[00:00:00] Speaker 03:
We'll hear argument next in 20-1271, Kinetic Ink versus Samsung Electronics, Inc.

[00:00:10] Speaker 03:
Mr. Halderman.

[00:00:12] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
May it please the court, my name is Mark Halderman from Armstrong Teasdale here on behalf of Appellant Kinetic Ink.

[00:00:19] Speaker 02:
The primary dispute for the court to resolve is whether the board erred in reaching its obviousness determinations by applying, at best, the broadest possible interpretations of the orientation detector and the sequence limitations of the 106 patent, identified as numbers one and two on page seven of Connecticut's blue brief, rather than their broadest reasonable interpretations consistent with the specification as required by this court.

[00:00:46] Speaker 02:
The board is required to interpret the claims consistently with the specification, not assess whether Samsung's overly broad reading of the terms were expressly precluded as it did throughout its decision.

[00:00:59] Speaker 02:
The board's construction of the orientation limitation is impermissibly broad for four main reasons.

[00:01:05] Speaker 02:
First, the board interpreted each as referring to one or more slow motion phases without any intrinsic evidence

[00:01:13] Speaker 02:
that its usage departs from its ordinary meaning of two or more.

[00:01:17] Speaker 02:
Second, it interpreted the singular word orientation as permitting the detection of multiple orientations during a single slow motion phase.

[00:01:27] Speaker 02:
Third, it reads the term orientation condition out of Claim 12 and the specification by allowing multiple detected orientations during a single phase.

[00:01:38] Speaker 02:
And finally,

[00:01:39] Speaker 02:
It improperly discounts Figure 3 and its discussion and specification, which confirms that the limitation requires the detection of orientation conditions for two or more slow-motion phases.

[00:01:51] Speaker 00:
Likewise... So what is your basis to say that each always means two or more, just dictionary definitions?

[00:01:59] Speaker 02:
Well, we have introduced two... We had two separate dictionary definitions.

[00:02:05] Speaker 02:
We had a federal circuit decision.

[00:02:08] Speaker 02:
that also interpreted each as meaning two or more, as well as our expert's testimony.

[00:02:15] Speaker 02:
Now, Samsung, on the other hand, has only its expert's testimony and has pointed to absolutely no evidence that it could mean one or more.

[00:02:32] Speaker 02:
Okay, go ahead.

[00:02:34] Speaker 02:
Likewise, the board's construction of the sequence limitation is impermissibly broad because, first, it reads the claim language configured to maintain sequence with each orientation being limited to a slow-motion phase out of the claim.

[00:02:49] Speaker 02:
It reads the requirement of an intermittent fast-motion phase out of the claims, and it also discounts that during prosecution, kinetic distinguished prior arc that allowed events based on all motion phases

[00:03:03] Speaker 02:
and was not limited to orientations for slow motion phases, concluding instead that limiting the sequence by mere happenstance, which the prior art could also do, is sufficient.

[00:03:16] Speaker 02:
Recognizing the inherent weakness of its arguments in the record, Samson concocts at least two new arguments, a zero article argument and a claim 11 differentiation argument, and introduces extra record evidence.

[00:03:31] Speaker 02:
tactics that are not permitted by this court and should be discounted.

[00:03:34] Speaker 02:
When the 106 patent is properly interpreted, consistently with the plain claim language and the teaching of the specification, the assertive combinations do not teach the disputed limitations.

[00:03:47] Speaker 02:
Contrary to the 106 patent, Linjama does not teach the detection of orientation for any slow motion phase, let alone for two or more slow motion phases.

[00:03:56] Speaker 02:
But rather, Linjama receives a series of orientation signals

[00:04:00] Speaker 02:
that are uncorrelated to any motion phase.

[00:04:04] Speaker 02:
Indeed, the Linjama orientation signals, for them to be limited to a slow motion phase, the Linjama device must remain stationary.

[00:04:13] Speaker 02:
Again, contrary to the 106 patent, which requires motion.

[00:04:17] Speaker 02:
If the Linjama device does indeed move, it would detect fast motion orientations, and Linjama teaches no mechanism to preclude such fast motion orientations from the sequence.

[00:04:31] Speaker 00:
Do we have to agree that all of these errors that you claim occur in the claim construction occurred in order for us to conclude that the claim construction is wrong?

[00:04:44] Speaker 02:
No, you do not, Your Honor.

[00:04:45] Speaker 02:
I believe if any of these interpretations are ruled in our favor that SAMHSA cannot prove that the asserted references disclose the 106 pattern.

[00:05:01] Speaker 02:
If you agree with us that there are two slow-motion phases, petitioners' embodiment only discloses one.

[00:05:10] Speaker 02:
If you agree that orientation is detected for the phase rather than merely at an instant in time during the phase, Linjama, again, does not disclose detecting orientation for a phase.

[00:05:28] Speaker 02:
And the same thing with the sequence limitation, when genre is not configured to limit at all.

[00:05:35] Speaker 02:
So if you agree with us there, again, they lose.

[00:05:39] Speaker 02:
And I believe that was all.

[00:05:50] Speaker 02:
The board departed from the plain claim language in the teaching of the specification in construing the orientation detector limitation as permitting the detection of multiple orientations during a single slow motion phase.

[00:06:03] Speaker 02:
But the orientation detector limitation recites detect orientation singular for each slow motion phase.

[00:06:12] Speaker 02:
The proper, broadest, reasonable interpretation of the plain claim language that is consistent with the specification

[00:06:18] Speaker 02:
is detect orientation conditions representative of two or more slow motion phases.

[00:06:24] Speaker 02:
Contrary to the BRI of the term, the assertive prior art references teach the detection of multiple orientation signals during a single phase, but are not representative of the orientation of the phase.

[00:06:37] Speaker 02:
To reach a seronious construction, Samson asks this court to depart from the ordinary meaning of the term each, which requires two or more slow motion phases.

[00:06:46] Speaker 02:
and upheld the board's erroneous interpretation that it permits one single slow motion phase.

[00:06:52] Speaker 02:
Despite multiple dictionary definitions and this court's interpretation that each refers to two or more, the board agreed with Samsung's conclusory expert opinion that each can mean one or more.

[00:07:05] Speaker 02:
Kinetics interpretation is further confirmed by Figure 3, shown on page 10 of Kinetics Blue Brief, and its related discussion that states that the signal processing will identify the gesture as long as two orientation conditions, intermittent by motion conditions, are met.

[00:07:23] Speaker 02:
Further, the board's interpretation of the orientation detector limitation

[00:07:28] Speaker 02:
requires the court to agree that the claim term orientation, which is singular, permits detection of multiple orientations during or within a single phase, rather than for the phase as are cited in the claims.

[00:07:42] Speaker 02:
SAMHSA asks the court to ignore that the subsequent limitation, the sequence limitation, maintains the detected orientations, plural, confirming that the previous use of orientation is singular.

[00:07:55] Speaker 02:
Further, the board's construction is inconsistent with the use of the term orientation condition in Claim 12, an argument which the board failed to address in its final written decision.

[00:08:05] Speaker 02:
In Claim 12, yes, Your Honor.

[00:08:10] Speaker 04:
May I please interrupt, Judge Clem?

[00:08:13] Speaker 04:
In the previous case, there was a distinction drawn between the broadest possible interpretation and the broadest reasonable interpretation.

[00:08:22] Speaker 04:
He has drawn the same distinction for purposes of this appeal.

[00:08:26] Speaker 04:
My question is, is the board's decision defensible as the broadest possible interpretation?

[00:08:36] Speaker 04:
The reason why I ask that is that, in the previous case, a distinction was made between the two, arguing that the broadest reasonable interpretation should be given because the broadest

[00:08:50] Speaker 04:
possible interpretation would have frustrated the purpose of the invention.

[00:08:55] Speaker 04:
And I didn't hear any argument you being made here that the board's interpretation frustrated any purpose of the invention.

[00:09:05] Speaker 02:
Your Honor, yes, it does indeed frustrate the entire teaching of the patent.

[00:09:12] Speaker 02:
For example, in column seven, starting at line 25,

[00:09:20] Speaker 02:
By using a sequence of orientation conditions of the handheld device, the signal processing generates a fault-resilient command absent complex analysis during periods of fast motion.

[00:09:34] Speaker 02:
The presence of one or more periods of fast motion serves as confirmation that the sequence is the product of intentional user actions.

[00:09:43] Speaker 02:
So under the boards brought us possible

[00:09:46] Speaker 02:
interpretation, which completely discounts the specification, this fault resilient technique is completely read out of the claims.

[00:10:05] Speaker 02:
The board's construction is also inconsistent with the use of the term orientation condition in Claim 12, which the board failed to address in the final decision.

[00:10:13] Speaker 02:
In Claim 12, a preceding limitation... Am I done?

[00:10:20] Speaker 03:
You can continue.

[00:10:22] Speaker 02:
In Claim 12, a preceding limitation recites that an orientation condition, not an orientation signal or measurement, is what the invention detects.

[00:10:32] Speaker 02:
The specification defines orientation condition as sustained values of the X, Y, and Z sensor data within certain limits over a predefined length of time.

[00:10:43] Speaker 02:
such sustained values correspond to a single orientation such as orientation face up.

[00:10:51] Speaker 02:
SAMHSA asks the court to read the term orientation out of Claim 12 and the specification.

[00:10:56] Speaker 02:
Instead, SAMHSA contends that individual orientation signals 01 and 02 in SAMHSA and the board's example can be detected orientations.

[00:11:06] Speaker 02:
However, individual orientation signals

[00:11:09] Speaker 02:
Each for an instant in time, T1 and T2, in Samsung and the board's example, cannot have sustained values.

[00:11:18] Speaker 02:
Samsung and the board fail to read the claims consistently with the term orientation condition and instead require a strained reading that ignores the term entirely.

[00:11:29] Speaker 02:
Figure 3 confirms that only a single orientation condition for each slow motion phase as a whole is detected.

[00:11:36] Speaker 02:
despite each such phase having small variations in the X, Y, and Z sensor reading.

[00:11:42] Speaker 02:
Indeed, the specification describing Figure 3 explicitly recites there are two orientation conditions detected, including viewing the visual display, 352, and maintaining the handheld in the final position, 354.

[00:12:00] Speaker 02:
Nowhere does a patent teach or even suggest

[00:12:03] Speaker 02:
multiple orientations can be detected during or within a single phase.

[00:12:09] Speaker 02:
The board also improperly construed the sequence limitation, allowing the claimed sequence of the detected orientations to be limited to a slow motion phase, mainly because the device never moved by near happenstance, rather than being limited by the invention itself.

[00:12:27] Speaker 02:
But the invention itself must preclude orientations detected during fast motion from being maintained in sequence.

[00:12:36] Speaker 02:
Indeed, the claims are configured to maintain sequence of the detected orientations with each orientation in the sequence being limited to a slow motion phase.

[00:12:47] Speaker 02:
SAMHSA ignores that the 106 patent requires fast motion.

[00:12:52] Speaker 02:
A constant stream of sustained motion data

[00:12:55] Speaker 02:
would be identified by the motion detector as a single slow motion phase.

[00:13:00] Speaker 02:
And consequently, it would be detected by the orientation detector as a single orientation condition.

[00:13:08] Speaker 02:
Without an intermittent fast motion phase, there simply cannot be a sequence of orientations, and finding otherwise would eviscerate a fault-resilient technique of the invention.

[00:13:18] Speaker 03:
During prosecution... Is Mr. Haldeman's time expired?

[00:13:24] Speaker 02:
Yes, Your Honor.

[00:13:26] Speaker 02:
Thank you, Your Honor.

[00:13:27] Speaker 03:
All right.

[00:13:28] Speaker 03:
We'll give you two minutes for rebuttal.

[00:13:31] Speaker 01:
Thank you, Your Honors.

[00:13:35] Speaker 01:
Can you hear me?

[00:13:37] Speaker 01:
Yes.

[00:13:39] Speaker 01:
Great.

[00:13:40] Speaker 01:
Good morning, Your Honors.

[00:13:41] Speaker 01:
May it please the court.

[00:13:42] Speaker 01:
The board correctly construed the claims using the broadest reasonable interpretation standard that applies here.

[00:13:49] Speaker 00:
How do you get around the fact that each has a common usage and that in every dictionary it is two or more?

[00:14:02] Speaker 00:
I understand the World War II veteran example, but that is an uncommon usage.

[00:14:08] Speaker 00:
And the question is here, where in the specification does it take us away from the most common usage?

[00:14:15] Speaker 01:
Sure, Your Honor, let me address that.

[00:14:17] Speaker 01:
So as the board found, right, the board looked at the context of the claim in light of the specification, and in doing so, it also looked at the expert testimony, and it credited the testimony of Samsung's expert on this point over Kinetic's expert, and that you can find at, for example, A32.

[00:14:36] Speaker 00:
And so when the board started with the claim language... But the expert didn't rely on anything except that type of example, right?

[00:14:42] Speaker 01:
Sure, Your Honor.

[00:14:43] Speaker 01:
He, of course, looked at the patent.

[00:14:45] Speaker 01:
He looked at the claims.

[00:14:46] Speaker 01:
And in light of the claim language and the specification, he provided his opinion from the perspective of one of skill in the art.

[00:14:54] Speaker 01:
And the board credited that testimony over their expert testimony.

[00:14:59] Speaker 01:
And that's entitled to deference under this court's case law.

[00:15:02] Speaker 00:
And also, I think what's telling here, Your Honor, is... Well, not if the expert testimony isn't relying on anything other than...

[00:15:12] Speaker 00:
other than just an ipsy-dixit opinion?

[00:15:15] Speaker 01:
So, Your Honor, here the expert testimony did rely on the specification.

[00:15:20] Speaker 01:
It relied on the claim language.

[00:15:22] Speaker 01:
So it wasn't simply relying on sort of blanket statements.

[00:15:27] Speaker 01:
And here, again, as the Board, I think the Board looked at the testimony of both sides' experts on this issue and credited the testimony of Samsung's expert.

[00:15:36] Speaker 01:
And I think, Your Honor, perhaps the issue goes back to the detecting

[00:15:42] Speaker 01:
what does detecting orientation mean?

[00:15:44] Speaker 01:
Because depending on how this court construes that, this limitation of each falls away, right?

[00:15:50] Speaker 01:
Because if the court agrees with the board that detecting orientation for a slow motion phase, it includes detecting orientations right during the phase, as the board found, then the issue of each goes away, Your Honor.

[00:16:06] Speaker 01:
And let me explain why

[00:16:08] Speaker 01:
the board did correctly construe the detecting orientation for each slow-motion phase.

[00:16:17] Speaker 00:
So you're saying that the singular word can become plural?

[00:16:21] Speaker 01:
That's right, Your Honor.

[00:16:22] Speaker 01:
That's right.

[00:16:23] Speaker 01:
So here, if you look at the plain meaning of the claim

[00:16:27] Speaker 01:
The plain meaning simply supports, it encompasses multiple orientation detections for a given slow motion phase.

[00:16:34] Speaker 01:
Again, when the board construed the claims, it was looking at the claim language and the specification from the perspective of one of skill in the art.

[00:16:43] Speaker 01:
And it repeatedly credited the testimony of Samson's expert on these issues over kinetics experts.

[00:16:50] Speaker 01:
Now, it's telling that kinetics points to

[00:16:54] Speaker 01:
figure three of the patent, we did not hear a single thing about figure two of the patent, and that we believe is key to the whole claim construction issue.

[00:17:04] Speaker 01:
In fact, I think in Attic, I heard counsel go as far as saying there is no support in the specification for the board's construction.

[00:17:11] Speaker 01:
But I think Figure 2 is fatal to their argument.

[00:17:13] Speaker 01:
And again, the board looked at Figure 2, and this is at Appendix 28 to 29 of the board's opinion.

[00:17:19] Speaker 01:
It credited the testimony of Dr. Abou, Samsung's expert, in terms of interpretation of Figure 2.

[00:17:25] Speaker 01:
And if you look at Figure 2,

[00:17:27] Speaker 01:
for each XYZ orientation, right, for each data that's provided to the orientation detector, there is an orientation that the detector provides.

[00:17:38] Speaker 01:
And that testimony, again, was consistent, or that reading of the figure was consistent with Dr. Abel's testimony.

[00:17:44] Speaker 01:
You can find that at appendix 1438 to 40.

[00:17:48] Speaker 01:
It was also, I think what's telling here, it was also consistent with the testimony of kinetics expert.

[00:17:53] Speaker 01:
And you can find that at appendix 1493 to 1497.

[00:17:57] Speaker 01:
In terms of figure three, yes, they like to point to figure three.

[00:18:00] Speaker 01:
But as we pointed out, figure three does not really go to the operation of the orientation detector.

[00:18:06] Speaker 01:
Figure two is what goes to the orientation detector.

[00:18:10] Speaker 01:
And even if you look at figure three, you can see during a slow motion state, as it's referred to in the description for figure three, there are multiple orientations detected during that phase.

[00:18:23] Speaker 01:
So plainly, the specification here is consistent.

[00:18:26] Speaker 01:
with the board's construction.

[00:18:29] Speaker 01:
And I also think it's telling, Kinetic says, well, if you adopt the board's construction, the purpose of the invention would be destroyed.

[00:18:37] Speaker 01:
We disagree.

[00:18:39] Speaker 01:
I think the problem that they have here is that the claims are just worded too broadly.

[00:18:43] Speaker 01:
They chose certain language for the claims.

[00:18:46] Speaker 01:
They are asking this court, as they did ask the board to rewrite the claim, and this court should not do that, especially under the broadest reasonable interpretation standard.

[00:18:54] Speaker 01:
that applies there.

[00:18:55] Speaker 01:
They could have amended the claim.

[00:18:56] Speaker 01:
They chose not to.

[00:18:57] Speaker 01:
But they're asking this court to rewrite the claim language.

[00:19:01] Speaker 01:
Unless the court has any questions on the orientation limitation, I'll turn to the sequence limitation.

[00:19:06] Speaker 00:
Can I ask you to turn to something else?

[00:19:09] Speaker 00:
Sure, you are.

[00:19:09] Speaker 00:
As it relates to the IHS conclusions, I know you try to argue that this is harmless error, but the board had

[00:19:21] Speaker 00:
said some things about the law that seems a bit crazy, doesn't it, when they said that Samsung had absolutely no burden to establish a reasonable likelihood of success from the combination?

[00:19:37] Speaker 01:
Yes, Your Honor.

[00:19:38] Speaker 01:
I do believe the board's decision there is not perfectly worded.

[00:19:42] Speaker 01:
And I'll also point you to A77 where the board said we do not agree that petitioner ignores its burden.

[00:19:49] Speaker 01:
So I would say it's certainly not clear.

[00:19:52] Speaker 01:
But even if you said the board erred in that regard in terms of sort of not having

[00:19:57] Speaker 01:
the precise language as this court has held.

[00:20:01] Speaker 01:
For example, in the Intelligent Biosystems case, this court reviews judgments, not opinions, and it will affirm the board where it has made sufficient factual findings to support its judgment.

[00:20:11] Speaker 00:
Well, that's the problem is that the board's motivation to combine analysis actually seems to make it seem like they did completely ignore

[00:20:23] Speaker 00:
any issue with respect to a reasonable likelihood of success.

[00:20:26] Speaker 00:
They simply said that because your experts said, well, you could save power by combining these two, that therefore that creates a motivation.

[00:20:38] Speaker 00:
And it did not even look at whether or not putting the two together could reasonably lead one to believe that you could practice the claims.

[00:20:50] Speaker 01:
So, your honor, let me address that.

[00:20:52] Speaker 01:
I do believe there are sufficient factual findings in the board's opinion that would allow this court to affirm the board's decision on obviousness here.

[00:21:01] Speaker 01:
So if I, with your intelligence, if we, I think if you can spend a few minutes going through the board's decision and

[00:21:07] Speaker 01:
I'll show you how we believe the board did address this issue.

[00:21:11] Speaker 01:
So if we start with the board's opinion, for example, it started with this analysis at Appendix 71.

[00:21:19] Speaker 01:
There, the board first analyzed Samsung's arguments and evidence in its petition, and that's at A71, Appendix 71 to 73.

[00:21:27] Speaker 01:
In doing so, the board, I think it's telling, they actually quoted from Samsung's expert testimony on this issue.

[00:21:34] Speaker 01:
and Appendix 72, the board noted the two rationales provided by Samsung, and I think this is the key, Judge O'Malley.

[00:21:42] Speaker 01:
At Appendix 72 at the bottom, when it was noting the power savings rationale that you also mentioned too, the board quoted from

[00:21:51] Speaker 01:
the declaration of, declaration testimony of Dr. Ebaugh at the bottom where he said, such a modification of the combined linjama and layer man system based on TASACI would have been a straightforward for a personal forwarder's killing the art to implement.

[00:22:06] Speaker 01:
This goes on to Appendix 73.

[00:22:08] Speaker 00:
And then Dr. Ebaugh did... Well, he said it would be, wait, when you read his testimony,

[00:22:14] Speaker 00:
He said it would be straightforward to implement, but then he explains by basically reconfiguring all of the aspects of it.

[00:22:25] Speaker 00:
And the fact that the two references might not teach away doesn't mean that the fact that they do it in completely different ways is irrelevant.

[00:22:38] Speaker 00:
You don't have to get to a teaching away to take that into consideration with respect to a reasonable likelihood of success.

[00:22:44] Speaker 01:
So, Your Honor, two responses to that, and I apologize for interrupting.

[00:22:49] Speaker 01:
So, two responses to that.

[00:22:51] Speaker 01:
One was that with respect to reasonable expectation of success, I think the testimony that bridges pages, Appendix 72 to 73, that goes to the reasonable expectation of success, right?

[00:23:03] Speaker 01:
how easy it would have been for one of skill in the art to configure these systems.

[00:23:06] Speaker 01:
Remember, what we're talking about in terms of... Wait a second.

[00:23:10] Speaker 01:
Did he specifically address reasonable expectation of success in those terms or did he... So, Your Honor, he did not use the words reasonable expectation of success, those precise words, but I think if you look at the testimony at

[00:23:28] Speaker 01:
And like I said, for example, it's Appendix 919, Paragraph 154.

[00:23:33] Speaker 01:
That testimony goes to the reasonable expectation of success point.

[00:23:37] Speaker 01:
So we do believe there was enough in the record for the board to affirm.

[00:23:41] Speaker 01:
And I think going back to what Judge O'Malley was saying, this was not contested by kinetic.

[00:23:47] Speaker 01:
Their expert did not come in and say, well, one of 400 skills would not have been able to configure the system to arrive at the combination.

[00:23:55] Speaker 01:
All he said, and Judge Amali, now I'll address your teaching away point, all they said was that, well, Tosaki teaches away.

[00:24:04] Speaker 01:
But I think that argument fails for three reasons, Judge Amali.

[00:24:08] Speaker 01:
First is that if you look at what the board did, they looked at the test in Enrique Gurley, as this court has pronounced, the teaching away test, and they said the kinetics argument just doesn't fit that test.

[00:24:18] Speaker 00:
Second, but... But it doesn't have to fit the teaching away test to be relevant, that the two are completely different and opposite.

[00:24:25] Speaker 01:
And so I'll actually get to that point next, Your Honor.

[00:24:29] Speaker 01:
And I think here's the key to the teaching of a findings and this whole argument on motivation to combine.

[00:24:35] Speaker 01:
The board made factual findings that one of skill would have been motivated to combine the two references, Linjama and Tosaki to arrive at the claimed invention.

[00:24:47] Speaker 01:
And in doing so, the board necessarily, right, it pointed out that they did not dispute the power saving motivation

[00:24:54] Speaker 01:
That was provided by Dr. Aboud, and this is the key, Judge Amali, on this point, which is my last point on this teaching of A argument.

[00:25:03] Speaker 01:
If you look at Tosaki, they do say that they are fundamentally different, but there is a piece of Tosaki that are experts cited to, and that I think is key here.

[00:25:12] Speaker 01:
Tosaki specifically teaches monitoring motion and orientation simultaneously, and that's at Appendix 1293.

[00:25:19] Speaker 01:
And the board actually relied on this at Appendix 75.

[00:25:24] Speaker 01:
It's cited to Appendix 1293, Column 9, Lines 5 through 11.

[00:25:29] Speaker 01:
Not only did the board rely on it, it actually credited Dr. Abou's testimony on this point, and you can find that at Appendix 76.

[00:25:35] Speaker 01:
So here, they can hardly argue in our minds, based on the board's opinion, that the board, there's enough here for this court to affirm the obviousness determination.

[00:25:47] Speaker 01:
So unless you have any other questions on this, I'd like to quickly go back to the sequence detector limitation and see if the court has any other questions there.

[00:25:58] Speaker 01:
Okay.

[00:25:58] Speaker 01:
So with respect to the sequence detector limitation, again, here the board did construe the, did give the claim term it's broadest reasonable interpretation in light of the specification and the intrinsic evidence.

[00:26:11] Speaker 01:
And I think it's telling what kinetic wants this code to do, is it wants to import certain limitations from the specification.

[00:26:18] Speaker 01:
For example, for this limitation, it wants this code to say that the detected orientations must be from two or more slow motion phases, and they must be separate.

[00:26:29] Speaker 01:
And you must have a fast motion phase that separates the two adjacent.

[00:26:34] Speaker 01:
slow motion phases.

[00:26:35] Speaker 01:
And then also it wants this court to say, well, the system must preclude or filter out any orientations detected during a fast motion phase.

[00:26:43] Speaker 01:
None of those limitations are in the claim.

[00:26:45] Speaker 01:
Again, these claims are broadly drafted.

[00:26:47] Speaker 01:
And if you look at the intrinsic evidence, it doesn't support those limitations.

[00:26:52] Speaker 01:
And I think I'll just make one point with respect to the sequence limitation that I believe is fatal to the argument.

[00:27:00] Speaker 01:
If you look at claim 11, claim 11 actually recites multiple phases.

[00:27:04] Speaker 01:
It recites multiple slow motion phases separated by a fast motion phase.

[00:27:08] Speaker 01:
We did not hear anything from the other side regarding claim 11 on the merits.

[00:27:13] Speaker 01:
So we believe that is fatal to their argument.

[00:27:16] Speaker 01:
And I think if you look at appendix 36 where the board actually reasoned, provided its opinion on this issue,

[00:27:25] Speaker 01:
The board gave an example of a sequence which would have a fast sequence and then you would have a slow, two slow sequences and a fast sequence.

[00:27:32] Speaker 01:
And as the board explained, the claims certainly cover that sequence.

[00:27:37] Speaker 01:
And the prosecution history here, well certainly this court should look at it.

[00:27:41] Speaker 01:
It does not compel the conclusion that they want this court to arrive at.

[00:27:45] Speaker 01:
And I'll just make one last point with respect to the prior arts.

[00:27:48] Speaker 01:
I heard counsel say, and this was in response to your question, they said, well, if this court was to amend the claim construction based on any of the different arguments they made that this court should reverse, we don't believe that would be proper.

[00:28:06] Speaker 01:
We believe, depending on, of course, what the court does here, we believe the court should affirm the board's claim construction.

[00:28:11] Speaker 01:
But depending on what the court does, the Linjama-Tosaki ground would cover some of those interpretations.

[00:28:19] Speaker 01:
So for example, if the court says the claims are limited to have only sort of orientation that are detected during slow motion phases and that you preclude fast orientations during fast motion phases, the Linjama-Tosaki ground would cover that.

[00:28:40] Speaker 01:
So, I really think it depends on what the court does.

[00:28:45] Speaker 01:
Your Honor, did you have a question?

[00:28:47] Speaker 03:
No, I think that was your signal that your time is up.

[00:28:50] Speaker 01:
Okay.

[00:28:50] Speaker 01:
Well, thank you, Your Honor.

[00:28:51] Speaker 01:
We would respectfully ask that the court affirm.

[00:28:53] Speaker 03:
Thank you.

[00:28:54] Speaker 03:
Mr. Haldeman?

[00:28:57] Speaker 02:
So, one issue that SAMHSA brought up was this Claim 11 claim differentiation argument, which first of all, it waived.

[00:29:05] Speaker 02:
This was never raised below.

[00:29:08] Speaker 02:
And second of all,

[00:29:09] Speaker 02:
It applies to the limitation itself.

[00:29:14] Speaker 02:
Samsung conveniently crops out that claim 11 is limiting the profile description.

[00:29:19] Speaker 02:
It is not limiting the sequence of detected orientations.

[00:29:23] Speaker 02:
So their claim differentiation argument is not even relevant to the disputed limitations of issue.

[00:29:33] Speaker 02:
Samsung frequently relies on its

[00:29:37] Speaker 02:
expert's testimony that the board credited, but the board's analysis was very circular and it really relied on Samson's expert because Samson's expert happened to support its overly broad claim construction.

[00:29:54] Speaker 02:
Further, Samson takes Dr. Mojapata's testimony.

[00:30:01] Speaker 03:
Mr. Holderman, before the board, did you argue that there was a lack of reasonable expectation of success?

[00:30:08] Speaker 02:
Um, I believe that we did.

[00:30:13] Speaker 03:
Could you tell me where?

[00:30:16] Speaker 02:
Um, if you'd give me a second.

[00:30:29] Speaker 02:
We certainly raised it in our sir reply.

[00:30:32] Speaker 02:
I'm just trying to pull that up.

[00:30:49] Speaker 02:
So at least on page 25 of our SPHERA reply, we argue that... What page of the appendix is that at?

[00:31:10] Speaker 02:
It's 25 of our SPHERA reply, but I don't see an appendix page on my copy.

[00:31:24] Speaker 03:
Okay.

[00:31:25] Speaker 04:
560 to 596, you sir require.

[00:31:29] Speaker 04:
560 to 596.

[00:31:40] Speaker 04:
I'm going to save page 25.

[00:31:49] Speaker 02:
Yes, page 25, petitioner ignores its burden to show that a FACETA would have had a reasonable expectation of success in combining the references.

[00:32:00] Speaker 02:
Okay.

[00:32:11] Speaker 03:
All right, one final thought, just run out of time.

[00:32:19] Speaker 02:
The only other point that I wanted to bring up quickly, well, two quick points.

[00:32:27] Speaker 02:
Samson takes Dr. Mojapatra's testimony out of context repeatedly.

[00:32:32] Speaker 02:
He said that orientation signals may be measured multiple times over a phase, but that orientation is only detected once for each phase.

[00:32:46] Speaker 02:
And this is all over his deposition.

[00:32:49] Speaker 02:
It's on, for example, APPX 1495.

[00:32:58] Speaker 02:
During the same phase, the readings are taken multiple times, but the orientation for that phase is only one orientation.

[00:33:05] Speaker 02:
Okay.

[00:33:06] Speaker 03:
Mr. Holderman, I think we're out of time.

[00:33:08] Speaker 03:
My colleague has a further question.

[00:33:11] Speaker 03:
Okay.

[00:33:11] Speaker 03:
Hearing none.

[00:33:13] Speaker 03:
Thank you, Mr. Holderman.

[00:33:14] Speaker 03:
Thank you, Mr. Modi.

[00:33:15] Speaker 03:
The case is submitted.

[00:33:16] Speaker 02:
Thank you, Your Honor.