[00:00:00] Speaker 05:
is Secure Wave Storage Solutions versus Unified Patents and Micron.

[00:00:06] Speaker 05:
2020, 2244 and 2021, 1194.

[00:00:51] Speaker 05:
Good morning, Mr. Phillips.

[00:00:54] Speaker 03:
Good morning, your honor.

[00:00:55] Speaker 05:
You don't need the mask when arguing.

[00:00:57] Speaker 03:
Thank you, Judge Laurie.

[00:01:01] Speaker 03:
And may it please the court?

[00:01:05] Speaker 03:
If you're ready.

[00:01:06] Speaker 05:
Are you ready?

[00:01:07] Speaker 03:
Excellent.

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We are on appeal here from two IPRs.

[00:01:14] Speaker 03:
In the first, the 501 case arising from unified spetition,

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The board incorrectly construed firmware for reading data from and writing data to the storage medium to include firmware that merely monitors and selectively authorizes the reading or writing of data by another component but does not itself actually read or write the data to or from the storage device.

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In the second case, the 932 case arising from Micron's petition,

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The board should be reversed because the board failed to make factual findings sufficient to support the impatient ability determination.

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No prior art teaches firmware performing the claimed functions.

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And there is simply an absence of any motivation to modify Hamlin, the primary reference, to change its relevant hardware components to be firmware instead.

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Now turning to the claim construction issue in the 501 case, it's undisputed that Rob, its supervisor specifically, does not itself read and write data from or to the storage medium.

[00:02:26] Speaker 04:
What do you mean by itself read or write?

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What concretely are you talking about?

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All of the operations associated with the reading and writing would be performed by the firmware.

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The firmware would issue control signals to, for example, spin the platters, move the disk head, take the data in, decode it, et cetera.

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That has to be performed by the firmware.

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That is what reading and writing data to and from the storage device entails.

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And Rob's supervisor does not do that.

[00:03:05] Speaker 06:
So if you agree with us.

[00:03:06] Speaker 06:
But doesn't reading or writing data on the hard disk, does it then ultimately involve hardware?

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It does, only to the extent that you'd have to have a physical channel from the disk medium, the storage medium, to the firmware.

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But everything else associated with the reading and writing of the data can be performed in firmware.

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And that is the invention of the O2O pattern.

[00:03:32] Speaker 06:
But you can't perform reading and writing data on a hard disk without hardware.

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Well, firmware requires hardware.

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Firmware is software instruction executed on a processor.

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It's not software, it's firmware because it's embedded on non-volatile, non-rideable memory.

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But yes, firmware is always associated with hardware.

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It doesn't exist.

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I was building on the question of just Toronto and what does a term itself mean to you with respect to the other questions I asked you.

[00:04:08] Speaker 03:
Well, it really is to distinguish.

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The key distinction here is between the type of mere monitoring and selective authorization of reading and writing by another component, as opposed to having the firmware do what that other component does, the transfer of the data to and from the storage medium, et cetera.

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That's the distinction.

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And the board's construction is contrary to the plain language of the claim.

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Firmware for reading and writing means that the firmware does the reading and writing.

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And that's how the specification describes the invention.

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For example, the specification describes, quote, firmware 14 that reads and writes data from a data storage portion 16 of the storage device 12.

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The specification never describes firmware that merely acts like a gatekeeper, like Rob's supervisor.

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And having firmware itself do the reading and writing is how the O2O patent enhances security of the data on the disk drive.

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And it does so at the expense of speed of operation of the reading and writing activities.

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And that's a key point of novelty according to Micron's own expert, Dr. Levy.

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He explained the firmware that merely controls another component reading and writing the data was conventional in the art, but firmware that itself does so was not conventional.

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And that's at appendix 3307 and 3308.

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And it's emphasized by Micron in their brief at pages 22 and 33.

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Unified makes two arguments for claim construction that I want to address.

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They say, first of all, that some other component or a user is the ultimate source or destination of the data that is read from or written to the storage medium.

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And they also say that the patent contemplates that conventional protocols can be used to read or write the data.

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But that does not detract from the key fact that is that the firmware itself is the exclusive gateway and path to and from the storage medium, regardless of the ultimate destination of the device.

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And regardless of the fact that the firmware itself uses conventional protocols to do those read and write operations.

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And then finally, on this claim construction issue.

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Where in the specification, if anywhere, is the point that you were making just a moment ago about the security function being better served by this crucial advance that the firmware does the reading and writing itself as opposed to controlling some other component to do it?

[00:07:14] Speaker 03:
I think that's clear from the portion of the specification on column four beginning around line 38 And continuing on to column five in the first couple of paragraphs The specification doesn't explicitly say it in the terms that I just said but I think the concept is is apparent from the approach taught by the specification and

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All right.

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Final point about this claim construction issue before I move to the 932 case.

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And that is that Dr. Levy, Micron's expert, was absolutely right when he said that the 020 patent requires all access

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to the secure data and the authority records to be performed via and brokered by the firmware.

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Not just brokered by the firmware, as in Rob, but performed via the firmware as well.

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And the board credited that testimony in the 932 case.

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But his testimony, I want to read it in its entirety because it speaks directly to what the firmware for reading and writing limitation means.

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He said, firmware for reading and writing, I'm sorry, he said, for the 020 patent to be operable per its written description and for the other claim limitations to be practicable, this limitation that only firmware is permitted to access the secure data must mean simply that all access to the secure data and the authority records is performed via and broken by the firmware.

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And I think he's absolutely right.

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And I think that is dispositive of the claim construction issue.

[00:09:05] Speaker 04:
Can I just ask, what do you make of the column 6, line 55 to 57 reference to reading and writing data to a secured data partition can use conventional read-write mechanisms and protocols?

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Doesn't that run counter to your

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earlier point?

[00:09:28] Speaker 03:
No, not at all.

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Of course, there's going to be a conventional protocol.

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But the question isn't how the data is read and written, but who is performing, who or what is performing the read and write operations.

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Is it firmware?

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Just to get all textual on you, so that's protocol.

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What about mechanisms?

[00:09:49] Speaker 03:
The protocol and mechanisms means the same things here, I believe.

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The patent is very clearly talking about firmware doing the reading and writing and doing it, you know, there's nothing innovative about the way the data is written in red.

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It's by conventional protocols.

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But what is different is that the firmware itself is the agent doing that reading and writing.

[00:10:13] Speaker 03:
Okay, turning to the 932 case.

[00:10:15] Speaker 03:
The board erroneously concluded that Hamlin teaches that his control system 12 and authentication circuitry 14 would contain firmware performing the claimed function.

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Even though Hamlin never says so, no other prior art teaches firmware performing those functions.

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And Micron and Dr. Levy never articulated a motivation to modify Hamlin to make those hardware blocks firmware.

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Now regarding one, I believe that Micron has abandoned its position that Hamlin per se teaches that those blocks are implemented entirely in firmware.

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Regarding to each of Tygar Hamelin to Hamelin three and Friday teach firmware performing other functions Tygar teaches bootstrapping firmware Hamelin to teaches some us unspecified components in a disk drive that are either firmware or integrated circuitry and that's hardware and

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And then Hamlin 3 teaches authentication firmware.

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And Friday teaches a firmware module that operates in the normal manner.

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And what is the normal manner?

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Well, look back at what Dr. Levy said on appendix pages 3307 and 08.

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He said that conventional firmware at the time merely controlled another component to read and write the data, but did not read and write the data itself.

[00:11:46] Speaker 03:
OK, now regarding the motivation to modify Hamlin to implement the hardware blocks 12 and 14 in firmware, look at Dr. Levy's testimony.

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His initial declaration, which is on appendix pages 2897 through 2907, merely argues that those blocks could or can be firmware,

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Not that they are.

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And he said, because firmware is prevalent and commonplace and well understood, that it could be, that it can be.

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But that's not a motivation.

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That's not sufficient.

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There's no mention of any advantage or benefit that would motivate one skill in the art to substitute the hardware taught in Hamlin to be firmware.

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And again, Dr. Levy testified that it was not conventional to have firmware performing these functions.

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The only teaching anywhere in this record of using firmware to do those functions is the 020 patent.

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And that's why any assertion that it would have been obvious in view of Hamlin and these other references is tainted by hindsight.

[00:13:01] Speaker 03:
So with that, unless there are questions, I will reserve the balance of my time for rebuttal.

[00:13:06] Speaker 05:
We will save it for you, Mr. Phillips.

[00:13:14] Speaker 05:
Ms.

[00:13:14] Speaker 05:
Bostwick, good morning.

[00:13:26] Speaker 02:
Thank you, Your Honor.

[00:13:26] Speaker 02:
May it please the court, Mel Bostwick, representing Appellee Micron.

[00:13:30] Speaker 02:
There was a lot of discussion in the opening argument about claim construction.

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I am, of course, happy to address it.

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But as SecureWave implicitly acknowledged, this court can affirm the board's finding of unpatentability as to every claim of the 020 patent without addressing claim construction, and that is because the board made a factual finding in the Micron IPR.

[00:13:51] Speaker 02:
that Hamlin teaches the firmware limitations, Hamlin's control system meets the firmware limitations.

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Even under SecureWave's more narrow claim construction, which would require the firmware itself to perform the read and write functions, SecureWave has not challenged that finding on appeal.

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So I'd like to turn to the substantial evidence supporting that finding.

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This is not a case about motivation to combine.

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I think we know that in part because the first time motivation to combine came up with respect to this issue as opposed to the combination of fishermen.

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was in SecureWave's reply brief to this court.

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Even if that argument were not waived, it has no merit.

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This is not a case where there's something missing from the Hamlin reference and you have to go find it in another place.

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SecureWave said several times that Hamlin's Control System 12 is implemented in hardware and one would have to change that.

[00:14:46] Speaker 02:
There's no support for that.

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I note that counsel did not point your honors to anything in Hamlin itself or elsewhere in the record.

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that suggests that what he did point you to is Dr. Levy's testimony at appendix, I believe it's 3307, and he misstated what it says there.

[00:15:02] Speaker 02:
What Dr. Levy says is that it was conventional to use firmware to control other disk controllers downstream to perform the read and write.

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He does not say it was unconventional to do it directly through the firmware.

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Indeed, he repeatedly testified the opposite.

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And the board credited that testimony.

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So at appendix 54, the board credits Dr. Levy's testimony, quote, that one of ordinary skill in the art would have recognized that the behavior of Hamlin's control system suggests firmware.

[00:15:36] Speaker 02:
There are several bases supporting that finding.

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First, Dr. Levy's unabutted testimony at paragraph 117 of his opening report, this is appendix 2903 to 2904, that a person of ordinary skill

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reading Hamlin and seeing the behavior of the control system 12, specifically the fact that it performed error correction and the fact that it performed memory mapping of logical to physical address blocks, would have understood that you would implement that control system in a processor executing firmware.

[00:16:09] Speaker 02:
There's no response to that that SecureWave has presented either to the board or on appeal.

[00:16:16] Speaker 04:
And is the suggestion that,

[00:16:20] Speaker 02:
He said you would have implemented that meaning Everybody reading it would have understood that everybody Implementing it would do that or something less than the everybody's know that everybody that and that's I don't want to get tripped up in language here Right what what the the effect of dr. Levy's testimony and the board's findings are is that Hamlin teaches firmware because Hamlin conveys to a person of ordinary skill in the art that its control system 12 is

[00:16:50] Speaker 02:
So, again, it does that.

[00:16:55] Speaker 02:
The first way.

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At appendix 55, based on the evidence in this trial, we are persuaded the petitioner has shown sufficiently that the combination of Hamlin, Fisherman, and the knowledge of an ordinarily skilled artisan teaches the claimed firmware.

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There is also, at appendix 57, we determine that petitioner has shown sufficiently that Hamlin teaches the aforementioned firmware limitation recited in claim one.

[00:17:42] Speaker 02:
So again, the first basis on which it does so is just looking at this,

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If I'm a person of ordinary skill in the art in 2001 reading Hamlin, I see here's what the control system does.

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I know it's doing that using firmware.

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Second.

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And that I know comes from Hamlin 2.3 and Friday?

[00:18:01] Speaker 02:
That's the second basis.

[00:18:03] Speaker 02:
But even without getting to Hamlin 2.3 and Friday, the point is within the four corners of Hamlin itself,

[00:18:09] Speaker 02:
The other behaviors that are specifically described would indicate to a person of ordinary skill that that would be done in firmware.

[00:18:17] Speaker 02:
Second is getting to the Hamlin 2, 3, and Friday references, which are not being combined with Hamlin.

[00:18:25] Speaker 02:
And Secure Waves Council actually recognized this.

[00:18:29] Speaker 04:
Can I just ask you one question?

[00:18:30] Speaker 02:
Yes.

[00:18:30] Speaker 04:
Is there any dispute that Friday is prior art?

[00:18:34] Speaker 04:
I don't believe so, Your Honor.

[00:18:36] Speaker 04:
Its filing date seems to be too late.

[00:18:39] Speaker 02:
There's a provisional.

[00:18:41] Speaker 04:
But did you put the provisional in so that one could see whether the relevant content you're relying on is in the provisional and not just in the spec of the issued Friday?

[00:18:53] Speaker 02:
I would have to check on that, but because we're not.

[00:18:57] Speaker 04:
But there wasn't a dispute about this.

[00:18:58] Speaker 02:
There's no dispute.

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And also, it goes back to the nature of how Hamlin 2, Hamlin 3, and Friday are being used in this proceeding.

[00:19:06] Speaker 02:
They're not being used as combination grounds.

[00:19:09] Speaker 02:
It's not you take Hamlin, you add Friday or Hamlin 2 or Hamlin 3, and then you get the claim.

[00:19:16] Speaker 02:
It's in Hamlin.

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And what Dr. Levy is using those additional references for is to explain to you

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that as a person of ordinary skill at the relevant time period, another way they would have known that the control system is implemented in firmware executing on a processor is because that's how everybody, how people did it, right?

[00:19:38] Speaker 02:
And so this is why it's very important to understand that secure wave

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idea that Dr. Levy said it was unconventional to do this.

[00:19:45] Speaker 02:
First of all, the O2O patent doesn't say that firmware was not any part of the prosecution history.

[00:19:49] Speaker 02:
It was not a claimed point of novelty.

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It didn't become a thing until this proceeding.

[00:19:56] Speaker 02:
But Dr. Levy also didn't say that there was anything novel about doing this with firmware.

[00:20:01] Speaker 02:
Instead, what he said is you have these other references, each of which shows a very similar setup to what's depicted in

[00:20:10] Speaker 02:
both Hamlin and the O2O patent, and you have the disk controller in each of them is using firmware.

[00:20:17] Speaker 02:
It's using firmware to perform read and write operations, so there is evidence of that.

[00:20:21] Speaker 02:
And that is in testimony that the board credited by Dr. Levy.

[00:20:26] Speaker 02:
So, for example, Hamlin 2 talks about its secure disk drive 20, says that all the various components of that secure disk drive 20 can be implemented in integrated circuitry or in firmware executed by a microprocessor.

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And as Dr. Levy explains, at appendix 2899, that those components include the data processor 40, and he explains how that data processor 40 is exactly like control system 12 in the regular Hamlin reference, including that it performs the read and write operations.

[00:21:02] Speaker 04:
And when you say by perform, you mean perform under the narrower claim construction that they're seeking?

[00:21:09] Speaker 02:
The board didn't get into that as to Hamlin 2, but I think, yes, it certainly does.

[00:21:15] Speaker 02:
It's showing the direct connection between the data processor 40 and the actual storage medium.

[00:21:21] Speaker 02:
So I think it would, but I want to clear there's not a. I'm sorry?

[00:21:25] Speaker 04:
With no intervening component that might be carrying it out.

[00:21:28] Speaker 02:
Correct, but the critical thing is that Hamlin itself shows that direct connection.

[00:21:32] Speaker 02:
Hamlin 2 is just showing, because the data processor 40 is comparable to the control system 12, you would do that in firmware in both.

[00:21:40] Speaker 02:
Similarly, Hamlin 3, the disk controller is a functional block directly connected to the storage medium.

[00:21:46] Speaker 02:
This is explained at appendix 2901 to 2902 in Dr. Levy's testimony.

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And Hamlin 3, appendix 3108, describes the disk controller performing read, write, and exclusive access.

[00:21:59] Speaker 02:
And then, of course, Friday, you have the Drive Electronics Unit 88, again, in a similar setup.

[00:22:05] Speaker 02:
And Friday, it is providing exclusive access.

[00:22:09] Speaker 02:
There's two channels.

[00:22:10] Speaker 02:
One is allowed to read and write.

[00:22:12] Speaker 02:
One is just allowed to read.

[00:22:14] Speaker 02:
And it is the Drive Electronics Unit 88 that handles that.

[00:22:18] Speaker 02:
And Friday, of course, says that it is the normal manner known to those skilled in the art to use a firmware module to do this.

[00:22:26] Speaker 02:
So that's the second basis on which a person of ordinary skill would understand if I'm going to do Hamlin's control system, I'm going to do it in firmware.

[00:22:34] Speaker 02:
Hamlin is telling me this control system is implemented in firmware.

[00:22:39] Speaker 02:
And the third basis is that Hamlin gives an example of that with its reference to Tygar.

[00:22:44] Speaker 02:
I think this is the sole basis for secure wave suggestion that Hamlin uses hardware by default.

[00:22:52] Speaker 02:
But that's not what it says.

[00:22:53] Speaker 02:
First of all, it's only one example.

[00:22:55] Speaker 02:
But even if that example or embodiment were somehow limiting, Tygar's circuitry is not exclusive of firmware.

[00:23:03] Speaker 02:
In fact, it includes firmware.

[00:23:05] Speaker 02:
And not just in the bootstrap loader,

[00:23:07] Speaker 02:
as SecureWave argues for the first time on appeal.

[00:23:10] Speaker 02:
Rather, again, SecureWave's counsel recognized below, this is at Appendix 2286, that TIDAR has a secure kernel.

[00:23:20] Speaker 02:
And what TIDAR describes at Appendix 3252 is that once the SecureCo processor uses the bootstrap loader, which is in the bootstrap ROM, to verify the secure kernel,

[00:23:32] Speaker 02:
It then passes control to that secure kernel, which is also stored in non-volatile memory, secure non-volatile memory, which is all the board's construction requires.

[00:23:41] Speaker 02:
The board's construction of firmware does not require non-writable memory, to be clear.

[00:23:47] Speaker 02:
And Secure Waves Council admitted at the hearing below that that secure kernel, which is firmware, is performing tasks well beyond what a bootstrap loader would do.

[00:23:58] Speaker 02:
In TIGAR, admittedly, it's performing tasks like resource management, communications, encryption services, and that's because TIGAR is specifically about e-commerce applications.

[00:24:11] Speaker 02:
But Hamlin, by incorporating that by reference and saying...

[00:24:16] Speaker 04:
Would the security aim of this patent be satisfied by a writable set of instructions in a non-volatile memory?

[00:24:31] Speaker 02:
Yes, absolutely.

[00:24:32] Speaker 02:
In fact, the O2O patent talks repeatedly about writable firmware.

[00:24:36] Speaker 02:
And there are claims at issue in this proceeding that do not require non-writable firmware.

[00:24:42] Speaker 02:
That's a separate limitation of, for example, dependent claim six.

[00:24:45] Speaker 02:
So yes, writable firmware, the O2O patent draws no distinction.

[00:24:50] Speaker 02:
Certainly, you have to control what can write and modify the firmware, but it can indeed be writable.

[00:24:57] Speaker 02:
So we have the three grounds.

[00:24:59] Speaker 02:
not grounds, excuse me, three bases on which to find that Hamlin teaches a control system using firmware executed on a processor that performs, undisputedly performs all of the claim limitations that the firmware must perform.

[00:25:16] Speaker 02:
There is no need for a further finding of a motivation.

[00:25:19] Speaker 02:
But if there were, it would be found in the board's recognition that the behavior of the control system suggests using firmware.

[00:25:28] Speaker 02:
And in, for example, Hamlin 3, which talks about the benefit of a firmware implementation that makes it less susceptible to virus attacks.

[00:25:38] Speaker 02:
Unless the court has questions, I'll turn to my co-counsel.

[00:25:40] Speaker 05:
Thank you, Ms.

[00:25:41] Speaker 05:
Postwick.

[00:25:43] Speaker 05:
Mr. Sommer has three minutes.

[00:25:55] Speaker 05:
That's called musical chairs without the music.

[00:26:02] Speaker 00:
May it please the court?

[00:26:03] Speaker 00:
Andrew Sommer on behalf of Unified Patents.

[00:26:05] Speaker 00:
I'd just like to speak briefly to the claim construction issue and why we don't think it really matters in this appeal.

[00:26:12] Speaker 00:
Specifically, I heard counsel for appellants say that the firm was responsible for spinning the disk and decoding data.

[00:26:20] Speaker 00:
And I looked at the passages that he cites to say that they support that conclusion.

[00:26:25] Speaker 00:
Well, we don't see any of that in the specification of the 020 patent, that the firmware must spin up the disk.

[00:26:31] Speaker 00:
Obviously, there's a disk controller that's doing some of this.

[00:26:36] Speaker 00:
And that's part of the admission that they made, that it's not the firmware itself that has to do it all.

[00:26:42] Speaker 00:
It doesn't have to be exclusively responsible for performing this.

[00:26:45] Speaker 00:
If you look at the passages that were cited at the bottom of column four of the 020 patent, they say that data can't be transferred except for in connection with the firmware.

[00:26:56] Speaker 00:
They go on to say that firmware can access and otherwise manipulate the data.

[00:27:01] Speaker 00:
Well, that's exactly what Rob does.

[00:27:03] Speaker 00:
Rob at column nine, page 827 of the appendix, provides an embodiment in which the host doesn't know of the location on the disk bladders.

[00:27:14] Speaker 00:
It doesn't have the addresses.

[00:27:15] Speaker 00:
To the host, they don't exist.

[00:27:18] Speaker 00:
And so what happens in that particular embodiment is the firmware

[00:27:22] Speaker 00:
gets the request, says, oh, that's for the secret area, and then looks to that particular area that the computer has no idea about to pull the secure data off.

[00:27:32] Speaker 00:
And that's at column 9, lines 22 to 26.

[00:27:36] Speaker 00:
We think that that's dispositive in this particular appeal.

[00:27:39] Speaker 00:
Rob is for reading and for writing to the secure area of the memory.

[00:27:48] Speaker 00:
Now, I don't believe counsel addressed the other points that were raised in the briefing.

[00:27:52] Speaker 06:
You're referring to Rob disclosing the storage device for a host computer system?

[00:27:59] Speaker 00:
Yes, Your Honor.

[00:28:04] Speaker 00:
Council for SecureWave didn't address the two other issues that are raised in the briefing as to unified patents.

[00:28:09] Speaker 00:
I'm happy to take any questions if there are any.

[00:28:12] Speaker 00:
But otherwise, I'll cede the time.

[00:28:15] Speaker 05:
Thank you, Mr. Summer.

[00:28:17] Speaker 05:
Is Ms.

[00:28:18] Speaker 05:
Neumeister here?

[00:28:34] Speaker 05:
Speaking for the government.

[00:28:37] Speaker 01:
Yes.

[00:28:38] Speaker 01:
Thank you, Your Honor.

[00:28:38] Speaker 01:
May it please the court, McCain-Neumeister for the government.

[00:28:41] Speaker 01:
The government intervened in this appeal to respond to two constitutional arguments raised by SecureWave.

[00:28:46] Speaker 01:
SecureWave subsequently withdrew its appointment clause challenge in the wake of the Supreme Court's decision in Arthrex, and this court resolved the other challenge in the decision in Mobility Works, holding that the funding and compensation structure of the Patent Trial and Appeal Board does not violate due process.

[00:29:02] Speaker 01:
Now, that decision should dispose of the constitutional issues in this case, but I'm happy to answer any questions the court may have.

[00:29:10] Speaker 05:
I guess not.

[00:29:11] Speaker 05:
Thank you, Ms.

[00:29:12] Speaker 05:
Neumeister.

[00:29:12] Speaker 01:
Thank you, Your Honor.

[00:29:17] Speaker 04:
Next time may be more challenging.

[00:29:23] Speaker 05:
Mr. Phillips has 2 and 3 quarter minutes.

[00:29:27] Speaker 05:
You're welcome.

[00:29:28] Speaker 03:
Thank you, Your Honor.

[00:29:29] Speaker 03:
I'll address the last point first.

[00:29:31] Speaker 03:
That is correct.

[00:29:31] Speaker 03:
We have withdrawn our Arthrex challenge, and we agree that our structural bias argument is foreclosed by Mobility Works.

[00:29:40] Speaker 03:
I do want to address the comment that Hamlin teaches firmware performing the claimed functions.

[00:29:51] Speaker 03:
It does not.

[00:29:51] Speaker 03:
There is no mention whatsoever of firmware.

[00:29:54] Speaker 04:
But do you understand the board to have found that it does?

[00:29:59] Speaker 03:
The board's opinion is very confusing in this respect, Your Honor.

[00:30:03] Speaker 03:
I mean, sometimes the board on the pages counsel cited

[00:30:07] Speaker 03:
says Hamlin teaches the firmware.

[00:30:10] Speaker 03:
Sometimes it says Hamlin in view of the knowledge of when skilled in the art teaches.

[00:30:16] Speaker 03:
And now sentences like the latter leave open the possibility that the board was relying on some other document, like Tygar, Hamlin 2, Hamlin 3, or Friday.

[00:30:25] Speaker 03:
It's very unclear.

[00:30:28] Speaker 03:
And that's why I want to address the waiver issue.

[00:30:31] Speaker 03:
I mean, I think that the gist of the board's decision was that Hamlin discloses the firmware.

[00:30:40] Speaker 03:
And for the first time in the Micron brief was,

[00:30:45] Speaker 03:
I think that the micron taking the position, oh no, it would have been obvious to substitute those two hardware blocks to be firmware instead.

[00:30:54] Speaker 03:
And therefore, in our reply brief, we addressed the motivation.

[00:30:58] Speaker 03:
They raised that issue.

[00:31:01] Speaker 03:
So I don't think it's waived.

[00:31:03] Speaker 03:
OK, a couple quick points.

[00:31:04] Speaker 03:
Returning to Hamlin, it absolutely needs the TIGAR teachings.

[00:31:09] Speaker 06:
Is this your argument that the board did not credit Levy's testimony?

[00:31:14] Speaker 03:
The board did credit Dr. Levy's testimony, but Dr. Levy's testimony is not supported by what the references actually say.

[00:31:23] Speaker 03:
None of the references teach firmware performing the claimed functions, not Hamlin.

[00:31:28] Speaker 03:
Tygar, which is incorporated by reference into Hamlin,

[00:31:31] Speaker 03:
does teach a limited use of firmware, but that's only for bootstrapping.

[00:31:37] Speaker 03:
The secure kernel in TIGAR is not in wrong.

[00:31:42] Speaker 03:
It's not in firmware.

[00:31:44] Speaker 03:
It is in other non-volatile memory that contains software.

[00:31:48] Speaker 03:
And the board's construction of firmware in this case made it clear that the firmware, according to the challenge claims, must be non-writeable.

[00:31:58] Speaker 03:
And I know there's disclosure in the patent about writable and non-writable firmware, but it was not contested below that the firmware, as claimed, is non-writable.

[00:32:08] Speaker 03:
And there's no disclosure in Tygar that his non-volatile memory is non-writable.

[00:32:14] Speaker 03:
He doesn't say so, but he doesn't call it wrong.

[00:32:17] Speaker 03:
It's not firmware.

[00:32:19] Speaker 03:
I'm out of time, unless you have other questions.

[00:32:23] Speaker 05:
Thank you, Mr. Phillips.

[00:32:24] Speaker 05:
We will take the case under submission.

[00:32:26] Speaker 03:
Thank you, Your Honor.