[00:00:00] Speaker 03:
It's 191483 Polaris versus Hirschfeld.

[00:00:05] Speaker 03:
Mr. Phillips, we anticipate that we've covered the process threshold issues in the earlier case.

[00:00:12] Speaker 03:
So I assume you plan to start on the merits here.

[00:00:17] Speaker 03:
Is that fair?

[00:00:18] Speaker 00:
Yes, that is correct, Your Honor, unless Your Honors have additional questions about the termination issue, which I'd be happy to answer.

[00:00:27] Speaker 00:
Are Your Honors ready?

[00:00:29] Speaker 00:
Yes.

[00:00:29] Speaker 00:
OK, so the claim interpretation in this issue is also concerning the dependent claim.

[00:00:39] Speaker 00:
And the board erred interpreting language in claims 2 and 15 requiring, quote, a resource tag buffer arranged to store two things, which we can call A and B.

[00:00:52] Speaker 00:
That language means that there is a single buffer that stores both A and B. Maybe I'm misunderstanding what's at issue in this case.

[00:01:02] Speaker 03:
But your argument seems to be principally that buffer is singular.

[00:01:07] Speaker 03:
And you focus on that by arguing that there's one plain buffer rather than many.

[00:01:13] Speaker 03:
But it seemed to me, based on the board's decision, that that argument is beside the point.

[00:01:18] Speaker 03:
Because wasn't it the board's reasoning

[00:01:21] Speaker 03:
that there is more, not that there's more than one buffer, but rather that one buffer can exist at multiple disparate locations?

[00:01:31] Speaker 00:
That is part of what the board said, Your Honor.

[00:01:34] Speaker 03:
And your expert confirmed, kind of, or gave the board something to rely on when he said that a buffer need not be in one physical location.

[00:01:44] Speaker 03:
It can exist in disparate locations, correct?

[00:01:47] Speaker 00:
Dr. Shabilsky did say that, but the board latched on to only part of what he said and ignored the entirety of his testimony on this point.

[00:01:57] Speaker 00:
Dr. Shabilsky explained that in order for a structure to be considered a single buffer by one of ordinary skill in the art, it must be a unified structure, either logically or physically.

[00:02:12] Speaker 00:
And he explained that it need not be physically

[00:02:16] Speaker 00:
unified.

[00:02:18] Speaker 00:
In fact, that is extremely rare in the computer arts.

[00:02:21] Speaker 00:
The memory may be distributed and some portion of the buffer is here and this memory and some portion is over there.

[00:02:29] Speaker 00:
But at a higher level of abstraction, which is very common in the computer arts, these memory locations are treated like a single buffer.

[00:02:39] Speaker 00:
There's a logical unity to it.

[00:02:42] Speaker 04:
Didn't he say that the type of information they're storing

[00:02:46] Speaker 04:
The buffer would store the same type of information, albeit at different physical locations.

[00:02:51] Speaker 04:
And then it would be a buffer.

[00:02:54] Speaker 00:
Yes.

[00:02:54] Speaker 04:
And then the board said that the current state and the requested state are the same type of information.

[00:03:03] Speaker 04:
That's a factual matter.

[00:03:05] Speaker 00:
They are the same type of information.

[00:03:07] Speaker 04:
That's why there's- And so they said because they're the same type of information, the buffer is a single buffer.

[00:03:15] Speaker 04:
It's storing current state in some location and requested state at another location.

[00:03:20] Speaker 04:
So it's a buffer under the understanding of a buffer meaning that it only has to be logically connected.

[00:03:29] Speaker 00:
And that is a correct reading of the 505 patent.

[00:03:34] Speaker 00:
That is correct.

[00:03:36] Speaker 04:
But that's what I thought the board

[00:03:38] Speaker 04:
held, and I think it's a substantial evidence question at that point, about whether the prior art teaches a buffer that has both the current state and the request of the state, a resource tag buffer that has both of those tags.

[00:03:55] Speaker 00:
Well, the prior art, and we're talking specifically about the Chevelle reference as well as the Hughes reference.

[00:04:03] Speaker 04:
Can I interrupt you for a second?

[00:04:05] Speaker 04:
If we were to affirm lunch available, we don't have to recuse, right?

[00:04:10] Speaker 00:
Or vice versa, yes.

[00:04:13] Speaker 00:
OK.

[00:04:15] Speaker 00:
OK, so back to your question.

[00:04:18] Speaker 00:
I believe this is a claim construction question.

[00:04:22] Speaker 00:
What the board went wrong is looking at these references where there are admittedly two different logical structures that store current state information and requested state information and considered that to be one logically unified buffer.

[00:04:42] Speaker 04:
You've already agreed that current state information and requested state information are the same type of information, right?

[00:04:49] Speaker 00:
In the 505 patent, they are.

[00:04:52] Speaker 00:
In the references, though, they are not.

[00:04:55] Speaker 00:
In Chevelle, for example, there is processing that needs to be done to enable a comparison between the two.

[00:05:04] Speaker 00:
And the same is true in Hughes.

[00:05:07] Speaker 04:
And that's why- Is that a plain construction question or a question of fact?

[00:05:11] Speaker 00:
Well, at that point, that's a question of interpreting the references.

[00:05:16] Speaker 04:
So it's a question of fact.

[00:05:17] Speaker 04:
At that point.

[00:05:18] Speaker 04:
That we would review for substantial evidence, right?

[00:05:21] Speaker 04:
At that point.

[00:05:21] Speaker 00:
Yes.

[00:05:22] Speaker 00:
But again, I think the board went off the rails here and got it wrong when they assumed or determined that as a matter of claim construction, a buffer could be just anything, any structure that stores the same type of information.

[00:05:40] Speaker 00:
There's more to it than that.

[00:05:42] Speaker 00:
it has to be logically unified.

[00:05:44] Speaker 00:
And logical unity requires more than just storing the same type of information.

[00:05:50] Speaker 00:
I mean, you can store the same type of information in two different buffers.

[00:05:56] Speaker 00:
That is a possibility.

[00:05:57] Speaker 00:
That is not the way that the 505 patent describes the invention.

[00:06:03] Speaker 00:
But that's the error that the board made, assuming that

[00:06:08] Speaker 00:
Structure aside, if it stores the same type of information anywhere, anyhow, it's a single buffer.

[00:06:16] Speaker 00:
And that is not what Dr. Shabilsky said.

[00:06:18] Speaker 00:
That is not what the 505 patent describes.

[00:06:22] Speaker 00:
And that is an incorrect plane construction.

[00:06:25] Speaker 02:
So what is the correct plane construction?

[00:06:28] Speaker 00:
Well, as Dr. Shabilsky said, it is a

[00:06:34] Speaker 00:
a single, he said a structure, I think he said a small to medium sized structure that stores information and in order to be a single buffer it has to be either logically unified or physically unified and logical.

[00:06:52] Speaker 02:
My understanding of your blue brief was

[00:06:54] Speaker 02:
it all had to be in the same structure, the same physical structure.

[00:07:01] Speaker 02:
Is that a misunderstanding of your blue brief?

[00:07:03] Speaker 02:
I'm actually trying to scan through your blue brief and try to figure out what is the articulation you're pushing for as the right claim construction and having problems finding it.

[00:07:18] Speaker 00:
Where would that be in the blue brief?

[00:07:20] Speaker 00:
Sure.

[00:07:21] Speaker 00:
And while I find that, it is not just physically unified.

[00:07:27] Speaker 00:
It could be logically unified.

[00:07:29] Speaker 00:
But perhaps what is confusing here is that the types of block diagrams we have with these types of inventions is always at a logical level.

[00:07:39] Speaker 00:
The physical implementation of how things are stored in memory is abstracted away.

[00:07:45] Speaker 02:
I know that's your gray brief argument.

[00:07:47] Speaker 02:
I was having trouble finding that in your blue brief.

[00:07:50] Speaker 00:
OK, let me spot that for you.

[00:07:56] Speaker 00:
I believe that starts at page 40.

[00:08:23] Speaker 00:
and continues on the next several pages.

[00:08:30] Speaker 02:
Do you have a sentence or maybe two sentences that just tell me what you wanted the claim construction to be that the board did not adopt?

[00:08:47] Speaker 00:
Maybe the most helpful thing I can point you to is appendix page 1222 through 1223, paragraph 38 of Dr. Shabilski's declaration.

[00:09:02] Speaker 04:
But what about in your blue brief?

[00:09:03] Speaker 04:
Where in your blue brief will we see what claim is up in U.S.

[00:09:07] Speaker 00:
military law?

[00:09:12] Speaker 00:
Page 29, Your Honor.

[00:09:16] Speaker 00:
This is where we cite to Dr. Schabowski's testimony.

[00:09:20] Speaker 00:
And the question is not just what is a buffer, but what is the claim phrase at issue?

[00:09:28] Speaker 04:
A resource tag buffer arranged to store A and B. So you said several times that your expert said that logical unity involves storing one or more values of the same type.

[00:09:38] Speaker 04:
But that's not enough.

[00:09:40] Speaker 04:
There needs to be more.

[00:09:40] Speaker 04:
So what is, I'm still having hard time understanding what additionally is required.

[00:09:46] Speaker 00:
What additionally is required is that at the logical level, which is abstracted up from the physical level, I know this sounds circular, but it's really an intuitive concept that it's logically one structure.

[00:10:03] Speaker 04:
So it's not enough that the data be of the same type?

[00:10:08] Speaker 00:
It necessarily has to be.

[00:10:09] Speaker 04:
Instead, there has to be some sort of, it feels a little nebulous, to be honest with you.

[00:10:13] Speaker 04:
some sort of requirement that it's, what did you say?

[00:10:16] Speaker 00:
Logically unified.

[00:10:19] Speaker 04:
What does that mean?

[00:10:20] Speaker 00:
I think the easiest way to envision this in this type of technology is when you're looking at the typical block diagram, which is always at a logical level.

[00:10:30] Speaker 00:
If it's shown as one block, it is logically unified.

[00:10:33] Speaker 00:
If it's shown as two different blocks,

[00:10:35] Speaker 00:
It is logically, they are logically distinct.

[00:10:39] Speaker 00:
It's as simple as that.

[00:10:41] Speaker 04:
It's not in his testimony, nor is it in your specification.

[00:10:45] Speaker 00:
Nor is it in the blue brief.

[00:10:47] Speaker 00:
It's in your gray brief.

[00:10:49] Speaker 00:
Responding to the office's arguments, yes.

[00:10:56] Speaker 00:
But if you look at this patent, the 505 patent, every time it refers to the resource tag buffer, there is one block.

[00:11:03] Speaker 00:
It's numbered 114 in all the drawings.

[00:11:06] Speaker 00:
It's a single entity.

[00:11:09] Speaker 04:
So I should never read a block in a patent to mean that maybe there's blocks within that block?

[00:11:14] Speaker 00:
There may be blocks within that block, but it's still a block at some level that is unified at some point.

[00:11:21] Speaker 04:
So it really goes to how the person who's drawing

[00:11:26] Speaker 04:
the drawings and the pattern draws out.

[00:11:29] Speaker 00:
And the references, when they mean to signal that something is the same structure, logically, it's drawn as one block.

[00:11:37] Speaker 00:
If not, it's drawn as two different blocks.

[00:11:39] Speaker 00:
Yes.

[00:11:41] Speaker 00:
It's really not any more difficult than that.

[00:11:45] Speaker 00:
Unless there are further questions, I'll yield the rest of my time.

[00:11:55] Speaker 01:
Good morning.

[00:11:55] Speaker 01:
Good morning.

[00:11:56] Speaker 01:
Your Honors, and may it please the court.

[00:11:58] Speaker 01:
I understand that the termination issue wasn't addressed in the opening, so it's not within the scope of my reply here.

[00:12:03] Speaker 01:
But I am happy to address any lingering questions.

[00:12:05] Speaker 02:
Quick question, procedurally.

[00:12:08] Speaker 02:
How many cases are there that you're aware of that are like this, that are in this kind of post-Supreme Court, Arthrex world, where a final written decision had been vacated by us, but then got brought back to life by the Supreme Court, Arthrex decision, and then somebody wants to, nevertheless, they wanted to terminate the proceeding, and then the board refused to terminate the proceeding,

[00:12:34] Speaker 02:
I'm just trying to figure out is this situation a one-off, a one-timer, or are there actually a whole basket of cases that have this same issue, the same dispute between the PTO and a patent owner?

[00:12:47] Speaker 01:
So out of the approximately 100 cases that got remanded post this court's 2019 Arthrex decision, I'm aware of the four cases that Polaris's counsel has pointed out where a joint motion to terminate was filed and it was granted.

[00:13:02] Speaker 01:
And then there's the four cases, the two Polaris and then the Aristocrat and the Apotex cases where a joint motion was to terminate was filed and not granted.

[00:13:13] Speaker 01:
And the difference between those is the PTO's involvement and intervention on the merits of the appeal before the 2019 Arthrax decision.

[00:13:23] Speaker 01:
So we're really talking about just four cases on one side, four cases on the other.

[00:13:28] Speaker 03:
So is your answer to Judge Chen, this is it?

[00:13:31] Speaker 01:
This should be it, because as Polaris's counsel mentioned, the Apotex case has gone through this court.

[00:13:37] Speaker 01:
I believe there's the Aristocrat case.

[00:13:39] Speaker 01:
clearly the option to raise that in their opening brief.

[00:13:41] Speaker 01:
But my understanding is that has not been filed yet.

[00:13:44] Speaker 01:
So if anything, there should be one case left.

[00:13:48] Speaker 01:
And I think that the weight of the side shows you that this case is really more like all the other 90 plus cases where the final written decision in the proceedings was not terminated.

[00:14:01] Speaker 01:
The real outlier is kind of the four cases where the board did terminate the final written decision on remand

[00:14:08] Speaker 01:
So that's kind of the distinction there.

[00:14:10] Speaker 01:
But yes, this is a very kind of unique minor issue.

[00:14:16] Speaker 01:
Thanks.

[00:14:16] Speaker 01:
And if I can make one clarification with respect to the final resolution, and there was some discussion about the finality, there is the ministerial act of terminating the petitioner, as Judge Shull mentioned, was required under 317.

[00:14:28] Speaker 01:
So that is still kind of the outstanding

[00:14:32] Speaker 01:
action ministerially that the Patent Office needs to take but substantively the board did address the pending motion.

[00:14:43] Speaker 01:
I think it's just a matter of jurisdiction.

[00:14:45] Speaker 01:
So once CERT was granted, it passed at the Supreme Court.

[00:14:49] Speaker 01:
Then it was requested for direct review.

[00:14:51] Speaker 01:
The director did not use the discretion.

[00:14:54] Speaker 01:
Mr. Hirschfeld did not use his discretion.

[00:14:56] Speaker 01:
It came back to this court.

[00:14:58] Speaker 01:
So as we mentioned in our brief, we're happy to do that action when it comes back.

[00:15:02] Speaker 03:
I'll just mention to Mr. Phillips that since we've been talking about matters that he didn't raise initially,

[00:15:09] Speaker 03:
His rebuttal time will give him sufficient time to respond to the extent he wishes to.

[00:15:14] Speaker 01:
Thank you.

[00:15:16] Speaker 01:
Turning to the merits of the argument, the board properly construed the term resource tag buffer to be defined by the resource tags it stored without any requirement for additional physical or logical unity.

[00:15:30] Speaker 01:
And this construction is consistent with both the intrinsic and extrinsic record.

[00:15:34] Speaker 01:
I think the kind of physical unity requirement is now off the table.

[00:15:38] Speaker 01:
That's been conceded.

[00:15:39] Speaker 01:
There's no requirement for a physical continuity between the buffers.

[00:15:44] Speaker 01:
So we're kind of left with this argument that a single buffer must be one that's logically united.

[00:15:49] Speaker 01:
But the board already really found a logical connection in that it's defined by the resource tags it's stored.

[00:15:57] Speaker 01:
There's simply no support claim construction-wise for Polaris's assertion of some

[00:16:02] Speaker 01:
additional logical unity.

[00:16:04] Speaker 01:
And in fact, as this Court has recognized, it's really hard to define what exactly it is requiring.

[00:16:10] Speaker 01:
With respect, as Your Honor.

[00:16:12] Speaker 02:
So anywhere that a resource tag is stored, wherever that may be, that's going to be considered a portion of the overall resource tag buffer?

[00:16:22] Speaker 02:
And that's it?

[00:16:23] Speaker 02:
That's all we have to think about?

[00:16:25] Speaker 01:
So within the broad language of Claim 2, it has to also be within a buffer, which is temporary storage, so not permanent storage.

[00:16:33] Speaker 01:
It also has to be within the universal controller, so it can't be in some other portion.

[00:16:38] Speaker 01:
And it also has to be, I believe, coupled to what they call

[00:16:43] Speaker 01:
I couldn't get the exact claim language.

[00:16:45] Speaker 01:
But it has to be coupled to another portion.

[00:16:49] Speaker 01:
And so there are some additional limitations.

[00:16:52] Speaker 01:
But the claim language, yes, Your Honor, is very broad in that it defines resource tag buffer as something that just stores resource tags.

[00:17:01] Speaker 01:
And that's consistent with, I think, Polaris' reply brief that pages.

[00:17:04] Speaker 02:
There isn't anything in the intrinsic evidence that really spills that out for me.

[00:17:08] Speaker 02:
I mean, the strongest thing, it seems to be Polaris' expert statement.

[00:17:13] Speaker 02:
in his declarations about what does logical unity mean about storing values of the same type?

[00:17:21] Speaker 01:
So with respect to the intrinsic evidence, I think the strongest argument would be the fact that the spec only ever refers to a resource tag buffer by what it stores.

[00:17:31] Speaker 01:
Indeed, figure 1B and 1D, that box does not label resource tag buffer.

[00:17:38] Speaker 01:
It's labeled resource tags.

[00:17:40] Speaker 01:
It's defining that buffer by what it stores.

[00:17:43] Speaker 01:
And so that is the intrinsic evidence supporting that that is the only limiting definition.

[00:17:48] Speaker 01:
of buffer, in addition to the plain and ordinary meaning that it has to be temporary storage.

[00:17:53] Speaker 01:
Now, the board, in its obvious analysis, did an analysis both under its construction and Polaris's construction.

[00:18:01] Speaker 01:
There is no dispute that if this court agrees with the board's construction, the claims are obvious.

[00:18:06] Speaker 01:
But the board went further and said, even if there's some requirement for some additional logical unity, the claims meet that.

[00:18:14] Speaker 01:
And that's supported by the prior art meets that.

[00:18:17] Speaker 01:
And that's supported by substantial evidence, which is the prior art itself and its discussion of the fact that it compares in both the Chevelle and the Hughes references.

[00:18:29] Speaker 01:
It talks about the fact that it compares these resource tags in, for example, Hughes has a logic and compare machine where it compares those.

[00:18:40] Speaker 01:
And Dr. Trevednik said, because the prior art says that it's comparing these resource tags from two different physical locations, that means those locations are logically united so as to be one buffer.

[00:18:53] Speaker 01:
Dr. Prisbilski's response, or he actually didn't submit a declaration in response to that.

[00:18:58] Speaker 01:
So we just have Dr. Prisbilski's testimony that neither Hughes or Chevelle really show any logical unity.

[00:19:06] Speaker 01:
And that's pretty much it.

[00:19:07] Speaker 01:
There's no citation.

[00:19:09] Speaker 01:
There's no addressing the logic and compare machine.

[00:19:12] Speaker 01:
He just says they're probably not the same format of data.

[00:19:17] Speaker 01:
And so the board was correct in relying on the actual statements of the references and Dr. Trudednick's analysis of those as substantial evidence to support its determination versus Dr. Prisvilsky's

[00:19:31] Speaker 01:
more conclusionary expert testimony that there's no logical unity without any support.

[00:19:37] Speaker 01:
If I could just briefly address the kind of boxes theory, as this court has recognized, that wasn't in Dr. Prisbilski's testimony.

[00:19:45] Speaker 01:
It also wasn't in the brief.

[00:19:47] Speaker 01:
But also I think it's important to note that it actually contradicts Dr. Prisbilski's testimony.

[00:19:52] Speaker 01:
At Appendix 1087, which is his deposition testimony, he was asked whether, if you had a figure that showed multiple boxes of, I think they're called page registers,

[00:20:04] Speaker 01:
in a row and they each store a resource tag, would those multiple boxes be considered one resource tag buffer?

[00:20:12] Speaker 01:
And he said yes.

[00:20:13] Speaker 01:
And he was asked, how would you know when multiple boxes would be or would not be a resource tag buffer?

[00:20:19] Speaker 01:
And he said, by what they store and how they're used.

[00:20:23] Speaker 01:
And that is entirely consistent with the board's construction and also consistent with how they interpreted the prior art.

[00:20:29] Speaker 02:
You said 1087?

[00:20:30] Speaker 01:
Yes.

[00:20:31] Speaker 01:
That's Appendix 1087, which is Dr. Prisbilski's deposition testimony.

[00:20:35] Speaker 01:
And Dr. Tredetnik also addressed this multiple box theory at Appendix 1147.

[00:20:43] Speaker 01:
I hope your honor needs some more information on that.

[00:20:48] Speaker 01:
Unless your honors have further questions, I'm more than happy to cede the rest of my time.

[00:21:12] Speaker 00:
I have nothing further unless your honors have other questions.

[00:21:18] Speaker 03:
Thank you.

[00:21:18] Speaker 03:
Thank you.