[00:00:04] Speaker 01:
Our next case for argument is 21-1775, Boston Scientific versus Navarro.

[00:00:11] Speaker 01:
Mr. Chen, please proceed.

[00:00:27] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:29] Speaker 03:
Julius Chen for Appellant, Boston Scientific.

[00:00:32] Speaker 03:
The board's threshold determination that the 480 patent start bit does not require a fixed pulse width cannot be correct.

[00:00:40] Speaker 03:
The start bit in claim 6 is the same start bit in claim 7.

[00:00:45] Speaker 03:
And critically, Nevereau's discussion of claim 7 at page 39 of its brief concedes that the start bit must, quote, serve as a reference point, close quote, for distinguishing 0 and 1 bits.

[00:00:57] Speaker 01:
Yes, because claim 7 adds that limitation.

[00:00:59] Speaker 03:
Well, Your Honor, if claim seven is understood to add that limitation and require concededly reference point functionality, we don't think that there's any reason to distinguish claim six.

[00:01:12] Speaker 03:
It is a strong principle in this court.

[00:01:14] Speaker 01:
No, it's not.

[00:01:15] Speaker 01:
You're so wrong on this.

[00:01:16] Speaker 01:
The word start bit has a plain, ordinary meaning, whatever it is.

[00:01:19] Speaker 01:
And then you can add dependent claims, which further limit

[00:01:23] Speaker 01:
That particular element, regardless of its Planned Ordinary Meaning, this is a basic principle of patent law.

[00:01:29] Speaker 01:
This is how dependent claims operate.

[00:01:30] Speaker 01:
This is exactly what happened in this case.

[00:01:33] Speaker 01:
You've got a start bid in Claim 6.

[00:01:35] Speaker 01:
There are no constraints in Claim 6 about the start bid acting as a comparator.

[00:01:39] Speaker 01:
And then in Claim 7, you add in the requirement that the start bid must act as a comparator.

[00:01:45] Speaker 01:
That therefore narrows what the universe of start bids would be in Claim 7 as compared to Claim 6.

[00:01:51] Speaker 01:
That is routine, regular patent law.

[00:01:53] Speaker 03:
Well, Your Honor, let me respond to that and try to unpack it in various ways.

[00:01:58] Speaker 03:
The first is that the context of Claim 6 still is demodulation.

[00:02:02] Speaker 03:
It is a dependent claim of Claim 1.

[00:02:05] Speaker 03:
And so in that regard, the start date is... Technically, it's dependent of Claim 2, which is dependent by 1.

[00:02:09] Speaker 01:
Yes, sir.

[00:02:10] Speaker 01:
I'm sorry.

[00:02:11] Speaker 03:
I'm using that as a shorthand because it's the first data that is in Claim 1 and the two pulse widths, the 0 and the 1 in Claim 1.

[00:02:19] Speaker 03:
And so Claim 6 is still being used in a demodulation context.

[00:02:23] Speaker 03:
And even in the ordinary meaning test, you have to look at the context of the claims.

[00:02:28] Speaker 03:
And here we think that the context, if you want to focus on claim six, claim seven is context for claim six.

[00:02:35] Speaker 02:
So let me get this straight.

[00:02:38] Speaker 02:
Let's assume claim one is for a car.

[00:02:41] Speaker 02:
And claim two says the car of claim one wherein said car has a sunroof.

[00:02:51] Speaker 02:
Does claim one have a sunroof?

[00:02:53] Speaker 03:
No, Your Honor.

[00:02:54] Speaker 03:
And here's the critical distinction here with respect to the start bit of claim six and claim seven.

[00:03:00] Speaker 03:
Claim seven does not claim a start bit that is blue, for example.

[00:03:04] Speaker 03:
If that were the case, then we would be importing a limitation from claim seven into claim six if we were to say, well, claim six must also have a blue start bit.

[00:03:14] Speaker 03:
Here, all we're saying is that a claim term

[00:03:17] Speaker 03:
that appears in both claims, start bit, must have the same meaning.

[00:03:23] Speaker 03:
And if in claim seven, it has to have reference point functionality, what we call a fixed pulse width, i.e.

[00:03:30] Speaker 03:
where the pulse width of the start bit is correlated to the zero and one control bits that follow, if that is true, there is no reason to construe claim six differently.

[00:03:41] Speaker 03:
We don't think that it creates... Why?

[00:03:42] Speaker 01:
You don't have that element in claim six.

[00:03:44] Speaker 01:
You incorporated functionality in claim seven that doesn't exist in claim six.

[00:03:51] Speaker 03:
Well, Your Honor, and yes, we would agree with that completely because Claim 7 claims a particular system which uses a start bit.

[00:04:00] Speaker 03:
It is the same start bit.

[00:04:01] Speaker 03:
Claim 7 depends from Claim 6.

[00:04:04] Speaker 03:
So it is the exact same start bit in Claim 6 that feeds into Claim 7.

[00:04:09] Speaker 03:
And so we think that they have to have a common understanding and a common construction.

[00:04:14] Speaker 01:
As this Court has said, in Claim 7... Yes, and the common construction of start bit is the first bit that precedes the remaining control bits.

[00:04:21] Speaker 01:
That's the plain and ordinary meeting, as the District Court, or as was found in this case, based in part on technical definitions.

[00:04:29] Speaker 01:
And then in Claim 7, you add additional functionality to the start bit, which now takes it out of the ordinary start bit land and requires it to have a fixed pulse width, so that it can be used as a reference point.

[00:04:45] Speaker 03:
Well, Your Honor, again, the claim language of claim seven does not say a start bit with a fixed pulse width.

[00:04:54] Speaker 03:
It is the same start bit again.

[00:04:56] Speaker 03:
And so if that functionality is present in claim seven, it is not a different start bit again.

[00:05:02] Speaker 03:
And so if we all agree that claim seven must have a fixed pulse width, a start bit with a fixed pulse width.

[00:05:08] Speaker 02:
But I guess I'm still confused, like Chief Judge Morris.

[00:05:13] Speaker 02:
claim things generically in an earlier claim and then a dependent claim that depends from that earlier claim can start adding features, can start decorating the Christmas tree of the earlier claim.

[00:05:27] Speaker 02:
The generic term can all of a sudden have details burnishing some

[00:05:35] Speaker 02:
qualities of that otherwise generic term.

[00:05:37] Speaker 02:
That's what seems to be going on here.

[00:05:39] Speaker 02:
So I feel like you're trying to have the tail wag the dog by looking at a dependent claim to confine and define an otherwise generic term in an earlier claim.

[00:05:53] Speaker 03:
Well, Your Honor, I would go back to your car example.

[00:05:56] Speaker 03:
And I would dispute the idea that we are adding qualities to the start bit.

[00:06:00] Speaker 03:
The start bit is being used in a particular system.

[00:06:03] Speaker 03:
It needs to be operable both for claim seven and for claim six.

[00:06:07] Speaker 03:
And if we all agree that in order for claim seven to have an operable start bit,

[00:06:12] Speaker 03:
for it to serve as a meaningful reference point for the 0 and 1 control bits.

[00:06:17] Speaker 03:
That functionality, even though it is not being used in Claim 6, must also be present because it is the exact same start that nobody disputes that the start bit of Claim 7... I don't think that you understand what a dependent claim is.

[00:06:30] Speaker 01:
I think that you have some fundamental lack of appreciation for basic patent law.

[00:06:36] Speaker 01:
Claim 6, a start bit.

[00:06:37] Speaker 01:
Claim 7, a start bit that is blue.

[00:06:41] Speaker 01:
Is the claim six start bit required to be blue?

[00:06:44] Speaker 03:
No, Your Honor, but that's the difference that I'm trying to explain here.

[00:06:47] Speaker 03:
The fixed pulse width language is not in claim seven.

[00:06:52] Speaker 01:
The functionality that the start bit is required to perform is in claim seven.

[00:06:58] Speaker 01:
The only method of achieving that functionality is by having a start bit that has a fixed pulse width.

[00:07:04] Speaker 01:
There is no similar functionality required in claim six.

[00:07:08] Speaker 01:
Therefore, that start bit doesn't have to be blue.

[00:07:11] Speaker 03:
Well, Your Honor, I would disagree that the context of the way that's started is being used.

[00:07:15] Speaker 01:
OK, so you have no chance of prevailing.

[00:07:17] Speaker 03:
Sure, Your Honor.

[00:07:18] Speaker 01:
Because your argument is stupid.

[00:07:20] Speaker 01:
So let's move on and consider whether or not there is some reason that Claim 7 can be saved for you.

[00:07:30] Speaker 01:
Because what you're hearing from us, you're fighting us on Claim 6.

[00:07:35] Speaker 01:
But what you're hearing from us is an acknowledgment that Claim 7

[00:07:39] Speaker 01:
does seem to require a fixed pulse width.

[00:07:43] Speaker 01:
I don't know why you didn't jump on that, but you didn't.

[00:07:45] Speaker 01:
So why don't you jump on it now and try to save claim seven?

[00:07:48] Speaker 03:
Sure, Your Honor.

[00:07:49] Speaker 03:
I'm happy to turn to that.

[00:07:50] Speaker 03:
I just wanted to make sure our claim construction argument was understood.

[00:07:53] Speaker 03:
However, this court comes out with respect to claim six and the claim construction, it will still need to grapple with the combination of previous and Bradshaw.

[00:08:01] Speaker 03:
That is the only ground on which claim seven was found to be obvious.

[00:08:05] Speaker 03:
And in that regard, we think that the board manifestly erred in finding Navarro's proffered drift motivation to combine to be unopposed.

[00:08:15] Speaker 03:
Boston Scientific repeatedly pointed the board to expert testimony that grievous eliminates timing errors and thus the need for Bradshaw's recalibration scheme.

[00:08:26] Speaker 03:
So at the very least, we think that we need a remand for the board to consider Boston Scientific's actual evidence.

[00:08:33] Speaker 02:
The concern I have is that when I look at your patent owner response and I look at your patent owner certified The challenge that you raised to the combination of grievous and Bradshaw was the I was premised on grievous not disclosing a start bit at all and

[00:08:58] Speaker 02:
and that there would be no motivation to add that missing start bit to Grievous because Grievous doesn't need a start bit.

[00:09:08] Speaker 02:
There's all kinds of whatever the Grievous system has or is, it eliminates any need for a start bit.

[00:09:17] Speaker 02:
But the board found that Grievous does have a start bit.

[00:09:22] Speaker 02:
started message first.

[00:09:24] Speaker 02:
And so your entire motivation to combine argument became mooted at that point when the board found that Grievous does have a start bit.

[00:09:37] Speaker 02:
And then the only thing left was whether to modify that start bit so that it would have this fixed pulse width, so it could be used as a reference pulse.

[00:09:47] Speaker 02:
And the board said, as to that particular question, whether to modify that start bid of Grievous, there is no extra argument raised in the patent owner response or the patent owner surreply.

[00:10:03] Speaker 02:
And when I read these critical pages at A1552, 53, and then 2237,

[00:10:13] Speaker 02:
It's 2236, 2237.

[00:10:16] Speaker 02:
These arguments are all premised on Grievous not having a start bid.

[00:10:22] Speaker 02:
And then there would be no reason to add a start bid.

[00:10:25] Speaker 02:
Not that there would be no reason to modify Grievous' start bid.

[00:10:30] Speaker 03:
Sure, Your Honor.

[00:10:31] Speaker 03:
We certainly were not trying to make a distinction that was tied to the claim construction in this regard.

[00:10:37] Speaker 03:
And what I would say is that here, even if you assume that Grievous does disclose a start bit under Nevers construction, you would still... And that's not a field, right?

[00:10:49] Speaker 02:
That's not that's correct your honor.

[00:10:52] Speaker 02:
Yeah, that's left unchallenged.

[00:10:54] Speaker 03:
Yes, even if you assume that Well, we have to because that's part of the case.

[00:10:59] Speaker 03:
So sure honor So given that construction and that understanding you would still need to modify the sombers as you suggested in the way that Bradshaw suggests you would need to make you would need to characterize a

[00:11:13] Speaker 03:
the value of bits relative to the somers at that point.

[00:11:17] Speaker 03:
And that is what we had focused on as something that nobody would do, or I'm sorry, a person of ordinary skill in the yard would not be motivated to do, because grievous does not present the problem that Brad chose to try to solve.

[00:11:28] Speaker 02:
No, I understand that that is an important feature of your blue brief and gray brief.

[00:11:33] Speaker 02:
What I'm saying is that that is not a feature of what you argued below in your patent owner response and your patent owner cert reply.

[00:11:41] Speaker 02:
Well and that's the missing key element and so therefore we don't have any board findings as to that specific question because the board was never asked to answer that specific question.

[00:11:53] Speaker 02:
The board did try to find is there in fact the motivation to do this modification in light of Bradshaw and then it cited and block quoted

[00:12:04] Speaker 02:
expert pluses testimony and concluded yes there there would be a motivation and and and then ultimately said well that's unrebutted because You never made a separate argument as to this specific motivation question below So I'm trying to figure out

[00:12:22] Speaker 02:
Where did the board goof on that?

[00:12:24] Speaker 03:
Well, Your Honor, I don't think either the parties or the board made a distinction in that regard about whether or not this motivation to combine was specific to one or the other claim construction.

[00:12:35] Speaker 03:
the argument that there would be no motivation to combine cuts across regardless.

[00:12:41] Speaker 03:
Because you still need, regardless of the claim to instruction, you still need the modification and the extra elements from Bradshaw in order to get to claim seven.

[00:12:54] Speaker 03:
And the particular start in the functionality there.

[00:12:56] Speaker 02:
There's no dispute on appeal, is there, that Bradshaw teaches

[00:13:01] Speaker 02:
The that it was known in the art to use a reference pulse to as a reference pulse to measure against control pulses coming in to figure out whether those control pulses are zeros and ones that's correct, right and There's also no dispute that Grievous's system is

[00:13:22] Speaker 02:
when it adds these control bits coming in, it needs to decode those bits.

[00:13:28] Speaker 02:
Grievous needs to decode those bits in order to perform its demodulation.

[00:13:34] Speaker 03:
That's true, your honor.

[00:13:35] Speaker 02:
So you've got to turn those pulses, those bits coming in to Grievous into zeros and ones.

[00:13:45] Speaker 02:
Bradshaw teaches a known way, a known tool,

[00:13:48] Speaker 02:
for doing that very thing, for turning these control bits into zeros and ones.

[00:13:53] Speaker 02:
You can use your start bit as a reference point.

[00:13:57] Speaker 02:
So why wouldn't it be obvious under KSR to just use a known tool for its known purpose in another system to reach the predictable result of doing the necessary exercise of converting these

[00:14:14] Speaker 03:
Control bits into zeros and ones sure all right I want to answer your question, but I do want to be cognizant of my last minute that I have as well The reason is that a motivation to combine here is not just using any way to decode but to combine these particular references together and the motivation that was given in this case was that previous I'm sorry that Bradshaw would eliminate timing and

[00:14:37] Speaker 03:
drift airs that is not something that is present in grievous at all because grievous teaches an entirely different system what they call inherently synchronous transmission that does away with the need to have any fixing any solution

[00:14:52] Speaker 03:
for timing and drift.

[00:14:55] Speaker 03:
And so just because there was a known solution out there doesn't mean that you would have gone through the trouble and said, hey, we're going to take Bradshaw to solve a problem here that Grievous does not even present.

[00:15:06] Speaker 03:
That is Nevereaux's core theory, that Grievous presented a problem of drift that Bradshaw then came in and fixed.

[00:15:16] Speaker 03:
That's the core argument in the reply brief below, but that's simply untrue.

[00:15:22] Speaker 03:
And again, given that the board said that this was unopposed altogether, our expert clearly stated that there would be no motivation regardless

[00:15:34] Speaker 03:
whether or not drift was known in the art that is a direct response to never's motivation to combine argument and at the very least the board then did not consider our expert at all and that should be a reversible error okay thank you mr. Chen I'll restore your three minutes of rebuttal time mr. Morris please proceed

[00:16:03] Speaker 00:
May it please the court.

[00:16:05] Speaker 00:
We absolutely agree that start bit has a plain and ordinary meaning, and that that's the meaning that controls unless it is explicitly overridden by the patentee, and there's no reason to do that.

[00:16:16] Speaker 00:
There's nothing in the specification.

[00:16:17] Speaker 00:
There's nothing to do that.

[00:16:18] Speaker 00:
So I'll turn quickly to the combination of Bradshaw and Grievous.

[00:16:23] Speaker 01:
And on that, that's a classic situation in which- Do you agree then that claim seven does require a start bit with a fixed pulse width?

[00:16:33] Speaker 00:
No, it has the functionality built into it to make the determinations necessary, doesn't it?

[00:16:38] Speaker 01:
And, wait, I'm sorry, so you don't agree that claim seven, which measures the pulse width of the start bit in order to generate a threshold and then compares that pulse width to the subsequent control bits, you don't believe that requires the start bit to, in that claim, have a fixed pulse width?

[00:16:59] Speaker 01:
I'm not saying the word start bit in the abstract have a fixed pulse width.

[00:17:04] Speaker 01:
I'm saying doesn't claim 7 add dependent functionality, which thereby requires the start bit to have a fixed pulse width.

[00:17:11] Speaker 00:
Contemplates the correlation as Boston Scientific puts it on appeal.

[00:17:16] Speaker 00:
Yes, has the correlation built into the functionality of claim 7.

[00:17:20] Speaker 01:
To be clear, does claim 7 by its dependent limitation

[00:17:27] Speaker 01:
Thereby require for that claim only yes the start bit to have a fixed pulse with yes Okay, now what what is fixed pulse with me?

[00:17:37] Speaker 02:
What's the difference between a fixed pulse with and a pulse with purposes of this claim?

[00:17:45] Speaker 00:
I Don't know the distinction for purposes of this claim between a pulse with and a fixed pulse with especially as it's been defined by Boston Boston scientific on appeal

[00:17:54] Speaker 00:
It's just that there's a correlation between between the two and I understand that there will be once the start bit sent with the Corresponding control bits there will be a correlation between you're going to measure the pulse click right and then that's going to be the reference correct That's the way I that's the way I understand it based on but could it mean that all start bits coming in that are getting transmitted

[00:18:18] Speaker 02:
with each signal it has to be the same pulse width.

[00:18:25] Speaker 00:
That's not my understanding.

[00:18:26] Speaker 02:
One start bit to the next start bit to the next start bit.

[00:18:28] Speaker 00:
Right, that's not my understanding of how Boston Scientific has put it on appeal.

[00:18:31] Speaker 00:
That is how they defined it below, which is that it always had to be a particular value, but on appeal it's just that they're correlated

[00:18:38] Speaker 00:
in a way, so I understand that it can be a different value from transmission to transmission to transmission as long as the correlation is there in the functionality of claim seven.

[00:18:51] Speaker 01:
So if claim seven requires a start bit to have a fixed pulse width, did the board in this case address the obviousness arguments with regard to claim seven with that understanding?

[00:19:10] Speaker 00:
With regard to Claim 7, no.

[00:19:13] Speaker 00:
With the Claim 7, so four purposes of Claim 7, it has always been that it's a combination of Bradshaw and Grievous that give rise to it.

[00:19:24] Speaker 00:
And there is no dispute by Boston Scientific or any of that.

[00:19:28] Speaker 00:
Bradshaw discloses all the functionality of Claim 7, or the added functionality of Claim 7.

[00:19:34] Speaker 00:
And so the sole question there was a motivation to combine the two.

[00:19:40] Speaker 00:
With regard to Claim 7, it's always about motivation to come blind.

[00:19:43] Speaker 00:
There was no dispute with regard to that Bradshaw was the reference that supplied the missing elements of Claim 7 or the limitations that are added by Claim 7.

[00:19:55] Speaker 00:
And on that, it's a classic wing of evidence, which the board did.

[00:19:59] Speaker 00:
There was evidence from Neverlo's expert that adding Bradshaw would accomplish a variety of things.

[00:20:06] Speaker 00:
It would give rise to motivation.

[00:20:07] Speaker 00:
One, it was simple and straightforward.

[00:20:09] Speaker 00:
2.

[00:20:10] Speaker 00:
That it would be rapid calibration to minimize error and 3.

[00:20:16] Speaker 01:
Where did the board address all this?

[00:20:18] Speaker 00:
At appendix 56 to 57.

[00:20:22] Speaker 00:
The block quotes the expert's test or declaration there and it says there are three different things.

[00:20:28] Speaker 00:
It was straightforward and easy.

[00:20:30] Speaker 00:
Two, it would have rapid calibration to minimize error.

[00:20:33] Speaker 00:
And three, that it would allow a system to avoid errors due to temperature and age-induced drift.

[00:20:42] Speaker 00:
Boston Scientific says that there are bases within Grievous to, and it argued that there are bases within Grievous to say that with respect to the last one,

[00:20:52] Speaker 00:
on temperature and age-induced drift, the grievous may have done that.

[00:20:56] Speaker 00:
But Bradshaw discloses that pulse width modulation has those errors in it.

[00:21:05] Speaker 00:
Bradshaw says, generally, these are errors there.

[00:21:08] Speaker 00:
And so the board was free to say, Boston Scientific did not dispute that those were known errors in the art.

[00:21:15] Speaker 00:
And so a skilled artisan who's confronting these issues could reasonably look at these and determine that there was

[00:21:22] Speaker 00:
a motivation on top of the other motivations given by Bradshaw.

[00:21:25] Speaker 01:
When you say that the board could have done that, I agree they could have.

[00:21:30] Speaker 01:
Where did they?

[00:21:31] Speaker 00:
Well, they took Boston Scientific, where it said that it did not dispute that those were known issues in the art.

[00:21:41] Speaker 00:
And because those are known issues, there's no... Where did the board say that?

[00:21:45] Speaker 00:
At 57.

[00:21:46] Speaker 01:
Page 57?

[00:21:47] Speaker 00:
Appendix 57.

[00:21:49] Speaker 01:
Okay.

[00:21:50] Speaker 01:
Notably, however, patent owner Nowhere contends that these problems were not known to those of ordinary skill in the art, right?

[00:21:57] Speaker 01:
Yes.

[00:21:58] Speaker 01:
The problems he's talking about is temperature and age-induced drift.

[00:22:01] Speaker 01:
Right.

[00:22:03] Speaker 01:
But did the patent owner ever agree that the grievous system, the grievous reference, had problems of temperature and age-induced drift?

[00:22:17] Speaker 00:
No, their argument was that Grievous would have, if you're reading Grievous, there have been ways to overcome that, or Grievous discloses ways to overcome that, given that it's using synchronous communication protocols.

[00:22:30] Speaker 00:
But we're talking about it in the context of Claim 2, which they don't appeal.

[00:22:33] Speaker 00:
And with regard to that, all these same arguments were put before the board.

[00:22:37] Speaker 00:
The board determined that it would have been obvious to modify Grievous to add asynchronous communication protocols.

[00:22:44] Speaker 00:
And that's with regard to claim two.

[00:22:46] Speaker 00:
You can find the discussion at appendix 45 to 48.

[00:22:49] Speaker 00:
So you have a system in which you already have asynchronous communication protocols in it.

[00:22:53] Speaker 00:
And the board is addressing what to do in that scenario with Bradshaw and determine that there was ample motivation to rapid calibration to avoid error.

[00:23:04] Speaker 00:
And the temperature and age-induced drift were two particular ones.

[00:23:10] Speaker 00:
And the fact that Grievous had systems that would have

[00:23:14] Speaker 00:
accomplished some amount of curing the problem of those things doesn't diminish the fact that they could look to another reference that also looked to solve the same problem.

[00:23:26] Speaker 00:
And so with those in mind.

[00:23:28] Speaker 01:
But why would you take a reference as a primary reference that solves a particular problem and be motivated to combine it with a different reference that addresses a problem that's already been solved by the first reference?

[00:23:42] Speaker 01:
Do you follow me?

[00:23:43] Speaker 01:
It seems like you would have to show me there's some advantage to solving it this other way that a skilled artisan would have recognized, or there's some still disadvantage in Grievous's handling of this thing that would have motivated a skilled artisan to continue to look for a different and better solution.

[00:24:01] Speaker 01:
It feels like there needs to be something.

[00:24:03] Speaker 00:
Well, so the court's case has said two references that try to solve the same problem.

[00:24:10] Speaker 00:
There's still a motivation to combine the two.

[00:24:12] Speaker 01:
No, no, there's no blanket rule that says that when two references solve the same problem, there exists a motivation to combine the two.

[00:24:20] Speaker 00:
But it doesn't eliminate the motivation to combine.

[00:24:22] Speaker 00:
And here you have evidence that it would allow rapid calibration to minimize error.

[00:24:28] Speaker 00:
So adding Bradshaw in there would allow rapid calibration to minimize error.

[00:24:34] Speaker 01:
Why do we need that?

[00:24:36] Speaker 01:
Why do we need rapid calibration to minimize error if there isn't

[00:24:40] Speaker 01:
Is there some reason to believe there's error in Grievous?

[00:24:46] Speaker 00:
So the argument, Grievous doesn't say anywhere that it eliminates temperature and age induced drift.

[00:24:54] Speaker 00:
It's Boston Scientific's position that as read, it would do these things.

[00:24:59] Speaker 00:
So the board is free to look at Boston Scientific's argument that

[00:25:03] Speaker 00:
that it would have solved these problems.

[00:25:05] Speaker 01:
Did you present testimony to the contrary?

[00:25:08] Speaker 01:
Did you present testimony that Grievous wouldn't have solved the problems of temperature and age-induced drugs?

[00:25:14] Speaker 00:
I don't believe there's testimony directly on that.

[00:25:17] Speaker 00:
Just the expert's testimony in this case that these are the reasons why one in skill and the art would look to Bradshaw to solve these problems.

[00:25:26] Speaker 00:
And bear in mind, Bradshaw says that pulse width modulation generally, which includes

[00:25:32] Speaker 00:
on-off keying that is in Grievous has these problems.

[00:25:37] Speaker 00:
So the board had before it Bradshaw which discloses the fact that pulse width modulation has these issues in it.

[00:25:46] Speaker 00:
And that would include on-off keying which is found in Grievous that it still solves these problems of temperature and age induced drift.

[00:25:54] Speaker 00:
And the board is free to credit that.

[00:25:55] Speaker 00:
And the fact that it was undisputed that these were known issues in the art for pulse width modulation, mind you.

[00:26:01] Speaker 00:
The board was free to credit that, weigh the evidence, and there's substantial evidence to support that determination.

[00:26:13] Speaker 00:
Unless there are any further questions, we ask the court to affirm.

[00:26:17] Speaker 01:
OK.

[00:26:17] Speaker 01:
Thank you, Mr. Morris.

[00:26:19] Speaker 01:
Mr. Chen will restore three minutes of rebuttal time.

[00:26:29] Speaker 03:
Thank you, Your Honors.

[00:26:31] Speaker 03:
Let me start by just saying that I don't think that the board grappled with any of the court's questions just now about the motivation to combine.

[00:26:38] Speaker 03:
This was not, as my friend on the other side just said, a classic wing of the evidence.

[00:26:44] Speaker 03:
What the board says very clearly is that it doesn't find any evidence from Boston scientific side, and thus it finds the motivation to combine unopposed

[00:26:54] Speaker 03:
And so it did not consider or weigh any evidence.

[00:26:57] Speaker 03:
It just simply said, well, that's enough.

[00:27:00] Speaker 03:
On the other side, we don't see anything to the contrary.

[00:27:02] Speaker 03:
It says absent argument or evidence to the contrary.

[00:27:05] Speaker 03:
There was contrary evidence here.

[00:27:07] Speaker 03:
But before I get to that, I just want to say, regardless of whether or not you agree with one party's motivation to combine theory or the other, the failure to consider that evidence is alone a reversible error.

[00:27:21] Speaker 01:
You're sort of misstating what the board said.

[00:27:23] Speaker 01:
They said, notably, patent owner nowhere contends these problems were not known to those of ordinary skill in the art.

[00:27:31] Speaker 01:
You don't dispute that.

[00:27:33] Speaker 01:
I don't see anything wrong with that fact finding.

[00:27:36] Speaker 01:
I don't see where you dispute that temperature and age drift in general were known problems.

[00:27:43] Speaker 03:
Sure, Your Honor.

[00:27:44] Speaker 03:
And it's really the next sentence.

[00:27:46] Speaker 03:
And that's what he says.

[00:27:48] Speaker 03:
Yes.

[00:27:48] Speaker 03:
Fair enough.

[00:27:48] Speaker 03:
I'm relying on the next sentence.

[00:27:50] Speaker 03:
And I read the lead in absent argument or evidence to the contrary.

[00:27:54] Speaker 03:
We find unopposed, and unopposed is modifying Mr. Plus's reason explanation.

[00:27:59] Speaker 03:
And that reason explanation is to say that drift here for these particular references would provide a motivation to combine.

[00:28:07] Speaker 03:
This is what we say in Appendix 1685.

[00:28:10] Speaker 03:
Regardless of whether clocks can be affected by temperature and age, and regardless if it was known to have to adjust for those effects, a posita would not be motivated to modify Grevious with Bradshaw's reference pulse.

[00:28:24] Speaker 03:
Because Grevious's data and received clock information are transmitted together, eliminating the need for encoding schemes such as Bradshaw's.

[00:28:34] Speaker 02:
We think that is a direct response.

[00:28:35] Speaker 02:
In so doing, Grevious rejected the use of a start bit.

[00:28:38] Speaker 02:
So again, as we discussed earlier, all of your arguments were based on the premise that Grievous lacks a start bit.

[00:28:46] Speaker 02:
And so therefore, there's all these reasons why you wouldn't add a start bit.

[00:28:52] Speaker 02:
But as we also discussed earlier, the board found that Grievous does have a start bit.

[00:28:58] Speaker 02:
And that's not on appeal.

[00:29:02] Speaker 02:
So you didn't argue.

[00:29:04] Speaker 02:
whether to modify Grievous' start bit, you were arguing all along against adding a start bit, because in your view, Grievous eliminated the need for any start bits.

[00:29:15] Speaker 03:
Well, Your Honor, we think that the argument applies equally.

[00:29:19] Speaker 03:
There's no dispute here that you would need to.

[00:29:21] Speaker 02:
I know you think that, but that wasn't the argument that you raised below.

[00:29:23] Speaker 03:
Well, Your Honor, regardless, we think that its motivation to combine finding is still

[00:29:35] Speaker 03:
not something that is tenable, because this motivation to combine third, which never had the burden to prove, doesn't wash at all.

[00:29:44] Speaker 03:
There is no motivation to combine Bradshaw and to modify these sombers in this way in order to

[00:29:53] Speaker 03:
to meet the claim limitations of claim 7.

[00:29:56] Speaker 03:
There is simply no temperature or drift problem in Grievous, however you construe its sombers.

[00:30:03] Speaker 03:
And again, I would just say that we don't think that we were trying to cabin our claim 7 combination argument to a particular

[00:30:12] Speaker 03:
Claim construction it really was just that you would not take these two references together regardless of how you are saying Previous presents us on this is it a start under our construction or their construction the point is that you would still not Combine these references together Okay, I think both counsel in this case is taken under submission