[00:00:00] Speaker 03:
We have five cases on the calendar this morning, two private cases from district courts, one from the PTAB, two cases from the Merit Assistance Protection Board, one of which is submitted on the briefs and will not be argued.

[00:00:19] Speaker 03:
Our first case is a key versus EMC Corporation.

[00:00:29] Speaker 03:
2021-1772, Mr. Weinberg.

[00:00:32] Speaker 03:
And you'll tell us how to pronounce your client's name.

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

[00:00:40] Speaker 00:
It's Akis.

[00:00:41] Speaker 03:
Akis.

[00:00:42] Speaker 00:
Akis.

[00:00:44] Speaker 00:
So good morning.

[00:00:45] Speaker 00:
Jonathan Weinberg for Appellant Akis.

[00:00:48] Speaker 00:
May it please the court.

[00:00:49] Speaker 00:
We have a simple ask this morning.

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We're seeking a remand to the district court

[00:00:54] Speaker 00:
instructing it to consider, in the first instance, accesses arguments and evidence on the meaning of the phrase PCI bus transaction.

[00:01:04] Speaker 03:
This case has been around, what, seven years?

[00:01:06] Speaker 00:
I think longer than that.

[00:01:08] Speaker 00:
It's maybe a 12-year record.

[00:01:11] Speaker 03:
Careful job by an excellent judge, pointing out that a lot of your arguments are inconsistent with other arguments you made.

[00:01:24] Speaker 00:
I don't think that the holding was that the arguments were inconsistent.

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I think that the, and that's admitted to a page 34 of the brief for EMC that said that we've made consistent arguments for years.

[00:01:37] Speaker 02:
I think that the holding here was simply that there was a new... Just to follow up on Judge Laurie's question, I think the reference of the clash in your position is the position that you took at the IPR in front of the patent board compared to the statements you're making here.

[00:01:54] Speaker 00:
Is this the encoded term we're discussing?

[00:01:57] Speaker 02:
PCI bus transaction.

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So I don't think that there was any inconsistency about PCI bus transaction at the PTAB.

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The dispute in that particular instance was whether or not

[00:02:10] Speaker 00:
the transaction was at all relevant to the PCI standard.

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And we said that it was.

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We wanted to use Judge Davis's construction.

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And EMC said that the PCI standard shouldn't even apply at the PTAB.

[00:02:26] Speaker 02:
What about the statements that were made about how the PCI bus transaction includes control bits every time?

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You know, there's no such thing as a PCI transaction that does not have control bits.

[00:02:40] Speaker 00:
So as was explained in our briefing at page 58, we talked about control bits.

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That's a term that's used to refer to the command and byte enabled bits.

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There's extrinsic evidence here about that use.

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There's two different kinds of bits.

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There are control bits, and then there's a different label for other bits that are known as command bits in the PCI local bus specification, right?

[00:03:09] Speaker 00:
So the umbrella term that we're discussing would be the control bits, and that would include the command and the byte enables, which we say are part of the transaction.

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But it would also include control signals, which are physical layer signals not part of the transaction.

[00:03:27] Speaker 00:
So when we were referring to control bits at the IPR, and we made this very explicit in the briefing, we said control bits are required, but we're referring specifically to the command bits.

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Mr. Brogan said that at the IPR hearing explicitly.

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And even during that hearing, EMC was using the words control bits to refer to the commands.

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For example, we said as a page 60 of our brief that

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EMC made the argument at the Markman hearing that, look, their expert in his deposition admitted that command information by enables was required.

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And then they cited that as proof that the expert agreed the control bits were required.

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So I think that throughout the Markman hearing and throughout the IPRs, we were using the words control bits specifically to refer to command.

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And so I could point you to Appendix 1641, where Mr. Brogan says at the Markman hearing,

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that when we use the words control bits at the IPR, quote, he's referring to the command.

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And I think that's been consistent with our position throughout this litigation.

[00:04:37] Speaker 03:
Counsel, are these patents expired?

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I don't know if all of them are or not.

[00:04:45] Speaker 00:
I don't have an answer, but I can get you that answer when I come back on the reply.

[00:04:50] Speaker 03:
I can take it back to 2000.

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extended perhaps almost one year, but you don't know.

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Is there ongoing litigation other than this?

[00:05:02] Speaker 00:
Is there any other ongoing litigation other than this?

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I believe that there is, but I think that we mentioned those in our filings with this court.

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But I'm not familiar with them and what the issues are in that case.

[00:05:22] Speaker 00:
What really happened here, if you look at the opinion, is it's pretty explicit that the district court simply just had the law wrong here.

[00:05:33] Speaker 00:
It said that tank construction disputes that arise at summary judgment are untimely, and obviously that's not right, and EMC doesn't say that that's right.

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And so a remand to the district court to consider our arguments for the first time is appropriate here.

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What if we read her summary judgment opinion as understanding that you have a construction of the construction and that she rejects that construction of the construction and going forward and deciding summary judgment against you?

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Right.

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So putting aside that that is, I think, contrary to what it is that she said in the opinion, if we read the opinion that way.

[00:06:14] Speaker 02:
Well, I guess in a way she necessarily had to.

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uh, not adopt your construction of the construction in order to reach the decision that she did.

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Right.

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That's right.

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And I guess there's two ways to interpret that.

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One is that she wasn't going to consider your proposed construction of the construction or that she had considered it your meta construction.

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And then she.

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rejected it.

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Right.

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As being inconsistent with her actual Markman construction.

[00:06:43] Speaker 00:
Yes, I think that the language of the opinion is pretty clear that it's the first of those because it says only now at summary judgment does Acas seek to disavow parts of the spec.

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It says despite not asking Judge Davis or this court to construe this, you could have done this at either court's hearing and you didn't do it.

[00:07:02] Speaker 00:
But getting to your question, in either case, you're right.

[00:07:05] Speaker 00:
This court can freely reach the merits and get to the intrinsic record.

[00:07:10] Speaker 00:
But what happens at that point is there's no fact findings below.

[00:07:14] Speaker 00:
There's no opinion below or reasoning below that says these are the parts of the PCI spec that we need to touch.

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This is how a person of ordinary skill would have seen this.

[00:07:25] Speaker 00:
If we get here a de novo review of just the intrinsic record, I think it's really difficult, maybe impossible for EMC to carry the day and win here because this record is extremely technical.

[00:07:38] Speaker 00:
The patents are extremely technical.

[00:07:39] Speaker 00:
The PCI specifications, a large technical document, difficult for lay judges to read.

[00:07:44] Speaker 00:
This is exactly the kind of situation where you want to have factual evidence and expert opinions.

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Now, if we don't have it here,

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for one reason or another, I think the proper recourse is to remand down to make the necessary factual findings.

[00:07:58] Speaker 00:
If we're looking at only the intrinsic evidence here, I'm happy to discuss why it leans towards ACHIS more favorably than to EMC, if that would interest Your Honor.

[00:08:10] Speaker 00:
Because the claim language here, if we look at it, PCI bus transaction, this is the familiar analysis.

[00:08:16] Speaker 00:
We do the claim language, we look to the rest of the spec.

[00:08:19] Speaker 00:
The words PCI bus transaction,

[00:08:22] Speaker 00:
not really an ordinary meaning, it's a technical term.

[00:08:25] Speaker 00:
So right off the bat, we have a need for some kind of expert testimony about how an expert would see this.

[00:08:30] Speaker 00:
And we did cite some of that in our briefing at page 51.

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There was no rebuttal from the other side.

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They simply said, the intrinsic record is so clear that your expert testimony should just be discarded.

[00:08:44] Speaker 00:
When you then look to the patent specification itself and the rest of the intrinsic record and you ask, how would a person understand reading a, transmitting a PCI bus transaction in this context?

[00:08:55] Speaker 00:
And we have, this is really important.

[00:08:57] Speaker 00:
We have a claim construction that says that these claims encompass both embodiments that send a transaction from one PCI bus to another with a physical bus on both sides and embodiments that don't have a physical bus anywhere.

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And so a person of ordinary skill looking at this and saying, what does it mean to transmit PCI bus transaction in both of these embodiments?

[00:09:19] Speaker 00:
They look at the spec, they see that in the embodiment with PCI buses, the physical layer signals are processed in a different piece of hardware than the transaction layer signals, and they're pulled off the bus.

[00:09:31] Speaker 00:
And now if there's no bus to pull those signals off of, there's no disclosure in the specification talking about synthetically generating those signals.

[00:09:39] Speaker 00:
And the person of ordinary skill wouldn't think to themselves,

[00:09:42] Speaker 00:
But you should generate them synthetically, because once they get to the other side, there's no bus there either.

[00:09:46] Speaker 00:
So they just go in the trash.

[00:09:48] Speaker 02:
Just so I understand, just so I'm following you, are you making the point that the claim construction doesn't require the actual bus?

[00:09:57] Speaker 00:
Yes.

[00:09:58] Speaker 00:
OK.

[00:09:58] Speaker 00:
That's right.

[00:09:59] Speaker 00:
I think that's settled.

[00:10:00] Speaker 00:
Right.

[00:10:00] Speaker 02:
That's settled.

[00:10:01] Speaker 02:
So I'm just trying to follow along with the point you're trying to make.

[00:10:04] Speaker 02:
But as I understand it, the point that the judge was making was that, nevertheless, this transmission has to be in accordance with the PCI bus transaction.

[00:10:16] Speaker 02:
And so that's the entire PCI bus transaction, not just selected pieces of the PCI bus transaction.

[00:10:23] Speaker 00:
Right.

[00:10:24] Speaker 00:
That's exactly right.

[00:10:24] Speaker 00:
But our position is that the PCI bus transaction is defined in this document as including only the signals that we identified.

[00:10:32] Speaker 00:
The physical layer signals are not defined as part of the PCI bus transaction.

[00:10:37] Speaker 00:
They are mentioned, of course, in the PCI spec, but so is the physical bus.

[00:10:41] Speaker 00:
There are definitely discussions in the PCI bus standard that are not required by this claim.

[00:10:48] Speaker 02:
I know you've been talking about transaction layers and physical layers in your briefing, but there's nothing in the PCI local bus specification that talks about these two kinds of layers and distinguishing signals based on whether they're in the transaction layer versus the physical layer.

[00:11:07] Speaker 02:
Is that right?

[00:11:08] Speaker 00:
The words physical and transactional are not used in this particular specification, but this is exactly the reason why expert testimony is so useful here.

[00:11:16] Speaker 00:
If you look at Dr. Gafford's report that we cited in our briefing, he explained that a person of ordinary scale looking at this would understand a physical layer and a transactional layer and differentiate them, and he explained also why.

[00:11:29] Speaker 00:
Because the transactional layer is the

[00:11:33] Speaker 00:
software is what ensures the software compatibility.

[00:11:36] Speaker 00:
He then looked to the PCI Express standard and said, look, in this standard there is something labeled transaction layer and whatnot.

[00:11:43] Speaker 00:
In order to create the software compatibility between these two standards, we are keeping what's labeled as the transaction layer.

[00:11:52] Speaker 00:
And so this just emphasizes the point here that

[00:11:56] Speaker 00:
We do need expert testimony, and we do need fact-finding from the district court.

[00:12:01] Speaker 00:
This would be extremely useful.

[00:12:03] Speaker 02:
I've got a figure 2-1 of the PCI local bus specification open at JA 2244.

[00:12:13] Speaker 02:
And it's showing me all the different pins.

[00:12:21] Speaker 02:
There's a category of required pins and then there's a second category of optional pins.

[00:12:31] Speaker 02:
Right.

[00:12:32] Speaker 02:
So it looks like under the required pins there are address and data pins and then there's all these interface control pins that are identified right here as required pins.

[00:12:49] Speaker 02:
So

[00:12:51] Speaker 02:
Doesn't that mean they're all required for the PCI bus transaction?

[00:12:54] Speaker 00:
Well, what this is discussing is... As opposed to the optional pins.

[00:12:58] Speaker 00:
Well, this is discussing the physical hardware, the actual pins that are required to create a PCI local bus, physical bus, which of course the claims don't require.

[00:13:07] Speaker 00:
But this is strictly talking about that.

[00:13:09] Speaker 00:
It doesn't talk about what is a transaction, which part of this is a transaction.

[00:13:13] Speaker 00:
It just says that this is the pins that are required.

[00:13:17] Speaker 00:
And I want to just go back to the standard here.

[00:13:19] Speaker 00:
If we're on de novo review,

[00:13:21] Speaker 00:
Well, your honors would have to look at this and say this unambiguously shows that EMC is correct.

[00:13:29] Speaker 00:
And there's no reason to ask any experts to look at any evidence.

[00:13:32] Speaker 00:
And I just don't think that looking at these specs, we could say this is, my mind is made up.

[00:13:38] Speaker 00:
It's unambiguous to me.

[00:13:39] Speaker 00:
I don't need to see anything else.

[00:13:40] Speaker 00:
This is absolutely the end of the story.

[00:13:43] Speaker 03:
Counsel, you're into your rebuttal time.

[00:13:45] Speaker 03:
Do you wish to save it?

[00:13:46] Speaker 00:
Yes, please.

[00:13:47] Speaker 00:
Thank you so much.

[00:13:50] Speaker 03:
Barry.

[00:14:00] Speaker 01:
Thank you, Your Honors, and may it please the Court.

[00:14:03] Speaker 01:
My friend started out by asking the Court to remand to consider the meaning of PCI bus transaction, quote, for the first time, end quote.

[00:14:12] Speaker 01:
That term has been construed four times in Texas, in the PTAB, in Massachusetts on Markman, and again in Massachusetts on summary judgment.

[00:14:22] Speaker 01:
And to go straight to Judge Chen's question about the control bits,

[00:14:25] Speaker 01:
ACUS made the argument at summary judgment that control bits should be excluded, and at pages 12 to 13 of the appendix, Judge Burroughs ruled, and this is a quote, ACUS argues that the claim should exclude interface control bits.

[00:14:39] Speaker 01:
Quote, the court has already concluded that the claims are limited by the PCI local bus specification in its entirety.

[00:14:47] Speaker 01:
Therefore, there is no infringement and summary judgment is appropriate.

[00:14:51] Speaker 01:
Accus does not cite this ruling in its opening brief in this court.

[00:14:54] Speaker 01:
It does not cite it in its reply brief in this court.

[00:14:56] Speaker 01:
It never deals with it.

[00:14:58] Speaker 01:
This is a independent, standalone statement of the judge's reasoning that is sufficient to affirm the summary judgment on its own.

[00:15:07] Speaker 01:
And what Judge Burroughs was referring to was all the way back to 2017 when Judge Davis ruled, rejecting Accus's argument that control bits and other things should be excluded, that the

[00:15:19] Speaker 01:
PCI bus transaction must include, quote unquote, all information required by the PCI local bus specification.

[00:15:27] Speaker 01:
That's Appendix 507.

[00:15:28] Speaker 01:
Again, that's another ruling that my friends don't even mention in their opening brief in this court.

[00:15:32] Speaker 02:
You're saying that ACUS in front of Judge Davis argued that the construction has to exclude control bits?

[00:15:39] Speaker 01:
Absolutely, Your Honor.

[00:15:40] Speaker 01:
If you look at Appendix 505, which is the table of the proposed constructions the very first time around, ACUS argued that it should be limited to command, address, and data bits.

[00:15:49] Speaker 01:
which would exclude control and parity bits.

[00:15:51] Speaker 01:
That's what they've been trying to exclude throughout the entirety of this litigation.

[00:15:55] Speaker 01:
They've been making the same argument.

[00:15:57] Speaker 01:
Only command address and data bits.

[00:15:59] Speaker 01:
And Judge Davis ruled... I thought the argument back then was about whether or not the bus itself was actually included in the... So those arguments have run in parallel, if I can borrow a phrase, Your Honor.

[00:16:10] Speaker 01:
EMC argued that a PCI bus must, physical bus must be included.

[00:16:14] Speaker 01:
We lost that argument.

[00:16:15] Speaker 01:
We're not bringing that to this court.

[00:16:17] Speaker 01:
However, as Judge Burroughs explained, that doesn't mean that a PCI physical bus is not irrelevant.

[00:16:23] Speaker 01:
The reason this inventor adopted the standard was for interoperability.

[00:16:27] Speaker 01:
This was for backwards compatibility with existing buses and peripheral devices.

[00:16:31] Speaker 01:
I think Mr. Weinberg misspoke because every single embodiment in the patent specifications includes a physical PCI bus somewhere in the system.

[00:16:40] Speaker 01:
It may not be on both sides, but it's somewhere in the system, including in their faunted figure eight.

[00:16:47] Speaker 01:
as mister stacy explained in the i p r and i heartily recommend to the court pages ten twenty five to ten forty eight of the appendix which is accesses i p r uh... the reason for that is that even if there's not a boss it requires a bit a p c i transaction as defined in the standard he said over and over again what's in the standard is the standard deviate from the standard it's not the standard and remember this is this is clank instruction the patentee could have claimed

[00:17:16] Speaker 01:
a series of pins, a series of commands, a series of information, but instead the patentee chose to claim the well-known specification, an objective exogenous standard that exists in the world independent of these patents and therefore was incorporated by reference into them.

[00:17:32] Speaker 01:
And throughout this litigation the patentee has been trying to disclaim, disavow, distance itself from

[00:17:38] Speaker 01:
the clear teachings of that PCI local.

[00:17:40] Speaker 02:
Is this claim construction purely a matter of looking at intrinsic evidence only, or is it intrinsic plus extrinsic?

[00:17:48] Speaker 02:
So it is intrinsic only, Your Honor, for this reason.

[00:17:51] Speaker 02:
Judge Davis?

[00:17:52] Speaker 02:
We don't have to look at the local

[00:17:55] Speaker 02:
the PCI local bus specification to understand what it means to be a PCI bus transaction?

[00:18:00] Speaker 01:
The PCI specification is intrinsic evidence because it's cited on the face of at least one of the asserted patents in every family and ACAS has admitted its intrinsic evidence both here and in the IPR and both the PTAB and Judge Burroughs treat it as intrinsic evidence.

[00:18:14] Speaker 01:
So it is intrinsic evidence, Your Honor?

[00:18:18] Speaker 02:
I feel like I've read it both ways.

[00:18:20] Speaker 02:
Is that the law?

[00:18:21] Speaker 02:
A technical document cited on the front page of a patent is officially part of the intrinsic evidence?

[00:18:30] Speaker 01:
So the law may not extend to everything cited, Your Honor, in the sense if you referred glancingly to some external publication, it may not be incorporated here, where it is central to

[00:18:42] Speaker 01:
both the claims and the specification.

[00:18:44] Speaker 01:
I mean, if you look at the 873 patent, you know, columns 15, 16, and 17 contain an extensive discussion of the PCI local bus specification, including all the control pins, command pins, address and data pins, and so forth that are required.

[00:18:57] Speaker 01:
This is not some glancing reference.

[00:18:58] Speaker 01:
This is an incorporation, an incorporation by reference.

[00:19:01] Speaker 01:
And ACCA certainly has stopped at this point from arguing otherwise.

[00:19:06] Speaker 01:
It has clearly said, including in its brief to this court, at footnote six I believe, that the local bus specification is intrinsic evidence.

[00:19:14] Speaker 01:
So whatever the case may be sort of more globally, here the parties agreed and the courts agreed that the specification is intrinsic evidence.

[00:19:23] Speaker 01:
A standard, I think, is different than some kind of a reference work.

[00:19:26] Speaker 01:
A standard is created by an industry body, sometimes a government body, but here an industry body, and it exists precisely so other innovators can look to it and use the teachings of the standard to develop compliant devices.

[00:19:41] Speaker 01:
The point that gets lost in the entire argument made by my friends on the other side is, if you drop out bits, information from the transaction,

[00:19:50] Speaker 01:
It's no longer compliant with the standard, and therefore PCI-compliant devices wouldn't be able to read it.

[00:19:55] Speaker 01:
Again, AKIS made precisely that point to the PTAB in saving the validity of their patents.

[00:20:01] Speaker 01:
And so they're backing away from the standard that they adopted specifically to ensure interoperability and hopefully commercial acceptance of their products.

[00:20:10] Speaker 01:
That didn't happen.

[00:20:11] Speaker 01:
We're now in a different world.

[00:20:12] Speaker 01:
But that is an important aspect of a standard

[00:20:16] Speaker 01:
Judge Chen, which I think is a little different than, for example, a reference work or a dictionary, because a standard exists precisely so that innovators, inventors, commercial developers, and others can look to it to know what is required in a particular circumstance.

[00:20:38] Speaker 01:
Your Honor, I'd like to just address two things that my friend said during his argument.

[00:20:42] Speaker 01:
First, he said there's no reasoning as to what parts of the PCI spec apply.

[00:20:47] Speaker 01:
Again, there is reasoning.

[00:20:49] Speaker 01:
Judge Davis and Judge Burroughs both said all of it applies.

[00:20:53] Speaker 01:
And then to Judge Shen, to bring that back to your question about extrinsic versus intrinsic evidence, their submission to Judge Burroughs and in this court relies entirely on expert conclusions not supported by the intrinsic record.

[00:21:07] Speaker 01:
uh... that the courts had no obligation to consider this is not a summary judgment question this is a claim construction question mark the question in this court is made clear in phillips and every other claim construction case that if the intrinsic record is clear the court need not consult the extrinsic record and i think mister weinberg would agree to ask him on rebuttal if you don't consult the extrinsic record we went

[00:21:29] Speaker 01:
And what they haven't argued is that Judge Burroughs committed any abuse of discretion in refusing to look at that extrinsic evidence, those expert testimony.

[00:21:36] Speaker 01:
You know, there's a lot of it.

[00:21:37] Speaker 01:
They submitted hundreds and hundreds of pages of it.

[00:21:40] Speaker 01:
And what Judge Burroughs said in her summary judgment order was, we don't need this.

[00:21:43] Speaker 01:
We have already ruled on the claim construction, and it's clear.

[00:21:48] Speaker 01:
And certainly, there is no law that says where the intrinsic record is clear, and has been ruled on three times, by the way, and is consistent with the position the patentee took in the PTAB,

[00:21:58] Speaker 01:
that a judge on summary judgment has to, for the first time, take in extrinsic evidence that the patentee puts forward at that time to contradict the intrinsic record.

[00:22:08] Speaker 01:
And that's really what this case is about.

[00:22:09] Speaker 01:
It's about claim construction in a little bit of an unusual circumstance.

[00:22:15] Speaker 01:
and so forth.

[00:22:17] Speaker 01:
Last point on that is, Judge Chen, you asked about the PCI spec doesn't mention layers.

[00:22:22] Speaker 01:
Mr. Weinberg said, well, but the expert says there's layers.

[00:22:26] Speaker 01:
This is a perfect example of why courts don't look at expert testimony on claim construction.

[00:22:30] Speaker 01:
It's just an ipsy-dixit.

[00:22:31] Speaker 01:
It's just an expert, a paid expert, a litigation expert, after the fact saying, I can find layers in here.

[00:22:38] Speaker 01:
We look, courts look at

[00:22:40] Speaker 01:
the intrinsic record because it is contemporaneous, it is not litigation driven, it is available to the inventing community rather than an expert report which may be under seal and prepared only for particular litigation, and nothing in that report on this question or otherwise requires looking at it.

[00:22:59] Speaker 01:
would be an abuse of discretion standard review my friends on the other side haven't even mentioned that standard let alone come close to meeting are you aware of any other copending litigations going on with these certain happens other than what's happening with you yes your honor uh... thank you first judge lori all the patents have expired uh... second there is uh... uh... there are three cases pending in texas uh...

[00:23:23] Speaker 01:
Eastern District and Western District in which ACAS is taking yet more, we believe, inconsistent positions.

[00:23:30] Speaker 01:
There are claim constructions orders that have been entered by Judge Albright and by Judge Dillstrap.

[00:23:36] Speaker 01:
They're not part of the record before the court.

[00:23:38] Speaker 01:
They're public documents, obviously.

[00:23:41] Speaker 01:
So the litigation does continue over these patents, including on some of the same terms as before the court.

[00:23:46] Speaker 02:
To what degree do the constructions in those courts deviate from what Judge Burroughs did here with these particular terms?

[00:23:54] Speaker 01:
So Judge Albright essentially went to plain meaning and eschewed a specific construction.

[00:24:00] Speaker 01:
Judge Gilstrap adopted some of Judge Davis's constructions and said that they raised factual questions and then so kicked it past Markman into the next round of discovery and litigation so that they're not definitive, they're not dispositive.

[00:24:14] Speaker 02:
The very disputed terms here were construed there?

[00:24:17] Speaker 01:
Well, they were not construed by Judge Albright or they were plain meaning by Judge Albright and Judge, the PCI bus transaction in particular, my recollection is

[00:24:29] Speaker 01:
I should check Judge Chen before I say absolutely, but I do have the answer here.

[00:24:36] Speaker 01:
I believe on that term, he adopted Judge Davis's construction, which of course we agree with.

[00:24:40] Speaker 01:
And Accus, until I'm still not sure what their position on it, I think they agree with it too.

[00:24:45] Speaker 01:
They certainly told Judge Burroughs they agreed with it, and they told the PTAB they agree with it.

[00:24:49] Speaker 01:
Well, they have a different conception of it, I guess.

[00:24:52] Speaker 01:
Well, but Your Honor, that conception isn't reconcilable with the order itself.

[00:24:58] Speaker 01:
Davis said all information required by the standard.

[00:25:01] Speaker 01:
That's never been a mystery.

[00:25:02] Speaker 01:
That's the ground on which we move for summary judgment.

[00:25:04] Speaker 01:
I mean, that's the reason we have markman proceedings so that the parties know what the parameters are that they can submit evidence to.

[00:25:11] Speaker 01:
They admittedly have no evidence that these products infringe under Judge Davis's construction.

[00:25:16] Speaker 01:
So they're still fighting the construction.

[00:25:17] Speaker 01:
We've had four rounds of construction arguments, and that's what was now in this court.

[00:25:23] Speaker 01:
ending up with, as I started out with, Judge Burrough's ruling that the entirety of the specification must be included in a ruling that they don't even challenge.

[00:25:33] Speaker 01:
And therefore, we think they've forfeited all of this.

[00:25:35] Speaker 01:
We should be done for that reason alone.

[00:25:43] Speaker 01:
Your Honor, I'm not finding the claim constructions right now.

[00:25:46] Speaker 01:
I do have them.

[00:25:51] Speaker 03:
Do you have a second chair for?

[00:25:54] Speaker 01:
No, I have it, Your Honor.

[00:25:58] Speaker 01:
PCI bus transaction, Judge Payne, I'm sorry, Magistrate Judge Payne, not Judge Crull.

[00:26:03] Speaker 01:
He entered the same construction as in this case of PCI bus transaction.

[00:26:08] Speaker 01:
And as I said, Judge Albright entered a plain meaning construction.

[00:26:19] Speaker 01:
Unless the court has further questions, we would submit that the

[00:26:22] Speaker 01:
summary judgment of non-infringement based on the construction of the relevant claim term requiring the incorporation of the PCI local bus specification in its entirety, a ruling that my friends do not challenge, do not even mention.

[00:26:37] Speaker 02:
There was a second basis for granting summary judgment.

[00:26:40] Speaker 01:
There is, Your Honor.

[00:26:42] Speaker 01:
So during the IPR, this one turns on IPR disclaimer.

[00:26:46] Speaker 01:
During the IP, this is, to reference, this is the parallel to serial conversion point.

[00:26:52] Speaker 01:
Judge Davis had ruled that that is not required.

[00:26:55] Speaker 01:
During the PTAB proceedings, ACAS very clearly took the position that parallel to serial conversion is required.

[00:27:02] Speaker 01:
Mr. Stacey described this as the hourglass.

[00:27:04] Speaker 01:
You start from parallel, you go to serial, and you go back to parallel.

[00:27:08] Speaker 01:
That was referenced at least nine times during the PTAB proceedings and the pages of... I don't have any questions.

[00:27:13] Speaker 01:
Oh, thank you, Your Honor.

[00:27:14] Speaker 01:
So on that ground, we submit that there's an independent ground of summary judgment.

[00:27:18] Speaker 01:
My friends do dispute in their brief.

[00:27:19] Speaker 01:
I'm not going to stand up again, so if I could just say one point on that.

[00:27:22] Speaker 01:
They say that if that construction is correct, there's still some ground for remand.

[00:27:26] Speaker 01:
I don't understand that argument.

[00:27:28] Speaker 01:
They cross-move for summary judgment.

[00:27:30] Speaker 01:
There was no disputed issues of fact on anything in this case.

[00:27:33] Speaker 01:
So there's no Rule 56 issue here.

[00:27:36] Speaker 01:
uh... even under their construction of p c i bus transaction that is if they were to win the first point we don't think they should but if they did

[00:27:44] Speaker 01:
They put forward no evidence that the accused devices practice parallel to serial conversion under their definition of PCI bus transaction.

[00:27:53] Speaker 01:
And in a party opposing, moving for summary judgment, they were the movement on infringement, can't just rest on no evidence.

[00:27:59] Speaker 01:
And so there is an independent ground of summary judgment if that construction is affirmed as it will.

[00:28:05] Speaker 01:
We think the first ground, of course, is independently dispositive and the court need go no further, but there are definitely two separate and independent grounds for affirmance in this case.

[00:28:14] Speaker 03:
Thank you.

[00:28:15] Speaker 03:
Thank you, Mr. Perry.

[00:28:16] Speaker 03:
Thank you, Your Honor.

[00:28:18] Speaker 03:
Mr. Weinberg has a little two minutes of rebuttal time.

[00:28:23] Speaker 00:
Thank you, Your Honor.

[00:28:24] Speaker 00:
On that encoded term, there is evidence.

[00:28:28] Speaker 00:
I'm not sure why they keep saying there's no evidence.

[00:28:30] Speaker 00:
We cited it in our reply brief.

[00:28:32] Speaker 00:
That's that summary judgment brief set pages 3362 of the appendix.

[00:28:38] Speaker 00:
And we submitted an expert report on this issue, on the encoded term.

[00:28:42] Speaker 00:
and a declaration as well.

[00:28:44] Speaker 00:
So there's argument and evidence that was submitted that there is infringement under the district court's construction of encodes, given our construction of a PCI bus transaction.

[00:28:54] Speaker 00:
So I think that's just not right.

[00:28:57] Speaker 00:
Getting back to the major point here, if this court looks at just the intrinsic record and thinks that it's absolutely clear that what a PCI bus transaction means, then that is what Mr. Perry is suggesting

[00:29:12] Speaker 00:
requires affirmance.

[00:29:16] Speaker 00:
I just don't think that the court can get there.

[00:29:18] Speaker 00:
And for the specific reasons we talked about, there has to be a remand for some sort of discussion of the expert testimony.

[00:29:25] Speaker 00:
There's a lot of discussion about how it is that we brought up, ACAS brought up claim construction issues that were rejected over and over and over again.

[00:29:32] Speaker 00:
I think that really misstates the focus of what the claim construction disputes were below, as Judge Chen correctly noted.

[00:29:38] Speaker 00:
The position, the dispute in front of Judge Davis was whether there was a PCI bus on the originating side.

[00:29:45] Speaker 00:
EMC lost that.

[00:29:47] Speaker 00:
There was no dispute in the PTAB on this issue.

[00:29:50] Speaker 00:
Then they tried to get the PCI bus into the peripheral side in front of the district court in front of Judge Burroughs.

[00:29:55] Speaker 00:
They lost that issue as well.

[00:29:57] Speaker 00:
So then they came back in summary judgment and said, all right, well, we couldn't get the bus here.

[00:30:00] Speaker 00:
We couldn't get the bus there.

[00:30:02] Speaker 00:
How about the signals for the bus?

[00:30:03] Speaker 00:
That's what they brought up on summary judgment.

[00:30:08] Speaker 00:
And that was a new issue.

[00:30:11] Speaker 00:
So that's why we submitted new evidence, new arguments, and that should have its day in court.

[00:30:18] Speaker 03:
Thank you, Mr. Weinberg.

[00:30:19] Speaker 03:
We appreciate both arguments.

[00:30:21] Speaker 03:
My case is submitted.