[00:00:06] Speaker 01: Our next case is Promos Technologies, Inc. [00:00:09] Speaker 01: versus Sampson Electronics Company. [00:00:12] Speaker 01: This is case number 191343. [00:00:16] Speaker 01: And we're hearing the arguments of Promos Technologies, Inc., Sampson Electronics Company. [00:00:23] Speaker 01: Case 191344, we're hearing consolidation. [00:00:30] Speaker 01: And because we consolidated the arguments, as you all know, we've added five minutes of time, if you need it, in order to address the single common issue here. [00:00:47] Speaker 01: And Mr. Jones, I see you've reserved five minutes of your time for rebuttal. [00:00:51] Speaker 03: That is correct, Your Honor. [00:00:52] Speaker 01: OK, we're ready when you are. [00:01:12] Speaker 03: May it please the court, Kevin Jones, for appellant. [00:01:14] Speaker 02: Mr. and Ms. [00:01:15] Speaker 02: Jones, just a little housekeeping question. [00:01:16] Speaker 02: Do you agree that independent claim 10 of the 507 patent is representative of the claims on appeal? [00:01:23] Speaker 03: Independent claim 10 is the only independent claim on appeal. [00:01:27] Speaker 03: So in that sense, it's the only claim that we do need to address today. [00:01:31] Speaker 03: And the only issue in dispute is in that independent claim 10, which is the board's error in construing the maintaining limitation as plain meaning. [00:01:42] Speaker 03: like to discuss three primary reasons why that was error. [00:01:46] Speaker 03: First, the specification and claim language itself require that limitation to ensure that the feedback clock signal follow the input clock by less than 180 degrees. [00:02:00] Speaker 02: Second, the examiner. [00:02:02] Speaker 02: Where does the phase limitation [00:02:04] Speaker 02: Phase Difference Limitation specify whether the input clock signal has to be ahead or behind the feedback clock signal. [00:02:16] Speaker 02: I'm looking at the 507 in column 4, lines 51 and 53. [00:02:24] Speaker 03: Yes, Your Honor, and that is the limitation reads maintaining the phase difference between the two clock signals [00:02:34] Speaker 03: approximately 180 degrees now the parties and the board agree that there's a term missing there that the word within so with that correction what it says is maintaining the face difference within approximately 180 degrees Samsung would argue and the board found [00:02:54] Speaker 03: that that would allow the feedback clock signal to be behind or ahead of the input clock signal. [00:03:01] Speaker 02: So that was my question? [00:03:02] Speaker 02: Yes. [00:03:03] Speaker 02: Where does it say that? [00:03:05] Speaker 02: That it has to be one or the other as opposed to either? [00:03:08] Speaker 03: So there's three primary reasons. [00:03:10] Speaker 03: And the specification, which must be part of the interpretation of the claim under Phillips, requires that in order to practice the invention, the feedback must be behind the input clock signal. [00:03:24] Speaker 03: More specifically, figure two, which is on the face of the patent itself, describes this switching mechanism in comparator 30. [00:03:33] Speaker 03: And without delving into the details of all the technology, I do want to make it clear there's no dispute that the comparator 30 at the bottom left of figure two will either invert or not the input clock signal based on whether the feedback clock signal is [00:03:54] Speaker 03: behind by 180 or less, or behind by 180 to 360. [00:04:02] Speaker 03: And so we're interpreting the claim as required in light of the specification. [00:04:08] Speaker 03: And that's the basis for our understanding that the feedback clock signal must be within 180 degrees. [00:04:15] Speaker 03: Now, the claim twice states that the number of delay cells needs to be reduced. [00:04:23] Speaker 03: In fact, the last element of claim 10 says a number of delay cells is reduced by approximately 1 half. [00:04:31] Speaker 03: And that's repeated throughout the 507 specification in a long string site in our opening brief at 13, almost in 10 places. [00:04:40] Speaker 03: So the purpose of the invention is to reduce the number of delay cells by 1 half. [00:04:46] Speaker 03: That's directly tied to the 180-degree phase difference. [00:04:51] Speaker 03: Thinking back to high school trigonometry, we have a wave which has a 360-degree cycle. [00:04:57] Speaker 03: The invention is saying, rather than using delay cells to shift the full 360 degrees of delay, we can have the delay cells, and we only have to shift from 180 to 0. [00:05:11] Speaker 03: And we can do that because we invert [00:05:14] Speaker 03: when the clock is 180 to 360 behind. [00:05:18] Speaker 03: If you invert, it basically shifts it forward by 180. [00:05:22] Speaker 03: That's what's done by comparator 30. [00:05:24] Speaker 03: And then we only have to use half the number of delay cells to get you as close to zero as you can. [00:05:30] Speaker 03: That's the point of the invention. [00:05:32] Speaker 03: And that's why the board's application of plain meaning, allowing the feedback to be behind or ahead, doesn't help. [00:05:40] Speaker 03: Because in that case, you still have to shift [00:05:43] Speaker 03: a full 360, because you can only delay, you cannot advance, to get to zero. [00:05:51] Speaker 03: And so that's why the application of the plane meeting, as the board and Samsung argue, doesn't achieve or have anything to do with the invention, in fact. [00:06:02] Speaker 03: The prosecution history is also enlightening, and the examiner's treatment of the butcher prior our reference. [00:06:13] Speaker 03: The butcher prior art reference begins in the appendix at 842. [00:06:24] Speaker 01: When delay occurs, does delay occur in both directions or just one direction? [00:06:30] Speaker 03: Delay only occurs in one direction. [00:06:33] Speaker 01: And that's supported by the written description? [00:06:36] Speaker 03: Yes, it is, Your Honor. [00:06:37] Speaker 03: I think that would be an undisputed fact, not in the record. [00:06:44] Speaker 03: Think by the basis of the term delay line for example in the face of the 507 it would be understood only to delay When that so you think your opponent would agree with you that that this is speaking about one direction Yes, your honor, I think that would be an undisputed point of technical fact and in fact I [00:07:07] Speaker 03: What's happening inside of a delay line is a series of delay elements. [00:07:12] Speaker 03: For example, inverters or transistors that basically take your input and delay it by some number of logic gates. [00:07:21] Speaker 03: It's technically impossible to advance an input clock by adding additional circuitry in series with the input. [00:07:31] Speaker 02: You don't know that. [00:07:33] Speaker 02: You'd win a Nobel Prize. [00:07:34] Speaker 02: You can do it. [00:07:35] Speaker 03: As I said, Your Honor, it's not a fact in the record. [00:07:39] Speaker 03: So I've done my best to address the question. [00:07:46] Speaker 02: The specification demonstrates that the patentee knew how to describe the relationship between the input clock signal and the feedback clock signal in a manner that makes clear which signal leads or lags by using the word behind. [00:08:03] Speaker 02: to indicate the signal lag, one signal lags the other. [00:08:08] Speaker 02: But it didn't include that language in the claims. [00:08:11] Speaker 02: Why not? [00:08:12] Speaker 03: That is correct, Your Honor. [00:08:13] Speaker 03: In fact, as Samson points out, Claim 13 uses the term follows behind. [00:08:20] Speaker 03: I think one point to note is that the structure of Claim 13 is different. [00:08:25] Speaker 03: Here, in Claim 10, this limitation is maintaining the phase difference. [00:08:31] Speaker 03: Matter of just plain English speaking and claim drafting. [00:08:35] Speaker 03: I think it would be extremely awkward to somehow work in The already understood point that the feedback lags by 180 In claim 13. [00:08:45] Speaker 03: It's a much more direct stated relationship in claim 13 and [00:08:55] Speaker 03: That language it's found in the determining limitation, so it's determining whether you're 180 behind is effectively what claim 13 says Here it's in the maintaining, so you're maintaining the phase relationship within a hundred and eighty degrees And I think when read in light of the specification that the claim drafter Understood that since that was the invention and what was described that was the meaning of this element [00:09:24] Speaker 03: In the file history, there was a treatment of a butcher reference. [00:09:29] Speaker 03: The examiner said that butcher taught every element of this claim in its prior form, except for this maintaining limitation. [00:09:43] Speaker 03: So whatever this maintaining limitation means, butcher does not teach it. [00:09:49] Speaker 03: And I want to make clear up front there's some ambiguity, I think, in the briefs before this court and also in the board's application of this or treatment of this issue. [00:09:59] Speaker 03: This is not a prosecution history disclaimer issue. [00:10:04] Speaker 03: We've never argued that. [00:10:05] Speaker 03: So the law about clear and unambiguous disclosure is not applicable. [00:10:10] Speaker 03: This is a case where we're saying the intrinsic record in this case, the file history, evidences what the examiner understood the term to mean. [00:10:21] Speaker 03: And specifically, Butcher is treating two input clock signals. [00:10:27] Speaker 03: If I can direct the court to figure one of the Butcher reference, which is a- So you're saying there's no disclaimer? [00:10:36] Speaker 03: That is correct, Your Honor. [00:10:37] Speaker 03: We're saying it's a implicit definition that was understood by the examiner and the applicant. [00:10:46] Speaker 03: Now, the two input clocks in Butcher. [00:10:49] Speaker 02: But the examiner's statement that none of the prior art teaches doesn't mention whether one signal is ahead or behind the other, correct? [00:10:59] Speaker 02: And it wasn't endorsed by the patentee. [00:11:03] Speaker 03: Those two points are correct, Your Honor. [00:11:05] Speaker 03: The Butcher reference, which I'd like to briefly discuss on the details of the technology and what the examiner must have meant, was that the feedback must lag. [00:11:15] Speaker 03: But to the second point, the applicant's silence does not matter. [00:11:21] Speaker 03: In fact, in the case that Samsung cites, the Salazar case, it was a case that holds prosecution history disclaimer or estoppel cannot apply due to an applicant's silence. [00:11:36] Speaker 03: That's good law and we don't dispute that. [00:11:39] Speaker 03: But then Salazar goes on to say, [00:11:42] Speaker 03: that you can absolutely look at statements by the examiner in determining what was understood to a person of skill in the art at the time. [00:11:53] Speaker 03: And the direct quote from Salazar is, although unilateral statements by an examiner do not give rise to a clear disavowal, it does not necessarily follow that such statements are not pertinent to construing plain terms. [00:12:06] Speaker 03: And that's what we're trying to do. [00:12:07] Speaker 03: Take the examiner's statement and applicant's silence [00:12:12] Speaker 03: and interpret the claim accordingly. [00:12:14] Speaker 01: So your argument is that claim construction would render that limitation meaningless? [00:12:20] Speaker 03: Yes, Your Honor. [00:12:22] Speaker 01: So the primary point- Did you raise this argument in your main brief? [00:12:30] Speaker 01: It seems like you raised this argument primarily in your sir reply. [00:12:35] Speaker 01: But I want both sides to explain the distinction between the argument on this point that's spelled out in the petition and that's spelled out in the sure reply. [00:12:46] Speaker 03: So your honor is talking about the underlying record, not the briefs before this court. [00:12:50] Speaker 03: Is that your question? [00:12:51] Speaker 03: Yes. [00:12:51] Speaker 03: So we did treat this argument directly in our preliminary response at the institution stage. [00:13:00] Speaker 03: And the quotation from that brief is included in our reply brief. [00:13:05] Speaker 03: pages seven and eight and the quote in the underlying preliminary response is appendix 831 831 831 your honor And this is as I say this is also quoted in our reply brief before this court at pages seven and eight [00:13:37] Speaker 03: As you can see, we make the point that Samsung is arguing that, and this is a quote, any DLL where there are two clocks having the same frequency and therefore the same period must necessarily be within 180 degrees of each other. [00:13:55] Speaker 03: The result of this implied construction is that any prior art references having two such clocks would meet this element. [00:14:05] Speaker 03: And the point here, your honor, [00:14:07] Speaker 03: is that if the two frequencies are the same, then of course, shifting it 180 degrees forward has the effect of reducing the delay cells by half. [00:14:19] Speaker 03: If you understand the term, as the board did, to require only 180 plus or minus, you're within that full 360 degree wave. [00:14:29] Speaker 03: And because the two frequencies are the same, you're necessarily within 180 degrees plus or minus. [00:14:40] Speaker 03: If I can just round out the discussion about the treatment of the butcher reference, the point there, your honor, is that the two clocks at issue have equal frequencies. [00:14:52] Speaker 03: And it ties into the point we just discussed. [00:14:54] Speaker 03: Because they're equal frequencies, the examiner understood that the feedback clock was plus or minus 180 degrees of the input, and therefore would have met the maintaining limitation. [00:15:07] Speaker 03: Yet the examiner found that that limitation was not explicitly in the butcher reference. [00:15:14] Speaker 03: So that completes the intrinsic record, both the specification, the claim language, and the examiner's treatment of butcher. [00:15:26] Speaker 03: I have almost five minutes remaining. [00:15:28] Speaker 03: If there's no other questions at this time, I'd like to reserve the remaining time. [00:15:33] Speaker 03: Thank you, Your Honor. [00:15:48] Speaker 00: Good morning, Your Honors. [00:15:54] Speaker 02: Same housekeeping question, independent claim 10, representative. [00:15:59] Speaker 00: Yes, Your Honor, it is. [00:16:01] Speaker 00: So Promus's challenge to the board's claim construction misses the mark. [00:16:05] Speaker 00: To avoid invalidity, Promus asks this court to import a directionality into the claim. [00:16:11] Speaker 00: But Judge Wallach, as you recognize with your questions, such a requirement is not found in the plain language or supported by the plain language of the claims, which is key. [00:16:21] Speaker 00: And more importantly, there is no disclaimer or lexicography that permits the plain meaning to be narrowed in such a manner. [00:16:29] Speaker 00: PROMAS should not be allowed to escape the language it chose, especially in light of the other claim language that we have here and the intrinsic record. [00:16:37] Speaker 00: Let me start with the claim language if I can. [00:16:40] Speaker 00: So if you look at the maintaining limitation, that's at A131. [00:16:44] Speaker 00: It simply requires that the phase difference between the input and feedback clock signals be maintained within 180 degrees. [00:16:53] Speaker 00: Nothing more. [00:16:54] Speaker 00: Judge Walik, going back to your question, there is actually testimony in the record that supports the point that you were asking PROMAS' counsel about, which is, what does a phase difference tell us in this claim? [00:17:05] Speaker 00: And if you can look at appendix A933, paragraph 22. [00:17:09] Speaker 02: Hang on a minute. [00:17:19] Speaker 00: So that's the testimony from their expert. [00:17:21] Speaker 00: Your honor, let me know when you're there. [00:17:22] Speaker 00: Yeah, yeah. [00:17:24] Speaker 00: Okay. [00:17:24] Speaker 00: So if you look at paragraph 22, their expert tells us in relation to the 507 pattern, what is the 507 pattern teaching us? [00:17:32] Speaker 00: It teaches us that when the clock delays or advances, slides left or right. [00:17:38] Speaker 00: It is called a skew. [00:17:40] Speaker 00: So they are talking about the phase reference. [00:17:42] Speaker 00: There is testimony in the record that you would actually go both ways. [00:17:44] Speaker 00: And this goes back to one of the questions Jadrena, you asked as well. [00:17:48] Speaker 00: There's more testimony in the record, not only from their experts. [00:17:50] Speaker 01: Does it go both ways, or does it only go one direction? [00:17:52] Speaker 00: No, Your Honor, it can go both ways. [00:17:54] Speaker 00: And I think the testimony that I just pointed to supports that. [00:17:57] Speaker 00: And there's more testimony in the record. [00:17:59] Speaker 00: If you look at Samsung's expert testimony from Dr. Baker, and that's at A228. [00:18:05] Speaker 00: And we can look at that as well. [00:18:12] Speaker 00: So their Samsung expert is explaining the background of the technology and in paragraphs 28 and 29 explains why you would have clock signals and why there would be a phase difference and they could be ahead or they could be behind. [00:18:27] Speaker 00: So the plain meaning language, we believe, is fatal to their argument because there is testimony in the record that shows that the phase difference, the term maintaining, should be given its plain and ordinary meaning. [00:18:41] Speaker 00: And if you look at this language, again, it does not import any directionality. [00:18:46] Speaker 00: All it requires is that there be a maximum phase difference, no more than 180 degrees. [00:18:52] Speaker 00: And there's more here. [00:18:53] Speaker 00: If you look at claim 13, [00:18:55] Speaker 00: which I believe was discussed. [00:18:57] Speaker 00: If you look at that claim, it tells us that the applicant knew, and that's at appendix 132, Your Honor. [00:19:05] Speaker 00: It tells us the applicant knew how to claim directionality. [00:19:09] Speaker 00: They said a feedback clock signal in the DLL follows within a 180 degree phase difference. [00:19:15] Speaker 00: So PROMAS clearly knew how to claim this. [00:19:18] Speaker 00: And what's more, we have four different independent claims here, claims one, eight, [00:19:24] Speaker 00: 10 and 13. [00:19:25] Speaker 00: And if you look at those claims, PROMAS wanted to claim different embodiments in that claim, and they did use different language. [00:19:33] Speaker 00: And I think they should be held to that, especially in light of this court's case law. [00:19:37] Speaker 00: So where does that leave us? [00:19:38] Speaker 00: So that leaves us where, if you go back to the Torner case, this court's case law is clear that claim terms must be given their plain and ordinary meaning to one skill in the art, unless there are only two exceptions. [00:19:50] Speaker 00: One, [00:19:51] Speaker 00: Panty sets forth a definition, or X, as is on the Sagalka River, to that there is a disclaimer. [00:19:58] Speaker 00: And they've conceded that there is no disclaimer. [00:20:00] Speaker 00: I heard counsel say this is an implicit definition case. [00:20:03] Speaker 00: Well, there is no such implicit definition either in the specification or the prosecution history. [00:20:09] Speaker 00: Let me turn to the specification next. [00:20:11] Speaker 01: If you look at this... Is a face difference language ambiguous in the claim? [00:20:16] Speaker 00: We do not believe so, Your Honor. [00:20:18] Speaker 00: We believe, again, if you go back to the testimony that I pointed you to from the experts, including Dr. Baker, Samsung's expert, and Mr. Gervasi, their expert, it tells us what they mean by a face difference, that it could either... the clock signal could either lag or it could be behind. [00:20:36] Speaker 02: At least in that claim, it could work either way, couldn't it? [00:20:40] Speaker 00: That's right, Your Honor. [00:20:41] Speaker 00: In claim time, it could work either way. [00:20:44] Speaker 00: And we believe, if you look at the specification, yes, they do point to the figure two embodiment. [00:20:49] Speaker 00: But as this court's case law makes clear, that's not the be and end all. [00:20:54] Speaker 00: That's just one embodiment, as the board found. [00:20:56] Speaker 00: And the specification, Your Honor, as you alluded to, does include other language that supports the board's reading of the claim. [00:21:04] Speaker 00: And that, namely, is at A130. [00:21:06] Speaker 00: For example, there, they use the term behind. [00:21:09] Speaker 00: It's column two, line 63 to 66. [00:21:13] Speaker 00: They did it again at A131, and that's column 3, lines 3 to 4. [00:21:20] Speaker 00: And they did it again at A131, column 3, lines 8 to 9. [00:21:24] Speaker 00: So they clearly knew when to use behind. [00:21:27] Speaker 00: So they cannot ask this court today to rewrite its claim. [00:21:32] Speaker 00: And there is support for this language in other places, the board's construction, namely the abstract and the summary of the invention. [00:21:39] Speaker 00: If you look at the abstract and look at the summary of the invention, it broadly refers to the maintaining limitation. [00:21:45] Speaker 00: And it, in fact, uses the exact same language that we find in claim 10. [00:21:49] Speaker 00: What's more? [00:21:50] Speaker 00: Let's go to figure 2. [00:21:51] Speaker 00: I heard counsel say there is no dispute about the operation of figure 2. [00:21:56] Speaker 00: There is a dispute about the operation of figure 2. [00:21:59] Speaker 00: And the dispute namely is, if you actually look at figure two and the way it operates, it actually does not ensure that the feedback clock signal is always behind the input clock within 180 degrees. [00:22:13] Speaker 00: Let me explain why. [00:22:14] Speaker 00: So there are instances, for example, and there's testimony in the record on this from their expert, their own expert. [00:22:20] Speaker 00: We actually went through the scenario with their expert. [00:22:23] Speaker 00: He admitted, yes, in the situation we gave him, that the circuit would toggle back and forth between switch one and switch two. [00:22:30] Speaker 00: And you can find that testimony at appendix 1165 to 1167. [00:22:36] Speaker 00: Now, in their reply brief, they try to come back and say, well, that's not what Mr. Gervasi testified. [00:22:43] Speaker 00: He did on recross and redirect. [00:22:45] Speaker 00: He tried to clean up that testimony. [00:22:47] Speaker 00: But if you actually look at the entirety of that testimony, it will show that Mr. Gervasi was, once he was caught in this sort of, that the circuit of figure two doesn't work, he tried to gap fill. [00:22:59] Speaker 00: But what he did was, and this is at A1172, I think it's important, Your Honor, if you could look at it, at appendix 1172, [00:23:11] Speaker 00: Let me know when you're there. [00:23:12] Speaker 02: We're there. [00:23:13] Speaker 00: So there he said, and I'm specifically focusing on page 84, and it's 11 through 13 lines, 11 through 13. [00:23:21] Speaker 00: He admitted that [00:23:24] Speaker 00: His understanding was not based on the text of the patent. [00:23:28] Speaker 00: So he was trying to generalize. [00:23:31] Speaker 00: And he also said in another place, this unfortunately is not in the appendix. [00:23:34] Speaker 00: I know the full transcript is certainly available to the court. [00:23:37] Speaker 00: And that's at exhibit 1010, pages 81, and lines 8 through 14. [00:23:44] Speaker 00: He said his understanding, again, he said, was not based on the body of the patent, but instead was an exercise in abstraction [00:23:51] Speaker 00: and thinking about what the implementation of the extraction would look like. [00:23:56] Speaker 00: So figure two does not support that. [00:23:58] Speaker 00: There's more. [00:23:59] Speaker 00: If we go to figure three, I think figure three is fatal to their argument. [00:24:02] Speaker 00: They pointed to figure three in their reply brief. [00:24:05] Speaker 00: If I could have the court turn to figure three, I would like to spend some time on that. [00:24:09] Speaker 00: And that's at appendix 128. [00:24:20] Speaker 00: Your Honor, let me know when you're there. [00:24:24] Speaker 00: All right. [00:24:26] Speaker 00: OK, so if we look at figure three, the way figure three works is you have the input clock signal on the top, right? [00:24:32] Speaker 00: That's the CK1. [00:24:34] Speaker 00: And then you have a feedback clock signal, that's CKF, on the bottom. [00:24:38] Speaker 00: The way figure three works is, and you see there's a shaded region, 32. [00:24:43] Speaker 00: You see that? [00:24:44] Speaker 00: So the way figure three works, and actually let me back up. [00:24:47] Speaker 00: So the way the phase works in this one is, so if you look at the first rising edge of CK1, [00:24:53] Speaker 00: Right to the second to the falling edge of ck1 so there's a first rising rising edge, and then you have a falling edge That's the 180 degrees right and then it goes on then you have the 181 to 360 degrees so the way figure 3 works it tells us in the specification that if you have a rising edge of the feedback feedback clock signal in the area 32 and [00:25:19] Speaker 00: there would be a switch. [00:25:20] Speaker 00: The switch would make a switch, right? [00:25:22] Speaker 00: In figure two, you would make the switch go from position number one to number two, okay? [00:25:28] Speaker 00: But more importantly, there is no transition, there is no shift of the switch positions in the areas marked DT2, the non-shaded regions. [00:25:38] Speaker 00: Well, guess what? [00:25:39] Speaker 00: What do those areas represent? [00:25:40] Speaker 00: If you look at their patent, it tells us those, if you do the math, it would be 181 degrees to 215 degrees in that first instance. [00:25:49] Speaker 00: And in the second instance, it would be 325 to 359 degrees. [00:25:54] Speaker 00: So what they are telling us in the patent itself that [00:25:57] Speaker 00: there will not be a shifting. [00:26:00] Speaker 00: So in other words, the feedback clock signal does not follow the input clock signal every time when the phase difference is within 180 degrees. [00:26:14] Speaker 00: So, and I think this also, this argument, and if you look at figure three, I think it also tells us that, as you know, a clock signal is periodic, right? [00:26:24] Speaker 00: So it will keep going on. [00:26:25] Speaker 00: So the input clock signal here will keep going on. [00:26:29] Speaker 00: So this actually figure we believe also supports the board's construction in that it shows that you would have a rising edge in that shaded region or outside of the shaded region. [00:26:38] Speaker 00: that would be actually ahead of the input clock signal. [00:26:42] Speaker 00: And this is all supported by Mr. Jervasi's testimony, their expert's testimony, and I'll give you the citation for that. [00:26:48] Speaker 00: And that's at appendix 1175 to 79. [00:26:53] Speaker 00: So what figure three tells us is that, again, in those windows marked DT2, the rising edge of the feedback clock signal would be ahead of the rising edge of the input clock signal, and thus would fall within 180 degrees of the input clock signal and not switch, thus meeting the board's construction. [00:27:18] Speaker 00: So where does that leave us? [00:27:20] Speaker 00: They pointed out to the board [00:27:23] Speaker 00: purpose of the invention, right? [00:27:25] Speaker 00: They pointed out that this reduces the delay lines in the circuit. [00:27:28] Speaker 00: Well, that's already in claim 10. [00:27:30] Speaker 00: The prior discloses it. [00:27:32] Speaker 00: So if you can look at claim 10, that's in, again, going back to Appendix 131. [00:27:44] Speaker 00: So if we look at column four, line 57, it says, delaying the input clock signal to compensate for the phase difference, wherein a number of delay cells utilized is reduced by approximately one half. [00:28:00] Speaker 00: That language, there is no dispute that it is taught by both the Kim and Donnelly references that are at issue here. [00:28:06] Speaker 00: So they cannot say that Samsung is somehow reading out limitations out of the claim. [00:28:14] Speaker 00: So turning to the prosecution history, I heard counsel say the prosecution history is key here. [00:28:21] Speaker 00: But as the board found, the prosecution history is anything but clear. [00:28:25] Speaker 00: Let me explain why. [00:28:28] Speaker 00: First, as counsel also pointed out, the statements that we have in the prosecution history are only from the examiner. [00:28:35] Speaker 00: And I think we should look at that, because I think it's telling. [00:28:38] Speaker 00: So if we can turn to Appendix 393, [00:28:55] Speaker 00: Let me know when you're there, Your Honor. [00:28:57] Speaker 00: 393? [00:28:58] Speaker 00: Yes, Your Honor. [00:29:05] Speaker 00: OK. [00:29:05] Speaker 00: So if you look at 393, this is the paragraph that they are banking their entire argument on. [00:29:12] Speaker 00: This paragraph says nothing about whether the maintaining limitation requires the feedback clock signal to follow the input clock signal within 180 degrees. [00:29:25] Speaker 00: Right? [00:29:26] Speaker 00: There is no such statement there. [00:29:27] Speaker 00: They are reading too much into this prosecution history. [00:29:30] Speaker 00: And that cannot be supported under this court's case law, whether you look at it from a disclaimer perspective, whether you look at it from an implicit definition perspective, or even if you look at it more broadly. [00:29:43] Speaker 00: And I think what's more here, I just don't want this fact to get lost on the court. [00:29:47] Speaker 00: Claim 11, application claim 11, is the one where the examiner indicated. [00:29:51] Speaker 00: So if we actually go to the next page, [00:29:54] Speaker 00: And that's Appendix 394. [00:29:57] Speaker 00: You'll see there's a paragraph four there. [00:30:01] Speaker 00: And it tells the applicant, look, some of your claims are allowable if you rewrite them in independent form. [00:30:10] Speaker 00: So that's in paragraph four. [00:30:12] Speaker 00: Claim 11 was the claim that resulted. [00:30:15] Speaker 00: It was a dependent claim. [00:30:16] Speaker 00: They rewrote it to make it an independent claim. [00:30:19] Speaker 00: And that's what we have here today. [00:30:21] Speaker 00: But it's the limitations of claim 11 that, presumably, the examiner found were the reason for the allowance. [00:30:27] Speaker 00: But we don't know. [00:30:28] Speaker 00: We just don't know. [00:30:29] Speaker 00: The examiner doesn't give us reasons why he allowed that claim. [00:30:33] Speaker 00: But the maintaining limitation that was in the independent claim, claim A in the application, was rejected. [00:30:39] Speaker 01: And how does a phase difference work if it's not directional? [00:30:46] Speaker 00: So you are that that is my point I believe the phase difference what happens here is if you look at in a clock Circuit so you have an input clock signal right which will have a particular face And then you'll have a feedback clock signal with a particular face right so [00:31:04] Speaker 00: And the goal of the DLL here in these circuits is to align the phases, right? [00:31:10] Speaker 00: You want the input and the output generally to have the same phase, right? [00:31:16] Speaker 00: So that the rising edge of the input clock matches up with the rising edge of the feedback clock signal. [00:31:25] Speaker 00: And that's what these circuits do. [00:31:27] Speaker 00: That's what a DLL does. [00:31:29] Speaker 01: And if you look at the... So are you saying the delay happens only in one direction? [00:31:34] Speaker 00: No, Your Honor, it can happen in both directions. [00:31:36] Speaker 00: So if you had an example where, let's say, the feedback clock signal was ahead of the input clock signal. [00:31:43] Speaker 01: Then doesn't that render the limitation ambiguous? [00:31:46] Speaker 00: Your Honor, respectfully, it doesn't. [00:31:48] Speaker 00: And the reason for that is if you look at the limitation here, it's a very broad limitation. [00:31:54] Speaker 00: All it tells us is that [00:31:56] Speaker 00: you maintain the phase difference within 180 degrees, right? [00:32:00] Speaker 00: It doesn't tell you the directionality, and that's our point. [00:32:03] Speaker 00: They should not be allowed to read a directionality requirement into this claim. [00:32:09] Speaker 00: And I think butcher is key here, right? [00:32:11] Speaker 01: They keep on pointing to butcher and suggesting... If it's ambiguous, why would it be the case that you're importing a limitation if it's ambiguous? [00:32:20] Speaker 00: I understand you. [00:32:21] Speaker 01: So, Your Honor, we don't... You're merely engaging in claim construction. [00:32:25] Speaker 00: I understand, Your Honor. [00:32:26] Speaker 00: With all due respect, Your Honor, we do not believe it's ambiguous. [00:32:30] Speaker 00: We think it is clear based on the expert testimony that I pointed you to before. [00:32:36] Speaker 00: And in light of the specification, I think their specification tells us if they wanted to be ahead or behind, certainly behind is mentioned in their specification. [00:32:46] Speaker 00: And even their expert agreed that you would have in this type of a situation [00:32:50] Speaker 00: signals that are both ahead and that are both behind. [00:32:54] Speaker 00: So that's what this claim is directed to, is that you will adjust the phase difference to make sure that the feedback clock signal and the input clock signal is within 180 degrees. [00:33:06] Speaker 00: The claim requires nothing more. [00:33:07] Speaker 00: And on the directionality, Judge Arena, just to make sure. [00:33:11] Speaker 00: I get my point across. [00:33:12] Speaker 00: They did have, in claim 13, if you look at claim 13, they did say that, and this is at appendix 132, column 5, they said they're determining whether feedback clock signal in the DLL follows within a 180 degree phase difference behind the input clock signal. [00:33:33] Speaker 00: So they knew how to claim directionality. [00:33:35] Speaker 00: And I think, Judge Reynaud, another point to make here is, [00:33:38] Speaker 00: There is nothing in the pro, even if you were to conclude it's ambiguous, we would disagree with that. [00:33:43] Speaker 00: But even if you were to do that, I think when you go to the specification, when you go to the prosecution history, they do not tell us, they do not compel the kind of reading that they want from the claim. [00:33:54] Speaker 00: It doesn't compel us that it has to be behind as they would have this court construe these claims for the reasons that we discussed. [00:34:01] Speaker 01: Your argument is that there has to be some sort of disclaimer in the written description. [00:34:05] Speaker 00: That's right, Your Honor. [00:34:06] Speaker 01: That's not. [00:34:07] Speaker 01: That's not Phillips, is it? [00:34:09] Speaker 01: I mean, if we're interpreting, if we're engaged in claim construction, then how is, and then the construction is narrower of two constructions. [00:34:21] Speaker 01: then why is there a requirement that there has to be a disclaimer? [00:34:27] Speaker 00: So, Your Honor, with all due respect, I certainly think you can look at the prosecution history and specification as you pointed out. [00:34:32] Speaker 01: It seems to me that our law is that you require a disclaimer or a special type of lexography whenever you're claiming that a particular term [00:34:43] Speaker 01: Has special meaning and that special meaning is not the plain meaning of the term, right? [00:34:48] Speaker 00: And I think they are claiming a special meaning here your honor they are claiming that within means behind as The plain meaning of within is not behind right and and I pointed you to expert testimony that we have here And I think the Torner case is telling and that's the rubric that the board used here And I just want to make a quick point on butcher because they if the plain meaning of [00:35:09] Speaker 02: within included behind, you wouldn't have behind and claim 13%. [00:35:13] Speaker 00: That's right. [00:35:14] Speaker 00: That's right. [00:35:15] Speaker 00: And within, in our view, includes both behind and ahead. [00:35:18] Speaker 00: That's the plain meaning of this claim term. [00:35:21] Speaker 00: And that's what this court should do. [00:35:22] Speaker 00: And on Butcher, I'm just going to give you one site, which is column 11. [00:35:26] Speaker 00: And that's appendix 843. [00:35:28] Speaker 00: If you look at Butcher, they keep on saying that the clock frequency in Butcher, they are the same. [00:35:35] Speaker 00: So if I could just give you one site on Butcher. [00:35:39] Speaker 02: Did you say 843? [00:35:40] Speaker 00: Right, that's where Butcher starts, but I'm going to give you the exact page number. [00:35:45] Speaker 00: So it's appendix 854. [00:35:51] Speaker 00: And it's the table in column 11. [00:35:55] Speaker 00: So in Butcher, if you look at the way Butcher works, the CLK ref frequency is listed as 10.24 megahertz. [00:36:02] Speaker 00: That would be the input clock in Butcher. [00:36:05] Speaker 00: And then you have the receive clock frequency. [00:36:08] Speaker 00: You can see that a few lines down. [00:36:10] Speaker 00: And that's 80 kilohertz. [00:36:12] Speaker 00: So Butcher gives you examples where the phase difference is not the same. [00:36:18] Speaker 00: And we think that's fatal to their argument in terms of the clock, or that the clock signals do not have the same frequency. [00:36:23] Speaker 00: I think that's fatal to their argument with respect to butcher. [00:36:27] Speaker 00: So then what's left? [00:36:29] Speaker 00: It's a superfluous language. [00:36:31] Speaker 00: And I want to address, Jedreina, your question on waiver. [00:36:34] Speaker 00: You had asked me a question earlier on waiver. [00:36:36] Speaker 00: And here. [00:36:38] Speaker 00: PROMAS did have a waiver. [00:36:41] Speaker 00: We are not saying that the superfluous argument they didn't make before the board. [00:36:44] Speaker 00: That's not what we're saying. [00:36:45] Speaker 00: It's the underlying factual arguments that they're making. [00:36:49] Speaker 00: That's what they waived. [00:36:50] Speaker 00: So what they did was, in their surply before the board for the first time, [00:36:53] Speaker 00: they pointed to some testimony from our expert and said, if you look at this testimony, this shows that in a DLL, you would always be the case that the input clock signal and the feedback clock signal will always have the same frequency. [00:37:09] Speaker 00: Well, first of all, if you look at that testimony, it doesn't say that. [00:37:12] Speaker 00: But that's what the board said was waived And that's what we're saying was waived on appeal and they do not challenge the board's evidentiary finding on that issue So they cannot rely on that testimony was our point But even if you look at it again It doesn't support them and the board here if you look at what the board did with respect to this issue I think it's very simple the board said even if you [00:37:36] Speaker 00: Look at the maintaining limitation. [00:37:39] Speaker 00: Legally, Samsung is not making the argument here that you are ignoring or reading out limitations. [00:37:45] Speaker 00: With respect to both Kim and Donnelly, Samsung showed how those references, in those references, the input clock signal and the feedback clock signal [00:37:55] Speaker 00: Or they have the same frequency. [00:37:58] Speaker 00: And then we didn't stop there. [00:37:59] Speaker 00: We actually showed them how the DLL limitation meets the rest of the limitations of the claim time. [00:38:06] Speaker 00: So there is simply no reading out of the limitations under this court's case law. [00:38:10] Speaker 00: Unless your honors have any questions, other questions, we would like to ask that you'll find. [00:38:15] Speaker 01: Thank you. [00:38:16] Speaker ?: Thank you. [00:38:30] Speaker 01: You have a little over five minutes of time. [00:38:32] Speaker 03: Thank you your honor if you need that much I'd like to address three or four of the points that council just raised and first is a technical factual point and I think maybe a misunderstanding or a miscue between Judge Waldox question and the answer That you got and that is the question of whether a delay line can advance or delay or whether a delay line can delay [00:38:57] Speaker 03: Now, aside from the fact that a delay line is called a delay line, there's evidence in the 507 spec that tells us that a delay line can only delay. [00:39:10] Speaker 03: If you look at column three, 507, put one page. [00:39:24] Speaker 03: This would be appendix 130. [00:39:29] Speaker 03: Excuse me appendix 131 Around lines 23 to 26 They're discussing the benefit of the invention which again was to reduce the delay cells by half Describing how it works they say at line 23 regardless of the number of register cells those are delay cells and [00:39:55] Speaker 03: Suitably, the shift register starts at a point close to the beginning of delay line, with shifting starting to the right. [00:40:02] Speaker 03: Now what this delay line does, when the clocks first come in, there is no delay. [00:40:09] Speaker 03: On the first iteration, you can delay by one register cell, by one delay unit. [00:40:15] Speaker 03: And each unit has a fixed period of delay based on device dimensions. [00:40:20] Speaker 03: If that's not enough, the second time through, you delay by two delay cells. [00:40:25] Speaker 03: That's still not enough you delay by three delay cells now you can If you're at a point where you have reduced by you have delayed by three delay cells you can Move back and delay by only two delay cells or even move back to one or zero But you can never take the original input clock and move forward Delay can't advance Correct which seems straightforward when you say it that way now [00:40:53] Speaker 03: Again, if you're in the prior art, which our invention improved upon, but in the prior art where you can delay up to 360 degrees, of course, delaying by 300 degrees looks like you have just advanced by 60 because it's a repetitive wave. [00:41:12] Speaker 03: But the critical difference is you require twice the number of delay cells to get to that point. [00:41:18] Speaker 03: So I think that's important because it, again, [00:41:23] Speaker 03: means that the application of maintaining, as they've argued, is not relevant to the entire 507 spec, or the invention, or the rest of the claim. [00:41:35] Speaker 03: The last element in the claim, 10, says you reduce the delay cells by half. [00:41:39] Speaker 03: Yet they're arguing that you're always plus or minus 180, and therefore there's no reduction in delay cells at all, because you still would need [00:41:50] Speaker 03: 360 degrees worth of delay cells in order to get you close to zero. [00:42:04] Speaker 03: Another point that was discussed is figure two and our expert, Mr. Gervasi's treatment of figure two. [00:42:12] Speaker 03: I think it bears worth stating up front [00:42:16] Speaker 03: Clearly, this is a block diagram. [00:42:18] Speaker 03: These are not circuit elements. [00:42:20] Speaker 03: This is not a circuit design. [00:42:22] Speaker 03: And it needs to be understood as a person of skill in the art would understand it. [00:42:26] Speaker 03: Mr. Gervasi, on his own accord, as the deposition record states, was very uncomfortable with the initial questioning that Samsung's counsel posed to him. [00:42:37] Speaker 03: He took several minutes at break, again, as the record states, and came back and cleaned up the record with some explanation of what he calls hysteresis in Comparator 30. [00:42:47] Speaker 03: It's quite a detailed transcript. [00:42:49] Speaker 03: And rather than sort of walking you through it now, I would just ask the court. [00:42:53] Speaker 03: Our brief does treat this fairly, our reply brief. [00:42:56] Speaker 03: But if you read the transcript in context, it's clear that Mr. Gervasi does not agree that figure two jitters back and forth around zero. [00:43:05] Speaker 03: Figure two absolutely requires the feedback to be behind the input clock signal. [00:43:18] Speaker 03: And there was a discussion about figure three in the patent as well, and council's discussion about the shaded area in the 507 patent. [00:43:33] Speaker 03: And he says that figure three teaches that the feedback can be ahead of the input clock. [00:43:40] Speaker 03: of these 20% DT2 periods on either side of the shaded area is to avoid false transitions. [00:43:47] Speaker 03: Column 3 states that. [00:43:49] Speaker 03: And that's the basis for Mr. Gervasi saying feedback would not go ahead of the clock input because that's a false transition. [00:43:56] Speaker 03: And figure 3 supports his conclusion on that point. [00:44:01] Speaker 03: So I'm just approaching the end of my time. [00:44:02] Speaker 03: I'd welcome any other questions from your honors. [00:44:07] Speaker 03: We have your argument. [00:44:09] Speaker 01: And we have the argument of all the parties, so we thank you.