[00:00:00] Speaker 01:
We have four argued cases this morning.

[00:00:03] Speaker 01:
The first is number 18, 1831, Polaris Innovations Limited versus United States.

[00:00:12] Speaker 01:
And I'm going to try this.

[00:00:16] Speaker 01:
Ms.

[00:00:16] Speaker 01:
Tadziminovic?

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

[00:00:18] Speaker 01:
Really?

[00:00:19] Speaker 01:
OK, good.

[00:00:20] Speaker 03:
May it please the court.

[00:00:22] Speaker 03:
Azra Hadzimahmedovic on behalf of Polaris Innovations Limited from the integrity law group.

[00:00:30] Speaker 03:
I would like to try to cover three separate issues today, one of them being the erroneous board's claim construction, the second one being if this court reverses that erroneous claim construction, then Lee, the prior art reference, does not disclose

[00:00:51] Speaker 03:
that the copies of the incoming clock signal generated by the regeneration circuit are of the same frequency under the correct construction as the incoming clock signal.

[00:01:05] Speaker 03:
And finally, provided I have time, I would like and hope to cover why Lee also does not render obvious the copying of the command and address signals

[00:01:18] Speaker 03:
by the register.

[00:01:19] Speaker 03:
For that third issue, it is important because whether the court reverses or not the board's construction, which we hope the court will do, this third issue about the copying of the command and address signals is sufficient for the court to reverse the obviousness determination.

[00:01:35] Speaker 03:
Because if that limitation is not obvious, then there is no obviousness by a leak.

[00:01:41] Speaker 03:
I will begin.

[00:01:42] Speaker 04:
Do you agree that we do not have to address the claim construction argument if we assume your construction for purposes of addressing Lee and the obviousness issue on appeal?

[00:01:57] Speaker 03:
If I understand your question, Your Honor, the board did address Lee both under the correct and incorrect construction.

[00:02:06] Speaker 04:
But you're saying the correct construction being your construction.

[00:02:09] Speaker 03:
Correct.

[00:02:09] Speaker 03:
The correct construction is the construction that the copies that go to the register

[00:02:17] Speaker 03:
have the same frequency as the copies that go to the memory chips.

[00:02:22] Speaker 03:
So the frequency of the copies going to both elements, the memory chips and going to the register, have the same frequency.

[00:02:35] Speaker 03:
That is required by the claim language, the persecution history, and so on.

[00:02:39] Speaker 04:
So if we assume that for applicable construction, do you agree we do not need to reach

[00:02:44] Speaker 04:
the claim construction issue.

[00:02:46] Speaker 04:
Would you agree with that statement that I made?

[00:02:48] Speaker 03:
I would agree that the court could agree with our premise and then just go to the Lee discussion about the disclosure and see whether that is disclosed or not.

[00:03:00] Speaker 03:
However, we hope that the court would correct the construction because we do think it is incorrect.

[00:03:07] Speaker 03:
It's clearly incorrect based on both the claim language and the prosecution history.

[00:03:14] Speaker 03:
I'll briefly touch on why the board's construction is incorrect and move on to the second and third issues.

[00:03:21] Speaker 03:
I'll focus on two key issues.

[00:03:23] Speaker 03:
One is the claim language.

[00:03:25] Speaker 03:
It states the same term.

[00:03:27] Speaker 03:
the copies of the incoming clock signal four times.

[00:03:32] Speaker 03:
And only the third time that term appears, the board decided it gave it a different meaning, that it can be the same or a different frequency that is being generated when it's being copied.

[00:03:45] Speaker 03:
That is contrary to the presumption that the very same term in the same claim has the same meaning.

[00:03:52] Speaker 03:
This is the presumption under this court's precedent.

[00:03:56] Speaker 03:
Now, the presumption can be overcome, but there has to be clear specification or clear prosecution history evidence to rebut the presumption that we think holds that the same term

[00:04:10] Speaker 03:
the copies of the incoming clock signal have the same meaning all throughout.

[00:04:14] Speaker 03:
So the frequency that is being generated through the copies is the same.

[00:04:18] Speaker 03:
Here, not only is the presumption not rebutted, but both the specification and the prosecution history, and the prosecution history in particular.

[00:04:27] Speaker 01:
I suppose in terms of BRI, which is the standard revealing

[00:04:32] Speaker 01:
within this case, that it is possible to construe that language, the copies of the incoming clock signal having the same frequency as the incoming clock signal, as referring to the copies sent to the memory chips, right?

[00:04:53] Speaker 03:
The copies sent to the memory chips, everyone agrees, have the same frequency.

[00:04:57] Speaker 01:
We do think it is.

[00:04:59] Speaker 01:
having the same frequency could be interpreted as applying to the copy sent from memory chips, only for those copies.

[00:05:08] Speaker 01:
Respectfully, Your Honor, if we look at the prosecution history from which this particular claim in which- No, but before we get to the prosecution history, just in terms of the language on the face of the claims, that's a conceivable construction, right?

[00:05:23] Speaker 01:
It's a possible construction.

[00:05:27] Speaker 03:
We do not think it's a reasonable construction.

[00:05:29] Speaker 03:
There is the antecedent basis.

[00:05:32] Speaker 03:
So you're looking at the limitation where the memory chips copies are stated.

[00:05:38] Speaker 03:
If you look at the following limitation, it says one of the copies

[00:05:42] Speaker 03:
One of the copies comes from the very same component, the regeneration circuit.

[00:05:47] Speaker 03:
That regeneration circuit creates both the copies that go to the memory chips and the copies that go to the register.

[00:05:55] Speaker 03:
The same component.

[00:05:57] Speaker 03:
And the claim states those copies

[00:06:01] Speaker 03:
In the claim limitation for the regeneration circuit, when it talks about the copies that regeneration circuit creates, whether to memory chips or the circuit, it says they have, in the definitional language, the same frequency.

[00:06:15] Speaker 03:
If I may quickly jump to the prosecution history, if there is any doubt about the claim language, and we don't think there is, the prosecution history clearly states multiple times

[00:06:25] Speaker 03:
at appendix 587 and 588, that the entire module, and the entire module means the register and the regeneration circle, the entire applicant's module does not modify the frequency.

[00:06:40] Speaker 03:
On 587, it also says that the frequencies are identical across the entire module.

[00:06:50] Speaker 03:
And the memory module is the whole thing, which includes the register and the regeneration circuit.

[00:06:54] Speaker 03:
So we do believe that the prosecution history is this positive as to the question of why the copies on the whole module have to remain at the same frequency.

[00:07:06] Speaker 03:
I will just briefly touch on, actually, the petitioner's own expert admitting to this in reading the claim from the previous limitation to the next.

[00:07:17] Speaker 03:
At appendix 997, 126.6223, specifically saying, having looked at the above limitation, I agree that the frequency is the same for the copies that go to the register.

[00:07:28] Speaker 03:
I'll move on to that.

[00:07:30] Speaker 03:
Next issue, address it briefly.

[00:07:33] Speaker 03:
If the court agrees that the frequency throughout the module has to remain the same, then Lee does not disclose having the incoming clock signal copy that is supplied to the register at the same frequency.

[00:07:51] Speaker 03:
The Green Brief admits that the petitioner only had the argument about disclosure, not obviousness for this limitation.

[00:08:00] Speaker 03:
And when we look at the disclosure, the only disclosure the court will see in Lee is expressly of half the frequency.

[00:08:08] Speaker 03:
Everywhere, it is called the WCLK.

[00:08:11] Speaker 03:
divided by 2.

[00:08:13] Speaker 03:
Figure 4 at 745, Appendix 755 at 535 to 41.

[00:08:20] Speaker 03:
Both parties look at the same specs sites and the same figure.

[00:08:26] Speaker 03:
Repeatedly only expressly WCLK over 2, which is half the frequency in Li.

[00:08:33] Speaker 03:
The board tried to save

[00:08:35] Speaker 03:
this argument by looking at a broken claim, claim 31.

[00:08:40] Speaker 03:
Claim 31 states that frequency can be x over n, n being an integer.

[00:08:46] Speaker 03:
We've shown that n cannot be an integer because if it's 0,

[00:08:50] Speaker 03:
It's inoperable.

[00:08:51] Speaker 03:
But moreover, we point the court.

[00:08:54] Speaker 01:
Well, that would suggest you wouldn't construe it to include zero, right?

[00:08:57] Speaker 03:
Correct.

[00:08:58] Speaker 03:
And this is prior art.

[00:09:00] Speaker 03:
And prior art, according to this court's precedent, states that the claim

[00:09:09] Speaker 03:
does not decide and describe what is described in the entire patent.

[00:09:14] Speaker 03:
It is the specification, and this is in rebannel and pointing glass.

[00:09:20] Speaker 03:
It's the specification that discloses only what is described in the patent.

[00:09:25] Speaker 03:
So we should not rely on a broken claim for a disclosure that is really not within the scope

[00:09:33] Speaker 03:
of the specification.

[00:09:35] Speaker 03:
And there is a reason for it, too.

[00:09:37] Speaker 03:
The petitioner's expert actually showed the reason.

[00:09:40] Speaker 03:
The reason is that Lee is interested in saving power.

[00:09:44] Speaker 01:
We can't look to the claims of the prior art to see what it discloses?

[00:09:49] Speaker 03:
Inri Beno and Corning Lee say that we have to find the description in the specification.

[00:09:57] Speaker 01:
Do they say you can't look at the claims?

[00:10:00] Speaker 03:
They don't say you cannot look at the claims.

[00:10:03] Speaker 03:
The claims are part of the specification, absolutely.

[00:10:07] Speaker 03:
But they do not increase what is covered by the patent if that same thing is not described in the patent.

[00:10:15] Speaker 03:
And Corning Glass and Rebay Note say this.

[00:10:19] Speaker 03:
You have to find the description in the patent.

[00:10:21] Speaker 03:
There is no description that this is actually disclosed in the patent.

[00:10:25] Speaker 03:
I am now in my rebuttal time.

[00:10:27] Speaker 04:
Let me ask you one other question, though.

[00:10:28] Speaker 04:
Do you agree that the half-frequency signal is merely one embodiment?

[00:10:34] Speaker 03:
We do not agree with that, because it is really the only thing that is disclosed in the patent repeatedly.

[00:10:44] Speaker 03:
And because we are looking at a prior art,

[00:10:49] Speaker 03:
The prior art has to disclose it.

[00:10:51] Speaker 03:
There isn't an embodiment that discloses full frequency.

[00:10:55] Speaker 03:
If you're looking at the prior art to invalidate, you actually have to find that disclosure of the equal frequency exists.

[00:11:02] Speaker 03:
It does not exist in Lee.

[00:11:08] Speaker 04:
And you think that it does not exist in terms of when you're looking at the claims.

[00:11:12] Speaker 04:
I think this kind of adds onto the discussion you were having with Judge Dyke.

[00:11:16] Speaker 03:
We do think, Your Honor, that that claim is simply broken and that there is no support in the specification in the description in the patent that says that you would in Lee do x over 1, which would give you the same frequency.

[00:11:34] Speaker 03:
Claim 31 sets forth potential fractions.

[00:11:37] Speaker 03:
The only fraction that's disclosed is x over 2, the half frequency.

[00:11:43] Speaker 03:
And that's all that is in Lee.

[00:11:44] Speaker 03:
And their own expert said Lee purposely chose the half frequency because it wanted to save power.

[00:11:53] Speaker 03:
It is not concerned with what the 150 polaris plan is concerned with, which is synchronization.

[00:12:01] Speaker 03:
So with different purposes in mind, this purposely chose x over 2.

[00:12:07] Speaker 00:
So are you arguing that there's a difference in the claims in Lee with the embodiment in the specification?

[00:12:15] Speaker 03:
Very much so, Your Honor.

[00:12:17] Speaker 03:
The claim, if read just with its own terms, could potentially cover x over 0, which is inoperable, x over 1, x over 2.

[00:12:26] Speaker 03:
But there is nothing in this particular Lie prior reference that tells us that x over 1 would work.

[00:12:33] Speaker 03:
that it's described at all, that it's at all within the purpose of the lead priori reference.

[00:12:39] Speaker 00:
So what are you saying?

[00:12:41] Speaker 00:
Are we to give more weight to the written description as opposed to the claims?

[00:12:49] Speaker 03:
We do believe that Ingres Beno and Corning Glass say that we would have to find the description of the same frequency, x over 1, within the scope of the specification.

[00:13:02] Speaker 03:
We do not see it in the specification.

[00:13:04] Speaker 03:
We see a suggestion in a broken plane.

[00:13:08] Speaker 03:
But it's not described.

[00:13:09] Speaker 03:
It's not teaching one of the ordinary skills to use it.

[00:13:12] Speaker 03:
And in fact, their expert tells us, I would think you wouldn't use it in the scope of Li, because in Li, I wanted to half the frequency, because I want to purposely save the power.

[00:13:24] Speaker 00:
That is their own expert.

[00:13:25] Speaker 00:
So if we encounter any type of material difference

[00:13:30] Speaker 00:
and what's in the written description as opposed to the claims, then you're saying we should ignore the claim.

[00:13:41] Speaker 03:
We don't always ignore the claim.

[00:13:43] Speaker 03:
The claims are part of the specification.

[00:13:46] Speaker 03:
But in this case, we do have to find a description

[00:13:50] Speaker 03:
of what that claim covers in the prior reference.

[00:13:54] Speaker 03:
No one can find it.

[00:13:55] Speaker 03:
It is not in the scope of the specification.

[00:13:58] Speaker 03:
And the specification teaches only using the half frequency for a particular purpose that their expert stated exists.

[00:14:12] Speaker 01:
OK, we'll give you two minutes for history here.

[00:14:13] Speaker 01:
Thank you.

[00:14:14] Speaker 02:
Thank you, Your Honor.

[00:14:15] Speaker 02:
It may please the court.

[00:14:16] Speaker 02:
Peter Ayers on behalf of the United States Patent and Trademark Office.

[00:14:19] Speaker 02:
As the board recognizes, if this court finds that the Lee reference teaches a copy of the clock signal that's the same as the frequency of the incoming clock signal, it renders the claim construction issue moot.

[00:14:37] Speaker 02:
I'm happy to discuss that.

[00:14:39] Speaker 02:
But I think given the questions, I would like to focus first off on what Lee teaches.

[00:14:46] Speaker 02:
And I think we, Pleris wants to focus so much on the claims, but actually I want to refer the court to what Lee actually teaches.

[00:14:55] Speaker 02:
And this is at APPX 752, where it's describing figure four,

[00:15:02] Speaker 02:
in this clock regeneration circuit that's disclosed in Lee.

[00:15:07] Speaker 02:
And what it says is, figure four also illustrates how the WC clock signal received at the PLL can be used to regenerate a local WCLK signal.

[00:15:25] Speaker 02:
It refers to it generically as a local WCLK signal.

[00:15:32] Speaker 02:
So I think, first of all, the premise for Polaris' argument that there's only teaching in the claims is just incorrect.

[00:15:41] Speaker 02:
We think that Lee teaches in the board found at APPX 26 that not only the claims, but also the specification of Lee itself describe more broadly

[00:15:54] Speaker 02:
a copy of the W clock signal.

[00:15:57] Speaker 02:
And then with respect to the claims itself, Claris wants to focus on claim 31.

[00:16:04] Speaker 02:
But what I would further court to is claim 30, from which it depends.

[00:16:08] Speaker 02:
And again, what we see there is the copy of the clock signal described more and claimed more generally.

[00:16:16] Speaker 02:
It says,

[00:16:17] Speaker 02:
quote, regenerating an additional data write clock signal from said received data write clock signal.

[00:16:25] Speaker 02:
That's the WCLK signal.

[00:16:28] Speaker 02:
Again, referring generically to it as just an additional data write signal, not half the frequency, just a copy of that signal.

[00:16:39] Speaker 02:
And then in claim 31, to even drive that point home further, that this additional data write signal could be

[00:16:47] Speaker 02:
a different frequency, it says, oh, but it can also be a fraction of the frequency of that original data right signal.

[00:16:56] Speaker 02:
And then it gives a generic formula for that of x over n, where x is the frequency of the incoming clock signal and n is an integer.

[00:17:06] Speaker 02:
We know that Lee describes n equals 2, and all the board set is

[00:17:10] Speaker 02:
N equals 1 is sort of the base case.

[00:17:13] Speaker 02:
So we think that the board's decision is clearly supported by substantial evidence.

[00:17:19] Speaker 01:
Does the record show us anything about the frequency of the clock signals in this technology?

[00:17:26] Speaker 02:
No, it does not, Your Honor.

[00:17:27] Speaker 02:
And that is part of the challenge the board face in this case, is the word frequency does not appear at all in the 150 patent, if that is what you're referring to as opposed to Lee.

[00:17:39] Speaker 02:
But the 150, the Polaris patent, as originally drafted, doesn't use the word frequency at all.

[00:17:47] Speaker 02:
And it talks instead about multiplying the clock signals, which is what kind of led to this confusion, and then an amendment that was added seemingly to clarify that multiplying didn't mean changing the frequency, but in the process introduced what we think is sort of a latent ambiguity about this one additional clock signal.

[00:18:11] Speaker 02:
And on that point, Your Honor, we do think that the board's construction is both reasonable and certainly broader than Polaris's.

[00:18:21] Speaker 00:
So we assume that when we read the word single, as in clock single, we're also talking about its frequency.

[00:18:29] Speaker 02:
Yes, Your Honor.

[00:18:30] Speaker 00:
It hasn't any.

[00:18:33] Speaker 00:
Show me the authority to that.

[00:18:35] Speaker 02:
In the Player's 150 patent?

[00:18:38] Speaker 02:
Yes.

[00:18:38] Speaker 02:
Well, I think, as my friend suggested, that the word frequency was introduced in the prosecution history itself.

[00:18:48] Speaker 02:
And if we turn to that.

[00:18:51] Speaker 02:
Assuming I can find it here.

[00:18:55] Speaker 02:
Starting at APPX 586, you see the remarks associated with the amendments.

[00:19:04] Speaker 02:
And that's where they talk about the frequency of these copies.

[00:19:10] Speaker 02:
But as we pointed out in our brief,

[00:19:13] Speaker 02:
This was a bit like two ships passing in the night, because what they were focused on was the copies that were, quote unquote, multiplied.

[00:19:23] Speaker 02:
And the only signals that are multiplied in the 150 pattern are the signals that are going to the memory chips.

[00:19:32] Speaker 02:
And so the focus there was on preserving the frequencies of those signals, both the clock signals and the command and address signals that were

[00:19:41] Speaker 02:
supply to the memory chips and That's what the claim reflects it reflects that the copies of the incoming clock signals have the copies of the clock signal that go to the memory chips have the same frequency and the copies of the incoming command and address signals that go to the memory signals also retain their clock or

[00:20:04] Speaker 02:
retained their frequency.

[00:20:06] Speaker 02:
And so that was what the amendment was made to do.

[00:20:10] Speaker 02:
Unfortunately, they also incorporated from this dependent claim this limitation about this one other copy of the income and clock signal that's provided to the register circuit, and as a result sort of introduced this ambiguity.

[00:20:28] Speaker 02:
And again, we think that that ambiguity should cut in favor

[00:20:32] Speaker 02:
of the board in this case under the BRI standard, particularly here where players had the opportunity to clarify that with a motion to amend.

[00:20:44] Speaker 02:
and they chose not to do so.

[00:20:46] Speaker 02:
So we think that the board's construction is certainly reasonable in light of the intrinsic record.

[00:20:52] Speaker 02:
There's also no question that it's broader than Polaris' because the board's construction is, as we say in our brief, agnostic to what the frequency of the signal is as long as it is sufficient

[00:21:06] Speaker 02:
to preserve the frequency of the incoming address and command signals.

[00:21:12] Speaker 04:
How do you respond to the extrinsic evidence that opposing counsel pointed to on Appendix 997?

[00:21:20] Speaker 04:
the expert testimony.

[00:21:24] Speaker 02:
Yeah.

[00:21:25] Speaker 02:
It's a little ambiguous, Your Honor, and that's what the board said.

[00:21:32] Speaker 02:
Again, I wasn't at the deposition, but I'm crediting the board's reading of this.

[00:21:37] Speaker 02:
And they said when he referred to with respect to the, quote, limitation above, yes, that follows, that there's some ambiguity about what he was referring to.

[00:21:48] Speaker 02:
I don't know that I can really resolve that here, but I think the board considered that testimony and found that it did not move the needle.

[00:21:59] Speaker 02:
I mean, we're talking about extrinsic ambiguous expert testimony under vitronics, which is some of the least persuasive evidence.

[00:22:10] Speaker 02:
And particularly in the context of BRI,

[00:22:14] Speaker 02:
I think, certainly, the board was reasonable in taking that into consideration and considering that it was not persuasive on that point.

[00:22:28] Speaker 02:
I'm happy to answer any other questions the panel may have.

[00:22:35] Speaker 02:
Otherwise, I'll yield the remainder of my time.

[00:22:40] Speaker 01:
OK.

[00:22:40] Speaker 01:
All right.

[00:22:40] Speaker 01:
Thank you, Mr. Mayor.

[00:22:41] Speaker 01:
Ms.

[00:22:41] Speaker 01:
Ted Swanovich, you have two minutes.

[00:22:44] Speaker 03:
Thank you, Your Honor.

[00:22:45] Speaker 03:
Two quick points.

[00:22:49] Speaker 03:
I urge the court to look at the specification of Lee.

[00:22:54] Speaker 03:
When it speaks to WCLK that the counsel referred to, it is speaking to the incoming signal.

[00:23:04] Speaker 03:
It is not speaking to the particular signal we're concerned about.

[00:23:08] Speaker 03:
And that is the one that goes from the regeneration circuit to the register.

[00:23:14] Speaker 03:
That is the one that is always and only described as WCLK over 2 in Li at 735 to 41 and in the figure 2, only at half frequency, never at full frequency.

[00:23:32] Speaker 03:
My second point is, if I may, there is nothing ambiguous about the petitioner's expert's admission.

[00:23:43] Speaker 03:
He was walked through the claim, asked specifically about the claim limitation we're speaking about, about one of the copies that goes to the register, and specifically said, considering the limitation above, where you see the definition of the copy being the same frequency,

[00:24:00] Speaker 03:
Considering that limitation, yes, that follows.

[00:24:03] Speaker 03:
It follows that one of the copies that goes to the register has the same frequency.

[00:24:08] Speaker 03:
With that, unless the court has further questions.

[00:24:10] Speaker 04:
What, if any, response do you have to opposing counsels wanting to claim 30 as opposed to claim 31?

[00:24:17] Speaker 03:
It is really, in the claim 30, it sets up the differentiation between the

[00:24:29] Speaker 03:
a claim language for the WCLK and the WCLK over 2.

[00:24:35] Speaker 03:
The additional copies in claim 31 are the ones that we're concerned about, that they are the only ones that were being argued about.

[00:24:45] Speaker 03:
And those additional copies, the claim says, are at a certain frequency.

[00:24:51] Speaker 01:
Thank you.