[00:00:00] Speaker 05:
Our argument is 20-1881 INVT-SVE versus Apple.

[00:00:06] Speaker 04:
Mr. Harding, whenever you're ready.

[00:00:09] Speaker 04:
Thank you, Your Honor, and good morning, and may it please the Court.

[00:00:11] Speaker 04:
My name is John Harding.

[00:00:13] Speaker 04:
I'm with the law firm, Robins Kaplan, and I represent the appellant and the owner of the 711 patent, INVT-SVE LLC.

[00:00:21] Speaker 04:
Here, the board's final written decision must be reversed for two reasons.

[00:00:25] Speaker 04:
First, the board construed the challenge claims such that the claims require the simultaneous transmission of multiple data items with different priority levels, higher priority specific data, and other relatively lower priority data items.

[00:00:40] Speaker 04:
Neither the board's final written decision nor the appellee's petition establishes any such teaching in the prior art.

[00:00:47] Speaker 01:
Hi, this is Judge Chen.

[00:00:49] Speaker 01:
Can you point me to where in your view the board necessarily construed the claim as requiring two different levels of priority of data items?

[00:01:03] Speaker 01:
I understand that it construed the term specific data item to be something called a higher priority item, data item.

[00:01:14] Speaker 01:
But I didn't see the board say that for the other reference type of data item in the claim, plurality of data items, that those plurality of data items are necessarily of some priority level that's lower than the specific data item.

[00:01:33] Speaker 01:
All I saw was the board saying that the plurality of data items is simply other data, other different data.

[00:01:43] Speaker 04:
Your Honor, you are correct that the board's claim construction ruling does not expressly say that the other remainder of the plurality of data item must be lower priority data, but higher.

[00:01:53] Speaker 01:
Wait a second.

[00:01:54] Speaker 01:
You just said the other plurality of data must be lower priority data.

[00:01:59] Speaker 01:
The board didn't say that, correct?

[00:02:02] Speaker 04:
And I apologize if I misspoke.

[00:02:04] Speaker 04:
The board said that the specific data must be higher priority data.

[00:02:08] Speaker 04:
That was the extent of its ruling.

[00:02:12] Speaker 04:
the specific data as higher priority data in transmission, the remainder of the data must be relatively lower priority.

[00:02:21] Speaker 04:
And that is consistent with both the word higher, whereas the appellee's brief here would ask the court to rewrite it to be simply high priority.

[00:02:31] Speaker 04:
And it's also consistent with the use of the term in the specification, where it is described as data given a higher priority in transmission

[00:02:42] Speaker 04:
from other data, and that's at appendix 53, column 3, lines 59 to 60 of the patent.

[00:02:51] Speaker 01:
And it's also consistent with the overall invention of the 711 patent, which teaches... Now, if I understand column 3 of your 711 patent, it also further explains that the data item, the specific data item is

[00:03:11] Speaker 01:
data to be transmitted with poor channel quality, correct?

[00:03:16] Speaker 04:
That is one example of specific data that the patent identified.

[00:03:21] Speaker 01:
And so therefore, if your data that you're going to be transmitting is going over a poor channel quality transmission scheme, then it's deemed to be specific data.

[00:03:35] Speaker 01:
It's deemed to be higher priority data because now we need

[00:03:40] Speaker 01:
do some transmit diversity to this data item given the poor channel quality.

[00:03:45] Speaker 01:
And so that's why we're going to send it twice.

[00:03:48] Speaker 01:
Is that right?

[00:03:50] Speaker 04:
If I'm understanding your question correctly, Your Honor, yes.

[00:03:55] Speaker 04:
In that case, the 7101 patent teaches that that data would be identified by the claimed apparatus as data requiring a higher priority in transmission and replicated

[00:04:06] Speaker 04:
sent out twice using transmit diversity.

[00:04:08] Speaker 01:
So I guess what I'm wondering then is why wouldn't it be possible that in those instances where all of the data that's about to be transmitted is about to be transmitted over known poor channel quality, why wouldn't you say, OK, we've got to do transmit diversity then to all of these in order to ensure a reliable transmission of all of that data?

[00:04:37] Speaker 04:
Well, Your Honor, that would be essentially going back to the prior art in this case, which is switching, where spatial multiplexing is used to speed up transmission, and transient diversity is used where it slows down transmission, but it's used to replicate all the data and ensure that the data is received correctly.

[00:04:56] Speaker 04:
What the novelty of the 711 patent is, is in limiting the use of transient diversity

[00:05:02] Speaker 04:
to specific data such that the benefits of spatial multiplexing can still be realized to some degree where you are transmitting, you know, different data at the same time out of different antennas and just using.

[00:05:18] Speaker 01:
But just looking, just thinking through the logic of what the bottom of column three of the patent is discussing, it's telling us that it wants to do transmit diversity

[00:05:31] Speaker 01:
you want to do data replication to data that's about to be transmitted with poor channel quality.

[00:05:39] Speaker 01:
And so that's why it seems like the logical conclusion of that is when all of the data that's being transmitted has poor channel quality, what do you do?

[00:05:52] Speaker 01:
You would replicate it all, wouldn't you?

[00:05:54] Speaker 01:
Or are you saying there's something in your patent disclosure that says,

[00:05:58] Speaker 01:
Well, we're going to hit a hard ceiling somewhere where we're not going to do transmit diversity in that instance on all of that data, even though all of it's going over poor channel quality.

[00:06:09] Speaker 01:
We're only going to do some of it.

[00:06:10] Speaker 01:
And we have our reasons why, but necessarily some of that data that's about to be transmitted over poor channel quality, we're not going to engage in transmit diversity.

[00:06:22] Speaker 01:
Is there something in the patent that suggests that?

[00:06:25] Speaker 04:
Well, the claim one, which the parties have treated as a representative claim, requires both the simultaneous use of spatial multiplexing and transmit diversity and states that transmit diversity is going to be used for the specific data item.

[00:06:40] Speaker 04:
So spatial multiplexing does need to be used simultaneously.

[00:06:44] Speaker 04:
That was part of the board's ultimate final written decision, concluding that spatial multiplexing and transmit diversity have to be used simultaneously.

[00:06:53] Speaker 04:
with transient diversity used for the specific data and spatial multiplexing used for the remainder of the data.

[00:07:00] Speaker 05:
Tell me on, sir, tell me on claim one.

[00:07:02] Speaker 05:
I'm looking at claim one now.

[00:07:03] Speaker 05:
What are you referring to in claim one?

[00:07:07] Speaker 04:
So while I'm referring to the claim construction ruling and the final written decision, which ruled that as a whole, claim one requires the simultaneous use of spatial multiplexing, which is introduced in the preamble,

[00:07:20] Speaker 04:
in transmit diversity, which is introduced in element 1C, as it was referred to by the parties, where you generate the replica data item.

[00:07:32] Speaker 05:
Well, the acclaimed language we're looking at, which is the acclaimed language at the end, right, under the we're in clause, where it talks about specific data items.

[00:07:42] Speaker 05:
I guess I'm just not quite seeing it.

[00:07:44] Speaker 05:
I have the same concern Judge Chen had that channel conditions based on column three, if channel conditions are poor across the entire system, wouldn't all data simultaneously transmitted be considered specific data?

[00:08:03] Speaker 05:
And it seems to me that the patent does not exclude that circumstance.

[00:08:08] Speaker 05:
So are you saying that the patent would exclude that circumstance?

[00:08:15] Speaker 04:
By construing the claim as requiring higher priority data, we're higher the relative term and distinguishing over the prior art, which was the switching between transit diversity and spatial multiplexing.

[00:08:28] Speaker 04:
Yes, the patent requires that there be a higher priority specific and then as a consequence, a relatively lower priority remainder of the plurality of data items.

[00:08:38] Speaker 05:
So your patent, you're saying your patent would exclude an embodiment where channel conditions are poor across the entire system.

[00:08:47] Speaker 05:
And so all that would be, all data would simultaneously be transmitted with considered specific data that that's not covered, that circumstance is not covered by this patent claim?

[00:08:57] Speaker 04:
If there was an apparatus operating, sending all the data via transmit diversity at a single time, that would not be an infringing

[00:09:08] Speaker 05:
Well, what about... Is there a big difference between the word high and higher?

[00:09:14] Speaker 04:
Yes, Your Honor.

[00:09:16] Speaker 04:
I believe there is a very significant difference.

[00:09:18] Speaker 04:
High is simply a descriptive term.

[00:09:22] Speaker 04:
That is, high priority.

[00:09:23] Speaker 04:
Higher, adding the ER as the claim construction did, turns it into a relative term.

[00:09:30] Speaker 04:
You're higher than something else.

[00:09:32] Speaker 04:
And that portion of claim of the specification talks about that the

[00:09:38] Speaker 04:
the data is given a higher priority in transmission from other data, confirming that it's a relative term that's higher priority in transmission from the rest of the plurality of data.

[00:09:50] Speaker 01:
Right.

[00:09:51] Speaker 01:
And then when the passage in column three goes on and talks about how poor channel quality qualifies as specific data, then why can't we think about higher priority data as being

[00:10:08] Speaker 01:
comparing channel quality, bad, poor channel quality versus good channel quality.

[00:10:18] Speaker 01:
And so in those instances where you have good channel quality, you don't need to do transmit diversity.

[00:10:25] Speaker 01:
In other instances where you have bad channel quality, then you're a specific data item.

[00:10:35] Speaker 01:
You're a higher priority data item.

[00:10:38] Speaker 01:
And in those instances where it happens to be all bad channel quality across the board, then it's all specific data items.

[00:10:48] Speaker 01:
I mean, again, that just appears to be the logic of what I see at the bottom of column three.

[00:10:54] Speaker 01:
I know you want to tell me that, well, the patent contemplates having

[00:11:04] Speaker 01:
data that you want to do transmit diversity to that is transmitted at the same time as data that you don't want to or need to do transmit diversity to.

[00:11:16] Speaker 01:
But when you look at the claim and you look at the idea of specific data item and a plurality of data item, the term plurality of data item is a fairly vague non-human term.

[00:11:33] Speaker 01:
And it doesn't really tell us necessarily that the so-called plurality of data items are necessarily data that's about to be transmitted over good channel quality.

[00:11:47] Speaker 01:
So that's the concern I have.

[00:11:49] Speaker 01:
What is it about the term, the phrase plurality of data items that those words alone that derive an outcome that necessarily means that plurality of data items

[00:12:03] Speaker 01:
are being transmitted over good channel quality.

[00:12:13] Speaker 04:
Sorry, Your Honor.

[00:12:14] Speaker 04:
I'm contemplating a question.

[00:12:15] Speaker 04:
I don't believe there is anything about the term plurality of data items that necessarily means it's being transmitted across good channel conditions.

[00:12:25] Speaker 04:
The point that I'm trying to make is that the

[00:12:29] Speaker 04:
The construction, which as the board noted, no party disputed and was applied, is higher priority.

[00:12:35] Speaker 04:
And it's based on the first part of that portion of column three, which distinguishes higher priority from other data.

[00:12:44] Speaker 04:
And that's, again, consistent with the purpose of the invention, which is to maximize the use of spatial multiplexing and transmit diversity simultaneously.

[00:12:56] Speaker 04:
I would also note that this

[00:12:59] Speaker 04:
distinction between high and higher was first raised on appeal by the appellees in this case.

[00:13:06] Speaker 04:
It was never disputed.

[00:13:07] Speaker 04:
It was never raised in front of the board.

[00:13:11] Speaker 04:
As the board's final written decision notes, the parties applied the construction requiring higher.

[00:13:18] Speaker 04:
Now on appeal, appellees have felt there is some distinction between higher and high because they've tried to rewrite it as simply high.

[00:13:25] Speaker 04:
they would ask the court to remove the letters ER from the word higher.

[00:13:32] Speaker 04:
Higher is the construction, and that's what the parties applied.

[00:13:35] Speaker 04:
And that is where the final written decision in the appellate's petition failed.

[00:13:40] Speaker 04:
It does not identify data that is higher or lower.

[00:13:45] Speaker 04:
And in fact, when the board was going through our arguments in its final written decision at page 24, it acknowledged our argument that it did not show

[00:13:55] Speaker 04:
higher or lower priority data.

[00:13:59] Speaker 04:
It did not respond by saying that's not the construction we came up with, but it did not also identify higher priority data.

[00:14:09] Speaker 04:
Instead, it said, you know, Walton teaches the use of transmit diversity for certain types of data, but it never identified a teaching in Paul Raj where higher and lower priority data could be simultaneously transmitted.

[00:14:24] Speaker 04:
as this claim construction would require.

[00:14:29] Speaker 05:
Okay.

[00:14:30] Speaker 05:
I think I heard the buzzer go off.

[00:14:32] Speaker 05:
Why don't we hear from the other side and we'll reserve your rebuttal, Mr. Harding.

[00:14:37] Speaker 00:
Thank you.

[00:14:38] Speaker 05:
Mr. Hart.

[00:14:40] Speaker 00:
Thank you, Your Honor.

[00:14:41] Speaker 00:
May it please the court, Paul Hart for Appellee Apple.

[00:14:44] Speaker 00:
Appellant is wrong that the board's claim construction requires the third data item to be not only different but also of lower priority than the replicated data.

[00:14:54] Speaker 05:
Well, so what is the high versus do you agree or disagree with your friend that high priority is different than higher priority and that the latter necessarily means that there has to be some relative, in other words, something has to be high and something has to be lower?

[00:15:13] Speaker 00:
We do agree that HIRE brings a connotation of relativity and we are not trying to read out that connotation from the claim construction.

[00:15:23] Speaker 00:
The question is relative to what?

[00:15:26] Speaker 00:
The 711 patent at appendix 5253, columns 2 to 3,

[00:15:31] Speaker 00:
describes a process of processing a transmission signal comprised of multiple data items, identifying the types of data items within that stream, and recognizing which ones are important data.

[00:15:44] Speaker 00:
Then it categorizes those as specific data such that they can be replicated and given higher priority in transmission.

[00:15:52] Speaker 00:
So the relativity here is higher priority data is relative to other data items in that stream.

[00:15:59] Speaker 00:
Your honors pointed out that

[00:16:01] Speaker 00:
One of the examples of specific data within the 711 patent is data transmitted to a user experiencing poor channel condition.

[00:16:10] Speaker 00:
In that example, during the period or

[00:16:15] Speaker 00:
when the user is experiencing poor conditions, all data items sent to that user will be designated as higher priority and will be replicated for transmission.

[00:16:25] Speaker 00:
So those are higher priority data items than the periods when the channel resolves and that user is no longer experiencing poor signal conditions.

[00:16:34] Speaker 00:
So again, it's relative to the overall data stream.

[00:16:37] Speaker 00:
It is not, as Appellant argues,

[00:16:39] Speaker 00:
limited to a single moment in time, specifically the moment of transmission.

[00:16:45] Speaker 00:
It does not require that there be a differential in priority between multiple data items simultaneously transmitted.

[00:16:52] Speaker 02:
Mr. Hart, Judge Plager, are you disagreeing with Judge Chen suggesting

[00:17:03] Speaker 02:
that hire relates to the channel issue rather than to a specific data issue?

[00:17:10] Speaker 02:
Is that what you're now saying?

[00:17:11] Speaker 00:
I think Judge Chen was exactly right to point out that one of the examples in the patent of higher priority data is to accommodate a user experiencing poor channel conditions.

[00:17:24] Speaker 00:
I think it's also very important to note that the claims themselves are limited to sending multiple data items to a single user.

[00:17:33] Speaker 00:
The preamble expressly states that the claims are directed to transmitting a plurality of data items for a same receiving apparatus.

[00:17:41] Speaker 00:
And so if we go to the example that Judge Chen pointed out in column three, the very last paragraph there, we have four types of higher priority specific data.

[00:17:52] Speaker 00:
Control data, retransmission data,

[00:17:54] Speaker 00:
The third is data transmitted to a receiving site having poor conditions, and the fourth is data transmitted to a receiving site having a higher moving speed.

[00:18:04] Speaker 00:
Those last two.

[00:18:05] Speaker 00:
the poor conditions and higher moving speed would cause every single data item set to that user to be designated specific data and treated with a higher priority in transmission.

[00:18:17] Speaker 00:
That means during the periods where that user is experiencing poor channel conditions or has a higher moving speed, there will be no difference in priority between the data items set to that user.

[00:18:30] Speaker 02:
Mr. Hart, this is Judge Plager again.

[00:18:33] Speaker 02:
Just for a moment, can I change the subject briefly to the question of Paul Raj's Figure 11A?

[00:18:42] Speaker 02:
I didn't get a chance to ask this of your colleague on the other side, but help me understand.

[00:18:49] Speaker 02:
What is your position on Figure 11A?

[00:18:53] Speaker 02:
Can you clarify that for me?

[00:18:56] Speaker 00:
Yes, absolutely, Your Honor.

[00:18:58] Speaker 00:
Both figures 9A and 11A teach multiple inputs.

[00:19:04] Speaker 00:
They teach multiple antennas for transmitting those inputs.

[00:19:08] Speaker 00:
They both teach transmit processor 314.

[00:19:12] Speaker 00:
I believe it's 314C and figure 9A and 314... I'm sorry, 314A and 9A and 314C and 11A.

[00:19:19] Speaker 00:
And that transmit processor is what performs the transmit diversity processing.

[00:19:24] Speaker 00:
And that's the process where one input is replicated such that it can be sent at the same time over two antennas.

[00:19:32] Speaker 00:
And that's where the wall and reference comes in.

[00:19:35] Speaker 00:
Based on this claim construction, appellant's claim construction that would require a difference in priority for the data items that are sent, the different data items that are sent, they pointed out that figure 11A has its two inputs derived from the same data source such that when they are replicated and sent out, they would all be of the same priority at a given moment in time, moment of transmission.

[00:20:03] Speaker 00:
Figure 11 does not have that same limitation.

[00:20:07] Speaker 00:
The DTM stream, as you can see, Figure 11 is at the top, followed by the AU.

[00:20:12] Speaker 00:
Those both derive from the data input and will likely have the same priority.

[00:20:18] Speaker 00:
The third data input there is a voice stream.

[00:20:22] Speaker 00:
Voice is unrelated to the first two, meaning that there's no restriction that it have the same priority as those first two.

[00:20:29] Speaker 00:
So when Walton's

[00:20:32] Speaker 00:
transmit diversity teachings are implemented in Figure 11A.

[00:20:38] Speaker 00:
When there is a piece of data that should be treated as higher priority, such that it is replicated twice, there's no limitation that the other data sent at the same time will be of the same priority.

[00:20:51] Speaker 05:
Isn't it a problem for you that the board, as I recall, didn't refer to Figure 11A?

[00:20:59] Speaker 00:
Well,

[00:21:00] Speaker 00:
The board did not refer to figure 11A at all.

[00:21:03] Speaker 00:
However, the board's factual findings do support a finding of obviousness based on 11A.

[00:21:11] Speaker 00:
Figures 9A and 11A are nearly identical.

[00:21:14] Speaker 00:
They both teach the same transmit diversity process or 314.

[00:21:19] Speaker 00:
That Transmit Diversity Processor 314 is what our motivation combined turned on.

[00:21:25] Speaker 00:
We analyzed 314 processor kind of in isolation without regard to specific embodiments to 9A specifically or 11A specifically.

[00:21:35] Speaker 00:
And so when the board held that one of scale in the IR would have been motivated to modify Transmit Processor 314,

[00:21:44] Speaker 00:
to implement the diversity processing of Walton and to transmit the replicated data simultaneously pursuant to the third reference long.

[00:21:55] Speaker 00:
That finding also applies to figure 11A.

[00:21:57] Speaker 00:
To be sure, under Chenery, affirming an agency on grounds not addressed by the board is generally improper, but there are exceptions to that rule.

[00:22:06] Speaker 00:
This court held that it may affirm a Board on grounds other than those relied upon.

[00:22:15] Speaker 00:
When upholding the Board's decision does not depend on making a determination of fact, not previously made.

[00:22:25] Speaker 00:
If the court were to conclude that the claims required simultaneously transmitting data items of different priorities, no further fact finding is required to conclude that the proposed combination based on 11A also renders the challenge claims obvious.

[00:22:40] Speaker 00:
The criticism of 9A does not apply to 11A.

[00:22:44] Speaker 00:
There's no dispute there.

[00:22:46] Speaker 00:
There's no competing expert testimony.

[00:22:48] Speaker 00:
We mapped 11A throughout our petition.

[00:22:50] Speaker 00:
Patent owner, appellant here, did not respond and did not address 11A in its papers.

[00:22:57] Speaker 00:
It did not have an expert address 11A at all.

[00:23:00] Speaker 00:
So there's no competing expert testimony.

[00:23:02] Speaker 01:
Well, just to be clear, my understanding is your in-depth discussion of figure 11A didn't arise until your reply, right?

[00:23:11] Speaker 01:
Which came after the patent owner's response.

[00:23:14] Speaker 00:
That is appellant's contention.

[00:23:16] Speaker 00:
It is incorrect.

[00:23:17] Speaker 01:
Well, wait a second.

[00:23:20] Speaker 01:
Why is that wrong?

[00:23:22] Speaker 01:
All of this discussion about Figure 11A, allegedly having two different data streams that would have two different levels of priority, and by the way, Figure 11A, there's no discussion in Paul Raj that exactly says that.

[00:23:36] Speaker 01:
But nevertheless, this discussion of Figure 11A and this buildup of this new theory didn't get developed until the reply.

[00:23:45] Speaker 01:
The best that you had in your actual petition was a footnote

[00:23:49] Speaker 01:
which didn't express this theory of having two different streams of data with two different levels of priority.

[00:23:58] Speaker 00:
That is absolutely correct, Your Honor.

[00:24:00] Speaker 00:
We did not.

[00:24:01] Speaker 00:
We did not discuss figure 11A in the context of the claim construction that would require different priority data items transmitted simultaneously.

[00:24:13] Speaker 00:
Our petition did not assume that specific data item should be construed as data given higher priority and transmission as the board adopted, or certainly did not assume that it would be interpreted as requiring a differential between the data item priorities.

[00:24:31] Speaker 00:
as the appellant now insists.

[00:24:34] Speaker 00:
So all of our responses to this differential priority argument that this appeal turns on essentially came in the reply and at the oral argument.

[00:24:45] Speaker 00:
You are absolutely right on that.

[00:24:46] Speaker 00:
My point was that throughout our mapping of Claim 1, we reference 11A at every point where we reference 9A.

[00:24:56] Speaker 00:
Any time there was any relevant discussion to point out differences and why those differences were pertinent to the post-combination, we did so.

[00:25:05] Speaker 00:
I would also point out that Claim 3 was... It specifically requires a CDMA application.

[00:25:13] Speaker 00:
That is Figure 11A.

[00:25:15] Speaker 00:
Figure 11A is the CDMA embodiment in Poltergeist.

[00:25:20] Speaker 00:
And so our mapping for Claim 3 in our petition assumed

[00:25:25] Speaker 00:
that claim one was fully mapped to the Paul Raj 11A embodiment.

[00:25:30] Speaker 00:
So my point was just that we gave INBT appellant here full notice that we were relying not only on figure 9A but also on Paul Raj 11A.

[00:25:42] Speaker 00:
It was appellant who made the decision not to address 11A in its patented response and not to have an expert address figure 11A at all.

[00:26:01] Speaker 05:
Sir, Mr. Hart.

[00:26:03] Speaker 00:
Yes, I apologize.

[00:26:05] Speaker 00:
I believe I've hit all the high points.

[00:26:07] Speaker 00:
I would just reiterate that based on the discussion today, it's clear that appellant's proposed interpretation of the claims is not the interpretation adopted by the board, nor is it the proper interpretation of the challenge claims.

[00:26:26] Speaker 00:
The intrinsic record makes clear that the 711 patent contemplates two different scenarios in which all data items sent to a single user would be treated as higher priority and replicated to improve their reception quality.

[00:26:43] Speaker 00:
Patent owner's interpretation of the claims would exclude both those examples.

[00:26:47] Speaker 00:
So two out of the four examples that are described by the 711 patent are excluded by appellants

[00:26:55] Speaker 00:
interpretation of the challenge claims here, and that is improper.

[00:26:59] Speaker 00:
Second, if this board, I'm sorry, if this court adopts appellant's narrow interpretation of the claims, it is still proper to affirm the board's holding based on our mapping of the figure 11A embodiment from Paul Rush.

[00:27:15] Speaker 00:
And if there are no further questions, thanks very much for your time.

[00:27:20] Speaker 05:
Hearing none, okay, Mr. Harding, you've got some rebuttal time left.

[00:27:25] Speaker 04:
Thank you, Your Honor, and I'll be brief.

[00:27:28] Speaker 04:
And I'll start briefly with Figure 11A.

[00:27:31] Speaker 04:
As I believe Your Honors recognize, the issue here is that the employees are now analyzing Figure 11A for something entirely different.

[00:27:41] Speaker 04:
They're saying turn to it for higher priority data.

[00:27:45] Speaker 04:
where there is a relative nature between higher and something lower.

[00:27:49] Speaker 04:
That is the issue that we were not put on notice of through their petition, where they argued 9A and then they argued 11A as a CS, and they did not distinguish between the two types of data, higher and lower.

[00:28:01] Speaker 04:
Relatedly, they now assert that figure 11A can be

[00:28:11] Speaker 04:
configuration that transmits two different types of data, priority levels, but that's not even what they argue in their briefs.

[00:28:17] Speaker 04:
Where they argue in their briefs is that figure 11A, that the data does not need to be of equal priority, but does not need to be, does not equate to, shows data of different priority levels.

[00:28:30] Speaker 04:
That's where their petition failed to meet their burden to show different priority data levels.

[00:28:35] Speaker 04:
And that brings us back to kind of Judge Chen's questions from the beginning.

[00:28:40] Speaker 04:
We would agree that there are real-world uses of this type of a phone, for example, that embodies this specification, where you would not need to use both transient diversity and spatial multiplexing simultaneously.

[00:28:53] Speaker 04:
But that's not what this patent covers, and that's not how the board construed the claims to require the simultaneous use of transient diversity and spatial multiplexing, where transient diversity is used for higher priority data.

[00:29:07] Speaker 04:
But so the claims requires the capability to do both at a single point in time.

[00:29:13] Speaker 04:
And to use transit diversity for higher priority data, which as a Pelley's own brief acknowledges is different than high if if if high and higher were the same.

[00:29:25] Speaker 04:
They would not have had to spend half their brief arguing that only high is required.

[00:29:29] Speaker 03:
High is required.

[00:29:30] Speaker 04:
And I believe, Your Honor, that that is about the extent of my rebuttal time, unless there's any other questions.

[00:29:35] Speaker 04:
I will thank the court for its attention and questions today.

[00:29:40] Speaker 05:
Thank you.

[00:29:41] Speaker 05:
We thank both sides.

[00:29:42] Speaker 05:
And the case is submitted.

[00:29:43] Speaker 05:
That concludes our proceeding for this morning.

[00:29:45] Speaker 05:
Thank you all.

[00:29:46] Speaker 05:
Thank you all.

[00:29:48] Speaker 05:
The honorable court is adjourned until tomorrow morning at 10 AM.