[00:00:00] Speaker 00:
Our first case for argument is 21-2127, Intel versus XMTT.

[00:00:03] Speaker 00:
Mr. Mayor, please proceed.

[00:00:12] Speaker 04:
Good morning and may it please the court.

[00:00:15] Speaker 04:
Intel submits that the board incorrectly construed the claims in such a way that caused it to focus on the configuration of the individual processors within the system, rather than on the operation of the system, what the system is actually doing when it determined whether or not the system is in a parallel processing mode or a serial processing mode.

[00:00:41] Speaker 04:
We submit that that interpretation of the claims is inconsistent with the 388 patent's preferred embodiment and accordingly cannot be correct.

[00:00:51] Speaker 04:
And even the patent owner has argued to the district court that the board's final written decision constructions should not be adopted in the underlying litigation where the court has stayed the case to await this court's guidance on claim construction.

[00:01:08] Speaker 04:
So what I'd like to do is start with the prior art, Nikai.

[00:01:11] Speaker 00:
Would you instead, for me, start with whether or not there should be some sort of a stockholder?

[00:01:17] Speaker 00:
Can you explain to me whether or your argument regarding how it is that the position taken now is not inconsistent with the position taken before the board?

[00:01:29] Speaker 00:
One of the particular pages I would draw your attention to is page 685 of the appendix.

[00:01:35] Speaker 00:
Where Intel I think if I understand what this document is you know Intel brief?

[00:01:40] Speaker 00:
argues that this serial and parallel processors with regard to the functioning of a system as the whole as a whole not just the capacity capabilities or configuration of Serial and parallel processes as individual components, so this is Intel supplemental brief regarding claim construction before the board and it seems to

[00:02:02] Speaker 00:
be acknowledging and adopting and supporting exactly the construction that is the opposite of what you're now arguing for.

[00:02:11] Speaker 00:
So tell me why that wouldn't create an estoppel.

[00:02:13] Speaker 04:
Sure, happy to address that.

[00:02:15] Speaker 04:
So there are two things that Intel agreed to below.

[00:02:18] Speaker 04:
The first was that the serial and parallel processors as individual components must be configured to execute instructions primarily in parallel or primarily in serial.

[00:02:29] Speaker 04:
Intel agreed with that in the IPR reply at appendix 467 after the institution decision adopted that construction.

[00:02:37] Speaker 04:
we maintain that position at Appendix 685, where we said that the primarily in parallel and primarily in serial limitations apply not just to the processors as individual components, but could also be applied to the system as a whole, the operation of the system as a whole.

[00:02:57] Speaker 04:
So that's the first point we agreed with, but the final written decision did away with that construction at Appendix 9.

[00:03:05] Speaker 04:
The second thing we agreed with, which is what I believe, Your Honor, was a point.

[00:03:10] Speaker 02:
It depends on how we interpret just too.

[00:03:14] Speaker 04:
Not just, yeah.

[00:03:17] Speaker 04:
Yes, Your Honor.

[00:03:17] Speaker 04:
So what we were interpreting.

[00:03:18] Speaker 03:
Doesn't necessarily mean both.

[00:03:21] Speaker 03:
I mean, I thought that the claim construction that they put in their final written decision only differed from the one you agreed to by adding

[00:03:31] Speaker 03:
what seems to me a superfluous on the serial processor at the end.

[00:03:35] Speaker 03:
If we agree or if we find that that phrase is on the serial processor is just redundant and superfluous, then isn't that the exact claim construction you agreed to?

[00:03:46] Speaker 04:
Well, the problem with that is that single sentence where they added on the serial processor and on the parallel processor wasn't the only construction that the board engaged in.

[00:03:54] Speaker 04:
They also engaged in a construction on the page before, at appendix 11, where they construed the processors themselves to be, quote, configured to have the serial and parallel processing modes.

[00:04:07] Speaker 04:
That was error, because the modes are directed to the operation of the system.

[00:04:11] Speaker 04:
They're not directed to the configuration of the processors.

[00:04:15] Speaker 04:
So that was the first error.

[00:04:17] Speaker 04:
The more egregious error of claim construction, I believe, occurred at appendix 27.

[00:04:22] Speaker 03:
Can you just, before you go to that,

[00:04:25] Speaker 03:
Are you not challenging this, what I just talked about, the claim construction about it's adapted to execute software instructions so that the system is executing largely but not wholly in serial?

[00:04:41] Speaker 03:
You're still OK with that claim's instruction?

[00:04:43] Speaker 04:
With that part of it.

[00:04:44] Speaker 04:
The part where the board differed in the final reason decision, as you observed, was to add the on the serial processor on the parallel.

[00:04:51] Speaker 03:
Well, that's what I ask you, though.

[00:04:52] Speaker 03:
If I find that simply redundant, which I think it is, then you've agreed to that claim construction.

[00:04:58] Speaker 04:
If that is simply redundant, then that construction is fine.

[00:05:02] Speaker 04:
But it's the other constructions that I think led the board to the incorrect conclusion.

[00:05:07] Speaker 03:
Can you point to me what you're talking about when you're talking about construction?

[00:05:11] Speaker 03:
Or are you really just talking about how they applied this construction to try to get away from the substantial evidence standard?

[00:05:18] Speaker 04:
Right, no.

[00:05:19] Speaker 04:
So yes, two points to that.

[00:05:22] Speaker 04:
Appendix 11, I think here you can clearly see that there was construction occurring.

[00:05:28] Speaker 04:
Appendix 11, this is in the claim construction section.

[00:05:32] Speaker 04:
And in the second paragraph there, the board determined that,

[00:05:35] Speaker 04:
that claim serial processor must be configured to have a serial processing mode, and then further define the mode.

[00:05:42] Speaker 04:
And it also said the parallel processors must be configured to have a parallel processing mode.

[00:05:48] Speaker 04:
Saying what a claim term must have, we submit is claim construction there.

[00:05:55] Speaker 03:
And then at appendix 27, it goes on, if you're looking at that,

[00:06:02] Speaker 03:
Second sentence where it says the claim serial processor must be here to have a serial processing mode.

[00:06:08] Speaker 03:
It puts in for rent a mode where the system executes largely but not wholly in serial, which is the claim construction you just agreed to.

[00:06:16] Speaker 04:
But the problem is conflating what the processors require with what the system does in the modes.

[00:06:22] Speaker 04:
And I think that the best way to see why that is wrong is to see that it's inconsistent with the 388 patents preferred embodiment.

[00:06:31] Speaker 04:
So I can explain why the board's construction, its interpretation at Appendix 27, is inconsistent with the 388 patent.

[00:06:41] Speaker 04:
But before I go there, I'll address the point.

[00:06:43] Speaker 02:
We're on page 27.

[00:06:44] Speaker 02:
Are you speaking?

[00:06:46] Speaker 04:
So Appendix 27, in the first full paragraph, the board focused on what happens at the time t6 in the prior arc called Micaiah.

[00:06:57] Speaker 00:
This is not a claim construction, right?

[00:06:59] Speaker 00:
This is their application of the claim to NICAYA.

[00:07:04] Speaker 00:
I don't know if I'm saying that right, but this is the substantial evidence part, right?

[00:07:09] Speaker 02:
So explaining why even if they adopt your claim construction, they still think you lose?

[00:07:15] Speaker 04:
Well, so three points in response to that.

[00:07:18] Speaker 04:
One, they were still proceeding under their prior construction at appendix 11 that kind of conflated the modes with the processors.

[00:07:25] Speaker 04:
But more importantly,

[00:07:27] Speaker 04:
Even though this section was not titled?

[00:07:30] Speaker 03:
Can you go back to 11?

[00:07:31] Speaker 03:
I don't understand what you're arguing about.

[00:07:34] Speaker 03:
That paragraph is the constructions that everybody seems to have agreed to, or you seem to have agreed to.

[00:07:40] Speaker 03:
Adapted to means configured to.

[00:07:42] Speaker 03:
You don't have any objection to that, right?

[00:07:43] Speaker 03:
No objection to that.

[00:07:44] Speaker 03:
Primarily means largely but not wholly.

[00:07:47] Speaker 03:
You agree with that.

[00:07:48] Speaker 02:
Right.

[00:07:49] Speaker 03:
And the serial and parallel processing modes each refer to the execution of a system as a whole.

[00:07:55] Speaker 04:
That's right.

[00:07:55] Speaker 03:
You agree to that?

[00:07:57] Speaker 04:
But what we did not agree to, and where we think the board went wrong, is that it said the processors must be configured to have the modes.

[00:08:04] Speaker 04:
The processors don't need to be configured to have them.

[00:08:07] Speaker 02:
Did we reach that?

[00:08:08] Speaker 02:
I was under the impression that the main problem was the distinction between looking at the functioning of the processors individually as opposed to seeing them functioning in the system.

[00:08:20] Speaker 02:
And my understanding was that the board, so even assuming you're right as to a minor error in claim construction on these other issues, why aren't you on the hook for having conceded that the issue turns on individual as opposed to system?

[00:08:40] Speaker 02:
You agreed below.

[00:08:44] Speaker 02:
I believe that the proper analysis was to look at it in terms of a system.

[00:08:49] Speaker 02:
So if you still agree to that, even though you may be suggesting that the claim construction includes something else, the rationale of the board decision was once you are agreed that it's the system you're looking at as opposed to the individual processors,

[00:09:07] Speaker 02:
Your petition doesn't address the issue.

[00:09:10] Speaker 02:
So it's as if you're saying there's a disconnect between the petition and the invention in suit.

[00:09:18] Speaker 02:
And consequently, you lose.

[00:09:20] Speaker 02:
That's the way I understood the board to be ruling.

[00:09:23] Speaker 04:
Well, I just don't think the board's decision can be reconciled with the preferred embodiment.

[00:09:29] Speaker 04:
What the board did.

[00:09:30] Speaker 02:
But if your adversary is saying that if we agree that the correct claim construction is system viewing the processors as a system operation as opposed to individual, then you don't make any argument that you could win if that's the claim construction.

[00:09:52] Speaker 04:
Oh, if under that construction, we do make the argument that we could win.

[00:09:55] Speaker 04:
So under the hypothetical where the board didn't do what we think was wrong at appendix 11, and the board just went with what we had advanced.

[00:10:05] Speaker 02:
Your adversary is saying that you, in essence, are making no argument that if the system is correct, where does your petition deal with systems?

[00:10:17] Speaker 02:
I read your petition, and my word search for system doesn't exist.

[00:10:23] Speaker 04:
Well, so in the petition, we never addressed the phrase primarily in serial and primarily in parallel as applied to the system.

[00:10:34] Speaker 02:
That isn't the question.

[00:10:35] Speaker 02:
You never addressed the functioning of the invention as a system, as the processors functioning within a system, as opposed to individually.

[00:10:45] Speaker 04:
And that's correct.

[00:10:47] Speaker 04:
And the board noted that that was a new construction that came up at the oral hearing.

[00:10:52] Speaker 02:
And at appendix nine, the board said- Well, let me just assume, not talk about when it came up or what, just assume that the correct, that you agreed below that the way that the invention should be looked at is as a system, not individually.

[00:11:07] Speaker 02:
And the board said your petition simply doesn't address that issue.

[00:11:11] Speaker 02:
You lose.

[00:11:12] Speaker 04:
But what we said is if the board is going to look at it that way in a way that the board conceded, quote, differed from either party at Appendix 9, then we should have had an opportunity to respond.

[00:11:23] Speaker 04:
And we did respond in the supplemental briefing.

[00:11:26] Speaker 04:
And the board chose not to consider that, but they should have.

[00:11:32] Speaker 02:
The board read your supplemental briefing as saying you agreed with them that the system is how you look at it, not the individual processors.

[00:11:40] Speaker 04:
But what we didn't agree with, and what the board did, was it tied the configuration.

[00:11:46] Speaker 04:
It looked at the number of processors configured as serial or parallel, whether you're in a serial or parallel processing mode.

[00:11:53] Speaker 04:
What it should have done is just looked at what the system is doing.

[00:11:56] Speaker 04:
Because between time T7 and T8, there's one processor, 1001, executing one instruction, P301, in serial.

[00:12:04] Speaker 04:
There is no question that during that time period, we identified as the serial processing mode.

[00:12:09] Speaker 04:
The system is operating in serial.

[00:12:12] Speaker 04:
It's only because the board counted up previously how many processors had been configured as parallel.

[00:12:20] Speaker 02:
Was that a claim construction issue or an interpretation of a priority issue?

[00:12:23] Speaker 04:
I think it's a claim construction issue.

[00:12:25] Speaker 04:
And I think this court has held

[00:12:26] Speaker 03:
It sounds like a substantial evidence question to me.

[00:12:29] Speaker 03:
You're talking about what the prior art discloses, specifically at certain points in time, and you just work towards analysis of the prior art.

[00:12:37] Speaker 04:
Well, we address substantial evidence at page 55 of the blue brief and at 20 to 21 of the gray brief.

[00:12:42] Speaker 04:
And we would submit to your honors that if that's the case, if it's substantial evidence, then there's no way you could find that between time T7 and T8, where only one serial processor is executing a serial, there's no way you could find that that's something other than serial processing code.

[00:12:59] Speaker 00:
but can you have a mode where the system executes largely but not wholly in serial without having the claimed serial processor configured to work in a serial processing mode?

[00:13:13] Speaker 04:
I think the answer is no.

[00:13:14] Speaker 04:
You have to have at least one.

[00:13:16] Speaker 00:
So then what's the problem with the construction?

[00:13:19] Speaker 00:
I understood this an argument to be between whether we were to focus on the mode of the system or the mode of the individual processors.

[00:13:28] Speaker 00:
And I understood you to argue, no, it should be the system.

[00:13:32] Speaker 00:
But if the system can't operate in that mode unless the individual claimed processor is also in that mode, what is your problem with the board's construction on page 11?

[00:13:42] Speaker 04:
The question we're asking, Your Honor, to resolve is how do you figure out when you're in a serial processing mode?

[00:13:48] Speaker 04:
And we submit that you look at what the system's doing.

[00:13:50] Speaker 04:
So if you have only one processor executing in serial, you're in a serial mode.

[00:13:55] Speaker 04:
You shouldn't be looking and counting up how many processors were configured as parallel if those processors are sitting idly and not doing anything.

[00:14:04] Speaker 04:
And that's where the board went wrong.

[00:14:06] Speaker 04:
The board observed that between T7 and T8, there were seven processors configured parallel.

[00:14:12] Speaker 00:
a hands down of substantial evidence question.

[00:14:15] Speaker 00:
That is not a question of claim construction.

[00:14:18] Speaker 00:
That is a question of how you determine whether the construction is met, not how the claim should be construed.

[00:14:24] Speaker 04:
Well, Your Honor, in the Corning v. Fastfeld case, 873F3, 896 at 900, this court looked to the motivation of combined analysis and found that the board there was actually performing an interpretation of its own construction.

[00:14:41] Speaker 04:
And we think that's what the board did here.

[00:14:43] Speaker 04:
They construed the terms at 11.

[00:14:46] Speaker 04:
But it's not apparent how that affected the analysis just by looking at appendix level 11 alone.

[00:14:52] Speaker 04:
You can see the effect of conflating the processor limitations with the mode limitations at appendix 27, where the board just incorrectly counted up how many processors were configured in parallel, even though those processors are doing nothing.

[00:15:08] Speaker 00:
You've used all of your time and all of your rebuttal time.

[00:15:11] Speaker 00:
Let's hear from the public counsel, Mr. Rowles.

[00:15:15] Speaker 04:
Thank you, Your Honor.

[00:15:16] Speaker 01:
I think it's not disputed at this point that appendix 11 the

[00:15:31] Speaker 01:
excuse me, appendix 12, the board's construction, which begins in a paragraph starting in sum, that Intel is not disputing that description of the claims, that we are to look at the system as a whole and determine whether, in the board's view, the system as a whole is processing primarily in serial or primarily in parallel.

[00:15:52] Speaker 01:
The one difference noted by

[00:15:55] Speaker 01:
Your Honour, was the addition of on the serial processor, on the parallel processor, which we argue in the brief is a clarification or surplusage, and I think if we look at Appendix 9,

[00:16:08] Speaker 01:
The second paragraph on Appendix 9, where the board introduces the claim construction question, they point out that in the final sentence, our authorization referring to the order that provided the preliminary construction included an abbreviated version of the claim construction that follows.

[00:16:26] Speaker 01:
So the board itself is making clear it had no intent to radically change the claim construction from the preliminary construction, which Intel agreed to, and what it applied in the final written decision.

[00:16:38] Speaker 00:
And even though the board may have tweaked the construction here.

[00:16:43] Speaker 00:
I mean, it seems like it was right within the realm of the disputed issue that both parties briefed.

[00:16:49] Speaker 00:
Is that fair?

[00:16:50] Speaker 01:
I agree, Your Honor.

[00:16:51] Speaker 01:
And I think when we look at the board's application to the prior art, the extraneous issues potentially about the wording of some of the construction don't impact the board's analysis of the art.

[00:17:05] Speaker 00:
But in this case, you have a board construction that is

[00:17:08] Speaker 00:
slightly different but not radically different from what was proposed by the two parties on exactly the point that was in controversy and fully briefed by the two parties.

[00:17:18] Speaker 00:
And I'm not even sure the board needed to ask for supplemental briefing under those circumstances, but it did.

[00:17:23] Speaker 00:
Is there any evidence that the board refused to consider the supplemental briefing that was supplied?

[00:17:28] Speaker 01:
I don't believe there is, Your Honor.

[00:17:29] Speaker 01:
I think the board, in a belt and suspenders fashion, addressed the supplemental briefing argument and explained at Appendix 29 why the explanation provided by Intel of Nakaiya's operation, the alleged what happens at T7 or T8 or T9,

[00:17:51] Speaker 01:
The board said that was inconsistent with NICAYA.

[00:17:55] Speaker 01:
And the board said specifically that they believe that NICAYA contradicted the petitioner's description in two ways.

[00:18:08] Speaker 01:
This is at Appendix 29, where they begin with, even if the petitioner could rely on their brief to correct the petition, it does not do so, would not correct the petition.

[00:18:19] Speaker 01:
And in the paragraph beginning first, what the board says is, Nakaya's system is actually in parallel processing mode because it is executing, largely but not wholly, seven of eight processors in parallel.

[00:18:33] Speaker 01:
So the board has made a factual determination based on its review of Nakaya

[00:18:37] Speaker 01:
that the system is actually executing in parallel.

[00:18:41] Speaker 01:
It's not just configured to, it doesn't just have some number of processors, but it actually is configured to do that.

[00:18:48] Speaker 01:
And that finding was supported by substantial evidence.

[00:18:51] Speaker 00:
But I guess I was trying to get you to address the due process argument.

[00:18:57] Speaker 00:
So why don't you address that?

[00:18:59] Speaker 01:
Yes, Your Honor.

[00:19:02] Speaker 01:
This court has evaluated similar situations where a claim construction issue arose later in the trial after the institution decision.

[00:19:11] Speaker 01:
And I think one through line through those cases is the question of whether the board changed a previously determined construction that the parties had been relying on and then essentially changed theories midstream.

[00:19:24] Speaker 01:
There's no evidence of that here, because the board, as it said, did not construe this term, did not construe primarily, and the institution decision wasn't asked to.

[00:19:34] Speaker 01:
This issue came up during trial.

[00:19:36] Speaker 01:
It was addressed at the oral hearing.

[00:19:38] Speaker 01:
And then the board, eliminating any due process concern, gave the parties the opportunity to specifically brief this issue, including providing a preliminary construction which they ended up adopting.

[00:19:50] Speaker 01:
And so Intel has had,

[00:19:52] Speaker 01:
not only at the oral argument, which is what was the case in some of the courts at other cases like T.Q.

[00:19:57] Speaker 01:
Delta.

[00:19:58] Speaker 01:
In T.Q.

[00:19:59] Speaker 01:
Delta, the only discussion was at the oral hearing.

[00:20:01] Speaker 01:
Here, the board went further and provided an opportunity to provide briefing on the specific issue of claim construction

[00:20:08] Speaker 01:
And Intel made the choice to agree with the board's construction, the preliminary construction.

[00:20:15] Speaker 01:
They didn't have to make that choice, but they did.

[00:20:17] Speaker 01:
And now they have to live with the consequences of that.

[00:20:19] Speaker 01:
The board agreed that the petition was silent as to the application of that construction to the prior art.

[00:20:26] Speaker 00:
Well, I think one of the other things Intel argues in the due process challenge is that

[00:20:32] Speaker 00:
Somehow the board ultimately adopted a changed claim construction and it wasn't given an opportunity to explain how under that new construction the prior art continued to satisfy all the elements.

[00:20:47] Speaker 00:
Do you believe in an IPR that that is a necessary component for due process purposes, that a petitioner who did not succeed on their claim construction be given an opportunity to sort of amend the petition at that point and make arguments

[00:21:03] Speaker 00:
under the new construction as to why the patent claim would be invalid?

[00:21:09] Speaker 01:
I don't believe that's required, Your Honor.

[00:21:11] Speaker 01:
And I think we know that because it's clear from this court's precedent that the board is not required to adopt a construction proposed by one of the parties.

[00:21:19] Speaker 01:
The board may adopt their own construction.

[00:21:22] Speaker 01:
And if that's the case, then there will always be situations where in the final written decision, the construction differs slightly or significantly from the particular proposals that a party made.

[00:21:33] Speaker 00:
The issue is... Well, in fact, wouldn't it run headstrong into SAS if we were to adopt the position they want on due process, allow them to effectively amend their petition to now identify completely different pieces or different aspects of the prior art which satisfy

[00:21:50] Speaker 00:
which weren't possibly laid out in their original petition?

[00:21:53] Speaker 01:
I think it would allow petitioners to evade the one-year bar, certainly, or to evade the requirement that the board address all issues presented in the petition.

[00:22:02] Speaker 00:
But my question was, wouldn't it run headlong into SAS, the Supreme Court SAS decision, which says the petition governs the scope of the IPR?

[00:22:09] Speaker 00:
If they lose on their claim construction, would SAS permit the board to allow them then to effectively amend their petition

[00:22:19] Speaker 00:
to allege new or different aspects of prior art to satisfy under a new construction?

[00:22:24] Speaker 01:
It would not be permitted unless the board went through their process for allowing amendment, which did not happen here.

[00:22:29] Speaker 01:
But as a general rule, I would agree that would not be permitted.

[00:22:33] Speaker 01:
And so I think the question at the end of the day here is there does not seem to be a dispute about claim construction.

[00:22:40] Speaker 01:
If there was a change to claim construction to some degree, the board insulated itself by considering the supplemental brief and explaining why that was inconsistent with its determination of Micaiah as a factual matter.

[00:22:54] Speaker 01:
And that determination was based on an analysis of NICAYA.

[00:22:58] Speaker 01:
Proceeding the analysis of patentability in the briefing, the board walks through NICAYA, including the figure at issues.

[00:23:06] Speaker 01:
This is at Appendix 24.

[00:23:08] Speaker 01:
The board explains its interpretation of Figure 8 of NICAYA, which is the central piece of evidence.

[00:23:14] Speaker 01:
The board also noted at Appendix 22 that when reading Nikaya, this is the third paragraph down, the board interpreted Nikaya as executing jobs rather than instructions.

[00:23:26] Speaker 01:
And in Figure 8, it's a job that begins at this critical point at T6 to T7.

[00:23:31] Speaker 01:
So these are all factual determinations made by the board in its review of the prior art.

[00:23:36] Speaker 01:
which Intel has not shown were completely unsupported by substantial evidence or by the evidence that the board is entitled to its own reading of NICAYA, and Intel's disagreement is not a basis to set aside or to vacate the board's.

[00:23:53] Speaker 01:
And so then the due process question, I would submit, is effectively resolved if the court determines that there was no substantial or any change between the preliminary construction and the one that the board applied in the final written decision.

[00:24:11] Speaker 01:
Well, then there is no due process concern at all, because Intel was aware of the construction, advocated for it.

[00:24:18] Speaker 01:
and was granted it.

[00:24:20] Speaker 01:
And even if there was some change, Intel was on notice that there was this particular claim construction dispute that the board thought was critical to its analysis and was permitted the opportunity to brief it, which is what a petitioner or any party in an APA government proceeding is entitled to.

[00:24:38] Speaker 01:
And then finally,

[00:24:40] Speaker 01:
the board's analysis of that factual determination in the supplemental brief, considering the supplemental brief, despite finding it was not required to, it eliminates any need to set aside the judgment.

[00:24:53] Speaker 01:
And unless there are further questions from the panel, I'll end it there.

[00:24:58] Speaker 00:
Okay.

[00:24:58] Speaker 00:
Thank you very much.

[00:25:00] Speaker 00:
Mr. Meyer, I'll restore two minutes of rebuttal time.

[00:25:06] Speaker 04:
Thank you, Your Honor.

[00:25:08] Speaker 04:
I'll just make one quick point.

[00:25:10] Speaker 03:
Can I just ask you, when you were up here before, you said that even if we accept the board's conclusion, you argue that its decision on the kai isn't supported by substantial evidence in your brief.

[00:25:21] Speaker 03:
I don't really see that.

[00:25:22] Speaker 03:
I see you ask for a remand so the board can reconsider it.

[00:25:26] Speaker 03:
But I don't see where you ask for us to find a lack of substantial evidence under the board's construction.

[00:25:32] Speaker 04:
Not only did we ask this court to find a lack of substantial evidence, but what we asked this court to do under.

[00:25:40] Speaker 03:
Where?

[00:25:41] Speaker 04:
So under the reply brief, the gray brief.

[00:25:47] Speaker 03:
I'm not talking about the reply brief.

[00:25:49] Speaker 03:
I'm talking about this brief.

[00:25:50] Speaker 03:
The blue brief.

[00:25:51] Speaker 03:
You can't raise arguments for the first time in a reply brief.

[00:25:54] Speaker 04:
So at page 55 of the blue brief, it says, accordingly, because the board provided no substantial evidence to support its finding that Micaiah fails to satisfy the claim modes and the transition between those modes, and because XMTT did not even dispute that.

[00:26:10] Speaker 03:
But that's under the section that says,

[00:26:13] Speaker 03:
Nakaiya satisfied some modes under the correct claim constructions, which I interpret as being based upon your argument that the board's claim constructions were wrong and need to be corrected.

[00:26:25] Speaker 03:
What I'm asking is, accepting the board's claim constructions as they applied them, do you still have an argument that Nakaiya discloses that in the board's decision to the contrary lack substantial evidence?

[00:26:39] Speaker 04:
So that would run into the due process.

[00:26:41] Speaker 04:
So if you take the board's final written decision.

[00:26:44] Speaker 03:
Right.

[00:26:44] Speaker 03:
So the answer is there is not a section in the brief that said the board's decision regarding Micaiah lacks substantial evidence.

[00:26:52] Speaker 04:
Correct.

[00:26:53] Speaker 04:
The final written decision construction

[00:26:55] Speaker 04:
wasn't addressed by the petition or the supplemental briefing.

[00:27:00] Speaker 04:
What the supplemental briefing addressed was that intermediate construction before the final written decision.

[00:27:06] Speaker 04:
And because the construction changed, that's why we submit that there was a due process violation unless we're afforded an opportunity to respond.

[00:27:14] Speaker 00:
I know you're out of time, but you started by saying there's one point you wanted to address.

[00:27:18] Speaker 00:
I want to let you get to your one point very quickly.

[00:27:21] Speaker 04:
The only thing I would say is there was never a suggestion before the final written decision that the way you determine which mode the system was in is by counting up how many processors were configured as parallel as compared to how many were configured as serial.

[00:27:36] Speaker 04:
And that's the distinction that the board made at final written decision, appendix 27.

[00:27:41] Speaker 04:
Before that, it was just look at what the system is doing.

[00:27:45] Speaker 04:
And if you just look at Nakai at figure eight, at appendix 608, it's showing that the, or sorry, appendix 804,

[00:27:51] Speaker 04:
it's showing one processor between time T7 and T8 doing one instruction in serial.

[00:27:57] Speaker 04:
So I don't see how you can reconcile that with the 388 patents preferred embodiment, which always has more processors configured as parallel than as in serial, but the system can still be said to execute in serial because like NICAYA, the parallel processors are idle during that time.