[00:00:00] Speaker 03:
Is 21-1517 clear 1 versus Shure acquisition holding?

[00:00:04] Speaker 03:
Mr. Phillips, please proceed.

[00:00:11] Speaker 02:
Thank you, Your Honors, and may it please the Court.

[00:00:15] Speaker 02:
If Shure is allowed to get away with its non-disclosure of Levitt and Gilbranson in this case, then the duty of disclosure in AIA trials means nothing.

[00:00:25] Speaker 02:
SURE had both references during the IPR.

[00:00:28] Speaker 02:
The only questions are whether each was material at the times when the motions to amend were filed.

[00:00:34] Speaker 02:
And they aren't.

[00:00:35] Speaker 02:
Nothing else matters.

[00:00:36] Speaker 02:
Not ClearOne's diligence, not SURE's intent, not any of the other irrelevant considerations that the board analyzed.

[00:00:45] Speaker 02:
Let's talk about intent.

[00:00:47] Speaker 02:
According to SURE, it made a self-serving unilateral decision with both references that they were not material.

[00:00:55] Speaker 02:
Is that the type of behavior we want the law to incentivize?

[00:00:59] Speaker 02:
No.

[00:01:00] Speaker 02:
Intent should have no role in the duty of disclosure analysis.

[00:01:04] Speaker 02:
The board's cases say that when a patent owner files a motion to amend, it is under an obligation to disclose all material information in its possession, period.

[00:01:15] Speaker 02:
Not just to disclose material information.

[00:01:20] Speaker 03:
Mr. Phillips, I'm understanding you to be starting

[00:01:25] Speaker 03:
your argument with whether or not the board abuses discretion in denying the sanctions motion or denying your ability to even file a sanctions motion.

[00:01:35] Speaker 03:
Is that correct?

[00:01:36] Speaker 02:
That is correct.

[00:01:36] Speaker 03:
OK.

[00:01:37] Speaker 03:
So what you're kind of addressing feels very much like the merits of whether you should prevail on a sanctions motion.

[00:01:46] Speaker 03:
Can you try to distinguish for me

[00:01:48] Speaker 03:
The board in this case denied you the ability to even file one, which we review for abusive discretion.

[00:01:54] Speaker 03:
And it gave a lot of different reasons.

[00:01:57] Speaker 03:
Correct.

[00:01:58] Speaker 03:
And some of them weren't really merits.

[00:02:00] Speaker 03:
Some of them were your motion appears to be identical to your prior rehearing motion in substance, which we already decided.

[00:02:08] Speaker 03:
That is not a merits-based reason, but rather, it seems to me, a discretionary sort of reason.

[00:02:15] Speaker 03:
Why don't you address that?

[00:02:17] Speaker 03:
Because it seems to me any one of those independent reasons they gave could be used to say they didn't abuse their discretion in doing it.

[00:02:25] Speaker 03:
So even if you were right on the materiality point, the board has discretion.

[00:02:30] Speaker 03:
And they gave at least four different reasons for why they were not going to allow you to file the motion itself.

[00:02:38] Speaker 03:
So why don't you try to start with, for example, the one I just raised, which is

[00:02:42] Speaker 03:
It appears as though your arguments in this motion were identical to the arguments you had raised in an earlier motion that they fully adjudicated.

[00:02:53] Speaker 02:
Yes.

[00:02:53] Speaker 02:
We attempted to raise the same issue in our request for rehearing.

[00:02:58] Speaker 02:
And the board properly recognized that this failure to disclose the references is not a rehearable issue.

[00:03:06] Speaker 02:
We were trying to fit a square peg in a round hole

[00:03:12] Speaker 02:
But that's not a reason to deny the sanctions motion.

[00:03:18] Speaker 02:
The standard for rehearing is extremely high.

[00:03:20] Speaker 02:
We didn't meet that standard.

[00:03:22] Speaker 02:
And it's a different standard.

[00:03:23] Speaker 03:
Well, you think the standard for sanctions is less high?

[00:03:27] Speaker 02:
It's a different standard.

[00:03:28] Speaker 02:
It is also higher, certainly.

[00:03:29] Speaker 02:
But less high?

[00:03:31] Speaker 02:
In some respects.

[00:03:31] Speaker 03:
What are the two different standards, precisely?

[00:03:34] Speaker 02:
Well, for rehearing, you have to show that the board misapprehended or overlooked some item of consequence.

[00:03:42] Speaker 02:
And they didn't in this case, because Goldbrandt's and 11th were disclosed.

[00:03:45] Speaker 02:
They weren't in the trial.

[00:03:46] Speaker 02:
They weren't overlooked or misapprehended.

[00:03:49] Speaker 02:
For sanctions, we have to show that the references were in the possession of the patent owner.

[00:03:57] Speaker 02:
We did.

[00:03:57] Speaker 02:
That they're material, and they are non-cumulatively material.

[00:04:02] Speaker 02:
And that should be the end of the inquiry.

[00:04:04] Speaker 03:
Not true.

[00:04:05] Speaker 03:
The board has discretion to award sanctions.

[00:04:09] Speaker 03:
They have discretion to decide whether even let you file a motion to award sanctions.

[00:04:14] Speaker 03:
And when they have that discretion, they can choose for a whole host of reasons beyond what you just said, even if there appears to be merit that sanctions aren't warranted in this case, like in this case where they suggested

[00:04:26] Speaker 03:
that there was some bad action on both sides.

[00:04:30] Speaker 03:
That's a reason in lots of cases, for example, attorney's fees are denied, even though there is, in fact, a prevailing party.

[00:04:37] Speaker 02:
Yeah, let me address that.

[00:04:39] Speaker 02:
The board thought that we were taking a second bite at the apple by raising the sanctions issue.

[00:04:45] Speaker 02:
We were not.

[00:04:45] Speaker 02:
We won the IPR.

[00:04:47] Speaker 02:
ClearOne is thrilled with the condition of the 493 patent, wounded as it is.

[00:04:54] Speaker 02:
That is not why we are here.

[00:04:57] Speaker 02:
We did not need to or want to take a second bite at the apple in terms of patentability here.

[00:05:03] Speaker 02:
But we were shocked and appalled that Sure did not disclose these references in the IPR, but then used them offensively as a weapon in the PGR.

[00:05:14] Speaker 03:
And there's a- You really being shocked and appalled are the exactly right adjectives to throw at a scenario like this.

[00:05:24] Speaker 03:
There's a lot of stuff in the world that I'm shocked and appalled at.

[00:05:28] Speaker 03:
This behavior, even as alleged, doesn't really come close to something like that for me.

[00:05:34] Speaker 03:
You must live a really great life.

[00:05:38] Speaker 03:
Go ahead.

[00:05:38] Speaker 03:
Keep going.

[00:05:39] Speaker 02:
Well, I will add, Your Honor, that there is

[00:05:43] Speaker 02:
a bad history between these parties.

[00:05:46] Speaker 02:
And from a clear one's perspective, there's a history and a pattern of bad behavior, by sure.

[00:05:53] Speaker 02:
And Judge Moore, you may have seen some of that from the last appeal that was up at this court, from a contempt ruling in the district court.

[00:06:06] Speaker 02:
And this was a tipping point for ClearOne.

[00:06:09] Speaker 02:
And so it wasn't gamesmanship to say, hey, there's a duty of disclosure.

[00:06:13] Speaker 02:
You have these references.

[00:06:14] Speaker 02:
You didn't disclose them.

[00:06:17] Speaker 02:
You should have disclosed them.

[00:06:18] Speaker 02:
There should be some penalty for that.

[00:06:20] Speaker 02:
We didn't get a fair trial because you withheld these references.

[00:06:24] Speaker 02:
That's not gamesmanship.

[00:06:25] Speaker 02:
That's just calling a spade a spade and asking for fair use.

[00:06:29] Speaker 01:
You took your shot with the board.

[00:06:31] Speaker 01:
They disagreed.

[00:06:32] Speaker 01:
Your standard of review here is incredibly high.

[00:06:36] Speaker 01:
We rarely impose sanctions in any kind of case.

[00:06:41] Speaker 01:
And why do you think we would find that the board abused its vast degree of discretion here?

[00:06:48] Speaker 01:
I'm a little baffled about why we're talking about this issue and not the other issue, frankly.

[00:06:54] Speaker 01:
But if you want to waste your argument time on this issue, you can.

[00:06:58] Speaker 01:
I think it's highly unlikely you're going to prevail on an abuse of discretion on what seems like typical litigation posturing.

[00:07:06] Speaker 02:
I do want to address the definiteness issue, certainly.

[00:07:10] Speaker 02:
But let me just say in response to your concern that

[00:07:15] Speaker 02:
Abusive discretion occurs when there is a legal error.

[00:07:18] Speaker 02:
Applying the wrong evidentiary standard, the wrong materiality definition, is a legal error.

[00:07:23] Speaker 02:
Abusive discretion occurs when there is not substantial evidence to support a materiality or cumulativeness of determination.

[00:07:33] Speaker 03:
You have to win when all of those

[00:07:37] Speaker 03:
There are at least four separate reasons that the PTO articulated for why it wasn't going to allow you to file a sanctions motion.

[00:07:47] Speaker 03:
And I'm going to be honest, I think some of your arguments are frivolous.

[00:07:51] Speaker 03:
For example, the preponderance of the evidence versus the clear and convincing evidence one.

[00:07:55] Speaker 03:
I thought that argument was pretty close to frivolous.

[00:07:59] Speaker 03:
And you have to win on all four of them under an abuse of discretion standard.

[00:08:04] Speaker 03:
Continue to use your time as you wish.

[00:08:06] Speaker 02:
OK.

[00:08:07] Speaker 02:
I will turn to the indefiniteness issue, Your Honor.

[00:08:11] Speaker 02:
The phrasing question is arranged in a self-similar configuration.

[00:08:16] Speaker 02:
And there are a number of unanswered questions, such as how could ClearOne or any member of the public design around this limitation?

[00:08:25] Speaker 02:
What is an arrangement of microphones that is not self-similar?

[00:08:30] Speaker 02:
What are the meets and bounds of this term?

[00:08:32] Speaker 02:
The specification does not answer those questions in this case.

[00:08:36] Speaker 02:
The dictionary definitions that the board cited do not answer those questions in this case.

[00:08:42] Speaker 02:
And those are really important questions for clear one.

[00:08:44] Speaker 02:
Even though we don't care so much about the claims of this 493 patent, there are continuation applications that have been filed.

[00:08:53] Speaker 02:
There are foreign counterparts throughout the world.

[00:08:55] Speaker 02:
This problematic language can be perpetuated in many other patents.

[00:09:02] Speaker 02:
And clear one ought to be able to determine is its arrangement of microphones self-similar or not.

[00:09:09] Speaker 05:
Well, let's assume that it's limited to the illustrations and the specification.

[00:09:16] Speaker 05:
Would your argument be any different?

[00:09:18] Speaker 02:
If that's the meets and bounds of the phrase, and nothing more, we wouldn't have an argument.

[00:09:27] Speaker 02:
ClearOne would be able to go about its business, and the public would be able to determine whether an arrangement is the same or not, self-similar or not.

[00:09:36] Speaker 02:
But that's not SURE's position.

[00:09:39] Speaker 02:
SURE has been very clear that those are just two examples in their view of what is a self-similar arrangement.

[00:09:46] Speaker 02:
And we don't know, like, look at figure five, for example.

[00:09:49] Speaker 02:
We don't know what aspect of figure five is self-similar to what other aspect or why.

[00:09:55] Speaker 02:
Schur hasn't told us.

[00:09:57] Speaker 02:
Schur has told us that the size of the rings can be different.

[00:10:01] Speaker 02:
The number of the microphones in the rings can be different.

[00:10:05] Speaker 02:
The rotational offset of the rings can be different.

[00:10:07] Speaker 03:
But the geometric pattern cannot be.

[00:10:10] Speaker 02:
Not so sure.

[00:10:11] Speaker 02:
I mean, the patent mentioned oval shapes.

[00:10:16] Speaker 02:
I don't know if that's self-similar enough to circles or not.

[00:10:21] Speaker 02:
We don't know.

[00:10:22] Speaker 04:
It really sounds like an infringement question.

[00:10:24] Speaker 04:
It sounds like something a jury could easily figure out.

[00:10:28] Speaker 02:
Perhaps.

[00:10:29] Speaker 02:
Perhaps.

[00:10:29] Speaker 02:
But this is an indefiniteness issue.

[00:10:31] Speaker 02:
And there are so many different aspects of similarity that can be varied from pattern to pattern.

[00:10:41] Speaker 02:
It's a question that should be resolved with clear language.

[00:10:47] Speaker 02:
And the dictionary definitions do not help.

[00:10:51] Speaker 02:
Neither party embraced the definitions in the dictionaries.

[00:10:54] Speaker 02:
We certainly did.

[00:10:55] Speaker 03:
But the board looked at the dictionaries, and then the board issued an order that invited the parties to expressly address these dictionary definitions and to proffer its own dictionary definitions if it had alternatives.

[00:11:08] Speaker 03:
Did you do that?

[00:11:09] Speaker 02:
We did not.

[00:11:10] Speaker 02:
We repeated our argument.

[00:11:11] Speaker 03:
So then don't complain about the board looking at dictionary definitions when it actually gave you a chance to offer any argument you have against them, as well as your own competing definitions.

[00:11:23] Speaker 02:
And the argument we offer is that the clarity has to come from the specification.

[00:11:30] Speaker 02:
Self-similar is a term of degree.

[00:11:33] Speaker 02:
So is similar.

[00:11:35] Speaker 02:
The word similar has a dictionary definition, but that doesn't mean that

[00:11:39] Speaker 02:
It's definite in every patent.

[00:11:41] Speaker 02:
The patent specification, or somewhere in the intrinsic evidence, has to provide the standard to know how much similarity is enough to be self-similar.

[00:11:50] Speaker 02:
And in this case, even what type of similarity are we talking about?

[00:11:54] Speaker 02:
And the specification does not answer those questions.

[00:11:58] Speaker 02:
This is indefinite language.

[00:12:01] Speaker 02:
And I'd like to reserve the rest of my time for rebuttal, unless there are other questions, Your Honors.

[00:12:06] Speaker 03:
Sure, Mr. Phillips.

[00:12:07] Speaker 03:
No problem.

[00:12:08] Speaker 03:
Thank you.

[00:12:09] Speaker 03:
Mr. Schaffner?

[00:12:11] Speaker 03:
Mr. Schaffner.

[00:12:12] Speaker 03:
Please proceed.

[00:12:13] Speaker 00:
Good morning, Your Honors.

[00:12:15] Speaker 00:
Joe Schaffner on behalf of Appalachia or Acquisition Holdings.

[00:12:17] Speaker 00:
May it please the court.

[00:12:19] Speaker 00:
This appeal involves two simple issues.

[00:12:23] Speaker 00:
First, the board correctly determined that the term self-similar was definite based on its plain and ordinary dictionary definition.

[00:12:33] Speaker 00:
The board supported that finding by citing relevant dictionaries, by citing the patent, finding that the patent did not diverge from that plain and ordinary meaning, and even citing the testimony of ClearOne's own expert who used the same or similar language to describe what he said was the simplest meaning of the term.

[00:12:52] Speaker 01:
Can I ask you, is figure five self-similar because it's all circles and they're just in different sizes?

[00:12:57] Speaker 00:
Yes, it's because they use a repeating pattern and that pattern is simply concentric circles.

[00:13:02] Speaker 01:
So what if you had a pattern that was squares repeated over and over?

[00:13:06] Speaker 00:
That would also be a repeated pattern.

[00:13:08] Speaker 01:
What about a pattern that is 10 microphones in a row?

[00:13:12] Speaker 00:
Just a line?

[00:13:13] Speaker 00:
Yeah.

[00:13:13] Speaker 00:
That would not be a repeating pattern.

[00:13:15] Speaker 00:
You need to have a repeating pattern.

[00:13:17] Speaker 00:
And the pattern makes that clear.

[00:13:18] Speaker 01:
So for example... Is not 1-1-1-1-1 a repeating pattern?

[00:13:23] Speaker 00:
I don't think a line would be a repeating pattern.

[00:13:25] Speaker 00:
But that's probably an infringement question.

[00:13:27] Speaker 00:
That is definitely an infringement question because we're no longer talking... Or at least a claim construction question.

[00:13:31] Speaker 01:
Excuse me?

[00:13:32] Speaker 01:
Or at least a claim construction question, whether a pattern could include just one microphone.

[00:13:38] Speaker 00:
Certainly, I think that might be a question, yes.

[00:13:40] Speaker 05:
So where do you draw the line between the various shapes that Judge Hughes has mentioned?

[00:13:47] Speaker 05:
For instance, how does one know where it's safe to have the same microphones and when it's not?

[00:13:56] Speaker 00:
So again, the patent makes clear, Your Honor, that what matters is the shape of the arrangement.

[00:14:02] Speaker 00:
It's the shape.

[00:14:03] Speaker 00:
So if you don't have a pattern shape, then you don't fall within the scope of that.

[00:14:10] Speaker 05:
The claim doesn't say the shape.

[00:14:12] Speaker 00:
But it does insofar as it says the microphones are arranged in a self-similar configuration.

[00:14:18] Speaker 00:
There was no dispute at trial that what the arrangement and configuration were were shapes.

[00:14:23] Speaker 00:
Again, that's what their own expert said at paragraph 157 of his declaration, at appendix 3835.

[00:14:29] Speaker 00:
He said what self-similar means is that something that has the same shape

[00:14:34] Speaker 05:
So you're telling us that the claims are sufficiently explicitly limited in view of the specification to a circular shape?

[00:14:45] Speaker 00:
Yes, and the plain meaning of the term.

[00:14:47] Speaker 00:
Because again, the board found that the dictionary definitions for self-similar were things that were copies of themselves.

[00:14:54] Speaker 00:
That is a repeated pattern to use the specifications language.

[00:14:57] Speaker 05:
But that means the micro- I assume that meant that the microphones were similar to each other.

[00:15:03] Speaker 05:
That's incorrect?

[00:15:04] Speaker 00:
I don't know.

[00:15:05] Speaker 00:
It's not that the microphones are similar to each other, Your Honor.

[00:15:09] Speaker 00:
It's the shape that the microphones make.

[00:15:11] Speaker 05:
And what is the shape similar to?

[00:15:14] Speaker 00:
It has to be the same.

[00:15:15] Speaker 00:
It's not similar to anything else.

[00:15:18] Speaker 03:
Concentric nested rings.

[00:15:19] Speaker 00:
Yes.

[00:15:20] Speaker 00:
That would fit.

[00:15:21] Speaker 05:
So similar is, in your intention, limited to concentric circles?

[00:15:27] Speaker 00:
It's not limited to concentric circles.

[00:15:28] Speaker 00:
And we know that, again, from the specification, you go to column 12, it says that the similar shapes here don't have to be circles.

[00:15:36] Speaker 00:
They could be ovals, rectangles, squares.

[00:15:39] Speaker 00:
But it has to be a repeating pattern.

[00:15:41] Speaker 00:
The exact shape that you subtend is not important.

[00:15:43] Speaker 05:
But we need to know we're construing the claims.

[00:15:46] Speaker 05:
We need to know what's limited.

[00:15:48] Speaker 05:
We know that it's not new to put microphones in the ceiling.

[00:15:52] Speaker 05:
We know that it's not new to have multiple microphones.

[00:15:56] Speaker 05:
So where is the invention for your client?

[00:16:01] Speaker 00:
Well, this self-similar term, I don't think, was actually a term that was used to define the novelty of the claim.

[00:16:06] Speaker 00:
But for the purpose of defining the scope of the claim, it would simply be, do you have a repeating pattern?

[00:16:11] Speaker 00:
That's the question.

[00:16:12] Speaker 00:
If you just have one circle, that's not a repeating pattern.

[00:16:15] Speaker 00:
If you have a circle and a square, that's not a repeating pattern.

[00:16:18] Speaker 00:
If you have concentric rings, now you do have a repeating pattern because you have multiple rings emanating out from the center.

[00:16:25] Speaker 05:
So you say there has to be more than one ring, and they must be concentric.

[00:16:29] Speaker 00:
Well, I think, no, in that example, yes, but again, we wouldn't be limited just to rings.

[00:16:35] Speaker 00:
But in an example where rings or circles were used, you would have to have more than one ring.

[00:16:40] Speaker 05:
If it's limited, then I'm trying to find the outer boundary.

[00:16:43] Speaker 05:
That's what this claim construction is all about.

[00:16:47] Speaker 05:
What is the boundary?

[00:16:48] Speaker 05:
Where does it stop?

[00:16:49] Speaker 00:
So it stops where you no longer have a repeating pattern.

[00:16:52] Speaker 00:
So if you have just one circle, that's not a repeating pattern because nothing repeats.

[00:16:56] Speaker 01:
Well, in Configure 5, you substituted a square for the outer ring and enclosed the rest of the circles in a square.

[00:17:04] Speaker 00:
That probably, Your Honor, would not be a repeating pattern.

[00:17:08] Speaker 00:
If you had something like circle, circle, circle, square, that would no longer be a repeating pattern.

[00:17:13] Speaker 05:
But in your specification, the example, the picture on the front page is one circle.

[00:17:21] Speaker 00:
I think there are several circles that are being subtended in figures five and nine.

[00:17:25] Speaker 05:
One circle with microphones in it.

[00:17:27] Speaker 00:
I'm not sure if on the figure of the patent, Your Honor.

[00:17:32] Speaker 00:
The examples that are used to describe what a self-similar arrangement are are figures five and nine.

[00:17:37] Speaker 00:
And figures five and nine show concentric rings of microphones.

[00:17:43] Speaker 00:
Oh, Your Honor, there are several microphones there.

[00:17:46] Speaker 00:
That has concentric rings.

[00:17:48] Speaker 00:
That's the same as the figure on the front of the patent, Your Honor.

[00:17:52] Speaker 05:
Yes, the microphones are all in one ring.

[00:17:54] Speaker 00:
No, they're not in one ring.

[00:17:56] Speaker 05:
Isn't that right?

[00:17:57] Speaker 00:
Isn't that what the microphone is?

[00:17:58] Speaker 00:
There are at least two different rings there.

[00:18:00] Speaker 00:
And everywhere you see those little square holes, Your Honor, like 106B,

[00:18:05] Speaker 00:
Those are all different microphones.

[00:18:07] Speaker 03:
Actually, it looks like lots and lots, not just two.

[00:18:11] Speaker 00:
It looks like it starts in the very beginning with a single microphone, then you've got a little circle of microphones, then a bigger circle, then a bigger circle, then a bigger... It goes... So there's a central microphone there, 106A, and then it emanates out from there when you have one, two, three, four, five, six, it looks like seven concentric rings of microphones.

[00:18:33] Speaker 00:
So again, the specification makes clear that what you need is a repeat.

[00:18:36] Speaker 01:
I don't want to hypothetical you to doubts, but when you say self-similar patterns, does that mean you can only have one shape in the self-similar pattern, or can you have multiple shapes that repeat?

[00:18:47] Speaker 00:
I would think that as long as you have multiple shapes that form a pattern, you could have multiple shapes.

[00:18:52] Speaker 01:
So for example- So if you have triangle, square, or triangle, square repeated over and over again.

[00:18:57] Speaker 00:
That would be a repeated pattern.

[00:18:59] Speaker 00:
because it's a pattern that repeats.

[00:19:00] Speaker 00:
It's an ABABAB pattern in that instance.

[00:19:07] Speaker 00:
And again, the board said that this claim was definite, and this term was definite, based on the plain and ordinary meaning of this term, read in the light of specification, which did not deviate from that meaning, and it credited the testimony of ClearOne's expert, who defined the term himself, and then applied the term to the prior art in the same way that we're discussing today.

[00:19:26] Speaker 00:
In appendix 1001 at the preliminary guidance stage, the board invited clear one to submit countervailing evidence, to submit counterconstructions, and it did not do so.

[00:19:37] Speaker 00:
In both of its subsequent briefs submitted to the board, it did not mention the board's dictionary definitions, and it never took issue with them.

[00:19:46] Speaker 00:
So it was unsurprising for the board then to rely on those dictionary definitions when it found the claim term definite.

[00:19:54] Speaker 00:
I think it wasn't mentioned today, but in the brief, there was some question about what standard might apply, whether it's in-rate Packard or nautilus.

[00:20:02] Speaker 00:
I think that issue is very simple here, which is that a clear one never mentioned Packard to the board.

[00:20:08] Speaker 03:
Do you think in construing this claim or deciding whether it's definite or not that we can decide it's definite based solely on the intrinsic record,

[00:20:16] Speaker 03:
I noted that the opinion below referred to expert testimony.

[00:20:20] Speaker 03:
It referred to dictionary definitions.

[00:20:22] Speaker 03:
Do you think we need to move to extrinsic evidence to resolve this?

[00:20:28] Speaker 03:
Certainly, the extrinsic evidence doesn't hurt your case, right?

[00:20:31] Speaker 03:
The board found that all of that evidence supported the conclusion it was not definite.

[00:20:36] Speaker 03:
Do you think it can be done on the basis of the patent alone, or do you think it needs to be a holistic analysis that includes everything?

[00:20:44] Speaker 00:
Your Honor, I do think that the term is clear based solely on the intrinsic evidence, but that the extrinsic evidence just confirms exactly what the board found.

[00:20:54] Speaker 00:
That, again, if you can go to the specification in columns 3, 9, and 12, there the specification describes a self-similar arrangement as something like a fractal.

[00:21:02] Speaker 00:
That gets at this scale invariance, which is directly out of the board's dictionary definition.

[00:21:06] Speaker 00:
And then at Columns 11 and 15, it describes the self-similar configuration as a repeating pattern, which is what we've been discussing so far.

[00:21:14] Speaker 00:
That's what the board said was a copy of itself coming right from the dictionary definition.

[00:21:18] Speaker 00:
And again, it supported that finding with the testimony of ClearOne's expert.

[00:21:23] Speaker 00:
And that needs to be given substantial evidence, definitely.

[00:21:25] Speaker 05:
All right, so rectangular shapes, for instance, or something with multiple angles would be self-similar, in your view.

[00:21:37] Speaker 00:
Yes, Your Honor, if you had the same polygon, that's the word that comes out of the specification in column 12.

[00:21:43] Speaker 00:
If you have the same polygon repeated over and over again, that's the repeating power.

[00:21:48] Speaker 05:
So as long as it's sufficiently symmetrical, no matter how many sides to the shape or whatever, even though there's no illustration in the specification of anything other than concentric circles, how do we know it would work in rectangular shape?

[00:22:09] Speaker 00:
Well, because I think it's fairly easy to envision a rectangular shape emanating out from a central point just the way that you would have a circle.

[00:22:16] Speaker 03:
Wouldn't your answer to Judge Newman actually be in column 12, the patent expressly says it can be oval, squares, rectangle, triangles, pentagons, or other polygons that just has to be a series of them?

[00:22:28] Speaker 00:
Exactly.

[00:22:28] Speaker 03:
So right.

[00:22:29] Speaker 03:
So the specification itself says this will work.

[00:22:32] Speaker 03:
with any of those kinds of shapes, just so long as it's a repeated pattern of arrays of microphones.

[00:22:38] Speaker 00:
Precisely.

[00:22:39] Speaker 00:
OK.

[00:22:39] Speaker 00:
That's precisely.

[00:22:39] Speaker 05:
And so if it should turn out that it doesn't work with whatever kind of exotic polygon someone creates, that destroys your pattern, or what?

[00:22:50] Speaker 00:
That's the question I'm asking.

[00:22:51] Speaker 05:
So you're saying we just claim what works?

[00:22:53] Speaker 00:
That's a question of infringement, Your Honor.

[00:22:55] Speaker 00:
We'd have to see what that shape looks like.

[00:22:57] Speaker 00:
If it were a repeated shape, it would seem to fall right within the scope of the claim due to Columns 12.

[00:23:03] Speaker 00:
But if you don't have a repeated shape, if you've made a shape that can't be repeated somehow, it's difficult to imagine what that would look like.

[00:23:10] Speaker 00:
Then that wouldn't fall within the scope of the claim.

[00:23:12] Speaker 05:
So we're saying whatever shape you select, if it works, it infringes.

[00:23:16] Speaker 05:
If it doesn't work, it doesn't infringe.

[00:23:19] Speaker 00:
It has nothing to do with whether it works, Your Honor.

[00:23:21] Speaker 00:
It's whether the shape is repeating.

[00:23:24] Speaker 00:
It has a repeating pattern or not.

[00:23:27] Speaker 00:
It doesn't matter what the shape is.

[00:23:28] Speaker 05:
But that's not really what the role is of the specification.

[00:23:33] Speaker 05:
Is it to invite to go out and test my invention?

[00:23:36] Speaker 05:
It's to be explicit as to what you've discovered and what you're entitled to.

[00:23:43] Speaker 00:
And what the patent says here is that when you have a repeated pattern of microphones, there are actually several technical advantages to that.

[00:23:50] Speaker 00:
And it uses, for example, the concentric rings as an example.

[00:23:52] Speaker 05:
But does it say that when you look at the drawings?

[00:23:55] Speaker 05:
The drawings are all concentric circles.

[00:23:58] Speaker 00:
And the patent explains, for example, why you might want to use different numbers of microphones in different levels of different rings.

[00:24:06] Speaker 00:
The patent explains why you do that.

[00:24:08] Speaker 00:
Again, the patent is not limited, expressly not limited, to concentric rings.

[00:24:13] Speaker 00:
It says you can use any shape.

[00:24:14] Speaker 00:
And it's not just depending on what works.

[00:24:17] Speaker 00:
That's an infringement question almost.

[00:24:19] Speaker 00:
The scope of the claim is, do you have a repeated pattern or not?

[00:24:23] Speaker 00:
Did you have the same shape or not?

[00:24:25] Speaker 01:
Somebody wants to design around this they just don't have repeated patterns.

[00:24:29] Speaker 00:
It's don't have a repeated pattern your honor And then you don't have a repeated then you don't have a self similar configuration All you need to do is not have a repeat just take a couple microphones and put them in a slightly different pattern.

[00:24:39] Speaker 00:
Yes The last issue I'd like to address today is the issue of sanctions and

[00:24:49] Speaker 00:
I think the court has a pretty good handle on the situation.

[00:24:54] Speaker 03:
The sole basis for- The only part I found a little difficult with the sanctions motion is the board seemed to blend into its decision questions that related to whether to grant the motion along with questions that seemed to be more focused on the merits of the motion.

[00:25:13] Speaker 03:
It's like, okay, we're not going to let you

[00:25:17] Speaker 03:
in some respects now not all of it is a better free judging I think some of their rationales were this is identical to the motion you already filed and we've already decided and that's independent but I'm just confused what what is the standard that the board should apply when deciding whether to allow someone to file a motion separate and apart from whether the motion should prevail

[00:25:39] Speaker 03:
but whether to allow someone to file a motion.

[00:25:41] Speaker 00:
Again, this is a highly deferential discretionary standard.

[00:25:44] Speaker 00:
And so it seems to me that what would have to be alleged would something that, if proven true, would rise to the level of sanctionable conduct.

[00:25:52] Speaker 00:
And here, the board found that we were nowhere even close to that.

[00:25:56] Speaker 00:
It said so for several different reasons.

[00:25:59] Speaker 00:
It said, first, because ClearOne did file a virtually identical motion a month ago, we don't have to guess as to what the merits of its motion is.

[00:26:07] Speaker 00:
We have it chapter and verse.

[00:26:09] Speaker 00:
We can look at this now, because we effectively do have their sanctions motion.

[00:26:13] Speaker 00:
And what the board said was, we're not going to grant this motion for several independent reasons.

[00:26:18] Speaker 00:
First, the references are cumulative to everything that's in the record, as much as eight references of record.

[00:26:25] Speaker 00:
Second, the board said, sure had no ill intent.

[00:26:30] Speaker 00:
And that's undisputed.

[00:26:32] Speaker 00:
Sure had no intent to do anything wrong.

[00:26:34] Speaker 00:
And so we wouldn't grant you your motion anyway, because it's undisputed that they had no intent.

[00:26:39] Speaker 00:
And intent is required by the rules.

[00:26:42] Speaker 00:
Third, it said, we're going to, as Your Honor has stated, we, for equitable reasons and for discretionary reasons, aren't going to allow you to do this.

[00:26:51] Speaker 00:
It's going to multiply proceedings.

[00:26:52] Speaker 00:
We think that this is a thinly veiled attempt at the second bite of the apple.

[00:26:56] Speaker 00:
You waited until after we filed our final written decision and then tailored your sanctions decision to try to undo and salvage the issue that you lost at trial.

[00:27:06] Speaker 00:
We're not going to allow this for efficiency reasons.

[00:27:08] Speaker 00:
And we say we see no merit to your sanctions motion anyway.

[00:27:12] Speaker 00:
So to answer your question, Your Honor, what standards should apply?

[00:27:14] Speaker 00:
It would have to be conduct that seems that if it were true, would rise to the level of sanctionable conduct.

[00:27:20] Speaker 00:
And the board said that is not the case here for facts, law, and equity.

[00:27:24] Speaker 03:
And we have to decide that every one of those independent reasons

[00:27:29] Speaker 03:
was an abuse of discretion.

[00:27:30] Speaker 00:
And not only that, on undisputed facts.

[00:27:33] Speaker 00:
They haven't challenged that Graham does teach a sound permeable screen.

[00:27:37] Speaker 00:
They haven't challenged that eight other references teach a side rail limitation.

[00:27:41] Speaker 00:
They've challenged none of that.

[00:27:42] Speaker 00:
They don't challenge that we lacked any intent.

[00:27:45] Speaker 00:
So not only is it an abuse of discretion, Your Honor, it's on undisputed facts, which is why, again, the evidentiary standard does not matter, because the facts are undisputed.

[00:27:55] Speaker 03:
OK.

[00:27:56] Speaker 03:
Thank you very much, Mr. Schaffer.

[00:27:58] Speaker 03:
Mr. Phillips, you have some rebuttal time.

[00:28:00] Speaker 02:
Turning back to the indefiniteness issue, there's nothing new about arranging microphones in concentric rings.

[00:28:11] Speaker 02:
There are many, many prior art references that do that if you look at appendix pages 171 through 75.

[00:28:17] Speaker 01:
Well, sure.

[00:28:18] Speaker 01:
It seems like it's a really broad definition that might be obvious, but it doesn't seem indefinite.

[00:28:23] Speaker 02:
Well, let me be clear.

[00:28:25] Speaker 02:
Dr. Begald, our expert witness, never provided a definition of self-similar.

[00:28:31] Speaker 02:
He said it might include this notion.

[00:28:34] Speaker 02:
It may include that notion.

[00:28:36] Speaker 02:
He had an estimate for what it might mean, but he never provided a definition.

[00:28:42] Speaker 02:
And here today, we've heard that what self-similar means, apparently, is just simply a repeating pattern.

[00:28:51] Speaker 02:
But that's not what the dictionary definitions say.

[00:28:54] Speaker 02:
There are two different definitions, and they're not the same.

[00:28:58] Speaker 02:
One says an exact copy of itself.

[00:29:01] Speaker 02:
The other says a copy that is similar.

[00:29:04] Speaker 02:
Well, how much similarity?

[00:29:07] Speaker 02:
you know according to sure a ring with 21 ring microphones is self-similar to one with seven and The final point I'll make here is that if it's as simple as a repeating pattern there's clear language to say so self-similar is an awkward fit for that meaning and imagine just a random scatterplot arrangement of microphones and

[00:29:31] Speaker 02:
You can draw a circle over here around three microphones.

[00:29:35] Speaker 02:
It's a mathematical fact.

[00:29:36] Speaker 01:
Sounds like you're talking infringement.

[00:29:40] Speaker 02:
Well, and another one over here.

[00:29:43] Speaker 02:
Is it self-similar or not?

[00:29:46] Speaker 01:
That's an infringement question.

[00:29:48] Speaker 02:
But if you can't tell what's similar, that's indefinite.

[00:29:54] Speaker 02:
Unless there are further questions, that's all I have.

[00:29:56] Speaker 03:
OK.

[00:29:57] Speaker 03:
I thank both counsel.

[00:29:58] Speaker 03:
This case is taken under submission.