[00:00:00] Speaker 03:
Okay, we have four appeals that we're hearing argument on today.

[00:00:06] Speaker 03:
The first one is appeal number 21-1762, Intel Corporation versus VLSI Technology.

[00:00:14] Speaker 03:
And Mr. Massa, you've reserved five minutes for rebuttal, right?

[00:00:22] Speaker 03:
Yes, sir.

[00:00:22] Speaker 03:
Okay, feel free to begin whenever you like.

[00:00:28] Speaker 02:
May it please the court, Dominic Massa on behalf of Intel Corporation.

[00:00:34] Speaker 02:
With me is my colleague David Yin, and in the courtroom today is Vishal Amin, Intel's head of IP policy.

[00:00:42] Speaker 02:
The portion of the board's decision finding claims four, five, seven, 17, 18, and 20 patentable rests on two related legal arguments and should be at least vacated and remanded.

[00:00:57] Speaker 02:
First, the board misapplied a rendy in ruling that Intel could not rely on the Li reference for its teaching of using temperature to affect the control signal.

[00:01:10] Speaker 02:
A rendy does not apply here because Intel relied on an express teaching in Li, not on common sense or general knowledge to supply a missing element.

[00:01:23] Speaker 02:
And second, and I think as a result of that error,

[00:01:26] Speaker 02:
The board failed to consider the actual argument that Intel made in its petition, and instead faulted Intel for not supporting an argument that it never made.

[00:01:39] Speaker 02:
Starting with Arendi, Arendi applies in the circumstance where there is an element entirely missing from the prior art combination.

[00:01:48] Speaker 01:
And your point is that I take it that the

[00:01:50] Speaker 01:
actually does recite temperature as a factor to be input in the calculus, and therefore that's not missing.

[00:01:58] Speaker 01:
Yes, Your Honor.

[00:01:59] Speaker 01:
And that's the sum and substance of your Arendy distinction.

[00:02:02] Speaker 01:
Sum and substance.

[00:02:03] Speaker 01:
Arendy does not apply.

[00:02:04] Speaker 01:
This moves to the second point that you made.

[00:02:09] Speaker 01:
What gave me pause is that your argument seems to be, while the board got all tied up with

[00:02:17] Speaker 01:
the distinction between the way Lee works as a whole and the way Kim works as a whole and got, in effect, focused too much on the mechanical process of adapting Kim to incorporate Lee, whether the bias signal versus control signal and so forth, that whole argument.

[00:02:39] Speaker 01:
It struck me, though, that your argument, which largely directed, and Dr. Harris's,

[00:02:45] Speaker 01:
Uh, support for your argument was largely directed at exactly that point of showing how Kim could be adapted to incorporate Lee.

[00:02:55] Speaker 01:
So why was the board wrong to focus on what you argued with respect to the relationship between the two?

[00:03:03] Speaker 02:
Your honor, the board was wrong in that it misapprehended our argument and it said in its holding that, um, substituting, um,

[00:03:15] Speaker 02:
the bias signal from Lee into Kim wasn't supported by Intel, wasn't supported by Dr. Harris.

[00:03:23] Speaker 02:
But of course, we never made that argument for that substitution.

[00:03:27] Speaker 02:
So the board was looking for evidence and then saying it didn't find any because it set up this straw man argument.

[00:03:35] Speaker 03:
What about at A77-78, where the board is summarizing what you, the petitioner, was arguing in terms of the proposed combination of Kim and Lee?

[00:03:47] Speaker 03:
Do you take issue with any of those statements in its attempt to summarize and capture what your argument was?

[00:03:58] Speaker 02:
Yes, Your Honor.

[00:04:00] Speaker 02:
That is exactly where the board misapprehended

[00:04:04] Speaker 02:
what our argument was.

[00:04:06] Speaker 02:
So at 77 to 78, Your Honor, so this is the interesting thing.

[00:04:17] Speaker 02:
At 77 to 78, in the section that

[00:04:20] Speaker 02:
seems to be in large part copying and pasting from the petitions.

[00:04:23] Speaker 02:
It recited what we said in the petition.

[00:04:25] Speaker 03:
So that's my point, is that what is stated here in these two pages of the board opinion accurately captures the nature of your argument in your petition.

[00:04:35] Speaker 03:
Is that fair to say?

[00:04:36] Speaker 02:
In the summary of the argument, yes.

[00:04:38] Speaker 02:
But we need to look at the board's actual decision and its analysis.

[00:04:41] Speaker 02:
And that's at 81 to 82.

[00:04:42] Speaker 02:
When it gets to the analysis, it says,

[00:04:45] Speaker 02:
petitioner proposes substituting Lee's inputs of leakage, current, and temperature for generating a power gate control signal.

[00:04:54] Speaker 02:
And then it says, neither petitioner nor Dr. Harris explained how they are proposing to substitute Kim's control signal with Lee's control signal bias.

[00:05:05] Speaker 02:
Then it goes on to say, Dr. Harris did not explain how to use the bias signal.

[00:05:09] Speaker 02:
I think, Your Honor, if I refer to the figures in our opening brief, this explains their error.

[00:05:15] Speaker 02:
We were focused on the inputs, not on the bias signal.

[00:05:19] Speaker 02:
So in our opening brief at page 11, you can see Kim.

[00:05:24] Speaker 02:
Kim, the board properly found, anticipates claim 13 and 14.

[00:05:28] Speaker 02:
It's remarkably similar to the 026 patent.

[00:05:31] Speaker 02:
The Kim system has certain inputs, the sleep signal and the test operation register.

[00:05:38] Speaker 02:
inputs into the logic.

[00:05:40] Speaker 02:
It then outputs those red signals.

[00:05:43] Speaker 02:
That's the control signal.

[00:05:45] Speaker 02:
If you look at page 14 of our opening brief, that is the Wii reference.

[00:05:53] Speaker 02:
The Wii reference has a bias signal generator.

[00:05:57] Speaker 02:
Its input is temperature and also mode, and its output is the bias signal.

[00:06:04] Speaker 02:
So what's the issue here?

[00:06:05] Speaker 02:
When we get to the actual combination we made, and this is at page 48 of our brief, Intel was not proposing taking the bias signal from Lee and doing anything with it.

[00:06:18] Speaker 02:
What it proposed was to add temperature as an input into the logic of Kim.

[00:06:25] Speaker 02:
That's the only thing we were supplying from Lee to Kim is the teaching of using temperature, and we have it as this select line, hot and cold.

[00:06:33] Speaker 02:
If I could simplify it, your honor, Kim expressly teaches in a very specific control circuit for controlling the voltage to be supplied based on leakage and on mode.

[00:06:44] Speaker 02:
And it says you can also use an external stimuli.

[00:06:47] Speaker 02:
So Kim says you can control it based on A, B, and some X factor, an external stimuli.

[00:06:54] Speaker 02:
Lee, in the remarkably similar circuit that does controlling voltage

[00:06:58] Speaker 02:
in the same type of circuit based on mode and on leakage.

[00:07:03] Speaker 02:
So Lee has A and B again, the exact same mode and leakage that Kim has, and it supplies the missing X. Lee says you can also use temperature.

[00:07:13] Speaker 02:
And that's all that Intel's combination was doing.

[00:07:17] Speaker 02:
Intel had already shown the board found that Kim anticipates claims 13 and 14.

[00:07:23] Speaker 02:
Kim has everything.

[00:07:24] Speaker 02:
All we were doing was taking the teaching

[00:07:27] Speaker 02:
of using temperature and adding it as a new input.

[00:07:31] Speaker 02:
That's the grounds on which we put in our petition.

[00:07:35] Speaker 02:
It was supported at A7077, substituting Lee's inputs of leakage current and temperature for generating the power gate control signal.

[00:07:47] Speaker 02:
for Kim's inputs of leakage current and other stimuli, that that would be obvious.

[00:07:53] Speaker 03:
There was one thing I was wondering about.

[00:07:55] Speaker 03:
Why did your experts suggest substituting in Lee's input for leakage current for Kim's inputs for leakage current?

[00:08:05] Speaker 03:
Why wouldn't you just say all that is needed is adding the temperature input?

[00:08:10] Speaker 03:
Or that Kim talks about other stimuli.

[00:08:15] Speaker 03:
One other stimuli is temperature as taught by Lee.

[00:08:19] Speaker 02:
I think what we were pointing out is that Kim has A and B plus that X external stimuli.

[00:08:25] Speaker 02:
And that part of the motivation to combine is that Lee has the same A and B mode and leakage.

[00:08:30] Speaker 02:
So we're just pointing that out.

[00:08:32] Speaker 02:
But the teaching

[00:08:34] Speaker 02:
that Dr. Harris points to, and this is Appendix 1103.

[00:08:37] Speaker 02:
He does say incorporating Lee's teaching of considering temperature as an additional input in Kim's system would have provided the following benefits.

[00:08:47] Speaker 02:
So in his declaration, he does focus just on the teaching of temperature.

[00:08:54] Speaker 01:
But he does go beyond that.

[00:08:56] Speaker 01:
He doesn't focus just on that, it seems to me.

[00:08:58] Speaker 01:
And here's perhaps where, as you see it, the board went wrong.

[00:09:03] Speaker 01:
He has specific diagrams in which he shows how you go about changing Kim to adapt to Lee.

[00:09:14] Speaker 01:
And that seems to me to be an invitation for the board to look at what's different between Lee and Kim and whether there would be a motivation to combine the mechanical features of each.

[00:09:28] Speaker 02:
But, Your Honor, we combine teachings.

[00:09:30] Speaker 02:
We don't combine mechanical features.

[00:09:32] Speaker 02:
There's no requirement for a bodily incorporation of Lee into Kim.

[00:09:36] Speaker 02:
And that's, in part, where the board went wrong.

[00:09:38] Speaker 01:
Well, what was Dr. Harris doing with, for example, Figure A on page 48 of your brief?

[00:09:44] Speaker 02:
Yes.

[00:09:45] Speaker 02:
Figure A, the only thing that's added to Figure A from Lee is that select line.

[00:09:51] Speaker 02:
One bit.

[00:09:51] Speaker 01:
Well, and the multiplexers.

[00:09:54] Speaker 02:
Multiplexers are a teaching that comes from the knowledge of a person with ordinary skill in the art discipline.

[00:10:00] Speaker 01:
Well, perhaps.

[00:10:01] Speaker 01:
But this diagram is a modification, I take it, of a chem diagram, which is modified by adding multiplexers and adding some of the C1s hot and cold.

[00:10:13] Speaker 01:
Yes, Your Honor.

[00:10:14] Speaker 01:
Right.

[00:10:15] Speaker 01:
So what I'm left with is wondering why it was that Dr. Harris and ultimately your petition focused so much on

[00:10:24] Speaker 01:
Again, the mechanism for combination of the two.

[00:10:28] Speaker 01:
Does this go to not so much motivation to combine, but reasonable expectation of success, perhaps?

[00:10:34] Speaker 02:
I think it does, though, to reasonable expectation of success.

[00:10:37] Speaker 02:
And these are simple additions.

[00:10:38] Speaker 02:
This is as simple as a light switch.

[00:10:41] Speaker 02:
If it's hot, do one thing.

[00:10:43] Speaker 04:
That's my question.

[00:10:43] Speaker 04:
How do we know it's simple?

[00:10:44] Speaker 04:
I mean, your argument at a high level

[00:10:47] Speaker 04:
appealing that you know Kim shows everything including the possibility of additional inputs and Lee teaches you the temperature input so you just look to Lee to suggest another input but is it really that simple or is temperature using temperatures and input something that might be more complicated to actually accomplish and therefore we actually have to know

[00:11:11] Speaker 04:
how it's done, and does Lee teach that in a way that the board understood?

[00:11:17] Speaker 04:
I mean, it seems to me that that's the conflict between the issues.

[00:11:21] Speaker 04:
If all it is you're looking to for Lee is, well, here's another input that you can use in these kind of circuits, I'm sure.

[00:11:27] Speaker 04:
But it seems like the board said, well, wait a minute, you've got to show us exactly how you would use a temperature input in chem, and you haven't done that.

[00:11:37] Speaker 02:
I think, Your Honor, in that case, we look at the claims.

[00:11:40] Speaker 02:
If there were a set of claims, which these are not, that described how and had requirements for the how, then that may be a consideration.

[00:11:48] Speaker 02:
But the claims are recited in the broadest language possible.

[00:11:51] Speaker 02:
It's select based on temperature.

[00:11:53] Speaker 02:
All that is is a switch.

[00:11:54] Speaker 02:
It's the light switch.

[00:11:55] Speaker 02:
You turn the lights on, you turn the lights off.

[00:11:57] Speaker 02:
That's all that's being added here on page 48 is if it's hot, do one thing.

[00:12:02] Speaker 02:
Cold, do another thing.

[00:12:03] Speaker 02:
That falls within the scope of the claims.

[00:12:06] Speaker 02:
That's all we needed to show as a teaching in order to make these claims obvious.

[00:12:12] Speaker 02:
And if you look at the patent, you can tell, and this goes more to claim construction issues, but this patent is claimed in the broadest sense.

[00:12:20] Speaker 02:
It says in column four of the patent where it says that the control circuit can be implemented in any suitable manner.

[00:12:36] Speaker 02:
This is at 30 and 31.

[00:12:38] Speaker 02:
The control circuit 50 in the 026 patent can select the value of the control signal in any suitable manner.

[00:12:46] Speaker 02:
It goes on in that section to say it can be as simple as a logic gate.

[00:12:50] Speaker 02:
And that's what Kim had.

[00:12:52] Speaker 02:
That's why Kim anticipated some of the claims.

[00:12:54] Speaker 02:
It has a logic gate that takes two inputs.

[00:12:57] Speaker 02:
And it takes the leakage indicator.

[00:13:00] Speaker 02:
And it takes the mode indicator.

[00:13:02] Speaker 02:
And it decides, based on those two inputs, what its output would be.

[00:13:05] Speaker 02:
Lee just says, you can also consider temperature.

[00:13:07] Speaker 01:
And all it is.

[00:13:09] Speaker 01:
Is your use of Lee limited to, for example, equivalent, in effect, to a reference which simply said that

[00:13:20] Speaker 01:
Temperature is a factor that affects leakage.

[00:13:24] Speaker 01:
Let me ask it this way.

[00:13:27] Speaker 01:
Are you using leave for any purpose beyond that?

[00:13:30] Speaker 02:
What we're doing is we're using leave for temperature affects leakage in a very specific circuit, which is almost identical to Kim.

[00:13:37] Speaker 02:
It uses both leakage and load.

[00:13:40] Speaker 01:
When you add in a specific circuit, that's where I begin to have concerns, because that

[00:13:46] Speaker 01:
It sounds like an invitation to look at the differences between the two circuits, which the board found to be substantial.

[00:13:52] Speaker 02:
Well, Your Honor, I don't think we should be faulted for showing more than just what was sufficient to meet the claims.

[00:13:57] Speaker 02:
It was sufficient to meet the claims to show any use of temperature.

[00:14:00] Speaker 02:
We knew that and more.

[00:14:02] Speaker 01:
You would take the view, I take it then, that this case would be identical.

[00:14:07] Speaker 01:
for legal purposes if there had simply been a reference.

[00:14:10] Speaker 01:
Instead of Lee, there had been a reference which simply said, leakage is sensitive to temperature.

[00:14:15] Speaker 02:
That would have been sufficient, but we showed more, and we showed more in the context of these types of circuits.

[00:14:20] Speaker 02:
So this narrows down the field of electronics.

[00:14:23] Speaker 02:
Leakage and temperature are related.

[00:14:25] Speaker 02:
It's a well-known relation in electronics.

[00:14:27] Speaker 02:
But we say even in this specific context, where you're in a system that's supplying a voltage to another circuit and you're considering things like mode and leakage, that temperature is well known to be used even in that specific circumstance.

[00:14:41] Speaker 02:
But it would have been sufficient just to show the use of temperature and leakage, but we showed much more.

[00:14:47] Speaker 03:
Your India rebuttal, would you like to save it?

[00:14:49] Speaker 03:
I'll save the five for the rebuttal, Your Honor.

[00:14:51] Speaker 03:
Well, hopefully we'll give you five.

[00:14:52] Speaker 03:
We'll see.

[00:14:53] Speaker 03:
We've used up almost all of it.

[00:14:55] Speaker 03:
Let's hear from Ms.

[00:14:57] Speaker 03:
Zhang.

[00:14:58] Speaker 00:
May there please be a call?

[00:15:00] Speaker 00:
Anita Zhang on behalf of VLSI, the cross appellant.

[00:15:06] Speaker 00:
So I think Your Honor's got it right.

[00:15:09] Speaker 00:
What the board did is they did not require

[00:15:14] Speaker 00:
Intel to explain how to bodily incorporate least bias signal into CHEMS system.

[00:15:21] Speaker 00:
What they faulted them and specifically said in the footnotes on appendix 84, 85, 160, and 161 is that they failed to explain how the two references can be combined.

[00:15:36] Speaker 00:
That's what the failure really is.

[00:15:39] Speaker 01:
Is this not a motivation to combine issue, but rather a reasonable expectation of success issue?

[00:15:46] Speaker 01:
I think of both.

[00:15:48] Speaker 01:
Let me just explain a little more about what I mean about the first part.

[00:15:54] Speaker 01:
Mr. Massa is arguing, I think, that they didn't have to do anything more than show from Lee or from any other source that their

[00:16:04] Speaker 01:
Temperature is a factor that bears on a leakage.

[00:16:09] Speaker 01:
And that, they say, is what we got from Lee.

[00:16:13] Speaker 01:
Everything else is sort of gravy.

[00:16:15] Speaker 01:
But that would be enough, he argues, to satisfy the motivation to combine.

[00:16:21] Speaker 01:
Why doesn't the conflict, if there is one, between the nature of Lee and the nature of Kim matter for purposes of motivation to combine?

[00:16:30] Speaker 00:
So I think that's the way Arandi actually comes in.

[00:16:32] Speaker 00:
Let's take claims four and 17 as an example.

[00:16:36] Speaker 00:
Claim four does not just require the temperature be a control factor.

[00:16:41] Speaker 00:
Specifically, it's about leakage reduction value.

[00:16:44] Speaker 00:
And those leakage reduction values are used in the performance-oriented

[00:16:49] Speaker 00:
which corresponds to the active mode in Li.

[00:16:53] Speaker 00:
But what does Li actually do?

[00:16:55] Speaker 00:
Li specifically said their leakage control is only during the standby mode, but not during the active mode.

[00:17:03] Speaker 00:
So there is actually, I wouldn't say teaching away.

[00:17:05] Speaker 00:
There is definitely, there's no teaching of what claims four and 17 is actually saying.

[00:17:11] Speaker 00:
That's why the board faulted them to say you cannot just say.

[00:17:14] Speaker 03:
Although I didn't see the board identify this distinction that you made in your brief.

[00:17:20] Speaker 03:
This distinction between Lee being about a standby leakage reduction circuit and Kim being about an active mode.

[00:17:30] Speaker 00:
They didn't specifically say that, but they did point out one of the complaints we have, which is you cannot just say LEAP teaches the general concept of using temperature.

[00:17:42] Speaker 00:
as a control factor.

[00:17:44] Speaker 03:
And why not?

[00:17:45] Speaker 00:
And that's where we come in.

[00:17:47] Speaker 00:
What Lee says, you use temperature as a control factor for leakage current in the standby mode.

[00:17:55] Speaker 00:
But they specifically, if you look at how they actually implement it, they don't do it in the active mode.

[00:18:00] Speaker 00:
So if someone actually look at Lee to say, OK, Lee says there is a temperature control, but when is it used?

[00:18:07] Speaker 00:
They're not going to arrive at the invention claimed by claims four and 17.

[00:18:12] Speaker ?:
OK.

[00:18:12] Speaker 03:
Just to be clear, for me, you're asking me to read into what the board said.

[00:18:19] Speaker 03:
Because the board didn't say everything you just said.

[00:18:21] Speaker 03:
The board just seemed to invoke a rendi.

[00:18:25] Speaker 03:
And when I think of a rendi, I normally think of reliance on the notion of common sense when there is a missing claim limitation.

[00:18:33] Speaker 03:
And here, I understand your take, which is that the missing limitation is the use of a temperature as an input when the circuit is operating in active mode.

[00:18:45] Speaker 03:
But that is not what the board said.

[00:18:47] Speaker 03:
So that makes me a little concerned that the board was invoking Arendi in an incorrect way.

[00:18:56] Speaker 03:
Because what it was pointing to was just that the mere concept of how temperature can affect leakage current is not good enough under Arandi.

[00:19:09] Speaker 00:
I think you need to look at the entire briefing and where we erased Arandi.

[00:19:14] Speaker 00:
We erased Arandi in that specific circumstance.

[00:19:17] Speaker 00:
we said that Arandi applies directly there.

[00:19:21] Speaker 00:
Because in Arandi's case, people often cited for common sense.

[00:19:26] Speaker 00:
You cannot just use common sense for material limitation.

[00:19:29] Speaker 00:
What the example there is, the prior taught how to search database by certain parameters.

[00:19:36] Speaker 00:
but not the specific phone lookup one.

[00:19:39] Speaker 00:
And here, I think the circumstance is exactly the same.

[00:19:42] Speaker 00:
The general concept of using temperature in some kind of mode is taught in Li.

[00:19:50] Speaker 00:
But the claim, four and 17, for example, is very specific.

[00:19:55] Speaker 00:
It's going to be in the active mode.

[00:19:56] Speaker 00:
You use that particular temperature control.

[00:20:00] Speaker 04:
And Li- Can you explain to me how four and 17 makes it very clear that it's the active mode?

[00:20:06] Speaker 00:
OK, so 4 says select the leakage reduction value.

[00:20:16] Speaker 00:
And the leakage reduction value first appears in claim number 2, clause number

[00:20:23] Speaker 00:
the second select clause, which is select the leakage reduction value of the control signal when, if you look at the second little two, is a mode indicator indicates the power gated circuit is requested to operate at the performance oriented mode.

[00:20:42] Speaker 00:
So the leakage reduction value is a value that you select when it's operating in the performance oriented mode, and that corresponds to the active mode in Leak.

[00:20:53] Speaker 04:
Okay, but I still I mean I feel like I asked a very similar question to your friend on the other side and he said these claims aren't Don't have to show how specifically you implement the temperature and I'm having a hard time It seems to me like you're arguing except that it is very specific about how you would use temperature as a value and

[00:21:19] Speaker 04:
and that Lee doesn't do that, but it seems like Kim has all these things about how you would use these different inputs, including what he called the X factor.

[00:21:30] Speaker 04:
And doesn't Kim already show all of this?

[00:21:34] Speaker 00:
No, Kim doesn't show that.

[00:21:36] Speaker 04:
So Kim doesn't show how you work in an active mode for mode or the other ones?

[00:21:43] Speaker 00:
So all Kim does is if you have a sleep mode, it's going to turn off all the sleep transistors by passing through, let's say, all the one bits.

[00:21:55] Speaker 00:
And if it's not a sleep mode, which we can say it's an active mode, all it does is to pass through the complement of what's stored in the memory.

[00:22:09] Speaker 03:
Right, so Kim is teaching active mode.

[00:22:11] Speaker 03:
It doesn't have a standby mode.

[00:22:13] Speaker 00:
It doesn't have a standby mode.

[00:22:14] Speaker 03:
Or also known as a retention mode.

[00:22:16] Speaker 03:
I understand that.

[00:22:17] Speaker 03:
But let's assume for the moment that it's less than clear to this court what the board was trying to do with invoking a rending.

[00:22:28] Speaker 03:
OK.

[00:22:28] Speaker 03:
And so then it comes to what appears to be, as good Bryson was pointing out, perhaps a reasonable expectation of success concern that the board was articulating.

[00:22:40] Speaker 03:
And when I look at pages 81 through 83, it seems very clear to me that the board's concerns about expectation of success is entirely premised on the idea that Intel is proposing to replace Kim's control signal with Lee's control signal.

[00:23:04] Speaker 03:
And first of all,

[00:23:09] Speaker 03:
Is that your view that that is in fact what Intel was arguing for in its petition?

[00:23:16] Speaker 00:
Intel argued a lot of things in the petition.

[00:23:18] Speaker 03:
Well, can you answer my question?

[00:23:20] Speaker 03:
Can you answer my question?

[00:23:21] Speaker 00:
Okay.

[00:23:22] Speaker 03:
Is it your view that Intel's petition theory was that it was proposing to completely replace Kim's control signal with Lee's control signal?

[00:23:34] Speaker 00:
I would say yes.

[00:23:35] Speaker 03:
Can you show me where?

[00:23:36] Speaker 03:
Because I could not find that.

[00:23:38] Speaker 03:
I understood they were trying to replace or substitute certain inputs to the control circuit that would ultimately produce the output control signal.

[00:23:51] Speaker 03:
But it's very different than replacing the control output signals.

[00:24:00] Speaker 00:
Can I provide the sites on my rebuttal time?

[00:24:05] Speaker 03:
Sure thing.

[00:24:06] Speaker 03:
Let's assume for the moment that isn't what they argued.

[00:24:10] Speaker 03:
Is it fair to read the board's analysis at A8183 as being predicated on a misunderstanding of Intel's argument that the board misbelieved that Intel was pushing a theory that you completely yank out Kim's control signal

[00:24:29] Speaker 03:
and in its place insert a lease control signal.

[00:24:38] Speaker 00:
I don't want to speculate what the board says.

[00:24:42] Speaker 03:
Right.

[00:24:42] Speaker 03:
Unfortunately, we have to.

[00:24:43] Speaker 00:
OK.

[00:24:44] Speaker 00:
But I think the board's footnotes on pages, appendix 84, 85, 160, and 160.

[00:24:53] Speaker 03:
And the question to me is when the board says

[00:24:57] Speaker 03:
What it says in these footnotes is it's unclear to us that perhaps those footnotes are premised on the board's misbelief that what Intel wanted to do was pull out one control signal for another control signal.

[00:25:14] Speaker 03:
And for that reason, the board was

[00:25:18] Speaker 03:
confused as to why anybody would do that, and how would one successfully create an operational circuit when you try to force fit Lee's control signal into Kim's system?

[00:25:32] Speaker 00:
I would say it's not really trying to force fit Lee's signal into it, but generally how you actually adapt the Kim's circuit to accommodate all those complex considerations

[00:25:44] Speaker 00:
as reflected in Li.

[00:25:46] Speaker 00:
When you actually use a temperature as a control, whether a person on your screen would even include a retention mode at the time of the invention.

[00:25:57] Speaker 00:
All those things, we have provided expert testimony as to why it's not as simple and straightforward as it is.

[00:26:04] Speaker 00:
So there is substantial evidence to support the board's general belief that it's not straightforward as what Dingtao is trying to put it out to be.

[00:26:13] Speaker 00:
And they specifically say that in their opinion, to say like, Intel, you say it's simple, it's straightforward, but if you look at Lee, that's not really the case.

[00:26:22] Speaker 00:
And I think that's what precipitated a lot of discussion, to say like, look how Lee's circuit is so complicated.

[00:26:29] Speaker 00:
There are so many different controls going into what actually when those things actually doing the control.

[00:26:36] Speaker 00:
So if you just look at Kim and when you're trying to implement it, adding additional control factors, adding additional operating modes, it's not simple and straightforward.

[00:26:50] Speaker 00:
There are other considerations.

[00:26:52] Speaker 00:
It goes into both a motivation with assembly.

[00:26:54] Speaker 04:
So are you saying essentially that Kim doesn't show how to

[00:26:59] Speaker 04:
implement temperature or any, that what you need from Li is more than just temperature as an input.

[00:27:07] Speaker 04:
You need how temperature interacts with those other modes.

[00:27:11] Speaker 00:
You need to know when temperature is actually used in those systems.

[00:27:18] Speaker 00:
You can't just say temperature has an effect on the leakage current.

[00:27:26] Speaker 00:
It's more temperature.

[00:27:28] Speaker 00:
Is it going to be used in retention mode?

[00:27:30] Speaker 00:
Is it going to be used in active mode?

[00:27:32] Speaker 03:
I don't want to prolong this, but I'm just curious.

[00:27:37] Speaker 03:
Lee talks about how you want to consider temperature, how it affects leakage when you're in standby mode.

[00:27:44] Speaker 03:
And so then my question is, logically, why wouldn't you also be similarly concerned about temperature on leakage in an active mode?

[00:27:54] Speaker 00:
Because Lee, if you look and go through that circuit, that's not disputed.

[00:27:58] Speaker 00:
Lee's circuit

[00:28:00] Speaker 00:
don't really use temperature to control the leakage during active mode at all.

[00:28:05] Speaker 03:
No, it's a standby circuit.

[00:28:06] Speaker 03:
I understand that.

[00:28:08] Speaker 04:
We're looking at Kim for active mode.

[00:28:11] Speaker 04:
Kim teaches how to use active mode.

[00:28:14] Speaker 00:
So if you look at Li, Li also has active mode, standby mode, and sleep mode.

[00:28:20] Speaker 00:
And if you look at the operation for each of the modes, the temperature is not a control factor for the active mode at all.

[00:28:28] Speaker 04:
Here's my concern about this whole argument is I don't think the board understood what we're talking about.

[00:28:34] Speaker 04:
I think the board really did think, well, we're just going to swap the circuit from Lee and put it in Kim.

[00:28:40] Speaker 04:
Whereas their argument is, and it may not be right for the reasons you're saying, but I don't see where the board addressed this, that Kim didn't show

[00:28:49] Speaker 04:
enough that all you needed from Lee was temperature.

[00:28:52] Speaker 04:
That's what I think I'm getting from their argument.

[00:28:54] Speaker 04:
Maybe I'm getting that wrong, and your friend can explain that to me, too.

[00:28:58] Speaker 04:
But if that's the argument, and your argument is, no, you need something more from Lee than just a temperature input, you need Lee to show you how to do it in active mode.

[00:29:10] Speaker 04:
Is that a fair statement of what your argument is?

[00:29:14] Speaker 00:
Yes and no.

[00:29:16] Speaker 00:
What I'm saying, Li is actually teaching away from using temperature controlling the active mode.

[00:29:21] Speaker 04:
Right, but again, that sounds like an argument that the board didn't really address.

[00:29:27] Speaker 00:
But I think what your honors concern is that they're requiring Intel to explain bodily incorporation.

[00:29:35] Speaker 00:
They expressly stated that's not what they're doing.

[00:29:39] Speaker 00:
You mean in the footnotes?

[00:29:41] Speaker 00:
In the footnotes.

[00:29:42] Speaker 00:
So to me, that makes clear.

[00:29:45] Speaker 00:
At least those express language we don't have to speculate.

[00:29:49] Speaker 00:
They say we are not requiring you to bodily incorporate Lee's signal into Kim.

[00:29:56] Speaker 04:
But they are requiring more than, again, I may be misunderstanding

[00:30:01] Speaker 04:
Intel's theory, but if Intel's theory is just you look to leave for the temperature input and nothing else, they didn't seem to address that.

[00:30:11] Speaker 04:
They seemed to think that Intel was arguing something more specific would be taken from Lee and added.

[00:30:18] Speaker 00:
I think, again, I think we need to look at the briefing in whole and where they cited the Arandi and where we cited the Arandi and why they agreed with it.

[00:30:28] Speaker 00:
When we cited the Arandi, it's for the very specific reason I just mentioned, because Lee... Aren't we really just looking at what they said, though?

[00:30:37] Speaker 04:
I mean, I'm not going to make up arguments for the board that's not what's in their opinion, just because you had different arguments in your brief.

[00:30:49] Speaker 04:
That's OK.

[00:30:49] Speaker 04:
That wasn't really a question.

[00:30:50] Speaker 04:
Sorry.

[00:30:51] Speaker 04:
You can finish.

[00:30:53] Speaker 03:
You have a cross appeal?

[00:30:55] Speaker 03:
Yes.

[00:30:55] Speaker 03:
And we've used up all your time.

[00:30:57] Speaker 03:
But could you just very quickly make a few points that you want to make on your cross appeal?

[00:31:02] Speaker 00:
So for the cross appeal, we believe the board made the legal error in construing the control circuit as arranged to select a value of the control signal based on the mode indicator and the leakage indicator.

[00:31:18] Speaker 00:
All they, they say like all the claim requires is that the control circuit's output is, it depends on the input.

[00:31:28] Speaker 00:
What I think they misunderstood is that there are two kinds of input to a control circuit.

[00:31:34] Speaker 00:
There is a data input and then the control input.

[00:31:38] Speaker 00:
What you select, the control circuit selects the output is based on the control input and that's what Intel's,

[00:31:46] Speaker 00:
own experts state it explained.

[00:31:50] Speaker 00:
Also, Intel's own reference explains.

[00:31:56] Speaker 00:
For example, they say the selection for the control circuit follows multiplexing concept.

[00:32:07] Speaker 00:
And in multiplexer, there are two data inputs.

[00:32:10] Speaker 00:
But the selection of those data inputs is based on what their experts call

[00:32:16] Speaker 00:
the control bit or control signal selection signal.

[00:32:20] Speaker 00:
So if you look at that in the context of what the claim is actually requiring, the claim requiring the mode indicator and the leakage indicator both be the control bits that will affect how the control circuit is doing the selection.

[00:32:38] Speaker 00:
What happens in Kim is that the so-called leakage indicator is an input, one of the inputs for the data inputs.

[00:32:47] Speaker 00:
So the only thing that's determining how the control circuit is doing the selection is the mode indicator.

[00:32:55] Speaker 00:
And for claim number two, they further aired in decoupling claim number one from claim number two by saying that claim number two is not

[00:33:06] Speaker 00:
The claim number one selection clause does not encompass claim number two.

[00:33:10] Speaker 00:
And that is clear error if we look at appendix 170, figure number five, where stage 340 selection corresponds to the selection clause in independent claims one and 13.

[00:33:27] Speaker 00:
while stages 341, 342, and 343 are the specific selection clauses in claims two and 14.

[00:33:36] Speaker 00:
So the board completed the error when they say that claim number two is not covered by claim number one, and claim number two does not require a finding that the control circuit is using the leakage indicator to do part of the selection.

[00:33:54] Speaker 00:
And for claim number two, what it requires is you to be able to do selecting at least three types of control signals.

[00:34:04] Speaker 03:
The leakage reduction... And certain conditions are true.

[00:34:10] Speaker 00:
The when clause in our mind is saying that the control circuit is determining whether those conditions are met or not.

[00:34:19] Speaker 00:
And in Lee, the control circuit is not the one that's making that decision.

[00:34:23] Speaker 00:
There is another controller, 415, made a decision.

[00:34:27] Speaker 00:
the decision to the NAND gate.

[00:34:30] Speaker 00:
And the NAND gate, all NAND gate is doing is carry out that command.

[00:34:35] Speaker 00:
So analogy is, so there is a processor made a decision based on the condition to say, this condition is met.

[00:34:43] Speaker 00:
So counter, you do X, Y, Z. Versus a circuit looking at the condition saying, yeah, the condition's met, now I should do X, Y, Z. The end result might be the same,

[00:34:57] Speaker 00:
How it's found is different.

[00:34:59] Speaker 00:
And this claim.

[00:35:00] Speaker 03:
We have a long day of arguments.

[00:35:02] Speaker 03:
Do you have a final sentence before we hear from the other side?

[00:35:06] Speaker 00:
So the final thing is the board erred in the claim construction for claims one and two.

[00:35:13] Speaker 00:
And under the correct claim construction, your honor should reverse their finding of unpatentability for claims one, two, 13, and 14.

[00:35:25] Speaker 00:
But there is substantial evidence for their finding of the patentability of the evidence.

[00:35:34] Speaker 03:
Thank you, Your Honor.

[00:35:36] Speaker 03:
You get all five minutes of your rebuttal.

[00:35:39] Speaker 02:
Thank you, Your Honor.

[00:35:39] Speaker 02:
I'd hope to make a couple of quick points on each.

[00:35:44] Speaker 02:
Your Honor, let's begin where Ms.

[00:35:46] Speaker 02:
Zhang left off on the cross appeal.

[00:35:50] Speaker 02:
The board got it right.

[00:35:51] Speaker 02:
These are simple.

[00:35:52] Speaker 02:
claim terms select based on when.

[00:35:55] Speaker 02:
These are not technical terms.

[00:35:56] Speaker 02:
These are plain English terms.

[00:35:58] Speaker 02:
The board got it right that they needed no further construction.

[00:36:01] Speaker 02:
And then the board applied those terms.

[00:36:03] Speaker 02:
And what the OSI is doing is try to take the board's factual findings based on applying those plain meanings to the technology in Kim and turn those into plain construction disputes.

[00:36:13] Speaker 02:
They're not plain construction

[00:36:15] Speaker 02:
disputes there, factual disputes that the board results.

[00:36:17] Speaker 03:
What about the relationship between claim two and claim one, the selection steps or functions in claim two?

[00:36:26] Speaker 02:
In claim two, those steps are described in terms of the

[00:36:41] Speaker 02:
leakage indicator being below a leakage threshold and the leakage indicator being above a threshold.

[00:36:48] Speaker 02:
What VLSI is saying is that there's some distinction in the claims, or maybe they didn't say that, but they're saying there's some distinction between data inputs and control inputs.

[00:36:57] Speaker 02:
That's nowhere in the claims.

[00:36:59] Speaker 02:
That's just something that VLSI is arguing, frankly, for the first time at this oral argument.

[00:37:03] Speaker 02:
There is no distinction, the claims do not distinguish between

[00:37:07] Speaker 02:
an input to the logic and some sort of control signal.

[00:37:13] Speaker 02:
What the specification says, again, this is it for COM4 lines 30, is that the control circuit 50 can select the value of the control signal in any suitable manner.

[00:37:27] Speaker 02:
And right before it, it says the digital circuit can include one or more logic gates.

[00:37:33] Speaker 02:
VLSI claimed this as broadly as they could using a simple term like select.

[00:37:37] Speaker 02:
And the specification, like many patents, is trying to get as broad coverage as possible.

[00:37:42] Speaker 02:
It can be a single logic gate.

[00:37:43] Speaker 02:
It could be an AND gate, where the inputs are 1 or 0, and the output is determined by those inputs.

[00:37:49] Speaker 02:
That's just what Kim shows.

[00:37:51] Speaker 02:
Kim shows a series of logic gates.

[00:37:53] Speaker 02:
It falls right within the embodiment described in the 026 patent, and falls right within the plain and broad claim language.

[00:38:04] Speaker 02:
Your honor, on the point you asked VLSI for a site to its briefs of where it was arguing that Intel was adopting... Well, a site to your petition.

[00:38:16] Speaker 02:
A site to my petition or a site to their patent owner response, where they were adopting the same view as that the board took, where you asked them, where did VLSI say that Intel was trying to take the bias signal?

[00:38:29] Speaker 02:
They never did.

[00:38:30] Speaker 02:
She's not going to be able to give you a site.

[00:38:32] Speaker 02:
What they said, and this is an appendix 7348, is concerning petitioners' argument that one would just look to Lee to incorporate a temperature factor.

[00:38:44] Speaker 02:
They understood our argument.

[00:38:45] Speaker 02:
There's nothing in their briefs about taking the bias signal out of Lee and substituting it for the control signal in Kim.

[00:38:53] Speaker 02:
It's not an argument that we made.

[00:38:55] Speaker 02:
The board misapprehended it.

[00:38:58] Speaker 02:
And I think this may help, Your Honor,

[00:39:00] Speaker 02:
to put some clarity on it, and this goes to where Ms.

[00:39:04] Speaker 02:
Zhang started.

[00:39:06] Speaker 02:
This distinction between Claim 4 and Claim 7 is an important distinction in the claims.

[00:39:11] Speaker 02:
Claim 4 talks about the inactive mode, one of the leakage reduction modes, and Claim 7 talks about the standby mode.

[00:39:21] Speaker 02:
But the board's analysis is exactly the same.

[00:39:25] Speaker 02:
And that's how we know that the board got this totally wrong.

[00:39:28] Speaker 02:
The board in its analysis for the retention mode, Claim 7, used the same basis.

[00:39:35] Speaker 02:
It said Intel did not demonstrate how to substitute the bias signal.

[00:39:39] Speaker 02:
Again, it's focused on this bias signal.

[00:39:42] Speaker 02:
It made no distinction between active mode and standby mode.

[00:39:46] Speaker 02:
The distinction VLSI is making

[00:39:48] Speaker 02:
which can't be an alternative grounds for affirmance.

[00:39:52] Speaker 02:
That's not allowed.

[00:39:53] Speaker 02:
It's not the basis of the board's decision.

[00:39:57] Speaker 02:
We know that the board didn't rely on this distinction between active mode and standby mode because when it came to analyze claim seven, it made the same mistake.

[00:40:07] Speaker 02:
It was looking for this combination that Intel never proposed.

[00:40:10] Speaker 02:
It was looking for this substitution of the bias signal.

[00:40:14] Speaker 02:
And I think that distinction between claim four and seven

[00:40:16] Speaker 02:
doesn't help VLSI, it helps us.

[00:40:18] Speaker 02:
It shows how the board got it totally wrong.

[00:40:21] Speaker 02:
And this should be remanded to the board to actually address the arguments that Intel made in its petition, arguments that VLSI was fully aware of.

[00:40:30] Speaker 02:
We were talking about the temperature teaching from Lee.

[00:40:33] Speaker 02:
We were not talking about taking Lee's output and changing it for Kim's output.

[00:40:40] Speaker 02:
Thank you.

[00:40:42] Speaker 03:
OK.

[00:40:42] Speaker ?:
Thank you.

[00:40:45] Speaker 03:
Ms.

[00:40:45] Speaker 03:
Dong, you have four minutes.

[00:40:49] Speaker 00:
So regarding Mr. Massa's comment that the 026 pattern discusses only using a single gate as a control circuit.

[00:41:00] Speaker 00:
That is incorrect.

[00:41:02] Speaker 00:
In our great brief, pages 14 to 15,

[00:41:10] Speaker 00:
What we pointed out is that there is actually a back in the figure one or figure two of the 026 at the digital signal.

[00:41:19] Speaker 00:
So the digital signal may be a single gate, but there is another digital to analog control that one.

[00:41:25] Speaker 00:
And that one actually has been pre-programmed or has been determined based on certain pre-programming to determine the relationship

[00:41:38] Speaker 00:
for like based on the mode indicator, temperature indicator, and the leakage indicator.

[00:41:44] Speaker 00:
So it's not as simple as Kim's single gate.

[00:41:48] Speaker 00:
So that's a distinction there.

[00:41:50] Speaker 03:
A common force says it can include one or more logical gates.

[00:41:53] Speaker 00:
That's for digital control signal.

[00:41:56] Speaker 00:
If you're on a look at the figure one of the 026 pattern,

[00:42:06] Speaker 00:
Appendix 166.

[00:42:12] Speaker 00:
And if you look at what's constituting control circuit 50, there is digital circuit 51, and there is DAC 52.

[00:42:22] Speaker 00:
The operation of DAC 52 is pretty complicated.

[00:42:26] Speaker 00:
There is a determining step as to what the relationship really is as to what the output of the control signal really is based on the inputs

[00:42:36] Speaker 00:
of the mode indicator, leakage indicator, and temperature indicator, as shown in figures three and four, appendix 168 and 169.

[00:42:47] Speaker 00:
So there is a pre-calibration curve based on figures three and four, for example, and that is fed into DAC52.

[00:42:56] Speaker 00:
So DAC52 takes the output from the digital 51, and it does more complicated logic process

[00:43:05] Speaker 00:
before it outputs the final control signal, 103.

[00:43:09] Speaker 00:
And 103 is the value of the output of the control circuit 50.

[00:43:13] Speaker 00:
And it's not 108 that Mr. Massa is pointing to.

[00:43:17] Speaker 00:
That's the difference.

[00:43:20] Speaker 00:
As to claims two and one, the claim number two, you have to read, look at the claim languages for claims one versus two versus four versus five.

[00:43:35] Speaker 00:
Inventors use select based on if they're just saying I'm going to use those two as a control bits for the control circuit, but not providing a specific limit on what those mode indicator needs to be, leakage indicator needs to be.

[00:43:51] Speaker 00:
And they use select when, when they want to specify what the

[00:43:57] Speaker 00:
value of those motor indicator needs to be with the value of the leakage indicator needs to be.

[00:44:02] Speaker 00:
So it's not just a metaphysical condition that's met and then you do the selection.

[00:44:09] Speaker 00:
The control circuit has to do the evaluation itself before it decides whether the condition is met and that's a selection based on those.

[00:44:20] Speaker 03:
The question says the leakage indicator does the evaluation.

[00:44:25] Speaker 00:
The claim is, for example, claim number two is wherein the control circuit is arranged to select.

[00:44:35] Speaker 03:
Right, but inside of the select functions,

[00:44:40] Speaker 03:
It's the leakage indicator that indicates if the power gated circuit is above or below the low leakage threshold.

[00:44:48] Speaker 03:
It's not the control circuit itself that's making that evaluation.

[00:44:52] Speaker 03:
It's the leakage indicator.

[00:44:53] Speaker 00:
So the leakage indicator indicates through the control circuit what the condition is, whether it's above or under.

[00:45:01] Speaker 00:
Then based on the information that gets from the leakage indicator, that's what the control circuit does.

[00:45:11] Speaker 00:
For example, 168, the control curves of the figure three of the 026 patent.

[00:45:21] Speaker 03:
You want us to read the figures three and four into the claim.

[00:45:26] Speaker 00:
Because 3, 3, and 4 is what teaches how the control circuit is actually doing the selection based on the leakage indicator.

[00:45:34] Speaker 03:
Your time has expired.

[00:45:35] Speaker 03:
Do you have a final sentence?

[00:45:38] Speaker 00:
Again, the board added in its claim construction claims 1 and 2.

[00:45:44] Speaker 00:
And based on that error, the unpatentability finding should be reversed.

[00:45:49] Speaker 03:
OK.

[00:45:49] Speaker 03:
Thank you.

[00:45:49] Speaker 03:
The case is submitted.