[00:00:00] Speaker 02:
Go ahead, Counsel.

[00:00:03] Speaker 01:
Thank you, Your Honor.

[00:00:04] Speaker 01:
Good morning, and may it please the Court.

[00:00:07] Speaker 01:
If Your Honors have any question about standing, I'm happy to address those now.

[00:00:12] Speaker 01:
Otherwise, my plan was to proceed to the merits of our first round involving aid and Cork.

[00:00:19] Speaker 00:
Could you just speak for about 30 seconds as to why there is standing here?

[00:00:24] Speaker 01:
Certainly, Your Honor.

[00:00:26] Speaker 01:
Your Honor, Appellee Oyster has

[00:00:29] Speaker 01:
had a series of litigations below.

[00:00:31] Speaker 01:
And in those litigations, it has made broad infringement allegations.

[00:00:36] Speaker 01:
In one example, they've accused products that fall within a specific technical standard.

[00:00:43] Speaker 01:
And so we submitted a declaration from our senior vice president

[00:00:47] Speaker 01:
that said we have sold for years products that meet that technical standard.

[00:00:54] Speaker 01:
There are other examples in our briefing, but it's clear that based on their infringement allegations, it's covering products that we have sold into the market, at least according to their definition of what their infringement allegations are.

[00:01:08] Speaker 01:
So we reached out to them and said, if you'll covenant not to sue, we'll dismiss the appeals.

[00:01:17] Speaker 01:
But they never replied to us.

[00:01:20] Speaker 01:
We wrote to them again.

[00:01:21] Speaker 01:
They didn't reply.

[00:01:22] Speaker 01:
So this is in line with this court's precedent where

[00:01:26] Speaker 01:
You know, if you're selling products that might fall within an infringement allegation and the APHELEE will not agree to covenant not to sue, that confirms that the risk of liability is concrete and not conjectural or hypothetical.

[00:01:43] Speaker 02:
Counsel, this is Judge Wallach.

[00:01:46] Speaker 02:
I think you go a little too far in the gray brief when you say Oyster, I'm quoting you, Oyster knows that it intends to bring an infringement action against Lou Manham.

[00:01:57] Speaker 02:
That's just an inference for moisture failure to respond to your covenant not to sue letter, isn't it?

[00:02:03] Speaker 01:
That's right, Your Honor.

[00:02:04] Speaker 01:
I think we were trying to say what the inference was from their silence.

[00:02:09] Speaker 01:
We take that as they have an intention or at least there is a concrete risk that they will initiate an infringement suit.

[00:02:20] Speaker 00:
But you're not a mind reader, right?

[00:02:23] Speaker 01:
That's correct, Your Honor, so I can't speculate.

[00:02:26] Speaker 00:
All right.

[00:02:27] Speaker 00:
If I could just follow up on something.

[00:02:33] Speaker 00:
There are past lawsuits against other companies and other companies' products.

[00:02:39] Speaker 00:
Are you saying that the infringement allegation is premised on those other products performing the technical or complying with the technical standard?

[00:02:53] Speaker 00:
And that's the specific reason?

[00:02:55] Speaker 00:
Or are you just telling me it just so happens to comply with the technical standard and your product just so happens to comply with the technical standard?

[00:03:05] Speaker 01:
Well, what they've said, Your Honor, and for reference, I'm in the Joint Appendix at 3152, they identify as falling within the accused products, products that fall within a specific technical standard

[00:03:25] Speaker 01:
OIF CFP2 ACO 1.0.

[00:03:29] Speaker 01:
And what our declarant said was we sell products that comply with that specific standard.

[00:03:37] Speaker 01:
We also have other evidence that based on what they've said in their complaints about what they view as accused products, it's possible that our products meet that definition as well.

[00:03:49] Speaker 01:
So it's really based on what they've said

[00:03:53] Speaker 01:
if they believe is infringing is covered by the scope of the claims and coupled with their refusal to covenant not to sue.

[00:04:03] Speaker 01:
We also brief the estoppel effect that could apply if we were sued being subject to estoppel from the determination below.

[00:04:21] Speaker 01:
So, Your Honors, if there are no more questions about standing, I'd like to proceed to the merits.

[00:04:27] Speaker 01:
And with respect to the motivation to combine aid and quark, there's only two ways to get to the board's conclusion.

[00:04:35] Speaker 01:
And that's either a bodily incorporation analysis or by limiting quark to its preferred embodiment.

[00:04:42] Speaker 01:
And both of those, Your Honors, err by misapplying this court's obvious analysis.

[00:04:47] Speaker 01:
So taking a step back, we're dealing here with basic components that the 898 patent that issue here itself recognizes were well known in the industry.

[00:04:57] Speaker 01:
We've submitted evidence that aid discloses all of the components of the challenge claim, except for the energy level detector in a box, which is taught by Cork.

[00:05:07] Speaker 01:
The board's conclusion was that while petitioner may have explained why a person or a skill would be motivated to combine AIDS transceiver with Cork detectors,

[00:05:17] Speaker 01:
It did not sufficiently explain why you would include H2 fibers in that combination.

[00:05:23] Speaker 01:
And again, this is error for two reasons.

[00:05:26] Speaker 01:
On the first, on the bodily incorporation, and your honor.

[00:05:30] Speaker 01:
Yes, your honor.

[00:05:31] Speaker 02:
This is Judge Waller.

[00:05:33] Speaker 02:
On page 54 of the Blueberry, you argue the PTAB, quote, erring and concluding that quark does not teach or suggest claim 14's indicating a droplet amplitude limitation because

[00:05:47] Speaker 02:
if the PTAB had construed drop in amplitude according to its broadest reasonable interpretation, then it would have been clear that Cork and Eddy disclosed that limitation.

[00:05:59] Speaker 02:
Does that mean that your argument concerning what Cork and Eddy disclosed is contingent upon us accepting your claim construction argument?

[00:06:11] Speaker 01:
Your Honor, with respect to that limitation,

[00:06:14] Speaker 01:
because the board found that Cork did not meet that limitation based on how it viewed the scope of the term drop in amplitude, then yes, our, our position is that was an error.

[00:06:27] Speaker 01:
They did not apply the broadest reasonable interpretation of that term.

[00:06:31] Speaker 01:
Instead, they elevated extrinsic evidence over the clear intrinsic evidence.

[00:06:37] Speaker 01:
And so if you, if you properly look at the scope of that claim,

[00:06:40] Speaker 01:
And I can walk through that, Your Honor, if you would like.

[00:06:44] Speaker 01:
But if you look at the proper scope of that claim, it would clearly include quarks detection of average amplitude or average intensity.

[00:06:53] Speaker 01:
So that's our position on that term.

[00:06:55] Speaker 02:
On page 64 of the red brief, Oyster says you improperly advance a specific construction of amplitude for the first time on appeal.

[00:07:05] Speaker 02:
If that's not correct, where in the record below did you

[00:07:10] Speaker 02:
advance a specific construction of amplitude?

[00:07:14] Speaker 01:
What happened, Your Honors, and I'll point to the record in one second, but as a background, what happened here is in our petition, we argued that Cork met the drop in amplitude, the threshold indicating a drop in amplitude limitation, because Cork measures average power or average amplitude.

[00:07:32] Speaker 01:
And in their patent owner response, they said using

[00:07:38] Speaker 01:
this system for amplitude modulation would be meaningless because a drop in amplitude is not an indicator of a drop in energy.

[00:07:47] Speaker 01:
In other words, in an amplitude modulated signal, the amplitude rises and falls repeatedly as part of transmission of data.

[00:07:57] Speaker 01:
But the 898 requires that the energy level detector be able to detect a drop in amplitude.

[00:08:03] Speaker 01:
And the 898 is specifically clear

[00:08:06] Speaker 01:
And this is in the specification specifically clear that you can use its system with an amplitude modulated system.

[00:08:13] Speaker 01:
So, in effect, what their argument in their patent owner response was, was this system, the 898, is limited to phase modulation because if the term can't include individual drops in amplitude,

[00:08:28] Speaker 01:
and it can't include average drops in amplitude, which is what we showed Cork disclosed, then it can't work with amplitude modulation.

[00:08:38] Speaker 01:
So in our reply, and this is on appendix 483, we made the point, we made the point that the patent owner was improperly narrowing the scope of the term to exclude a drop in average amplitude.

[00:08:55] Speaker 01:
And so, and it was effectively

[00:08:57] Speaker 01:
effectively limiting it to phase modulation.

[00:09:04] Speaker 01:
So we addressed their argument in our reply and made the position that the term would encompass quark because it does encompass average, measuring averages.

[00:09:18] Speaker 01:
And we pointed to the specification and expert testimony to support that position.

[00:09:27] Speaker 01:
So, Your Honors, on returning to the cork and aid combination, number one, the Board said at Appendix 38, what they did was they looked at one figure of cork and they said even after replacing the receivers and transmitters in that figure, corks figure four, with AIDS-integrated transceiver from its two-fiber embodiment,

[00:09:54] Speaker 01:
the device would still have a single bi-directional fiber at the fiber input-output rather than two fibers.

[00:10:00] Speaker 01:
So in other words, if you incorporate age transceiver into the structure shown in court's figure four, you would still have a bi-directional fiber at the input-output.

[00:10:09] Speaker 01:
And inherently, that assumes a bodily incorporation.

[00:10:12] Speaker 02:
Oh, you're into your rebuttal time.

[00:10:16] Speaker 01:
OK, Your Honors.

[00:10:17] Speaker 01:
But I will rest.

[00:10:21] Speaker 01:
One brief point before I do.

[00:10:26] Speaker 01:
The at the our last ground cork and Roberts may within our briefing.

[00:10:34] Speaker 01:
But it's clear for that ground that the board ignored the petitions reliance on a express disclosure of a co located transceiver and receiver and instead faulted petitioner for not showing motivation to buy the specific remotely located transceiver and transmitter and receiver of Robert.

[00:10:51] Speaker 01:
So we think the board aired on that ground by focusing on the specific transmitter and receiver of Roberts rather than

[00:10:58] Speaker 01:
crediting our argument and our showing that aid inherently discloses a co-located transmitter and receiver.

[00:11:04] Speaker 01:
And with that, I will reserve the rest of my time.

[00:11:10] Speaker 02:
Okay.

[00:11:10] Speaker 02:
Thank you, Council.

[00:11:18] Speaker 02:
Mr. Helge?

[00:11:21] Speaker 03:
Good morning, Your Honors.

[00:11:22] Speaker 03:
My name is Wayne Helge, appearing for Oyster Optics, and may it please the Court

[00:11:26] Speaker 03:
Your Honor, the Board's decision confirming the patentability of the challenged claims was not tainted by legal error and it was supported by substantial evidence.

[00:11:35] Speaker 03:
Lumentum's main argument this morning is that the Board conducted an improper bodily incorporation analysis, but in fact what the Board did below... Mr. Helgi, this is Judge Chen.

[00:11:46] Speaker 00:
Are you no longer disputing standing?

[00:11:54] Speaker 03:
Your Honor, we believe that Lumentum came forward with its evidence late under phygenics.

[00:12:03] Speaker 03:
We do believe that they were obligated to make a standing.

[00:12:05] Speaker 03:
We know this court's rules require showing a jurisdictional statement.

[00:12:10] Speaker 03:
In addition, of course, Your Honor, phygenics requires some early showing of evidence.

[00:12:15] Speaker 03:
Here, Your Honor.

[00:12:17] Speaker 02:
Speaking of roles, Counsel, this is Judge Wallach.

[00:12:19] Speaker 02:
You're familiar with Circuit Rule 27S.

[00:12:24] Speaker 03:
Yes, Your Honor.

[00:12:26] Speaker 03:
I recall that we did look into the appellate rules in terms of raising early motions to dismiss for lack of standing.

[00:12:36] Speaker 02:
Why didn't you raise your standing argument in an earlier motion to dismiss then?

[00:12:41] Speaker 03:
So, Your Honor, in this instance, as my opponent did mention, there was a subpoena issued from Oyster to Lamentum, I believe it was back in 2017,

[00:12:53] Speaker 03:
asking for a number of documents related to what Oyster had referred to as accused products.

[00:12:58] Speaker 03:
Now, those accused products related to a number of different patents.

[00:13:04] Speaker 03:
Where we have perhaps a dispute with Lumentum here is Lumentum did not respond to that subpoena, which would suggest that perhaps there's evidence, perhaps there isn't.

[00:13:19] Speaker 03:
But in terms of this situation, Your Honor,

[00:13:21] Speaker 03:
Lumentum had joined the, or excuse me, they were actually a co-petitioner in the PTAT proceedings.

[00:13:28] Speaker 03:
And so we expected them fully to come forward with their evidence of standing with their opening brief.

[00:13:36] Speaker 03:
And it was only when they failed to do so that we felt it was prudent here to raise it with the court.

[00:13:40] Speaker 03:
And as Your Honor noted, we didn't file a motion to dismiss, although we did raise the issue in our opening brief, or our responsive brief, Your Honor.

[00:13:49] Speaker 00:
Council, but you don't think there's waiver here under our court's rules, do you?

[00:13:56] Speaker 03:
Well, Your Honor, under this court's rules, we recognize that it is incumbent upon a party to come forward with its arguments and its evidence.

[00:14:05] Speaker 03:
If there is, for example, a new evidence at the earliest possible time, and I know Phigenix identifies opening brief or in response to a motion to dismiss,

[00:14:16] Speaker 03:
And so here, it would seem that Lumentum has waited longer than they should have.

[00:14:22] Speaker 03:
In essence, Your Honor, we believe that if there is a basis to disregard this evidence, it would be based on waiver.

[00:14:34] Speaker 03:
Although we recognize that the court needs to decide standing simply as a question of jurisdiction, and we recognize that there is evidence in the record now that has not been stricken.

[00:14:46] Speaker 03:
Your Honor, moving on, if there are no other questions on that point, moving on to the issue of Lumentum's argument regarding the bodily incorporation argument, it's important here, we believe, to note that the Board actually went out of its way not only to respond and address the combinations that Lumentum presented in its petition, but also

[00:15:09] Speaker 03:
those that presented in its reply, or in essence, the figures that it pointed to more heavily in its reply, like Cork figure two, which is a unidirectional embodiment and not the bi-directional embodiment of Cork's annotated figure four, which they emphasized heavily in their petition at page 25.

[00:15:25] Speaker 03:
This is appendix pages 197 and 198.

[00:15:28] Speaker 03:
Even in their oral argument, there were some additional combinations asserted by Lumentum, which the board recognized were asserted late,

[00:15:39] Speaker 03:
addressed.

[00:15:40] Speaker 03:
Now importantly, Your Honors, as Judge Wallach noted earlier, there is an issue here on the drop in amplitude, limitation, and in addition, there is a question, even if aid and court were to be combined in the manner presented by Lumentum, does it disclose all and all elements of the claims?

[00:15:58] Speaker 03:
And the answer here is no, as the board found.

[00:16:01] Speaker 03:
We addressed this in the red brief at page 50 and at page 63.

[00:16:04] Speaker 03:
These are headings dealing with

[00:16:06] Speaker 03:
the drop in amplitude limitation, Your Honor, and also the question of whether a combination of aid and cork, as presented by Lumentum, would have included separate unidirectional fibers.

[00:16:18] Speaker 03:
And this is addressed by the Board at appendix pages 37 and 38.

[00:16:22] Speaker 03:
And the Board recognizes, I think in this analysis, the Board recognizes quite clearly based on the evidence of record, cork, and also Lumentum's argument that

[00:16:35] Speaker 03:
The aid reference does not teach a card.

[00:16:38] Speaker 03:
The cork reference does not teach a card.

[00:16:40] Speaker 03:
And so the only existence of a card in the record really is Lumentum's expert statement about placing these components on a card.

[00:16:48] Speaker 03:
Now the claim at issue, claim 14, is directed to a transceiver card and certain elements of that card require fiber input, fiber output for separate unidirectional fibers for transmission.

[00:17:01] Speaker 03:
No.

[00:17:02] Speaker 00:
Mr. Helgi, this is Judge Chen.

[00:17:06] Speaker 00:
I thought, doesn't ADE talk about the transmitter and receiver being co-located?

[00:17:12] Speaker 03:
It does, Your Honor.

[00:17:13] Speaker 03:
It talks about them being co-located on a ship.

[00:17:16] Speaker 00:
And so this, Your Honor, is exactly, I think, the point where... And so didn't the board rely on that as saying, okay, ADE therefore does meet the limitation of

[00:17:28] Speaker 00:
requiring the transmitter and receiver to be on the same card, but nevertheless, that still doesn't necessarily disclose, the combination wouldn't necessarily disclose using two fibers over a single bi-directional fiber.

[00:17:43] Speaker 00:
Isn't that what the board's reasoning was?

[00:17:45] Speaker 03:
Well, I think you're absolutely correct, Ron, and I think here appendix pages 37 and 38 are directly on.

[00:17:50] Speaker 00:
So I guess I'm getting lost.

[00:17:52] Speaker 00:
Are you trying to now dispute during this oral argument

[00:17:56] Speaker 00:
whether the board got it right when it said that AD does, in fact, teach the limitation of having the transmitter and receiver on the same card?

[00:18:07] Speaker 03:
Well, Your Honor, just to be clear, Oyster isn't disputing what the board said about Abe's co-location of a transmitter and receiver.

[00:18:15] Speaker 03:
But to be clear, I mean, that is on a ship.

[00:18:19] Speaker 00:
Well, I'm just getting a little confused, because now we're getting into a territory that I don't remember being briefed.

[00:18:25] Speaker 00:
and dispute it.

[00:18:27] Speaker 03:
I understand, Your Honor.

[00:18:28] Speaker 03:
I think the important part here is the co-location of a transmitter and receiver on a chip is part of the claim, although the claim itself requires all of these recited components to be on a common transceiver card.

[00:18:43] Speaker 03:
And the showing for the transceiver card components, like the fiber input and fiber output, which really are more direct to, I think, the issue that the court is dealing with today, Your Honor, is

[00:18:53] Speaker 03:
where is that fiber input and fiber output?

[00:18:56] Speaker 03:
And what the board said in appendix pages 37 and 38 is the arrangement of fiber at a chip, at the transceiver, at the transmitter and receiver of aid is not determinative about whether there will be a separate fiber input and fiber output located on the card.

[00:19:11] Speaker 03:
And that's where we get back to Cork's annotated figure four.

[00:19:16] Speaker 03:
Again, Your Honor, page 197 of the appendix

[00:19:19] Speaker 03:
This is the analysis that Lumentum presented to the board.

[00:19:23] Speaker 03:
It was a configuration where AIDS transmitter and receiver gets incorporated into CORC.

[00:19:32] Speaker 03:
And even, as the board said, again, these specific pages, even where you have a two fiber embodiment of AIDS with this co-located transceiver, there still is no showing that that would yield

[00:19:45] Speaker 03:
a separate unidirectional fiber arrangement in the ultimate system and necessarily in that card.

[00:19:55] Speaker 03:
And your honor, I believe as we mentioned- Hold on, hold on.

[00:19:59] Speaker 00:
Wait a second.

[00:20:00] Speaker 00:
The claim requires two separate fibers, right?

[00:20:04] Speaker 03:
Correct, your honor.

[00:20:05] Speaker 00:
So I got lost when you were explaining the board's reasoning there.

[00:20:10] Speaker 00:
The board was explaining why

[00:20:12] Speaker 00:
the combination of cork and aid wouldn't necessarily lead to a combination using two fibers, right?

[00:20:22] Speaker 03:
Well, I think it's more than that, Your Honor.

[00:20:24] Speaker 03:
It's not simply the question of whether it would yield a combination using two fibers, but whether it would yield a combination as claimed, namely a transceiver card having a separate fiber input and a separate fiber output.

[00:20:37] Speaker 03:
And what the board says in this relevant passage here, it says we will accept

[00:20:42] Speaker 03:
Lumentum's argument about aid, we will accept that there are co-located transmitter and receiver on a common chip with two fibers, aids to fiber embodiment.

[00:20:54] Speaker 03:
And we're going to look at that and figure out whether that still yields a card with a separate fiber input and a separate fiber output.

[00:21:02] Speaker 03:
And what they said was the answer is no.

[00:21:06] Speaker 03:
The important part here, Your Honor, is we're looking at the

[00:21:09] Speaker 03:
claimed elements of a fiber input and a fiber output of a card, the transceiver card.

[00:21:14] Speaker 03:
And a chip is not necessarily the same as a card.

[00:21:17] Speaker 03:
I mean, there could be a chip on a card.

[00:21:20] Speaker 00:
I'm getting lost, Mr. Helgaiken.

[00:21:22] Speaker 00:
What sentence or paragraph of the board decision are they, is the board talking about this sensitivity as a distinction between a chip and a card?

[00:21:33] Speaker 03:
Well, so, Your Honor, I'm looking at the bottom of the final written decision, page 37.

[00:21:38] Speaker 03:
And what the board said here is, further, petitioner elusive momentum has not shown that even if an ordinarily skilled artisan were to use a transceiver from AIDS to fiber embodiment, the ordinarily skilled artisan would have used AIDS first and second optical fibers in that combination.

[00:21:55] Speaker 00:
And where they're going, what they... OK, so they're talking here that AIDS teaches a transceiver, right?

[00:22:04] Speaker 03:
Correct, Your Honor, correct.

[00:22:05] Speaker 00:
And so you're today talking about this sensitivity between a chip and a card.

[00:22:11] Speaker 00:
Where do I see that in the board decision?

[00:22:14] Speaker 03:
Well, Your Honor, I think it's really the viewpoint that the board is taking here is they're trying to figure out whether there would be separate fibers in the system for transmission and reception.

[00:22:28] Speaker 03:
As the board continues here, Your Honor, they do come back to the petition at page 25, which is that appendix 197 cork annotated figure four, which shows a fiber input and a fiber output at the upper left-hand corner of that cork annotated figure four.

[00:22:44] Speaker 03:
Now, you can see in that figure, if Your Honor were to turn to it, and I'm happy to wait if you'd like to, Your Honor, but I'm happy to keep going otherwise.

[00:22:51] Speaker 03:
If you turn to that, what you'll see is what Lumentum calls the fiber input and output

[00:22:56] Speaker 03:
is on this boundary of this defined car that they've presented in Quark's annotated figure four, but that fiber input and output is quite a bit removed from the transceiver.

[00:23:08] Speaker 03:
And even Quark itself has, if you go into sort of the microcosm of Quark, I mean, Quark does show different, you know, a switch and different splitters,

[00:23:20] Speaker 03:
that can then feed a separate receiver and transmitter.

[00:23:24] Speaker 03:
But the idea here, and this is, I think, appendix page 197 is really nice to show, when you drop in AIDS to fiber embodiment into that transmitter-receiver block on Cork, it doesn't change the fact that Cork has a single fiber input-output for bidirectional fiber for bidirectional communication.

[00:23:45] Speaker 03:
And that's what the board was... Okay, where did the board say all of that?

[00:23:51] Speaker 00:
because I don't remember seeing it.

[00:23:53] Speaker 03:
Well, Your Honor, I think it's really in this page 37-38 when they do say here, about halfway down the first paragraph, Your Honor, on page 38, they say, as shown, petitioner identifies receiver 27, transmitter 26, and two 3-DB couplers as the receiver transmitters.

[00:24:11] Speaker 03:
And as shown, replacing those components, and I think they mean replacing those components with AIDS 2-fiber embodiments per transmitter-receiver,

[00:24:21] Speaker 03:
would not change the fiber input output in that device.

[00:24:24] Speaker 03:
And the fiber input and output, they're then referring up to that upper left-hand corner of Cork's annotated Figure 4.

[00:24:32] Speaker 03:
What they're saying there is, we're going to swap out, according with the Fischer's theory, we're going to swap out the transmitted receiver and these 3 dB couplers in Cork with aids to fiber embodiment.

[00:24:43] Speaker 03:
That does not change the fiber input output in that device, meaning in Cork's annotated Figure 4.

[00:24:50] Speaker 03:
So they're accepting here that A does teach an integrated transceiver, and it does teach a two-fiber embodiment, and even, and this is where we get to the conclusion of that first paragraph, Your Honor, even after making that replacement as petitioner proposed in the petition, and also at paragraph 83 of Dr. Blumenthal's declaration, which appears that appendix pages 811 and 812

[00:25:19] Speaker 03:
Even when we take all of that evidence and consider it, you still only have a single bidirectional optical fiber at the fiber input-output rather than two optical fibers for connections of the transceiver card as recited by Claim 14.

[00:25:34] Speaker 03:
So Your Honor, here I think the Board is saying

[00:25:38] Speaker 03:
Petitioner, we accept your arguments.

[00:25:40] Speaker 03:
We're going to make the change that you are proposing.

[00:25:42] Speaker 03:
It's not a bodily incorporation argument.

[00:25:43] Speaker 03:
It's the argument you proposed, and we still don't get all features of the challenge claim in that combination.

[00:25:50] Speaker 03:
Additionally, Your Honor, I know my time is almost out here, but we also have at the final decision of appendix pages 52 through about 57 or 58, we also have them recognizing that

[00:26:05] Speaker 03:
a single paragraph dealing with the drop in amplitude threshold issue, petitioners simply didn't make the case that amplitude and average amplitude are the same.

[00:26:15] Speaker 03:
And so, Your Honor, we don't think you need to reach the motivation question.

[00:26:18] Speaker 03:
There are a number of reasons why petitioners' arguments were faulty and insufficiently supported.

[00:26:24] Speaker 03:
And the board is petitioned to support by substantial evidence, Your Honor.

[00:26:28] Speaker 03:
Thank you.

[00:26:30] Speaker 02:
Any other questions from the other judges?

[00:26:35] Speaker 02:
Then your presentation is completed.

[00:26:41] Speaker 02:
Thank you, Your Honor.

[00:26:46] Speaker 02:
Council, you have a little time on rebuttal.

[00:26:51] Speaker 01:
Thank you, Your Honors.

[00:26:53] Speaker 01:
On this figure four point, you'll notice, you know, I noticed my friend used terms like swap in and drop out, age transceiver, into that figure.

[00:27:04] Speaker 01:
But I want to go to that figure that's on appendix 197.

[00:27:09] Speaker 01:
And the mistake here, the misconception here, is that we were relying on Cork's fiber input output and saying, here's where the fiber input output of the claim limitation is.

[00:27:25] Speaker 01:
And you put age transceiver in there.

[00:27:26] Speaker 01:
That wasn't our theory.

[00:27:28] Speaker 01:
If you look at the preceding page, the immediately preceding sentence on

[00:27:33] Speaker 01:
Appendix 196, we say Cork discloses embodiments where the detector is incorporated into a device with both a transmitter and receiver.

[00:27:42] Speaker 01:
So the energy level detector is incorporated into something with a transmitter and receiver.

[00:27:47] Speaker 01:
And we made clear in our petition, and this is in our brief where we point to in the petition where we walk through all the claimant petitions, that for the fiber input output, for the two fibers, we're expressly relying on aid.

[00:27:58] Speaker 01:
We're saying aid has a transmitter receiver with a fiber input and a fiber output.

[00:28:02] Speaker 01:
So what we're saying here is this is what Cork says about energy level detection and you could you can incorporate that energy level detection into something that already has a transmitter receiver and that's clear again when you go to the next page which is appendix 198 and the first sentence of that paragraph bottom paragraph is the proposed combination therefore includes a single card with Cork optical power detectors and a receiver transmitter and modulator

[00:28:32] Speaker 01:
So what we're saying is a person ordinary skill bringing his knowledge of this art would come into the here and know that okay eight has everything.

[00:28:43] Speaker 01:
Cork has is taught it teaches the energy level detection you it shows you could incorporate that into something with a transmitter and receiver.

[00:28:52] Speaker 01:
Aid has the transmitter and receiver.

[00:28:54] Speaker 01:
This is well within a person's ordinary personal learning skills and the arts capability and would be motivated to do so because it would reduce the number of cards in the system, thereby reducing cost and complexity.

[00:29:06] Speaker 01:
That's also on appendix 198.

[00:29:09] Speaker 01:
Your honors, on the drop in amplitude issue, again, it's just if you can see by what we put on brief,

[00:29:18] Speaker 01:
The 898 expressly says you can use its system with amplitude modulated signals.

[00:29:24] Speaker 01:
And there's no dispute that you couldn't detect energy level detection with the repeated drops in amplitude that happen with an amplitude modulated signal.

[00:29:34] Speaker 01:
So if it can't be individual drops in amplitude and it can't be average amplitude, which was our position below,

[00:29:41] Speaker 01:
then there's no way that you could use it with amplitude modulated signals.

[00:29:45] Speaker 01:
But if you look at the 898 at appendix 82, columns 4, 44 through 48, it says the transceiver of the present invention preferably operates in phase modulated mode, although conventional amplitude modulated transmitters and receivers may also be used.

[00:30:03] Speaker 01:
There's also a claim 18 on appendix 84 where it distinguishes amplitude and phase modulated signals

[00:30:10] Speaker 01:
So under BRI, our position is there's no substantial evidence that the board, plus this could be reviewed de novo because it's an issue of claim construction and it's fully supported by the intrinsic evidence.

[00:30:23] Speaker 01:
But at the very least, the board erred as a matter of claim construction by elevating extrinsic evidence, the patent owner's expert's testimony over the clear weight of the intrinsic evidence.

[00:30:35] Speaker 01:
So we think this is a clear error in claim construction.

[00:30:42] Speaker 01:
Your honor, there's no other substantial evidence for the board's decision.

[00:30:45] Speaker 01:
The board's limitation of Cork to just what they called protection switching, monitoring an input fiber to see if there are breaks in it for transmitting.

[00:31:04] Speaker 01:
Really quick, Cork expressly says that in addition to per-section switching, you could use this for other important applications, including simply to provide performance information or to automatically control an alarm.

[00:31:19] Speaker 01:
That's exactly what the 898 is talking about when it talks about energy level detection.

[00:31:27] Speaker 01:
Thank you, Your Honor.