[00:00:00] Speaker 01:
Okay, counsel, before we start the clock, Mr. Dahlgren, Ms.

[00:00:04] Speaker 01:
Maeda, just a little caution.

[00:00:09] Speaker 01:
As you know, with these telephonic hearings, it can be a little difficult to communicate between the judges and the lawyers, largely because we don't have that in-person eye-to-eye contact.

[00:00:24] Speaker 01:
So, please listen carefully for when a judge starts talking.

[00:00:28] Speaker 01:
They're going to be trying to ask questions, you know.

[00:00:31] Speaker 01:
And when a judge starts, please stop so you can hear what they're asking.

[00:00:37] Speaker 01:
Am I clear with both counsel?

[00:00:41] Speaker 02:
Yes, Your Honor.

[00:00:43] Speaker 00:
Yes, Your Honor.

[00:00:44] Speaker 01:
Okay.

[00:00:45] Speaker 01:
Mr. Delgan, you're reserving three minutes, right?

[00:00:49] Speaker 02:
That's correct.

[00:00:51] Speaker 01:
Okay.

[00:00:51] Speaker 01:
When we get that tone for the three minutes, I'll just interject to

[00:00:56] Speaker 01:
remind you so you don't lose that time for rebuttal.

[00:01:00] Speaker 01:
But it's up to you.

[00:01:01] Speaker 01:
You can keep talking if you want.

[00:01:04] Speaker 01:
Understood?

[00:01:04] Speaker 02:
Yes, Your Honor.

[00:01:07] Speaker 01:
Okay.

[00:01:07] Speaker 01:
Then let's proceed.

[00:01:10] Speaker 02:
May I please record?

[00:01:12] Speaker 02:
This case involves the highly fact-specific question of written description that was decided in early summary judgment.

[00:01:18] Speaker 01:
Mr. Dahlgren?

[00:01:20] Speaker 01:
Yes, Your Honor.

[00:01:22] Speaker 01:
Where in the record is there determination of the qualifications of a posita?

[00:01:33] Speaker 02:
Your Honor, I believe there was a recitation in at least Dr. Sessions' declaration on checking to see if it was in the record.

[00:01:45] Speaker 02:
It was not a point that was disputed between the parties.

[00:01:51] Speaker 01:
Was there actual determination by the court?

[00:01:56] Speaker 02:
My recollection is that that issue was not addressed in the court's opinion, no.

[00:02:02] Speaker 01:
Or otherwise, correct?

[00:02:04] Speaker 02:
That's my understanding, Your Honor.

[00:02:06] Speaker 02:
Ms.

[00:02:06] Speaker 02:
Metzek can correct me if I'm mistaken, but that's my understanding.

[00:02:11] Speaker 01:
OK, is it Intel's position that a person of skill in the art is a district court judge with 20 years of patent litigation experience?

[00:02:22] Speaker 02:
Your Honor, I can't speak for Intel, but in Flash Control's opinion, we would say no.

[00:02:29] Speaker 02:
And that's one of the issues that we had with the district court's opinion was that it stepped into the shoes of not just a trier of fact, but personal skill in the art and made a variety of determinations, which go to the core of the written description analysis.

[00:02:48] Speaker 02:
One of the first factors is the knowledge and understanding of a person's field of the art in a particular area.

[00:02:55] Speaker 02:
And to have the court substitutes its own knowledge.

[00:03:00] Speaker 01:
I understand.

[00:03:01] Speaker 01:
I understand.

[00:03:02] Speaker 01:
But I'm asking you about, if you can't speak for Intel, I won't ask you to further answer it.

[00:03:07] Speaker 01:
But I'm going to ask them the same question.

[00:03:11] Speaker 02:
I understand you are.

[00:03:12] Speaker 02:
And just to be clear, our opinion is that that would not be

[00:03:17] Speaker 02:
the correct qualifications for a person of skill in the art in this area of technology.

[00:03:23] Speaker 02:
Okay.

[00:03:25] Speaker 02:
Thank you.

[00:03:26] Speaker 02:
I don't have anything else.

[00:03:28] Speaker 02:
And Your Honor, I think that that kind of raises one of the points or dovetails nicely with what I was going to discuss is that I think that there are a number of different issues with the district court's opinion on how this was handled.

[00:03:45] Speaker 02:
that just suggests that there was some type of misapplication of the appropriate safeguards and standards for summary judgment.

[00:03:53] Speaker 02:
And whether or not it was because of the concurrent markman, the fact that it now remains is that there was an incorrect result and an incorrect application of the law.

[00:04:03] Speaker 02:
So regardless of the reason, it's flash and close position that the district court did not follow the appropriate standards for summary judgment.

[00:04:13] Speaker 02:
One of the, I think, issues that flowed from that was the district court, if you look at the joint appendix of pages 221 through 222, the district court during the hearing requested that flash control, you know, not focus on its expert's testimony, but focus on the intrinsic record when we were discussing the written description issue.

[00:04:39] Speaker 02:
And I think that that's just an instance that shows the, again, the failure to follow proper sovereign-rechargement law and the use of safeguards that are built into it appropriately.

[00:04:54] Speaker 02:
And as you said, instead, the court took on the role of prior facts and the personal skill in the art and disregarded the entirety of our expert's testimony, even where it had no connection to the alleged error

[00:05:09] Speaker 02:
that Intel had identified in terms of the methodology used by our expert.

[00:05:17] Speaker 02:
And in doing so, we believe that that was an abuse of discretion.

[00:05:21] Speaker 02:
And again, this goes to the fact that it's the case disposive motion.

[00:05:26] Speaker 02:
It's before discovery has commenced on a not well-developed record.

[00:05:31] Speaker 02:
And we think that viewing everything in light most favorable to the non-movement

[00:05:36] Speaker 02:
that the testimony identified by Intel doesn't really state what they are trying to portray it as stating.

[00:05:47] Speaker 02:
Dr. Bagherzadeh considered the claims.

[00:05:52] Speaker 02:
He noted that he looked at the claims.

[00:05:55] Speaker 02:
But if you look at the questions that he was being presented with, they almost, I think in every instance, were based on

[00:06:06] Speaker 02:
snippets or isolated portions of the specification.

[00:06:10] Speaker 02:
And even in the one instance where they were discussing about using all four, you know, columns of text, I mean, this is a very concise and dense patent.

[00:06:21] Speaker 02:
There's a lot of information in the specification.

[00:06:24] Speaker 02:
But even that question has still admitted numerous figures.

[00:06:27] Speaker 02:
It was, the question was, you know, looking at figures three and nine and the entirety of the specification,

[00:06:35] Speaker 02:
Can you say this?

[00:06:37] Speaker 02:
And again, by taking out Figure 6, for example, which Dr. Begazzade relied on, I think his response was fair.

[00:06:47] Speaker 02:
And in view of the remainder of the testimony, I think that it's clear that he did not rely on the claims of actual written-scription support.

[00:06:56] Speaker 02:
And I think one of the best essence of that is his declaration itself.

[00:07:02] Speaker 02:
It never once

[00:07:04] Speaker 02:
points to the claims as written description, you know, bootstrapping, if you will.

[00:07:10] Speaker 02:
And I think his confusion as not being a lawyer is understandable, particularly when you read the transcript.

[00:07:19] Speaker 02:
But having set aside his testimony, the district court went on to make, you know, a number of factual findings.

[00:07:27] Speaker 02:
And these were fact findings that

[00:07:31] Speaker 02:
were on issues that Intel had never raised, that had never been briefed.

[00:07:36] Speaker 02:
For example, how a person with skill in the art would understand a register.

[00:07:41] Speaker 02:
And in that instance, I mean, this going to the joint appendix that, you know, page 18, the district court said that a person would understand that they're fairly small and that they wouldn't be suitable as the first and second buffers.

[00:07:55] Speaker 02:
And I think that this is not only improper judicial kind of fact finding,

[00:08:01] Speaker 02:
during summary judgment, but it's also contradicted by the record.

[00:08:05] Speaker 02:
The 20th appendix, page 412, there is a micron publication that Intel relied on.

[00:08:14] Speaker 02:
And it notes that registers can hold more than, you know, 16 or 32 bits, as the district court said, in fact that they can hold, you know, up to two kilobits.

[00:08:25] Speaker 02:
And that's consistent with the patents in suit as well.

[00:08:29] Speaker 02:
If you look at figure 6 of the 880 patent or figure 6A and B of the 537 patent, which are essentially identical except for the numbering, they also support the idea that these registers can serve as these buffers and actually hold more data than the district court stated, specifically the page register, for example, in the figure 6.

[00:08:52] Speaker 02:
And figure 8 provides further support as well.

[00:08:57] Speaker 02:
And the district court also, I think, incorrectly stated that the register would not be understood to be generic memory.

[00:09:07] Speaker 02:
Dr. Bagazide had to provide a testimony that contradicted this point.

[00:09:12] Speaker 02:
Again, the district court set that aside.

[00:09:15] Speaker 02:
But it did provide any evidence.

[00:09:17] Speaker 02:
And it introduced this condition code register, which wasn't referenced anywhere else in the record for the first time as an example, supposedly supporting it.

[00:09:27] Speaker 02:
And in another instance, and again, the briefing covers this in more detail, but I think another instance that really caused us some concern was the district court's conclusion that the new commands that are being recited in the patents in the suit, this court concluded they were descriptions of the prior art, and therefore by definition do not disclose the claim of invention.

[00:09:49] Speaker 02:
And there wasn't any evidence that was provided to support that conclusion.

[00:09:56] Speaker 02:
Intel had not made that argument, and I think it's wrong factually.

[00:10:02] Speaker 02:
And I also think it's wrong as a matter of law.

[00:10:05] Speaker 02:
Here, the patent suit are taking existing architecture and optimizing how it can be used to improve performance.

[00:10:18] Speaker 02:
And it's essentially combining different aspects

[00:10:23] Speaker 02:
of things that are known.

[00:10:26] Speaker 02:
And now I'm not conceding, and I don't believe that the new commands that are recited in the passage of the suit are in the prior art.

[00:10:33] Speaker 02:
But assuming that they even were, there is nothing inherently wrong in combining elements to improve performance and have an adventure.

[00:10:44] Speaker 02:
I think that there's plenty of case law on that point.

[00:10:47] Speaker 02:
And so I think that that's just another example where district court aired.

[00:10:51] Speaker 02:
Now, there was also some legal confusion, I think, about how to apply the law.

[00:10:57] Speaker 02:
And one, I think, that particularly stands out was conflating the standard for enablement with written description.

[00:11:06] Speaker 02:
Intel repeatedly criticized the patency suit for not disclosing how certain things could be achieved or how they could be done.

[00:11:15] Speaker 02:
And that also found its way into the district court's opinion below.

[00:11:21] Speaker 02:
And that's really not the standard for written description.

[00:11:26] Speaker 02:
Intel was free to challenge enablement.

[00:11:31] Speaker 02:
If we go back down, it would be presumably free to do that below later.

[00:11:36] Speaker 02:
But it chose not to.

[00:11:38] Speaker 02:
And by kind of pivoting and focusing on this lack of how I think that it

[00:11:45] Speaker 02:
took the kind of the direction of the course analysis kind of went off track somewhat as a result.

[00:11:55] Speaker 02:
And that kind of segues into the second thing that I want to discuss is that there were some, I believe, issues with how Intel approached this dispute in briefing, and in particular, changing the arguments throughout the course of briefing.

[00:12:14] Speaker 02:
The initial, like, opening brief referred to essentially two aspects.

[00:12:20] Speaker 02:
They cited three limitations, but it really was this lack of any type of second buffer that they alleged and the inability to move or read or write portions of a page.

[00:12:33] Speaker 02:
And with that being the focus of the opening brief, that's what we obviously responded to.

[00:12:40] Speaker 02:
And then in the reply, Intel brought in this, you know, integrated whole concept, a term that had not been raised before except for the first time during Dr. Bagrazade's deposition.

[00:12:52] Speaker 02:
And we were, flash control was left in position where we did not have the chance to provide, you know, expert testimony or really a meaningful chance to respond to that argument.

[00:13:08] Speaker 02:
We tried to raise this during the hearing, but we're unsuccessful.

[00:13:15] Speaker 02:
And then I'll just close.

[00:13:18] Speaker 02:
I do want to reserve my time.

[00:13:19] Speaker 02:
But the court took that theory up, and that is now addressed, I guess, on my little time.

[00:13:27] Speaker 01:
OK.

[00:13:29] Speaker 01:
Ms.

[00:13:29] Speaker 01:
Maeda?

[00:13:32] Speaker 00:
Yes.

[00:13:33] Speaker 00:
May it please the court, Ms.

[00:13:34] Speaker 00:
Maeda, on behalf of

[00:13:36] Speaker 00:
Okay.

[00:13:38] Speaker 01:
Same question.

[00:13:41] Speaker 01:
This is Judge Wallach.

[00:13:43] Speaker 01:
Same questions.

[00:13:45] Speaker 01:
Where in the record is there a determination of the qualifications of a person's skill in the art?

[00:13:51] Speaker 00:
Your Honor, it's not expressed in the district court's opinion, but there was no dispute between the parties with respect to the level of ordinary skill.

[00:13:59] Speaker 00:
At Appendix 445,

[00:14:02] Speaker 00:
which is our brief to the district court, we laid out what the level of ordinary skill is.

[00:14:07] Speaker 00:
And at Appendix 652, which is the expert opinion of, flash control expert, he said that his opinions would not differ under the two parties' slightly different articulations of the level of ordinary skill in the art.

[00:14:22] Speaker 00:
So as Mr. Dahlgren said, there was no substantive dispute between the parties as to the level of skill.

[00:14:29] Speaker 01:
Ms.

[00:14:29] Speaker 01:
Maeda, did that definition

[00:14:31] Speaker 01:
include a district court judge with 20 years of patent litigation experience?

[00:14:36] Speaker 00:
No, Your Honor, it did not.

[00:14:42] Speaker 01:
Is it intel's position that the district court judge was a person of skill in the art?

[00:14:49] Speaker 00:
No, Your Honor, it's intel's position that what the district court judge did here, if we look at the first 19 pages of his opinion, is go through in significant detail

[00:15:01] Speaker 00:
and identify specifically the arguments made by both sides and the evidence submitted by both sides, including the expert opinion of Intel's expert.

[00:15:10] Speaker 00:
And although we ultimately exercised the discretion not to rely on the expert opinion of flash controls expert, he actually looked at the evidence and the concessions of flash controls expert in deposition and walked through systematically all of the evidence to conclude

[00:15:29] Speaker 00:
And this is at the top of A-17, where after going through the party's evidence, he says, the court finds Intel's arguments compelling.

[00:15:38] Speaker 00:
And then he says, Intel successfully presented issues with specifications that result in certain limitations lacking written descriptions.

[00:15:46] Speaker 00:
And then he says, Intel's reply rebuts every point raised by flash control to support the presence of written descriptions.

[00:15:53] Speaker 00:
That alone.

[00:15:56] Speaker 01:
Ms.

[00:15:56] Speaker 01:
Maeda, this is Judge Waller again.

[00:15:59] Speaker 01:
Throughout the opinion, the district court repeatedly makes what appear to me to be direct findings that a person of skill would determine certain things.

[00:16:12] Speaker 01:
What evidence supports that finding when we don't know what a person of skill is?

[00:16:20] Speaker 00:
Yes, Your Honor.

[00:16:23] Speaker 00:
I would disagree with the premise of the question in the following way, Your Honor, which is I think we do know what a person of ordinary skill is.

[00:16:30] Speaker 00:
It is true that the court did not.

[00:16:32] Speaker 01:
Do you disagree that the district court specifically said, I am a person of skill in the arts?

[00:16:41] Speaker 00:
What the district court said at footnote one is that the court is relying on its experience and knowledge to determine the understanding of a foci that in the remainder of this section,

[00:16:52] Speaker 00:
which begins at the bottom of page A17.

[00:16:56] Speaker 00:
But for the part that precedes that, which is his detailed recitation of all of the arguments and the evidence presented by Flash Control and by Intel, systematically going through each piece of the specification and the concessions of Flash Control's expert, he is addressing the evidence that was submitted by the parties

[00:17:19] Speaker 00:
And with respect to that portion of the analysis, there's no dispute between the parties as to what the level of ordinary skill is as reflected on A445 and A652.

[00:17:31] Speaker 00:
So even if we were to.

[00:17:33] Speaker 01:
I don't see.

[00:17:35] Speaker 01:
Look, we may well agree with the result.

[00:17:40] Speaker 01:
The analysis is pretty thorough.

[00:17:42] Speaker 01:
But I don't see how we can not send this case back to make evidentiary

[00:17:47] Speaker 01:
findings about a person of skill?

[00:17:52] Speaker 00:
Your Honor, I would submit that you can, and there's a couple of reasons for that.

[00:17:57] Speaker 00:
One is because the judge said that he was applying his knowledge and experience, starting with the section at the bottom of page A17.

[00:18:11] Speaker 00:
If we evaluate what he was doing before that, for the first 15 pages of his opinion,

[00:18:17] Speaker 00:
He was applying and analyzing the evidence submitted by both parties where there's no dispute as to the level of ordinary skills that the two-size experts were relying on.

[00:18:27] Speaker 00:
And just that alone would be sufficient to find that there is no written description here.

[00:18:34] Speaker 00:
And we know that because we have not heard anything from the other side that would actually identify anywhere, set aside all of the procedural arguments that they've made,

[00:18:46] Speaker 00:
even if we were to give them full credit for their expert's opinion, even if we were to give them full credit for all the arguments they're trying to make now that they didn't make below, they still have not pointed anywhere in this record where you would find the critical element of the claim, which is the reading and writing of the portion of the page in the particular way that is claimed.

[00:19:09] Speaker 00:
So if we were to look at the district court's opinion,

[00:19:13] Speaker 00:
And I should say the district court's decision as opposed to the opinion because this court reviews decisions and doesn't review opinions, we were to look at the decision and we were to look at the very specific and very detailed analysis of all of the arguments made by both sides and all of the evidence submitted by both sides and the conclusion of the court that it finds intel's arguments compelling,

[00:19:37] Speaker 00:
and the intel rebutted every point made by flash control, that alone would be sufficient to affirm the district court's judgment that there is a lack of written description here.

[00:19:47] Speaker 00:
And on the merits, there's been nothing identified by flash control, either at the trial court or to this court, critically, to this court on appeal, that would show anywhere in this patent specification that the inventor possessed the concept of

[00:20:04] Speaker 00:
doing the operations necessary to move data between the two buffers and the volatile memory at the portion of a page level, which is the critical aspect of these claims.

[00:20:17] Speaker 00:
So whatever your honors might think about their arguments with respect to footnote one and the additional findings that are made at pages 15, 16, 17, 18, you don't need to reach those issues because

[00:20:34] Speaker 00:
all of the court's opinion prior to that would be more than sufficient to support the judgment of invalidity for lack of written description.

[00:20:44] Speaker 00:
And there, with respect to those findings, there was no dispute below as to the level of ordinary skill in the arts.

[00:20:51] Speaker 00:
And the district court did systematically go through each piece of evidence that flash control had relied upon and determined that that aspect of the claims

[00:21:00] Speaker 00:
actually performing the claim function at a portion of the page levels required is not anywhere in the evidence they cited, even when the district court did consider the expert testimony and the admissions of their expert.

[00:21:14] Speaker 00:
And that's where I would, Your Honor, I would take a step back and look at what's actually being claimed here.

[00:21:19] Speaker 00:
What's actually being claimed here is a very specific method

[00:21:25] Speaker 00:
for moving data between a non-volatile memory or reading and writing data, I should say, to a non-volatile memory using a specific configuration of structures where you're actually reading and writing at a portion of the page.

[00:21:40] Speaker 00:
And the specification, while it is very thin, suggests that that's the thing, that's the efficiency improvement that the patent is directed to.

[00:21:48] Speaker 00:
And the claims outline a very specific configuration of those elements.

[00:21:54] Speaker 00:
and require that it be done at a portion of a page level.

[00:21:57] Speaker 00:
And while there are a variety of procedural arguments that Council for Flash People made, none of those procedural arguments would actually resolve the fundamental problem that was identified in the first 15 pages of the District Court's opinion.

[00:22:12] Speaker 00:
And it's reflected in the intrinsic record here, which is that there's nothing in the patent disclosure

[00:22:19] Speaker 00:
It's not in figure three.

[00:22:20] Speaker 00:
It's not in figure six.

[00:22:22] Speaker 00:
It's not in figure nine.

[00:22:23] Speaker 00:
It's not in the few snippets of the specification they point to.

[00:22:26] Speaker 00:
There's nothing in the patent disclosure that would actually tell anyone how you would know that this inventor was in possession of doing it at a portion of a page because they have not cited anything even if you were to fully credit their expert's opinion.

[00:22:41] Speaker 00:
And so when we look at the district court's opinion and we look at the district court going through at pages

[00:22:48] Speaker 00:
A13, A14, A15, A16, and to the top of A17, column by column, figure by figure, each piece of evidence that they and their expert relied on, and explaining why Intel was correct and Intel's expert is correct, that those pieces of the portion of your specification would be inadequate, and then concluding

[00:23:14] Speaker 00:
that the intel's arguments were compelling.

[00:23:17] Speaker 00:
That is a sufficient determination of lack of written description for this court to review.

[00:23:23] Speaker 00:
And there's been nothing identified on appeal in any of the patent specification and any of the figures or even in the expert opinion that would actually undermine that district court judgment based on the recitation of all of the evidence that the district court looked to

[00:23:40] Speaker 00:
even if we were to stop analyzing the opinion at A17, at the top of A17.

[00:23:46] Speaker 00:
But I also want to briefly touch on some of what was done and some of what counsel pointed to towards the back part of the opinion where the district court made some additional findings.

[00:23:57] Speaker 00:
For example, counsel said,

[00:24:00] Speaker 00:
if we look at A22, that the district court wrongly concluded that the commands read byte out of page and write byte out of page are in the prior art and that that was some sort of factual determination made by the district court.

[00:24:17] Speaker 00:
I think that is a misreading of the district court's opinion.

[00:24:20] Speaker 00:
So if we look at A22, what the district court was doing was responding to an argument made by slash control

[00:24:29] Speaker 00:
that this was some sort of written description support for the idea that you could do something at a level of granularity below a page, so a portion of the page.

[00:24:38] Speaker 00:
And what the district court said is, by contrast, these commands are descriptions of the prior art, and by definition do not disclose the claim's invention.

[00:24:47] Speaker 00:
In that sentence, the district court is referring to the concepts of reading and writing.

[00:24:52] Speaker 00:
And we know that because in the very next sentence, which is not referred to by counsel for floss control,

[00:24:58] Speaker 00:
the district court goes on to say, as the invention claims a more efficient implementation of the commands in the context of accessing a non-volatile memory at the granularity of a page, simply reciting the high-level concept will not suffice.

[00:25:17] Speaker 00:
Furthermore, even if the court assumes that a second buffer is present, then it goes on to continue to analyze that piece of evidence.

[00:25:23] Speaker 00:
So I think even if we were to look at the portion of the opinion

[00:25:27] Speaker 00:
where the court makes these additional findings.

[00:25:31] Speaker 00:
The findings are not some sort of new fact finding.

[00:25:36] Speaker 00:
They are attempting to respond to arguments made by flash control.

[00:25:40] Speaker 00:
And in this case, I think explaining something that is really beyond dispute, which is reading and writing are known, but here the invention is doing that at a level of granularity below the page.

[00:25:52] Speaker 00:
And if that's the case, the high-level concept is not sufficient to provide written description support.

[00:26:00] Speaker 00:
Unless your honors have any additional questions, my final point would be if we were to look at each piece of evidence cited by flash control as the district court did, the fundamental failing at the district court level as identified by the district court in its opinion and again on appeal is even if we were to fully credit all of the evidence that flash control is citing now and all of the arguments that they're citing now,

[00:26:29] Speaker 00:
There's been nothing that would identify how you would know that this person, that this inventor had possession of a portion of a page, which is the critical element of the claim.

[00:26:40] Speaker 00:
And that failing is the judgment of the district court.

[00:26:45] Speaker 00:
This court is reviewing and that judgment is correct.

[00:26:48] Speaker 00:
And we would respectfully ask your honors to affirm.

[00:26:53] Speaker 01:
Thank you, counsel.

[00:26:57] Speaker 01:
I'm Mr. Dahlgren.

[00:27:00] Speaker 02:
Yes, Your Honor.

[00:27:01] Speaker 02:
Briefly, I think that what counsel articulated that there's no evidence in the records and that the arguments that flash control presented below were deemed insufficient, emphasizes and highlights the lack of notice and lack of meaningful opportunity to respond that flash control had before the district court.

[00:27:23] Speaker 02:
Again, Intel had shifted its arguments to this integrated whole concept and its reply

[00:27:30] Speaker 02:
And now saying that there's a lack of any evidence in the record to support these new findings, I mean, that's exactly, that's precisely the prejudice that we were trying to highlight for this court that we believe is inappropriate.

[00:27:49] Speaker 02:
And I think that this, again, emphasizes that this case should be sent back and we should be given at least an opportunity to

[00:27:57] Speaker 02:
fairly present our case and address the arguments that Intel is raising, and also whichever arguments that the district court had made.

[00:28:06] Speaker 02:
Given the chance to submit expert testimony and other evidence, I think there is support for the claims.

[00:28:13] Speaker 02:
And that's the last piece I wanted to touch on, is kind of the so what part.

[00:28:18] Speaker 02:
And in our reply, and even in our opening brief, we point to Secret 12, for example, as providing support

[00:28:26] Speaker 02:
In the notations below, it talks about three different aspects of this kind of volatile memory, I think suggesting that fairly that it can be, you know, discrete components.

[00:28:37] Speaker 02:
And then also, in our reply, we point to figure nine, but also this SRAM mode that Intel has tried very hard to argue is somehow outside the scope of this patent.

[00:28:52] Speaker 02:
But when you look at the disclosure about combining these unused page buffers, so it can be used as SRAM and the whole device and not just one page, and that's coming from Figure 9, then we do have the three different components.

[00:29:09] Speaker 02:
And that's even assuming that the court was correct in requiring that they be separate and distinct.

[00:29:14] Speaker 02:
That was the client construction issue that we were not noticed of and never had the opportunity to really brief.

[00:29:19] Speaker 02:
So, you know, saying that side, we think that there is support.

[00:29:22] Speaker 02:
And, you know, there's the, you know, address to code, you know, circuitry, you know, and everything like that.

[00:29:28] Speaker 02:
I think that given the opportunity, you know, and if the appropriate and proper procedures were followed, would result in a different outcome below.

[00:29:38] Speaker 02:
And again, that would, you know, entail everything to the long-term judgment.

[00:29:42] Speaker 02:
uh, viewing the facts and, uh, like most of the non-movement, applying the, uh, correct evidentiary burden.

[00:29:49] Speaker 02:
Uh, we have, uh, noted that the district court, you know, used term which is compelling.

[00:29:53] Speaker 01:
Wrap it up, counsel.

[00:29:56] Speaker 02:
Your honor, with that, uh, I will, I will, unless you have any questions, uh, I'll conclude my argument.

[00:30:04] Speaker 01:
Okay.

[00:30:05] Speaker 01:
That's the last case.

[00:30:06] Speaker 01:
The matter will stand submitted.

[00:30:08] Speaker 01:
Uh, I'd like to thank both counsel.

[00:30:10] Speaker 01:
And since this is the last oral argument in which I will preside before I go senior, I'd like to thank the bar in general for their courtesy and hard work.

[00:30:23] Speaker 01:
These matters will now stand submitted.

[00:30:25] Speaker 01:
Thank you.

[00:30:28] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.