[00:00:00] Speaker 01: The next target case is number 22, 1037, Intel Corporation against PACT, XPB, Schweitzer AG. [00:00:09] Speaker 01: Mr. Appleby. [00:00:11] Speaker 00: Could I ask a question before the clock starts running? [00:00:15] Speaker 00: Yes, OK. [00:00:15] Speaker 00: OK. [00:00:16] Speaker 00: I don't know if the other side has it. [00:00:17] Speaker 00: I'm just curious. [00:00:19] Speaker 00: Are there a lot of other IPRs involving these parties and related patents still going on? [00:00:25] Speaker 00: We've got three. [00:00:25] Speaker 00: We know there's a fourth. [00:00:27] Speaker 00: Are there just a lot more cases in the pipeline? [00:00:30] Speaker 03: I do not believe so. [00:00:31] Speaker 03: There were a total at one time of 12. [00:00:34] Speaker 03: But I believe all but, if somebody can correct me if I'm wrong, but all but four, including these three, have been resolved. [00:00:45] Speaker 03: That's good news. [00:00:47] Speaker 03: There is a rehearing pending on a fourth that's not at issue here today that's pending at the PTAB. [00:00:55] Speaker 03: And then there is a fifth patent that's under ex parte re-exam. [00:00:59] Speaker 03: But I believe the other proceedings have been resolved. [00:01:04] Speaker 03: That's my understanding, anyway. [00:01:06] Speaker 01: Thank you. [00:01:07] Speaker 01: Sorry. [00:01:07] Speaker 01: OK. [00:01:07] Speaker 01: All right. [00:01:08] Speaker 01: Thank you. [00:01:08] Speaker 01: Let's start the clock. [00:01:10] Speaker 01: And when you're ready, Mr. Appleby. [00:01:11] Speaker 03: Thank you, Your Honor. [00:01:13] Speaker 03: Good morning. [00:01:14] Speaker 03: Robert Appleby on behalf of Appellant Intel. [00:01:16] Speaker 03: May it please the court? [00:01:18] Speaker 03: In our briefing, Intel raised two errors that occurred below, and that led to the board to find that claim five, the only challenge claim, was not unpatentable over the combination of Kabamoto and Baumann. [00:01:31] Speaker 03: In finding that the combination did not render claim five unpatentable, the board went astray in two ways. [00:01:37] Speaker 03: First, the board found that Intel had not shown that one aspect of the interconnect system, [00:01:44] Speaker 03: claim limitation of claim five was met by crediting an argument that PACT now admits it never made below, which led the board to ignore the evidence that Intel introduced on the issue. [00:01:55] Speaker 03: Second, in assessing Intel's argument and evidence that the combination of Kabamoto and Bauman represented known techniques to improve similar devices in the same way, the board, in our view, did not follow the flexible and expansive analysis that's outlined in KSR [00:02:12] Speaker 03: But instead, improperly cabin the inquiry to whether either reference expressly taught that the combination would be an improvement over the prior art. [00:02:21] Speaker 00: Can I ask you? [00:02:23] Speaker 00: This permeates the other cases. [00:02:25] Speaker 00: And if I start talking about the wrong patents and the wrong case, please stop me right away. [00:02:29] Speaker 00: But the question I have is, hypothetically, if we agree with your APA stuff, what do we do with a case like this? [00:02:36] Speaker 00: Is a remand necessary? [00:02:39] Speaker 00: Are we free or required or not allowed to then look at the merits argument ourselves? [00:02:46] Speaker 00: Or do we have to give the board another chance to say, you looked at the wrong argument. [00:02:51] Speaker 00: You were mistaken in terms of what PAC was arguing. [00:02:53] Speaker 00: You came up with some new stuff. [00:02:55] Speaker 00: Do it over. [00:02:57] Speaker 00: Or given the state of the record at this stage, [00:03:01] Speaker 00: Do we just review it and say, yeah, as a matter of law or as a matter of substantial evidence, they didn't have enough on this record and review it on this record? [00:03:11] Speaker 03: So in our view, with respect to the interconnect system limitation, [00:03:17] Speaker 03: In our view, the evidence was uncontested below that that limitation was met. [00:03:24] Speaker 03: And so we believe that this court could find that limitation met and sent and manned back to the board for consideration of the obviousness issues. [00:03:35] Speaker 03: With respect to the obviousness issues and the motivation to combine, the board, in our view, never did the appropriate analysis under KSR, the flexible and expansive analysis [00:03:45] Speaker 03: that would be required. [00:03:47] Speaker 00: But so you're not saying that on this record there's sufficient basis to conclude that the board erred in its arguments regarding motivation to combine? [00:03:56] Speaker 00: I mean, point out all these errors. [00:03:59] Speaker 03: So maybe I misunderstood your question, Your Honor. [00:04:01] Speaker 03: So I do believe that the evidence on motivation to combine only points in one direction, that the use of a known alternative of a shared, segmented cash [00:04:11] Speaker 03: a second level cash in place of a individual second level cashes that under KSR, the evidence only points to one conclusion, that there is obviousness in this case. [00:04:24] Speaker 03: And I believe the court could reach that conclusion. [00:04:26] Speaker 00: OK, so when you say to send it back for some other obviousness things, are there other obviousness things like secondary considerations or stuff? [00:04:33] Speaker 03: There are not in this case, Jim. [00:04:36] Speaker 04: So do you think, I think, [00:04:40] Speaker 04: What I'm still a little confused about your answer is, if we find that the board just erred as a matter of law, looking at their reasons for rejecting the combination and their reasons, assuming, I think, that you wouldn't show how you would attach, I guess, the Bowman [00:05:02] Speaker 04: global SLC to the Cabo Moto Snoop bus and that it didn't show improvements that we think both of those are just legally incorrect reasonings on the known technique and given everything else in the record do we still send it have to send it back to the board for them to determine whether there's still a motivation to combine or is it that on the record when you have two references in the same field and it's a known technique [00:05:26] Speaker 04: to improve a device that there's enough to just reverse and find a motivation to combine here. [00:05:33] Speaker 03: So in our view, given this record, this court could find that as a matter of law that the substitution of a segmented second level cash as a known alternative for individual second level caches was obvious as a matter of law and could just reverse the board at that point. [00:05:57] Speaker 03: OK, if that answers your question, you're right. [00:05:59] Speaker 04: I have a similar question on the interconnected issue, though, because I see there that the board is, even though there is no real construction, they seem to implicitly require that somehow the interconnect system, which [00:06:17] Speaker 04: Tell me if I've got the board's theory of your theory of the case incorrect, because I have a feeling that the board may have done something that you don't agree with. [00:06:25] Speaker 04: But it seems like the board thinks that you pointed to the SnoopBus from Cavamodo. [00:06:32] Speaker 04: SnoopBus is a great term, by the way. [00:06:34] Speaker 04: These computer things I hate, but I love SnoopBus. [00:06:38] Speaker 04: You pointed to that as the interconnect system. [00:06:42] Speaker 04: and that that doesn't show where the segmented caches are interconnected because that's in Bowman and not in the Cabimodo Snoop Bus. [00:06:53] Speaker 04: And so it sounds to me like the board is saying the interconnect system [00:07:00] Speaker 04: itself has to connect the segmented cache parts. [00:07:06] Speaker 04: And that Kabamoto snoot bus clearly doesn't because the snoot bus is that one line. [00:07:12] Speaker 04: And then the connections between the segments in Bowman are done [00:07:17] Speaker 04: something that's not the snoot bus. [00:07:19] Speaker 04: I'm sorry if that doesn't make any sense but it seems to me that essentially the board's saying the snoot bus itself has to make direct connections between the segmented global cash. [00:07:31] Speaker 04: I mean it's clear to me at least that Bowman has connections between all the segmented stuff and when you connect it through the snoot [00:07:37] Speaker 04: bus, it's all connected. [00:07:39] Speaker 04: But if the board's construction of interconnect requires direct interconnections by the interconnect system, and Kabutomoto's the only interconnect system is the snoop bus, then that doesn't necessarily show it. [00:07:53] Speaker 04: If we disagree with the way the board has construed what interconnect system means or interconnectedness means, [00:08:00] Speaker 04: and think it can be broader, do we have to send that back? [00:08:04] Speaker 04: Or is there any argument for the board to make new findings under a more correct interpretation? [00:08:10] Speaker 03: And we outlined this in our brief. [00:08:12] Speaker 03: We do believe that the evidence below was uncontested, that through the combination, using the Snoop bus as an interconnect system, it would meet the three [00:08:25] Speaker 03: relationships that are required by the Interconnect system of Claim 5. [00:08:31] Speaker 03: To be quite candid with you, I'm not exactly sure what the board [00:08:37] Speaker 03: envisioned was the difficulty here because it simply states in the final written decision that it found the explanation inadequate. [00:08:48] Speaker 03: But its reasoning is based on the belief that the interconnect system was challenged by PAC below and that we had not responded to that argument, which PAC now admits was not the case. [00:09:00] Speaker 03: The combination of Kabamodo and Bowman, the Snoop bus itself, is a shared bus that interconnects everything that's attached to it. [00:09:12] Speaker 03: And in Kabamodo itself, it interconnected processors to processors, processors to caches, secondary caches, and secondary caches to secondary caches. [00:09:24] Speaker 03: In our proposed combination below, [00:09:27] Speaker 03: We were just simply replacing those secondary caches with the cache segments of Bauman, and with everything being connected to the snoop bus. [00:09:37] Speaker 03: And that's made clear in our experts' declaration at appendix 935, paragraph 135, where the expert outlines that each of those segments would be connected [00:09:49] Speaker 00: I guess I have the same concerns, and I'm not sure you're really directly answering Judge Hughes. [00:09:56] Speaker 00: Maybe you are. [00:09:57] Speaker 00: Maybe he did. [00:09:57] Speaker 00: I apologize if I mispronounced the question. [00:10:01] Speaker 00: It's hard to get through a lot of pieces of this case. [00:10:04] Speaker 00: It's not just the technology. [00:10:05] Speaker 00: It's kind of the argument. [00:10:07] Speaker 00: But I think maybe [00:10:09] Speaker 00: My analysis was like Judge Hughes. [00:10:11] Speaker 00: The only way I could figure out or try to make sense out of what the board said with regard to snoot bus was to assume that it was requiring direct connection and was not allowing for indirect connection. [00:10:25] Speaker 00: So if that is the case, and do we here say, that's wrong, if that's what we believe, that indirect connection was OK? [00:10:35] Speaker 00: And if we reach that portion of it, is there a reason to send it back to the board again? [00:10:42] Speaker 00: Or do we just say, we agree with Intel. [00:10:46] Speaker 00: The snoop bus was what was connecting it. [00:10:48] Speaker 00: We don't think that direct connection was required. [00:10:51] Speaker 00: Full stop, end of story. [00:10:53] Speaker 03: So I would agree with that, Your Honor. [00:10:55] Speaker 03: If this court was to include that connection direct or indirect meets the interconnection system, the three relationships of the system, that's clearly shown in the two references. [00:11:06] Speaker 03: Because Kabumoto has the three relationships, if we look at cash to cash. [00:11:12] Speaker 03: And Bauman expressly, and there was no dispute about this below, expressly shows cash segment to cash segment interconnection. [00:11:19] Speaker 04: Well, here's where I think, and maybe I'm just misreading the board decision, and there's not going to be a disagreement on the other side of this. [00:11:26] Speaker 04: But what I'm reading the board's decision is saying the SNOOP bus connects. [00:11:31] Speaker 04: It has one line to the Bowman Global SLC. [00:11:36] Speaker 04: It doesn't have multiple lines from the SNOOP bus to each specific segmented CAF. [00:11:42] Speaker 04: And that's what the board required for an interconnect system, that it connects [00:11:47] Speaker 04: The system connects piece to piece between the caches by the snoot bus. [00:11:55] Speaker 04: And not just the snoot bus connects generally to the SLC. [00:12:00] Speaker 04: And then within the SLC itself, they're connected segment to segment. [00:12:05] Speaker 04: Does that make sense? [00:12:07] Speaker 04: That's my reading of the board's thing. [00:12:09] Speaker 04: To me, that's what, when I say I thought they required a direct connection between the snoot bus and each segment in CAS, that's how I read their opinion. [00:12:18] Speaker 04: Clearly, the global SLC is connected segment to segment. [00:12:22] Speaker 04: And once you connect it to the snoot bus, it's all interconnected. [00:12:25] Speaker 04: That's the way Dataflow or whatever this is works, I assume. [00:12:29] Speaker 04: But if the board's reading of that is what they meant by interconnect, [00:12:36] Speaker 04: I mean, I assume you think that's wrong. [00:12:39] Speaker 04: And if we think that's wrong and that indirect connections, which is what this would be, is good enough, then I'm just trying to clarify again. [00:12:51] Speaker 04: Your answer is that if you would not have a connection, there's no dispute that this combination does it, assuming we also find a motivation combined. [00:12:59] Speaker 04: There would be no dispute that the combination meant that. [00:13:02] Speaker 01: There's no dispute that this new bus [00:13:04] Speaker 01: is an interconnecting system? [00:13:06] Speaker 01: It's just what kind of direct or indirect? [00:13:11] Speaker 03: There would be no dispute. [00:13:13] Speaker 03: If indirect and direct connections satisfy, there's no dispute that those three relationships are satisfied through the combination of Kalb and Bodo involvement. [00:13:21] Speaker 03: I believe that's answering your question. [00:13:24] Speaker 03: So I believe if you find that indirect connections are OK, then you do not need to. [00:13:30] Speaker 03: Right. [00:13:30] Speaker 03: If direct connections are required, then there may be a problem. [00:13:35] Speaker 04: So you may have arguments on that. [00:13:37] Speaker 04: But let's just assume that that's direct connections. [00:13:39] Speaker 04: I don't think that's right. [00:13:40] Speaker 04: But if it was, there is a little bit more of a problem about the snoop bus providing a direct connection to each segment. [00:13:49] Speaker 03: So let me preface that by saying, if indirect connections are OK, then there's absolutely no dispute that everything's interconnected in the way it needs to be in the claim. [00:14:00] Speaker 00: Just on this point, staying on this point, was PAC making the argument, or was this something that the board, on the snoop us stuff and the interconnected stuff, was this an argument they adopted the patent owner's argument, or was this something they did on their own? [00:14:15] Speaker 03: So this was not an argument that was raised by PAC below. [00:14:17] Speaker 03: PAC never challenged that the combination as we proposed it would meet the interconnect system limitation. [00:14:28] Speaker 03: Where the board, in my view, was led astray is packed below on the issue of motivation to combine positive to alternative combinations under the argument that we believe, this is PAC speaking, that if one ordinary skill in the art combined these, they would not combine them in the way Intel had proposed, but would combine in the way that [00:14:55] Speaker 03: in another way, and there was two other ways. [00:14:58] Speaker 03: For those two other ways, PACT contested that the interconnect system wouldn't be met. [00:15:03] Speaker 03: That was why those alternative ways failed. [00:15:06] Speaker 03: But PACT never made the argument on our proposed combination that it didn't meet the interconnect system limitation, and therefore also never made this collective versus individual connection argument that we've been discussing here. [00:15:21] Speaker 01: OK. [00:15:21] Speaker 01: Let's hear from the other side. [00:15:22] Speaker 01: We'll save you a little time. [00:15:25] Speaker 01: Mr. Weisberg. [00:15:27] Speaker 02: May it please the court, Sanford Weisberg for appellee pact. [00:15:30] Speaker 02: I'd like to begin with this direct versus indirect question. [00:15:33] Speaker 02: Because I think, respectfully, we're getting a little bit ahead of ourselves when we ask that question. [00:15:36] Speaker 02: Because I think the question is whether the petition articulated an indirect theory. [00:15:41] Speaker 02: I think that's the first question that this court should ask. [00:15:44] Speaker 02: And the board found that it did not. [00:15:45] Speaker 02: And at Appendix 797, one of the judges, Judge Barrett, said in response to Intel raising this so-called indirect theory, I don't remember seeing that in your Petition Council. [00:15:58] Speaker 02: And in fact, if one looks at the petition at Appendix 216 to 217, [00:16:04] Speaker 02: A couple of important points. [00:16:05] Speaker 02: The only interconnect system that Intel pointed to was the snoop bus. [00:16:09] Speaker 00: So is it your view that the board decided that issue and said direct is necessary and they didn't elect direct? [00:16:15] Speaker 00: Did the board deal with that? [00:16:17] Speaker 02: What the board decided was that the only theory in the petition is one of connection to the snoop bus and the internal data paths. [00:16:27] Speaker 02: And this can be seen on Appendix 216. [00:16:30] Speaker 02: and that there was never an articulation of a theory of indirectness. [00:16:33] Speaker 02: This sort of direct versus indirect is perhaps shorthand now that we're at oral argument in the Federal Circuit, but it was not something that was argued in the petition. [00:16:43] Speaker 02: What the petition argued is let's take the snoot bus, and there has to be, under the claim, cash segment to cash segment. [00:16:50] Speaker 02: Cabin motor doesn't have cash segments. [00:16:52] Speaker 02: They're getting that entirely from Bauman. [00:16:54] Speaker 02: And yet the petition did not say that the snoop bus somehow reaches up and connects one segment within the global SLC to a neighboring. [00:17:02] Speaker 00: So can you point us to where the board discussed the snoop bus and where they, did they identify the deficiency in the petition? [00:17:10] Speaker 00: Yes. [00:17:11] Speaker 02: The relevant parts of the final written decision are at appendix 19 through 21. [00:17:15] Speaker 02: And specifically on 19, it starts with the first full paragraph that the word petitioner next argues. [00:17:22] Speaker 02: And it goes through 21. [00:17:23] Speaker 02: And I think there's been some discussion, well, PAC didn't make this argument. [00:17:26] Speaker 02: And in all candor, PAC did not make this precise argument. [00:17:30] Speaker 02: PAC addressed a different combination than Intel had proposed. [00:17:33] Speaker 02: However, at these pages, 19 to the 21 of the appendix, the board does not refer to patent owner's PACS arguments. [00:17:41] Speaker 02: It addresses the petition on its own merits under this court's decision and fan duel that was within the board's power to do. [00:17:48] Speaker 02: It can judge the petition within its four corners, regardless of what the patent owner argues. [00:17:53] Speaker 02: You know, even though the board was not required to give Intel even an opportunity to address this deficiency, the board did that at the hearing. [00:18:02] Speaker 02: And that is at pages 774 and 797, which I referred to earlier. [00:18:07] Speaker 02: The board said, look, I only see the snoot bus. [00:18:09] Speaker 02: I don't see how that's connecting cash segments to cash segments. [00:18:12] Speaker 02: Please help me out, Intel. [00:18:13] Speaker 02: And Intel then came up with this theory. [00:18:16] Speaker 02: By the way, it didn't refer to as experts declaration, which they talk about on appeal. [00:18:20] Speaker 02: They only said, well, [00:18:21] Speaker 02: There's this there's there all of the cash segments are somehow interconnected with the snoop bus That's what they said at the hearing at 797 and judge Barrett said is there any dispute that in Bulma and the segmented? [00:18:33] Speaker 02: Cash segments are interconnected to each other there is not but the key question is what is doing that interconnection in an appendix 216 as we also explained in our brief is [00:18:43] Speaker 02: It's internal data paths that are highlighted in gold on 216. [00:18:46] Speaker 02: That is what is accomplishing the interconnection. [00:18:49] Speaker 02: The snoop bus in the proposed combination is entirely outside of that. [00:18:53] Speaker 02: It doesn't somehow sneak its way up and do interconnections. [00:18:57] Speaker 02: It connects to the whole global second level cash, certainly. [00:19:00] Speaker 01: I'm looking to see where in the claim that distinction is drawn, and I don't see it. [00:19:06] Speaker 02: The distinction of cash segment to cash segment? [00:19:09] Speaker 01: The direct and indirect. [00:19:12] Speaker 02: The claim language does not refer to direct versus indirect. [00:19:15] Speaker 01: Then why are we arguing about it? [00:19:17] Speaker 02: Because the claim language does say an interconnect system that connects, among other things, a cash segment to a neighboring cash segment. [00:19:25] Speaker 02: That's the language of the claim, pages 108 to 109. [00:19:29] Speaker 04: The question is here simply that they didn't say interconnect system is the snoot bus attaching to Bowman, which itself has interconnected data segments. [00:19:41] Speaker 02: We might have a different case if their petition, again, has to be in the petition. [00:19:45] Speaker 02: The petition said, we're not going to point just to this. [00:19:48] Speaker 04: Let's just assume that I read that's what the argument is. [00:19:51] Speaker 04: What's wrong with that argument? [00:19:53] Speaker 04: Because if the board read that argument that way and still rejected it, it would have to be because there was no direct connections because there's certainly indirect connections. [00:20:07] Speaker 02: Again, I don't believe. [00:20:12] Speaker 02: I want to answer your own question. [00:20:13] Speaker 04: I understand you don't believe that that's the argument that they're petitioning. [00:20:16] Speaker 04: Let's assume that the interconnect system that disposes all these elements is a combination of Kabamoto and Bowman. [00:20:28] Speaker 04: And Cavanaugh has basically everything except the global SLC. [00:20:33] Speaker 04: And that Bowman has segmented data caches that are connected to each other. [00:20:40] Speaker 04: And by attaching that to Cavanaugh through the snoop bus, it has everything. [00:20:46] Speaker 04: If that's their theory, what's wrong with that? [00:20:48] Speaker 02: So what's wrong with that theory is that we don't have a motivation to combine. [00:20:53] Speaker 02: If I could turn to that issue. [00:20:54] Speaker 02: OK, no. [00:20:54] Speaker 02: That's a different issue. [00:20:55] Speaker 02: Sure. [00:20:56] Speaker 04: I'm talking about whether they're substantial, assuming that because I really do, I don't see any other reason the board could have to reject this combination. [00:21:10] Speaker 04: and have an interconnect system unless it's requiring that there be a direct connection between the snoop bus and each of the segments. [00:21:19] Speaker 04: And so if indirect can be good enough, then there's no substantial evidence for the notion that this combination doesn't disclose everything. [00:21:31] Speaker 02: I would concede that with the caveat that we don't believe the petition alleged in direct theory. [00:21:36] Speaker 04: But I understand you have arguments about why you wouldn't provide that. [00:21:40] Speaker 02: If I could turn to the motivation to combine. [00:21:41] Speaker 02: Now, the board, after finding this deficiency that we've been discussing, went on to say even if [00:21:47] Speaker 02: Even if Judge Hughes' formulation is correct with the petition, here's why there's no motivation to combine. [00:21:52] Speaker 02: I'd like to address that point. [00:21:54] Speaker 02: So, Kabamoto, you've got these several processor elements in sequence, okay? [00:21:58] Speaker 02: And you've got a cache that's not a segmented cache, it's just a cache. [00:22:02] Speaker 02: So they need to go to Bauman to get this cache segments. [00:22:06] Speaker 02: And they rely mostly on appeal on this known technique idea, and they throw in an argument about KSR. [00:22:12] Speaker 02: But really, the question I'd like the court to focus on is, what is the known technique? [00:22:17] Speaker 02: They talk about, well, segmenting a cache into cache segments instead of just an unsegmented cache. [00:22:23] Speaker 02: That's a known technique. [00:22:24] Speaker 02: Everyone does it. [00:22:25] Speaker 02: It's inbound. [00:22:26] Speaker 02: It's well known in the art. [00:22:27] Speaker 02: The problem is that that doesn't get you to the combination. [00:22:30] Speaker 02: We'll grant Intel that segmentation is a known technique. [00:22:34] Speaker 02: But what are they doing here? [00:22:36] Speaker 02: They are taking these three or four processor elements from Cabimodo. [00:22:40] Speaker 02: They're taking the cache outside of the processor element. [00:22:44] Speaker 02: It's 14.1 in the diagram. [00:22:46] Speaker 02: They take it outside the element. [00:22:48] Speaker 02: Then they segment it. [00:22:50] Speaker 02: And then, on top of all that, they connect it to the snoot bus. [00:22:54] Speaker 02: So all of those things are part of the combination that they are proposing. [00:22:58] Speaker 02: And I don't think there's a dispute that that's what they're proposing. [00:23:00] Speaker 02: It's at Appendix 217. [00:23:01] Speaker 02: The board quoted their petition. [00:23:03] Speaker 02: So it's not enough just to say, well, it's a known technique to segment a cash. [00:23:08] Speaker 00: Because this idea of pulling- Yeah, but can you look at what- I'm looking at what the board said about that argument unknown technique. [00:23:15] Speaker 00: And what the board said, which I think is not correct under law, which is that if this petitioner argues Kabumoto already addresses its problem through the use of a known technique similar to that of Bowman's, we fail to see why one of ordinary skill in the art would regard Bowman's technique as an obvious improvement to Kabumoto. [00:23:37] Speaker 00: Is that right? [00:23:39] Speaker 00: Is that legally sustainable? [00:23:40] Speaker 02: That is right in response to the supposed known technique of segmentation. [00:23:46] Speaker 02: I think that was what the board was addressing, and that's at appendix 28. [00:23:49] Speaker 02: So the board was saying, look, if the known technique is let's segment the cash, you could do that within Cavamodo's structure. [00:23:56] Speaker 02: You don't, it doesn't require you to combine this global second level cash. [00:23:59] Speaker 02: You could just, and in fact, Intel suggests, well, Cabomoto has sub lines, which sort of suggests that you could segment. [00:24:05] Speaker 02: Yes, you could segment, but you would do it within Cabomoto's structure. [00:24:08] Speaker 02: You wouldn't pull the cash outside the processor elements, and you wouldn't connect it to the snoo bus. [00:24:13] Speaker 02: Now, embalming. [00:24:14] Speaker 00: Why? [00:24:14] Speaker 00: I mean, I guess I'm trying to understand under KSR and under our law, the board admits that the two address the same problem. [00:24:22] Speaker 00: Why isn't that all that's needed? [00:24:24] Speaker 00: Why does the fact that Kabumoto, obviously we're combining two different references, so they don't, it's not an anticipate, this is an anticipation case. [00:24:32] Speaker 00: So because Kabumoto addresses the same problem differently, why is that evidence that there's no motivation to combine? [00:24:39] Speaker 02: So Bauman does involve segmentation, but it's focused on, and the board found this, focused on a different question, which is separating the cash segments into instruction and operand. [00:24:53] Speaker 02: Instruction is sort of the formula, and the operand is the data that you apply that to. [00:24:57] Speaker 02: That is the focus of Bauman. [00:24:59] Speaker 02: But even more important than that, [00:25:01] Speaker 02: If you look at Bauman, how is the global? [00:25:03] Speaker 04: Are you saying that Bauman also doesn't show that a global SLC is a known technique for maintaining cash coherence? [00:25:13] Speaker 02: Yes. [00:25:14] Speaker 02: Certainly not in connection with a snoot bus, because there is no snoot bus. [00:25:19] Speaker 04: No, no, no, no, no. [00:25:19] Speaker 04: That's not what they're, they don't need to get to Bauman for the snoot bus. [00:25:24] Speaker 04: The snoot bus is in Capimodo. [00:25:25] Speaker 04: The question, as I understand it, is, [00:25:28] Speaker 04: The issue here is maintaining cache coherence in multiprocessor systems. [00:25:33] Speaker 04: Cabomoto does it one way. [00:25:35] Speaker 04: Bauman's global SLC is a different way of maintaining cache coherence. [00:25:40] Speaker 04: If that's what they're trying to get, why isn't Bauman's technique just another technique of maintaining cache coherence? [00:25:46] Speaker 02: Respectfully, it is in part cache coherence, but it's not entirely cache coherence. [00:25:50] Speaker 04: There's another aspect of this, which is how- Well, who cares if there's other aspects? [00:25:53] Speaker 04: As long as it teaches here's a way to maintain cache coherence, [00:25:58] Speaker 04: by having a global SLC versus separate caches. [00:26:03] Speaker 02: So here's the issue is that in order for the cache to have value in the system, the processors need to be able to get to it, not just for cache coherence, but actually to access the data and work on the data. [00:26:13] Speaker 02: So in Bauman, the connection, each processor has its own connection. [00:26:18] Speaker 02: OK, there's no connection between processors. [00:26:20] Speaker 02: The processor directly connects to the second-level cache. [00:26:24] Speaker 02: In Cavamodo, the processors are all connected to each other via the C++. [00:26:27] Speaker 04: Are you saying this shows that it's inoperable, this combination would be inoperable? [00:26:32] Speaker 02: No, we're not making that argument. [00:26:35] Speaker 02: What I think the board was getting at, at Appendix 28, was the only known technique that's been identified is segment the cache. [00:26:43] Speaker 02: But there's a lot more to this combination than that. [00:26:46] Speaker 02: You're not only segmenting, but you're also pulling the cache outside the processor, and then you're connecting it to a snoot bus. [00:26:51] Speaker 02: And Bauman does not use a snoot bus. [00:26:54] Speaker 02: When you introduce a snoot bus to Bauman, you introduce a question of competition among the processors for access to the global second level cache. [00:27:02] Speaker 04: But you're not saying it won't work. [00:27:03] Speaker 04: That's the problem. [00:27:06] Speaker 04: If it's inoperable, there's no motivation to combine. [00:27:09] Speaker 04: But if it can accomplish the goal, even if it may be not as efficient, that doesn't mean there's no motivation to combine it, does it? [00:27:16] Speaker 04: Haven't we said that you don't have to show that it's the best way of doing it, that it's just a way of doing it? [00:27:22] Speaker 02: It doesn't have to be the best way. [00:27:25] Speaker 04: They did articulate a theory that has to be- I mean, to show no motivation to combine on this argument, don't you have to show that it would be inoperable? [00:27:32] Speaker 02: No, I don't believe that's our burden. [00:27:34] Speaker 02: I think in terms of a motivation to combine, we're not trying to show it's inoperable. [00:27:39] Speaker 02: What we're trying to show is, based on the evidence in the record, was there substantial evidence to find that the benefits of that combination were outweighed by the cost of that combination? [00:27:48] Speaker 02: And would a skilled artisan come to that? [00:27:50] Speaker 02: I believe that's our burden. [00:27:52] Speaker 02: And the board found, looking at all this, it said, look. [00:27:55] Speaker 00: But you're saying that their burden for motivation is to show that the benefits outweigh the costs? [00:28:00] Speaker 00: I mean, it doesn't have to be better, right, under KSI? [00:28:04] Speaker 02: No, it has to be something that a skilled artisan would be motivated to do. [00:28:10] Speaker 02: And I'd refer the court to the Henny Penny decision. [00:28:12] Speaker 00: So you're saying that because it was costly, or it's difficult, or challenging, [00:28:18] Speaker 00: then that destroys the motivation to combine? [00:28:21] Speaker 00: What were these references? [00:28:22] Speaker 00: I mean, this thing, I mean, we see motivation to combine different references and different fields of technology and stuff. [00:28:29] Speaker 00: These all seem very close and very related under the same umbrella, right? [00:28:33] Speaker 00: It doesn't seem a stretch to be picking and choosing between Bowman and Kaipomoto, right? [00:28:39] Speaker 02: Well, again, I think to the extent reasonable people could disagree, which we think is the case here, that a skilled artisan would be motivated, taking into account all of the circumstances, that the board had substantial evidence to make that finding. [00:28:50] Speaker 02: And respectfully, yes, it's a similar field, perhaps, but Bauman is using an entirely different approach. [00:28:57] Speaker 02: Okay, it's got a global second level cash. [00:29:00] Speaker 04: Here's the problem is if you look at the board's decision for rejecting it, it rejects it on what seems to be improper grounds. [00:29:08] Speaker 04: On 27 it says well it doesn't actually improve the thing and then on the bottom of 27 [00:29:13] Speaker 04: In 28, it goes on and describes exactly what I think Petitioner's argument is, which is subbing in a global segment in an SLC for Kabamoto's is just subbing in a different technique to main cash coherence. [00:29:32] Speaker 04: And then on 28, it says, well, Kabamoto already does that, so you wouldn't need to go to Bowman for that. [00:29:38] Speaker 04: But that's legally incorrect under KSR 2. [00:29:41] Speaker 04: So the problem is, I understand your argument, but the arguments that the board has articulated here don't seem to me to be legally correct. [00:29:49] Speaker 04: It's not a question of substantial evidence. [00:29:51] Speaker 04: They seem to be incorrect under KSR as requiring them to show an improvement or that the art, the reference or teaching already does this. [00:30:03] Speaker 04: So why would you go to another one? [00:30:05] Speaker 04: We've rejected, particularly that latter one, we've rejected [00:30:10] Speaker 04: other times, I'm pretty sure. [00:30:12] Speaker 02: So KSR does not require an improvement. [00:30:15] Speaker 02: I agree with that. [00:30:16] Speaker 02: However, if the petitioner itself attempts to allege an improvement, this court in the Arctic Cat decision that we cite in our brief says that it can hold the petitioner to that burden. [00:30:26] Speaker 02: The point I'd like to end with here is just that it's not just about segmentation. [00:30:31] Speaker 02: It's about segmentation, removing the cash from the processor, and connecting it to a SnoopBus. [00:30:36] Speaker 02: There's no SnoopBus embellishment. [00:30:38] Speaker 02: And because of the obstacles there, not that they're physically inoperable, but they are enough that a skilled artisan might hesitate and not think of that way of achieving the benefit of segmentation instead, as the board pointed it. [00:30:50] Speaker 04: And where did the board say that? [00:30:53] Speaker 04: The board and you're giving a pretty good articulation of a basis. [00:30:58] Speaker 04: I'm not sure I agree with it, but I didn't read the board's opinion anywhere saying that. [00:31:02] Speaker 02: So I read the board in twenty seven to twenty eight to say that that's what we just looked at. [00:31:06] Speaker 04: Yes, it didn't say that, though. [00:31:08] Speaker 02: I it. [00:31:09] Speaker 02: Look, I think the board says segmentation is not all that's going on here. [00:31:13] Speaker 02: And the board says if you wanted segmentation, you would do it in Colorado. [00:31:16] Speaker 02: The board had other evidence. [00:31:17] Speaker 02: And respectfully, if the court thinks that, well, the board didn't explain those other aspects enough, I think the remedy would be a remand as opposed to a reversal. [00:31:25] Speaker 02: Although again, we would encourage the board to find that the board had substantial evidence to find that the petition had deficiency in its theory. [00:31:32] Speaker 00: Before you sit down, I just have one more process sort of APA question. [00:31:36] Speaker 00: I understood you as not contesting one of their main arguments. [00:31:40] Speaker 00: This is just on the process APA stuff, which is that the board credited your argument, this is on the interconnected stuff, as being your argument. [00:31:50] Speaker 00: And they're adopting your argument. [00:31:52] Speaker 00: And that is incorrect. [00:31:55] Speaker 00: In other words, you didn't make the argument the board, so Espante came up with this argument. [00:32:00] Speaker 00: And therefore, at a minimum, they didn't have an opportunity to respond. [00:32:05] Speaker 00: Is that correct? [00:32:06] Speaker 02: We agree that the board came up with the argument and did so without referring to the patent owner's filings. [00:32:11] Speaker 02: That's at 19 to 21. [00:32:14] Speaker 02: We disagree on two points. [00:32:15] Speaker 02: One, that the board had to provide an opportunity to respond. [00:32:18] Speaker 02: In any event, the board did provide an opportunity to respond at the hearing, appendix 774 and 797. [00:32:22] Speaker 02: And Intel. [00:32:25] Speaker 00: But didn't the board give you credit for making the argument that you did not make and that the board came up with? [00:32:32] Speaker 02: I disagree with that. [00:32:33] Speaker 02: I think at appendix 19 through 21, the board sets this argument out without any reference to the patent owner's filings. [00:32:40] Speaker 02: Thank you. [00:32:42] Speaker 01: Anything else to discuss? [00:32:45] Speaker 01: Thank you, Mr. Weissberg. [00:32:49] Speaker 01: Mr. Appleby. [00:32:51] Speaker 04: Thank you, Your Honor. [00:32:53] Speaker 04: Can you go straight to the motivation and combine? [00:32:55] Speaker 04: Because I'm still struggling a little bit about what we do with this case. [00:32:58] Speaker 04: If we agree that the board's findings of 27 and 28 are legally incorrect as a basis for finding no motivation to combine, then normally I would think that we would have to remand it for the board to make a determination under the correct legal standard. [00:33:19] Speaker 04: But once you get these two references in the same field using very similar techniques and everything, is there any substantial evidence that would still support a finding of no motivation to combine? [00:33:37] Speaker 03: I'm not aware of any, Your Honor. [00:33:39] Speaker 03: If we look at these references, Kawamoto and Baumann, they're both references directed to improving coherence mechanisms for caching. [00:33:49] Speaker 03: They're very similar systems that use multiprocessors with private first-level caches and secondary or second-level caches. [00:33:59] Speaker 03: And the motivation combined here is drawn directly from that tight interrelationship between these references in that a person of ordinary skill in the art would recognize that a shared, segmented second-level cash was a known alternative. [00:34:18] Speaker 04: I'm sorry to cut you off, but I get your argument on that. [00:34:21] Speaker 04: It's helpful. [00:34:22] Speaker 04: Can you address what your friend said about [00:34:27] Speaker 04: Because I think he was reading the board's opinion at 27 and 28 You know, I mean he was rewriting it to me in a way that made more sense but can you address that that the problem here is not just subbing in a Bowman's global SOC for for Kabamoto's separated caches, but rather that [00:34:49] Speaker 04: It requires not just the subbing in of those two things, but also using the snoop bus and because of the distance between the two, that a skilled artist would not combine them in this particular arrangement. [00:35:05] Speaker 03: Right, so we would disagree with that. [00:35:07] Speaker 03: A snoop bus is simply a shared bus. [00:35:10] Speaker 03: And it's called a snoop bus because it snoops on caches. [00:35:15] Speaker 03: It looks at transactions that move between caches and caches. [00:35:19] Speaker 03: So a snoop bus, which mutually interconnects everything that's connected to it, would be the most natural place to place any caching mechanism. [00:35:28] Speaker 03: So a person of ordinary skill in the art looking at Bowman with its shared second level [00:35:34] Speaker 03: cache and looking at Kawamoto that already interfaces its caches through a snoop bus would have been naturally motivated to place that second level cache on the snoop bus. [00:35:45] Speaker 03: I think the issue that in Baumann there's a particular one-to-one connection with the processors is not material in that question because one of skill in the art would understand that [00:35:56] Speaker 03: that a shared bus makes those interconnections as well. [00:36:01] Speaker 03: So this is really just a classic case of a known alternative, a shared second level cache being a substitute for individual second level caches. [00:36:12] Speaker 03: And this is a straight under the flexible and expansive analysis of KSR. [00:36:19] Speaker 04: I mean, you would agree that if they had shown subbing-in balance, SLC made Kawamoto inoperative, [00:36:27] Speaker 04: that that would be a motivation not to combine. [00:36:32] Speaker 04: I mean, I think he said that they weren't making that argument. [00:36:35] Speaker 03: They weren't making that argument. [00:36:37] Speaker 04: But if combining two references would make it inoperable, not that it doesn't work better, but that it's just inoperable, that's a finding against a motivation. [00:36:46] Speaker 03: Well, KSR itself says that if we're just rearranging known elements to yield predictable results, that's obvious unless that's beyond the skill of one's skill in the arts. [00:36:57] Speaker 03: So I think if it was inoperable, you might put that in that basket. [00:37:00] Speaker 00: We've got cases that say that. [00:37:01] Speaker 00: We've got cases that say that, that if it's inoperable, that could be a basis for rejecting motivation. [00:37:06] Speaker 00: Right. [00:37:06] Speaker 03: And I think that that's what KSR implies if you have, you're just rearranging known elements [00:37:12] Speaker 03: that are doing the same function that they're already performing to yield predictable results, it's obvious unless that was something that was beyond the skill of the person or their skill in the art, which an operableness would I think would fall into that basket. [00:37:26] Speaker 03: That is not the analysis that the board did. [00:37:28] Speaker 03: The analysis the board did clearly looked for a teaching of an improvement and looked for a requirement that the combination was actually improvement over known systems, which contravenes many cases from this court's precedent, including Intel versus Qualcomm, which simply says that the combination just needs to be a suitable alternative. [00:37:57] Speaker 03: And with that, if West Court has any other questions, I will. [00:38:03] Speaker 01: Thank you. [00:38:06] Speaker 01: Thanks to both counsels. [00:38:08] Speaker 01: This case is taken under submission.