[00:00:19] Speaker 01: Well, similar to the previous argument involving the same old 12 patents, this is IYM Technologies versus OptiX Corporation and Advanced Micro Devices, 2019-1762. [00:00:33] Speaker 01: Mr. Tiefenzenzo again. [00:00:34] Speaker 01: Good morning, Your Honors. [00:00:46] Speaker 04: With respect to Allen, the board's conclusion of obviousness cannot stand because Allen, the primary reference in this action, fails to disclose enforcing new local constraint distances. [00:01:00] Speaker 04: The parties here agree that a constraint is a limit. [00:01:04] Speaker 04: The claim language requires enforcing a constraint, enforcing a limit. [00:01:10] Speaker 04: And the dispute here concerns what it means to enforce a limit. [00:01:15] Speaker 04: IyM proposes that in the context of the patent enforcing a limit means compelling compliance with that limit such that violations of that limit are removed. [00:01:28] Speaker 04: In particular finding solutions or adjustments to the layout that remove violations of the limit. [00:01:35] Speaker 04: The board [00:01:38] Speaker 04: And further, no matter what enforcing a limit means, it cannot encompass ignoring all violations of that limit, as done by Allen, the primary reference. [00:01:50] Speaker 04: The board found otherwise by determining the broadest reasonable construction of enforcing a constraint distance is solving a set of linear equations or constraints after incorporating the new local constraint distances. [00:02:05] Speaker 04: That simply fails to encapsulate [00:02:08] Speaker 04: what it means to enforce. [00:02:11] Speaker 04: We begin with the language of the claims. [00:02:14] Speaker 04: The term enforcing appears as part of the phrase enforcing said new local constraint distances. [00:02:22] Speaker 04: So we're enforcing a constraint or limit and a particular type, a distance. [00:02:27] Speaker 04: So there's limiting distances that must be placed on the layout, and that's what's being enforced. [00:02:34] Speaker 04: The choice of words can't be ignored in the claims. [00:02:37] Speaker 04: Enforcing is overt. [00:02:39] Speaker 04: It generally connotates some meaning of compelling compliance. [00:02:46] Speaker 04: Consistent with IYM's construction to enforce or compel compliance with a limiting distance is to ensure that violations of that distance are removed. [00:02:59] Speaker 04: The board's finding that enforcing means-solving problems that include constraint distances disregards the plain language of the claims. [00:03:09] Speaker 04: Plainly, not all solutions to equations that use constraint distances will result in compliance. [00:03:21] Speaker 04: When looking at the claims the enforcement specified by the claims Must result in a solution that provides new coordinates for layout objects, and that's the last limitation So in the context of the claim you can't enforce on something where there's no violations because the result of enforcing must result in new coordinates for the layout objects and [00:03:48] Speaker 04: Now with respect to the specification, the specification is consistent with the ordinary meaning of enforcing. [00:03:53] Speaker 04: Specification teaches that the enforcing step occurs when local constraint distance are violated, and that's column four, line 12 through 16. [00:04:04] Speaker 04: The patent gives two examples of how the enforcing step, it may be performed, or two embodiments, it refers to them as. [00:04:12] Speaker 04: And in both embodiments, the enforcing step removes violations. [00:04:17] Speaker 04: With respect to the first embodiment for local constraint enforcement, it's in column 4, line 17 through 27, the enforcement embodiment, quote, removes the new violations introduced by local constraint distances. [00:04:33] Speaker 01: And the way it enforces is to- So your view is for there to be enforcement, there must have been violations? [00:04:40] Speaker 04: Yes. [00:04:41] Speaker 04: We believe the plain language of the claim requires that, because the last... Well, plain language doesn't specify one way or another. [00:04:49] Speaker 01: It says enforcing constraint distances, and what you refer to in the specification are preferred embodiments. [00:04:58] Speaker 04: You are correct, Your Honor, but limitation G, the last limitation of the claims, requires updating the coordinate variables of the layout objects according to the solutions obtained from enforcing. [00:05:11] Speaker 04: So the last limitation requires solutions to be obtained from enforcing. [00:05:17] Speaker 04: And if there's no violations, there's no solutions. [00:05:21] Speaker 04: because otherwise the layout would just remain the same. [00:05:24] Speaker 04: So the claims themselves do require that there are violations. [00:05:28] Speaker 04: Otherwise, there would be no updating of the coordinate variables. [00:05:36] Speaker 00: I don't know. [00:05:36] Speaker 00: It doesn't make sense to me. [00:05:38] Speaker 00: I'll pick up on the hypothetical proposed by the Children's Council. [00:05:45] Speaker 00: My children also had an 8 o'clock bedtime for most of their lives. [00:05:49] Speaker 00: They all go up to bed. [00:05:50] Speaker 00: I don't have to punish anyone to make them do it. [00:05:54] Speaker 00: I believe I'm enforcing their 8 o'clock bedtime when they all go up and head to bed. [00:05:58] Speaker 00: Nobody violates the 8 o'clock bedtime, but I still believe I've enforced an 8 o'clock bedtime. [00:06:04] Speaker 04: Okay, well, let's talk about the example. [00:06:06] Speaker 04: It's on page 48 and 49 of their response. [00:06:09] Speaker 04: And we're in the context of enforcing a constraint or a limit. [00:06:13] Speaker 04: So, RPX argues that if at a particular location, two components are 10 nanometers apart, we're going to apply a new local constraint distance of 15 nanometers to that location. [00:06:29] Speaker 04: Now, using the board's construction, [00:06:33] Speaker 04: If a formula is used with 15 nanometers as a minimum limiting distance, if those two components goes to 12 nanometers, so they go from 10 to 12, but they don't go to 15, is 15 nanometers being enforced as a minimum constraint distance, a minimum limit? [00:06:55] Speaker 04: We submit that's not a reasonable construction. [00:06:58] Speaker 04: No reasonable person in the context of the 012 patent or in general, we believe, would say that if you go to 12, you can force a minimum constraint distance of 15 nanometers at that location. [00:07:15] Speaker 04: The claims themselves, the specification, I'm sorry, refers to failed enforcement. [00:07:21] Speaker 04: Failed enforcement is exactly like their example. [00:07:25] Speaker 04: It's when you can't get to 15. [00:07:28] Speaker 04: And that's on column. [00:07:30] Speaker 00: Are you still making a claim construction argument or have you morphed into a substantial evidence argument? [00:07:35] Speaker 04: This is claim construction because the board's construction would encompass something as enforcement when you've only gone from 10 to 12. [00:07:43] Speaker 04: Because the board's construction says as long as you use that 15 nanometers in an equation or constraint, whatever your result is, you've necessarily enforced, because you've gotten a solution using a constraint. [00:07:58] Speaker 04: Whereas our construction, and we submit that any reasonable construction requires actual enforcement of a limit. [00:08:06] Speaker 04: We don't, yeah, we just don't think it's reasonable to say a 15 nanometer minimum limiting distance has been enforced at a location where you've only moved things to 12 nanometers. [00:08:19] Speaker 04: And that's the problem with the board's construction and the problem with the board's report. [00:08:24] Speaker 04: The construction in the manner in which it was read on to out. [00:08:30] Speaker 04: And if we look at the second embodiment of the patent, it discusses the heuristic procedure, and it talks about removing violations one at a time using the heuristic procedure. [00:08:42] Speaker 04: In the context of this patent, the removing violations is what the enforcement's about. [00:08:49] Speaker 04: The heuristic procedure is the way it's done. [00:08:53] Speaker 04: Not all heuristic procedures enforce or remove violations. [00:08:58] Speaker 04: Just like not all equations that happen to use constraints wind up enforcing those constraints. [00:09:06] Speaker 04: The actual solutions matter. [00:09:09] Speaker 04: Because if the solutions do not separate the components by the minimum required spacing, it can't be said that enforcement has occurred. [00:09:18] Speaker 04: Claim 12 makes clear the difference between [00:09:22] Speaker 04: enforcement and unsuccessful enforcement. [00:09:28] Speaker 04: Claim 12 specifically refers to unsuccessful enforcement. [00:09:33] Speaker 04: What is unsuccessful enforcement if it's not removing violations? [00:09:37] Speaker 04: RPX gives no response to that. [00:09:40] Speaker 04: Unsuccessful enforcement is what happens when at certain locations you're unable to enforce. [00:09:47] Speaker 04: That's the plain language of Claim 12. [00:09:50] Speaker 04: And therefore, when you're unable to enforce, you have to do something else. [00:09:57] Speaker 04: Under the board's construction, as long as you've used the constraint in a formula, any solution you've got has enforced. [00:10:05] Speaker 04: And there would be no reason for claim 12. [00:10:08] Speaker 04: In fact, claim 12 would be illogical. [00:10:15] Speaker 04: Under the correct construction, RPX argues that LDR and GDR, which is disclosed in Allen, is enforced as a maximum constraint. [00:10:25] Speaker 04: The board found that RPX waived that argument below. [00:10:28] Speaker 04: And this is the final written decision on 32. [00:10:33] Speaker 04: Unless this court found that the board abused its discretion, under any construction where enforcing cannot encompass failed enforcing, reversal is required. [00:10:45] Speaker 04: RPX argues that the board did abuse this discretion, but we obviously disagree. [00:10:54] Speaker 04: In its reply below, RPX took the directly opposite position that it took in its petition. [00:11:02] Speaker 04: In its petition, RPX argued that the constraint [00:11:05] Speaker 04: for each of the multiple objects are space above segment is greater than or equal to LGR, LDR plus GDR. [00:11:14] Speaker 04: And this is the petition at page 43, the appendix at 183. [00:11:22] Speaker 04: That's a minimum constraint. [00:11:24] Speaker 04: It's saying the space above the segments have to be greater than or equal to LDR plus GDR. [00:11:30] Speaker 04: That was the only constraint it identified. [00:11:34] Speaker 04: After expert discovery, after we put in our response and reply, RPX came back and they did a 180. [00:11:42] Speaker 04: They said LDR plus GDR, it's not a minimum constraint as we argued in our position. [00:11:49] Speaker 04: It's a maximum constraint. [00:11:51] Speaker 04: Well, what they said in their position [00:11:55] Speaker 04: Petition is the space above segment has to be greater than or equal to LDR plus GDR. [00:12:01] Speaker 04: The board was not unreasonable in interpreting that as an argument concerning minimum constraint. [00:12:08] Speaker 04: RPX went on its petition at page 21, which is APX 161, to specify the design rules, including both the GDRs and the LDRs of Allen's system, determine the minimum size and spacing. [00:12:22] Speaker 04: So RPX told the board it's a minimum constraint. [00:12:27] Speaker 04: And just lastly, the board also found waiver based on the prejudice that would be to IYM. [00:12:37] Speaker 04: IYM didn't get a chance to address any of the new arguments with respect to either RPX's expert or its own expert. [00:12:45] Speaker 04: As such, the board's finding with respect to waiver was not an abuse of discretion. [00:12:52] Speaker 01: Thank you. [00:12:52] Speaker 01: Thank you, counsel. [00:12:53] Speaker 01: We will save you time, Mr. Adjunta. [00:13:08] Speaker 02: Thank you, Your Honors, and may it please the Court. [00:13:10] Speaker 02: Before the Board, IOM made only a single argument that it maintains on appeal. [00:13:14] Speaker 02: It argued that claim one's enforcing step should be narrowly construed as limited to removing violations, and that Allen didn't meet the enforcing step because it allegedly didn't remove violations. [00:13:25] Speaker 02: The Board properly rejected that narrow construction as too narrow under BRI, and that was fatal to IOM below. [00:13:31] Speaker 02: If your honors agree that IOIM's interpretation is unduly narrow, it should be fatal for IOIM's appeal as well. [00:13:37] Speaker 02: So I wanted to start with the plain language of Claim 1. [00:13:40] Speaker 02: It describes constructing new local constraint distances and then enforcing said new local constraint distances. [00:13:47] Speaker 02: We know that solutions are generated from the enforcing step because the next step in the claim refers to solutions obtained from the enforcing step. [00:13:54] Speaker 02: But claim one never mentions violations of new local constraint distances, let alone limit the enforcing step to removing any violations. [00:14:02] Speaker 02: The inventor, of course, could have chosen to limit the enforcing step to removing violations, but he did not. [00:14:08] Speaker 02: Turning to the specification, it makes clear that IYM's interpretation is too narrow. [00:14:13] Speaker 02: Now, council focused a lot on our unsuccessful enforcement argument, but I want to begin with our argument about constraints that are not violated at all. [00:14:22] Speaker 02: So with respect to the preferred embodiment of Figure 2, specification says the original layout is, quote, likely to violate some of the local constraint distances, end quote. [00:14:33] Speaker 02: This makes clear that not all new local constraint distances need be violated by the original layout. [00:14:38] Speaker 02: This is undisputed. [00:14:40] Speaker 02: At Appendix 2639, Highway M conceded that the patent expressly contemplates that not all new local constraint distances may be violated. [00:14:48] Speaker 02: The Figure 2 embodiment solves a system of equations including all the new local constraint distances, not just those violated by the original layout. [00:14:56] Speaker 02: So that begs the question, are the new local constraint distances that are not violated by the original layout but are complied with in the new layout enforced? [00:15:05] Speaker 02: We would respectfully submit the answer is unquestionably yes. [00:15:09] Speaker 02: And this demonstrates that IYM's assertion that enforcing is limited to removing violations is unduly narrow because the broadest reasonable interpretation of enforcing must be broad enough to encompass the enforcing of those new local constraint distances that were not violated by the original layup. [00:15:27] Speaker 00: Well, in fact, wouldn't this claim not be infringed under [00:15:31] Speaker 00: the construction proposed by any system which doesn't violate the constraint distances. [00:15:39] Speaker 02: I'm sorry, Your Honor, could you restate the question? [00:15:41] Speaker 00: Their view is to enforce, you have to have violations and you have to remove the violators. [00:15:46] Speaker 00: So wouldn't it be true that this entire claim would never be infringed by a method that didn't actually have any violations? [00:15:54] Speaker 02: If their construction was correct, then the answer would be yes. [00:15:58] Speaker 02: But obviously we disagree that that's the correct construction. [00:16:01] Speaker 02: Now, in the final written decision at appendix 12, the board made the factual finding that enforcing must cover the scenario where there is no violation to remove at all. [00:16:11] Speaker 02: That finding is supported by substantial evidence. [00:16:13] Speaker 02: The above discussed portions of the specification support that finding. [00:16:17] Speaker 02: And in addition, the board cited the testimony of IYM's own expert. [00:16:22] Speaker 00: You started with, I think, what is a very good argument for you, which is not all [00:16:27] Speaker 00: constraints are going to be violated, and they're nonetheless being enforced despite being violated. [00:16:32] Speaker 00: But what about the flip side, which is where he spent all of his time, which is what happens when there is a violation and there's no removal, no action taken? [00:16:43] Speaker 00: How are you enforcing something when there is, in fact, a violation and there is no action taken? [00:16:49] Speaker 02: So a couple of answers to that, Your Honor. [00:16:55] Speaker 00: Trust me there were consequences and that amounted to enforcement right so the first answer to the question is that? [00:17:04] Speaker 02: The BRI of enforcing has to be run enough to encompass the ones that are not violated at all So their construction is too narrow if it excludes the enforcings of some new local constraint distances that are not violated at all [00:17:16] Speaker 02: But with respect to the ones where the enforcement is unsuccessful, we would respectfully submit that unsuccessful enforcing is enforcing. [00:17:28] Speaker 00: Are you Aaron, my friend? [00:17:29] Speaker 02: I am, Your Honor. [00:17:30] Speaker 00: Billy? [00:17:31] Speaker 02: I am. [00:17:31] Speaker 00: You did nothing to get your child in bed after 8 o'clock. [00:17:34] Speaker 00: Did you successfully enforce their bedtime? [00:17:36] Speaker 02: Well, the place that I would challenge the premise that nothing is done, what the figure two embodiment does is it seeks to find a solution that complies with all of these constraints. [00:17:46] Speaker 02: Now, it may be possible that it cannot find a solution that complies with all the constraints. [00:17:50] Speaker 02: That does not mean it did nothing. [00:17:52] Speaker 02: It sought a solution that complied with all of them. [00:17:54] Speaker 02: And in some circumstances, that enforcing step is unsuccessful in certain locations. [00:18:00] Speaker 00: But then you haven't enforced. [00:18:04] Speaker 02: You have unsuccessfully enforced. [00:18:06] Speaker 02: And the reason I say that, Your Honor, is dependent claim 12 introduces an additional step. [00:18:11] Speaker 02: It is a step that is performed after the enforcing step. [00:18:14] Speaker 02: It looks at the result of the enforcing step and says, let's take some action on the locations where the enforcing step was unperformed. [00:18:21] Speaker 02: So dependent claim 12 does not undo the enforcing step. [00:18:25] Speaker 02: The enforcing step, according to claim one, is a step that is performed in the aggregate on all of the said new local constraint distances that were constructed. [00:18:34] Speaker 02: Nothing in dependent claim 12 in the action of K can undo the performance of the enforcing step in claim 1. [00:18:42] Speaker 02: But in addition, Your Honor, their construction is too narrow because, as I was just mentioning, the board made the finding that there may not be any violations at all. [00:18:50] Speaker 02: So the broadest reasonable interpretation of enforcing needs to be broad enough to cover the circumstance where there are no violations. [00:18:58] Speaker 02: So it can't be unsuccessful in that enforcement. [00:19:01] Speaker 02: And as I was mentioning, the board cited the testimony of IYM's own expert. [00:19:05] Speaker 02: At 24.08, he testified that step F, which was identified in the petition as the enforcing step, [00:19:12] Speaker 02: can be performed without removing violations, because there may not be violations. [00:19:17] Speaker 02: And he said, quote, you can enforce without having a violation. [00:19:20] Speaker 00: So how would it affect Allen if the construction were that when, in order to enforce, when there are violations, those have to be removed? [00:19:34] Speaker 00: So that doesn't exclude the possibility you're enforcing when there's no violations. [00:19:39] Speaker 00: But when there are violations, there has to be an action taken. [00:19:44] Speaker 00: How would that affect the obviousness? [00:19:46] Speaker 02: Well, the construction has to be broad enough to uncover. [00:19:49] Speaker 02: You can enforce a constraint that is not violated. [00:19:53] Speaker 00: I just said that, yes. [00:19:55] Speaker 02: Yeah. [00:19:55] Speaker 02: And so the construction just has to be broad enough to encompass that. [00:19:59] Speaker 02: And the reason that their construction is too narrow is because it excludes that. [00:20:03] Speaker 02: Right, and so. [00:20:04] Speaker 00: You're not answering my question. [00:20:05] Speaker 00: My question is what if the board's construction is wrong, but it is instead proper to construe it as enforcing, you're enforcing something when there's no violations, however, you're also only enforcing something if when there are violations, you're removing them. [00:20:24] Speaker 00: What I'm saying to you is tell me that we wouldn't have to vacate and remand because Alan, from a factual standpoint, still meets [00:20:32] Speaker 00: that definition, even if that is the correct definition. [00:20:35] Speaker 02: So the first answer is that the only issue that they raised below was based on this claim construction. [00:20:43] Speaker 02: It was sufficient for the board to resolve the party's dispute to reject their claim construction. [00:20:47] Speaker 02: They waived any other argument that enforcing could require anything or the animal could be needed. [00:20:52] Speaker 00: I have the belief that when I am asked on appeal to construe a term, that I am limited to accepting their definition or your definition. [00:21:01] Speaker 02: No, you're right. [00:21:03] Speaker 00: So they appealed claim construction. [00:21:05] Speaker 00: It's a question of law. [00:21:07] Speaker 00: I can construe the claim. [00:21:08] Speaker 00: If I construe the claim the way I'm proposing to you, what happens? [00:21:12] Speaker 02: I'm sorry, Your Honor. [00:21:12] Speaker 02: So could you just restate one more time what the construction would be? [00:21:16] Speaker 00: That enforcing requires taking action when there's noncompliance. [00:21:26] Speaker 02: I think that construction is too narrow for the reasons I said, that it doesn't cover the circumstance where these constraints are not violated. [00:21:34] Speaker 00: It sure does. [00:21:35] Speaker 00: Enforcing requires taking action when there's a violation. [00:21:38] Speaker 02: When there's a violation. [00:21:40] Speaker 00: When there's no violation, there's no action taken. [00:21:43] Speaker 00: And you're still enforcing. [00:21:44] Speaker 02: I think the reason that I have a problem with that construction potentially being too narrow is in Allen. [00:21:52] Speaker 02: The board didn't address the question of whether those constraints are violated or not. [00:21:56] Speaker 02: We believe that in our reply, we demonstrated that what is actually constrained is the space above or below the track. [00:22:02] Speaker 00: So your problem is really that if I were to construe the claim that way, I'd have to vacate and remand, and I couldn't just go ahead and affirm because the board didn't make any fact findings. [00:22:10] Speaker 00: about Alan that would allow me to affirm if I change the construction? [00:22:15] Speaker 02: Well, I believe the board did actually make the fact-findings that would allow you to affirm. [00:22:19] Speaker 02: The board found that it was undisputed by the parties that what the track-width routine in Alan does is that if the condition space is greater than or equal to the LDR plus GDR, which is the constraint distance, if that condition is met, Alan will continue to make the track wider until the condition fails. [00:22:35] Speaker 02: OK, so what we said in our reply is we didn't need to say whether this was a maximum or minimum constraint and whether there were violations removed. [00:22:44] Speaker 02: The notion of violations was only introduced by their claim construction. [00:22:48] Speaker 02: If we want to look at what's violated. [00:22:50] Speaker 01: If we don't agree with you on your defense here, would you say that it is moot if we affirm [00:23:01] Speaker 01: On the earlier appeal because that appeal involves all claims and this one doesn't Certainly your honor I can give you the I mean we're aware of this court's case in max linear. [00:23:15] Speaker 02: That's 880 f 1373 we're in a similar circumstance this court two cases one appeal from the board and [00:23:24] Speaker 02: this court said, when it affirmed the board's finding in one of the cases as a matter of collateral estoppel, that became binding in the second appeal. [00:23:31] Speaker 02: So yes, if you affirm the Cody decision, it covers all the claims, you could find that this appeal is moot under this court's max linear decision. [00:23:39] Speaker 01: And the claim construction that we're discussing here is moot. [00:23:44] Speaker 01: The claim's gone. [00:23:45] Speaker 01: Correct. [00:23:46] Speaker 01: Correct. [00:23:47] Speaker 02: Now, I wanted to briefly address their argument about at least some violations, Your Honors, because this argument was made in the reply of 10 to 14. [00:23:55] Speaker 02: It's a new argument that should not be considered. [00:23:58] Speaker 02: And if it is considered, it's wrong for a host of reasons. [00:24:01] Speaker 02: So I am alleges that the enforcing step does not occur if the layout doesn't have any violations to remove. [00:24:07] Speaker 02: How I am explicitly walked away from this proposed construction before the board. [00:24:10] Speaker 02: So before the board, much like here, it was a bit of a moving target. [00:24:13] Speaker 02: They offered three different variants for their enforcing construction. [00:24:17] Speaker 02: Removing violations was one. [00:24:19] Speaker 02: Attempting to remove violations was a second. [00:24:21] Speaker 02: And then, like here, in their reply, they said, you have to remove at least some violations. [00:24:26] Speaker 02: At the oral hearing, the board directly asked for their singular construction. [00:24:30] Speaker 02: They chose remove violations. [00:24:32] Speaker 02: They did not choose remove at least some violations. [00:24:35] Speaker 02: So this entire argument that's in their reply and the council was just addressing, that argument is waived in our view. [00:24:41] Speaker 02: It's also unsupported by the intrinsic evidence. [00:24:44] Speaker 02: Their argument is basically that this enforcing step comes with a big condition. [00:24:49] Speaker 02: Before you can do the enforcing step, after you've created constraints, you need to go make a determination about whether any of these constraints are violated. [00:24:57] Speaker 02: The specification, figure one, figure two, none of them talk about the enforcing step as being conditioned in any way. [00:25:05] Speaker 02: In addition, IYM's assertion that the solution from the enforcing step couldn't be used to update the layout coordinates, which is required by a different step in claim one if there are no violations, is wrong. [00:25:16] Speaker 02: So IYM acknowledged in their brief at page 10 that the embodiment of the enforcing step in figure two places the layout objects to comply with the new local constraint distances, quote, while also optimizing other properties of the layout, end quote. [00:25:31] Speaker 02: And the specific example from the specification that they cited is minimizing the wire length in the layout. [00:25:38] Speaker 02: So what that means is if you created a new set of constraints and used the figure two embodiment, what it is going to do is come up with a new layout that complies with all those constraints, even though they weren't violated, but it is going to change the layout to minimize the wire length. [00:25:52] Speaker 02: So IOM's assertion that the enforcing step does not occur if there are no violations is unsupported by the intrinsic evidence. [00:25:59] Speaker 02: It's also directly refuted by the board's factual finding, again at Appendix 12, that enforcing has to be broad enough to cover a scenario where there are no violations. [00:26:08] Speaker 02: And it's also inconsistent with the testimony of their own expert that the board credited at Appendix 2408 that you can enforce without violations. [00:26:16] Speaker 02: So for all these reasons, we respectfully submit that Your Honor should reject their attempt to limit enforcing to removing violations. [00:26:22] Speaker 02: And then if you do, that should be fatal. [00:26:26] Speaker 02: I also wanted to briefly discuss the board's construction. [00:26:28] Speaker 02: So again, it was unnecessary for the board to actually affirmatively construe the claims. [00:26:33] Speaker 02: RPX did not offer a late construction. [00:26:36] Speaker 02: In fact, it argued at Appendix 2193 that IYM waived any other arguments. [00:26:41] Speaker 02: So it was sufficient for the board to reject the construction. [00:26:44] Speaker 02: But the board did go further and essentially adopted the district court's construction with one clarification. [00:26:51] Speaker 02: Other than not being limited to removing violations, the board's construction doesn't materially differ from IYM's. [00:26:58] Speaker 02: Despite that, they curiously allege that the construction is wrong because it's too narrow, because it excludes the heuristic embodiment. [00:27:04] Speaker 02: But they don't ever explain how it could possibly help IYM if the board's construction was too narrow. [00:27:09] Speaker 02: And they're simply incorrect about this construction excluding the heuristic. [00:27:13] Speaker 02: The construction simply says that you find solutions after you generate these new local constraint distances. [00:27:20] Speaker 02: And that's exactly what the heuristic embodiment does. [00:27:23] Speaker 02: So whatever unstated meaning they're imparting to the board's construction to exclude a heuristic, certainly not what the board intended. [00:27:29] Speaker 02: Because the board found that Alan meets their construction, and Alan only uses a heuristic. [00:27:35] Speaker 02: Unless your honor has had any questions. [00:27:38] Speaker 01: Thank you, counsel. [00:27:39] Speaker 01: Thank you, your honor. [00:27:40] Speaker 01: Mr. Deacon-Sanzo has a rebuttal phone. [00:27:52] Speaker 04: RPX argued below that LDR plus GDR is a minimum constraint. [00:27:58] Speaker 04: There is no dispute. [00:28:00] Speaker 04: When Allen discloses that the space above the segment is less than that minimum constraint, Allen does nothing. [00:28:11] Speaker 04: It doesn't seek to enforce. [00:28:12] Speaker 04: It doesn't attempt to enforce. [00:28:13] Speaker 04: It doesn't partially enforce. [00:28:16] Speaker 04: It ignores it. [00:28:18] Speaker 04: Thus, under any reasonable construction of what it means to enforce something, as a minimum constraint, which is the only type of constraint RPX identified, substantial evidence does not support the board's finding. [00:28:33] Speaker 01: Council, do you agree that if we affirm the previous case, this one is moot? [00:28:43] Speaker 04: I don't believe so, because they're procedurally, they're separate appeals. [00:28:48] Speaker 04: If they were combined into one appeal, I would agree. [00:28:51] Speaker 03: What difference does it make? [00:28:53] Speaker 03: There are not overlapping claims, right? [00:28:57] Speaker 04: Well, there are certain claims in the first one. [00:29:00] Speaker 03: But the prior appeal covers everything. [00:29:01] Speaker 04: Yes. [00:29:03] Speaker 03: And the board invalidated all the claims. [00:29:05] Speaker 03: Yes. [00:29:05] Speaker 03: And if we affirm the invalidation of all the claims, does it matter? [00:29:10] Speaker 03: What's going on in this appeal? [00:29:11] Speaker 03: The claims are gone. [00:29:12] Speaker 03: You can't assert them. [00:29:13] Speaker 04: I understand that, but the problem would become if there are subsequent procedural appellate processes with respect to the first appeal, and then the second appeal goes down and becomes final. [00:29:24] Speaker 04: So then we've lost the patent while in other appeals, still a patent. [00:29:28] Speaker 03: I don't understand what you mean. [00:29:29] Speaker 03: Do you mean if you're pursuing a bond and things like that? [00:29:31] Speaker 03: Yeah. [00:29:32] Speaker 03: Well, then you have to do it in this case, too. [00:29:34] Speaker 03: I mean, if you think it's dismissed incorrectly as moot based on the other case, then you have to pursue appellate procedures here as well. [00:29:41] Speaker 03: OK. [00:29:42] Speaker 03: I understand. [00:29:42] Speaker 03: You don't see how you waive your rights to anything. [00:29:45] Speaker 04: OK. [00:29:45] Speaker 04: I just thought if we agreed that it would be moot, then we would waive our rights to appeal a finding that it's moot. [00:29:51] Speaker 04: That was my concern. [00:29:53] Speaker 04: With respect to whether we waived any arguments, [00:29:56] Speaker 04: Our papers below expressly identified a construction and also said, in no uncertain terms, and this is APPX 1688 and APPX 1689, under any reasonable construction of the claim language, Alan can't be said to enforce. [00:30:15] Speaker 04: We said it on both pages. [00:30:16] Speaker 04: That's where we cited the dictionary. [00:30:19] Speaker 04: So there's no waiver at issue here. [00:30:22] Speaker 04: With respect to the experts on our reply on 11 through 12, our expert was said numerous times that [00:30:33] Speaker 04: Enforcing is a step of removing violations. [00:30:36] Speaker 04: Dr. Nagel, our expert with respect to claim one, expressly agreed that that's the proper construction. [00:30:45] Speaker 04: Our expert also testified, I don't see how we can understand enforcing is not also removing violations. [00:30:51] Speaker 04: And all the quotes are on our reply 11 through 12. [00:30:55] Speaker 04: And although the board found the expert's testimony inconclusive, and this is on page 12 of its decision, if this court looks at the sum total of the expert's testimony, we submit that it should be weighed in favor of IYM.