00:11:33] Speaker 01:
Is that a problem or in the patent?

[00:11:34] Speaker 02:
That's in the, the Chief Judge is supposed to point to the patent specification.

[00:11:39] Speaker 02:
The patent, right.

[00:11:40] Speaker 02:
Yes.

[00:11:40] Speaker 03:
So when you're saying that you can have different materials

[00:11:43] Speaker 03:
That's what the patent teaches.

[00:11:45] Speaker 02:
Yes.

[00:11:45] Speaker 03:
Is there any teaching in the prior article?

[00:11:48] Speaker 03:
I thought when you and I had the discussion earlier, you said one of the problems is treating Abbe as though it had a trapezoid when you add what was blue to the yellow is that there's no teaching in Abbe that you put the materials together.

[00:12:02] Speaker 02:
That's right, and consider it as a trapezoidal feature.

[00:12:05] Speaker 02:
There is no teaching in Abbe.

[00:12:07] Speaker 01:
I know, but back to my point about just looking at 5H and telling me, I thought your answer to me was this.

[00:12:15] Speaker 01:
Filling is not what's on the outside as well, and that's why Abbe isn't comparable to this.

[00:12:24] Speaker 02:
It's not because Abbe

[00:12:26] Speaker 02:
It's not that Abe is distinguishable because it's made of multiple materials.

[00:12:30] Speaker 02:
That's not the issue.

[00:12:32] Speaker 02:
The issue is that there's no teaching in Abe that a person of ordinary skill merit would consider that particular annotation that Sony drew over the cup to be a trapezoid and consider that to be one reflecting wall.

[00:12:45] Speaker 02:
The reflecting wall in Abe are these

[00:12:50] Speaker 02:
is basically a cup shape.

[00:12:51] Speaker 02:
It's not a trapezoid.

[00:12:53] Speaker 01:
That's why I'm looking at 5H, because that seems to me to be a cup shape, too, with something filled in, which seems to me what Abe is.

[00:13:03] Speaker 01:
It's a cup shape, even though this is a rectangle, that's a trapezoid.

[00:13:07] Speaker 01:
It's a cup shape with something else filled in.

[00:13:10] Speaker 01:
and their argument or the board's argument is that sufficient to create the structure.

[00:13:15] Speaker 01:
That's what I think is going on in 5-H.

[00:13:18] Speaker 01:
Tell me if I'm wrong.

[00:13:19] Speaker 01:
And if we're allowed to have that go on in 5-H, why isn't that good enough for a comparable analysis about the trapezoid?

[00:13:28] Speaker 02:
Well, if you had the same filling in 5H on the inside and the outside, I would say that's not a trap as a little reflecting wall.

[00:13:36] Speaker 02:
You've got basically air where you have no upper base.

[00:13:40] Speaker 01:
How do we know what the filling is in 5H?

[00:13:42] Speaker 03:
121 and 122.

[00:13:52] Speaker 02:
A W film, so Tungsten.

[00:13:54] Speaker 02:
TI film 122.

[00:13:56] Speaker 02:
So we're talking about a reflective material here.

[00:13:59] Speaker 02:
I'm sorry, let me direct you to where I found that.

[00:14:04] Speaker 02:
Yes, column 8, starting at lines 26, starts talking about the films.

[00:14:12] Speaker 02:
So we're talking about tungsten.

[00:14:15] Speaker 02:
I mean, that's not

[00:14:16] Speaker 02:
an insulation, a clear insulation where the light could pass through.

[00:14:21] Speaker 02:
We're talking about a metal structure here, a reflecting wall that may be made of different materials, but it's all a reflecting wall.

[00:14:30] Speaker 02:
And in ABE, we have a cup with a clear insulation.

[00:14:33] Speaker 01:
Wait, so show me, where are you?

[00:14:35] Speaker 01:
I'm line 26.

[00:14:37] Speaker 02:
Line 20, so look at 26, 27, 28, line 28, a W film 121 is formed on the TI film 122.

[00:14:46] Speaker 03:
You're reading that prior on to Abbe, right?

[00:14:59] Speaker 03:
You say you don't have any problem with Abbe teaching that you can use two materials?

[00:15:06] Speaker 03:
to make a wall?

[00:15:07] Speaker 02:
I don't think Abe does teach that.

[00:15:10] Speaker 03:
Well, isn't that important to your case?

[00:15:12] Speaker 02:
Yes.

[00:15:13] Speaker 03:
The fact that the patent teaches that you can have 121 and 122 in a cup, the two things together that form the wall, rectangular in this case.

[00:15:23] Speaker 03:
I thought when you and I had the discussion earlier, you thought that one of the things for which there was no substantial evidence was Abe doesn't teach you that you would combine the yellow arms with the blue material.

[00:15:35] Speaker 02:
That's correct.

[00:15:37] Speaker 03:
I mean, you can't read knowledge out of the patent onto the prior art.

[00:15:43] Speaker 02:
That's right.

[00:15:45] Speaker 03:
And that's why I think... And I know that you're saying that's, in your view, that's what the board is doing when the board said, oh, you can take the two materials and put them together and create the trapezoid.

[00:15:55] Speaker 02:
That's exactly right.

[00:15:56] Speaker 02:
That is our position.

[00:15:57] Speaker 01:
But isn't that exactly what's going on in 5H?

[00:15:59] Speaker 01:
Not for a trapezoid, for another structure.

[00:16:04] Speaker 01:
Perhaps, but that's... Yeah, that's the teaching of the patent.

[00:16:09] Speaker 02:
Right, that's the invention.

[00:16:10] Speaker 03:
And then what you're saying is that teaching of the patent proves to you that that's what someone before the patent, i.e.

[00:16:18] Speaker 03:
Abe, did.

[00:16:19] Speaker 03:
That's why you can't read the patent onto the prior art to invalidate the patent.

[00:16:25] Speaker 02:
That's right, it's backwards.

[00:16:27] Speaker 03:
I mean, stated otherwise, you might be trying to make the argument that it's new and novel to use two materials to make the structure, because it wasn't taught in Abbey.

[00:16:37] Speaker 03:
And no other prior art was introduced to show mixing two materials to create a wall, right?

[00:16:47] Speaker 02:
Yes.

[00:16:51] Speaker 02:
I'm going to leave the rest of the issues unless you want to hear more on reflecting walls.

[00:16:58] Speaker 02:
I understand I'm going to keep the rest of my rebuttal time in reserve.

[00:17:03] Speaker 02:
Thank you.

[00:17:11] Speaker 00:
Good morning, Your Honor.

[00:17:12] Speaker 00:
This is Dennis Van, very briefly for the United States.

[00:17:15] Speaker 00:
If you look on pages 26 to 27 of their reply brief, they can see that this court's decision in Celgene, as well as the cases following Celgene, foreclosed the due process and takings challenges.

[00:17:26] Speaker 00:
And so if this court doesn't have questions.

[00:17:28] Speaker 01:
In other words, it's not disputed.

[00:17:30] Speaker 00:
Not disputed, exactly.

[00:17:32] Speaker 00:
Thank you.

[00:17:32] Speaker 00:
Thank you.

[00:17:32] Speaker 00:
I'll have you see the rest of my time.

[00:17:34] Speaker 03:
Thanks for showing up, anyway.

[00:17:43] Speaker 04:
Good morning.

[00:17:43] Speaker 04:
May it please the court?

[00:17:45] Speaker 04:
I'll first, hopefully briefly, just address the claim construction waiver and then spend the majority of the time on trapezoids.

[00:17:52] Speaker 04:
But just on the, both parties agree that it's abuse of discretion that's the standard of review because the board below made an express finding that the new claim construction challenge was brought too late.

[00:18:06] Speaker 04:
And that's on page, gray brief, page 14.

[00:18:09] Speaker 04:
And on that very same page of the gray brief,

[00:18:13] Speaker 04:
They also acknowledged that they are not challenging the board's denial of additional briefing post-hearing, where presumably Calabo would have introduced its claim construction for the first time.

[00:18:26] Speaker 04:
Because at the oral hearing, they couldn't even articulate what it meant, the plain and ordinary meaning construction.

[00:18:34] Speaker 04:
And just to distinguish the cases cited in the gray brief, those cases involved not... We have cases where someone stands up and says, oh, it's the plain and ordinary meaning.

[00:18:44] Speaker 03:
And we say, well, that's OK to keep the issue alive.

[00:18:48] Speaker 03:
I mean, we frequently have cases where both sides say to the board, well, it's the plain and ordinary meaning.

[00:18:53] Speaker 03:
And someone works and, well, what's that mean?

[00:18:55] Speaker 03:
They say, well, that's your job to figure it out.

[00:18:56] Speaker 03:
But they both agree that it's the plain and ordinary meaning.

[00:19:00] Speaker 04:
Except now, in the blue brief, they've gone beyond just an vague, plain and ordinary meaning and say that it's walls that reflect oblique light onto the corresponding photodiode.

[00:19:13] Speaker 04:
That's halfway through their blue brief, where they addressed that for the first time.

[00:19:17] Speaker 04:
But just to quickly distinguish legally the cases cited in the gray brief, those cases involve this court in the first instance applying its own prudential appellate waiver rule, whereas here we have

[00:19:32] Speaker 04:
the agency's mandatory rule that applies unless the board waives it under rule 37 CFR 43.5B, as this court explained in Dell.

[00:19:43] Speaker 04:
So we have a mandatory rule on point, reviewed as we agree for abuse of discretion.

[00:19:48] Speaker 03:
But is it really an abuse of discretion standard?

[00:19:50] Speaker 03:
I mean, if one commits an error of law, you have abused discretion.

[00:19:55] Speaker 03:
And so the question of law is, what's it take to preserve claim instruction?

[00:20:01] Speaker 04:
The abuse of discretion question is, did the board commit an abuse of discretion by not allowing new consideration of an argument raised for the first time, but not even articulated well?

[00:20:16] Speaker 03:
But if we decided that the issue had been sufficiently preserved, then it would have been an abuse of discretion.

[00:20:21] Speaker 04:
I suppose so, yes.

[00:20:23] Speaker 03:
So aren't you just basically reduced back to asking yourself the question, was there

[00:20:30] Speaker 03:
response to the petition sufficient to show that they were concerned about claim construction?

[00:20:37] Speaker 04:
And as the board expressly found in both denying the additional briefing and in its final written decision, this over-broad criticism was simply too vague for them, and ambiguous were the words that the board used to characterize the way they tried to preserve this issue.

[00:20:56] Speaker 04:
But moving to the trapezoids, if I may,

[00:21:01] Speaker 04:
So on appeal, we argue that they are raising a new argument about the level of perfection of a quadrilateral with exactly four corners and four sides.

[00:21:16] Speaker 04:
But that's not what Collabo was arguing below.

[00:21:20] Speaker 03:
Where does Abe teach that you use the transparent insulation

[00:21:25] Speaker 03:
which is throughout the whole structure and not just inside the yellow walls, that you use that to create a reflecting wall.

[00:21:33] Speaker 03:
Where does Abe teach that?

[00:21:35] Speaker 04:
So Abe fills up the entire cup.

[00:21:39] Speaker 03:
Abe has a metal cup, which... Well, that's because the walls are etched into the blue covers, not just inside the yellow or whether it's blue or red, the material covers the entire, wherever the structure stops.

[00:21:54] Speaker 03:
And we don't know whether it stops with trapezoidal arms or not, right?

[00:22:00] Speaker 03:
So my question is, if we're in ABE, ABE is talking about these yellow arms as there to create reflecting surfaces, which we're treating as reflective walls.

[00:22:11] Speaker 03:
Where do they talk about the blue transparent insulation as contributing in any way should reform to the formation of the reflecting wall?

[00:22:21] Speaker 04:
We would have argued.

[00:22:23] Speaker 03:
The answer is they don't, right?

[00:22:24] Speaker 04:
We disagree.

[00:22:25] Speaker 04:
On paragraph 33, it talks about the creation of the second insulating film 14.

[00:22:34] Speaker 04:
Appendix page 456.

[00:22:43] Speaker 04:
And recall that the insulating film is labeled 14 in the

[00:22:51] Speaker 03:
And it covers the entire surface.

[00:22:52] Speaker 03:
So it covers, it goes all the way out, and then there's no showing of a trapezoid there.

[00:22:58] Speaker 03:
So that argument is dead in the water, because paragraph three creates any, could be a rectangle, could be anything, but it's certainly not a trapezoid.

[00:23:08] Speaker 03:
When you spread the insulating material across the entirety of the two structures with your arms up, you end up with a nothing.

[00:23:16] Speaker 04:
Insulating film 14 has been deposited already on... Can you tell us where you're looking at page, appendix 456?

[00:23:23] Speaker 03:
Page 456, paragraph 33, which is in the right-hand column near the top.

[00:23:29] Speaker 03:
Second, an insulating film is formed on the entire surface.

[00:23:36] Speaker 04:
Right.

[00:23:36] Speaker 03:
Covering up the... Not only the cup, but everything else.

[00:23:40] Speaker 04:
And it is in this cup is enclosed.

[00:23:44] Speaker 03:
I asked you the question was for the purpose of creating a reflecting wall.

[00:23:52] Speaker 03:
Paragraph 44 where is it where do they tell you paragraph 44.

[00:23:56] Speaker 04:
Paragraph 44, relied on by the board, explains the relevance of what's going on in figure 13, where the upper extended portions may be extended to incline upwardly from the upper ends.

[00:24:14] Speaker 03:
That's where they're showing where the reflection comes from, the arms going up.

[00:24:17] Speaker 03:
Yes.

[00:24:19] Speaker 03:
So let's assume that even if, which I don't think it does, Abe taught

[00:24:26] Speaker 03:
that you use the insulating material to create a trapezoid as opposed to creating, that's a rectangle, something big.

[00:24:35] Speaker 03:
Where does Abe teach that you combine that material with the material of the extended arms to create a trapezoid?

[00:24:44] Speaker 04:
The work of reflection is happening virtually entirely.

[00:24:48] Speaker 03:
Combining the material, putting the two materials together.

[00:24:52] Speaker 03:
Because you can't, when you created your little blue cup,

[00:24:56] Speaker 03:
Your trapezoid was simply the blue stuff.

[00:24:59] Speaker 03:
You'd have to add the yellow material to create the reflecting wall.

[00:25:04] Speaker 03:
And so then I say to you, the patent I know teaches us that you can use two materials in a cup to create a rectangular reflecting wall.

[00:25:14] Speaker 03:
But I'm seeing an abbey that told me that I do the same combo.

[00:25:20] Speaker 04:
I think this goes back to the claim construction.

[00:25:22] Speaker 03:
Hey, can you find anything in Aube method?

[00:25:24] Speaker 03:
I don't think you can.

[00:25:25] Speaker 03:
It just doesn't matter if relevant.

[00:25:27] Speaker 03:
You've cited paragraphs, you know, quickly on the other issues.

[00:25:32] Speaker 04:
So the claim construction only requires that the external, approximately vertical walls be made of reflecting material.

[00:25:40] Speaker 03:
It doesn't say anything about the top.

[00:25:42] Speaker 03:
When you drew your magic marker and painted,

[00:25:47] Speaker 03:
the color from the insulated material just inside the cup.

[00:25:54] Speaker 03:
You painted it just inside the cup.

[00:25:55] Speaker 03:
The blue just inside the cup is not a trapezoid, because you've got to get the arms in there, too.

[00:26:03] Speaker 04:
Your Honor, specifically which arms?

[00:26:05] Speaker 04:
The ones poking out from the top?

[00:26:07] Speaker 03:
The ones that go out.

[00:26:08] Speaker 03:
I mean, I think they drew them yellow in some of the pictures.

[00:26:12] Speaker 04:
Yes.

[00:26:13] Speaker 03:
Right.

[00:26:14] Speaker 03:
When you look at ABE A462 at figure three of ABE, the color material that you fill in goes inside of the arms going up, right?

[00:26:33] Speaker 04:
Yes.

[00:26:34] Speaker 03:
So in order to create the structure of the trapezoid that has the reflecting capacity, you've got to add those yellow walls.

[00:26:44] Speaker 04:
The yellow walls come with Abbe.

[00:26:46] Speaker 03:
The yellow walls come with Abbe.

[00:26:49] Speaker 03:
There's no question about that.

[00:26:50] Speaker 03:
The question is, does the blue, does the interior stuff, combined with the yellow, come with Abbe?

[00:26:58] Speaker 04:
We think so.

[00:26:59] Speaker 03:
But where does Abbe teach that you use the blue material to combine it with the yellow to create a reflection?

[00:27:07] Speaker 04:
Paragraph 47 of Abe talks about the openings of the... Paragraph 47 of Abe on page 458 appendix.

[00:27:19] Speaker 04:
Openings 13.

[00:27:22] Speaker 04:
are formed by being surrounded by the dot dot dot lower faces 9A of the second shielding film and the upper extended portions 92 or 93 where the inlet is narrowed by the upper extended portions 92 or 93 of the second light shielding film.

[00:27:40] Speaker 03:
Nothing in there about insulating material 14.

[00:27:44] Speaker 04:
What this says is that this cup is completely encased.

[00:27:47] Speaker 04:
It's surrounded.

[00:27:49] Speaker 04:
Abe fills up to the top with insulating material the metal cups.

[00:27:57] Speaker 03:
47?

[00:27:57] Speaker 04:
Yes.

[00:27:59] Speaker 04:
Talking about being completely surrounded by the... Where are you in 47?

[00:28:05] Speaker 03:
How far 47 is?

[00:28:07] Speaker 04:
Three lines down in the first sentence.

[00:28:08] Speaker 03:
Three lines?

[00:28:09] Speaker 04:
Yes.

[00:28:11] Speaker 04:
The openings 13 are formed by being surrounded by the... Lower extended portions 81.

[00:28:17] Speaker 04:
Yep, and keep going till then.

[00:28:18] Speaker 04:
The lateral faces 9A of the second light shielding film, 9.

[00:28:22] Speaker 03:
Those are the things going out, the arms.

[00:28:25] Speaker 04:
And the upper extended portions, 19.

[00:28:27] Speaker 03:
No, that's the arms.

[00:28:29] Speaker 03:
But there's nothing in there about having the film 14 filling in.

[00:28:40] Speaker 04:
Again, just to go back to the claim construction, the board found that the final written decision 49, the claimed reflecting walls do not require a uniform composition.

[00:28:55] Speaker 04:
The only aspect.

[00:28:58] Speaker 03:
When they say they do not require a uniform composition, that's because that's what the patent teaches.

[00:29:02] Speaker 03:
That's not what Habe teaches.

[00:29:05] Speaker 03:
I'll bet it doesn't teach that you can have two materials to form a wall.

[00:29:09] Speaker 03:
You heard that argument before.

[00:29:11] Speaker 04:
And there's testimony that a person of ordinary skill would understand that depending on the wavelength and the indices of refraction, I'm looking at appendix 992, the guide ash deposition, that a light entering in the cup region very well could be bouncing off as well from the top.

[00:29:32] Speaker 04:
from that top insulating film, or it could be also a portion going down all the way to the cup and bouncing out.

[00:29:43] Speaker 04:
Well, our position on appeal is that, and it was as a blow, that it's the entire structure.

[00:29:53] Speaker 04:
As the board found and agreed with us on page 45 of the, I'm looking at the 1154 appeal appendix, we find that the entire cup structure

[00:30:05] Speaker 04:
The entire cup shape structure, including the material within, is the recited reflecting wall.

[00:30:10] Speaker 03:
It's easy to see what happens, I mean, because when you use the magic marker to fill up the cup, except for the fact that the arms stick out over the top, which creates a little bit of a problem of having an actual trapezoid, a sloppy trapezoid.

[00:30:25] Speaker 03:
But the question is, what's the substantial evidence for doing that within Abe?

[00:30:31] Speaker 03:
Abe certainly isn't teaching that.

[00:30:33] Speaker 03:
Abe isn't saying,

[00:30:35] Speaker 03:
If you want, a reflecting wall can be found by taking this transparent material that is inert, which goes in the cups and outside the cups and all around the cups.

[00:30:49] Speaker 03:
Nobody isn't talking about using that for any purpose of reflecting light.

[00:30:54] Speaker 03:
They're talking about their upper extended arms, which use their angles so as to create the sides of a trap.

[00:31:01] Speaker 03:
But yes, those are no question, these are reflecting.

[00:31:07] Speaker 03:
It's just a simple question of a school child could look at Abbe's drawing and take a magic marker and fill up the cup and say, Hosanna, it's a trapezoid.

[00:31:23] Speaker 03:
That's not the question.

[00:31:25] Speaker 03:
The question is, what's the substantial evidence to do that in Abbe?

[00:31:31] Speaker 04:
A person of ordinary skill really wouldn't care about the material inside of Abe, because let's remember how we got here.

[00:31:37] Speaker 03:
You didn't say.

[00:31:37] Speaker 03:
That's not what the record says.

[00:31:40] Speaker 03:
We are... This is a... We sort of like Chief Justice Roberts talks about calling balls and strikes.

[00:31:46] Speaker 03:
As I see this, our job is just to look at the record that was made in front of the board, simple as that, and decide whether or not the substantial evidence will support their conclusion.

[00:31:56] Speaker 03:
If there is, you win.

[00:31:58] Speaker 03:
If they don't, you lose.

[00:31:59] Speaker 03:
The fact that you might have made a different argument to show that the trapezoidal structure is obvious is irrelevant.

[00:32:13] Speaker 03:
Because Abe certainly teaches using angle size, right?

[00:32:19] Speaker 04:
Yes, it does.

[00:32:20] Speaker 03:
So you might have said, which you didn't,

[00:32:22] Speaker 03:
That's not your argument.

[00:32:27] Speaker 03:
That's not the argument you made.

[00:32:34] Speaker 04:
Looking at petition page, appendix 128.

[00:32:40] Speaker 04:
One of ordinary skill would have been motivated to use Abe's trapezoidal reflecting walls because the slanted walls would direct a larger percentage of incident ray angles towards the photodiode, providing the advantage of increased light collecting efficiency.

[00:32:55] Speaker 03:
What page is that?

[00:32:56] Speaker 04:
Appendix page 128.

[00:32:58] Speaker 03:
Do it in brief 1152.

[00:33:05] Speaker 04:
1152, yes.

[00:33:06] Speaker 04:
128.

[00:33:08] Speaker 03:
What page?

[00:33:11] Speaker 04:
Appendix page 128 of the bottom paragraph.

[00:33:23] Speaker 04:
One of ordinary skill would have been motivated to use obvious trapezoidal reflecting walls because the slanted surfaces

[00:33:30] Speaker 04:
would have directed a larger percentage of incident ray angles toward the photodiode, providing the advantage of increased light-collecting efficiency, a primary goal of the 1-034 patent.

[00:33:41] Speaker 03:
And that's not the argument that was used by the board?

[00:33:47] Speaker 03:
That's not anywhere in the board's opinion?

[00:33:50] Speaker 04:
The board relies on our motivation to combine.

[00:34:07] Speaker 04:
On page 50, we find petitioner has shown a rational basis for combining Takahashi and Kimura with Abe.

[00:34:18] Speaker 03:
Where is that?

[00:34:20] Speaker 03:
Bottom page 50.

[00:34:29] Speaker 04:
and it's the citing petition page 55 which goes on about the inwardly slanted angles of the reflecting walls.

[00:34:38] Speaker 04:
We don't say substitute, let's destroy the Tamoda plus Kimura walls or the Takahashi walls, throw them away and import wholesale the structure of the walls.

[00:34:53] Speaker 03:
Well, that's not the same.

[00:34:55] Speaker 03:
That saying you can combine those three references is not the same as saying what Abe teaches with regard to a trapezoid.

[00:35:04] Speaker 03:
That's a different issue.

[00:35:07] Speaker 04:
And that the motivation's focus was on the reflecting walls on the outside.

[00:35:11] Speaker 04:
The fact that you'd get better light collection from making those walls of the primary references slanted.

[00:35:26] Speaker 04:
But as about the tips and the crooked, the supposedly crooked little sides on the edges, that was not their argument below.

[00:35:35] Speaker 04:
Their argument below, which is made clear in the

[00:35:41] Speaker 04:
And the hearing, which is cited on page 45 of the final written decision, looking at appendix 1472 is where the transcript is, the exchange between Calabo's counsel and the APJs, it's all about, so asking

[00:35:58] Speaker 04:
Because it's a cup, it's not a trapezoid?

[00:36:00] Speaker 04:
Answer, that's right.

[00:36:02] Speaker 04:
Question, there's no other reasons that that's what we have to consider?

[00:36:06] Speaker 04:
Answer, I think that's correct.

[00:36:07] Speaker 04:
That's the only consideration necessary in our view.

[00:36:10] Speaker 04:
It was not now this perfect four-sided, it was not this argument that they're raising on page 54 of the blue brief with these red structures with the tops pointing out.

[00:36:24] Speaker 04:
That was not the argument below.

[00:36:26] Speaker 04:
Had they raised that,

[00:36:27] Speaker 03:
I mean, the fact that the arms extend beyond the top.

[00:36:30] Speaker 04:
Correct.

[00:36:31] Speaker 03:
Had they raised that.

[00:36:32] Speaker 03:
That's not central to the challenge that's being made here today.

[00:36:36] Speaker 03:
If we take the board's opinion on all fours and we say, here's why the board made its decision, then the question is, is there substantial evidence to support its decision?

[00:36:49] Speaker 04:
And we believe that Abe paragraph 44 cited by the board and Abe paragraphs 38 cited by the board at final written decision 48 and 49 provide that substantial evidence.

[00:37:02] Speaker 01:
Thank you.

[00:37:14] Speaker 02:
Just have a few follow-up points with respect to the waiver issue.

[00:37:20] Speaker 02:
He's correct.

[00:37:21] Speaker 02:
We did go ahead and propose a construction for reflecting walls in our brief.

[00:37:26] Speaker 02:
That construction is consistent with our arguments that we made in the Patanona response.

[00:37:30] Speaker 02:
This court doesn't need to agree with our particular construction in order for us to win because the board's construction is just plainly wrong.

[00:37:39] Speaker 02:
It is overbroad.

[00:37:40] Speaker 02:
The board considered a wall to be any vertical surface.

[00:37:45] Speaker 02:
I think anyone would agree that's just an overbroad construction.

[00:37:50] Speaker 02:
And it's not an abuse of discretion issue here.

[00:37:52] Speaker 02:
I mean, this court reviews claim construction de novo.

[00:37:57] Speaker 02:
And counsel, my colleague, is saying, well, because we raised these issues below and the board found waiver, therefore, we're somehow in a worse spot than we would be had we not raised the issues below and raised them for the first time on appeal.

[00:38:15] Speaker 03:
Well, I suggest this court should... I think you may understand that my colleague, whether you're an adversary or anything, understands that.

[00:38:20] Speaker 03:
Our question is, did you sufficiently raise the issue early enough to avoid the board's conclusion that there was waivers?

[00:38:29] Speaker 03:
If we can claim we examined that issue, and if we were to decide that, yes, you did raise it earlier, then it would have been abuse of discretion to deny you the chance to bring it up.

[00:38:40] Speaker 03:
Do you have a response to the adversary we're talking about, claims three and whatever, on the trapezoid?

[00:38:48] Speaker 03:
And your adversary says, oh, well, we made the argument in our petition that anybody of ordinary skill in the art would know to, because they can see that there are angled walls to use, angled walls to modify a rectangle.

[00:39:05] Speaker 02:
Well, so that's not what they say in their petition.

[00:39:09] Speaker 02:
I mean, the portion of page 54 at appendix 128 that he pointed to, one of ordinary skill in the art, would have been motivated to use Abe's trapezoidal reflecting walls.

[00:39:19] Speaker 02:
That's just a conclusory characterization of the walls, just as they

[00:39:25] Speaker 02:
annotated the walls with a trapezoid, they're just saying Abe's walls are trapezoidal reflecting walls here.

[00:39:31] Speaker 02:
They're not saying one of ordinary skill in the art would have been motivated to fill Abe's cup with some sort of reflective material as taught in the patent.

[00:39:42] Speaker 02:
None of the citations that my colleague pointed to shows that a person of ordinary skill in the art would do that.

[00:39:51] Speaker 02:
My colleague also referenced the board's claim construction.

[00:39:54] Speaker 02:
Well, the board's claim construction, we disagree with it, but at the very least it requires that the reflecting wall reflect light.

[00:40:01] Speaker 02:
Well, the top portion, if the trapezoid is filled with a transparent film, that's not going to reflect light.

[00:40:10] Speaker 02:
that's going to let light pass through.

[00:40:14] Speaker 02:
It's like saying, well, if you fill a cup up with water, then it somehow becomes a trapezoidal cross section.

[00:40:19] Speaker 02:
That's not right.

[00:40:20] Speaker 02:
You've got to fill the cup up with some sort of material that acts as a reflecting wall.

[00:40:26] Speaker 03:
Do all sides of the wall have to reflect?

[00:40:30] Speaker 03:
I mean, exhibit in 5H, or the thing we were looking at in the patent, does the top part have to reflect?

[00:40:39] Speaker 03:
I'm not sure if it has to reflect, but I don't think... If Abe actually showed a trap, is it okay to turn it on its side and have the angled walls be doing the reflecting and not have the top and the bottom?

[00:40:53] Speaker 02:
The upper base needs to be longer than the lower base still.

[00:40:57] Speaker 02:
I don't know if you'd consider it to have an upper base.

[00:41:06] Speaker 02:
Can you rephrase your hypothetical?

[00:41:08] Speaker 03:
Is it a requirement that the upper base of the trapezoid be reflecting?

[00:41:13] Speaker 02:
Well, I think the board's construction kind of implies that the reflective wall needs to reflect.

[00:41:20] Speaker 03:
What about the sides?

[00:41:23] Speaker 03:
The two sides that are angled do the reflecting?

[00:41:27] Speaker 02:
I guess that probably would be, you know, just maybe a portion of it needs to reflect.

[00:41:32] Speaker 02:
I mean, it needs to perform its function, but simply filling the cup up with water.

[00:41:37] Speaker 03:
A lot of it depends on the angles at which the light's coming in.

[00:41:40] Speaker 03:
You could create a trapezoidal structure where you didn't really care what the top, the longer top did, because all the light's coming in on the side.

[00:41:48] Speaker 02:
Well, I think the patentee does care what the top is.

[00:41:52] Speaker 02:
He specified that the upper base needs to be longer than the lower base.

[00:41:56] Speaker 02:
There needs to be an upper base.

[00:41:58] Speaker 02:
It can't just be a transparent water.

[00:42:01] Speaker 02:
And the top of the wall, I think, does perform a function of sending the light, either blocking the light or reflecting it back up to prevent color mixing, etc.

[00:42:14] Speaker 02:
I see I'm out of time.

[00:42:16] Speaker 02:
If you have any further questions, I'm here to answer them.

[00:42:19] Speaker 01:
Thank you.