[00:00:11] Speaker 00:
Our next case is Sirius XM Radio versus Frauenhofer, Gesellschaft 2020-2319.

[00:00:21] Speaker 00:
Mr. Bagdasarian, good morning.

[00:00:23] Speaker 05:
Good morning, Your Honor.

[00:00:24] Speaker 05:
It's Mark Bagdasarian on behalf of Appellant Sirius XM.

[00:00:28] Speaker 05:
I may please the Court.

[00:00:30] Speaker 05:
Your Honor, the Board committed multiple legal errors on several fronts in this case.

[00:00:38] Speaker 05:
That legal error begins with the board's failure to consider the state of the art that was clearly presented in the petition, which included prior art and, in fact, admissions from the 289 patent that clearly showed that the satellite transmission limitations were in the prior art.

[00:01:01] Speaker 05:
In fact, the first page of our petition says, and this is the appendix 94, each independent claim requires sending or receiving data over two communication channels in order to obtain time and space diversity, which are well-known techniques for reducing channel fading.

[00:01:18] Speaker 05:
Those are the satellite transmission limitations.

[00:01:20] Speaker 05:
Through our petition, we show not only through the admissions in the state-of-the-art section of the challenge patent itself, but through other references as well, including the Yi reference.

[00:01:31] Speaker 05:
We did that in our petition.

[00:01:32] Speaker 05:
In fact, at the institution phase, the board recognized that, in fact, we did that and explicitly said, and this is at appendix 472 and 473, quote, Dr. Lyon also relies on the teachings of Yi to show that implementing code diversity in a transmission architecture

[00:01:50] Speaker 05:
that achieve space and time diversity was within the level of ordinary skill in the art and would have been constructed without undue experimentation.

[00:01:58] Speaker 05:
But what the board did here when it got to our reply, it said our reply was untimely.

[00:02:05] Speaker 05:
And I'll address that in a moment.

[00:02:07] Speaker 05:
But it didn't go back and look at the petition and the state of the art and background that was presented in the petition.

[00:02:13] Speaker 05:
And that clearly violates this court's precedent in connection with Randall, Arioso, and Phillips.

[00:02:20] Speaker 05:
But most notably, another error by the board here was not following this court's guidance in Erickson, which we respectfully submit is not only on all fours with the circumstances here, but it's actually an easier case than the Erickson case was.

[00:02:37] Speaker 05:
And the reason for that, Your Honor, one of the biggest debates that we've seen from that briefing, from that oral argument, was whether the petition

[00:02:46] Speaker 05:
which was based on admissions in the challenge patent and elsewhere, whether Erickson had to tweak that argument and could extend that argument from the argument made in the petition.

[00:02:57] Speaker 05:
Here, we don't have that situation.

[00:03:00] Speaker 05:
We have the identical arguments being made in the petition and being made in our reply brief.

[00:03:05] Speaker 05:
There was no difference.

[00:03:07] Speaker 05:
And the reason you know that is on pages 17 to 20 of the blue brief,

[00:03:12] Speaker 05:
We presented a table for this court's reference, and it shows each of these satellite transmission limitations were clearly disclosed and argued in our petition.

[00:03:22] Speaker 05:
You don't need to go elsewhere.

[00:03:24] Speaker 05:
We did the same thing for the board below.

[00:03:28] Speaker 03:
What the board did was say... What is the prior order that disclosed this?

[00:03:32] Speaker 03:
I'm sorry, I didn't hear.

[00:03:32] Speaker 03:
What is the prior art that disclosed this?

[00:03:35] Speaker 05:
The prior art that disclosed this is on multiple fronts, Your Honor.

[00:03:39] Speaker 05:
One, the admissions in the 289 patent itself.

[00:03:43] Speaker 05:
The 289 patent, as we presented in the petition and in the briefing to this court, has a section calling state of the art.

[00:03:50] Speaker 05:
And it explicitly references Figure 7.

[00:03:53] Speaker 05:
Figure seven alone and the corresponding description that we identified in our petition shows each of the satellite transmission limitations there.

[00:04:01] Speaker 05:
So that's one significant.

[00:04:02] Speaker 05:
Those are the admissions.

[00:04:04] Speaker 05:
Number two, there was the ye reference that we referenced in our petition and presented to this court.

[00:04:10] Speaker 05:
That was what the board relied on at the institution phase to show not only are the satellite transmission limitations there, they are using combination with the code diversity scheme

[00:04:21] Speaker 05:
that Fraunhofer claims is the inventive aspect here.

[00:04:24] Speaker 05:
That's the second point.

[00:04:26] Speaker 05:
The third point of prior art that was disclosed in the petition, and this is undisputed, is the Scalar reference.

[00:04:32] Speaker 05:
And the Scalar reference talks about the Reed-Solomon and the Viterbi decoders.

[00:04:40] Speaker 05:
Again, those are technically not part of the satellite transmission limitations, but again, they're all in there.

[00:04:44] Speaker 05:
But Your Honor, I think that answers your question.

[00:04:46] Speaker 05:
that was all in the petition.

[00:04:48] Speaker 05:
And we summarized that not only for this court, but for the board.

[00:04:52] Speaker 05:
What the board said is, well, once Campanella goes away, it is necessarily new.

[00:04:58] Speaker 05:
Well, we think that that is legal error, because that actually flies in the face of Erickson.

[00:05:03] Speaker 05:
Because Erickson had the same situation where the read reference fell out as one of the enumerated references.

[00:05:12] Speaker 05:
And ultimately, the board said, well, we don't have to do anymore.

[00:05:15] Speaker 05:
This court's president requires the board to do more.

[00:05:18] Speaker 05:
It requires it to do more in connection with Randall Arioso and those lines of cases.

[00:05:24] Speaker 05:
It also is required to do more.

[00:05:26] Speaker 04:
Where did you argue in the petition that this limitation was disclosed in general knowledge in the prior art?

[00:05:34] Speaker 05:
Actually, the starting point, Your Honor, is the first page of the petition at Appendix 94.

[00:05:40] Speaker 05:
where we said each independent claim requires sending or receiving data over two communication channels in order to obtain time and space diversity, which are well-known techniques for reducing channel fading.

[00:05:52] Speaker 05:
That's the starting point for it.

[00:05:54] Speaker 05:
I'll give you a chance to turn to Appendix 94.

[00:05:56] Speaker 01:
Mr. Bagenarian, the place you just referenced is just a general introduction.

[00:06:10] Speaker 01:
But it seemed to me that I don't find any place in your petition where you specifically set forth as a ground for unfathomability over Chen alone, or Chen with general knowledge.

[00:06:29] Speaker 05:
Your honor, I'm going to address both questions.

[00:06:32] Speaker 05:
So the petition and the background presented in the petition regarding the state of the art necessarily applies to all the grounds there.

[00:06:40] Speaker 05:
It frames the grounds that are ultimately being argued.

[00:06:44] Speaker 04:
And the general language... Is there something more specific with respect to general knowledge disclosing this?

[00:06:52] Speaker 04:
or channel one disposal?

[00:06:54] Speaker 05:
It's the state of the art that discloses satellite transmission limitations, which when used in combination with... Okay, so where did you argue that in the petition?

[00:07:03] Speaker 05:
And so it started at 94, and if you go to appendix 100 to 101, that's when we get into, for example, the emissions from the 289 patent themselves.

[00:07:14] Speaker 05:
And I'll give you a moment to get to appendix 100.

[00:07:18] Speaker 05:
Yeah, go ahead.

[00:07:19] Speaker 05:
And at Appendix 100, you'll see in 101, you'll see there's reference to and a discussion of Figure 7 as compared to Figure 2.

[00:07:28] Speaker 05:
Figure 7 is what the 289 patented NITS is in the prior art.

[00:07:33] Speaker 05:
They describe that as the state of the art.

[00:07:35] Speaker 05:
That's where we presented and argued that point.

[00:07:38] Speaker 05:
And that was ultimately cumulative to Campanella here.

[00:07:42] Speaker 05:
Those are very specific disclosures from the 289 patent itself.

[00:07:48] Speaker 05:
That's one example.

[00:07:51] Speaker 05:
If you go to appendix 117, again, there is discussion of the ye reference that I referred to earlier, which is what the board relied upon in their institution decision to basically say, the satellite transmission limitations in combination with code diversity, we satisfied the threshold to grant institution.

[00:08:19] Speaker 05:
So the legal error here is the board not going back and saying, well, once Campanella goes out, their job is over.

[00:08:29] Speaker 05:
And we believe this course president says you need to do more.

[00:08:33] Speaker 05:
Erickson, as I mentioned before, is on all fours here, but it's actually an easier case.

[00:08:37] Speaker 05:
Because Erickson actually had to tweak some of the arguments they made when the read reference fell out.

[00:08:42] Speaker 05:
We're not tweaking an argument.

[00:08:44] Speaker 05:
We're presenting the same argument

[00:08:46] Speaker 05:
that was made in the petition.

[00:08:47] Speaker 05:
And we summarize those arguments in the table between pages 17 and 20 of our opening brief.

[00:08:58] Speaker 05:
There's nothing new here.

[00:09:01] Speaker 05:
One of the points that the board had raised was the Phyllis P. Google case and said, well, this is necessarily a new ground.

[00:09:13] Speaker 05:
We respectfully believe the board misread the Phyllis P. Google case, which involved a situation where the board on its own accord

[00:09:23] Speaker 05:
came up with its own ground for institution.

[00:09:26] Speaker 05:
That's not the situation here.

[00:09:28] Speaker 05:
We have an already instituted ground.

[00:09:30] Speaker 05:
And the analogy I can give to this court is we have A plus B plus state of the art.

[00:09:35] Speaker 05:
And that's an obviousness ground.

[00:09:37] Speaker 05:
If after institution, A goes away, but B plus the state of the art still renders the challenge claims obvious, well, then there's nothing new there.

[00:09:47] Speaker 04:
Yeah, but you have to still argue it.

[00:09:49] Speaker 05:
Well, respectfully, I believe we did argue that.

[00:09:53] Speaker 05:
I think the state of the art, the admissions in the 289 patent coupled with the disclosure that we made certainly did make that argument.

[00:10:08] Speaker 05:
Your Honor, if I may, I'll reverse the balance of my time for rebuttal.

[00:10:13] Speaker 00:
We will save it for you.

[00:10:14] Speaker 05:
Thank you.

[00:10:16] Speaker 00:
Mr. McPhee.

[00:10:36] Speaker 02:
Good morning, and may it please the Court.

[00:10:39] Speaker 04:
Did they argue it in the petition?

[00:10:41] Speaker 02:
They certainly did not.

[00:10:43] Speaker 02:
You can sit down with that petition and look all day long.

[00:10:46] Speaker 02:
What they argued in the petition was Chen plus Campanella among the small comb combinations, which were separately addressed.

[00:10:54] Speaker 02:
Chen plus Campanella.

[00:10:56] Speaker 02:
And multiple elements in multiple claims, the exclusive place they looked to to satisfy those elements was Campanella.

[00:11:06] Speaker 02:
there was no alternative ground presented in the petition at all.

[00:11:10] Speaker 02:
So when Mr. Bagnusarian says that what they presented was A plus B plus state of the art, and now just B is dropping out, that simply isn't true.

[00:11:20] Speaker 02:
What they presented was A plus B. There was no argument presented whatsoever in the petition in terms of what the petition requires, which is an element by element, a careful analysis,

[00:11:33] Speaker 02:
identifying and matching specific elements with specific disclosures, whether we're talking about AAPA or Yi or Sklar.

[00:11:43] Speaker 02:
Instead, what you have is a petition that relied exclusively on Campanella for multiple elements.

[00:11:51] Speaker 02:
And when that turned out to be error and Campanella was not prior art,

[00:11:57] Speaker 02:
SiriusXM was left to scramble and try to find pieces of other bits of references in the petition to try to cobble together something that they could claim demonstrated elements.

[00:12:11] Speaker 02:
The problem is that, as you saw, the particular pages that Mr. Bagdasserian pointed to were describing things at a very, very high level.

[00:12:21] Speaker 02:
statements such as, well, the AAPA shows that spatial diversity exists.

[00:12:27] Speaker 02:
Well, the elements for which Campanella was relied upon are much more specific than simply some vague idea of spatial diversity.

[00:12:35] Speaker 02:
And as patent lawyers know, the devil is in the details.

[00:12:39] Speaker 02:
And when you look at these general references now to what SiriusXM describes as the satellite transmission elements, those are elements K and M and Q, to say that those were somehow identified as such in the petition with respect to other elements or other prior art, it's simply not there at all.

[00:13:02] Speaker 02:
And I should say also that the missing claims

[00:13:05] Speaker 02:
the missing claim elements go far beyond just the satellite transmission elements.

[00:13:10] Speaker 02:
And you can go and you can see that those elements are listed in some detail, pages 52 and 53 of the Fraunhofer brief.

[00:13:20] Speaker 02:
And so we think that the board was correct in rejecting all of the proposed grounds of unpatentability in the petition, but they were also within their discretion, well within their discretion,

[00:13:33] Speaker 02:
in declining to allow SiriusXM to fundamentally rewrite its case at the reply stage.

[00:13:40] Speaker 02:
And I'll point out it too, this decision of the board can be affirmed on a number of independent grounds.

[00:13:47] Speaker 02:
This court has held that the board can properly set aside a reply in the IPR proceeding if it contains any improper new matter.

[00:13:59] Speaker 02:
There's no obligation for the board to sift through a reply to try to sort out the good from the bad.

[00:14:05] Speaker 02:
Well, in this case, Sirius XM has admitted in the oral hearing

[00:14:12] Speaker 02:
But there were new issues presented in the reply.

[00:14:16] Speaker 02:
They admitted that the original petition did not address the 102E interpretation issue.

[00:14:21] Speaker 02:
That's at Appendix 857.

[00:14:24] Speaker 02:
They admitted that SiriusXM did not even attempt to argue that Campanella could claim priority to its provisional application.

[00:14:31] Speaker 02:
That was Appendix 853.

[00:14:34] Speaker 02:
And now in its reply on appeal,

[00:14:36] Speaker 02:
on the issue of small com and Campanella provisional applications, whether they provided written description support.

[00:14:42] Speaker 02:
Again, SiriusXM concedes that this was not established in the petition.

[00:14:47] Speaker 02:
So all of these are new issues that you see in the reply that was presented in the IPR proceedings.

[00:14:54] Speaker 02:
But if even one of them were new, even one of them, that would be sufficient to trigger the rule.

[00:15:04] Speaker 02:
I want to go to the case law, which we think actually proves this point.

[00:15:10] Speaker 02:
The Henny Penny case is one example.

[00:15:13] Speaker 02:
Henny Penny was a case where there was a single obviousness theory presented in the petition, a combination with Kaufman and Iwaguchi.

[00:15:22] Speaker 02:
And there was a combination of those two references with certain components, for example, a sensor and a processor from Iwaguchi that got brought into Kaufman.

[00:15:31] Speaker 02:
In the reply, the petitioner in that case

[00:15:34] Speaker 02:
made a modification and said, well, you could take that same combination, that same theory, the same two references, but there's actually also a disclosure in Kaufman of the sensor as well.

[00:15:47] Speaker 02:
So you can get the sensor from either of those two places.

[00:15:50] Speaker 02:
And the court said that that was not acceptable, even with the same two references, the same basic theory that moving the identification of an element from one place to another made it a new issue on the reply, something that should have been presented in the petition, something that could have been presented in the petition, but was not.

[00:16:12] Speaker 02:
And so that the board was within its discretion to decline to entertain that new theory in the reply.

[00:16:19] Speaker 02:
Wasikov finance is a similar case, a reference that was clearly in the petition.

[00:16:26] Speaker 02:
It was clearly in the reply, but because the petitioner changed where the element was identified in that piece of prior art, this court found that that was within the board's discretion to decline, to entertain that in the IPR proceedings.

[00:16:42] Speaker 02:
And I think the M modal case in particular is a striking example.

[00:16:47] Speaker 02:
It's very similar to what we have here.

[00:16:49] Speaker 02:
That's a case where the reference Terra was relied upon in the petition, then relied upon again in the reply IPR proceedings, but a different piece of it with a different spin.

[00:17:03] Speaker 02:
And the board found that this came too late.

[00:17:05] Speaker 02:
And this court found that declining to entertain that theory was a proper exercise of discretion.

[00:17:12] Speaker 02:
And if you look at that opinion, it's interesting.

[00:17:15] Speaker 02:
The court made the point, this court made the point, that yes, the board might have been able to go and hunt through the petition and look for a piece here in the background section or a mention over here on some other element, that you might have been able to try to find bits and pieces and cobble something together.

[00:17:34] Speaker 02:
But that's simply not the standard.

[00:17:36] Speaker 02:
That's not what we ask the board to do.

[00:17:39] Speaker 02:
What was the board allowed to do?

[00:17:41] Speaker 02:
Well, they were allowed to go to the section of the IPR petition that addressed the element in question.

[00:17:47] Speaker 02:
And if the board goes to the section of the IPR petition that addresses the element in question and doesn't find that subject matter there, well, this court said that was a proper exercise of discretion.

[00:17:58] Speaker 02:
If you didn't call it out in the petition, we're not going to hear you say that it was something you could use on reply.

[00:18:06] Speaker 02:
The Erickson decision,

[00:18:07] Speaker 02:
that a council mentioned is a very different situation.

[00:18:12] Speaker 02:
First of all, it itself described it as a special case because that was a situation where claim construction was started at one place and then partway through the IPR proceedings, both parties and the board decided that the claim construction was wrong and a different construction should be used.

[00:18:30] Speaker 02:
So there's already a significant change in those proceedings.

[00:18:33] Speaker 02:
But the more important point

[00:18:35] Speaker 02:
More important distinguishing element of Erickson is this.

[00:18:38] Speaker 02:
In Erickson, the petition expressly contemplated that a particular element was disclosed in the read reference.

[00:18:47] Speaker 02:
This is on page 1380 of Erickson.

[00:18:50] Speaker 02:
The petition expressly contemplated the possibility to the extent that interleaving can also be considered encoding packets into blocks.

[00:18:59] Speaker 02:
This is also disclosed by read.

[00:19:03] Speaker 02:
That was the petition.

[00:19:05] Speaker 02:
The reply also looked to Reed for that element.

[00:19:10] Speaker 02:
The same portion of Reed, the same element.

[00:19:13] Speaker 02:
So there was no changing of position from the petition and the reply.

[00:19:19] Speaker 02:
All that was added in the reply was additional information about how one of ordinary skill in the art would have understood that disclosure from Reed.

[00:19:29] Speaker 02:
So,

[00:19:30] Speaker 02:
That is a completely different situation from what we have here, where between the petition and the reply, SiriusXM is now going to completely different sources to satisfy elements, sources that were not identified as disclosing those elements anywhere in the petition.

[00:19:50] Speaker 02:
The other case that SiriusXM relies on is the Lone Star case.

[00:19:54] Speaker 02:
And again, that's

[00:19:56] Speaker 02:
a non-precedential case, the petition disclosed a single ground with two theories, a combination of two references, but there were two theories within that proposed ground.

[00:20:08] Speaker 02:
One of the two theories said, if you don't find this element in such-and-such reference, you could find it in the background understanding of those of ordinary skill.

[00:20:18] Speaker 02:
So again, the argument was made express in the petition itself.

[00:20:23] Speaker 02:
Contrast that with this case.

[00:20:24] Speaker 02:
At no point do you see Sirius XM saying, this element is found in Campanella.

[00:20:31] Speaker 02:
But if not, as an alternative, you could find it over here in a different reference.

[00:20:37] Speaker 02:
Nor do they ever say anywhere in the petition that Campanella is somehow a stand-in or representative of all understanding of those with background, knowledge, or ordinary skill.

[00:20:47] Speaker 02:
They simply don't make that argument at all.

[00:20:49] Speaker 02:
The focus was on Campanella.

[00:20:51] Speaker 02:
and Campanella alone to satisfy those elements.

[00:20:57] Speaker 02:
I don't know if the court has any questions about the provisional application issues of the statutory interpretation issue on 102E.

[00:21:04] Speaker 02:
Again, neither of those were addressed in the petition.

[00:21:08] Speaker 02:
We think the MPEP interpretation that has existed for decades is sound.

[00:21:16] Speaker 02:
I guess I'll just conclude with, if there are no other questions, just with

[00:21:20] Speaker 02:
a policy point, which is this.

[00:21:23] Speaker 02:
If what Sirius XM is saying is the rule should in fact be endorsed by this court, it will fundamentally change IPR practice.

[00:21:35] Speaker 02:
Why?

[00:21:36] Speaker 02:
Because what you're going to have is then an extraordinary incentive

[00:21:42] Speaker 02:
for petitioners, when they present their petition, to put in a library.

[00:21:47] Speaker 02:
Put in reference after reference after reference.

[00:21:49] Speaker 02:
Just jam it all into the background section of your petition.

[00:21:54] Speaker 00:
That would be serious.

[00:21:57] Speaker 02:
This would be serious indeed, yes.

[00:21:58] Speaker 02:
And this is serious's argument.

[00:22:02] Speaker 02:
Can you imagine

[00:22:03] Speaker 02:
what that would do.

[00:22:05] Speaker 02:
It would essentially mean that anytime as a petitioner, you go in and you find out that you're missing an element or two, well, on reply, you just go digging through your library and say, well, you can find it here or there or there.

[00:22:18] Speaker 02:
And so the reply would become the main act.

[00:22:21] Speaker 02:
The petition would be the dress rehearsal.

[00:22:24] Speaker 02:
And if you can imagine the impact that would have on an already significantly overburdened agency,

[00:22:31] Speaker 02:
as they're trying to deal with these IPR petitions.

[00:22:34] Speaker 02:
It's just contrary to the entire point of IPR proceedings to have a streamlined, focused proceeding that is defined by the petition.

[00:22:44] Speaker 02:
And you see that again and again in the decisions of this court.

[00:22:48] Speaker 02:
We'd ask that you follow those decisions and affirm the board's decision.

[00:22:54] Speaker 00:
Thank you, counsel.

[00:22:55] Speaker 00:
Thank you.

[00:22:56] Speaker 00:
Mr. Thajusarian has some rebuttal time.

[00:23:02] Speaker 05:
Thank you, your honor.

[00:23:04] Speaker 05:
Just a couple of points.

[00:23:06] Speaker 05:
Starting with Erickson and the circumstances in Erickson, and we don't believe Erickson could have turned out the way it did, because counsels arguments effectively if your state of the art is not presented in your element by element analysis and, for example, claim charts at the end of the petition, well, that necessarily means you did not argue the point.

[00:23:29] Speaker 05:
We fundamentally disagree with that point.

[00:23:32] Speaker 05:
We don't think that's the situation in Erickson.

[00:23:34] Speaker 05:
We believe this court's case law requires the board to consider the state of the art, in particular, admissions made by the patentee in the very challenged patent, that they are there.

[00:23:46] Speaker 05:
We have that exact situation here.

[00:23:48] Speaker 05:
And by way of example, and we've laid it out in our table, figure seven alone, figure seven alone, as we presented in the petition, shows each one of the satellite transmission limitations.

[00:24:00] Speaker 05:
When counsel stands before you and says, well, no, they did not present that to you, the portion that he can only be referring to is at the end of the petition on the element by element analysis.

[00:24:14] Speaker 05:
He completely ignores that the state of the art as presented in the front of the petition necessarily showed that.

[00:24:21] Speaker 05:
And in fact, as I mentioned before, the board specifically relied on that state of the art as part of the institution.

[00:24:29] Speaker 05:
And then ultimately, when we got into the proceedings, ignored that very finding that it found at the institution phase.

[00:24:35] Speaker 05:
So the board's very decision recognizes that the state of the art that we presented in the petition included argument about the satellite transmission limitations.

[00:24:47] Speaker 05:
By the board's very actions, you cannot conclude that we did not argue that.

[00:24:51] Speaker 05:
Otherwise, the board and its institution decision would not have made the reference to Yi that I talked about that was necessarily informed

[00:24:59] Speaker 05:
by figure seven here in the patent.

[00:25:03] Speaker 05:
And in the Erickson situation, it wasn't presented in the element by element analysis.

[00:25:09] Speaker 05:
There were changed circumstances there.

[00:25:11] Speaker 05:
There was a claim construction that changed it.

[00:25:13] Speaker 05:
Now Reed, which was one of the two grounds of the enumerator reference, fell out.

[00:25:19] Speaker 05:
So what came in to fill in the gap there?

[00:25:22] Speaker 05:
Well, it was the cumulative evidence presented in the petition.

[00:25:26] Speaker 05:
We have that same exact situation here.

[00:25:29] Speaker 05:
Campanella fell out, and we disagree for the reasons we've articulated in our briefing.

[00:25:35] Speaker 05:
But once that fell out, if we had nothing else, well, then counsel is right.

[00:25:40] Speaker 05:
But we did have.

[00:25:41] Speaker 05:
We had a lot more in our petition.

[00:25:43] Speaker 05:
And we've summarized that in the tables.

[00:25:45] Speaker 05:
Once we have those arguments in the petition, the board is required under this court's case law to consider those arguments.

[00:25:53] Speaker 05:
And once it determined Campanella fell out, that was the end of the inquiry for the board.

[00:26:00] Speaker 05:
This court's case law requires the board to do more.

[00:26:04] Speaker 05:
A quick point on the board's discretion on our reply brief.

[00:26:10] Speaker 05:
What I didn't hear counsel say is the board went through a reply point by point by point.

[00:26:19] Speaker 05:
And they disagreed with us on this point, but nowhere did they say in their final written decision that because they found one thing new, that they were going to disregard everything else.

[00:26:30] Speaker 05:
There's a reference to that standard in there, but it really only applied to the small-con situation.

[00:26:36] Speaker 05:
But what Fraunhofer is asking this court to do is to upend this entire appeal, avoid the challenge claims being invalidated by having this court exercise the board's discretion for it.

[00:26:50] Speaker 05:
And we don't believe this court's case law follows that approach.

[00:26:55] Speaker 05:
If the board exercises discretion, well, that's a different issue.

[00:26:58] Speaker 05:
But we believe that's what Fraunhofer is asking this court to do.

[00:27:03] Speaker 05:
And as far as the last point I'll conclude with is with the case law that Fraunhofer cited and counsel mentioned, Henny Penny and some other cases.

[00:27:14] Speaker 05:
Each of those cases required new art, new citations, different arguments, different motivation arguments, something that was nowhere found in the petition.

[00:27:28] Speaker 05:
Just something entirely new.

[00:27:30] Speaker 05:
We don't have that new here.

[00:27:33] Speaker 05:
And our table summarized that for this court and for the board.

[00:27:39] Speaker 05:
And the point I'll leave you with is this court's phillips case says that the reply should be used to point the board to show where the evidence and argument are in the brief.

[00:27:55] Speaker 05:
We did that.

[00:27:56] Speaker 05:
The board ignored that because it necessarily found that once Campanella dropped out, nothing else mattered.

[00:28:02] Speaker 05:
And that was error as a matter of law, not only under Erickson, but certainly under Arioso, Randall, and the Philadelphia Google case.

[00:28:13] Speaker 05:
And as far as whether Campanella is prior or not under 1 or 2E, we'll stand on our briefs for that point, Your Honors.

[00:28:23] Speaker 00:
Thank you, both counsel.

[00:28:24] Speaker 00:
The case is submitted.