[00:00:00] Speaker 01:
The next case for argument is 20-1664, Intel Corporation versus Qualcomm.

[00:00:09] Speaker 01:
Oh, you're ready already.

[00:00:10] Speaker 01:
All right.

[00:00:10] Speaker 01:
Good morning.

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

[00:00:12] Speaker 00:
Please proceed.

[00:00:13] Speaker 00:
May it please the court, Greg Lantier on behalf of Appellant Intel.

[00:00:18] Speaker 00:
In the IPR below, the board made three separate errors, each of which requires reversal of remand.

[00:00:25] Speaker 00:
The first error is found at appendix pages 15 to 18.

[00:00:29] Speaker 00:
The board was required to apply the broadest reasonable interpretation standard in this IPR.

[00:00:35] Speaker 00:
But instead of doing so, the board issued an improperly narrow claim construction of the claim term radio frequency input signal.

[00:00:44] Speaker 00:
Its construction imported a limitation from the disclosed embodiments in the patent and is contrary to the scope of the plain and ordinary meaning of that claim term.

[00:00:56] Speaker 00:
That claim construction.

[00:00:57] Speaker 02:
So can I ask you about that?

[00:00:58] Speaker 00:
Of course.

[00:01:01] Speaker 02:
And I think maybe you all conceded this to the board in the oral argument to the board.

[00:01:08] Speaker 02:
Your construction of radio frequency input signal seems to render the word input entirely superfluous since the words that follow say exactly what that signal is going into.

[00:01:19] Speaker 02:
So that that at least seems to me to mean whatever else is going on here, you don't have a plain meaning.

[00:01:27] Speaker 02:
and maybe even you have a suggested meaning that means something other than radiofrequency signal that is going somewhere at which point you then turn to the spec not for disavowal but to understand how that phrase is used and tell me if i'm wrong about this every single time it's used it's used to refer either to the thing coming into the antenna or to thing coming out of the uh... what's the end for

[00:01:55] Speaker 00:
Low noise.

[00:01:59] Speaker 02:
And it actually at least twice uses that phrase to refer to what's coming out of that also.

[00:02:06] Speaker 02:
So why doesn't that mean that really that's the only reasonable interpretation?

[00:02:12] Speaker 00:
I think it's important to start with the claim, Your Honor.

[00:02:15] Speaker 00:
The claim is at appendix page 90, and the relevant claim is claim 17.

[00:02:20] Speaker 00:
It has three parts, and it's directed to a method for increasing gain in the mixer.

[00:02:28] Speaker 00:
Part 17a says we're going to receive a radio frequency input signal.

[00:02:35] Speaker 00:
And part 17b says we're going to output a signal at base bands.

[00:02:40] Speaker 00:
That's really all the claim is talking about when it discusses the radio frequency input signal.

[00:02:46] Speaker 00:
It's juxtaposing it to the output, which is at base bands.

[00:02:50] Speaker 00:
And so it is not the case that our construction reads the word input out.

[00:02:56] Speaker 00:
It has to be the input signal.

[00:02:57] Speaker 00:
It has to go onto the source of the first transistor.

[00:03:02] Speaker 00:
But really, I think it is.

[00:03:03] Speaker 02:
I'm sorry.

[00:03:04] Speaker 02:
What significance are you giving the word input?

[00:03:07] Speaker 00:
It has to be an input that is on the source lead of the first transistor as opposed to an output.

[00:03:12] Speaker 02:
And if the word input were not there, how would that fail to be true?

[00:03:16] Speaker 00:
Your honor, I think it would still be true, however, that the reason I raised the claim is because the structure of the claim, claim 17, is just saying, first we have an input, and then we have an output.

[00:03:29] Speaker 00:
Because it's written from the perspective of the mixer, it has to receive the input, and then you output at baseband.

[00:03:37] Speaker 00:
And the claim doesn't say anything about an antenna.

[00:03:40] Speaker 00:
It doesn't import any significance

[00:03:44] Speaker 00:
what that input signal is, other than it has to be at a radio frequency.

[00:03:50] Speaker 00:
And then the output has to be a faceband.

[00:03:52] Speaker 00:
And that's all that the claim requires, and that's all the claim discusses, Your Honor.

[00:03:56] Speaker 00:
And I think what happened here, where the board went wrong, is it started with a distinction between the prior reference stare and the preferred embodiment.

[00:04:07] Speaker 00:
And that difference is that there is a superheterodyne mixer, and the preferred embodiment is a homodyne mixer.

[00:04:14] Speaker 00:
And it's true that every single disclosure in the patent that illustrates the invention is a homodyne mixer.

[00:04:19] Speaker 02:
Suppose I, for purposes of this question, thought that this discussion of homodyne and superheterodyne was kind of beside the point.

[00:04:28] Speaker 02:
Why isn't the rationale that I was laying out

[00:04:31] Speaker 02:
Nevertheless a freestanding one that the claim language you got to give meaning to input Particularly if you're talking about from the perspective of the mixer and you're now adding what is the mixer?

[00:04:43] Speaker 02:
Yes the mixer What does it see?

[00:04:46] Speaker 02:
What's what's coming in that it's that it's about to receive and it then uses a phrase that is uniformly in the spec used to refer to a signal with the same frequency of what's coming into antenna 16 and

[00:05:01] Speaker 00:
I think, Your Honor, that that would be placing undue emphasis on the word input.

[00:05:06] Speaker 00:
This is similar to the Comcast case, which we cite in our papers, where there was some different claim language used to describe similar concepts in the board.

[00:05:16] Speaker 00:
And Your Honor said, don't over-read the claim under the broadest reasonable interpretation standard to narrow it based on

[00:05:26] Speaker 00:
that wording.

[00:05:27] Speaker 00:
You have to read the claim in context and understand what this claim is to.

[00:05:31] Speaker 00:
Remember, the inventive aspect of claim 17 is all in 17C.

[00:05:38] Speaker 00:
It's all about how the circuitry is connected in order to perform this step game mixing.

[00:05:45] Speaker 00:
There's nothing in the patent that suggests there's anything novel or important about the radiofrequency input coming from the antenna, as opposed to being the second stage of a superheterodyne mixer.

[00:05:59] Speaker 01:
This whole discussion, I think, reflects the concern I'm having.

[00:06:04] Speaker 01:
which is under principles, whether we're talking about BRI or whether we're talking about our Thorner line of cases about broad construction, the predicate for applying it is that there's really truly a plain and ordinary meaning.

[00:06:17] Speaker 01:
And even the discussion here reflects that we're looking at the claims, we're looking at the specification, and there is no plain and ordinary meaning, including for the word input.

[00:06:28] Speaker 01:
without looking and reading it in the context of the specification.

[00:06:32] Speaker 01:
And it's not helpful to your side to rest on the specification, as you note, because the specification is all embodiments and is all discussion of the construction adopted by the board.

[00:06:45] Speaker 01:
So you want to respond to my concern?

[00:06:49] Speaker 00:
Yes, Your Honor.

[00:06:51] Speaker 00:
pause at the starting point, which is to say that there's no plain and ordinary meaning of the term radio frequency input signal.

[00:06:59] Speaker 00:
The plain and ordinary meaning is it's a signal that's input at a radio frequency as opposed to at a baseband frequency or microwave or other frequency range.

[00:07:09] Speaker 01:
And everything you had on this was an expert, not dictionaries, not treatises, not any of that, but your expert testimony on that.

[00:07:16] Speaker 00:
uh... that that's correct or we had doctor that he testified to this but i i don't think you need to get expert testimony to appreciate that the term radio frequency of the signal has a plain meaning it is an input signal that is a radio frequency

[00:07:34] Speaker 00:
The second error that the board made, Your Honors, is found at appendix pages 52 to 55.

[00:07:41] Speaker 03:
Can I just ask you about that claim one more time?

[00:07:43] Speaker 03:
Of course.

[00:07:44] Speaker 03:
What you're saying basically is we should look at 17A and B and understand that they're basically kind of parallel structures.

[00:07:52] Speaker 03:
You get a radio signal in, which is an info, and you send a broad, the baseband signal out, which is the output.

[00:08:01] Speaker 03:
And they're not in strictly parallel language, because one says receiving an input, whereas the other says just outputting.

[00:08:10] Speaker 03:
But it could say sending a baseband signal output.

[00:08:14] Speaker 03:
So then you would have strictly parallel receiving input, sending output.

[00:08:19] Speaker 03:
Is that why you're saying that this is the way we should view this?

[00:08:22] Speaker 00:
That's exactly right, Your Honor.

[00:08:25] Speaker 03:
So in that example, input doesn't have kind of a specific kind of coin meaning for this patent.

[00:08:33] Speaker 03:
It's just input.

[00:08:35] Speaker 00:
Correct.

[00:08:35] Speaker 00:
It's the input to the mixer.

[00:08:36] Speaker 00:
This is a patent on a down conversion mixer, which means that you're taking in signal at a high frequency, and you're down converting it to a lower frequency.

[00:08:44] Speaker 00:
Here, you have to down convert it to baseband.

[00:08:46] Speaker 00:
That's the requirement of the claim.

[00:08:49] Speaker 02:
I know you want to get to issue two.

[00:08:51] Speaker 02:
I want to ask you a quick question.

[00:08:52] Speaker 00:
Your Honor, I'd rather answer your question.

[00:08:54] Speaker 02:
I have a question about issue number three.

[00:08:57] Speaker 02:
And that, I guess, is about the substitute claims, whatever they're called.

[00:09:01] Speaker 02:
That's correct, right.

[00:09:03] Speaker 02:
2831.

[00:09:06] Speaker 02:
The board as, and I think I'm remembering this right, but you'll correct me.

[00:09:10] Speaker 02:
It gave something like three reasons for saying you hadn't made your case against that.

[00:09:16] Speaker 02:
Um, if I was, um, if I thought that the first two were not sound, namely the efficiency is too general an idea.

[00:09:26] Speaker 02:
And then, um, there was one about, um, why would you be looking in Bergener at what Bergener describes as the prior art as opposed to Bergener itself?

[00:09:35] Speaker 02:
Um,

[00:09:37] Speaker 02:
but nevertheless thought that rationale number three had something to it.

[00:09:43] Speaker 02:
Do I nevertheless vacate and remand because even if three is the board's criticism on the third ground is sound, numbers one and two might suffice to sustain your challenge, and we don't know that.

[00:10:04] Speaker 00:
That's correct, Your Honor.

[00:10:05] Speaker 00:
I think that the board's analysis has to be read in full and that if you agree with us that the board improperly discounted the power savings motivation, then the appropriate course is a remand.

[00:10:19] Speaker 00:
We wouldn't be asking for outright reversal.

[00:10:20] Speaker 00:
But the board should apply the correct legal analysis.

[00:10:24] Speaker 00:
And so a remand would be appropriate.

[00:10:27] Speaker 00:
The second error I just want to touch on briefly, I know I'm getting into my rebuttal time in about 45 seconds, was that the board, in finding that there was no obviousness for claims 6, 17, 19, 21, 27, 28, and 31,

[00:10:48] Speaker 00:
It applies.

[00:10:49] Speaker 01:
Is that the DER and BALA combination?

[00:10:52] Speaker 00:
Yes, sir.

[00:10:52] Speaker 00:
This is DER and BALA.

[00:10:53] Speaker 00:
And what that is is DER undisputedly discloses the circuitry that is claimed convention in the patent.

[00:11:03] Speaker 00:
The only fight on whether DER meets the independent claim here is about whether the claim construction was right.

[00:11:11] Speaker 00:
or wrong.

[00:11:12] Speaker 00:
Valhalla discloses what are called passive mixers.

[00:11:15] Speaker 00:
There are two different types of mixers.

[00:11:18] Speaker 00:
You have active mixers, they consume power.

[00:11:21] Speaker 00:
You have passive mixers, which do not consume power.

[00:11:26] Speaker 00:
Obviousness combination here was very straightforward.

[00:11:29] Speaker 00:
The references all talk about power savings as an important motivation.

[00:11:36] Speaker 00:
And the expert testimony was, of course, if you wanted to decrease power consumption, you could use passive mixers from VALA as opposed to the active mixers there.

[00:11:46] Speaker 03:
Sure, but I get that.

[00:11:47] Speaker 03:
We're on a substantial evidence review, right?

[00:11:49] Speaker 03:
And the board specifically explained that you wouldn't combine DER with VALA because

[00:11:56] Speaker 03:
vala had some kind of low impedance value and that it would conflict and not work.

[00:12:01] Speaker 03:
And why isn't that substantial evidence for the board's conclusion?

[00:12:07] Speaker 00:
Your Honor, we disagreed with that below, but we're not challenging.

[00:12:11] Speaker 01:
You're doing a waiting thing.

[00:12:13] Speaker 01:
Your main challenge here is that they considered the

[00:12:16] Speaker 01:
harm, but not the benefits.

[00:12:18] Speaker 01:
And I think, but isn't, and just, I didn't mean to interrupt Judge Hughes, but just following up with his analysis, in a way, I read it under a substantial evidence review, is kind of weighing the benefits and the costs, simply because they said the low impedance would be lost in most operating conditions.

[00:12:37] Speaker 01:
So they were weighing all the circumstances.

[00:12:39] Speaker 01:
So I, like Judge Hughes, am a little skeptical about why substantial evidence doesn't support the conclusion.

[00:12:46] Speaker 00:
The issue isn't the finding about the one disadvantage.

[00:12:51] Speaker 00:
The issue is that the board never acknowledges that there would be at least three advantages or benefits that would have been known to a person of skill in the art of making this combination, and it doesn't perform away.

[00:13:02] Speaker 00:
We're not saying that there has to be some tremendous amount of analysis.

[00:13:06] Speaker 00:
But what the board did was it found one disadvantage that applied in two out of three modes.

[00:13:12] Speaker 00:
And then it ended the analysis at that point.

[00:13:14] Speaker 03:
So the remand is- I think this sounds a lot like the argument we heard from the other side in the last case, is we know what the board said.

[00:13:23] Speaker 03:
We know that they said you wouldn't combine these because the one reference suggests that you wouldn't because of whatever the reasons I gave.

[00:13:33] Speaker 03:
These technical words I trip up over, so I'm not going to even try to say them.

[00:13:37] Speaker 03:
But we know what their explanation is.

[00:13:39] Speaker 03:
Then we go look in the record.

[00:13:41] Speaker 03:
Is that supported by evidence?

[00:13:42] Speaker 03:
And their experts said yes.

[00:13:44] Speaker 03:
And I don't know.

[00:13:45] Speaker 03:
I mean, yeah, you don't like their reasoning, but why isn't that substantial evidence?

[00:13:50] Speaker 00:
I think this is very different from the argument you heard a few moments ago on the other case, because we're not saying that the board failed to articulate its reasoning.

[00:14:00] Speaker 00:
In fact, the board did a good job here of articulating how it got from point A to point B. So are you saying there's no substantial evidence to support the board's decision?

[00:14:10] Speaker 00:
We are saying that the board applied the incorrect legal analysis for obviousness here, because the board found that there was one disadvantage, and then it failed to weigh that disadvantage, which only applies sometimes, not in every mode, against the benefits.

[00:14:25] Speaker 03:
And so the board has had to see- And you're not making a substantial evidence challenge.

[00:14:28] Speaker 00:
No, Your Honor, we're not.

[00:14:29] Speaker 01:
We're challenging the legal... Well, I mean, I guess this is a clue in the weeds, but one of the benefits you're saying is it has to do with linearity, right?

[00:14:37] Speaker 01:
I'm not sure I understand it, but that's... Correct.

[00:14:40] Speaker 01:
Higher than that.

[00:14:40] Speaker 01:
And I think the board or somebody, maybe the other side's expert, talked about low impedance that was related to improved linearity.

[00:14:50] Speaker 01:
So at least with respect to that one benefit, I think that was kind of

[00:14:57] Speaker 01:
consumed in the board's analysis of low impedance, right?

[00:15:01] Speaker 01:
Am I missing something?

[00:15:02] Speaker 01:
This is a detail, but it's an example of?

[00:15:05] Speaker 00:
Yes, Your Honor.

[00:15:06] Speaker 00:
I think that it's not in the board's analysis.

[00:15:10] Speaker 00:
And that is the problem.

[00:15:12] Speaker 00:
The disadvantage, the board made no findings about how significant that disadvantage was as compared to the advantages.

[00:15:20] Speaker 00:
And all we're asking for is the board to take into account the totality of the facts.

[00:15:26] Speaker 00:
on motivations to combine and analyze whether the disadvantage is so significant that it outweighs all of these known advantages.

[00:15:35] Speaker 03:
So just to be clear, if we don't find that the board applied the incorrect legal test for obviousness, you're not saying their conclusion lacks substantial evidence?

[00:15:46] Speaker 00:
That is correct, Your Honor.

[00:15:48] Speaker 01:
OK.

[00:15:48] Speaker 01:
OK, you've used your rebuttal, but we'll restore some time and let's get to the other side.

[00:16:21] Speaker 04:
Thank you, Your Honors.

[00:16:22] Speaker 04:
May it please the Court, Jonathan Franklin, for the Appellee Qualcomm.

[00:16:26] Speaker 04:
I will address the issues that the court had a talk with the opposing counsel, but I do think it's obligatory on my part to first start with Article 3 standing, since that is a threshold issue in every case.

[00:16:43] Speaker 04:
And in this case, Intel has the burden of proving standing and did not put forward evidence showing that it has a concrete, non-speculative, and imminent

[00:16:55] Speaker 04:
threat of an injury.

[00:16:56] Speaker 01:
Well, you don't dispute that you've previously asserted the same patent against an Intel product, right, in your litigation against Apple?

[00:17:05] Speaker 04:
We asserted the patent against Apple and a product that Apple made.

[00:17:09] Speaker 04:
I would say that there's nothing in the evidence of this particular case that shows that that particular patent or patent lawsuit, Intel's not mentioned in the complaint.

[00:17:21] Speaker 01:
It was not an Intel product?

[00:17:23] Speaker 04:
Well, there was an Intel product involved in the Apple iPhone at that time.

[00:17:29] Speaker 04:
But what that was a lawsuit that was filed almost four years ago, settled more than two years ago with Apple receiving long-term rights to the patented technology.

[00:17:41] Speaker 04:
Intel's argument is that it has for the last four years or almost four years

[00:17:50] Speaker 04:
faced an imminent yet somehow unrealized threat of an enforcement action by Qualcomm when Qualcomm has not even communicated with Intel about this particular patent.

[00:18:02] Speaker 04:
I would like to just briefly to turn the court to the declaration that Intel submits.

[00:18:08] Speaker 04:
It's very easy to find because it's the last page of the joint appendix.

[00:18:12] Speaker 04:
This is just to show your honors

[00:18:14] Speaker 04:
how speculative Intel's allegations truly are.

[00:18:19] Speaker 04:
The last page really is 4796.

[00:18:21] Speaker 04:
This is the only declaration that Intel put in from any of its employees about anything in this case.

[00:18:29] Speaker 04:
And what it says is at the top of 4796,

[00:18:33] Speaker 04:
It has, Intel has continued and will continue to supply smartphone modems to Apple for prior versions of iPhone that Apple continues to sell and that does sell to other customers.

[00:18:43] Speaker 04:
It sells nothing about what they're currently making, what they're currently selling.

[00:18:48] Speaker 04:
There's no statement about any particular product.

[00:18:52] Speaker 04:
There's no statement about what phones Apple is or isn't selling.

[00:18:55] Speaker 04:
This is the kind of evidence that the court in Apple versus Qualcomm

[00:19:01] Speaker 04:
They referred to those declarations as, quote, the sparsest of declarations.

[00:19:05] Speaker 04:
I would say this declaration is equally sparse.

[00:19:08] Speaker 04:
And then we have the last statement.

[00:19:10] Speaker 04:
And this is really the only statement that refers to the 043 patent in any declaration that they put in.

[00:19:16] Speaker 04:
And that's also on 4796.

[00:19:19] Speaker 04:
And what it says is,

[00:19:21] Speaker 04:
At the end, to mitigate concerns of infringement accusations, Intel may, and I emphasize the word may, need to invest in designing its transceivers differently, which would divert resources from other operations and research.

[00:19:35] Speaker 04:
Again, they don't point to a single product that they're currently making that even they or Qualcomm would contend infringes the 043 patent.

[00:19:45] Speaker 04:
They don't point to anything that's in the design process, such as in GE.

[00:19:49] Speaker 04:
They don't point to anything that they're contemplating.

[00:19:53] Speaker 04:
They just say they may need to invest in designing.

[00:19:57] Speaker 04:
And that's, I think, the definition of a speculative assertion.

[00:20:00] Speaker 04:
So for those reasons, we would say that Intel has not carried its burden.

[00:20:06] Speaker 04:
And it has the burden of proving standing in its opening brief through declarations

[00:20:13] Speaker 04:
that are actual evidence that would suffice in court.

[00:20:17] Speaker 04:
Now, having said that, Your Honors, I will address some of the merits issues that the court did get into with the other side.

[00:20:25] Speaker 04:
But we do think that in the first instance, the proper resolution of this case is simply to do what the court did in Apple versus Qualcomm, and that is to dismiss the case for lack of standing.

[00:20:36] Speaker 04:
There is no imminent harm here.

[00:20:38] Speaker 04:
And more importantly, Intel has not proven

[00:20:42] Speaker 04:
through a declaration or any other admissible evidence that there is such an imminent harm.

[00:20:48] Speaker 04:
And I would also add, by the way, Your Honor, that the record on this is closed.

[00:20:52] Speaker 01:
Let me just ask one question.

[00:20:54] Speaker 01:
In the Apple suit, did you assert that the Intel product satisfies all of the limitations in any patent claim in this patent?

[00:21:03] Speaker 04:
I was not counsel in that case, Your Honor.

[00:21:06] Speaker 04:
It is my understanding.

[00:21:09] Speaker 04:
based on secondhand information, not based on anything that's in the record of this case.

[00:21:14] Speaker 04:
That's important.

[00:21:16] Speaker 04:
That there was an Intel product that was accused in that case.

[00:21:23] Speaker 04:
But like I said, I wasn't counseled.

[00:21:26] Speaker 04:
You can't find that in the record of this case.

[00:21:28] Speaker 04:
You can look through the complaint all you want, and you won't find a single reference to Intel.

[00:21:33] Speaker 04:
So what I'm telling you now is just based on what I was told by somebody who was counsel in that case.

[00:21:39] Speaker 01:
Well, you mentioned also that they didn't refer to any particular product.

[00:21:44] Speaker 01:
And maybe I'm not understanding your point or whatever, but at 46th of Blue, they are talking about a particular product.

[00:21:52] Speaker 04:
Yeah, that's in their brief.

[00:21:53] Speaker 04:
That's no more than what a counsel could say in court.

[00:21:56] Speaker 04:
I'm talking about what they said in their declaration

[00:22:00] Speaker 04:
And there is no specific product mentioned anywhere in that declaration.

[00:22:03] Speaker 04:
That is the only declaration by any Intel employee in this case, by Mr. Duncan Kitchen.

[00:22:11] Speaker 04:
And it was put in the motion to dismiss phase.

[00:22:14] Speaker 04:
It's three pages long.

[00:22:16] Speaker 04:
I read to you from the last page, which is really the only relevant page.

[00:22:19] Speaker 04:
And no, he doesn't mention any specific product.

[00:22:22] Speaker 04:
The product that's mentioned that you say is in the blue brief comes from Intel's counsel.

[00:22:30] Speaker 02:
I think I'm looking at the right thing.

[00:22:33] Speaker 02:
So in Intel's opposition to Qualcomm's motion to dismiss,

[00:22:43] Speaker 02:
Exhibit 2 refers to, I think, several very specific products.

[00:22:50] Speaker 02:
The RF transceiver, which I guess is the one relevant here.

[00:22:54] Speaker 02:
And on the previous page, the baseband processor motor.

[00:22:58] Speaker 02:
That is correct.

[00:22:58] Speaker 04:
And maybe I'm being overly procedural here, but that motion was denied without prejudice to the parties raising standing in their briefs.

[00:23:07] Speaker 04:
And under phigenics, they have to support that with appropriate declarations.

[00:23:13] Speaker 04:
So what your honor's referring to comes from a motion to dismiss that was denied.

[00:23:18] Speaker 04:
And yes, in that motion to dismiss that, that evidence was put forward, but not in this case.

[00:23:23] Speaker 02:
And I don't remember.

[00:23:25] Speaker 02:
Did Intel, in its standing section of its brief, make some, I'm just going to call it the incorporation reference?

[00:23:34] Speaker 04:
They might have referred to their motion to dismiss, but you can't incorporate prior reference.

[00:23:39] Speaker 04:
I think at this point, I would move briefly to the merits.

[00:23:43] Speaker 04:
But Your Honor is correct about what you're saying about the motion to dismiss papers.

[00:23:47] Speaker 04:
What I'm talking about is what's in the briefing and in the argument and in the appendix in this case, which is what this court

[00:23:54] Speaker 04:
Because the motions panel said, motion dismissed, denied.

[00:23:58] Speaker 04:
Renew your standing in your open brief.

[00:24:01] Speaker 04:
And under phigenics, that's where they have to put it all in.

[00:24:04] Speaker 04:
And they didn't.

[00:24:05] Speaker 01:
I assume you're going to turn to claim construction.

[00:24:07] Speaker 01:
I will.

[00:24:07] Speaker 01:
I will.

[00:24:08] Speaker 04:
And I will turn to claim construction.

[00:24:10] Speaker 04:
And Judge Taranto, I think we agree with your analysis.

[00:24:14] Speaker 04:
And I would add only one thing to it.

[00:24:16] Speaker 04:
And that is, not only does

[00:24:19] Speaker 04:
the patent exclusively refer to the radio frequency input signal as what the board construed it as, the frequency at which the antenna receives it.

[00:24:32] Speaker 04:
But the patent also distinguishes between radio frequency input signal, which it refers to as the RF signal, and something that's known as intermediate frequency.

[00:24:43] Speaker 01:
But the answer to that is the RF

[00:24:46] Speaker 01:
includes or consumes the IF?

[00:24:48] Speaker 04:
Not necessarily, Your Honor.

[00:24:50] Speaker 04:
And that's, I think, the point here is that there is no one plain language meaning.

[00:24:55] Speaker 04:
We know that from their own expert, we know from their own textbook that they put in that RF and IF have different meanings in different contexts.

[00:25:07] Speaker 04:
So in the context of a transceiver, and particularly this one,

[00:25:11] Speaker 04:
RF refers to the frequency at the radio frequency that is then input into the transistor leads, whereas IF is something different.

[00:25:21] Speaker 04:
And their own experts said that.

[00:25:23] Speaker 04:
So you can see that in the board's finding too.

[00:25:29] Speaker 04:
The board says the patent distinguishes between those two things.

[00:25:33] Speaker 04:
Their own experts said that.

[00:25:36] Speaker 04:
So you have at 1012 paragraph 28,

[00:25:41] Speaker 04:
You have their own expert, Dr. Fay, distinguishing between the down-converted RF signal, which is then put into the IF signal.

[00:25:54] Speaker 04:
And that's 1012, and I think it's paragraph 28 or 98.

[00:26:03] Speaker 04:
And then you have Fay's deposition, the same guy.

[00:26:07] Speaker 04:
That's at 2975, 2988.

[00:26:10] Speaker 04:
He distinguishes between RF and IF.

[00:26:12] Speaker 04:
And then you have their textbook.

[00:26:14] Speaker 04:
They put in a textbook.

[00:26:16] Speaker 04:
This is intel evidence at 1206 and 07.

[00:26:19] Speaker 04:
This is a textbook that distinguishes between RF and IF.

[00:26:23] Speaker 04:
So what we're saying, Your Honor, is in some contexts, in a general sense,

[00:26:29] Speaker 04:
You could use the word RF to refer to what they're saying.

[00:26:34] Speaker 04:
But what the question is, is how is it used in this patent, in this specification?

[00:26:40] Speaker 04:
There is no one single definition.

[00:26:42] Speaker 04:
And the way this particular patent uses it is exactly the way the board construed it.

[00:26:49] Speaker 04:
As Judge Ronda pointed out,

[00:26:50] Speaker 04:
Every single time in the patent where the phrase radio frequency input signal is used in the specification is referring to the frequency at which the end is received by the antenna and then you have the additional point that is a distinguished there's a distinction drawn at column 10 between RF and IF.

[00:27:10] Speaker 01:
Do you have any specific comment that we spoke a lot about the language of claim 17?

[00:27:14] Speaker 01:
Yes.

[00:27:15] Speaker 04:
I don't think the language of Plane 17 is what the board construed.

[00:27:20] Speaker 04:
And I guess to address Judge Hughes, to your point, I think the input and the output are not necessarily material to this.

[00:27:28] Speaker 04:
The question is, what is radio frequency input signal?

[00:27:31] Speaker 04:
And that is clearly defined or used in the patent in only one way and in a way that distinguishes between.

[00:27:38] Speaker 04:
They would say, their argument is that the RF input signal

[00:27:43] Speaker 04:
includes an IF signal.

[00:27:46] Speaker 04:
That's their argument.

[00:27:47] Speaker 04:
And the patent distinguishes between the two.

[00:27:49] Speaker 04:
In SEC 17, it's claiming an initial.

[00:27:53] Speaker 04:
It's a down conversion.

[00:27:54] Speaker 03:
Would your argument change if instead of it said receiving a radio frequency input, it said inputting a radio frequency signal so that it was exactly parallel to the outputting portion?

[00:28:08] Speaker 04:
I don't think our argument would change.

[00:28:10] Speaker 04:
The specification might be changed because they would have to refer to it in the different terms that the claim used.

[00:28:16] Speaker 04:
If you're saying the claim language changes.

[00:28:19] Speaker 03:
Instead of saying receiving, I don't have it right in front of me, but so if I'm getting it wrong, I can pull that out.

[00:28:26] Speaker 03:
But it says something like receiving a radio frequency input signal.

[00:28:29] Speaker 03:
Right.

[00:28:30] Speaker 03:
So instead of that, it said inputting a radio frequency signal.

[00:28:34] Speaker 03:
So it takes the word input out and just refers generically to radio frequency.

[00:28:39] Speaker 04:
I think you said inputting a radio frequency.

[00:28:40] Speaker 03:
Yeah, inputting a radio frequency.

[00:28:41] Speaker 04:
Yeah, so would use the word input also.

[00:28:43] Speaker 03:
Yes, but the other one uses output in terms of like, you know, a gerund.

[00:28:49] Speaker 04:
B is outputting a baseband.

[00:28:52] Speaker 03:
I mean, I think what you're trying to say is when they put the word input into radio frequency signal, that specifies a specific type of radio frequency signal.

[00:29:03] Speaker 03:
But if we take the input out of the, and I don't want to get all grammar rules here because I haven't looked at that since high school, but

[00:29:13] Speaker 03:
If it's not part of that, instead if it's just showing the action, and then you just have radio frequency signal, that doesn't seem to have the specific meaning you would aspire to.

[00:29:24] Speaker 04:
I think then we'd have a different pattern, but we'd also have to look at what the specification says.

[00:29:28] Speaker 03:
So my question to you is, was the choice to not make those parallel obviously intentional

[00:29:37] Speaker 03:
and that you were establishing radiofrequency input as a coin term for this pattern rather than just making them parallel functions of inputting and outputting.

[00:29:49] Speaker 04:
It is a coin signal and you have to look at the entire specification, a coined term, excuse me, and you have to look at the entire specification in every single place and I could cite them to you if you want, but I could also go through a couple of other issues that were addressed that I'd like to get to.

[00:30:06] Speaker 04:
Every single time that the radiofrequency input signal is used in the patent it is used to refer to signal 32 which is the signal receiving the antenna.

[00:30:14] Speaker 04:
That's what the board said.

[00:30:16] Speaker 04:
Every time it's used this way, it's only used in this way.

[00:30:19] Speaker 04:
It distinguishes between RF and IF.

[00:30:21] Speaker 03:
Does it distinguish between RF and IF?

[00:30:24] Speaker 03:
Yes.

[00:30:25] Speaker 03:
It does.

[00:30:27] Speaker 03:
radiofrequency input signal does not cover IF?

[00:30:32] Speaker 04:
Not in this pattern, no.

[00:30:34] Speaker 03:
It distinguishes between... No, is that what you're saying?

[00:30:36] Speaker 03:
That the specification specifically says a radiofrequency input signal excludes an IF signal?

[00:30:43] Speaker 04:
Well, it distinguishes between RF, and so it's on 84, paragraph 84, line column 11 to 14, it says, refers to

[00:30:56] Speaker 04:
mixers that pre-amplify incoming signals and down-convert those 84 at column 1, lines 11 to 15.

[00:31:05] Speaker 04:
It refers to down-converting the signals, the radio frequency signal, to an appropriate intermediate frequency, IF, or baseband frequency.

[00:31:16] Speaker 04:
And this plane 17 is referring to a down conversion of an RF signal to a baseband frequency, not to an IF frequency.

[00:31:23] Speaker 03:
I'm sorry.

[00:31:24] Speaker 03:
You're saying this suggests that RF doesn't include IF?

[00:31:28] Speaker 04:
Yes.

[00:31:28] Speaker 04:
They talk about IF being a down converted from RF.

[00:31:33] Speaker 04:
But it doesn't even mention RF in this.

[00:31:38] Speaker 04:
It talks about.

[00:31:41] Speaker 04:
the incoming signals.

[00:31:42] Speaker 04:
So it's a pre-amplified the incoming signals.

[00:31:45] Speaker 04:
Is this the best you've got?

[00:31:46] Speaker 04:
That's what the board referred to, yes.

[00:31:48] Speaker 04:
Incoming signals are RS signals.

[00:31:50] Speaker 04:
And just, I'm running out.

[00:31:51] Speaker 01:
Let me just say something.

[00:31:53] Speaker 01:
We're going to add another five minutes if my colleagues don't object to your time, because I know we're going to have to add a corresponding amount of time for the rebuttal.

[00:32:01] Speaker 04:
I appreciate that, Your Honor.

[00:32:03] Speaker 04:
I appreciate that.

[00:32:03] Speaker 04:
I'm sorry to rush on this.

[00:32:05] Speaker 04:
But no, the incoming signals at that point are referring to the RF signals, and the rest of the paragraph makes that clear.

[00:32:11] Speaker 03:
And that's what you think is clear enough

[00:32:14] Speaker 04:
Considered this a coin definition for radio frequency input that plus every time they use the term radio frequency input signal in the patent is referring to the frequency at which it's coming through the antenna and that there's nothing else that specifically

[00:32:31] Speaker 03:
says one is different from the other.

[00:32:33] Speaker 04:
The only place where they talk about the difference, that's at column one, yes.

[00:32:37] Speaker 04:
But it is an important difference.

[00:32:38] Speaker 04:
Because they're claiming this is not a superheterodyne system.

[00:32:42] Speaker 04:
17 is not claiming a superheterodyne system.

[00:32:47] Speaker 04:
So then we have the

[00:32:50] Speaker 04:
Judge, Toronto, you talked about the alternative findings on the last issue.

[00:32:54] Speaker 04:
I mean, I think they were alternative findings that the board made.

[00:32:58] Speaker 04:
And so what the court can do is- Well, how exactly are they alternative?

[00:33:02] Speaker 02:
I mean, the challenger says, here's one motivation.

[00:33:06] Speaker 02:
Here's another motivation.

[00:33:08] Speaker 02:
Here's a third motivation.

[00:33:10] Speaker 02:
And the board says, first one, no.

[00:33:13] Speaker 02:
Second one, no.

[00:33:14] Speaker 02:
Third one, no.

[00:33:22] Speaker 04:
to save it, because they were alternative.

[00:33:25] Speaker 04:
I view them as alternative findings, Your Honor.

[00:33:27] Speaker 04:
So the first one was that disabling DERs, what DER referred to as an important variable gain mixer to save power, was just a generic motivation that

[00:33:38] Speaker 04:
It's not a specific motivation to combine.

[00:33:41] Speaker 02:
That's number one.

[00:33:42] Speaker 02:
Can I just ask about that?

[00:33:45] Speaker 02:
In some sense, it's kind of the core of Qualcomm's business to find new ways of saving power in these tiny devices.

[00:33:56] Speaker 02:
How is that

[00:33:59] Speaker 02:
somehow too general in this line of work.

[00:34:02] Speaker 04:
Because you could turn off anything in any device, and it would save power.

[00:34:06] Speaker 04:
So the question is, why would you turn off what DER describes as an important variable gain mixer?

[00:34:12] Speaker 04:
The motivation to save power is a motivation to do pretty much anything that would turn off or save power in the device.

[00:34:20] Speaker 04:
It doesn't point you to this specific combination.

[00:34:24] Speaker 04:
But even if, again, I say these are alternative rationales.

[00:34:27] Speaker 04:
Because the next thing they said was, there was a signal feed-through problem.

[00:34:31] Speaker 04:
So what they're saying is, you have to turn this off, and then that's going to create another problem.

[00:34:38] Speaker 04:
It's admitted that it creates a signal feed-through problem.

[00:34:42] Speaker 04:
So again, one would not be motivated to do something that would then create a problem.

[00:34:48] Speaker 04:
that didn't otherwise exist.

[00:34:50] Speaker 04:
Then they say you would then solve that problem by using a transistor from Bergener as a switch.

[00:35:00] Speaker 04:
But Bergener describes that transistor as inferior to the transistor that Bergener itself describes.

[00:35:08] Speaker 02:
Intel stated in its brief, and you didn't, I don't think, reply, and maybe this is because this was not a point disputed or argued to the board.

[00:35:20] Speaker 02:
It said in its brief, even the burgener solution to the prior art has the same drain, or whatever the thing that's being added, right?

[00:35:33] Speaker 02:
What do I make of that so that if that's true then this distinction between Bergner describing what's in prior art and figure whatever is one or something and Bergner's solution as to the drain ideas drain the right term drain idea

[00:35:50] Speaker 02:
makes no difference at all.

[00:35:52] Speaker 04:
But the point is, what was one skilled in?

[00:35:56] Speaker 04:
It's kind of wearing substantial evidence.

[00:35:57] Speaker 02:
We're on substantial evidence.

[00:35:59] Speaker 02:
Was that a point argued to the board?

[00:36:02] Speaker 04:
Not to my knowledge.

[00:36:03] Speaker 04:
It may have been.

[00:36:03] Speaker 04:
I'm not sure.

[00:36:04] Speaker 04:
But I think that we're on substantial evidence review in this, regardless of what they say about the second part.

[00:36:10] Speaker 04:
The third part is clearly substantial evidence.

[00:36:12] Speaker 04:
It's motivation to combine.

[00:36:14] Speaker 04:
And in that, all of those

[00:36:18] Speaker 04:
grounds that I referred to are alternative grounds.

[00:36:20] Speaker 04:
So if one were not motivated because Bergener says, don't use this switch.

[00:36:26] Speaker 04:
We have a better one.

[00:36:27] Speaker 04:
So a skill in the art would look at Bergener and say, ah, Bergener's telling us to use this switch, not the other one.

[00:36:37] Speaker 04:
And what the board found is that that would not be a motivation to combine.

[00:36:42] Speaker 04:
And again, we're on substantial evidence.

[00:36:44] Speaker 04:
something that would be reasonable.

[00:36:46] Speaker 01:
What was the third?

[00:36:47] Speaker 01:
And can you give me the page and I'm forgetting what the third rationale was for the board.

[00:36:53] Speaker 04:
Okay, so the board's discussion of this would be

[00:36:59] Speaker 04:
The last one would be that the proposed combination would result in a device not suitable for its intended purpose.

[00:37:06] Speaker 04:
So the board's discussion on all of this is on page 65 through 67 of the opinion.

[00:37:14] Speaker 04:
And it says, nothing in Berger suggests turning off any part of the functional circuit elements, let alone the variable, the important variable gain mixer.

[00:37:21] Speaker 04:
I'm reading here from 67.

[00:37:23] Speaker 04:
Because turning off DUR's variable gain mixer would result in a device not suitable for its intended purpose, petitioner has not shown that a person of ordinary skill in the art would have modified DUR in the manner suggested by petitioner.

[00:37:34] Speaker 04:
That's another alternative route.

[00:37:37] Speaker 04:
And so all of these are alternatives, Your Honor.

[00:37:39] Speaker 04:
So if you have questions about one of them, any of the other ones suffices.

[00:37:43] Speaker 04:
The last thing I would point is that

[00:37:46] Speaker 04:
Judge Prost, you're absolutely right on the second issue.

[00:37:50] Speaker 04:
When you talked about your being in the weeds on it, but it's actually quite, I think, an important point.

[00:37:56] Speaker 04:
Their argument is the board never considered certain benefits such as- Are you talking about the vala?

[00:38:02] Speaker 04:
I'm sorry, the dur vala.

[00:38:03] Speaker 04:
Yeah, I'm both back on the second one.

[00:38:05] Speaker 04:
But your honor pointed, and I think that the right page actually is 52 of the board's decision.

[00:38:15] Speaker 04:
52 to 53.

[00:38:17] Speaker 04:
And what the board found is the benefits that they're talking about, specifically low noise and improved linearity, those benefits only come from the low impedance.

[00:38:30] Speaker 04:
And so when you've destroyed the low impedance, which

[00:38:33] Speaker 04:
everybody agrees what happened with this combination, you've destroyed those benefits over the vast majority of time of operational circumstances of this.

[00:38:43] Speaker 04:
So you were in the weeds, but you're absolutely correct in what you said.

[00:38:47] Speaker 04:
And that is the benefits were considered.

[00:38:50] Speaker 04:
They were balanced against the drawbacks.

[00:38:52] Speaker 04:
And what the court found is that the important drawback, and I would say

[00:38:56] Speaker 04:
The important thing to note about vala is on the very first paragraph of vala, it says the key feature, key feature is low impedance.

[00:39:08] Speaker 04:
And we know that by combining it in the manner that they are combining it, you are destroying the low impedance.

[00:39:14] Speaker 04:
And the board said, Qualcomm argued that.

[00:39:16] Speaker 04:
Intel didn't dispute it.

[00:39:18] Speaker 04:
And those benefits that they say that the board didn't consider actually don't occur with the low impedance.

[00:39:24] Speaker 04:
So again, the board did consider them.

[00:39:26] Speaker 01:
All right.

[00:39:27] Speaker 04:
Thank you.

[00:39:27] Speaker 04:
Thank you, Your Honor.

[00:39:28] Speaker 01:
All right.

[00:39:29] Speaker 01:
So I think my math is right.

[00:39:31] Speaker 01:
And I think we will give seven minutes for rebuttal.

[00:39:39] Speaker 01:
if you need it, but thank you.

[00:39:42] Speaker 01:
And you want to start with standing, I'm sure.

[00:39:48] Speaker 00:
Yes, Your Honor.

[00:39:48] Speaker 00:
I'll start with standing, as Your Honor asked.

[00:39:51] Speaker 00:
The argument I heard on standing was focused, I think, on the declaration of Duncan Kitchen, who is an Intel employee.

[00:40:00] Speaker 00:
It's not the case, though, that that was the only evidence of standing that's in the record that is cited here.

[00:40:07] Speaker 00:
Appendix page 4785 demonstrates that there is a company called Fibocon that is selling the same exact product that Qualcomm accused of infringement.

[00:40:22] Speaker 00:
47?

[00:40:22] Speaker 00:
4785.

[00:40:26] Speaker 00:
The same exact Intel product that Qualcomm accused of infringement, in its case against Apple.

[00:40:33] Speaker 00:
Qualcomm has never contended that Fibocom has a license to do that.

[00:40:38] Speaker 00:
And so we're in a situation here where Qualcomm.

[00:40:42] Speaker 02:
I'm sorry.

[00:40:42] Speaker 02:
And what is the relationship between Fibocom and Intel?

[00:40:46] Speaker 00:
At page 4785, you're on, and you see in the first sentence,

[00:40:51] Speaker 00:
that Fibcon is selling a NETCON module developed based on Intel's 7360 platform.

[00:41:00] Speaker 00:
And that 7360 platform has the Smarti 5 transceiver chip, the Intel Smarti 5 transceiver chip.

[00:41:08] Speaker 02:
I realize this may be ridiculous, but I mean,

[00:41:12] Speaker 02:
How do we know that Fibocom doesn't have a warehouse of fully paid for units?

[00:41:20] Speaker 02:
It's selling them.

[00:41:21] Speaker 02:
Intel's got its money.

[00:41:22] Speaker 02:
Couldn't care less whether Fibocom sells it.

[00:41:25] Speaker 02:
Or is this saying, are you supplying them to Fibocom on an ongoing basis?

[00:41:30] Speaker 00:
Yes, Your Honor, and that's what the Duncan Kitchen declaration states at page 4796, that Intel is continuing to sell the smartphone modems to other customers.

[00:41:45] Speaker 01:
But the question I'm having is that I think that your blue brief, which addresses the standing question, and I haven't looked back at gray, but blue is 36 to 40, if I'm correct, or 36 to onward.

[00:41:59] Speaker 01:
And I don't see the citation to that portion of the record.

[00:42:04] Speaker 01:
Am I looking at the long brief?

[00:42:09] Speaker 01:
In your argument on this issue, in your brief, 36.

[00:42:17] Speaker 01:
Right now.

[00:42:19] Speaker 00:
Yes, Your Honor.

[00:42:20] Speaker 01:
I think you are right about the blue brief.

[00:42:22] Speaker 01:
46%.

[00:42:23] Speaker 01:
46%, yes.

[00:42:24] Speaker 01:
However, in the- Do you cite to that portion of the transcript anywhere in this analysis?

[00:42:32] Speaker 00:
We do, Your Honor, at page 28 of the reply brief.

[00:42:36] Speaker 01:
OK.

[00:42:37] Speaker 01:
All right.

[00:42:38] Speaker 01:
Thank you.

[00:42:39] Speaker 00:
I did represent Intel in the district court in connection with the lawsuit that was previously brought.

[00:42:48] Speaker 00:
I also submitted a declaration in connection with this appeal, which I think is an additional declaration.

[00:42:54] Speaker 00:
But the fact is that the only thing that was accused

[00:42:59] Speaker 00:
of infringing the 043 patent was the Intel Smart E5 transceiver chip in that litigation.

[00:43:06] Speaker 00:
So under this court's standing case law, the test is whether Intel has or is in the process of taking some action that could subject it to a claim of infringement.

[00:43:20] Speaker 00:
Here, we have ongoing sales of a product that was already accused by Qualcomm of infringing the 043 patent.

[00:43:28] Speaker 00:
It's a very clear case for standing.

[00:43:31] Speaker 00:
Under Adidas, under the GDV Raytheon case, it's not even that Intel is planning on doing something that would give rise to a possible infringement suit.

[00:43:42] Speaker 00:
Intel is continuing to sell the same exact product that Qualcomm previously said met every claim element of the- Does either your blue brief or your gray brief refer to the materials attached to the

[00:43:57] Speaker 02:
opposition to the motion to dismiss.

[00:44:01] Speaker 00:
So to some of the materials, yes, Your Honor, to exhibit two, the answer is no.

[00:44:06] Speaker 00:
However, those materials are in the record.

[00:44:10] Speaker 00:
It's before, Your Honors.

[00:44:12] Speaker 00:
You can see that there's a teardown analysis showing

[00:44:15] Speaker 00:
that the inside of the Apple iPhone had this Smarty 5 transceiver chip.

[00:44:20] Speaker 00:
As Your Honor pointed out, Exhibit 2 also identifies a number of products.

[00:44:24] Speaker 00:
But I think that the important thing here is that cited in our briefing is reference to the Fibocom product that has the Intel Smarty 5 chip.

[00:44:35] Speaker 02:
I don't think that we need to...

[00:44:39] Speaker 00:
I do mean the great breach, Your Honor.

[00:44:40] Speaker 00:
Yes.

[00:44:40] Speaker 00:
I mean, we referred to it without a citation in the blue brief.

[00:44:43] Speaker 00:
That was our whole argument, was that we were making these sales.

[00:44:50] Speaker 00:
But we did not include the citation to the page until the great breach.

[00:44:55] Speaker 01:
I don't want to take too much time, but if you could just speak for 30 seconds on this question of the alternative uses with regard to the motivation to combine on the third issue, where if we disagree at a minimum with the board on one and two, why we still have to remand it and can't go with argument three, assuming we would agree with that.

[00:45:17] Speaker 00:
Two reasons, Your Honor.

[00:45:18] Speaker 00:
One is, as I think Judge Torano explained well, the board's analysis

[00:45:26] Speaker 00:
It has to be read in its completion.

[00:45:29] Speaker 00:
And what the board did was started with an incorrect legal proposition, which, if corrected, could have influenced or changed the outcome of the board's ultimate conclusion that there was no reason to combine these references.

[00:45:43] Speaker 00:
And so a rematch was necessary.

[00:45:44] Speaker 00:
The second reason is that the board's finding is just factually unsupported.

[00:45:50] Speaker 00:
What the board said is that third rationale was that,

[00:45:53] Speaker 00:
incorporating the shunt switch in Bergener would have destroyed the use of D.A.R.E.

[00:46:03] Speaker 00:
That's not true.

[00:46:04] Speaker 00:
The argument wasn't that we were going to turn off the active mixer all the time.

[00:46:10] Speaker 00:
As Qualcomm's own expert admitted, D.A.R.E.

[00:46:13] Speaker 00:
describes that the active mixer will be meld

[00:46:16] Speaker 00:
in certain occasions.

[00:46:18] Speaker 00:
And the argument was just that, for those occasions, it could be turned off to save power.

[00:46:24] Speaker 00:
A very straightforward, obviousness combination.

[00:46:26] Speaker 00:
So in our papers, the second point, Your Honor, is a substantial evidence point.

[00:46:31] Speaker 00:
But there is no substantial evidence that turning off the active mixer and DAIR when that mixer is not being used anyway would destroy the purpose of the reference.

[00:46:46] Speaker 02:
If that were true, that might, in fact, make it immaterial whether the board erred on rationales one and two, because if reason number three was so strong as to make clear that no matter what one thought about one and two, nobody would ever do this.

[00:47:08] Speaker 00:
I agree, Your Honor, but I do think if that were the case, though, I think the board would still have to

[00:47:13] Speaker 00:
acknowledge that it's weighing the other benefits against this detriment and saying, but this detriment is so significant that it outweighs the other benefits here.

[00:47:25] Speaker 00:
But I agree, Your Honor.

[00:47:26] Speaker 00:
If it were true that it would destroy the purpose of the circuit, which it's not, then that would be a significant detriment and would factor in differently.

[00:47:36] Speaker 00:
Your Honor, the last thing I would say, and this is really to Judge Hughes and Judge Crost, just goes to a couple of your questions on the claim construction issue.

[00:47:44] Speaker 00:
Your honors can reread it for yourselves, but the one sentence in this patent at column one, lines 10 to 14, that Qualcomm is relying on doesn't say anything about a radiofrequency input.

[00:47:58] Speaker 00:
It doesn't disparage the use of superheterodyne mixers in any way.

[00:48:03] Speaker 00:
It simply cannot support a finding that this patent is supposed to be limited to only homodyne mixers.

[00:48:12] Speaker 00:
The discussion of intermediate frequencies really is orthogonal to the issue here in the claim.

[00:48:20] Speaker 03:
I don't want to belabor this point either, but I guess the question for me is when they use that

[00:48:27] Speaker 03:
forward combination radio frequency input signal, were they intending to signal, sorry, I didn't mean to make a pun, I hate puns.

[00:48:37] Speaker 03:
Even, I don't even know if that's, were they intending to denote a somehow term of art?

[00:48:45] Speaker 03:
And if that's true, then we have to look to the specification and it doesn't have to be

[00:48:50] Speaker 03:
disclaimer or anything like that.

[00:48:53] Speaker 03:
We just look at the way it's used and I think they're probably right.

[00:48:56] Speaker 03:
That's the way it's used or is if we look at that, it's still just using intending to identify a generic radio frequency signal as an input.

[00:49:07] Speaker 03:
And if it's that, then there's clearly not enough to define it.

[00:49:10] Speaker 03:
I don't understand what's the dividing line between can we look at radio frequency input signal in the claim language and say that's either plain language and has a certain meaning that has to be overcome by something in the specification or is not plain enough that then we interpret it in light of the specification.

[00:49:35] Speaker 00:
Yes, your honor.

[00:49:35] Speaker 00:
So it is the latter, the latter circumstance.

[00:49:38] Speaker 00:
What we have here is there's an item in the patent, item 32, that is referred to as the radio frequency input signal.

[00:49:46] Speaker 00:
And the patent only discloses one embodiment.

[00:49:48] Speaker 00:
It's a homodyne mixer.

[00:49:49] Speaker 00:
So every time it refers to that, that's the same signal as what's coming off the antenna.

[00:49:54] Speaker 00:
But to your honor's question,

[00:49:56] Speaker 00:
If there was something in the patent that discussed the radio frequency input signal and that it was somehow important or relevant to the invention, that that signal be centered at the same frequency that it was received on the antenna, then I think we would be going down the path, Your Honor was suggesting, where you'd say, OK, well, this is being used as a term of art.

[00:50:18] Speaker 00:
It may not be defined.

[00:50:19] Speaker 00:
It doesn't have to be defined.

[00:50:21] Speaker 00:
But there's at least some discussion in the specification about why it's important that this frequency be the same frequency as was received by the antenna.

[00:50:30] Speaker 00:
But our entire argument on claim construction here is just that the board erred because what it did was import a limitation from the preferred embodiment into the claim.

[00:50:39] Speaker 00:
And that's not required.

[00:50:41] Speaker 00:
Thank you.

[00:50:41] Speaker 01:
Thank you.