[00:00:02] Speaker 01: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 01: God save the United States and its honorable court. [00:00:12] Speaker 03: Good morning, ladies and gentlemen. [00:00:14] Speaker 03: We have six cases on the calendar this morning, one from the ITC, three from the TTAB, two from the Claims Court, which have been submitted on the briefs and therefore not argued. [00:00:29] Speaker 03: Before we begin, let me [00:00:31] Speaker 03: Ask counsel to be alert to the possibility, in fact, likelihood of judges asking questions. [00:00:40] Speaker 03: When we're in court, you can see us leaning forward, ready to pounce in the courtroom. [00:00:48] Speaker 03: But on a telephonic conference, you cannot. [00:00:53] Speaker 03: And we often have lawyers continuing to ask when judges are asking questions. [00:01:01] Speaker 03: Please be alert to try to avoid that. [00:01:04] Speaker 03: Our first question, our first case is 20-2008 Broadcom Corporation versus the ITC and Renaissance Electronics. [00:01:18] Speaker 03: Please proceed Mr. Johnson. [00:01:22] Speaker 00: Thank you. [00:01:23] Speaker 00: Good morning and may it please the court. [00:01:24] Speaker 00: This is Brian Johnson representing Broadcom. [00:01:28] Speaker 00: Your Honors, the Commission was correct in finding that numerous respondents infringed Broadcom's 583 patent and that all the asserted claims are valid, but wrong for denying Broadcom any remedy for failure to meet the domestic industry requirement. [00:01:42] Speaker 00: The claims at issue are directed to a system, and for both domestic industry and infringement, Broadcom showed the claims were practiced looking at the same type of product, a system on a chip or SOC. [00:01:53] Speaker 00: The Commission correctly found infringement, but for domestic industry, [00:01:57] Speaker 00: The Commission defied precedent by requiring more, evidence of unclaimed elements, like a memory. [00:02:03] Speaker 00: The Commission should be reversed because the products at issue, Broadcom's new low-power SOC, is an article protected by the patent, and the Commission cannot require Broadcom to prove more than what is in the claim. [00:02:15] Speaker 00: Broadcom made and sold its new low-power SOCs, every piece of its hardware and software, and the SOCs practice every element of the claim. [00:02:22] Speaker 00: The Commission agrees for all but one limitation, 25C, [00:02:27] Speaker 00: a register controlled by a clock tree driver. [00:02:30] Speaker 00: Focusing on the claim, all of that has already been conceded. [00:02:33] Speaker 00: Broadcom developed the register, the clock tree driver, and the register is controlled by a clock tree driver. [00:02:39] Speaker 00: That's how it was designed, and that's all 25C requires. [00:02:43] Speaker 00: Ultimately, on this issue, the Commission should be reversed for two reasons. [00:02:47] Speaker 00: First, the Commission failed to ground its analysis of the technical prong in the claim, as precedent requires. [00:02:52] Speaker 00: And second, the commission failed to use infringement principles to analyze Broadcom's industry in its use, development, and sale of its new low-power SOCs. [00:03:02] Speaker 00: On the finding of infringement, the commission should be affirmed for two reasons. [00:03:06] Speaker 00: First, the interview... Yes, Your Honor. [00:03:10] Speaker 02: I'm sorry to interrupt your summary there, but I understand that you're moving on to the other issue, and I just wanted to make sure I asked you some questions on that domestic industry question. [00:03:22] Speaker 02: I think that your point is that the language at least one register that is controlled by a clock tree driver doesn't say anything about a memory nor does anything else in the claim. [00:03:33] Speaker 02: But in your system, I think it's undisputed that the clock tree driver is located in the memory. [00:03:39] Speaker 02: So I have a question for you. [00:03:40] Speaker 02: It seems to me that the ITC interpreted this claim to require [00:03:45] Speaker 02: the language at least one register that is controlled by a clock tree driver to actually require the clock tree driver at least have the register be connected to one actively. [00:03:55] Speaker 02: Did you seek an interpretation of the language at least one register that is controlled by a clock tree driver before the ITC? [00:04:02] Speaker 02: Because I don't see where that term has been interpreted. [00:04:05] Speaker 02: And if you did seek a particular interpretation of that language, where would I find that in the appendix? [00:04:14] Speaker 00: Your Honor, we did not seek interpretation at the claim construction stage. [00:04:19] Speaker 00: The argument came up by the respondents that we did not demonstrate a complete system. [00:04:25] Speaker 00: And our response in our post-hearing brief was that the complete system is not required because the memory is not a claim requirement. [00:04:33] Speaker 00: So that was in our post-hearing brief. [00:04:36] Speaker 02: And... What if that claim doesn't require a clock tree, Director? [00:04:42] Speaker 02: I agree with you, it doesn't require memory, but where is your argument that the lane would release one register that is controlled by a clock tree driver requires a register but not a clock structure for a clock tree driver? [00:04:54] Speaker 02: Where is that argument, if you made it? [00:04:59] Speaker 00: Your Honor, in the briefing below, we demonstrated, and our argument was that we were required to show a register and a register that was controlled by the clock tree driver. [00:05:09] Speaker 00: And we made that argument before the ALJ. [00:05:13] Speaker 00: And the ALJ, in fact, found that in our favor. [00:05:16] Speaker 00: And this is in Appendix 101, where the ALJ acknowledges that the registers referenced by Broadcom source code are controlled by a clock tree driver implemented in source code file-to-code.c. [00:05:29] Speaker 00: And she cited our expert for support. [00:05:32] Speaker 00: She also found in our favor that the clock tree driver was located on the SOC hardware. [00:05:39] Speaker 00: Her particular finding that we didn't practice this claim element referred to an external memory, which, as Your Honor correctly demonstrates, we say is not required by the claims. [00:05:49] Speaker 00: But as far as the physical presence on the SOC hardware, the ALG did find that in our favor. [00:05:54] Speaker 00: And she did that on [00:05:58] Speaker 00: APPX 104, and she describes the interloop ARC processor. [00:06:02] Speaker 00: That's a processor within the SOC. [00:06:04] Speaker 00: And she says, in her own words, it's in the domestic industry products, and it writes a value to the registers in question. [00:06:11] Speaker 02: She cites to our experts at... On the page, Appendix 104, and could you point me to the language and about where on the page I should be looking? [00:06:21] Speaker 02: That would be helpful. [00:06:24] Speaker 00: Yes, Your Honor. [00:06:25] Speaker 00: Let me... [00:06:26] Speaker 00: Let me open it up so I can find the page location. [00:06:40] Speaker 00: So it's at the very bottom of the page, Your Honor, and it's with respect to claim element 25D, but we used precisely the same proof and evidence to disclose that. [00:06:50] Speaker 00: Claim element 25D requires a processor that overwrites [00:06:54] Speaker 00: And it is in fact that interloop processor overwriting that is a right to this register. [00:07:00] Speaker 00: In effect, claim element 25D is similar to 25C. [00:07:07] Speaker 00: We use the same proof and it's a bit of a paradox that the ITC found that we satisfied D without C. So it's the very bottom there where she explains that our expert [00:07:21] Speaker 00: identified that the interloop arc processor in the domestic industry products writes a new value to the registers in question. [00:07:28] Speaker 00: What's important is she cites to our expert at CX0006C at Q&A 201, and that translates to Appendix 1763. [00:07:38] Speaker 00: That's where our expert explains that the interloop processor actually executes code decode.c. [00:07:45] Speaker 00: That's the clock tree driver firmware as the ALJ found elsewhere. [00:07:49] Speaker 02: The only concern I have with this page you've cited for me is the sentence that precedes the one you've identified. [00:07:56] Speaker 02: It's in the section above, but it does relate to the limitation at issue and says Broadcom is failed to identify any actual articles practicing the clock tree driver limitation of claim 25. [00:08:09] Speaker 00: Yes, Your Honor, and that relies on the discussion just before that where [00:08:15] Speaker 00: the ALJ believe that we require demonstration of an external memory, which we do not, both within the claims and as a functional aspect of the product itself, because... But it's not the memory that contains the ClockTree driver software, right? [00:08:34] Speaker 00: Sorry, it may have cut out... [00:08:36] Speaker 02: Outline for that page says Broadcom has not identified any particular step-top box or any specific memory that contains the ClockTreeDriver software. [00:08:45] Speaker 02: I'm just trying to understand. [00:08:46] Speaker 02: So I just want to make sure that we're talking about the same thing, that, you know, it's not that the ALJ just said a memory. [00:08:55] Speaker 02: It said a memory that contains the ClockTreeDriver software because that's where the ClockTreeDriver software is located in your domestic industry product, right? [00:09:06] Speaker 00: No, and two responses to that. [00:09:08] Speaker 00: It is located on the processor itself. [00:09:13] Speaker 00: So that is a physical place where it is located. [00:09:15] Speaker 00: And that's the only portion that's actually claimed. [00:09:18] Speaker 00: That's, again, 25D. [00:09:19] Speaker 00: I'm expanding the universe a little bit. [00:09:22] Speaker 00: And that is a physical location that is executed. [00:09:25] Speaker 00: When it's executed, it physically resides there. [00:09:28] Speaker 00: So a memory isn't required at all. [00:09:30] Speaker 00: But if a memory was required, [00:09:32] Speaker 00: then we've explained in our briefing based on testimony from our fact witness that it is located on an internal memory within the SOC as well. [00:09:42] Speaker 00: Our customers use it with an external memory. [00:09:46] Speaker 00: And the testimony that both the commission and the intervener cite about external memory all have to do with our customer use. [00:09:53] Speaker 00: But our customer use is irrelevant. [00:09:57] Speaker 00: It is the Broadcom New Low Power SOC is our domestic industry product and we have shown both memory and processor physically located on the SOC hardware that contains that firmware. [00:10:09] Speaker 00: So the ALJ's ruling that we haven't shown a specific memory and she says external memory elsewhere is fixated on this idea that we need an external memory. [00:10:18] Speaker 00: So this is either a misapplication of claim construction, [00:10:22] Speaker 00: or a misapplication of this course precedent in Microsoft versus the International Trade Commission. [00:10:28] Speaker 00: Because we believe that is the case that properly aligns with this course precedent. [00:10:34] Speaker 00: And we also believe that the ALJ was applying an argument that was primarily directed to a different patent, the 027 patent. [00:10:43] Speaker 00: It does have an express memory requirement in it. [00:10:46] Speaker 00: And that's an interesting thing. [00:10:48] Speaker 02: One last question. [00:10:49] Speaker 02: On page A, what would you do [00:10:52] Speaker 02: I take it then you completely disagree with the statement by the ALJ that Broadcom does not dispute the declaimed clock tree driver stored on the external memory separate from ECM7260? [00:11:07] Speaker 00: So we would not dispute that some of our customers use it that way, but we don't dispute that that's how the product must operate because we do it with an internal memory which is demonstrated in our testing documents [00:11:21] Speaker 00: that the HEVD low power specification that we cite repeatedly, Appendix 1900 and 1938, are two of them that show specific tests with respect to the clock tree driver firmware actually running on the SOC hardware itself. [00:11:37] Speaker 00: And that's not customer use. [00:11:39] Speaker 00: So that doesn't require an external memory. [00:11:42] Speaker 00: So it depends how your honor interprets that. [00:11:45] Speaker 00: But the fact that an external memory is required, we absolutely dispute that. [00:11:51] Speaker 00: But I don't know that that was the ALJ's finding. [00:11:53] Speaker 00: She seemed to believe that we needed to rely on our customer's product. [00:11:58] Speaker 00: And that's the commission's error. [00:12:03] Speaker 00: In fact, Your Honor, I would like to focus on this court's precedent a little bit before I move on to the next. [00:12:11] Speaker 00: I don't have a lot of time here, but I'll focus on Alec briefly. [00:12:15] Speaker 00: And this court stated that, [00:12:17] Speaker 00: It's essentially the same test as infringement. [00:12:19] Speaker 00: You look at the claims and you apply it to the product. [00:12:22] Speaker 00: And that's precisely the right method and the method applied in the Microsoft case, which is the only support that the commission and interveners look at. [00:12:30] Speaker 00: In that case, the claims at issue were directed to a mobile device. [00:12:35] Speaker 00: And this court followed the procedure and Alex correctly asking the question, did Microsoft develop a mobile device to practice a patent? [00:12:43] Speaker 00: And the answer was no. [00:12:44] Speaker 00: because Microsoft made software alone, and it was required to look at third-party products. [00:12:50] Speaker 00: The Nokia, a mobile device, was what Microsoft identified as a product that practiced patent, and that's why the focus became on the customer use. [00:12:59] Speaker 00: And so it's an improper application of Microsoft that the commission appears focused on the same. [00:13:04] Speaker 00: There's an important distinction here. [00:13:06] Speaker 00: Broadcom makes everything, the entire claim system in-house, and we don't have to rely on any component by any other company to achieve that. [00:13:13] Speaker 00: So the Microsoft case doesn't apply here. [00:13:17] Speaker 00: Moving on very briefly to Claim 17 infringement, we believe that the commission should be affirmed there because the commission effectively, pardon me, the intervener's challenge asked for a redo on claim construction asking that this court undo an agreement that they made years ago. [00:13:36] Speaker 00: And even if permitted, their substantial evidence challenge was failed because they ignore most of the evidence [00:13:42] Speaker 00: that the commission relies upon in that case. [00:13:45] Speaker 00: Your Honor, I see I'm over time, so I'll reserve the rest for rebuttal. [00:13:48] Speaker 03: We will save you three minutes. [00:13:53] Speaker 03: Mr. Johnson, Ms. [00:13:55] Speaker 03: Fritzbach? [00:13:57] Speaker 01: Yes. [00:13:58] Speaker 01: May it please the court? [00:14:00] Speaker 01: I would like to start with the 583 patent and the technical prong finding. [00:14:04] Speaker 01: And specifically, I'd like to spend some time on the clock tree driver limitation and whether it's required. [00:14:11] Speaker 01: There was no dispute before the administrative law judge or the commission that the clock tree driver was required as part of claim 25. [00:14:18] Speaker 01: And this is shown even during the claim construction of a different, the at least one processor term, the ALJ found that during prosecution of the 583 patent, the applicant faulted the examiner for failing to identify a clock tree driver disclosed in the prior art. [00:14:36] Speaker 01: And that's at APPX 87, and Broadcom never sought review of that finding. [00:14:42] Speaker 01: Broadcom tried to compare the technical problem arguments to its infringement arguments. [00:14:47] Speaker 01: And I think that is important to look at. [00:14:49] Speaker 01: Broadcom argues for infringement based on accused products that include an SOC, the head unit that it's installed in, all the way to the automobile that the head unit's installed in. [00:15:01] Speaker 01: So it's just a much larger universe than just the SOC that they've identified for their domestic industry product. [00:15:08] Speaker 01: And Broadcom actually argued for infringement [00:15:12] Speaker 01: that this Claim 25 requires hardware and software. [00:15:15] Speaker 01: The required software is the ClockTree driver, and that's at APPX 2428. [00:15:21] Speaker 01: So there's no dispute here that the ClockTree driver is required. [00:15:26] Speaker 01: What the administrative law judge found is that on the system identified by Broadcom, which was only a system on a chip, that did not include the ClockTree driver. [00:15:38] Speaker 01: Therefore, it didn't meet the claim limitation. [00:15:41] Speaker 01: So essentially Broadcom is now arguing on appeal for a case that it didn't make below. [00:15:45] Speaker 01: The commission opinion specifically found that Broadcom waived any reliance on its firmware together with the identified SOC as the domestic industry product. [00:15:57] Speaker 01: And the file that was identified as part of that firmware. [00:16:00] Speaker 02: Counsel, this is Judge Stowell. [00:16:02] Speaker 02: I don't see Broadcom carrying that argument forward. [00:16:05] Speaker 02: I see them relying on the SOC alone on appeal before us. [00:16:09] Speaker 02: Do you agree with that? [00:16:11] Speaker 01: I don't agree with it just because of the way that they've relied on the additional, the firmware to kind of backfill where this clock tree driver is missing. [00:16:20] Speaker 01: So they've stated repeatedly that there was no dispute that it was actually implemented. [00:16:24] Speaker 01: And we disagree. [00:16:25] Speaker 01: We think that that's what the ALJ found. [00:16:27] Speaker 01: You know, as Your Honor pointed to that finding in the initial termination at 104, that Broadcom failed to identify the actual articles practicing the limitation because there was not implementation of the clock tree driver [00:16:41] Speaker 01: on the SOC. [00:16:45] Speaker 02: Okay. [00:16:45] Speaker 02: Thank you. [00:16:47] Speaker 01: Yes. [00:16:47] Speaker 01: So, you know, to establish the violation of Section 337, Broadcom had to demonstrate there was a domestic industry related to articles protected by the 583 patent. [00:16:58] Speaker 01: So, here in their post-hearing brief, they include a specific section entitled Broadcom Domestic Industry Products, and that's at 8PPX528. [00:17:10] Speaker 01: And in that section, they specifically define that SOC part numbers. [00:17:16] Speaker 01: They don't mention the firmware. [00:17:19] Speaker 01: So this case actually is like Microsoft. [00:17:23] Speaker 01: And while Council for Broadcom has mentioned that the Microsoft patent included claims that required applications on the phone, that's only true for the 376 patent. [00:17:35] Speaker 01: And there are actually two patents for which Microsoft failed to satisfy a technical prompt. [00:17:41] Speaker 01: Even regardless of the claim limitations in Microsoft, what matters is what's defined as the domestic industry product. [00:17:49] Speaker 01: So here, there is the system on a chip that had to meet the claim limitations for the claim 25 system. [00:17:57] Speaker 01: It simply doesn't meet those claim limitations because it doesn't include the clock tree driver. [00:18:03] Speaker 01: Just as in Microsoft, there's insufficient proof here that the clock tree driver is actually implemented on that domestic industry SOC. [00:18:13] Speaker 01: You know, Broadcom essentially is asking this court to reweigh a highly technical evidentiary record regarding the 583 patent. [00:18:22] Speaker 01: But substantial evidence supports the commission's determination that the technical prong was not satisfied and it should be affirmed. [00:18:30] Speaker 01: There was no specific finding. [00:18:33] Speaker 03: Was the commission's determination the same as in the initial decision? [00:18:40] Speaker 01: The commission affirmed the findings that the technical problem was not met. [00:18:44] Speaker 01: It provided an additional analysis. [00:18:46] Speaker 01: And so that's what I touched on briefly, that the commission actually found a waiver of this argument that would incorporate the SOC and the firmware together. [00:18:57] Speaker 01: And that argument was waived, and that's not an abuse of discretion on the commission's part. [00:19:03] Speaker 01: The deficiency in Broadcom's identification of its domestic industry product [00:19:09] Speaker 01: was identified very early in the investigation. [00:19:11] Speaker 01: Even in respondents' pre-hearing brief, they argued that Broadcom identified the SOC alone as a domestic industry product. [00:19:20] Speaker 01: And that argument was made at APPX 51054. [00:19:24] Speaker 01: So I know now they're trying to say that the SOC includes the clack tree driver and that it is implemented on the processor. [00:19:34] Speaker 01: But that's contrary to its own engineer's testimony. [00:19:37] Speaker 01: So the engineer, Broadcom's engineer, testified before the ALJ that the clock tree driver is not found on the domestic industry SOC. [00:19:46] Speaker 01: And as Your Honor pointed out, Broadcom did not dispute that point before the administrative law judge. [00:19:53] Speaker 02: Do you have a citation to the appendix for that testimony? [00:19:58] Speaker 01: I do. [00:19:58] Speaker 01: It's explained in our brief at page 39. [00:20:03] Speaker 01: But the citation to it is a little bit long in the [00:20:06] Speaker 01: in the hearing, it's at, give me one minute, it's actually in the hearing testimony, so it's like 1-0-1-1-0, so 1-1-1, but it's explained in our brief at page 39. [00:20:34] Speaker 01: Based on that testimony, that the clock tree driver was not present on the domestic industry product, the administrative law judge found that the claim limitation wasn't met. [00:20:44] Speaker 01: Now Broadcom points to the other claim limitation regarding a processor, but as I've mentioned, they don't dispute that this claim requires both hardware and software. [00:20:56] Speaker 01: So what's missing here is the clock tree driver software that is a required part of the system, [00:21:02] Speaker 01: and it's not present on their domestic industry product. [00:21:07] Speaker 01: I would like to touch on briefly the Administrative Procedure Act argument that they have for the 752 patent if the court has no further questions regarding the technical prong. [00:21:18] Speaker 03: No, proceed. [00:21:20] Speaker 01: Thank you, Your Honor. [00:21:21] Speaker 01: So regarding the 752 patent, Brad comes to me with the argument that the Commission's decision is not in conformance with the Administrative Procedure Act. [00:21:31] Speaker 01: And that's contrary to the actual record below. [00:21:35] Speaker 01: So unlike the cases cited by Broadcom, there's no new combination here. [00:21:41] Speaker 01: Claim five is invalid based on a combination of C and foster. [00:21:47] Speaker 01: And there was additional process before the commission that was not present in the patent trial and appeal board cases on which Broadcom relied. [00:21:56] Speaker 01: So Broadcom raised its 752 patent arguments regarding the paragraph 44 [00:22:01] Speaker 01: and the reasonable expectation of success. [00:22:03] Speaker 01: Before the commission had petitioned for review, Broadcom's petition did not seek to remand the administrative law judge for further evidence or ask to reopen the record. [00:22:14] Speaker 01: And the commission granted the petition and reviewed those findings. [00:22:19] Speaker 03: Right. [00:22:20] Speaker 03: Have you finished your thought, counsel? [00:22:24] Speaker 01: I did, your honor. [00:22:25] Speaker 01: Thank you. [00:22:26] Speaker 03: Okay. [00:22:27] Speaker 03: Thank you very much. [00:22:28] Speaker 03: We'll hear from Mr. Matsui now. [00:22:32] Speaker 04: Thank you, Your Honor. [00:22:33] Speaker 04: May it please the court, Brian Matsui, for the interveners. [00:22:36] Speaker 03: Substantial evidence... I might say this is a battle of the Brian's. [00:22:40] Speaker 04: It is, Your Honor. [00:22:43] Speaker 04: Substantial evidence supports the Commission's no-votilation determination. [00:22:46] Speaker 04: On issue after issue, the ALJ and Commission squarely address disputed issues and resolve them on the facts against Broadcom. [00:22:53] Speaker 04: Broadcom's repeated contention that the issues on appeal were undisputed simply cannot be reconciled with any reading of the record. [00:23:00] Speaker 04: And this court should reject as waived, just as the commission did, Broadcom's 11th hour attempts to recast its case. [00:23:08] Speaker 04: And I think it's important to emphasize that commission's waiver finding. [00:23:11] Speaker 04: This is a waiver finding that Broadcom waived by failing to challenge it in its opening brief. [00:23:17] Speaker 04: And there should be great deference to that agency determination. [00:23:20] Speaker 04: At Appendix 19, [00:23:23] Speaker 04: the commission specifically found, and it said, the commission specifically finds that Broadcom's DI products with respect to the 5A3 patent is only the SOC and does not include customer set-top boxes or a larger system. [00:23:38] Speaker 04: And then it goes on to say, to the extent Broadcom argued in its petition that the DI products are a system or something other than the SOCs, Broadcom waived that argument because it was not presented to the ALJ. [00:23:51] Speaker 04: Now before this court, [00:23:52] Speaker 04: Broadcom is definitely arguing that it's something more than the SOC. [00:23:56] Speaker 04: So we just look at page five of the reply brief that they filed. [00:24:00] Speaker 04: They say, in the middle of that page, as detailed below, Broadcom calls this system its new low-power SOC, which includes this register. [00:24:09] Speaker 04: I don't want to say it because it's highlighted, and new low-power firmware, parentheses, clock tree driver. [00:24:17] Speaker 04: So it's expanded its argument to include [00:24:21] Speaker 04: a clock tree driver, which is not on the SOC. [00:24:24] Speaker 04: And it conceded that before the ALJ. [00:24:27] Speaker 04: As the commission's counsel just said at Appendix 101-11, Broadcom's own witness, Mr. Hellman, an engineer, conceded facts that support the board, the commission's finding that there's no software installed on the chip to no clock tree driver. [00:24:45] Speaker 04: He said it's stored in external memory. [00:24:48] Speaker 04: So right there, [00:24:50] Speaker 04: the commission was more than reasonable to rely upon that concession to say that there's no clock tree driver in the SOCs. [00:25:02] Speaker 04: And that's substantial evidence. [00:25:03] Speaker 04: The mere fact that Broadcom might be able to point to conflicting evidence under the substantial evidence standard doesn't mean that there should be a different conclusion. [00:25:15] Speaker 04: A couple other points I just would like to make. [00:25:17] Speaker 04: Again, just to reiterate, Broadcom has always argued that there is a clock tree driver that is required at Appendix 2417 in their brief to the Commission. [00:25:28] Speaker 04: Broadcom argued, claim element 25C can be broken down into three components, at least one register, and two, a clock tree driver, where three, the clock tree driver controls at least one register. [00:25:42] Speaker 04: So right there, they are admitting [00:25:46] Speaker 04: to the commission that this clock tree driver is required. [00:25:51] Speaker 04: It needs to be in their article and it was not there because their engineer conceded that it's not. [00:25:59] Speaker 04: And this is not a claim construction dispute. [00:26:02] Speaker 04: I disagree with Broadcom's counsel saying that there was a requirement of memory. [00:26:07] Speaker 04: The issue isn't that memory is required. [00:26:09] Speaker 04: It's that a clock tree driver is required by the claims [00:26:13] Speaker 04: And Broadcom's witnesses said that that clock tree driver is going to be stored on memory. [00:26:19] Speaker 04: And so the fact that there's not a clock tree driver because there's not memory just underscores the failure of proof in this case. [00:26:32] Speaker 03: You did note that it was in the external memory. [00:26:36] Speaker 03: In other words, it's involved. [00:26:39] Speaker 03: It's not absent. [00:26:42] Speaker 04: He knows it's in external memory that is not the SOC. [00:26:48] Speaker 04: And so the problem they have is that they identify their domestic industry article as the SOC alone. [00:26:55] Speaker 04: And they did not include in it anything, any firmware that would be sort of on external memory. [00:27:01] Speaker 04: And so when you just identify the chip itself, that means that their article does not include a clock tree driver. [00:27:11] Speaker 04: And even if we were to sort of, you know, separately look at, this is the waived argument, even if we were to sort of separately look at the more complete system, which they're arguing now, you know, at page five in the reply brief, the commission addressed that and said that that evidence of testing, of development, was just vague and unsubstantiated. [00:27:35] Speaker 04: And that's at Appendix 23, where [00:27:40] Speaker 04: If you look at the commission just said, Hellman's so-called testimony, Hellman's testimony was vague. [00:27:46] Speaker 04: There's no evidence that specifically identifies it. [00:27:49] Speaker 02: Yes? [00:27:49] Speaker 02: Counsel, let's say Hellman's testimony was vague. [00:27:51] Speaker 02: Could you be more specific? [00:27:53] Speaker 02: You're right. [00:27:53] Speaker 02: I apologize. [00:27:55] Speaker 02: It says no evidence. [00:27:56] Speaker 02: I'm sorry? [00:27:58] Speaker 02: What you think what you mean by vague is that it doesn't even identify. [00:28:02] Speaker 02: It's not related specifically, for example, to this register or this clock tree driver. [00:28:07] Speaker 02: It's directed more generally. [00:28:09] Speaker 02: to how we develop all sorts of different chips, not the SOC. [00:28:16] Speaker 02: Am I right about that? [00:28:17] Speaker 04: It is. [00:28:19] Speaker 04: When I looked at all the recitations in the reply brief and in the opening brief, it's basically testimony that just talks about research and development, the fact that they work with customers to develop software and firmware, but none of that relates specifically to [00:28:39] Speaker 04: any sort of clock tree driver that would be used with their SOCs. [00:28:45] Speaker 04: And under the substantial evidence standard of review, the commission could easily discount that type of evidence as not being specific enough to show that there is a clock tree driver in this case. [00:29:00] Speaker 04: I know that the Council for Broadcom didn't discuss the 752 patent, [00:29:07] Speaker 04: But substantial evidence supports the ALJ's and Commission's determination that those claims are unpatentable. [00:29:16] Speaker 04: I'm happy to ask any questions that the court might have. [00:29:22] Speaker 03: That also was involved in the 1511 case, isn't it? [00:29:27] Speaker 04: That's correct, Your Honor. [00:29:32] Speaker 03: Thank you, Mr. Johnson. [00:29:33] Speaker 03: Anything further? [00:29:34] Speaker 04: No, Your Honor. [00:29:36] Speaker 04: We would ask that the commission be affirmed. [00:29:39] Speaker 03: Mr. Matsui, sorry. [00:29:41] Speaker 03: Mr. Johnson has three minutes for a bottle. [00:29:46] Speaker 00: Yes, thank you, Your Honor. [00:29:47] Speaker 00: I'd like to address a few points raised by the commission and interveners. [00:29:50] Speaker 00: First, the commission said that we are asking this court to reweigh the evidence, and that is a complete mischaracterization of our position here. [00:29:58] Speaker 00: Our position is that this was a misapplication of the claim construction analysis. [00:30:03] Speaker 00: There is a requirement of a memory held by both the ALJ and the Commission, and we do not require that. [00:30:09] Speaker 00: And with respect to the actual facts, the ALJ's findings alone are sufficient to demonstrate that absent this wrong requirement of a memory, Broadcom's new low-power SOCs practice every element of the claim. [00:30:22] Speaker 00: Now, the Commission made the argument that we waived [00:30:26] Speaker 00: use of firmware in establishing the technical prong. [00:30:29] Speaker 00: The interveners did not appear to join that in briefing, but may have today. [00:30:33] Speaker 00: Regardless, it is inaccurate. [00:30:35] Speaker 00: We presented both the hardware and the firmware. [00:30:38] Speaker 00: That's how we defined our new low-power SOCs. [00:30:41] Speaker 00: That's how it's defined in all of our HEVD low-power specifications at Appendix 1900. [00:30:47] Speaker 00: But the most important citation, perhaps, is the ALJ's findings, where she correctly recognized that we relied on firmware all along. [00:30:55] Speaker 00: At Appendix 101, she identifies correctly that our clock tree driver is source code file decode dot C. That's software. [00:31:04] Speaker 00: And then at Appendix 104, she recognizes that the interloop processor runs that software and she cites to our expert at CX6 Q&A 201 describing the operation of our [00:31:17] Speaker 00: of our decode.c. [00:31:19] Speaker 00: The ALJ in her own words talks about what is a software overwrite and our description of firmware. [00:31:26] Speaker 00: So the idea that we did not present firmware below is not consistent with the record. [00:31:32] Speaker 00: And finally I'd like to address Mr. Hellman's testimony and I'd like to expand the citation a little bit because in full context his testimony supports what Broadcom's argument has been all along. [00:31:44] Speaker 00: It's in 10109.3-10110.2. [00:31:47] Speaker 00: And in that question and answer segment, Mr. Hellman testified that in the context of our customer usage, that the customer's [00:31:59] Speaker 00: did not ran firmware and there wasn't sufficient memory on the SOC itself to run all of the firmware that may be executed by customers. [00:32:07] Speaker 00: Then the questioner directed it specifically to the VIVE A3 patent and asked about that. [00:32:12] Speaker 00: His response then was that it is moved on to internal memory and executed in the interloop arc processor. [00:32:19] Speaker 00: So to the degree of memory is required and we [00:32:21] Speaker 00: fervently disagree with that proposition, but if it is, the internal memory is right there. [00:32:28] Speaker 00: That was his testimony in the context of the 583 patent, and it's executed on the Interlubar processor, and that's consistent with the ALJ found in Appendix 104. [00:32:38] Speaker 02: With respect to the... Let me start very quickly. [00:32:40] Speaker 02: I'm sorry. [00:32:40] Speaker 02: Could you repeat those sites that you just gave? [00:32:43] Speaker 02: I did not get that. [00:32:45] Speaker 00: Yes. [00:32:45] Speaker 00: The Hellman sites were 10103.3, [00:32:51] Speaker 00: through 10-110.2, the appendix findings to the ID regarding the... I just pointed to Hellman. [00:33:00] Speaker 02: I'm good. [00:33:00] Speaker 02: Thank you. [00:33:01] Speaker 02: Please proceed. [00:33:04] Speaker 00: And finally, very quickly, the Commission's findings with respect to the testimony of Mr. Hellman and whether it was specific enough [00:33:11] Speaker 00: Importantly, there was other testimony from Mr. Hellman in question 71 to 76 specific to the 5A3 patent that the commission did not cite. [00:33:21] Speaker 00: And that is the evidence that shows our new low-power technology. [00:33:25] Speaker 00: It shows both hardware and software, and it happens to be the very specification our expert relied on to show satisfaction of all the claim elements. [00:33:32] Speaker 00: And very critically, it shows the testing of revision Q2 and revision R that we conducted [00:33:38] Speaker 00: on the internal memory and processor. [00:33:40] Speaker 00: So that's a specific article protected by the patent. [00:33:43] Speaker 00: Thank you, Your Honors. [00:33:44] Speaker 03: Thank you, Counsel. [00:33:45] Speaker 03: As you observed, we have a clock driver here, too. [00:33:49] Speaker 03: Thank you to both counsel, all counsel, and the cases submitted.