[00:00:00] Speaker 03:
Number 20, 2070, Quantity Systems Incorporated against Valadine LIDAR USA Incorporated.

[00:00:08] Speaker 03:
Mr. Milch.

[00:00:10] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:00:12] Speaker 00:
The Patent Trial and Appeal Board committed two errors in its final written decisions.

[00:00:16] Speaker 00:
First, with respect to claim construction, and second, with respect to its secondary considerations analysis.

[00:00:22] Speaker 00:
In reaching what was purportedly the broadest reasonable interpretation, the standard here, the broadest reasonable interpretation of the term LIDAR,

[00:00:29] Speaker 00:
The board committed the cardinal sin of claim construction by reading and limitations appearing

[00:00:34] Speaker 00:
in a preferred embodiment despite the lack of any expressed disavowal or words of manifest exclusion by the patentee.

[00:00:42] Speaker 01:
And the Court Phillips case... Counsel, can I take your description of those two errors to mean that if we do not overturn the claim construction, then your primary argument is really just as it relates to the objective indicia of non-obviousness.

[00:01:02] Speaker 00:
That's correct, Your Honor.

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

[00:01:04] Speaker 01:
Because, I mean, you do spend a page saying that even under the board's claim construction, you could still make obviousness arguments, but beyond the objective and dish point, there really aren't any that you're making.

[00:01:21] Speaker 01:
Is that right?

[00:01:22] Speaker 00:
I'm sorry, Your Honor.

[00:01:23] Speaker 00:
I misunderstood your question.

[00:01:24] Speaker 00:
So let me rephrase.

[00:01:26] Speaker 00:
If you don't overturn the claim construction, there is still an argument

[00:01:30] Speaker 00:
that in the analysis, the board's analysis of the primary reference, the Mizuno reference, that they overly limited the embodiment that was applied.

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And there is still an argument that Mizuno could be interpreted to be time flight letter.

[00:01:49] Speaker 01:
Well, doesn't your expert's testimony contrasting Mizuno's system with triangulation or time of flight systems very damaging to that argument?

[00:02:00] Speaker 00:
It is, Your Honor, and I think that the issue is whether or not the board considered the entire reference.

[00:02:08] Speaker 00:
It's not just the expert's testimony, but also whether or not the board considered the entire reference of just a particular embodiment.

[00:02:16] Speaker 01:
Okay, but the board did cite, you know, the question is whether the evidence that they cited is substantial enough, and the board did cite a variety of other references to support their conclusion.

[00:02:28] Speaker 01:
Did they not?

[00:02:30] Speaker 00:
That's right, Your Honor, and I think that would be a tough carry here in terms of substantial evidence.

[00:02:36] Speaker 01:
Okay, so you better focus on claim construction.

[00:02:39] Speaker 00:
Thank you, Your Honor.

[00:02:41] Speaker 00:
So the courts Phillips case here provides the hierarchy.

[00:02:44] Speaker 00:
You start with the claims, and the claims should be given their plain meaning in light of the entire specification.

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And here the claims are broad.

[00:02:51] Speaker 00:
They're not limited to autonomous vehicles.

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They're not limited to long-distance, outward-facing sensing.

[00:02:57] Speaker 02:
Counselor, you can't get away from

[00:02:59] Speaker 02:
the specification, which makes pretty clear in column 14, if not earlier, that this is a pulsed time of flight meeting for LIDAR.

[00:03:16] Speaker 00:
Yes, Your Honor.

[00:03:17] Speaker 00:
But if you look at the entire specification, again, the claims aren't limited.

[00:03:21] Speaker 00:
And we get starting with the claims, because that's where we start our analysis.

[00:03:24] Speaker 00:
And LIDAR is a broad term.

[00:03:26] Speaker 00:
And from the initial petition,

[00:03:28] Speaker 00:
The petitioner argued that the term LIDAR is essentially what the acronym says it is, and that's part of the specification as well.

[00:03:34] Speaker 00:
It's Laser Imaging Detection and Ranging, and that's Appendix 412.

[00:03:39] Speaker 00:
The patent team never ascribed any particular meaning to the term LIDAR beyond its acronym, and they never demonstrated any intent to limit the term just to pulse time-of-flight methods, and notably, neither party sought construction of the term LIDAR in the parallel district court action.

[00:03:54] Speaker 01:
Well, in fairness, counsel, isn't the entirety of the term

[00:03:58] Speaker 01:
a LIDAR-based 3D point cloud system comprising, so that a LIDAR-based 3D point cloud system means that we have to take into consideration the board's construction of 3D point cloud system, right?

[00:04:13] Speaker 00:
Absolutely, Your Honor.

[00:04:14] Speaker 00:
So Anvil and I know you said if you read LIDAR so broadly, as Petitioner would propose, that it makes the term meaningless in the context of the claim, and especially in light of the construction of 3D point cloud.

[00:04:26] Speaker 00:
But that's not so, Your Honor.

[00:04:27] Speaker 00:
The quantity agrees that the 3D point cloud requires pulses.

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But the board's construction of 3D point cloud does not require timing, as Velodyne suggests in the red brief at page 30.

[00:04:38] Speaker 00:
And in fact, patent owners expert admitted that triangulation systems only typically use continuous wave lasers, not that they only use continuous wave lasers.

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And I think that's instructive.

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And that's Appendix 121.

[00:04:49] Speaker 01:
Was there anything in the specification or written description, I guess I should say, where they don't

[00:04:58] Speaker 01:
Where they describe a technique other than pulsed time of flight LIDAR?

[00:05:04] Speaker 00:
Yes, Your Honor.

[00:05:04] Speaker 00:
So in the background, there is description of other systems, some prior art systems, including what's called flash LIDAR.

[00:05:13] Speaker 01:
That's prior art, right?

[00:05:15] Speaker 01:
It is prior art, Your Honor.

[00:05:19] Speaker 01:
And they distinguish this patent from the prior art.

[00:05:23] Speaker 00:
They did.

[00:05:24] Speaker 00:
They put a lot of stake in time of flight, to be sure, but the claims themselves don't limit

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to any particular type of LIDAR.

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The point being that there are multiple known types of LIDAR.

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And there are multiple types disclosed in the specification.

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And the claim is just simply using the broad term LIDAR.

[00:05:44] Speaker 01:
Other than in reference to the prior art, where in the specification are other techniques described?

[00:05:51] Speaker 00:
There are generic references to pulses that are not necessarily related to time of flight.

[00:05:59] Speaker 02:
But, you know, certainly the board... References to use of location in the specification as examples of the invention.

[00:06:11] Speaker 00:
I'm sorry.

[00:06:12] Speaker 00:
I didn't hear the beginning of your question, Your Honor.

[00:06:14] Speaker 02:
The references in the written description to use of location as an example of this invention.

[00:06:26] Speaker 00:
There are no explicit references to location other than the, again, the broad acronym.

[00:06:36] Speaker 00:
So in terms of, so if looking at the, of course, Veritas case, again, it was unreasonable to limit construction to a particular file restoration technique when there were multiple known techniques.

[00:06:49] Speaker 00:
And here, there are multiple known LIDAR measurement techniques.

[00:06:53] Speaker 00:
And again, the specification acknowledges that, albeit with respect to the prior art in the background.

[00:06:58] Speaker 00:
But the specification includes a preferred embodiment.

[00:07:01] Speaker 00:
And that's really what the board focused on.

[00:07:04] Speaker 00:
They really focused on autonomous driving.

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And they chose to incorporate the preferred embodiment into its construction.

[00:07:10] Speaker 00:
Again, the specification broadly describes the term LIDAR.

[00:07:14] Speaker 00:
And again, it describes pulse systems generally.

[00:07:17] Speaker 02:
But again, the non-preferred arguments

[00:07:21] Speaker 02:
that are different like Mizuno's location system.

[00:07:28] Speaker 02:
Other non-preferred embodiments.

[00:07:34] Speaker 02:
You focus, you say the time of flight is a preferred embodiment.

[00:07:42] Speaker 02:
Other non-preferred embodiments that rely on location as Mizuno does.

[00:07:49] Speaker 00:
There are no preferred embodiments that describe location in the specification, Your Honor, but it is, I think, undisputed that there are multiple known types of LIDAR.

[00:08:01] Speaker 00:
And given that there are multiple known types of LIDAR and the claim uses simply the broad term LIDAR without any qualification,

[00:08:10] Speaker 01:
Again, starting with the claims and the understanding that it has multiple... Well, the only thing that you rely on to say that there are multiple types of LIDAR or that multiple types of LIDAR that were regularly referred to when you're talking about use of pulses post-date the relevant timeframe and aren't mentioned in your opening brief.

[00:08:32] Speaker 01:
Is that right?

[00:08:33] Speaker 00:
The... In the opening brief here, Your Honor?

[00:08:39] Speaker 01:
Yes.

[00:08:41] Speaker 00:
Well, Your Honor, there are a couple of things that we point to.

[00:08:44] Speaker 00:
So we point to patent owners, again, patent owners' admission that triangulation systems only typically use continuous wave lasers, and that there are multiple types of LIDAR.

[00:08:57] Speaker 00:
And so, yes, there is contemporaneous evidence, and I think that's sort of further down the hierarchy.

[00:09:03] Speaker 00:
If you look at the claims, again, if you start with the claims, they're much broader than the preferred embodiment.

[00:09:09] Speaker 00:
And so it's not simply the extrinsic evidence.

[00:09:14] Speaker 03:
Well, so we have a situation where they interpreted the claims in light of the specification.

[00:09:21] Speaker 03:
So on your theory that the claims nonetheless are interpreted so broadly that they're invalid, we have this contingent motion to amend which would have resolved all of that.

[00:09:36] Speaker 03:
So isn't the most that...

[00:09:40] Speaker 03:
that we could do even if we were to find substance in what you're saying is to send it back for consideration of the contingent motion to amend?

[00:09:52] Speaker 00:
I think that's right, Your Honor.

[00:09:55] Speaker 00:
I think it would have to go back for reconsideration by the Patent Trial and Appeal Board.

[00:10:00] Speaker 03:
Not that it would have to, but if that happened, the chances of there being a different result, even accepting your argument, they don't seem to be realistic.

[00:10:16] Speaker 00:
Well, I think, Your Honor, there are other references applied in response to the contingent motion to amend.

[00:10:24] Speaker 00:
And your honor, if I could briefly, I hear I'm into my rebuttal time, but if I could just very briefly address the secondary considerations issue.

[00:10:30] Speaker 03:
Okay.

[00:10:31] Speaker 03:
Proceed.

[00:10:33] Speaker 00:
So with respect to secondary considerations, the board aired by improperly presuming a nexus between the patent claims and the products without proper consideration of the unclaimed features.

[00:10:42] Speaker 00:
And there are two reasons why the board's analysis is flawed.

[00:10:44] Speaker 00:
One under the Fox factory case that was decided in December of 2019 after the board issued its final written decision.

[00:10:51] Speaker 00:
Claims must the unclaimed features must be considered as part of the presumption analysis, not just in considering whether the presumption can be rebutted as the board did here.

[00:11:00] Speaker 00:
And number two, the board did not provide any explanation for dismissal of the unclaimed features.

[00:11:05] Speaker 00:
and factual findings like this, they must be supported by evidence and explanation.

[00:11:10] Speaker 01:
Well, first, you're reading Fox Factory, I think, way too broadly.

[00:11:14] Speaker 01:
I mean, there's plenty of case law that says that the mere presence of an unclaimed feature does not prevent the application of the presumption.

[00:11:23] Speaker 01:
In fact, Fox Factory 2 made that clear.

[00:11:26] Speaker 01:
Absolutely, Your Honor.

[00:11:28] Speaker 01:
And the board expressly said that all of the features to which you pointed

[00:11:35] Speaker 01:
were encompassed within the product and the patent.

[00:11:40] Speaker 00:
The couple of differences are, if the commercial product has critical unclaimed features relating to the functionality, then nexus can't be presumed, even if the patent claims broadly cover the product.

[00:11:51] Speaker 01:
Well, what Fox Factory found was that where there are unclaimed features that are governed by a different patent,

[00:11:59] Speaker 01:
then you've got to determine which patent would be entitled to the presumption.

[00:12:05] Speaker 01:
And that's where we ended up with Fox Factory 2.

[00:12:09] Speaker 00:
And, Your Honor, but again, if the unclaimed features are simply, you know, insignificant features, then presuming an excess may be appropriate.

[00:12:17] Speaker 00:
But that's not the case here.

[00:12:19] Speaker 00:
And the unclaimed features are critical to the success of the product.

[00:12:26] Speaker 03:
Okay, let's hear from the other side.

[00:12:29] Speaker 03:
Thank you, Your Honor.

[00:12:32] Speaker 03:
Okay, Mr. Lummish.

[00:12:34] Speaker 04:
Thank you, Your Honor.

[00:12:34] Speaker 04:
May it please the court?

[00:12:36] Speaker 04:
I'll start with claim construction as well.

[00:12:39] Speaker 04:
And the simple answer is that Velodyne is not reading in the preferred embodiment.

[00:12:44] Speaker 04:
It's asking or it asked the PTAB to construe.

[00:12:48] Speaker 04:
And the PTAB did construe the term LIDAR according to its plain and ordinary meaning in the context of the specification.

[00:12:56] Speaker 04:
And importantly, I think here is it did it making significant fact findings on how a person of ordinary skill in the art would have come into the patent, how it would have understood the term in 2006 in light of the literature in the field.

[00:13:10] Speaker 04:
And you can see that in the final written decision at appendix page 12.

[00:13:14] Speaker 01:
Do you concede that as of 2006, there were multiple LIDAR techniques that were known?

[00:13:21] Speaker 04:
I don't, Your Honor.

[00:13:22] Speaker 04:
I think that the term has evolved over time.

[00:13:24] Speaker 04:
The contemporary evidence

[00:13:26] Speaker 04:
at the time was that LIDAR meant to those of ordinary skill in the art, pulse time of flight radar using laser.

[00:13:36] Speaker 04:
And so while there are some more recent documents that refer to other types of LIDAR and that go beyond pulse time of flight, I don't concede that the term itself as a person of ordinary skill in the art understood it coming into the patent meant something different.

[00:13:52] Speaker 04:
And that's the fact findings that the PTAB made as well that the board made.

[00:13:56] Speaker 01:
What's your response to the argument that your expert actually referred to, used the word typically as it related to time of flight rather than always?

[00:14:09] Speaker 04:
He does, Your Honor, and he talks about other types of things that are now called LIDAR and now called sometimes LADAR.

[00:14:19] Speaker 04:
What I think he was very clear about throughout the proceedings

[00:14:23] Speaker 04:
What that in 2006 that's what what LIDAR meant was pulse time of flight and absolutely what it means in this patent is pulse time of flight.

[00:14:32] Speaker 04:
So even if even if I'm wrong in this and even if you accept that LIDAR could have had some other meaning to some people in the field.

[00:14:40] Speaker 04:
You have to then go back to where your honor started, which is what does it mean in this path?

[00:14:45] Speaker 04:
And then I think it becomes inexorable that you have to construe it in the way that the PTAB does.

[00:14:53] Speaker 04:
It starts with the claim language, as Mr. Milch says.

[00:14:56] Speaker 04:
And so this goes to sort of the plain meaning.

[00:14:59] Speaker 04:
And you'll see in the Fox paper that we cite from 1993 at appendix page 9162 and 63 in the English paper,

[00:15:07] Speaker 04:
from 2006 that the meaning of the term, and this really goes to your question, Judge O'Malley, was radar using lasers, that it was a play on the term radar, that it was intended to capture that what was being done with LIDAR was essentially radar or sonar now with lasers.

[00:15:29] Speaker 04:
And radar is in fact a time of flight mechanism.

[00:15:32] Speaker 04:
And so even if it's an acronym, like radar is radio distance and ranging, you can't stop with the words.

[00:15:40] Speaker 04:
You have to say, what does that mean?

[00:15:41] Speaker 04:
And what does that tell somebody of ordinary skill in the art?

[00:15:44] Speaker 01:
What it told them was you've- I'm sorry.

[00:15:46] Speaker 01:
Go ahead.

[00:15:47] Speaker 04:
Not at all.

[00:15:49] Speaker 01:
Is there any evidence in the record that other techniques like triangulation either can't or wouldn't prefer to use pulse lasers?

[00:16:02] Speaker 04:
I can't think of an instance where the record says you can't do triangulation with a pulsed laser.

[00:16:08] Speaker 04:
The record is replete with a number of instances, and I don't mean to get off your question, Your Honor, but a number of instances on where you would use triangulation versus pulsed lasers or LIDAR, time of flight lasers, and it's all about the distances.

[00:16:23] Speaker 04:
And you can see great consistency among the evidence on this.

[00:16:27] Speaker 04:
that if it's a close-up distance like what Mizuno's doing, it's looking for flaws at a millimeter level on a pipe that's very, very close to the emitters, then you're going to use something like triangulation or position as Judge Laurie put it.

[00:16:41] Speaker 04:
You're going to look at the physical location of where the reflected light is detected.

[00:16:46] Speaker 04:
But if you're going for distance and you're doing something like autonomous vehicles where you're not looking at something an inch or a millimeter from the bumper of the car,

[00:16:56] Speaker 04:
then you're going to use time of flight, because it's going to be a better system for capturing that kind of data.

[00:17:02] Speaker 04:
But if you're doing fine-tuned, fine-grained analysis of some physical structure, then you're going to use triangulation, because you're going to get a much higher resolution.

[00:17:13] Speaker 01:
And with triangulation, you use continuous laser sources?

[00:17:18] Speaker 04:
So again, I'm not sure, Your Honor, that it's exclusively limited to that.

[00:17:22] Speaker 04:
But the evidence, and certainly Mizuno is, I think, describing that.

[00:17:25] Speaker 04:
I think that it's, I can't think of an instance in the record where quantity or Velodyne for that matter has shown the court that there is a triangulation system using pulsing.

[00:17:36] Speaker 04:
I just don't want to tell you that it doesn't exist because it might.

[00:17:41] Speaker 04:
So that's claim language and I could spend more time on that, but the specification really I think carries the day.

[00:17:46] Speaker 04:
If you go to the very first sentence, it tells you what this patent's about and what it's improving upon.

[00:17:52] Speaker 04:
It starts with the use of a pulse of light to measure distance, so we know we're pulsing, and in that same first paragraph, it tells you that it's time of flight.

[00:18:01] Speaker 04:
It says that the time it takes for that pulse of light to return to a detector near the emitter is measured, and a distance can then be derived from that measurement.

[00:18:10] Speaker 04:
So we know from the very first paragraph what we're talking about, what the LIDAR is in the 558 patent and its pulse time of flight.

[00:18:19] Speaker 04:
And then it just goes on from there.

[00:18:20] Speaker 04:
There's numerous references, especially the board I should say, appendix pages 10 and on, spends considerable energy to prove that there are,

[00:18:34] Speaker 04:
that there are multiple spots where it talks about pulsing and where it talks about time of flight.

[00:18:39] Speaker 04:
And that, and I think this is important, especially when you get into the Veritas case, that what the improvement of the invention is, is taking these old lasers that were being used in the DARPA challenge and others that were pulsed time of flight lasers.

[00:18:53] Speaker 04:
But single shot, they winked and nodded as the patent put it, they pivoted on platforms, they didn't rotate.

[00:19:01] Speaker 04:
and improving upon those so that they can be used to give you by rotation a better field of view and a better perspective in order to let your autonomous vehicle go around corners, avoid obstacles, those kinds of things.

[00:19:15] Speaker 04:
And so the invention itself is an improvement and you can see it in Figure 3.

[00:19:19] Speaker 04:
It's got the single shot laser that's got a pivot function to it.

[00:19:22] Speaker 04:
That was the thing that people were putting on their cars in the DARPA challenge.

[00:19:26] Speaker 04:
And this is all on the record.

[00:19:28] Speaker 04:
But the improvement is clear from the patent it talks about at column one lines 32 through 58, improving upon the single lasers, the winking and the nodding, and collecting data one point at a time.

[00:19:40] Speaker 04:
And so when you go to the Veritas case,

[00:19:43] Speaker 04:
What the court says in Veritas is, well, the patent doesn't explain any aspects of the contemplated process that would make sense only for a file level restoration versus a block level restoration.

[00:19:55] Speaker 04:
It doesn't say anything about why it would be material.

[00:19:58] Speaker 04:
And this is a quote to the challenges assertedly overcome by the invention, whether the background restore application does file or block level restoration.

[00:20:09] Speaker 04:
So the champion case that Mr. Mills pulls out, the Veritas case, actually would suggest supports our position, which is that when the specification is telling the reader why there's some relevance to the description that goes to the challenges overcome by the invention, those are going to be important hallmarks in understanding if they help construe the claims.

[00:20:31] Speaker 04:
And that's what we have here.

[00:20:33] Speaker 04:
The whole point of the 55A patent is

[00:20:35] Speaker 04:
People were using single shot winking and nodding lasers.

[00:20:38] Speaker 04:
And Mr. Hall had what the world calls the audacious idea of putting lasers and APDs onto a spinning structure, rotating at high speeds, and collecting lots and lots of data from all around the car.

[00:20:55] Speaker 04:
I think that I can spend more time on the specification, but I think that's sort of the big picture of it.

[00:20:59] Speaker 04:
We see it at almost every column.

[00:21:02] Speaker 04:
I talked about column one.

[00:21:04] Speaker 04:
At column two, there's

[00:21:05] Speaker 04:
discussion at lines one through three about how single lasers are inherently limited due to how many pulses per second are possible.

[00:21:14] Speaker 04:
At column four, the board cites to the fact that the system of the invention can collect a million time of flight distances per second and talks about their standard deviations.

[00:21:25] Speaker 04:
At column five, it talks about the processor of the sensor recording the time of flight

[00:21:31] Speaker 04:
And then there's just several other references to pulsing that you see in the figures in columns three and seven.

[00:21:40] Speaker 04:
So I think that basically covers the law and the main points that Mr. Milch made.

[00:21:46] Speaker 04:
So I can turn to the secondary considerations if there are no further questions on claim construction.

[00:21:52] Speaker 04:
OK.

[00:21:54] Speaker 04:
The first point I'd make is,

[00:21:57] Speaker 04:
Just to respond to what Mr. Milch said, he suggested that what the board did here was only consider their argument, Quantergy's argument concerning the alleged unclaimed features in determining whether the presumption was rebutted.

[00:22:16] Speaker 04:
And that's actually incorrect.

[00:22:18] Speaker 04:
If you look at what the board says, it is referring to,

[00:22:25] Speaker 04:
Qanergy's argument, and it says, Qanergy attempts to rebut Velodyne's evidence of a presumption.

[00:22:31] Speaker 04:
It's not saying to rebut the presumption, and maybe it's an unfortunate choice of words to create confusion in this argument, but it says that Qanergy is trying to rebut Velodyne's evidence of a presumption.

[00:22:45] Speaker 04:
So it's still in the process of considering the evidence of whether there is a presumption or not when it looks at those alleged unclaimed features.

[00:22:54] Speaker 04:
So that's just to respond to Mr. Milch.

[00:22:56] Speaker 04:
I think the main issue on the secondary considerations issue at this point is that the vast majority of what was said in the brief should be considered to be waived.

[00:23:07] Speaker 04:
And we've briefed this in our opposition.

[00:23:09] Speaker 04:
But the Quantergy opening brief, and then even in its reply brief, spends 30 pages of factual explication

[00:23:22] Speaker 04:
explaining why your honors should find that the secondary considerations are not co-extensive with the claims.

[00:23:32] Speaker 04:
But if you go back to what they did with the PTAB, it was a very short handful of sentences.

[00:23:38] Speaker 04:
And the grade brief tries to rebut that.

[00:23:41] Speaker 04:
But if you go back through the four pages that the grade brief points you to, you'll see that it actually completely proves this point.

[00:23:47] Speaker 04:
They cite to appendix page 1023,

[00:23:50] Speaker 04:
And when you go look at that page, you'll see that it's merely a short list of the allegedly unclaimed features.

[00:23:56] Speaker 04:
No factual explanation at all for them.

[00:23:58] Speaker 04:
And actually, it's only three of the four features that doesn't mention software.

[00:24:03] Speaker 04:
If you turn to appendix page 1027, you'll see it's three seconds.

[00:24:07] Speaker 01:
They do actually mention unclaimed features in the petition and the reply.

[00:24:11] Speaker 01:
And your point is that they don't explain what they are?

[00:24:14] Speaker 04:
Exactly.

[00:24:15] Speaker 04:
So, and this goes to sort of the concern or the objection they make that the PTAB did not spend enough time rebutting or responding to this argument.

[00:24:24] Speaker 04:
They suggest to the court here that the board didn't submit or write down sufficient fact findings about this issue.

[00:24:34] Speaker 04:
And my point here is that

[00:24:36] Speaker 04:
When you look at it in proportion to what was written to the board, the board has at least as much response as they got in argument from Quinnertree.

[00:24:46] Speaker 01:
So it was commensurate with what was submitted to them.

[00:24:49] Speaker 04:
Precisely.

[00:24:51] Speaker 04:
Precisely.

[00:24:51] Speaker 04:
And we cite case off for that as well.

[00:24:53] Speaker 01:
Well, what's your response to Quinnertree's reading of Fox Factory?

[00:25:02] Speaker 04:
Well, I think your honor hit it right in the head, which is that Fox Factory is pretty specific to its facts.

[00:25:09] Speaker 04:
It's looking at an instance where there are multiple patents that cross across multiple products.

[00:25:15] Speaker 04:
It does in fact say in pretty simple terms that there were unclaimed features for the bikes chain rings that were core to some of the other patents.

[00:25:25] Speaker 04:
And that seemed to be part of at least why the

[00:25:28] Speaker 04:
praise and long felt need and other objective evidence had come in, that it was really going to some of these other unclaimed features.

[00:25:36] Speaker 04:
There's just no evidence at all of that here.

[00:25:38] Speaker 04:
And you've got to read Fox Factory in light of the cases that come before it.

[00:25:45] Speaker 04:
Rambas is one that we cite in our brief.

[00:25:48] Speaker 04:
And in Rambas, I think it's very useful to sort of think about the reasoning.

[00:25:51] Speaker 04:
In that case, it applies equally here, which is the board found that even though there wasn't

[00:25:58] Speaker 04:
a one-to-one correspondence between the secondary indicia and the claim language, that it was clear that the benefits that were alleged to be the unclaimed features derived from the claim language itself.

[00:26:11] Speaker 04:
So stepping back, the case is about a dual edge data transfer on a memory.

[00:26:17] Speaker 04:
And part of the benefit of that memory was that it was fast.

[00:26:21] Speaker 04:
It had a clock speed of 250 megahertz.

[00:26:24] Speaker 04:
And the board initially found that, well, we're not going to find a nexus here or we're not going to presume a nexus because the claims don't mention that clock speed.

[00:26:34] Speaker 04:
The federal circuit vacated that, remanded it, and found that such a strict requirement was, quote, improper.

[00:26:40] Speaker 04:
And the reasoning for that was because that clock speed, that high 250 megahertz, came from

[00:26:47] Speaker 04:
the claim functionality, the dual edge of the memory.

[00:26:51] Speaker 04:
And I think you could say the same thing is exactly true here.

[00:26:54] Speaker 04:
Many of the unclaimed features, so-called, are actually expressed words in the claims, like the point cloud itself is a critical part of the claim.

[00:27:04] Speaker 04:
And then the fields of view go straight to the rotation and the orientation of the lasers.

[00:27:09] Speaker 04:
I think those are the main ones, actually.

[00:27:13] Speaker 04:
So you could always find something and say, well, there's something in the product literature that isn't found in the claim language, which I think is the exercise that Quantergy has gone through.

[00:27:24] Speaker 04:
But what they haven't done is actually map the secondary considerations evidence and say, well, here's that evidence, and it's pointing to something in the product that's not actually in the claims.

[00:27:35] Speaker 04:
Uh, they say it in the, in the board, in the, I'm sorry, in their, uh, in their submissions to the board, uh, but they don't support it.

[00:27:45] Speaker 04:
I hear him all the time.

[00:27:46] Speaker 03:
Thank you.

[00:27:47] Speaker 03:
Any more questions for Mr. Loomis?

[00:27:49] Speaker 01:
No.

[00:27:51] Speaker 01:
No, I'm sorry.

[00:27:52] Speaker 03:
All right.

[00:27:53] Speaker 03:
Thank you.

[00:27:53] Speaker 03:
Mr. Milch, you have your rebuttal time.

[00:27:57] Speaker 00:
Thank you, Your Honor.

[00:27:58] Speaker 00:
Just to address a couple of points, the question Judge O'Malley asking, you know, where would you use triangulation versus pulses?

[00:28:05] Speaker 00:
And it's close-up distances versus far away.

[00:28:08] Speaker 00:
And this is the real problem with the construction.

[00:28:10] Speaker 00:
The claims, they're written, the way they're written now, they don't limit based on distance.

[00:28:15] Speaker 00:
They don't limit based on inward-facing versus outward-facing.

[00:28:18] Speaker 00:
But the conditional amendment, that would have narrowed the claim to be outward-facing.

[00:28:21] Speaker 00:
It would have changed the claim.

[00:28:23] Speaker 00:
And they knew how to limit the claim.

[00:28:24] Speaker 00:
They just didn't do it.

[00:28:26] Speaker 00:
the first time around.

[00:28:28] Speaker 00:
We heard a lot about LIDAR for autonomous vehicles, and Mr. Wunders should address that.

[00:28:32] Speaker 00:
But all the claim one requires is two laser emitters, two detectors spinning at a certain speed, 200 RPM.

[00:28:40] Speaker 00:
This doesn't exclude close-up distance measurements.

[00:28:42] Speaker 00:
It doesn't exclude inward-facing measurements.

[00:28:46] Speaker 00:
And the problem is this overly broad claim.

[00:28:48] Speaker 00:
So that's part of the issue that we have with claim construction.

[00:28:53] Speaker 00:
With respect to secondary considerations, the problem is that the PTAP didn't really fully address the unclean features, whether they did it commensurate in scope with what was briefed.

[00:29:03] Speaker 00:
But telling is a couple of things that Mr. Loomis just mentioned.

[00:29:07] Speaker 00:
The critical features of the claim, he mentioned the field of view.

[00:29:12] Speaker 00:
And with respect to the vertical field of view,

[00:29:14] Speaker 00:
That's not even part of claim one.

[00:29:15] Speaker 00:
It only comes into play in dependent claim four.

[00:29:18] Speaker 00:
And it talks about angular separation of the lasers.

[00:29:23] Speaker 00:
But there it says nothing of a wide vertical field of view.

[00:29:26] Speaker 00:
You really only need to look at the claims for the whole thing to make sense.

[00:29:29] Speaker 00:
And the claims are incredibly simple.

[00:29:31] Speaker 00:
But look at the devices.

[00:29:32] Speaker 00:
They're incredibly complex.

[00:29:34] Speaker 00:
They have 64 laser emitter pairs.

[00:29:35] Speaker 00:
The claims call for just two.

[00:29:38] Speaker 00:
They have processors.

[00:29:38] Speaker 00:
They have software, the devices themselves.

[00:29:41] Speaker 00:
But then the board looks at this really broad claim and says, well, it's co-extensive with the product.

[00:29:46] Speaker 00:
It's a really complex product that's supposed to drive your car.

[00:29:49] Speaker 00:
And it doesn't address all of these features that the million points, it requires a point cloud to be sure, but it doesn't require a dense point cloud, just a point cloud.

[00:30:02] Speaker 00:
So while the board concluded their unclaimed features, it didn't find that those features were absolutely required by the claims and it didn't say how they were.

[00:30:10] Speaker 00:
required by the claims and how they were supported if they did.

[00:30:16] Speaker 00:
I'm sorry, do you have a question?

[00:30:20] Speaker 00:
No.

[00:30:22] Speaker 00:
With respect to the Rambus case, again, it was tied to the claim.

[00:30:26] Speaker 00:
The objective evidence, the long felt need, the industry praise, that was related to the, again, specifically to this dual edged data transfer functionality.

[00:30:35] Speaker 00:
And the actual claim language was directed exactly at that.

[00:30:40] Speaker 00:
Here, the claim language isn't directed to the features that are now being heralded as this revolutionary invention, or it were at the time.

[00:30:51] Speaker 00:
And if you look at what Velodyne identified as the critical unclaimed features, again, it's this dense 3D point cloud, 360-degree field of view,

[00:31:02] Speaker 00:
a broad vertical field of view.

[00:31:05] Speaker 00:
Again, none of that is in there.

[00:31:07] Speaker 00:
And when we argued secondary considerations to the board, it was all about the unclaimed features.

[00:31:15] Speaker 00:
That was the point.

[00:31:17] Speaker 00:
So it wasn't that it was left out at all.

[00:31:21] Speaker 00:
And Your Honor, if there are no further questions, I'll yield the remainder of my time.

[00:31:26] Speaker 03:
Right.

[00:31:27] Speaker 03:
I hear no further questions.

[00:31:29] Speaker 03:
Thanks to both counsel.

[00:31:31] Speaker 03:
The case is taken under submission.