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Our next case is IYM Technologies vs. RPX Corporation and Advanced Micro Devices, 2019-1761, Mr. Tifin Senso.

[00:00:52] Speaker 02:
Good morning, Your Honors.

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With respect to

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Proceeding to 1917-61, the board's finding of obviousness cannot stand because the board wrongly found that Cody expressly discloses two limitations.

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First limitation requires local process modifications that change initial constraints.

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The claims on their face require initial constraints

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and then a computation of local process modification that changed those constraints.

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The board found the local process modification limitation was met based on Cody's supposed teaching of changes to initial design rules 505.

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The board stated that the changes to initial design rules 505 that result from running simulations on layout 510 amount to the claim local process modifications.

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However, Cody only discusses design rule 505 in reference to the initial layout creation step.

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Cody never discusses design rules 505 with respect to the optimization.

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RPX does not dispute that.

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On appeal in their response, RPX does not argue that the board's finding that design rules 505 are changed is met by substantial evidence.

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Instead, RPX disputes what the board found.

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RPS argues on both page 29 and 35 of its response brief that the board never found that changes to design rules 505 meet the local process modification limitation.

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What the board found shouldn't be in dispute.

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The board stated three separate times that changes to initial design rules 505 and nothing else met the local process modifications limitation.

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Those findings of the board are stated on page 22 of its decision, 23 of its decision, and 32 of its decision, and they're all quoted in full in our reply brief.

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The board's repeated statements were not slight imprecisions, as argued by RPX.

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The board recognized expressly

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on page 26 of its decision that RPX repeatedly and consistently took the position that CODI's changes to design rules 505 teach the claimed local process modifications limitation.

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The board relied on RPX's own argument below for that finding.

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The board cited to RPX's reply brief below, and that's at A2231,

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In the reply brief, RPX argued that the initial constraints, and that's 8231, they argued the initial constraints were the design rules.

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Therefore, the board was reasonable in finding that the changes to the initial constraints must be the changes to design rules.

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RPX pointed to nothing else.

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Importantly here, as RPX does not dispute that the board's finding regarding changes to design rules 505 is unsupported by substantial evidence, the board's finding of obviousness cannot stand.

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This court reviews decisions and the evidence relied on by the board, not the party's arguments below.

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And here, RPX's arguments below should not be in dispute.

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Now, on appeal, RPX makes an alternative argument, which was not found by the board.

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RPX argues that Cody's changes to initial constraints meet the claim limitation changes to initial constraints.

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That is not an argument.

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That is an attempt to confuse the issue.

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RPX never responds on appeal with what exactly are the initial constraints, how Cody teaches changes to initial constraints, and how those changes to initial constraints result in new initial constraints with respect to limitation A.

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As RPX argument is just based on a repetition of the claim language and not on a viable theory based on the disclosures and codes itself, there is no reason to remap.

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With respect to the second limitation, new local constraint distances.

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That limitation requires constructing new local constraint distances by combining local process modifications with constraint distance.

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Now there was a lot of confusion in the party's briefing over the difference between a distance and a constraint distance.

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There shouldn't be a dispute here.

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A distance is how far apart two objects on a layout are placed.

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A constraint distance is a limit specifying how far apart objects must be spaced.

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Now with that understanding, the board's finding of obviousness cannot stand.

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The board found that Cody discloses two examples of constraint distances.

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On page 34 of its decision, it says, Cody provides one example of a constraint distance because it illustrates feeding additional constraints 518 into layout optimizer 520.

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And the board cites column 5, line 30 to 36.

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Column 5, line 30 to 36 doesn't mention constraint distances.

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There's no dispute there.

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The board did not provide a reasoned rationale on why it was reading column five, line 30 to 36, as specifying a constraint distance when it says nothing of the sort.

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Thus, that finding of the board, with respect to example one, is not supported by substantial evidence.

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The board also relied on figure six.

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The board stated, and this is on page 34 to 35 of its decision,

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Figure 6 of Cody provides another example of a constraint distance because it illustrates increasing the distance between two features.

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That's just a misreading of Cody.

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Cody does not show constraint distances.

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D1 in Cody is described in Cody itself as a distance, not a constraint distance.

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Cody explains, and this is a

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that in the original layout T, the two features were a distance D1 apart, so they were a distance D1 apart.

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But in the new layout, the features are spaced further apart.

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That's a distance, and it's saying it's spaced further apart at a new distance.

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It's not a constraint.

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It doesn't tell you how it was made.

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In fact, both parties' experts agree that figure 6 could be

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The results of Figure 6 could be gotten without using constraint distances.

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Both experts agreed other types of constraints could be used.

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So although this isn't an inherent disclosure case because the inherency was waived, it's an express disclosure case.

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And this is even one step removed.

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And lastly, with respect to Dr. Nagel.

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Dr. Nagel, in the briefing, there was a lot on what's a reasonable inference and what's not, and whether an expert can expound on a reference.

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Well, here the court does not have to get into that, because Dr. Nagel drew no inferences.

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The reason he concluded that Cody discloses distances is in the appendix on 346 at paragraph 170.

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Dr. Nagle said, and I quote, Cody explains that these local process modifications are additional distances.

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And he offers two sites.

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That's not an explanation.

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That's not an inference.

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That's a statement that's not supported by the two sites he provided.

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He provides one site to the portion I just read, which discusses distances, but not constraint distances.

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And the only other thing he relied on for that statement was the background.

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And the background, we all agree, does not disclose new local constraint distances.

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He simply stated that Cody describes them as constrained distances, when on his face, Cody offers no such description.

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So in this case, reasonable inferences cannot be used to substitute for an express disclosure, because their expert did not purport to make inferences.

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All he said was it's expressly disclosed.

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And lastly, with respect to claim 14, the board found that it would have been a matter of design choice to substitute Cody's optimization with a heuristic procedure.

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The basis for the board's finding was that heuristic procedures and optimization techniques, such as those taught by Cody, were known alternatives.

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The only evidence that there were known alternatives was Dr. Nagel's declaration, which is in the appendix on page 356 and it's paragraph 198.

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What Dr. Nagel relies on for optimization and heuristic procedures being known alternatives is the 012 patent, the patent suit.

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And it's not the background.

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It's where the inventors of the 012 patent explain that part of their inventive contribution was realizing that optimization techniques could be substituted with heuristic procedures.

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There is no other evidence relied on by Dr. Nagle for the proposition that heuristic procedures were known alternatives to optimization.

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And in the absence of some evidence where these were known to be

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alternatives for each other, we submit that the board's finding with respect to claim 14 cannot stand.

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Unless the court has any questions, I'll reserve my time.

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Council will save your rebuttal time.

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Mr. Speed.

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May it please the court.

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Good morning.

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Nathan Speed on behalf of the appellees, RPX and AMD.

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All the arguments that we just heard, they were fact-intensive arguments that were raised below before the board.

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The board considered it.

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It considered it after having reviewed a record with over 50 exhibits, the testimony of two expert witnesses, multiple rounds of briefing by the parties, and a lengthy oral argument.

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IYM is asking this court to reweigh the evidence that the board considered below.

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And we would respectfully submit that under the substantial evidence rule, this panel should not do so.

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We'll start with limitation D. Limitation D, using IYM's own brief at pages 10 and 12, limitation D starts with a layout where you have a system of initial constraints.

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And these constraints are distances that set the spacing between the objects.

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So you have an object in there.

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Practical example, they provided page 12.

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You have two objects that are 10 nanometers apart.

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then the 012 patent calculates a simulation of what would happen if you actually printed that chip using that exact layout.

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And that identifies areas where, due to manufacturing imperfections, the 10 nanometers is a bulge, and you might actually have a short circuit.

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And so the 012 patent calculates what it calls local process modifications, which identify a change that's necessary to that initial constraint.

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So in their practical example, it's a 5 nanometer increase.

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which would then change that initial constraint from 10 nanometers to 15 nanometers.

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The board found that Cody discloses this exact same process, and substantial evidence supports that finding.

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After summarizing the party's positions, page 19 to 21 of its decision, the board then went in to offer its interpretation of Cody.

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relying primarily on column 5 and the figures 5, 6, and 7 that are referenced in column 5 of CODI.

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The board walked through exactly what CODI does.

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CODI, just like the 012 patent, starts with a layout in which you use a system of initial constraints to set the spacing of the objects.

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In the background section of CODI, which a person of skill and art would read, because they're reading the entire reference as a whole, the only constraints disclosed are minimum spacing and minimum line widths.

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Minimum spacings are indisputably a distance constraint, and minimum line widths are recognized at column 3, lines 28 to 30 of the 0-1-2 pattern to also be a distance constraint.

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So there are only distance constraints disclosed in the background section of CODI.

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You then use those constraints to create the initial layout, just like the 0-1-2 pattern.

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Just like the 012 patent, you simulate what would happen if you printed the circuit using those initial constraints.

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And what you get is an image that you then can analyze.

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And the image is shown on figure seven.

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The copy in the patent is black and white.

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It's not that great.

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The copy that we've reproduced at page 16 of our brief shows you in color that there are three areas where there's a bridging of material.

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Those are problem areas that CODI identifies.

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To resolve those problem areas, CODI computes what it calls the local layout requirements.

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And those local layout requirements optimize the circuit as shown in Figure 6 of CODI, which the Florida also cites.

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Figure 6 of CODI shows in the middle of the figure, you have two objects that are spaced distance D1 apart.

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That distance D1 could be 10 nanometers or less, a limitation on the distance.

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image below it shows what would be revealed in a simulated image of that constraint, and it shows a bridging.

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Cody recognizes that's a problem, and so calculates its local layout requirements, and the result of calculating the local layout requirements is shown in the top right of Figure 6, which is that the space between the two objects has increased.

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And the only disclosure in CODI for how you set the spacing between objects is, again, in the background of the patent when it's describing minimum spacing or minimum line widths, both of which are distance constraints.

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And so the board, after providing its interpretation of CODI at page 22, it approvingly cites Dr. Nagel at page 23 of its opinion.

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for the proposition that Cody's quote, Cody's local layout requirements are used to change the initial constraint imposed by the design rule and that change that is calculated using the simulations is a local process modification.

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So the board relied on what Cody says and its background, what it's describing for its detailed description of its optimization technique.

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It relied on figures five, six, and seven.

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And it then relied on the testimony from Dr. Nagel to reach its factual determination that the local process modification is disclosed in Cody.

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The suggestion earlier this morning that the board adopted a different finding, that it was changes to the initial design rules,

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Respectfully, we think that's an unreasonable reading of the final written decision.

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Throughout the proceeding, our position was clear that the changes being made were changes to the initial constraints.

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We made that argument in our petition at Appendix 214.

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We reiterated in our reply at 2231.

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And it's the position that Dr. Nagel provided at Appendix 345 in his declaration, which is paragraph 166.

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The board identified our arguments in walking through the various parties positions and the facts and law supporting them.

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At page 15, it identified our argument as a change to the initial constraint.

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At page 21, it identified our argument as a change to the initial constraint.

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At page 22, it said, having reviewed this entire record, we agree with RPX and its expert Dr. Nago.

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And then at page 23, it approvingly cites Dr. Nago's quote on paragraph 166, where he expressly says that the change is a change to the local process modification.

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When later addressing the myriad of arguments that IYM raised below but doesn't present here, the board at instances did refer to changes to the design rules.

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And that is not entirely correct in the sense that what was changed was a constraint.

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However, the rules impose the constraints.

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And so they do go hand in hand.

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It's the best analogy I could come up with.

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I took my curfew for my children's 8 PM, but maybe Friday night we're watching a movie and it extended to 8 30.

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My kids might say I've changed the rule.

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I might say I just changed the application of that rule to that specific scenario.

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More importantly, limitation D is setting up how you calculate how you compute the change that needs to be applied.

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Limitation E is where you actually make the change.

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So that's showing you expressly what is being changed.

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And when the board addresses limitation E, appendix 33, and it looks at figure 6, it's making clear that what's happening is you have an initial distance, and then you're adding to that initial distance.

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Now again, the only way that that initial distance was set in COTI is by an initial constraint distance.

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And so you must, you're adding on to it.

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So we see that the board was not confused as to what was being changed.

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It's that D1.

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D1 is now becoming D1 plus a D delta.

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And that's a change to an initial constraint.

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Turning to the argument on limitation E, which is the additional distances.

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Again, Cody discloses only minimum spacing and minimum line, which are distance constraints.

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There are theoretical alternative constraints that would exist, such as a fixed position constraint, which would literally mean rather than increasing the distance between two components, setting an extra y parameter for each of those and fixing them on that board.

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Our expert agreed that theoretically, you could do that.

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But when asked, isn't that what a person of skill would actually have interpreted Cody disclosing, would have done to make the optimization shown in Figure 6?

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He said, that's a nightmare.

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No one would have done it.

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It's a completely speculative interpretation or theoretical implementation that technically exists, but no reasonable person reading Cody would find that that's what is being disclosed.

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Indeed, their own expert conceded Cody says nothing about fixed point constraints.

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As for area constraints, the other issue that they raise on appeal, IOM below never argued that Cody actually discloses area constraints.

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They kind of lumped it together with fixed point constraints and said these are things that were known and therefore a person of skill in the eye would bring that knowledge to reading Cody and would be confused as to what the additional constraints that are disclosed in Cody.

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It wasn't until their cert reply that they happened in their lengthy string site to site to Cody, a different portion of Cody, columns 5, lines 30 to 33.

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And that's kind of the hook they've used to bring up on appeal.

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So it's unsurprising that there's no expert testimony here that Cody discloses area as an actual constraint.

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Regardless of a potential waiver and the fact that there's no expert testimony on it, it's a red herring because the embodiments in which area is referenced as a potential constraint.

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There's one embodiment at column five, lines 37 to 43, and in that embodiment, area is referenced as not a constraint.

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It literally says that you optimize without regard to the area of the chip.

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So in that embodiment, which again would be using the additional distances 518 that the board found to meet the limitation, those additional constraints cannot be an area constraint because area is not being used as a constraint.

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In the second embodiment, immediately following that, where area is referenced as a constraint, they're setting a limitation on the size of the chip.

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They're saying optimize it as much as you want, which again, the optimization, everyone agrees, requires moving objects further apart.

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But we're going to set a limit on the size of the chip, maybe one inch by one inch.

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And you can't go larger than that.

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So it does limit how much you can move all the objects.

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But there is nothing in the record to explain how limiting the size of the chip would accomplish the optimization that's shown in figure 6 to resolve the local problem areas shown in figure 7.

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You have local problem areas.

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You're resolving them by moving farther apart.

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And there's nothing in the record to explain how an area constraint could possibly do that.

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As for claim 14.

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Claim 14 limits Claim 1 to use the use of a heuristic method.

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The board found that it would have been obvious to modify CODI to use a heuristic rather than an optimization algorithm.

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And maybe two critical fact findings that substantial evidence supports and which merit affirmation of the finding.

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First, the board found that it would have been well known in the art, that heuristic algorithms were well known in the art.

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There is no real dispute on that any longer.

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Page 22 of the reply brief, they agree.

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They were well known in the art.

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IYM seems to be taking the position that while they were well known in the art of integrated circuit layout using computers, it wasn't known to use them in the specific context of plane 14, which requires using these new local constraint distances.

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It's a chicken and the egg issue, where because we allegedly came up with a novel idea of having a new local constraint distance, no one could have possibly used a heuristic to do that.

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But there's nothing in the patent, as the board found at appendix 46 to 47, about heuristics and any unique capability of using a heuristic to enforce a new local constraint distance.

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The only reference to a heuristic in the 012 patent is to make clear that a conventional heuristic, such as what was disclosed in the Chen patent, which was published seven years before the filing date of the 012 patent, you could use one of those.

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It was just a simple example that you could use.

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And so if there is something unique about using heuristic, there's certainly not disclosed in the 012 pad.

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As for the viable substitution, the board relied on Dr. Nagel's testimony, which he supported with reference both to the Allen reference, which shows the use of a heuristic algorithm to make adjustments in an integrated circuit layout, and on the Chen reference, which is expressed as reference as admitted prior art in the 012 pattern, as again showing a heuristic algorithm that can be used in this exact context.

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So based on the record, you have optimization can be used and you have heuristics can be used.

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And there was no dispute that using them, that it would be unduly burdensome on a person who's going to have to do so.

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There was a reference to Dr. Nago's deposition testimony where he said it would be hard to know what precise algorithm to use in CODI.

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The very next question is, well, what specific heuristic would a person with skill in the art use?

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And he said the Chen reference.

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So while he said it was hard, in the very next sentence, he said he'd use the Chen reference.

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And he explained why, because heuristics, while they don't achieve the optimum result, they're computationally less intensive.

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And he reiterated that on Appendix 2076 when he's asked the direct question from IYM's counsel, what's the motivation to use a heuristic?

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So he gives that express answer right there.

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So the board's finding that they would be viable substitutes, completely grounded in the record evidence.

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the finding of obviousness naturally falls.

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We have a simple substitution of one known element for another to yield a predictable solution.

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The viability of the substitution goes to the fact that it's a predictable solution.

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There's not going to be any challenges in putting these together.

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So a simple person of skill in the art is going to be confronted with these designs and recognize that they can substitute Cody's optimization for heuristic disclosures in the prior art, whether it's Chen, general knowledge, what have you.

[00:25:41] Speaker 00:
Unless there's any questions, I'll leave it the rest of my time.

[00:25:44] Speaker 02:
Thank you, counsel.

[00:26:00] Speaker 01:
That was notable for what we didn't hear.

[00:26:03] Speaker 01:
The board expressly found that the limitation D, the local process modification, was met by changes to initial design rules 505.

[00:26:14] Speaker 01:
The board found nothing else met that limitation.

[00:26:17] Speaker 01:
Council did not attempt and did not argue up here today or in their brief that the board's finding that changes to initial design rules 505

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is disclosed in Cody.

[00:26:32] Speaker 01:
There are no such changes.

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And since there is no dispute that Cody does not change initial design rules 505, the only dispute with respect to limitation D is what did the board find.

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And the board tells us what they found

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over and over again.

[00:26:51] Speaker 01:
They say on page 22, the changes to initial design rules 505 that result from running simulations on layout 510 amount to the claim local process modifications.

[00:27:05] Speaker 01:
On page 23, they said Dr. Navel's testimony is consistent with Cody's disclosure of the changes to initial design rules 505.

[00:27:16] Speaker 01:
On page 32 of their decision, they said, as we previously explained, when addressing how Cody teaches the claim local process modifications, Cody discloses making changes to initial design rules 505.

[00:27:32] Speaker 01:
And they made that finding because RPX repeatedly and consistently took the position below that Cody's changes to design rules 505.

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meet the local process modifications.

[00:27:47] Speaker 01:
And that's not my language on repeatedly and consistently.

[00:27:51] Speaker 01:
That's the board's on page 26 of its decision.

[00:27:55] Speaker 01:
Now on appeal, RPX argues that's not what the board found.

[00:28:00] Speaker 01:
As that is certainly what the board found, this court cannot affirm because this court reviews the analysis provided by the board and the evidence relied on.

[00:28:12] Speaker 01:
And what you heard on appeal, the only alternative, the reason which could only get them revamped, they argued that the initial constraints in Cody are the initial constraints of the claim.

[00:28:26] Speaker 01:
The important thing there is Cody doesn't use the words initial constraints.

[00:28:31] Speaker 01:
Cody uses the words designers.

[00:28:33] Speaker 01:
And unable to support their argument below or the board's decision, they attempt to make their argument bigger.

[00:28:41] Speaker 01:
Now with respect to the disclosure of area, Cody only discloses area constraints with respect to additional constraints.

[00:28:51] Speaker 01:
Cody states when discussing additional constraints, it says generating local layout requirements 518 to optimize layout characteristics, e.g.

[00:29:03] Speaker 01:
area.

[00:29:04] Speaker 01:
Council pointed to a supposed different embodiment that keeps area constant.

[00:29:09] Speaker 01:
What Council didn't tell you is that Cody discloses the constraint used in that embodiment.

[00:29:16] Speaker 01:
It's on column 5, lines 44 to 44.

[00:29:19] Speaker 01:
I mean, column 5, line 36 to 40.

[00:29:21] Speaker 01:
In that embodiment, COTI discloses a predetermined target process latitude, regardless of area.

[00:29:30] Speaker 01:
So process latitude would be the constraint there, not distance.

[00:29:35] Speaker 01:
So COTI indisputably discloses area constraints and process latitude constraints, and not just distance constraints.

[00:29:45] Speaker 01:
And with respect to the argument that, well, we didn't raise area constraints below and it's been waived, that's just not true if you look at, well, our response brief or, sorry.

[00:30:00] Speaker 01:
APPX 1714, which was our patent owner's response, APPX 2678.

[00:30:07] Speaker 01:
That was our server reply below.

[00:30:09] Speaker 01:
In both of them, we identified the additional constraints disclosed in code.

[00:30:13] Speaker 01:
Unless the court has any questions.

[00:30:15] Speaker 02:
Thank you.

[00:30:16] Speaker 02:
As you have observed, we have our own constraints.

[00:30:19] Speaker 01:
What?

[00:30:20] Speaker 02:
We have our own constraints.

[00:30:21] Speaker 02:
We'll take the case under advisement.