[00:00:00] Speaker 03: The first case for argument this morning is 21-1663, Contemporary Display versus DISH Network. [00:00:07] Speaker 03: Mr. Bennett, whenever you're ready. [00:00:10] Speaker 01: Good morning, Your Honors. [00:00:11] Speaker 01: May it please the Court? [00:00:13] Speaker 01: My name is David Bennett. [00:00:14] Speaker 01: I represent Contemporary Display. [00:00:16] Speaker 01: There are three reasons why the Board's final written decision should be either vacated or reversed. [00:00:23] Speaker 01: The first reason is that the Board violated the Administrative Procedures Act by construing [00:00:29] Speaker 01: consuming corresponding to in the final written decision for the first time. [00:00:34] Speaker 01: Each party contended that the term should be given its plain and ordinary meaning. [00:00:38] Speaker 01: Neither party requested construction and the board did not propose a construction until its final written decision. [00:00:45] Speaker 01: The second reason is that the board's construction of corresponding to to be corresponding to in some way doesn't make any sense. [00:00:52] Speaker 01: It's vague. [00:00:52] Speaker 01: It's ambiguous. [00:00:54] Speaker 01: If you try and take that construction and put it in other places in the claims where they use the phrase corresponding to, it wouldn't make sense. [00:01:02] Speaker 01: So it's also inconsistent with the intrinsic evidence. [00:01:05] Speaker 01: So that construction is incorrect. [00:01:07] Speaker 01: And finally, there's a lack of substantial evidence with respect to claims 1 through 16 and 31. [00:01:15] Speaker 01: that Najima renders those claims obvious because there's no cell quantity data value that's either taught or suggested in Najima. [00:01:26] Speaker 03: Can I start you where you started on the APA violation, the allegation [00:01:30] Speaker 03: It seems to me, frankly, that this case proceeded as many do, where even though the parties may have started off with plain and ordinary meaning, they were clearly talking about two different things, and that demonstrated itself in the reply and all of the filings and also during the hearing held by the APJs. [00:01:49] Speaker 03: But let me ask you also, you rest on SAS, right? [00:01:52] Speaker 03: is your case where we did say there was an APA violation. [00:01:57] Speaker 03: And that was based on the board having really changed theories pretty overtly. [00:02:03] Speaker 03: Is there an allegation here that there was a real major change in theories between what was going on below and what the board ultimately did? [00:02:11] Speaker 01: Yes, Your Honor. [00:02:13] Speaker 01: I think that the Plain and Orderly meeting that the parties were arguing, past that, the parties were arguing the application of facts to the Plain and Orderly meeting. [00:02:22] Speaker 01: When the defendants were asked or when Dish was asked specifically at the hearing, were they proposing anything other than the plain and ordinary meaning, they told the board no. [00:02:32] Speaker 03: But didn't it become clear that when you're saying corresponding to an equivalence that there was a disagreement between the parties as to what [00:02:41] Speaker 01: the word corresponding meant? [00:02:44] Speaker 01: Well, I think that if there was a question of what corresponding meant, and the board was confused about it, they should have raised it at the hearing. [00:02:51] Speaker 03: The board suggested that maybe- They could have raised how and what. [00:02:56] Speaker 03: The board has to say formally, OK, we are doing a claim construction. [00:03:00] Speaker 03: I mean, does it have to be formalistic? [00:03:03] Speaker 03: Because it seems like, informally, that's what happened in terms of [00:03:07] Speaker 03: recalling out what the actual dispute was and what needed to be resolved. [00:03:14] Speaker 03: Do you appreciate what I'm saying, that there was discussion about this? [00:03:17] Speaker 03: So are you really arguing that there had to be a more formalistic approach taken? [00:03:22] Speaker 01: I don't think it had to be more formalistic. [00:03:25] Speaker 01: But the board did raise the question of, I think that there may be a claim construction dispute. [00:03:31] Speaker 01: And they raised it with Dish. [00:03:33] Speaker 01: And Dish's response was no. [00:03:35] Speaker 01: the meaning is clear from the language of the claim. [00:03:38] Speaker 01: So there was a specific suggestion that maybe construction needed to be done, and the response from Dish was no. [00:03:46] Speaker 01: That was not brought up again. [00:03:48] Speaker 01: So after that point, from Contemporary Display's view, this was just a discussion of the application of the facts to what the plain and ordinary meaning is of [00:04:02] Speaker 01: corresponding to. [00:04:03] Speaker 01: And particularly in this case, when you look at the construction, there's no construction of corresponding to. [00:04:08] Speaker 01: That phrase is still in the construction. [00:04:11] Speaker 01: It's corresponding to in some way. [00:04:14] Speaker 01: And that's actually broader than corresponding to. [00:04:16] Speaker 01: And that's noted in the final written decision. [00:04:20] Speaker 01: Because what the board says is, contemporary display fails to account for the breadth of a cell quantity data value required by independent claims 1 and 30, [00:04:30] Speaker 01: As we explained above, cell quantity data value corresponds to, in some way, the number of reduced-size video displays in the multi-window video signal. [00:04:40] Speaker 01: And this is at appendix 32. [00:04:42] Speaker 01: So they're not proposing the ordinary plain, ordinary meaning of corresponding to. [00:04:46] Speaker 01: Otherwise, the corresponding to shouldn't actually be in the definition. [00:04:51] Speaker 01: Well, your view of it was that it meant equal to, though, right? [00:04:55] Speaker 01: No, not equal to. [00:04:57] Speaker 01: Equivalent? [00:05:00] Speaker 01: From contemporary displays with you, if there were, say, 12 videos in the display, you could put 12, it could be a particular bit that referred to 12, it could be a letter that referred to 12. [00:05:12] Speaker 01: Equal to would mean is if you had 12 videos in the signal, you would then have the number 12 in there. [00:05:18] Speaker 01: So the value that is conveyed would tell you exactly how many displays are in the signal, but it wouldn't necessarily have to be that number. [00:05:32] Speaker 01: So that's where corresponding to would be different than equal to. [00:05:38] Speaker 01: So I think in this case on the APA violation, I think that here you just have a different set of facts. [00:05:44] Speaker 01: I think there was a later case that came out during the briefing, and that is the Qualcomm Intel case. [00:05:51] Speaker 01: 6F4 1256. [00:05:55] Speaker 01: And that's where the parties sort of agreed to a construction. [00:05:58] Speaker 01: And here, there wasn't language that they agreed to for the construction, other than to say, if you just look at the plain and ordinary meaning of the words of the claim, that's sufficient. [00:06:09] Speaker 01: Now, past that, that's how it applies. [00:06:12] Speaker 01: So I think when you compare it to the Qualcomm case, it's much more similar to the Qualcomm case than you would find in the other cases cited by defendant, the TQ Delta, [00:06:21] Speaker 01: Western Gecko or Hamilton Beach, because in each of those, they were actually arguing a specific proposed construction. [00:06:29] Speaker 01: And here- I'm sorry. [00:06:30] Speaker 02: This may just be repeating a question already asked, but what do you think should have happened if when the board, having read the papers, has the oral argument or whatever it's called and says, this word corresponding to, I don't actually think it means what contemporary thinks. [00:06:49] Speaker 02: Um, it means, um, what was, what should the board have done? [00:06:53] Speaker 02: That is, I think it's broader. [00:06:56] Speaker 02: Um, and you know, we actually do have to apply that term to, you know, the, the key piece of prior art. [00:07:05] Speaker 02: Um, will it have done? [00:07:06] Speaker 01: I think if they thought it was broader or even considered that it was broader, they should have brought that up at the hearing and said, well, I understand both parties' positions, but I think contemporary display, your position, the breadth of what the term means is broader than your position. [00:07:24] Speaker 01: They didn't say that. [00:07:25] Speaker 01: So there was no way for contemporary display to argue what it [00:07:30] Speaker 01: what the board eventually conveyed as its understanding of what corresponding to means, which is broader than what contemporary display believes. [00:07:40] Speaker 01: But why did the board have to argue it? [00:07:42] Speaker 03: The two parties here were you and Dish. [00:07:45] Speaker 03: Dish argued that. [00:07:47] Speaker 03: The board doesn't have to make arguments at the proceeding. [00:07:50] Speaker 03: Clearly, that was the dispute between you and Dish. [00:07:54] Speaker 01: Respectfully honored, Dish didn't say that there was a broader meaning than what course of argument. [00:08:00] Speaker 03: Well, to the extent that it understood you to be arguing equivalence or equal to, it was arguing that that wasn't true, right? [00:08:08] Speaker 03: That that wasn't the correct construction. [00:08:11] Speaker 01: Well, what they were saying, and this is from Appendix 460, when they were asked, it seemed like, this is what the board said, seemed like this term probably required some sort of construction, yet nobody offered an explicit construction. [00:08:25] Speaker 01: And then their response, skipping over, it says, right, Your Honor, and our position is that the meaning of the term is clear from the plain language of the claim. [00:08:33] Speaker 02: Right. [00:08:33] Speaker 02: Dish was arguing, was it not, that if you look at the, what's the, oh, Najima? [00:08:40] Speaker 02: Najima, there's information about positions and pixel size of each sub-display in the multi-screen and also information about the overall screen size in pixels and tiny bit of arithmetic [00:09:03] Speaker 02: It tells you exactly how many displays there are going to be. [00:09:09] Speaker 02: And Dish was arguing about that, right? [00:09:11] Speaker 02: That was in our community. [00:09:14] Speaker 02: So Dish says, we think that's covered by the plain, broad meaning of corresponding to. [00:09:23] Speaker 01: Well, first of all, Your Honor, I don't believe anybody ever said broad or a broader meaning than corresponding to because if you look at the construction, it's not, there's no construction of actual trying to figure out what corresponding to means. [00:09:36] Speaker 01: Instead, they just add to the end in some way. [00:09:40] Speaker 01: It's broader. [00:09:41] Speaker 01: Why is it broader? [00:09:42] Speaker 01: How is it broader? [00:09:44] Speaker 01: So when you're looking at the construction itself, [00:09:47] Speaker 01: dish when they tried to explain what this construction means in their brief said that it means basically corresponding to means related to and in some way means related to. [00:09:57] Speaker 02: If we thought that it was actually plain that corresponding to covers something other than the identification of in so many [00:10:09] Speaker 02: words or numbers, the exact number of the display, but that if it provides information from which it is by simple arithmetic immediately apparent how many displays there are going to be, then why do we need to talk about this whole APA business since it would plainly be covered, plainly be taught by Najima? [00:10:35] Speaker 01: Respectfully, Your Honor, I don't think it would be plainly taught by Najima. [00:10:38] Speaker 01: I mean, Najima does provide the number of information, numbers display items. [00:10:45] Speaker 01: So they'll send, say, numbers one through nine over. [00:10:49] Speaker 01: And then if they have another screen, it'll also be one through nine, the next screen one through nine. [00:10:54] Speaker 01: So the receiving device would actually not know how many. [00:11:02] Speaker 02: If you were receiving, just correct me if I'm wrong about this, which I may well be. [00:11:07] Speaker 02: Najima teaches, among other things perhaps, a receiving device that has a, what is it, 720 by 480 pixel screen, and it's getting a signal that says each of these, the mini displays is, is what, one ninth of that, 240, 120, is that? [00:11:27] Speaker 02: Yeah. [00:11:27] Speaker 02: 240, 160. [00:11:30] Speaker 02: And so you now know how many they're going to be, nine of them. [00:11:35] Speaker 01: Well, if you know how many are going to be in a particular display, you don't know how many will be in the signal. [00:11:41] Speaker 01: And the issue here, and this is what's discussed in the prosecution history by the expert, is that you're looking for an elegant decision where you just have specifically sent to the receiving device how many reduced size video displays you're going to send in the signal. [00:11:58] Speaker 01: You don't have to do any calculation. [00:11:59] Speaker 01: You don't have to receive all the information that's being sent to then determine [00:12:04] Speaker 01: Well, it's 1 through 9, and then once we get 1 through 9, how many of those 1 through 9s do we get? [00:12:10] Speaker 01: And then are there going to be something that's in the signal that's not actually going to be displayed? [00:12:15] Speaker 01: And that's what's discussed in the 997 pattern, is it says, well, you could have a [00:12:24] Speaker 01: advertisement, or you could have, say, a video that the person is not allowed to view, they're not subscribed to it, like HBO. [00:12:32] Speaker 01: So you may have some screens up there that are not actually displaying what's sent in the signal. [00:12:40] Speaker 03: I just am not clear. [00:12:41] Speaker 03: We said nine. [00:12:45] Speaker 03: We're not just left with nine out in the ether. [00:12:49] Speaker 03: Nine gets sent six times, which gets you to the 54. [00:12:54] Speaker 03: Well, that's what Fujima does, Nijima, right? [00:12:58] Speaker 01: Nijima labels each of their things and then sends it over. [00:13:02] Speaker 01: So each of the screens, each of the smaller screens would be numbered one through whatever number. [00:13:11] Speaker 01: And in this situation, they use one through nine. [00:13:13] Speaker 01: If they have 54, then they would send it six times. [00:13:17] Speaker 01: Six times. [00:13:18] Speaker 01: But if, for example, Nijima had 55, [00:13:23] Speaker 01: So then you have 1 through 9, 1 through 9, 6 times, and then you have 1. [00:13:27] Speaker 01: Now they're saying you just choose the highest number that's available. [00:13:31] Speaker 01: So are you now choosing just 9 and then multiplying it by how many screens you get there? [00:13:35] Speaker 01: Do you take into consideration how many are being displayed versus how many are in the signal? [00:13:40] Speaker 01: Because I think that's a distinction here, is that what the invention here was trying to do was say, you can have a dumber device that's receiving because it doesn't have to do any analysis of how many [00:13:53] Speaker 01: reduced size videos displays have to be shown on the screen. [00:13:58] Speaker 01: It'll know how many are in the signal, and then it can base how many are going to be in the display based on that number that's sent in the signal. [00:14:08] Speaker 01: So it's less calculation. [00:14:10] Speaker 01: They don't have to wait until they receive all the information. [00:14:13] Speaker 01: from the sending device, where you have to wait till you receive one through nine, one through nine, one through nine. [00:14:20] Speaker 01: And the device keeps waiting to figure out how many additional screens it's going to get. [00:14:26] Speaker 01: Whereas what the invention here does is very simple. [00:14:29] Speaker 01: Just tell it how many reduced size videos are in the signal. [00:14:36] Speaker 03: OK. [00:14:36] Speaker 03: I think you're well into your rebuttal. [00:14:38] Speaker 01: Thank you. [00:14:41] Speaker 00: May it please the court? [00:14:42] Speaker 00: Good morning, Judge Prost, Your Honors. [00:14:46] Speaker 00: Opposing counsel and I would probably agree that there's only one reasonable outcome to this appeal. [00:14:53] Speaker 00: But that doesn't mean that we agree about what that outcome is. [00:14:57] Speaker 00: That's the nature of the claim construction dispute in this case that has been briefed throughout the proceedings at the board. [00:15:04] Speaker 03: In other words, you're saying that just because both sides say there's a plain and ordinary meaning of going to live with that doesn't mean that it's the same plain and ordinary meaning that's in their view, right? [00:15:14] Speaker 00: Of course. [00:15:15] Speaker 00: And that's exactly how the panel at the PTAB understood this case. [00:15:20] Speaker 00: And if you read the oral hearing before the PTAB, this is entirely what the oral hearing was about. [00:15:26] Speaker 00: And it wasn't an oral hearing where we came up with a new theory and they had to answer on the spot. [00:15:32] Speaker 00: It was an oral hearing where each side was laying out their arguments that had already been briefed. [00:15:38] Speaker 00: And indeed that's how the PTAB's opinion is written here. [00:15:41] Speaker 03: But what about the in some way language that was added to corresponding? [00:15:46] Speaker 03: Where does that come from and how are we to know what the parameters of that are? [00:15:52] Speaker 00: Your honor, that came from contemporary displays attempts to cabin corresponding to a particular meeting. [00:16:01] Speaker 00: and they were evolving in what they thought that meaning was. [00:16:05] Speaker 00: First, they said it was related to, then they said there was an equivalence. [00:16:10] Speaker 00: In their briefing before this court, they talk about it being an equality. [00:16:14] Speaker 00: They're moving around. [00:16:15] Speaker 00: And so what the board did was they said, corresponding to means corresponding to in some way. [00:16:21] Speaker 00: In other words, it doesn't mean anything narrower than corresponding to. [00:16:25] Speaker 00: They didn't have to [00:16:26] Speaker 00: Elucidate on every way something could correspond to something else. [00:16:30] Speaker 00: As long as there is a correspondence, the claim limitation is satisfied. [00:16:35] Speaker 03: Can I move you into your friend's final argument, the last discussion we were having? [00:16:40] Speaker 03: As I understand the argument, they say that [00:16:45] Speaker 03: The board's finding that a person skilled in the art wouldn't necessarily be able to divine that 9 corresponds to 54 because the 6 to 1 correspondence isn't also transmitted. [00:16:58] Speaker 03: That's correct, isn't it? [00:17:00] Speaker 00: I would disagree that that's correct. [00:17:03] Speaker 00: So what is transmitted is the nine in each of the six screens, and indeed six screens are transmitted, and indeed there is a label on the six screens that changes the register numbers about where they're going to go from one to six. [00:17:18] Speaker 00: In other words, there are six nines, and each one of those windows has the appropriate number appended to it, whether the data be for the first window, the second window, the third window, the fourth window, the fifth, or the sixth. [00:17:29] Speaker 03: But even if it didn't have that, your honor, it's not say one of six or it just says one. [00:17:34] Speaker 00: Next one says two that it just says one and the next one says two. [00:17:39] Speaker 00: But regardless, there is still a correspondence that the claim doesn't require some sort of knowledge by the system or anything like that. [00:17:45] Speaker 00: The claim just requires a correspondence. [00:17:49] Speaker 02: Does the receiver recognize when one window has finished and the next one begins in a multi window window signal? [00:17:57] Speaker 00: Well, it would, Your Honor, because the data for the windows, the archived data, has to be individually addressable once it goes into the memory where it's stored. [00:18:06] Speaker 00: And Your Honors, the board's construction is the only possible construction of this term. [00:18:13] Speaker 00: Because what they would have happen is that if you count up the number of reduced size video displays in a signal, for example, and you get 54, they would have that number be 54. [00:18:25] Speaker 00: The problem is there is zero support for that in this specification. [00:18:30] Speaker 00: Right before opposing counsel sat down, he said that this patent goes to the elegance of the transmission of the number of reduced size video displays in the signal. [00:18:41] Speaker 00: That elegant solution isn't discussed in this patent anywhere. [00:18:46] Speaker 00: Cell quantity data value is just what it sounds like. [00:18:50] Speaker 00: A data value about the number of cells and cells aren't sent down the line. [00:18:54] Speaker 00: They're portions of a multi-screen that display on your television. [00:18:58] Speaker 02: Number of cells in a single screen or number of cells in a single screen or in the total collection of screens that are in the same signal. [00:19:12] Speaker 02: The first one. [00:19:13] Speaker 02: Is it 54 or 9? [00:19:13] Speaker 00: It's 9. [00:19:14] Speaker 00: And the reason we know it's 9, Your Honor, it's a multi-window display. [00:19:18] Speaker 00: And that number, the cell quantity data value, right in the text of claim 1, drives the building of the grid on the screen. [00:19:27] Speaker 00: That's what it does. [00:19:29] Speaker 00: There is no embodiment in this patent that shows 54 little windows on the screen. [00:19:34] Speaker 00: That wouldn't be workable. [00:19:35] Speaker 00: And indeed, even in Nejima, where they show an embodiment like that, that's a virtual screen. [00:19:40] Speaker 00: That does never show up on the screen that you're seeing. [00:19:43] Speaker 00: It's always not. [00:19:44] Speaker 00: The user can just move that nine around. [00:19:47] Speaker 00: So what we have is we have an independent claim that says that there's a number, the cell quantity data value, that corresponds to something in the signal. [00:19:57] Speaker 00: And then we have a dependent claim [00:19:59] Speaker 00: that talks about the cell quantity value equaling the number on the screen. [00:20:05] Speaker 00: The only way it can equal 9 and correspond to 54 is if correspond doesn't mean equal. [00:20:14] Speaker 00: If correspond is open to some sort of proportionality. [00:20:18] Speaker 00: And their argument that it can't be open to some sort of proportionality makes no sense at all. [00:20:23] Speaker 00: We have a hundred senators in our country and we have 50 states. [00:20:27] Speaker 00: And the reason we have a hundred senators is because the number of senators corresponds to the number of states, two senators per state. [00:20:34] Speaker 00: 100 doesn't equal 50, but it absolutely corresponds because that's how our structure is set up. [00:20:41] Speaker 00: Same with Najima. [00:20:42] Speaker 00: Nine doesn't have to equal 54, but nine does correspond to the number of signals in that display, because the reduced size video signals in the display all make up those six windows. [00:20:55] Speaker 00: That's the correspondence. [00:20:57] Speaker 00: The board had to find some meaning to correspond in order to fit a scenario where there are more signals [00:21:05] Speaker 00: I'm sorry, where there are more reduced size videos in the signal than there are on the screen. [00:21:11] Speaker 00: And the only way to do that is to give corresponding to an appropriate breadth that allows something other than equality. [00:21:19] Speaker 00: Unless the court has any more questions, I'll sit down. [00:21:22] Speaker 00: Thank you, Your Honors. [00:21:24] Speaker 03: Mr. Bennett, we'll restore two minutes. [00:21:27] Speaker 01: Thank you, Your Honor. [00:21:28] Speaker 01: I just want to address really the point of the construction of corresponding to in some way. [00:21:35] Speaker 01: The board added in some way because it did not think the phrase corresponding to was broad enough. [00:21:43] Speaker 01: So if corresponding to had a plain and ordinary meaning, what is the plain and ordinary meaning of corresponding to? [00:21:50] Speaker 01: It's not corresponding to in some way. [00:21:53] Speaker 01: If your honor saw a claim in front of you that said corresponding to in some way, actually in the claim, you would also have an indefiniteness argument as to what that means. [00:22:03] Speaker 01: And in this case, [00:22:05] Speaker 01: Contemporary display was not able to argue a response to in some way, because as the board recognized in their final written decision, there's a much broader breadth to the claim construction than the plain and ordinary meaning. [00:22:23] Speaker 01: So here, for the APA violation, or at least from a construction standpoint, [00:22:29] Speaker 01: To stick with corresponding to in some way really doesn't make any sense. [00:22:33] Speaker 01: Look at how corresponding to is used in claim one earlier in the claim, claim 30 earlier in the claim, and there's five or six dependent claims that also use corresponding to. [00:22:44] Speaker 01: If you put corresponding to in some way in any of those positions, the claim starts to become nonsense because it's actually referring to one thing to another, not an unknown ratio because [00:22:59] Speaker 01: Opposing counsel said, yes, there's two senators per state. [00:23:02] Speaker 01: You know there's 100. [00:23:03] Speaker 01: But you know what the two senators per state is. [00:23:07] Speaker 01: Here with Najima, you don't know that information in advance. [00:23:11] Speaker 01: They're just sending stuff. [00:23:14] Speaker 01: And they don't know, the receiving thing doesn't know how many reduced size video displays are going to be in the signal. [00:23:21] Speaker 01: Thank you, Your Honors. [00:23:24] Speaker 03: Thank you. [00:23:24] Speaker 03: We thank both sides and the case is submitted.