[00:00:00] Speaker 03:
Okay, our next case for argument is 21-1881, Emerson Electric versus CIPCO.

[00:00:09] Speaker 03:
Mr. Davis, please proceed.

[00:00:14] Speaker 00:
Good morning, Your Honors.

[00:00:14] Speaker 00:
May it please the court?

[00:00:17] Speaker 00:
This appeal presents two issues.

[00:00:18] Speaker 00:
First, with respect to the term scalable address of at least one remote device, as are cited in Claims 1 and 14 of the 492 patent.

[00:00:26] Speaker 00:
Rather than apply this court's construction as the board was instructed to do on remand, as SIPCO itself admits, the board instead decided to interpret

[00:00:36] Speaker 00:
this court's prior findings and add a negative limitation that categorically excludes anything called a type byte or a type code from being part of that scalable address of at least one remote device.

[00:00:50] Speaker 00:
And in doing so, this court looked back at its prior findings regarding the broadcast to individual address to Johnson.

[00:00:58] Speaker 00:
And that particular addressing scheme is depicted on page 22 of the blue brief, figures 32 and 43.

[00:01:07] Speaker 00:
As you can see in that addressing scheme, the address has two components, an NSM type, which is optional, and an NSM address, which is always there.

[00:01:17] Speaker 00:
The NSM type is eight bits long.

[00:01:19] Speaker 00:
When it's present, the NSM address is 32 bits long.

[00:01:22] Speaker 00:
But together, that address is either 32 bits or 42 or 40 bits long, depending on whether the NSM type is needed.

[00:01:30] Speaker 00:
But because Johnson uses the word type to describe that portion of the address,

[00:01:36] Speaker 00:
The board on remand looked at that and said, well, type is categorically excluded.

[00:01:42] Speaker 00:
And I can't rely on that.

[00:01:43] Speaker 00:
So therefore, it reversed its prior findings, applying an abscissimist verbous test, as opposed to looking at and applying this court's prior construction to determine whether or not that limitation was met.

[00:01:55] Speaker 00:
And while this court had previously examined an embodiment in the 492 patent that did, in fact, discuss a type bite,

[00:02:03] Speaker 00:
That type byte was used to identify whether the message was to all recipients, some recipients, or one recipient.

[00:02:12] Speaker 00:
It was not, as this court requires, used to identify the particular recipient, unlike the NSM type portion of the address, which is required, as the board found, to identify the particular recipient.

[00:02:29] Speaker 03:
Let me make sure I understand your argument.

[00:02:30] Speaker 03:
Your argument is that when type code

[00:02:34] Speaker 03:
is a field which is necessary to identify the unique recipient.

[00:02:39] Speaker 03:
It can be part of the scalable address.

[00:02:42] Speaker 03:
When type code is not necessary to identify the unique recipient just providing sort of extraneous information that isn't directing the address, then it doesn't have to be part of the scalable address code.

[00:02:54] Speaker 03:
Is that basically it?

[00:02:55] Speaker 00:
Yes, precisely, Your Honor.

[00:02:57] Speaker 00:
And that's precisely the situation here, as the board itself expressly found on remand.

[00:03:04] Speaker 00:
This is at appendix 19 to 20.

[00:03:07] Speaker 00:
The board explains, as petitioner contends, this is a quote, in a system where there is only one type of NSM, an NSM can be targeted by using only NSM address as the unique destination address.

[00:03:20] Speaker 00:
If the system includes multiple types of NSMs, the system can use a combination of an NSM type

[00:03:26] Speaker 00:
an NSM address as the unique destination address, expressly making that underlying finding that's required to satisfy this court's construction of that term's scalable address of at least one remote device.

[00:03:38] Speaker 00:
In fact, that operates just like an area code for a phone number.

[00:03:42] Speaker 00:
It used to be, at least a couple years ago, you'd be able to dial a seven-digit number and dial only within your area code because the system wasn't more complex for just looking at that one area code.

[00:03:52] Speaker 00:
But if instead you wanted to dial within a system multiple area codes, you needed to include those additional three digits.

[00:03:58] Speaker 00:
Those additional three digits are part of that address.

[00:04:06] Speaker 00:
And based on those findings by the board, which are undisputed,

[00:04:10] Speaker 00:
This court should not only vacate the board's findings, but reverse as to that finding and find that the scalable address of at least one remote device is expressly met by Johnson.

[00:04:23] Speaker 00:
That was the sole issue on appeal before.

[00:04:27] Speaker 00:
SIPCO didn't appeal any other issues as to the Johnson grounds with respect to claims one, two, three.

[00:04:31] Speaker 03:
I don't understand how we could reverse.

[00:04:33] Speaker 03:
It seems to me that the board made some fact findings which I don't completely understand and maybe potentially are internally inconsistent.

[00:04:43] Speaker 03:
But when they found although the NSM type field is optional, the empty bits are always present in the frame.

[00:04:49] Speaker 03:
When they made that finding, that is inconsistent

[00:04:53] Speaker 03:
with what you're asking me to be able to do in terms of reversing right now.

[00:04:59] Speaker 03:
That seems at odds with what you're requesting.

[00:05:02] Speaker 03:
Now, I'm not sure they're correct about that finding, but wouldn't the only proper course of action, if you are correct, be to vacate and remand with the proper construction and have them apply it to Johnson?

[00:05:13] Speaker 03:
I don't see how I can decide whether the bits are always empty or always present or not present in light of the board's statement to the contrary.

[00:05:21] Speaker 00:
Thank you for your question, Your Honor.

[00:05:23] Speaker 00:
I think if we look back at Figures 32 and 43, they provide the answer to both what the board was saying there, as well as why this court can reverse on this.

[00:05:34] Speaker 00:
As you can see, and there's other texts in Johnson that we can point to as well.

[00:05:38] Speaker 00:
But as you can see in Figure 32, for example, when the NSM type is used, it's a 40-bit address.

[00:05:45] Speaker 00:
The network message is only 20 bits when the NSM type is used.

[00:05:50] Speaker 00:
When it's not used, those eight bits are reallocated elsewhere in the frame as that sentence surrounded that you're referencing expresses states.

[00:05:57] Speaker 02:
But to follow up on the chief judge's question, aren't you really saying that those two findings are at least the evidence with regard to Johnson and the statement by the board that the bits are all filled in with zeros?

[00:06:14] Speaker 02:
inconsistent, potentially, at most.

[00:06:18] Speaker 02:
And isn't that an inconsistency that the board needs to straighten out?

[00:06:22] Speaker 02:
How could we?

[00:06:25] Speaker 00:
The words themselves, I think the board is not clear on it, but when you look at what they say, they say that the bits are elsewhere in the frame.

[00:06:33] Speaker 00:
The frame is this entire thing.

[00:06:35] Speaker 00:
It's the whole block.

[00:06:37] Speaker 00:
So they're not saying that the bits are still part of the scalable address, which is if they had made that finding, I would agree that it would need to go back down to them.

[00:06:46] Speaker 00:
They're instead saying they're elsewhere in the frame.

[00:06:48] Speaker 00:
They've just been moved.

[00:06:49] Speaker 00:
They're no longer part of the scalable address.

[00:06:52] Speaker 00:
And that's further confirmed by the board's express findings on appendix 15 to 16, where it's saying the broadcast individual address is either 40 bits or 32 bits.

[00:07:02] Speaker 02:
Where in the board's opinion, remind me, because I don't have it immediately at hand, where is it that they talk about the empty bits and make that finding?

[00:07:13] Speaker 02:
17.

[00:07:14] Speaker 02:
17.

[00:07:15] Speaker 02:
Thank you.

[00:07:16] Speaker 03:
And they cite the petition at 62.

[00:07:23] Speaker 03:
I couldn't find that in the appendix.

[00:07:26] Speaker 03:
So is the petition page 62 in the appendix somewhere that I'm missing?

[00:07:30] Speaker 03:
Because that would potentially shed light on what you're trying to tell me I should interpret this as.

[00:07:36] Speaker 00:
I can check the appendix, Your Honor.

[00:07:43] Speaker 03:
How about he'll check the appendix, because otherwise, why is he sitting there at this time?

[00:07:48] Speaker 00:
Thank you.

[00:07:49] Speaker 00:
But what I would say is what they mention, and they say the same thing, I think, earlier on appendix 16.

[00:07:58] Speaker 00:
They say, although the NSM type is the board, it is optional.

[00:08:01] Speaker 00:
The empty bits are always present in the frame.

[00:08:05] Speaker 00:
that reference to empty bits is referring to those bits being moved over as Johnson Expressly teaches to the network message portion of the overall frame, but they're no longer part of the scalable address that is what the boards have been examining.

[00:08:33] Speaker 00:
And I believe, Your Honor, the appendix does include... It does.

[00:08:40] Speaker 00:
Page 128.

[00:08:41] Speaker 03:
Yep.

[00:08:43] Speaker 03:
I'm just trying to figure out if I can glean, since the board cited the appendix petition, page 62, or cited petition, can I glean anything from that citation that would lend any insight into what you're telling me

[00:09:02] Speaker 03:
The plain language of what they said is at odds with what you're saying, quite frankly.

[00:09:06] Speaker 03:
And so I'm trying to see if there is something that they cited that would lead me to conclude that they meant something different than what they clearly said.

[00:09:16] Speaker 03:
Is there something on that page?

[00:09:17] Speaker 00:
I think, Your Honor, that page does also cite to another portion of Johnson.

[00:09:30] Speaker 00:
So if you look at,

[00:09:31] Speaker 00:
That page cites about the eighth or seventh line down, column 55, lines 40 to 47 in Johnson.

[00:09:37] Speaker 00:
That's appendix 842.

[00:09:40] Speaker 00:
and what Johnson expressly teaches there, is that there?

[00:09:44] Speaker 03:
I'm sorry, so slow down.

[00:09:45] Speaker 03:
On page 62.

[00:09:46] Speaker 00:
Page 62, appendix 128.

[00:09:49] Speaker 03:
You want me to look at what on page 62 where it says, if the system is larger and more complex, that sentence?

[00:09:54] Speaker 00:
Just right before there, there's a site to column 55, lines 40 to 47.

[00:09:59] Speaker 03:
Instead, an NSM can be targeted by using only NSMADR as the destination address.

[00:10:06] Speaker 00:
Correct, your honor.

[00:10:06] Speaker 03:
Why does that sentence tell me what you want me to conclude, which is the empty bits are not always present?

[00:10:14] Speaker 00:
That citation, your honor, to column 55, lines 40 to 47, is a citation to Johnson itself.

[00:10:22] Speaker 00:
And what Johnson explains there, this is at appendix 842, is that the network message.

[00:10:28] Speaker 03:
Now, interestingly, just to be clear,

[00:10:31] Speaker 03:
That's not what the board cites.

[00:10:32] Speaker 03:
Look, page 17 of the appendix, they point to petition 62, and then they tell us what things they want us to look at.

[00:10:40] Speaker 03:
And you notice the portion of Johnson you'd like me to point me to, you'd like to point me to, to understand what you say the board meant isn't what they cite.

[00:10:50] Speaker 00:
Yes, Your Honor, you're correct.

[00:10:52] Speaker 00:
I was looking at the private page.

[00:10:56] Speaker 00:
They don't cite that portion of Johnson.

[00:10:58] Speaker 03:
I don't see how you can get a reversal.

[00:11:00] Speaker 03:
I'm still not with you on the idea that I could somehow overlook that statement of the board, which is complex and confusing to me, but nonetheless seems like a fact-finding based on what the prior art disclose is.

[00:11:13] Speaker 00:
Your Honor, I think that the support has run into a similar situation in Smith and Neffy versus Raia.

[00:11:19] Speaker 00:
where the facts were largely undisputed, there was some additional facts that needed to be addressed.

[00:11:26] Speaker 00:
This court did take those facts on.

[00:11:28] Speaker 03:
I think the other sentences in the board's opinion... So because some panel of this court, which I'm hoping I wasn't on, because according to you, they made fact findings that were disputed, I should do that too?

[00:11:42] Speaker 00:
Your Honor, I think... Tell me I wasn't on the earlier panel, was I?

[00:11:45] Speaker 00:
You were not.

[00:11:50] Speaker 00:
But the difference here is that the board's other sentences in this opinion below on remand do make clear that the scalable address varies between 40 and 32 bits.

[00:12:01] Speaker 00:
And so that those empty bits, if you will, using their own words, are no longer part of the scalable address.

[00:12:07] Speaker 00:
If there's ambiguity in this one sentence that we're talking about at appendix 17 or 16, it is clear in other parts of the board's findings.

[00:12:15] Speaker 02:
I'm not a computer scientist, but what

[00:12:18] Speaker 02:
to you or to a person sculling the art, does the term empty bits mean exactly?

[00:12:26] Speaker 00:
If what the board meant by that was that those were null bits, meaning they were still there, but they're just not going anywhere.

[00:12:33] Speaker 02:
Yeah, that's what I assumed they meant.

[00:12:35] Speaker 02:
Are you suggesting that's not what they meant?

[00:12:39] Speaker 00:
I think it's unclear, because there's no support for that notion anywhere in the record.

[00:12:42] Speaker 02:
Well, if it's unclear, isn't that something they should clarify?

[00:12:45] Speaker 00:
Other portions of the board's opinion itself will make it clear that it's either 40 or 32 bits.

[00:12:51] Speaker 00:
So those other sentences at appendix 15.

[00:12:54] Speaker 03:
But the problem is you would like us to read Johnson, which I think is probably the correct reading, but I'm not a fact finder, that the empty bits are actually not empty, but rather reassigned and repurposed for other purposes.

[00:13:05] Speaker 03:
That's probably a good argument, but it seems inconsistent with what the board said.

[00:13:13] Speaker 03:
Maybe if, on the man, they were to focus on this exact issue, they can figure out whether they think Johnson discloses bits that are emptier, bits that are repurposed.

[00:13:23] Speaker 00:
Your Honor, I take your point.

[00:13:26] Speaker 02:
But in response to me, you're saying that the term empty bits, a person of skill and the art would understand that not to mean that they are bits they just don't carry into any information.

[00:13:40] Speaker 02:
I'm telling you, Your Honor, it's impressive, but not acting in any functional way.

[00:13:44] Speaker 00:
Read in the context of the entire opinion.

[00:13:47] Speaker 00:
I understand.

[00:13:48] Speaker 00:
But the term empty bench by itself.

[00:13:50] Speaker 00:
Yes, I think taking it in isolation, it would mean those that aren't made use of.

[00:13:54] Speaker 00:
OK.

[00:13:54] Speaker 03:
Yeah, they weren't.

[00:13:56] Speaker 00:
And I would just note, Your Honors, that- Do you want to save any rebuttal time?

[00:13:59] Speaker 03:
Because you can keep noting, but you won't have any time left.

[00:14:02] Speaker 00:
Thank you, Your Honors.

[00:14:03] Speaker 00:
I'm going to note with respect to claim 10, the scale of address field limitation is quite different from claim 1 and 14.

[00:14:10] Speaker 00:
And this court's prior construction expressly didn't apply to that.

[00:14:14] Speaker 00:
And at least the Johnson would be met by that term as well.

[00:14:33] Speaker 03:
Mr. Gonzales.

[00:14:37] Speaker 03:
Yes.

[00:14:37] Speaker 03:
Please proceed.

[00:14:41] Speaker 01:
Good morning.

[00:14:42] Speaker 01:
My name is Dr. Gregory Gonzales representing CIPCO, the appellee.

[00:14:47] Speaker 01:
Emerson is essentially arguing that the board's final written decision on rematch should be vacated because it has a different understanding and interpretation of the Johnson-Clyer reference than the board has.

[00:15:01] Speaker 01:
But the board's decision should be affirmed because it's understanding and the interpretation of Johnson is certainly supported by substantial evidence.

[00:15:11] Speaker 01:
For example, the testimony of patent owner's expert, Dr. Kevin Alvaroff, supports the board's factual findings as to what Johnson would have taught to a person of ordinary skill in the art.

[00:15:24] Speaker 01:
And could you please turn to page 2204 of the joint appendix

[00:15:30] Speaker 01:
which is Dr. Almaraz's declaration.

[00:15:36] Speaker 01:
As he explained, the NSM address field in Johnson's figure 43 must be present, and always has a fixed size of 32 bits.

[00:15:47] Speaker 01:
The NSM type is optional.

[00:15:49] Speaker 01:
He goes on to state in paragraph 125 that the claim limitation of a receiver address

[00:15:56] Speaker 01:
Comprising a scalable address of the at least one remote device cannot be satisfied by showing that Johnson's destinations may contain an optional field like the NSM type.

[00:16:09] Speaker 01:
Rather, the limitation can only be satisfied if the address of the remote device itself is scalable.

[00:16:16] Speaker 01:
And then please turn to the next page.

[00:16:18] Speaker 03:
Council, I don't understand what your argument is.

[00:16:22] Speaker 03:
Are you trying to focus on the substantial evidence question of what Johnson discloses?

[00:16:28] Speaker 03:
Or are you trying to focus on the claim construction issue of what needs to be or can be included in the scalable address?

[00:16:38] Speaker 01:
OK.

[00:16:39] Speaker 01:
Right now I'm talking about substantial evidence to support

[00:16:43] Speaker 01:
the board's factual finding that Johnson would not have taught this particular claimation.

[00:16:50] Speaker 01:
I have some comments on the claim construction itself that I'll refer to later.

[00:16:54] Speaker 03:
Well, I think that you should start with the claim construction because if the claim construction, if the board got the claim construction wrong, I think you might be

[00:17:04] Speaker 03:
Maybe I'm wrong, but I think you might be spinning your wheels, spending your time on whether substantial evidence supports the board's findings under the existing claim construction.

[00:17:14] Speaker 01:
Well, you know, I can talk about the claim construction also.

[00:17:18] Speaker 01:
And I guess I'll go to that based on your suggestion.

[00:17:22] Speaker 01:
So Emerson's allegations that the board did not apply to support claim construction and had a negative limitation, which it says today, are simply not true.

[00:17:33] Speaker 01:
of the board cited and quoted through the court's opinion on claim construction several times in its final written decision on remay.

[00:17:42] Speaker 01:
And this is at pages 6, 7, 8, 10, and 11.

[00:17:47] Speaker 01:
I mean, basically, it copied the court's claim construction from this court's opinion.

[00:17:54] Speaker 01:
So it's unclear how it could be accused of not applying

[00:18:04] Speaker 01:
Both the board and this court stated that the address of the transceiver within the receiver address must be scalable, and that the presence or absence of optional fields like a vice-type field in a receiver address does not mean that the transceiver address itself is scaled.

[00:18:23] Speaker 01:
And so when you take that claim construction, both from this court and the board, and you apply it to Johnson, and you look at the evidence that the board considered

[00:18:34] Speaker 01:
in making his determination that Johnson does not have towards this claim limitation.

[00:18:43] Speaker 01:
But there is substantial evidence to support that was finding.

[00:18:48] Speaker 03:
I guess, counsel, I don't understand our prior decision to have decided

[00:18:54] Speaker 03:
whether a type field in the circumstances in which it is necessary to identify the unique address is, in fact, excluded from what could be part of or should be part of the scalable address.

[00:19:09] Speaker 03:
I understood our prior opinion to define the scalable address in a functional way.

[00:19:15] Speaker 03:
Is that not your understanding of it?

[00:19:19] Speaker 01:
That's how I understand the court's opinion on client construction.

[00:19:24] Speaker 01:
of the board put in its final written decision on remand differs from that.

[00:19:29] Speaker 01:
I think it closely adhered to this board's construction.

[00:19:35] Speaker 01:
And so what I'd like to explain to you is there is substantial evidence supporting the board's decision

[00:19:41] Speaker 03:
Well, I mean, before you get to substantial evidence, though, you actually have to convince me the board's claim construction is right, and I'm still not actually with you.

[00:19:50] Speaker 03:
So I would suggest you continue to devote your time to that issue, because I understood our prior decision to be saying the scalable address is not the entire to address.

[00:20:01] Speaker 03:
It's only the portion of the to address, which allows you to direct

[00:20:10] Speaker 03:
or identify the unique recipient.

[00:20:13] Speaker 03:
And if the type field is necessary to identify the unique recipient, I don't understand why it's not part of the scalable address under our definition.

[00:20:27] Speaker 01:
OK.

[00:20:27] Speaker 01:
Well, that's exactly the point is that.

[00:20:34] Speaker 01:
So first of all, I thought the board's opinion and this court's opinion on claim construction

[00:20:39] Speaker 01:
were the same, because both said, as you just indicated, that the address of the transceiver within the receiver address, which you prefer to as the to address, that that must uniquely identify the transceiver.

[00:20:56] Speaker 01:
And the M-type is a type field, which is in Johnson, and it's not used to identify a transceiver.

[00:21:07] Speaker 01:
And that's what the board found.

[00:21:10] Speaker 01:
And that finding is supported by substantial evidence.

[00:21:13] Speaker 01:
So I think that we agree on claim construction.

[00:21:16] Speaker 01:
That's why I want to go to the expert test.

[00:21:18] Speaker 03:
So is your view then that the claim construction is correct when you say the NSM type field, or a type field in general, could be part of the scalable address, which is itself a component of the receiver address?

[00:21:37] Speaker 03:
Is that a correct understanding by you of the claim construction in this case?

[00:21:42] Speaker 01:
Yeah, I think what you said is correct.

[00:21:44] Speaker 01:
I think both the court as well as the board indicates that this particular scalable address limitation is limited to only that field that uniquely identifies the transceiver.

[00:22:03] Speaker 01:
And suppose it's not.

[00:22:06] Speaker 01:
identifying the transceiver, that it's not part of the claimed scalable address.

[00:22:19] Speaker 04:
And there's substantial evidence in the record.

[00:22:20] Speaker 02:
Let me make sure I understood your answer to the chief judge's earlier question.

[00:22:26] Speaker 02:
You're saying that the type signal can be

[00:22:34] Speaker 02:
associated with and part of the scalable address in some circumstances.

[00:22:40] Speaker 02:
Is that what you're saying or no?

[00:22:43] Speaker 01:
Well, I think the court's opinion made it clear that only if a field is used to uniquely identify a transceiver should it be considered to be part of a scalable address.

[00:22:54] Speaker 02:
But if it's necessary to identify the unique receiving party

[00:23:02] Speaker 02:
To add a type signal, is the type signal then part of the scalable address?

[00:23:10] Speaker 01:
I think any data that is used to identify a transceiver, to them, it should be part of the scalable address.

[00:23:19] Speaker 01:
But there's substantial evidence in the record from Dr. Almaraud's testimony that the fields that they're pointing to

[00:23:26] Speaker 01:
as identifying the transceiver do not in fact use to address the transceiver.

[00:23:35] Speaker 01:
And that's what I was about to discuss.

[00:23:37] Speaker 03:
Council, I guess I will tell you that I read the board opinion differently and the dispute on appeal differently than you're articulating it now.

[00:23:46] Speaker 03:
If you're looking at page 11 of the board's decision, which is at appendix 11, it explains that

[00:23:54] Speaker 03:
The Federal Circuit made clear this is not a correct construction of scalable address.

[00:23:59] Speaker 03:
We do not read the claim as petitioners suggest.

[00:24:03] Speaker 03:
Petitioners suggest that the portion of the receiver address that identifies the unique recipient or recipients cited by the Federal Circuit can include a type identifier.

[00:24:13] Speaker 03:
We disagree.

[00:24:14] Speaker 03:
That seems very absolute.

[00:24:16] Speaker 03:
You're saying it can include a type identifier if it identifies the unique transceiver.

[00:24:22] Speaker 03:
But that doesn't seem to be what the board held.

[00:24:24] Speaker 03:
The board seems to have held it can never be a part of the scalable address.

[00:24:29] Speaker 03:
And they attribute that to our prior opinion.

[00:24:35] Speaker 01:
Well, I think what the board is saying here is that an identifier of a device is not an address.

[00:24:43] Speaker 01:
and it's not used to uniquely identify.

[00:24:45] Speaker 01:
When you consider the whole paragraph, the board is saying, if it's not used to uniquely identify the remote device, then it's not the scalable address that's recited to the claim.

[00:25:11] Speaker 01:
And so the idea is, is there substantial evidence to support the board's factual finding that Johnson would not have taught a scalable address?

[00:25:26] Speaker 03:
OK, so just in case I read the board's opinion differently than you do, and I think the board erred in its claim construction, just in case, what would be the correct course of action for me under those circumstances?

[00:25:41] Speaker 01:
OK, it's difficult for me to answer this question because I think that the board's opinion on claim construction is consistent with this court's opinion.

[00:25:53] Speaker 03:
OK, but suppose I don't agree.

[00:25:55] Speaker 03:
And suppose I believe the board took a very absolute position that the scalable address can never include the type identifier.

[00:26:07] Speaker 03:
And suppose that I think that's wrong.

[00:26:10] Speaker 03:
What would you have me do then?

[00:26:13] Speaker 01:
Even if you interpret it that way, it doesn't matter because these particular fields, disclosed in Johnson, are not used to uniquely identify the transceiver.

[00:26:27] Speaker 01:
And there's substantial evidence in the record indicating that it's not used for that purpose.

[00:26:35] Speaker 03:
OK, what is the substantial evidence that you'd like to point to

[00:26:39] Speaker 03:
that the NSM type code in Johnson does not help route to a unique transceiver.

[00:26:50] Speaker 01:
OK.

[00:26:51] Speaker 01:
So if you can turn to page 2205 of the appendix, and that's part of Dr. Ralph Moore's declaration.

[00:27:01] Speaker 01:
And first he shows that the top of the page is the figure 35, showing that the NSM address is always fixed at 32 bits, and that

[00:27:09] Speaker 01:
You have a resulting address that states 4 billion NSMs that are possible.

[00:27:13] Speaker 03:
OK.

[00:27:14] Speaker 03:
I asked you to show me the evidence.

[00:27:15] Speaker 03:
Before you dive any deeper, can I ask you, did the board make this fact finding?

[00:27:20] Speaker 03:
Did the board actually find that the NSM type disclosed in Johnson does not route or is not part of the identity necessary to route something to a unique recipient?

[00:27:37] Speaker 03:
Did the board make that fact finding?

[00:27:39] Speaker 03:
I understand you're telling me there's substantial evidence for that conclusion.

[00:27:42] Speaker 03:
And I know that your expert did provide such testimony.

[00:27:45] Speaker 03:
But the question I have is, did the board make that fact finding?

[00:27:51] Speaker 01:
So I think it did, because even in the initial final decision, the board made the determination that the broadcast individual message that the talent is relying on here

[00:28:06] Speaker 01:
Even in its initial final decision, it said that that particular address scheme does not disclose the scalable address.

[00:28:16] Speaker 03:
And again, here, it means that- Well, what's on appeal to us is the final decision.

[00:28:22] Speaker 03:
Where in the final decision could you point me to understand that the board found that the NSM type address code in Johnson doesn't do anything to direct

[00:28:35] Speaker 03:
the message to a particular recipient.

[00:28:41] Speaker 01:
OK.

[00:28:42] Speaker 01:
So if you look at the file on page 15.

[00:28:44] Speaker 02:
15, did you say?

[00:28:49] Speaker 02:
Yeah.

[00:28:49] Speaker 01:
15?

[00:28:49] Speaker 01:
The final written decision on remand, page 15 of the joint appendix.

[00:28:53] Speaker 01:
OK.

[00:28:55] Speaker 01:
And there, the board has explained that Johnson discloses three types of destination addresses of an SM.

[00:29:02] Speaker 01:
Board class to class, a class

[00:29:05] Speaker 01:
broadcast individual and it keep addressing the theme.

[00:29:09] Speaker 01:
Okay, broadcast individual is what the talent is relying on here.

[00:29:16] Speaker 01:
And then the very next paragraph at the top of page, first full paragraph at the top of page 16, it says, Pat and Ona argues that each of these individual themes does not exemplify a scalable address.

[00:29:29] Speaker 01:
And it cites to the Patent Honor Response at 29 and 35.

[00:29:34] Speaker 01:
And then it says, we agree.

[00:29:35] Speaker 01:
Now, if you look at the Patent Honor Response at pages 29 to 35, what's in there is citations and quotes from Dr. Amaran's declaration explaining why these fields are not used to uniquely identify a transceiver.

[00:29:54] Speaker 01:
So that is the factual finding in the board's decision.

[00:29:59] Speaker 01:
And that's why I was referring to the same testimony in Dr. Almarov's declaration that the board referred to.

[00:30:08] Speaker 01:
The board referred to my patented response on pages 29 and 35.

[00:30:13] Speaker 01:
But I can tell you right now about Dr. Almarov knows a lot more than I do about networking.

[00:30:19] Speaker 01:
So within those pages is his testimony.

[00:30:22] Speaker 01:
And I cited it to a repeat.

[00:30:29] Speaker 03:
Okay, well, council, we're out of time, so I'm going to have to turn to your opposing council.

[00:30:36] Speaker 03:
I think he's got a little bit of rebuttal time left.

[00:30:58] Speaker 03:
Before we start the time, well, I'll go ahead and start the time.

[00:31:01] Speaker 03:
You only have one minute left.

[00:31:02] Speaker 03:
So I just want you to focus on whether or not the board decided that Johnson's NSM type does or does not direct the message to the recipient.

[00:31:16] Speaker 00:
Yes, Your Honor.

[00:31:18] Speaker 00:
The board actually states in two places itself.

[00:31:21] Speaker 00:
I think the best place is at appendix 19 to 20, where the board states expressly, according to petition,

[00:31:27] Speaker 00:
If the system includes multiple types of NSMs, the system can use a combination of NSM type and NSM address as the unique destination address, definitively saying that NSM type is used to identify the particular recipient satisfying this court's prior construction.

[00:31:45] Speaker 02:
So I take it that what you would say with respect to the material on App 16 is that that goes not to the question of whether type is part of the address, but whether it's part of a scalable address because of what the board says about the empty bits.

[00:32:04] Speaker 02:
Is that a fair summary of what your position is?

[00:32:07] Speaker 00:
Yes, in part, Your Honor, except that the type bits that are no longer user instead of reallocated to the network.

[00:32:13] Speaker 02:
Well, I understand that's your position as to why the board is wrong.

[00:32:16] Speaker 02:
But what I'm trying to see is why it is that the section on page 16 is consistent, in your view, with what the board says on the later pages that you just cited.

[00:32:26] Speaker 02:
And I think I understand that you're saying the reason is because the board erroneously, in your view,

[00:32:31] Speaker 02:
said empty beds are always present.

[00:32:35] Speaker 00:
Correct.

[00:32:35] Speaker 00:
Without any support from Dr. Elmorth or anybody else.

[00:32:39] Speaker 00:
Thank you, Your Honor.

[00:32:40] Speaker 03:
Thank you.

[00:32:40] Speaker 03:
This case is taken under submission.