[00:00:00] Speaker 01: The panel is ready. [00:00:05] Speaker 04: They have pleased the court. [00:00:07] Speaker 04: The board made the same plan construction and obvious mis-errors that we discussed in connection with the 20-92 appeal, and all of the IPRs underlined both of these appeals. [00:00:17] Speaker 04: I don't plan to revisit those unless there are additional questions. [00:00:22] Speaker 04: Instead, I'd like to focus on the 22-39 appeal, [00:00:27] Speaker 04: because it raises a third error independently requiring at least a remand of that IPR. [00:00:35] Speaker 04: Even if Qualcomm's claim construction, the board's claim construction is applied, the board's finding that the UFR and prior art reference failed to anticipate the claims of the 356 patent is unsupported by substantial evidence. [00:00:51] Speaker 04: The Uahara prior art reference discloses what's referred to as a dual carrier signal. [00:00:58] Speaker 04: And it describes a signal in which data is encoded around two different carrier frequencies. [00:01:06] Speaker 04: The British application, that is the very prior art reference that the board relied upon to justify its very narrow definition of carrier aggregation. [00:01:19] Speaker 04: expressly states that a dual carrier signal is the same thing as carrier aggregation. [00:01:26] Speaker 04: It was error for the board to ignore that. [00:01:30] Speaker 04: To show your honors that error, I will ask that you turn to three specific portions of the appendix. [00:01:38] Speaker 04: The first is JA1179 in the 2239 appeal. [00:01:47] Speaker 04: And that shows paragraph 47 of the UHARA prior reference. [00:01:55] Speaker 04: Page 47 describes an amplifier circuit that, quote, may include, I'm sorry, it describes a signal that may include two channels encoded around two different carrier frequencies. [00:02:10] Speaker 05: I'm sorry, Mr. Lanthier. [00:02:11] Speaker 05: Did you say AA179? [00:02:15] Speaker 04: 1179, Your Honor, yes, of the appendix for appeal number 2022239. [00:02:23] Speaker 04: Okay. [00:02:25] Speaker 04: And this is the Uahara reference? [00:02:28] Speaker 04: This is the primary, prior reference for those IPR petitions. [00:02:33] Speaker 04: And we called it Uahara. [00:02:35] Speaker 04: I believe that all the parties agree that's the correct pronunciation of that inventor's last name. [00:02:42] Speaker 04: And in particular, I'm trying to point the court to paragraph 47 of the UHARA prior reference. [00:02:50] Speaker 04: And that's at page 1179 of the appendix. [00:02:55] Speaker 04: It states that the carrier signal is received by the UHARA receiver architecture may include, this is a quote, may include two channels encoded around two different carrier frequencies, parentheses, i.e. [00:03:11] Speaker 04: dual carriers. [00:03:12] Speaker 04: for example. [00:03:14] Speaker 04: And it refers to that as a single signal. [00:03:17] Speaker 04: It says the signal can include two channels encoded around two different carrier frequencies. [00:03:28] Speaker 04: And let me make one small point here, because it was such a focus of Falcom's briefing. [00:03:34] Speaker 04: Paragraph 47 of UR is discussed extensively in our petition. [00:03:42] Speaker 04: came up with the single virtual channel limitation in its patent owner response. [00:03:48] Speaker 04: So that was after institution of the IPR. [00:03:51] Speaker 04: So we could not have used that terminology at the time that we filed that petition. [00:03:56] Speaker 04: In fact, Falkhoun had proposed a claim construction to the ITC that it now says is unreasonably narrow. [00:04:03] Speaker 04: Because in the ITC, it just said that carrier aggregation is simultaneously [00:04:15] Speaker 04: The second portion of the joint appendix that the court respectfully asked to take a careful look at is joint appendix page 2716. [00:04:27] Speaker 04: And this is a portion that's the front page of the prior art reference that the parties and the board have referred to as the British application. [00:04:39] Speaker 04: 27 what? [00:04:42] Speaker 04: 2716, 2716. [00:04:44] Speaker 04: And the last sentence of text that you see on the cover page of the British application says, carrier aggregation mode is also known as spectrum aggregation mode, dual carrier mode, and dual cell mode. [00:05:10] Speaker 04: So remember, Uahara [00:05:12] Speaker 04: discloses receiving dual carriers. [00:05:16] Speaker 04: The British application says dual carriers and carrier aggregation are the same thing. [00:05:24] Speaker 04: The board's determination that UAHARA fails to anticipate is irreconcilable with this evidence. [00:05:32] Speaker 04: And if we turn to the third portion of the appendix that our astronauts focus on, that's appendix pages 22 to 24, [00:05:42] Speaker 04: We see that the British application is the very thing that the board used to justify its construction of carrier aggregation and its addition of the combined single virtual channel limitation that it imported into the construction of carrier aggregation. [00:06:04] Speaker 04: It cannot be right that. [00:06:07] Speaker 04: The British application is what supports finding what carrier aggregation is from a plant construction perspective. [00:06:15] Speaker 04: It says that dual carriers is the same thing as carrier aggregation. [00:06:22] Speaker 04: UAHRA disposes of receiving dual carriers, but UAHRA, as the board thought, does not anticipate. [00:06:30] Speaker 04: The board did not address this, although it was clearly raised in our briefing to the board on this topic. [00:06:37] Speaker 04: in its final written decision. [00:06:39] Speaker 04: And I will note that Qualcomm did not address this in its briefing, which you'll find at pages 50 to 53 on this topic in its brief. [00:06:54] Speaker 04: Unless your honors have questions, I would reserve the remainder of my time to respond. [00:07:00] Speaker 02: I have a question. [00:07:01] Speaker 02: Does your hub disclose increased bandwidth [00:07:11] Speaker 04: To the extent that the answer from the board's perspective is yes. [00:07:16] Speaker 04: The board relied on, I'm sorry, does UAHARA disclose increased bandwidth? [00:07:23] Speaker 04: Yes, because it discloses that you can have a signal in which there are two channels simultaneously broadcast. [00:07:34] Speaker 04: That is under the Qualcomm and the board interpretation of what it means to increase bandwidth. [00:07:40] Speaker 04: that is increasing bandwidth. [00:07:43] Speaker 04: Because what Qualcomm and the board have said is that what carrier aggregation does is it takes a single transmission, puts it on two different carriers, encodes around two different carriers, and transmits it. [00:08:00] Speaker 04: And therefore, you increase the bandwidth in the sense that, whereas before you were limited to the bandwidth, [00:08:18] Speaker 04: increased bandwidth limitation that are added into the claim. [00:08:26] Speaker 01: Any more questions at this stage? [00:08:30] Speaker 01: Okay, we're going to save the city a rebuttal time and Mr. Mayor, go ahead. [00:08:36] Speaker 06: Morning, Your Honors. [00:08:37] Speaker 06: First, I'd like to speak to the anticipation, obvious arguments with respect to UEHARA, and then I would like to turn to the Section 315 cross-appeal. [00:08:47] Speaker 06: With respect to UEHARA, Intel's anticipation argument here relies on attorney argument regarding the carrier aggregation limitation. [00:08:56] Speaker 06: Intel cannot point to any evidence in the joint appendix where its expert, Dr. Fay, who submitted a rebuttal declaration, testified that UEHARA extend bandwidth by combining carriers as a single virtual channel. [00:09:11] Speaker 06: There's no evidence from Intel's expert [00:09:15] Speaker 06: that UEHARA, reference to dual carriers, actually teaches combining carriers into a single virtual channel. [00:09:23] Speaker 05: I assume Intel cited this passage in column four of UEHARA in the IPR below. [00:09:32] Speaker 05: In trying to explain why this dual carrier, whatever that is, is a single RF signal [00:09:44] Speaker 05: having two channels encoded around two different carrier frequencies, i.e. [00:09:50] Speaker 05: dual carriers. [00:09:53] Speaker 05: So why isn't, therefore, Uehara's dual carrier mode, that's the term it uses, right? [00:10:05] Speaker 05: Dual carrier mode? [00:10:07] Speaker 06: Correct. [00:10:07] Speaker 06: Uehara says dual carrier, correct. [00:10:09] Speaker 05: OK. [00:10:09] Speaker 05: Why isn't Uehara's dual carrier mode [00:10:14] Speaker 05: the same thing as carrier aggregation. [00:10:17] Speaker 06: Because, and the board noted, until it's reliant from paragraph 47 of the UEHARA throughout its opinion, and what the board found in substantively engaged with UEHARA is that UEHARA simply teaches receiving multiple transmissions on different carriers. [00:10:35] Speaker 06: It does not teach aggregating or combining those carriers together. [00:10:39] Speaker 05: I know that's what the board said, but I'm trying to understand [00:10:43] Speaker 05: the board's analysis of this particular quoted sentence from column four that was relied upon by Intel. [00:10:52] Speaker 05: And now I'm curious as to what the board said about it. [00:10:59] Speaker 05: Maybe it said nothing. [00:11:01] Speaker 05: But if it said nothing about it, then what is the response to it? [00:11:07] Speaker 05: What is the merit-based response, especially when we have [00:11:12] Speaker 05: the last sentence of the abstract for the so-called British application, which seemingly equates carrier aggregation with a dual carrier mode, which is the very thing that you are talking about, a dual carrier mode. [00:11:32] Speaker 06: So, Your Honor, let me try to address that. [00:11:34] Speaker 06: On page 32 of the appendix, the board cites and acknowledges Intel's argument regarding the dual carrier mode. [00:11:44] Speaker 06: On pages 33 and 34, the board sets forth its analysis as to why UEHARA dual carrier mode does not anticipate the claims under the board's construction. [00:11:56] Speaker 06: And I think it does a good job on page 34. [00:11:59] Speaker 06: The board explains, UEHARA's carriers are transmitted, received, and processed at the same time. [00:12:07] Speaker 06: At no point are they combined or bonded together as a single virtual channel. [00:12:12] Speaker 06: Intel's argument is that there's no more than what the claim language recited before the claims were amended to add carrier aggregation. [00:12:22] Speaker 06: We have teachers' transmissions sent on multiple carriers at different frequencies. [00:12:28] Speaker 06: That is a separate limitation from the carrier aggregation limitation here, and that's what the board found. [00:12:42] Speaker 05: persuade me that what the sentence on column four says doesn't really mean what it says? [00:12:49] Speaker 06: Well, the sentence on column four in UBHR says you are receiving multiple transmissions on different carriers. [00:12:57] Speaker 06: And the encoding part is simply that's not carrier aggregation. [00:13:01] Speaker 06: Encoding is how the data is put on the carriers. [00:13:04] Speaker 06: But nothing in that sentence teaches combining or aggregating those carriers into a single virtual channel. [00:13:11] Speaker 05: What about the reference to an R1 RF signal? [00:13:18] Speaker 06: Absolutely, Your Honor. [00:13:18] Speaker 06: And the claims already, if you look at the claims here, an RF signal, the claims before they were amended, in this case, recited an RF signal singular, comprising transmissions, plural, on multiple carriers of different frequencies. [00:13:32] Speaker 06: So you can have an RF signal that has multiple transmissions, but those transmissions aren't combined together. [00:13:39] Speaker 06: They're not aggregated. [00:13:41] Speaker 06: That's what UEHARA does is no more than high roads did. [00:13:45] Speaker 06: It doesn't teach carrier aggregation. [00:13:48] Speaker 05: Okay. [00:13:49] Speaker 05: So what about the British application abstract? [00:13:53] Speaker 05: So the British application abstract. [00:13:55] Speaker 05: It appears to equate dual carrier mode with carrier aggregation mode. [00:14:02] Speaker 05: Is that a correct understanding of that sentence or not? [00:14:07] Speaker 06: I don't think it is, Your Honor. [00:14:08] Speaker 06: You said it identifies different, [00:14:10] Speaker 06: And dual carrier is one of them. [00:14:12] Speaker 06: But importantly, that is the only time in the bridge application that you will see dual carrier and carrier aggregation. [00:14:18] Speaker 06: Carrier aggregation is used elsewhere in the bridge application several times. [00:14:22] Speaker 06: It's not equated to dual carrier. [00:14:24] Speaker 06: It's called spectrum aggregation. [00:14:26] Speaker 05: But even beyond that, what the board did here is... So saying it once is not enough? [00:14:31] Speaker 05: A reference needs to say these two things are equal multiple times for it to count? [00:14:37] Speaker 06: No, but I think it's suggestive that dual carrier is not necessarily synonymous with carrier aggregation. [00:14:43] Speaker 06: And beyond that, the board did more than a word man. [00:14:46] Speaker 05: Why isn't it? [00:14:47] Speaker 05: Why, why, if it, why, if the sentence said, when I talk about carrier aggregation mode, I'm also talking about dual carrier mode. [00:14:57] Speaker 05: If it said it like that, that would be pretty clear to you, right? [00:15:01] Speaker 05: If it said it like, when I'm talking, when I, [00:15:07] Speaker 05: author of this document and talking about carrier aggregation mode, I'm also talking about dual carrier mode. [00:15:18] Speaker 06: That would be an equation of the two in the first application. [00:15:23] Speaker 05: So what about if it said carrier aggregation mode is also known as dual carrier mode? [00:15:30] Speaker 05: Would that be good enough? [00:15:31] Speaker 06: In that context, yes, but you would also be necessary to examine the substance of what those references are talking about. [00:15:38] Speaker 06: And that's what the board here didn't rest on a word match between the British application in one reference and UEHARA in another. [00:15:45] Speaker 06: The board looked at the substance of UEHARA disclosure, what UEHARA taught as dual carrier, and found that in UEHARA, dual carrier did not disclose combining multiple [00:15:59] Speaker 06: carriers together to form a single virtual channel. [00:16:04] Speaker 05: Did Intel make this connect the dots argument below between the last sentence of the abstract of the British application and column four of U of Hara to justify its position that U of Hara's dual carrier mode is in fact carrier aggregation mode and therefore does anticipate Qualcomm's claims? [00:16:28] Speaker 06: It did, Your Honor, in its reply. [00:16:30] Speaker 06: And I think the board notes that in its final written decision at page 32. [00:16:34] Speaker 06: But what was missing from Intel's proffer of proof is even its expert did not testify that there is a single virtual channel in UEHARA. [00:16:48] Speaker 05: What does single virtual channel mean to you? [00:16:51] Speaker 06: It is a, when you combine multiple carriers or component carriers together, such that they can be treated [00:16:58] Speaker 06: as one large channel or one large carrier, as opposed to discrete carrier, such that you can have one piece of data being sent simultaneously on multiple carriers at the same time. [00:17:16] Speaker 06: And I'd also like to note, Your Honor, with respect to obviousness, Intel alludes to that. [00:17:21] Speaker 06: And I think I want to make one point, just like Lee and Yuihara, [00:17:27] Speaker 06: The board did explain on page 41 here that there was a failure to her motivations combined because the petitioner did not argue that one of ordinary stone art seeking to employ carrier aggregation would have turned to Uehara because Uehara's circuitry would have allowed for power conservation for any other benefit. [00:17:46] Speaker 06: The board made the same finding with respect to Lee that we discussed earlier. [00:17:51] Speaker 06: What I would like to do now, Your Honors, is if I may turn to a section [00:17:55] Speaker 06: The section 315, cross-appeal. [00:18:01] Speaker 05: As I understand your red brief, this is a conditional cross-appeal in the sense that if we were to affirm the board's findings and therefore reject Intel's challenges, 102, 103, et cetera, in its blue brief, then you waive this cross-appeal? [00:18:23] Speaker 06: If the court affirms the board's findings correct, it's a conditional cost appeal. [00:18:28] Speaker 06: Yes. [00:18:32] Speaker 06: In the event this court doesn't affirm on the board's final decision, the court should dismiss these appeals because Intel was a staff for maintaining these IPRs after a final written decision issued in the 2092 appeal. [00:18:48] Speaker 06: Section 315B1 is clear. [00:18:51] Speaker 06: When a petitioner's IPR results in a final written decision on a particular claim, the petitioner may not maintain IPR proceedings on the same claim based on any ground that the petitioner reasonably could have raised. [00:19:06] Speaker 06: Here, when Intel filed the petition in the 2092 appeal, there's no dispute that Intel was aware of the prior references in these IPRs. [00:19:16] Speaker 06: These references were IPR eligible. [00:19:19] Speaker 06: and Intel was not statutorily precluded from raising those grounds. [00:19:23] Speaker 06: As a result, Intel could have reasonably raised these grounds. [00:19:28] Speaker 06: Now, Intel and the director's arguments are immaterial and they misread the statute. [00:19:33] Speaker 06: Contrary to Intel and the director's view, Section 315 is not concerned with a merit-based evaluation regarding the likelihood of institution of those grounds. [00:19:44] Speaker 06: Section 315 states, could the grounds reasonably [00:19:49] Speaker 06: are the grounds that reasonably could have been raised, not whether grounds that reasonably could have been raised. [00:19:55] Speaker 05: And just to accelerate the conversation here, both Intel and the patent board are saying, well, at the time of filing this particular petition, which you want to stop them from maintaining now, they could not have raised these particular grounds because [00:20:18] Speaker 05: they had raised those very grounds the day before in its earlier petition. [00:20:22] Speaker 05: And so therefore, it was actually barred from requesting that particular grounds. [00:20:32] Speaker 05: Because I think, am I summarizing their argument correctly? [00:20:37] Speaker 06: Well, my reading of their argument is not that they were barred, but it's likely or the possibility that the petition could have been rejected [00:20:46] Speaker 06: And Section 315 doesn't concern itself with whether a ground could have been rejected or instituted. [00:20:53] Speaker 06: It's whether the ground could have been raised. [00:20:56] Speaker 06: Here, there's no dispute that the ground could have been raised. [00:20:59] Speaker 06: Whether it would have been instituted or otherwise successful is not the concern of Section 315. [00:21:05] Speaker 06: And Intel and the director's arguments focus on whether it would have been instituted. [00:21:09] Speaker 05: I'm getting confused now. [00:21:12] Speaker 05: Is your argument that, [00:21:13] Speaker 05: They raised ground X in petition one on day one and then they could have and they should have in their IPR petition number two filed on day two petition for not only a new ground like ground Y but also repeated the ground X that they had already filed the prior day in IPR petition one. [00:21:44] Speaker 06: they could have raised it, whether it would have been the right thing to, whether strategically it was the right decision. [00:21:51] Speaker 05: I mean, that doesn't make any sense, right? [00:21:54] Speaker 05: Nobody would do that. [00:21:55] Speaker 06: But Your Honor, it's not whether they would, it's whether they reasonably could have raised it. [00:22:01] Speaker 05: Right. [00:22:02] Speaker 05: Your argument is more during this time frame, before Intel filed all these different petitions, [00:22:11] Speaker 05: Intel knew about all these different references. [00:22:14] Speaker 05: They knew about Lee. [00:22:15] Speaker 05: They knew about John. [00:22:17] Speaker 05: They knew about Uehara. [00:22:19] Speaker 05: And so they really needed to roll them all up into a single petition. [00:22:24] Speaker 05: Or if they were going to chop up all these different grounds into different petitions, they needed to move to consolidate them all to ensure that no one IPR would reach a final decision before the other IPRs did in order to avoid [00:22:41] Speaker 05: the possible outcome of estoppel? [00:22:43] Speaker 06: Correct. [00:22:44] Speaker 06: Or they could have gone on a claim by claim basis as opposed to a prior by prior basis. [00:22:49] Speaker 06: They could have done any number of things to avoid estoppel. [00:22:53] Speaker 06: That's correct. [00:22:54] Speaker 02: Counsel, this is Judge Raina. [00:22:57] Speaker 02: When in the time frame would estoppel actually apply? [00:23:00] Speaker 02: Does it apply upon the issuance of a final written decision or does it apply after all appeal rights have been exhausted? [00:23:10] Speaker 06: The statute, the reflection 315E1 makes clear that it applies after final written decision. [00:23:16] Speaker 06: And I think this court's network one, the HP case echoes that. [00:23:22] Speaker 06: Estoppel is effective upon an issuance of the final written decision. [00:23:31] Speaker 05: We're talking about as soon as the final written decision, [00:23:39] Speaker 05: issued in what I'll call, I guess, the Lee IPR. [00:23:45] Speaker 05: Did the Lee IPR come out first? [00:23:47] Speaker 05: Yes. [00:23:48] Speaker 05: OK. [00:23:48] Speaker 05: So as soon as that final written decision came out, you were within your rights to seek a termination of Intel from these other IPRs. [00:24:05] Speaker 05: And you didn't need to wait for, [00:24:08] Speaker 05: all possible appeals to be exhausted of that final written decision in the Lee IPR before you could legitimately seek termination of Intel from the John IPR and the Yuhara IPR. [00:24:28] Speaker 05: That's what you're talking about, right? [00:24:31] Speaker 06: Yes. [00:24:31] Speaker 06: I think the statute speaks to that as does the network one, correct, Your Honor. [00:24:35] Speaker 02: What about our case in Burnett X versus Apple? [00:24:38] Speaker 02: Are you familiar with that? [00:24:40] Speaker 06: I've read the case, but I'm not enough to anticipate your question, Your Honor. [00:24:46] Speaker 02: Basically, we said that estoppel applies when all appeals have been terminated. [00:24:52] Speaker 02: It was a question of finality in the context of estoppel, these type of issues we're talking about. [00:25:02] Speaker 06: And so, Your Honor, I apologize. [00:25:04] Speaker 06: I don't know specifically, and I want to ask you a question, but did that case involve interparties review? [00:25:14] Speaker 02: I don't think it did, no. [00:25:16] Speaker 06: Okay. [00:25:17] Speaker 06: And I'm sorry, Your Honor, I didn't mean to flip the script. [00:25:19] Speaker 06: The reason I ask that is because under Section 315E1 in IPR context, the statute is clear that it's upon issuance of a final written decision. [00:25:29] Speaker 02: Okay, because this issue has come up in other instances, you know, and it's a live issue and I was interested in the thoughts of all council here. [00:25:38] Speaker 06: Right. [00:25:39] Speaker 06: And I know in Intel's brief there's reference on inter-party re-examination. [00:25:45] Speaker 06: And that, the Staple effect took place, would have taken place, would have taken effect differently there because the statute was framed differently. [00:25:53] Speaker 06: And it does not parallel section 315. [00:26:01] Speaker 06: Um, if there's no further questions, your honors, I'll, was there any time for rebuttal? [00:26:07] Speaker 01: Yes. [00:26:08] Speaker 01: Okay. [00:26:08] Speaker 01: Yes. [00:26:08] Speaker 01: You have a lot of no cross appeal. [00:26:11] Speaker 01: All right. [00:26:12] Speaker 01: Um, and we'll hear from council for the appellate. [00:26:16] Speaker 01: Mr. Radier. [00:26:20] Speaker 04: Thank you. [00:26:20] Speaker 04: Unless the court would prefer otherwise, I'll go back and start with the appeal and the issue of [00:26:27] Speaker 04: Uahara and it's teaching a dual carrier signal. [00:26:32] Speaker 04: Judge Chen, you raised the question, did Intel and did its expert advance this position before the board? [00:26:39] Speaker 04: The answer is yes. [00:26:42] Speaker 04: One study I can refer you to is Appendix page 1725, which is Dr. Faye's declaration there. [00:26:50] Speaker 05: It's more helpful for me to actually know about your petition site before. [00:26:57] Speaker 05: You know, there's a lot of things experts say in their declarations that fall by the wayside. [00:27:03] Speaker 05: And we don't really expect the administrative patent judges to, uh, to review all of that when the petitioner chooses not to rely on all of that. [00:27:18] Speaker 04: Yes, your honor. [00:27:19] Speaker 04: So it is also in our reply submission. [00:27:23] Speaker 04: Um, and that would be at appendix change 3000 [00:27:29] Speaker 04: I apologize for that, Your Honor. [00:27:43] Speaker 04: It's page 3,798 in particular. [00:27:49] Speaker 04: 3,797, by mistake. [00:27:57] Speaker 04: And you can see there, under the subheading C, specifically we did advance in our reply that even under the new plane construction that had been first proposed by Falcom and its patented response, this one with the single virtual channel, that the U of R records would teach it because [00:28:21] Speaker 04: that the British application specifically equates carrier aggregation mode and dual carrier mode. [00:28:29] Speaker 04: And UAHARA at page, at paragraph 47 discloses the receipt of a dual carrier signal. [00:28:39] Speaker 05: Is your expert testifying to this? [00:28:42] Speaker 05: Yes. [00:28:42] Speaker 05: That when UAHARA is talking about dual carrier mode, it's necessarily talking about [00:28:49] Speaker 05: what the board understood to be carrier aggregation. [00:28:54] Speaker 04: Yes, Your Honor. [00:28:55] Speaker 04: That's the appendix page 1725. [00:28:57] Speaker 04: 1725. [00:28:57] Speaker 05: And did you cite that in the reply too? [00:29:06] Speaker 04: I expect we did, Your Honor. [00:29:12] Speaker 04: The answer is yes. [00:29:14] Speaker 04: I need to line up the paragraph numbers from the declaration to see whether it's the citation to paragraph 91 or paragraph 38. [00:29:24] Speaker 04: I believe it's the citation to exhibit 1039 paragraph 38 that you see at the bottom of the appendix page 3797. [00:29:33] Speaker 04: But Your Honors, I'd like to focus on how unfair what's happened here is. [00:29:42] Speaker 04: The 356 patent does not need disputes. [00:29:46] Speaker 04: The 356 patent nowhere discusses the single virtual channel or what happens to component carriers after they are amplified by the LMAs. [00:29:58] Speaker 04: All the 356 patent does is use the term carrier aggregation. [00:30:04] Speaker 04: And then that term is bootstrapped by the board to import all of this [00:30:11] Speaker 04: with all these requirements about what happens to the signal after it's amplified in terms of combining as a single virtual channel. [00:30:19] Speaker 04: So then to turn and say, well, but U of Hara doesn't anticipate the claims of the 356 patent because it doesn't explain anything about combining as a single virtual channel in those specific terms is very unfair. [00:30:35] Speaker 04: Because what U of Hara says is, we're going to talk about carrier aggregation. [00:30:40] Speaker 04: carrier aggregation is the same thing as dual carriers. [00:30:44] Speaker 04: And so if it's good enough in the 356 patent to just use the term carrier aggregation and import all of these requirements without increased bandwidth in a single virtual channel, then the same has to be true, that U of R uses dual carrier. [00:31:01] Speaker 04: The British prior art reference that the board relies upon specifically equates carrier aggregation and dual carrier mode. [00:31:08] Speaker 04: That has to be enough. [00:31:09] Speaker 04: for anticipation. [00:31:11] Speaker 04: Now, Your Honors, I said I wouldn't go back to the obviousness question, but I felt very badly judged and that I didn't give you the right record site for where in our petition the discussion was of the reasons to combine with the feasibility study. [00:31:27] Speaker 04: Are we talking about the prior appeal? [00:31:30] Speaker 04: I'm going to give you a reference in this appeal. [00:31:32] Speaker 04: It's the same, but I'll give you the one in the prior appeal as well. [00:31:35] Speaker 04: In this appendix, Your Honors, it says appendix pages 3584 to 3587. [00:31:42] Speaker 04: In the 2092 appeal, it says pages the 129 petitions discussion is at page 5083 to 5086. [00:31:53] Speaker 04: And your copy of the joint appendix does not have that particular portion of the petition from the 00128 [00:32:11] Speaker 04: and 00128 are the same. [00:32:15] Speaker 04: The final point is I'll turn to the cross appeal briefly unless there are additional questions on our appeal. [00:32:22] Speaker 04: And when Councilor Qualcomm made his argument and he referred to the statute, I think that he omitted the most important words, probably the four most important words, [00:32:38] Speaker 04: for purposes of the cross appeal. [00:32:43] Speaker 04: Three of those words are that what the statute says is that a petitioner is stopped, after final decision issues, a petitioner is stopped from raising any grounds that it raised or reasonably could have raised, quote, during that IPR. [00:33:02] Speaker 04: That's in the statute, during that IPR. [00:33:05] Speaker 04: And as this court found just on Friday, during that IPR means, at the time you filed your petition, could you reasonably have included the prior grounds? [00:33:18] Speaker 04: Here we're talking about petitions that were filed on November 9, 2018. [00:33:22] Speaker 04: On November 8, 2018, [00:33:28] Speaker 04: I'm sorry, we're talking about petitions that were filed on November 8, 2018. [00:33:34] Speaker 04: On November 9, 2018, the lead petitions were filed. [00:33:40] Speaker 04: So when the statute talks about that petition, it's referring to the lead petitions. [00:33:46] Speaker 04: And having filed identical grounds on November 8, Intel could not reasonably have refiled the exact same grounds on November 9. [00:33:58] Speaker 04: The board's determination that Intel could not reasonably have re-raised the identical brands on the next day is correct. [00:34:09] Speaker 04: And that's why the cross appeal should be denied. [00:34:14] Speaker 05: So, under that understanding, it allows, it endorses and condones permitting an IPR petition to get more than one bite at the Apple. [00:34:27] Speaker 05: And my understanding of this entire process and the reason why we have an estoppel provision is you allow a party, such as Intel, when they want to attack a patent, to get one shot at it. [00:34:40] Speaker 05: And after that shot is over, and here by statute it's when the final written decision is released, and that's it. [00:34:48] Speaker 05: They can't maintain or request any other challenges that are, [00:34:53] Speaker 05: currently pending against that patent. [00:34:57] Speaker 05: And so it seems odd to me that we would allow the whims of how the patent board operates in terms of the patent board's timings about relative co-pending IPRs to control whether a party is a stop. [00:35:18] Speaker 05: And in some instances, like [00:35:21] Speaker 05: What you have here is allow the challenger to keep going with a second IPR. [00:35:30] Speaker 05: I mean, that doesn't really make sense in terms of what is the principle, the underlying core principle of why we have this statutory stoppable position. [00:35:44] Speaker 04: Your honor, respectfully, that's the opposite of what happens here. [00:35:48] Speaker 04: Everything I say is the opposite of what happens here. [00:35:51] Speaker 04: Well, it's just the data issue, your honor. [00:35:53] Speaker 04: If we had filed, let's say, the lead petitions on September 1st and then followed up and filed these petitions on November 1st, there's no debate and we don't disagree. [00:36:11] Speaker 04: that when the final written decision issued on the lead petitions, there would be an estoppel against Intel maintaining the subsequent IPR petitions, assuming that there wasn't some idiosyncratic reason why Intel couldn't reasonably have been aware of the prior art and the later petitions on the date that it filed the earlier ones. [00:36:34] Speaker 04: Here, though, what happened was we filed on November 8 [00:36:39] Speaker 04: these petitions, the ones that are at issue and across the field, with the prior art for Uehara and Jianzea. [00:36:48] Speaker 04: And then on November 9th, we filed a belief petition. [00:36:52] Speaker 04: We weren't trying to game anything. [00:36:53] Speaker 04: We filed those petitions very close in time, in a day apart from one another. [00:36:59] Speaker 04: And only because the patent office at paralegals happened to dock it, the earlier filed petitions far later, [00:37:09] Speaker 04: was their issue here. [00:37:13] Speaker 04: We are not advocating a rule that would allow anyone to get what you say is a second bite of the apple. [00:37:19] Speaker 04: And remember that at the time that these IPJRs were filed, Your Honor, and this is not true today, it was routine for, and it was encouraged by the patent office, [00:37:31] Speaker 04: for parties to file multiple petitions challenging a single patent. [00:37:36] Speaker 04: Now the rule has changed and the Patent Office has a presumption that you should only file one petition. [00:37:42] Speaker 05: Did you have some guaranteed right that all of the final written decisions across all of the IPRs that you filed would be issued on the same day? [00:37:52] Speaker 05: I don't think you had a right to that. [00:37:55] Speaker 05: You didn't ask for that. [00:37:57] Speaker 05: You didn't ask for a consolidation of all the IPRs. [00:38:01] Speaker 05: So, I mean, I think you were on notice that any one of these decisions could have issued first. [00:38:11] Speaker 04: So... No, that's not... I think, I guess, it's theoretically possible, but because of the statutory requirement, timing requirements for ITR proceedings, once the later filed petitions, once the earlier filed petitions were docketed, [00:38:31] Speaker 04: six weeks after the earlier filed petition, realistically, there wasn't a way to consolidate the proceedings because the due dates would have been too close. [00:38:44] Speaker 04: You have to compress down everybody's time to respond to one another's submissions, including the patent owner's time for the patent owner response. [00:38:54] Speaker 04: But also, while I guess it's theoretically possible that the board would have issued a final written decision [00:39:00] Speaker 04: in these seven or eight weeks earlier than it needed to. [00:39:06] Speaker 01: It was... Let's hear if the panel has no questions other than in this area. [00:39:14] Speaker 01: Let's hear from the intervener. [00:39:16] Speaker 02: Judge Newman, I did have a question I wanted to ask. [00:39:21] Speaker 01: Oh, proceed, of course. [00:39:23] Speaker 02: And that is, Council, when you refer to the statute, are you talking about 315E1? [00:39:28] Speaker 02: Yes, I do. [00:39:31] Speaker 02: OK. [00:39:32] Speaker 02: And that makes it clear that the trigger for estoppel is a final written decision, right? [00:39:40] Speaker 02: But Theresa's? [00:39:41] Speaker 02: I thought that that statute applies only to petition or an IPR that results in a final written decision. [00:39:48] Speaker 02: It doesn't say when estoppel is triggered. [00:39:52] Speaker 04: Only. [00:39:54] Speaker 04: I apologize, Roger. [00:39:55] Speaker 02: I thought you were asking. [00:39:57] Speaker 02: The clarification is that Vermetix was a PTAB case. [00:40:01] Speaker 02: But it was pre-AIA, so it wasn't dealing with the statute at the time, which now it is. [00:40:09] Speaker 04: Yes, Your Honor. [00:40:10] Speaker 04: So my answer was to a slightly different question. [00:40:13] Speaker 04: I thought you were only asking about whether during that IPR language came from 315. [00:40:23] Speaker 04: The separate question of what the timing is for an estoppel requires a reading of both Section 315 and Section 318, which we set forth in our brief. [00:40:38] Speaker 04: And the court specifically held open the issue of when the estoppel applies [00:40:48] Speaker 04: I think it's a little bit academic here because what the estoppel is, is it's an estoppel against a party maintaining an IPR proceeding after the estoppel takes effect. [00:41:02] Speaker 04: And the facts here were that at the time that the final written decision on the lead petitions, the later filed petitions were issued, we had already had the oral hearing [00:41:14] Speaker 04: on the petitions we're discussing here at the Cross Appeal, the Uahara and the Gion and Gion petitions. [00:41:22] Speaker 04: And so Intel didn't need to do anything further. [00:41:26] Speaker 04: At that point, all that was happening was that the board was issuing final written decisions. [00:41:31] Speaker 04: And so I think it's a little bit academic in a sense as to when the estoppel applies in this case, because we and the PTO agree [00:41:43] Speaker 04: Regardless of whether Intel continues to maintain its IPR, the board has the authority that carries forward an issue to find a written decision. [00:41:53] Speaker 07: Okay. [00:41:53] Speaker 07: All right. [00:41:55] Speaker 01: Thanks. [00:41:55] Speaker 01: Any more questions, Mr. Landier? [00:42:00] Speaker 01: Okay. [00:42:01] Speaker 01: Then let's hear from the interviewee and explain this sample to us. [00:42:08] Speaker 00: Thank you, Your Honor. [00:42:08] Speaker 00: Your Honor, may it please the court? [00:42:10] Speaker 00: With respect to this estoppel issue raised by Qualcomm, I'd like to make two main points. [00:42:15] Speaker 00: The first is that the plain language of the estoppel analysis under Section 315 includes looking at more than whether just petitioner knew of a ground. [00:42:24] Speaker 00: And second, that the board properly applied the statutory language to the very unique facts of this case and found no estoppel. [00:42:31] Speaker 00: So with respect to the plain language of the stop-all, it involves more than just a knowledge test that would foreclose inquiry into any and other facts that would weigh on whether a petitioner could reasonably have raised the ground. [00:42:44] Speaker 00: And that's because the plain language of the statute says reasonably could have raised, not reasonably could have known. [00:42:49] Speaker 00: Second, the statute asks whether you reasonably could have raised it in the IPR reaching final written decision. [00:42:58] Speaker 00: And so that's not whether or not you could [00:43:00] Speaker 00: redo the entire strategy of your case. [00:43:03] Speaker 00: The statute specifically asks, can you raise those grounds in the IPR that reached final written decision? [00:43:11] Speaker 00: And that's important in this case because there's been a number of different strategy, different options offered in the discussion so far today regarding raising things as a single petition, raising things on a claim by claim basis. [00:43:25] Speaker 00: And while sometimes in the mine run cases, [00:43:30] Speaker 00: that is an option. [00:43:31] Speaker 00: If you had a case where you could have just, instead of filing your second petition, you could have put them all together in one petition and not filed that second petition, then you reasonably could have raised it. [00:43:42] Speaker 00: Here, this is not like the typical case. [00:43:45] Speaker 00: Here, the IPR that reached final written decision is the second filed proceeding. [00:43:51] Speaker 00: If you say we could have filed it all in a single petition, that essentially means getting rid of the petition that we're actually looking at. [00:43:58] Speaker 00: So we're looking at [00:43:59] Speaker 00: the petition that was second. [00:44:01] Speaker 00: If we're saying we'd follow them all together, that's basically saying we were eliminating the second petition, which just doesn't make sense. [00:44:08] Speaker 00: Similarly, if you say, oh, you should have raised them all on a claim by claim basis. [00:44:13] Speaker 00: Again, this is a second petition filed. [00:44:15] Speaker 00: You had already filed a petition. [00:44:17] Speaker 00: If you say you should have done your second petition on a claim by claim basis, now we're going head on into the idea that you would have raised repetitive grounds. [00:44:26] Speaker 00: which the board found unreasonable, and Qualcomm does not dispute that it would be unreasonable to raise redundant grounds in a second petition. [00:44:36] Speaker 00: Back to the statutory language, in addition to being focused on what you could raise, what you could raise in the IPR reaching final written decision, the statute also has this reasonable modifier, and I think that addresses the issue that Qualcomm raised [00:44:51] Speaker 00: that 315 is not concerned about what could be instituted or what, it's just what you could do. [00:44:56] Speaker 00: And that essentially eliminates this reasonable modifier. [00:45:00] Speaker 00: Qualcomm is asking the petitioner to do everything that is physically possible. [00:45:06] Speaker 00: Could you do it? [00:45:07] Speaker 00: Not whether you reasonably could have done it. [00:45:10] Speaker 00: And we say that because you have this reasonable modifier, it takes you away from just what [00:45:16] Speaker 00: is physically possible, but instead you look at what a competent practitioner could have raised reasonably. [00:45:23] Speaker 00: And here there's no dispute, and in fact I think Qualcomm's counsel said it wouldn't have been a great strategy to put them all repetitive in the second IPR. [00:45:33] Speaker 00: With respect to Judge Chen, you raised the issue of consolidation. [00:45:37] Speaker 00: That is one way that a petitioner reasonably could have raised a ground in the IPR reaching final written decision. [00:45:45] Speaker 00: However, again, [00:45:47] Speaker 00: The existence of consolidation itself, the physical possibility that the board can consolidate, does not mean in every case you reasonably could have raised grounds by consolidation. [00:45:59] Speaker 00: And that's because consolidation is a case-by-case analysis. [00:46:02] Speaker 00: Sometimes the board grants consolidation, sometimes they deny it. [00:46:06] Speaker 00: And here, when Qualcomm moved to terminate based on 315-E-Estable, they did not establish that consolidation was likely, that it was reasonable. [00:46:16] Speaker 00: All they said was, it's an option. [00:46:18] Speaker 00: It's out there. [00:46:20] Speaker 05: And... It seems very peculiar to me that the estoppel provision is designed to constrain challengers to one bite at the apple for a given patent claim. [00:46:32] Speaker 05: Except for peculiar circumstances like this. [00:46:36] Speaker 05: Then you get to have two bites at the apple. [00:46:39] Speaker 05: Or here, in fact, three bites at the apple. [00:46:42] Speaker 05: All based on [00:46:44] Speaker 05: the two IPR filings being one day apart as opposed to being filed on the same day or something like this. [00:46:52] Speaker 05: It doesn't really make any sense to me. [00:46:55] Speaker 05: And like I said before, it permits the whims of the PTAD's own, you know, idiosyncratic processing to control the outcome of estoppel when what should control the estoppel is one [00:47:12] Speaker 05: there's a final written decision, it cuts off all other pending challenges. [00:47:18] Speaker 05: Assuming that back in the day, the challenger knew about all of the different possible grounds, but for whatever reason, chose to chop them up into different petitions. [00:47:31] Speaker 05: And whether they were filed on the same day or filed one day apart, it shouldn't really make any relevant difference. [00:47:38] Speaker 05: That's the concern I have here with [00:47:41] Speaker 05: what the PTO is trying to advance. [00:47:44] Speaker 05: When the PTO has already argued that when IPR's petitions happen and you file them the same day, of course, you're going to get a stopple barring any still pending IPR's when a final written decision issues in one of the IPR's. [00:48:05] Speaker 00: Thank you, Your Honor. [00:48:07] Speaker 00: And I understand your frustration. [00:48:09] Speaker 00: This is a very unique case, and I think here it reflects the idea that... It doesn't have to be a unique case. [00:48:16] Speaker 05: Well... It can be like all the other cases. [00:48:19] Speaker 00: I think what happened here is that the board, because of the difference in this case versus all the other cases, for example, the intuitive case that's still pending before this court regarding same-day petitions, here the board was trying to balance the goal of IPRs, of course, to prevent abusive multiple filing [00:48:38] Speaker 00: petitions, but also applying the statute, the plain language of the statute that tells them to look at what they could raise in the IPR that reached final written decision. [00:48:48] Speaker 00: And so I'd say this decision is really a balance between the purpose of IPR, but applying the statutory language, which also does not require petitioners to do the unreasonable. [00:49:00] Speaker 00: So yes, they knew about this ground. [00:49:02] Speaker 00: Could they have raised it in the IPR reaching final written decision? [00:49:07] Speaker 00: Other than consolidation, which was not argued before the board, we have not heard of why or how they could have raised it in this IPR reaching final written decision. [00:49:18] Speaker 00: With respect to the whims of the board, I would just respectfully say that there's many reasons that the order of a proceeding can change. [00:49:28] Speaker 00: It is up to the petitioner, of course, to manage their proceedings and be aware of the idea that a stop-all can happen. [00:49:37] Speaker 00: What the board has done to hopefully make this more of a unique scenario is that they have passed in 2019 the Trial Practice Guide, which eliminates the scenario where you have all of these multiple different petitions. [00:49:50] Speaker 00: Now, petitioners have to rank their petitions. [00:49:53] Speaker 00: They have to persuade the board why they should institute [00:49:57] Speaker 00: more than one, and therefore this scenario should not happen again. [00:50:01] Speaker 00: This should be a unique scenario. [00:50:04] Speaker 00: And the difference between this and intuitive, which is where there were same-day petitions and the board found a stop-all, is that in the intuitive case, there were no other barriers to raising it in the IPR that reached final written decision. [00:50:19] Speaker 00: Here, the board found that barriers existed. [00:50:22] Speaker 00: Qualcomm has not defeated that those were barriers to raising it in that final written decision. [00:50:27] Speaker 00: And so, that is the difference between the intuitive case and here. [00:50:32] Speaker 00: And, you know, respectfully, the statute is written to have this type of factual analysis with respect to reasonably could have raised. [00:50:41] Speaker 00: It's the same type of analysis that is done under the skilled searcher test. [00:50:45] Speaker 00: In the district courts, they frequently are looking at whether a skilled searcher could have found the reference. [00:50:51] Speaker 02: And so this is... Is it the government's position that the estoppel applies upon the issuance of the final written decision? [00:50:58] Speaker 00: Yes, Your Honor. [00:50:59] Speaker 00: We did not brief that in this case, but I would say I would direct you to take a look. [00:51:04] Speaker 00: We did brief this very thoroughly in another appeal, which was BTG, Appeal Number 2019-1147, [00:51:14] Speaker 00: ECF number 123, that sets forth the government's opinion and argument regarding the plain language of the statute says the estoppel applies on a final written decision. [00:51:26] Speaker 00: And with respect to your honor's question about the Bernat XC Apple case, that is distinguishable because that was pre-AIA estoppel under section 317 that talked about a final determination. [00:51:38] Speaker 00: And when writing the AIA law, Congress chose final written decision. [00:51:44] Speaker 00: rather than final determination making that distinction. [00:51:47] Speaker 01: Let me just understand your point from your brief. [00:51:52] Speaker 01: Which side were you taking in terms of estoppel? [00:51:58] Speaker 00: We are supporting the board's decision that estoppel did not apply, but our main point is that the plain language of the estoppel, the actual statutory interpretation, is not limited to just a knowledge test. [00:52:14] Speaker 00: It is looking at whether you reasonably could have raised in the IPR reaching final written decision. [00:52:20] Speaker 01: Are you changing your position? [00:52:23] Speaker 00: No, Your Honor, we're not. [00:52:25] Speaker 00: We're saying estoppel, it can be triggered by a final written decision. [00:52:29] Speaker 00: There is no estoppel that was triggered by this final written decision. [00:52:33] Speaker 02: You would like to bicep the apple here. [00:52:37] Speaker 00: I'm sorry if I'm being unclear. [00:52:39] Speaker 00: I was answering your honor's question about when estoppel is triggered apart from this case. [00:52:44] Speaker 00: So the actual triggering is final written decision. [00:52:49] Speaker 00: Was that triggered here? [00:52:50] Speaker 00: Our answer has always been and is now still no. [00:52:56] Speaker 00: I can go on further if that is unclear about the distinction between the two that I'm trying to make. [00:53:03] Speaker 01: Any more questions? [00:53:06] Speaker 01: Okay. [00:53:09] Speaker 01: Thank you. [00:53:10] Speaker 01: Right. [00:53:11] Speaker 01: Mr. Mayor, guys, you have your rebuttal time on the cross appeal. [00:53:15] Speaker 06: Thank you very much, your honor. [00:53:17] Speaker 06: Just three quick points. [00:53:18] Speaker 06: Any omission that I may have made regarding when I was speaking to the statues, that was inadvertent, but it doesn't change the outcome here. [00:53:25] Speaker 06: Second, the director is talking about unique facts or unique circumstances, but there's no exception within section 315, E1, [00:53:33] Speaker 06: to unique facts or unique circumstances. [00:53:35] Speaker 06: And in an analogous context, in Windy City, in Facebook, this court acknowledged that it was faced with unique circumstances or unique facts regarding Joinder. [00:53:45] Speaker 06: But it did not redefine or reapply or grasp in a different standard or test than was otherwise required by the plain language of the statute. [00:53:55] Speaker 06: The last point, Intel, on these facts, there's no dispute that Intel could have reasonably raised the grounds. [00:54:02] Speaker 06: They were aware of the, [00:54:03] Speaker 06: The art was IPR eligible. [00:54:06] Speaker 06: They were not precluded by any time bar or anything else from raising it. [00:54:10] Speaker 06: They could have reasonably raised it. [00:54:12] Speaker 06: With that, we ask that this court confirm or otherwise dismiss Apple as a party to be the field. [00:54:21] Speaker 01: Any more questions from the panel for anybody? [00:54:24] Speaker 06: No. [00:54:26] Speaker 06: Thank you, Your Honor. [00:54:27] Speaker 01: Okay. [00:54:28] Speaker 01: Thank you all. [00:54:29] Speaker 01: The case is seconded under submission.