[00:00:00] Speaker 01:
20-1712 Intel Corporation versus VLSI.

[00:00:06] Speaker 01:
Mr. Saunders, whenever you're ready.

[00:00:08] Speaker 04:
May it please the court.

[00:00:10] Speaker 04:
I'd like to focus primarily on claim construction, which is dispositive here.

[00:00:15] Speaker 04:
Intel is not saying that the second and third voltage reference must be the same.

[00:00:20] Speaker 04:
Our point is simply that the claims do not require separation.

[00:00:25] Speaker 04:
Indeed, dependent claims 8 and 11

[00:00:29] Speaker 04:
make clear that the second and third voltage reference can be, quote, substantially equal.

[00:00:35] Speaker 04:
And elsewhere where the patentee wanted to require that enumerated elements be different, it said so.

[00:00:41] Speaker 04:
The claims are thus broad enough to encompass both the figure four embodiment, in which the second and third voltage reference are different, and the figure three embodiment, in which they are the same.

[00:00:56] Speaker 04:
And the question before this court is not whether the claims unequivocally require Intel's construction as the one and only possible interpretation.

[00:01:05] Speaker 04:
The BRI standard applies, and at the very least, our construction is not unreasonable.

[00:01:12] Speaker 04:
Now, the board based its restrictive construction primarily on the word second and third.

[00:01:19] Speaker 04:
But the lessons from this court's cases is that context matters when you're talking about enumerated embodiments.

[00:01:28] Speaker 01:
This is Judge Proce.

[00:01:30] Speaker 01:
Good morning.

[00:01:31] Speaker 01:
Can I just ask you, we've got limited time.

[00:01:36] Speaker 01:
Some aspects of this case I find very confusing.

[00:01:40] Speaker 01:
And one of them is the difference, if any, between a voltage reference and a voltage domain.

[00:01:47] Speaker 01:
What is the difference?

[00:01:49] Speaker 01:
And did you explain that to the board?

[00:01:52] Speaker 01:
Because a lot of this goes to an argument you make about the figures and only being two domains, but including three references.

[00:02:00] Speaker 01:
And I'm just very confused looking at the figures and understanding the difference between those two terms.

[00:02:06] Speaker 04:
Sure.

[00:02:06] Speaker 04:
So a voltage domain is the group of circuitry that's receiving the same voltage.

[00:02:14] Speaker 04:
So provided by the same source.

[00:02:18] Speaker 04:
A voltage reference in the context of this patent and these claims is just the voltage value itself.

[00:02:28] Speaker 04:
And, you know, this came up most notably at the oral hearing where I think the parties were talking past one another on that point.

[00:02:38] Speaker 04:
But particularly when you look at the dependent claims 8 and 11,

[00:02:43] Speaker 04:
and the way they are worded to require the second voltage reference is substantially equal to the third voltage reference, that that's most logically read as saying that those are values.

[00:02:57] Speaker 04:
And so what you have these claims is that the second and third are just showing the correspondence here.

[00:03:07] Speaker 04:
The second voltage reference is the value

[00:03:10] Speaker 04:
that's being provided to the second transistor.

[00:03:14] Speaker 04:
And the third is the value at the third transistor.

[00:03:17] Speaker 04:
And they, the language is doing work here.

[00:03:23] Speaker 04:
We're not reading the word second and third out of the claim.

[00:03:26] Speaker 04:
They indicate that they may be distinct, but they don't require that those values be separate.

[00:03:33] Speaker 04:
And that's really important.

[00:03:34] Speaker 01:
Well, first of all, you have the claims.

[00:03:35] Speaker 01:
And let me, I've been focusing more on claim 10.

[00:03:39] Speaker 01:
So can a single voltage domain include two separate voltage references?

[00:03:48] Speaker 04:
It couldn't in the sense that voltage reference is used here, which would be a value.

[00:03:55] Speaker 04:
A single voltage domain is going to have the same value throughout for all that circuitry.

[00:04:04] Speaker 01:
So is it your position that because only a second and not a third voltage domain is claimed in claim number 10, that claim includes some embodiment where the second and the third voltage references must be the same and cannot be separate?

[00:04:21] Speaker 04:
For some embodiments, that would be true.

[00:04:24] Speaker 04:
And so, you know, in claim nine, from which claim 10 depends,

[00:04:31] Speaker 04:
you specifically have the reference to being operable in the first voltage domain and operable in a second voltage domain different from the first voltage domain.

[00:04:42] Speaker 04:
So two domains, two sets of circuitry that are receiving different voltages.

[00:04:49] Speaker 04:
When you get to claim 10, there is added the reference to the first, second, third voltage references.

[00:04:59] Speaker 04:
Because you're talking about two domains, you would naturally encompass embodiments in which the second and third voltage references are in the same domain, i.e.

[00:05:10] Speaker 04:
they have the same value.

[00:05:12] Speaker 04:
We're not saying it's restrictive.

[00:05:13] Speaker 04:
Claim 9 uses the word comprising, so it could include a third voltage domain, but it doesn't require that.

[00:05:24] Speaker 04:
And this goes part

[00:05:26] Speaker 04:
to the sort of board's reasoning about the alleged benefits of the figure four embodiment, which was in that embodiment as opposed to the figure three embodiment, the patent in column six talks about having a third voltage domain and the benefits of shifting between more than two voltage domains.

[00:05:52] Speaker 04:
But if these claims were supposed to be closed, if they're supposed to be restrictive and limited to the figure four embodiment, it would be very strange that the claims aren't claiming that benefit.

[00:06:05] Speaker 04:
They're not saying, they specify that the word line driver is operable in a first voltage domain, operable in a second voltage domain, but don't require that it be operable in a third voltage domain as you would expect if they're focused on that figure four embodiment.

[00:06:22] Speaker 04:
Um, you know, the other thing we have here is we can look to claims nine and 12, which both have enumerated elements as well.

[00:06:33] Speaker 04:
But there, when the patentee wanted to draw a distinction, wanted to require a difference or separation, it said so.

[00:06:42] Speaker 04:
In claim 9, you have a first voltage domain and a second voltage domain that is different from the first voltage domain.

[00:06:49] Speaker 04:
In claim 12, it's the first gate oxide thickness and a second gate oxide thickness that is different from the first.

[00:06:57] Speaker 04:
So, you know, putting all of these together, we think that these are broader claims than the board construed them to be.

[00:07:05] Speaker 01:
Certainly... Well, let's talk about that.

[00:07:07] Speaker 01:
Different means something other than

[00:07:11] Speaker 01:
separate, right?

[00:07:15] Speaker 01:
In this context, it means the different voltage level, right?

[00:07:21] Speaker 04:
The different could mean the different voltage level.

[00:07:27] Speaker 04:
You know, it was being used, the word different, I think, was being used in the sense of the LSI's construction.

[00:07:36] Speaker 04:
You know, if you look at

[00:07:37] Speaker 04:
Page 4658 of the appendix, the patent owner preliminary response criticizes our Takahashi reference by saying that Takahashi, quote, does not disclose a third voltage reference different from the second voltage reference.

[00:07:57] Speaker 04:
So, yes, there could be other differences than just separation.

[00:08:04] Speaker 04:
But I think here, especially when you then pair the references that are distinguishing the enumerated elements, or so the claims are distinguishing the enumerated elements from the dependent claims 8 and 11 that are talking about a substantially equal second voltage reference and third voltage reference, the message is clearly conveyed is if separation was required as opposed to merely permitted by these claims,

[00:08:34] Speaker 04:
then there would be a clearer indication.

[00:08:38] Speaker 01:
And the fact that generally in our presidential opinion, terms like first, second or third are used to distinguish different elements of the claim.

[00:08:52] Speaker 04:
So I think the lesson of this court's cases is that the context matters.

[00:08:59] Speaker 04:
And so, well, first,

[00:09:01] Speaker 01:
to debate that point with you, but is my assessment of our case law correct that these terms are used to distinguish between different elements of a claim?

[00:09:13] Speaker 04:
Well, they're used to label those different elements, which can avoid confusion.

[00:09:20] Speaker 04:
It can show correspondence with another element, but it doesn't always indicate a difference from the other one.

[00:09:28] Speaker 04:
So in this sense, you know, there is

[00:09:30] Speaker 04:
A second voltage reference here is the voltage reference for the second transistor.

[00:09:38] Speaker 04:
Third voltage reference is the voltage reference for the third transistor.

[00:09:42] Speaker 04:
So that correspondence is shown.

[00:09:45] Speaker 04:
But in terms of whether there is separation, you know, in none of the cases that BLSI sites was the numbering alone dispositive.

[00:09:56] Speaker 04:
And to the extent they address the issue,

[00:09:59] Speaker 04:
the requirement for separation always arose from something else, usually something in the specification.

[00:10:06] Speaker 04:
So, you know, angle VLockformer, you had a second portion and a return portion, so different labels, but the reason they had to be separate is because they were being described as being bent in different directions.

[00:10:22] Speaker 04:
In the COMAPER, the ANTAC case they cite, you had a first opening and a second opening

[00:10:28] Speaker 04:
But they were described as being in different locations and they had to work so that air was drawn in through one and expelled through the other.

[00:10:36] Speaker 04:
University of Minnesota, the AGA medical, you know, tellingly that case didn't emphasize the words first and second disc.

[00:10:44] Speaker 04:
The analysis was focused on the word connected, affixed, the description of the present invention as two discs attached to one another.

[00:10:53] Speaker 04:
and the lack of any embodiment constructed as a single piece.

[00:10:58] Speaker 04:
And then many of the other cases really don't even speak to this issue at all.

[00:11:04] Speaker 04:
They were about first and second and third being about relative placement and any background assumptions in those cases about the sharp distinction between the factors were again driven by the specification.

[00:11:20] Speaker 04:
And on the other hand, you have cases like Powell v Home Depot, where you have separate terms, a cutting box and a dust collection box, but a single structure satisfying both of them.

[00:11:32] Speaker 04:
Or Linear Tech v ITC, where you have a second circuit and a third circuit, and the holding was that they could share circuit elements.

[00:11:42] Speaker 04:
So I think when you put all of the cases together, it really is that you can't

[00:11:51] Speaker 04:
put too much weight just on those numbered terms in isolation.

[00:11:56] Speaker 04:
You have to view them in the context.

[00:11:59] Speaker 04:
And here, the context of the dependent claims, the context of the claims that expressly call out differences when they want to have differences, the dependency from claim nine, which has more than two voltage domains, all point in the direction of our construction.

[00:12:17] Speaker 01:
Okay.

[00:12:17] Speaker 01:
Thank you.

[00:12:18] Speaker 01:
Let's hear from the other side and reserve your rebuttal time.

[00:12:23] Speaker 01:
Mr. Lowenstein?

[00:12:26] Speaker 02:
Good morning, Your Honors.

[00:12:27] Speaker 02:
May I please the Court?

[00:12:29] Speaker 02:
So I think we should first start by clarifying what the board's construction was.

[00:12:33] Speaker 02:
I think what the board's construction was is very clear.

[00:12:37] Speaker 02:
The board's construction was that the second voltage reference must be separate from the third voltage reference.

[00:12:42] Speaker 02:
The board didn't reach anything about voltage domains or the meaning of a voltage reference.

[00:12:49] Speaker 02:
And if you go back to Intel's opening brief,

[00:12:52] Speaker 02:
Their argument was largely centered upon what I would say is a misconstruction of what the board's very clear construction was, just that the two elements need to be separate.

[00:13:04] Speaker 02:
I would submit to your honors that the board's construction is clearly correct under the record evidence.

[00:13:09] Speaker 01:
Yeah, please.

[00:13:11] Speaker 01:
The difference in the board, the board seemed to conflate at some point at least voltage domain and voltage reference.

[00:13:19] Speaker 01:
And you would agree there's a difference between the two, correct?

[00:13:23] Speaker 02:
I believe there is a difference between the two.

[00:13:26] Speaker 02:
I do want to clarify, however, that neither side has construed voltage reference alone or voltage domain.

[00:13:34] Speaker 02:
One of our gripes for lack of a better word in this case was even in our surreply below, we said Intel had not defined a voltage reference or voltage domain or explained the relationship between the two.

[00:13:48] Speaker 01:
Well, do you think a separate voltage reference imply the existence of a separate voltage domain?

[00:13:56] Speaker 02:
I think the patent suggests that is the case in the instance of figure 4, where you bring VDD2 down to ground and VDD3 is high.

[00:14:11] Speaker 02:
The patent seems to suggest that you're operating in a third voltage

[00:14:17] Speaker 02:
Excuse me, domain in that instance.

[00:14:19] Speaker 02:
But I want to get to the particularity of Intel's position.

[00:14:24] Speaker 02:
And I believe there's a significant inconsistency in their position with respect to the relationship between a voltage domain and a voltage reference.

[00:14:32] Speaker 02:
That's a reason in their reply brief and in oral argument.

[00:14:37] Speaker 02:
So as I said, they never defined a voltage domain below.

[00:14:40] Speaker 02:
But when we get to their reply brief, for the first time they say, of course we defined it below, see this deposition answer from our expert in a footnote.

[00:14:49] Speaker 02:
Now obviously a deposition answer from their expert in a footnote is not a position taken by them below.

[00:14:56] Speaker 02:
But that testimony and what Mr. Saunders said in his argument, he said a voltage domain, I believe I'm getting this right, receives a voltage.

[00:15:06] Speaker 02:
But what they say, and I counted it seven times,

[00:15:09] Speaker 02:
in their reply brief alone.

[00:15:12] Speaker 02:
They keep saying the voltage domain supplies the voltage reference.

[00:15:17] Speaker 02:
So they're saying two separate things.

[00:15:19] Speaker 02:
They're saying the voltage domain is the thing that receives the voltage, and elsewhere they're saying again and again and again that the voltage domain is the element that supplies the voltage.

[00:15:31] Speaker 02:
I think that inconsistency speaks to how undeveloped their position is, and even now here on appeal,

[00:15:39] Speaker 02:
It's still being hashed out in some sense, and it's still inconsistent.

[00:15:45] Speaker 00:
What does that have to do with whether the second must be separate from the third?

[00:15:52] Speaker 02:
Okay, so take me a step back.

[00:15:54] Speaker 02:
Our positions, they have to be separate.

[00:15:55] Speaker 02:
Their power position is that the two can be supplied by the same domain.

[00:16:02] Speaker 02:
And so what I'm really saying is their position is inconsistent and therefore incorrect.

[00:16:08] Speaker 02:
But I think there are many very good reasons to find that the second vulture reference is separate from the third.

[00:16:14] Speaker 02:
And I think as Judge Prost mentioned, she's absolutely correct.

[00:16:18] Speaker 02:
Generally, the first, second, and third, that sort of language, ordinal numbers, does refer to different elements.

[00:16:25] Speaker 02:
That's consistent with Beckton Dickinson as well.

[00:16:28] Speaker 02:
But if you look at the language in 3M and Gillette and free motion, they all say it's a common patent law convention, first, second, third.

[00:16:36] Speaker 02:
to refer to repeated instances in the arc.

[00:16:39] Speaker 02:
And then also, if we just take a step back and just look at basic English, if we imagine this was a plane to a stool, and there was a first leg, a second leg, and a third leg, they're looking at a reference with stool with only two legs and saying the second leg is the second and the third leg.

[00:16:54] Speaker 02:
It just doesn't comport with basic English.

[00:16:57] Speaker 02:
But then, okay, so they say...

[00:17:01] Speaker 01:
The argument is, well, that depends on the context.

[00:17:05] Speaker 01:
So you picked a hypothetical where the context goes your way.

[00:17:08] Speaker 01:
That doesn't necessarily mean that in certain other contexts, it can't be construed the other way, right?

[00:17:13] Speaker 02:
I don't believe they've cited a single case, Your Honor, where there's a first, second, third, and there's no separation between the two.

[00:17:24] Speaker 02:
The only case that they even purport to say that is Roe v. But in Roe v.

[00:17:30] Speaker 02:
There's a first program guide and a second program guide, and the combination that was applied to that was a first instance of someone opening the program guide on one TV, and a second instance of someone else opening the same program guide on a different TV.

[00:17:44] Speaker 02:
So there are different instances.

[00:17:47] Speaker 02:
They haven't identified any case that suggests that, that would suggest that one voltage.

[00:17:55] Speaker 02:
Roby is the non-precedential case, right?

[00:17:57] Speaker 02:
Correct.

[00:17:58] Speaker 02:
And that's, I think they're best case, but I don't think it actually, I view it as very anodyne case that doesn't help them at all.

[00:18:06] Speaker 02:
Yeah.

[00:18:07] Speaker 02:
So just to complete that thought, I don't believe they cite any case that suggests you can have one unitary element.

[00:18:16] Speaker 02:
That's just a single voltage reference.

[00:18:18] Speaker 02:
And that would apply upon two voltage references in the claim.

[00:18:22] Speaker 02:
There's no case that stands for that.

[00:18:24] Speaker 02:
All the cases they cite, Powell,

[00:18:26] Speaker 02:
linear, I'm blanking on the name of it, I think it's retractable.

[00:18:31] Speaker 02:
All of those cases basically say you don't have to be entirely separate where the specification suggests it doesn't need to be entirely separate.

[00:18:39] Speaker 02:
So, you know, if you have a cutting box and the specification says as a part of the cutting box you can have a sawdust collection fixture, well then that's okay.

[00:18:48] Speaker 02:
And that's quite reasonable.

[00:18:50] Speaker 02:
But that's quite different from saying VBT, that one voltage reference in Takahashi,

[00:18:56] Speaker 02:
is both the second and third voltage reference for the claims.

[00:18:59] Speaker 02:
They don't have any case that supports that proposition.

[00:19:03] Speaker 02:
But it's not just the plain meaning.

[00:19:05] Speaker 02:
So they say a lot about BRI, BRI, BRI, but BRI is not the magical indentation that you can just pull out and it solves all of your problems.

[00:19:13] Speaker 02:
If you actually look at what the caseload says about BRI, is it says in trivascular that the plain meaning governs

[00:19:21] Speaker 02:
unless it is inconsistent with the specification or the prosecution history.

[00:19:26] Speaker 02:
And here, as we briefed, we think the specification prosecution history is not only not inconsistent, it's entirely consistent with our position.

[00:19:36] Speaker 02:
Just briefly, because I'm sure you're very familiar with those arguments, there's a figure four embodiment that unambiguously has, they admit, has three separate voltage references.

[00:19:47] Speaker 02:
So obviously that supports our view.

[00:19:50] Speaker 02:
And when you go into the technical reason for having such structure, it's that they want to bring... Yeah, please.

[00:19:56] Speaker 01:
It's that figure three that doesn't.

[00:19:58] Speaker 01:
So your argument is dependent on ignoring figure three for purposes of your construction, right?

[00:20:03] Speaker 02:
I don't ignore figure three.

[00:20:04] Speaker 02:
I just think figure three is clearly inconsistent with the plain meaning of the claim.

[00:20:10] Speaker 02:
So then additionally, if we look at what this court found in August, I believe the case is, we say, okay, first of all, in BRR, you don't need to cover all embodiment.

[00:20:20] Speaker 02:
particularly when the plain meaning doesn't suggest that you would.

[00:20:23] Speaker 02:
And that is especially true, so this court said in August, when the parent patent claims that otherwise unclaimed embodiment and is undisputed that claim 11 of the parent covers the figure three embodiment.

[00:20:40] Speaker 02:
So with that, I think the issues in this case are very clear.

[00:20:43] Speaker 02:
I think our position has been clear and consistent throughout.

[00:20:46] Speaker 02:
I think the other side has mischaracterized

[00:20:48] Speaker 02:
of the board's construction and I think that's in and of itself evidence of the correctness of the board's construction.

[00:20:54] Speaker 02:
If the board's construction was in error, they would have aimed their fire at that current construction rather than the one they, I don't mean to be pejorative, but sort of made up, I would say.

[00:21:05] Speaker 02:
I think our construction, the board's construction, aligns with the plain meaning, this board's precedence, the specification of the prosecution history, and I think it's a fairly clear case

[00:21:18] Speaker 02:
And so what I'd like to do for the rest of my time is just answer any other remaining questions that your honors may have.

[00:21:28] Speaker 01:
Hearing none, why don't we conclude and hear from Mr. Sanders?

[00:21:34] Speaker 04:
Thank you, Your Honor.

[00:21:36] Speaker 01:
Thank you.

[00:21:37] Speaker 04:
Thank you, Chief Judge Prost.

[00:21:39] Speaker 04:
On the plain meaning of the terms, just if you would think for a moment as to what the patentee would have said if, as we're contending, it was trying to claim both the figure four and figure three embodiment, so to have a broad claim here.

[00:21:59] Speaker 04:
It needs to have a voltage reference for the second transistor.

[00:22:04] Speaker 04:
And it needs to have a voltage reference for the third transistor.

[00:22:07] Speaker 04:
So what do you call those if you want them to be able to be both?

[00:22:13] Speaker 04:
If you want them to either be the same or different.

[00:22:16] Speaker 04:
You're indifferent, you want a broad claim.

[00:22:19] Speaker 04:
And in that context, it's perfectly logical to call one the second and one the third.

[00:22:26] Speaker 04:
You're not dictating a difference.

[00:22:28] Speaker 04:
You are not like in the other claims, claims nine and 12, where you want a difference saying,

[00:22:33] Speaker 04:
different from the other.

[00:22:34] Speaker 04:
You're not saying separate from the other.

[00:22:37] Speaker 04:
But you're also not using a term that would be confusing.

[00:22:40] Speaker 04:
You're not just saying a voltage reference and using the same term twice, which might confuse someone into thinking that they are required to be the same.

[00:22:49] Speaker 04:
You're using language that is showing the correspondence to the two transistors and is itself open as to whether they may be different

[00:22:59] Speaker 04:
but they do not require it.

[00:23:02] Speaker 04:
And when you put that together with the context of the dependent claims that then say they can be substantially equal, that is exactly the way you would claim it.

[00:23:14] Speaker 04:
If you wanted the broad claims 1 and 10 to cover both embodiments, and then you want to drill down to claim one of the embodiments within that.

[00:23:26] Speaker 04:
You know, reference was made to the claims in the prior patent.

[00:23:31] Speaker 04:
I don't think that's dispositive in the sense that it's perfectly natural that if you had claimed one embodiment previously, it doesn't stop people from trying to seek a broader claim wherein one claim you would cover both embodiments.

[00:23:46] Speaker 04:
And I think the lesson we see here, and we haven't talked about this before, is the prosecution history

[00:23:53] Speaker 04:
also has an example of the examiner saying that claims in essentially their ultimate form were anticipated by claims that unequivocally had the same voltage supplied to the second and third transistor.

[00:24:10] Speaker 04:
And so you have the examiner himself

[00:24:15] Speaker 04:
looking at these claims and understanding them as, in our terms, claims that would cover both the Figure 3 and the Figure 4 embodiment.

[00:24:23] Speaker 04:
So, given all of that context, we think that this is... The case is properly decided by allowing the claims to have their broadest reasonable interpretation.

[00:24:35] Speaker 01:
Thank you.

[00:24:38] Speaker 01:
We thank both sides and the case is submitted.

[00:24:41] Speaker 01:
Thank you very much.