[00:00:00] Speaker 00:
1807, TQ Delta and LLC against Harris Group, Incorporated.

[00:00:07] Speaker 00:
Mr. McAndress.

[00:00:09] Speaker 02:
Yes, good morning, Your Honors, and may it please the Court.

[00:00:13] Speaker 02:
I'd like to start with the issue of the insufficient evidence of record to support the motivation to combine.

[00:00:20] Speaker 03:
Counsel, this is Judge Wallach.

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I have a couple of questions for you.

[00:00:25] Speaker 03:
On page four of the query brief Tuesday,

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I'm quoting it.

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One reason why TQ Delta did not make an argument for the set separate pendability of independent claim one or the dependent appeal claims is that heiress never argued to the board that the appeal claims are unpatentable in view of the court's opinion in the dish IPR appeal.

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Is there support for that in the record?

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I just need some clarification.

[00:00:55] Speaker 02:
Yes, your honor.

[00:00:57] Speaker 02:
Uh, this, well, your honor, I guess there's an absence of support for the opposite of the record.

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So what occurred?

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I'm sorry, your honor.

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Were you speaking?

[00:01:05] Speaker 03:
Yeah, I'm just following you.

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Yeah.

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Okay.

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So, so what happened is when this court, um, reversed the case based on a claim construction issue, um, and remanded back to the, to the, um, board for further proceedings.

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Um, both parties agreed and stipulated.

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that no additional briefing or argument is necessary for this matter and that the decision on remand should be rendered on the existing record.

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The existing record, of course, did not include any argument regarding the unpatentability of claim one in view of this court's decision in another case.

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So that's what was being referenced in that argument.

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They had the opportunity, the timing is such that the decision in the DISH IPR appeal that

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that ARIS relies on was rendered in July and the stipulation, July of 2019, the stipulation was entered in September of 2016 upon remand.

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And so they had the opportunity to raise issue preclusion.

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They did not.

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And in this case, this court's case, Civil Air v. Google found that if an issue of issue preclusion is not raised in a lower tribunal, it's been waived.

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And so our position is that

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Harris has waived any argument of collateral estoppel here.

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Okay.

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And one other question, the gray brief, and if this follows up on what you're saying and in response to Harris's collateral estoppel argument, you argue the issues aren't identical, but other than waiver and disputing that the issues are not identical, do you dispute any of the other collateral estoppel factors that the issues were actually litigated?

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that the determination of the issues was necessary to the resulting judgment and that you had a full and fair opportunity to litigate the issues.

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Your Honor, so the issues are not identical.

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It is clear from the record that in the Dish case, Claim 6 and the other... No, no, no, no.

[00:03:09] Speaker 03:
Counsel, you misunderstand me.

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I said... I was trying to preface by saying you raised that.

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You raised waiver and that they weren't identical.

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But there are other factors to collateral estoppel.

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I just want to know if, you didn't raise them in your reply brief.

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I just want to know if you agreed that they had not been raised.

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I'm sorry.

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Are you referring to the additional factors that would go into a collateral estoppel?

[00:03:37] Speaker 03:
You bet.

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You bet.

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Interpretation other than whether the issues are identical.

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And it's true that we did not address any of the additional factors.

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That's a housekeeping question.

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Okay.

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

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So, and I can come back to the collateral stop-all issue, if Your Honors would like, but I wanted to address the issue about, I wanted to focus on the record in this case.

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There's a great deal of focus on the record in a different case based on different arguments, different expert testimony, different findings.

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In this case, we have a lack of substantial evidence.

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In this case, unlike in the Dish case,

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there was no expert testimony provided in reply.

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There was no argument whatsoever of any kind made with respect to the inoperability argument that the combination of Bowie and Van Zylheim would result in a device that had no low power mode.

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It would be inoperable for its intended purpose of serving a low power mode.

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It would also eliminate the reason why these

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these were allegedly being combined in the first place, which is they both address the low power mode.

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If the low power mode is eliminated, it eliminates any motivation to combine.

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And this discussion would start with how thin and we would say inadequate the evidence and argument of a motivation to combine were.

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So if you look at the declaration provided with the petition, Mr. McNally, Harris's expert,

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He provides some very high-level discussion of how these Vanzelheim and Bowie, the two primary references, are from the same field.

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And he says Vanzelheim's synchronization.

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So the issue is, would Bowie be modified to add some synchronization aspect of the Vanzelheim reference?

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And on that point, the exclusive statement is Vanzelheim's synchronization could be used to supplement Bowie's normal

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to reduce power mode operational transitions.

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And so this word could is problematic because the in-touch case says that could is not sufficient.

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It's why would one of skill in the art make the modification, make the combination and the specific modification that's being proposed due to that combination.

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And I wanted to highlight that statement as well because this reason to combine focuses on the transition of Bowie between

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its normal power mode and its reduced power mode.

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So the significance here is that Bowie addresses that.

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And how does Bowie address that?

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Well, one way that Bowie addresses that is that he has a wake-up signal detector.

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And it's that place that causes the problem with the combination.

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So our expert in great detail, Dr. Christin, explained in great detail that the synchronization symbol van Zylheim

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Is a wide band signal.

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It's a wide band signal and provides energy throughout the entire bandwidth of the DSL system.

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There are substantial testimony about this is substantial evidence that this would cause an incompatibility and it would constantly wake up Bowie Bowie has a resume signal detector and

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There was some suggestion that that could be, I guess, moved.

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It's not clear from the final written decision of the board exactly what resolution anyone might propose.

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It points out the fact that Bowie's wake-up detector is not limited to 16 kilohertz, but that it could reside anywhere above 4 kilohertz.

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But the point is, and it can't go below 4 kilohertz, because now you're in the voice band, and this is a DSL system that uses telephone lines.

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there is no available place to put it.

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So the suggestion that we might put it somewhere else, nobody said that.

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Nobody actually made that finding.

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There was certainly no argument or evidence by DISH on that point.

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But there's no other place to put it.

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So the synchronization symbol covers the entire bandwidth.

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There is no argument you will find in the reply of Paris.

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And you will not find any evidence because there was no expert report

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provided with their reply.

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On the other point, the incompatibility was that because the synchronization symbol of Vanselheim is modulated, that will also be incompatible with Bowie because Bowie wants to turn off all of its modulation circuitry and its transmitter circuitry and its receiver circuitry.

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But in order to transmit the synchronization signal of Vanselheim, you would have to turn on your modulation circuitry.

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And the only response to that was, well, look, it's not modulated.

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The synchronization symbol is not modulated.

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But actually, we point this out, and there's some confusion.

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And the board apparently is confused and is looking at the pilot tone, which is something that is separate and distinct, and points out that the pilot tone may not be modulated.

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But if you look at the section of Van Boeheim that addresses this and is cited, actually,

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And it's on Appendix Page 845 in Column 6, beginning around Line 57 of Van Gogh.

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And it says, the frequency synchronization is ensured by the choice of the pilot tone, forming always part of the selected carrier.

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So that's the pilot tone.

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The pilot tone is not what Eris relied on as the synchronization signal of the claims.

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Instead, they relied on the synchronization symbol.

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And that's addressed by the second part of this sentence.

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says, whilst the frame synchronization is ensured by the synchronization symbols, SS, that are generated as usual, i.e.

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as with effective data.

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Generated as usual, i.e.

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as with effective data, everyone in the case agreed that that meant that that synchronization symbol had to be modulated.

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So to the extent that the boards

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decision was based on the idea that the synchronization symbol would not have to be modulated, that's not true and it's not supported by substantial evidence.

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So, and I do want to go back to, so there is, I think there's an attempt by ARIS because of this problem with the synchronization symbol, they want to go back and attempt to argue that the synchronization signal is the pilot tone.

[00:10:16] Speaker 02:
But it's very clear and this goes back to

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the first decision before this court reviewed the first decision.

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So this is the first decision of the board.

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And this appears at appendix page 58, where the board found the first time around that notwithstanding the mention of a pilot tone in paragraph 58 of Dr. McNally's declaration, the petition itself unambiguously identifies the synchronization frame, not a pilot tone, as a synchronization symbol.

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And there is no convincing argument that ARIS has switched.

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In fact, they haven't.

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And the board, the second time around, the decision on remand, found based on the synchronization symbol.

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And this is in the decision on remand at page 86.

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This is, and it says, quote, claim one, further recites, quote, transmit in the low power mode a synchronization signal.

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Petitioner argues that Van Zylheim discloses a signal that maintains frame synchronization during the low power mode.

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And frame synchronization is the synchronization symbol.

[00:11:28] Speaker 00:
Please finish whatever else you need to tell us.

[00:11:34] Speaker 02:
Your Honor, unless there are further questions about the collateral estoppel issue, I think I'll rest here.

[00:11:42] Speaker 00:
All right, let's hear from the other side, and then we'll fill in if we need to.

[00:11:47] Speaker 00:
Mr. Gresham.

[00:11:48] Speaker 01:
Thank you, Judge Newman.

[00:11:51] Speaker 01:
First, I'd like to just mention very briefly the context that this case was decided in.

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And this ties into the collateral estoppel question that Judge Wallach asked, but it's not directly a collateral estoppel issue.

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It is actually a waiver issue on behalf of TQ Delta, the patent owner, and the issue

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is that we pointed out is in the dish case, which was affirmed by this court on appeal, and I think Judge Newman and Judge Wallach were on the panel that affirmed the dish finding, claims 611, 16, and 20 were rendered unpatentable as obvious, and the board was affirmed by this court on that basis under the same combination of references at issue in the present appeal.

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Now, Claims 6, 6, 11, 16, and 20 were the only claims involved in the other appeal.

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But the issue there and on appeal only focused on Claims 6.

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And the other claims were unpatentable on the basis of Claims 6 because Claims 6 was the illustrative claim.

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When our petition errors challenged all of Claims 1 through 20,

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The board again selected claim six as representative and they told TQ Delta any argument you have is waived.

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They made a point on remand in going through Harris's petition and making sure

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that we made a showing with respect to every other claim that was still at issue, allegedly, on remand.

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But Claim Six is dead.

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Claim Six is unpatentable.

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And the only claim that was deemed illustrative of all the claims was Claim Six.

[00:13:42] Speaker 00:
Well, let's just accept the theory for what it's worth, that every claim is a separate invention, and let's talk about the claims that are before us now.

[00:13:56] Speaker 01:
Okay, none of those claims were ever argued by TQ Delta as being separately patentable from Claim 6.

[00:14:06] Speaker 01:
And the case law that we cited in our brief is clear.

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If an independent claim is not patentable, unless there's an argument that some claim dependent on that is separately patentable, there's no basis for patenting.

[00:14:19] Speaker 00:
Claim 1 was not dependent on Claim 6, was it?

[00:14:22] Speaker 01:
Correct.

[00:14:23] Speaker 01:
Claim one is the only independent claim there.

[00:14:26] Speaker 00:
Let's talk about claim one.

[00:14:28] Speaker 01:
OK.

[00:14:29] Speaker 01:
That's fine.

[00:14:31] Speaker 01:
In responding to basically the argument that TQ Delta is making here is essentially the same argument they made in the prior appeal, that combining these references would render the combination inoperable.

[00:14:49] Speaker 00:
Well, it's a different claim.

[00:14:52] Speaker 00:
make clear to us why that same combination applies to Claim 1 as did to Claim 6?

[00:15:00] Speaker 01:
Well, there's no challenge.

[00:15:02] Speaker 01:
TQ Delta did not challenge the board's finding that the combination teaches all of the elements of Claim 1 or any other claim that's still before the court.

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What TQ Delta is arguing is they're going back to say there is no motivation to combine these references.

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And there's no argument that claim one is patently distinguishable from claim six.

[00:15:26] Speaker 00:
Claim six is not a reference against claim one.

[00:15:30] Speaker 00:
Claim six is not prior art.

[00:15:35] Speaker 00:
Let's leave claim six out of it.

[00:15:38] Speaker 01:
OK.

[00:15:40] Speaker 01:
That's fine.

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So the argument that Hiku Delta is making here boils down to the motivation to combine.

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And the motivation to combine is based on inoperability arguments.

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They were essentially the same inoperability arguments that were previously raised in the dish case.

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The only difference being that Aris relied on the supreme synchronization.

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And that's why the original appeal that Aris made resulted in a reversal and a reman.

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is that we relied on the frame synchronization, whereas Dish relied on frequency synchronization.

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And the claim covers both.

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And that's why the court reversed the narrow holding previously and remanded.

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So the same issues on appeal are the two issues that Council raised in his argument.

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As to whether the combination of the sync symbol

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of van Zingelum with Bowie would render the combination inoperable.

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And they raised two arguments.

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One is that because the sync symbol is potentially modulated, that that would defeat Bowie's purpose.

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But that was the same argument that was decided in the prior appeal.

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That rests on the faulty premise that Bowie's purpose is to save maximum power.

[00:17:10] Speaker 01:
And both the board and this court found that that is not the purpose of Bowie.

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That even if there is some degree of demodulation required, that keeping some circuitry open in the low power mode would not defeat Bowie's purpose.

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And the P2 delta argued before the board that there is no difference in its argument

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with regard to this issue, whether or not the synchronization signal is the pilot tone, which has already been deemed appropriate in the dish case, or the sync symbol.

[00:17:53] Speaker 01:
They said several times, it doesn't matter.

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Whichever signal it is, it would have to be demodulated, and that would require some circuitry to remain on in Boy's low power mode, and it would defeat the purpose.

[00:18:08] Speaker 01:
And both the board and this court said, no, that's incorrect because the purpose is not maximum power reduction.

[00:18:15] Speaker 01:
It is reduced power.

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And even if the 69th frame, one frame out of the 69 frames had to be demodulated, that there would still be a significant power reduction and at the same time gaining the

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requirement of synchronization to enable the rapid restart.

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So that would be the reason to combine the references.

[00:18:45] Speaker 01:
There's also evidence in the record that

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The court did not specifically rely on evidence that the sync symbol is not modulated.

[00:18:56] Speaker 01:
They said they further credited some evidence that Harris pointed to that the signal may not be modulated.

[00:19:04] Speaker 01:
First, they addressed this maximum power reduction and said even if something had to stay on, some small amount of circuitry had to stay on in order to modulate either the pilot tone or

[00:19:19] Speaker 01:
the sync symbol, it would not defeat Bowie's purpose.

[00:19:22] Speaker 01:
And the board's finding on that regard is supported by substantial evidence.

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Now the board further credited some evidence that the sync symbol is preferably not modulated.

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And there is evidence in the record that we pointed to that would support that argument.

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And under the substantial evidence standard,

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that argument is not incorrect.

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And that, we pointed to evidence in the record, and that's cited in our brief from Appendix 403 and Appendix 845, which is a citation to the Benzinglum patent itself.

[00:20:03] Speaker 01:
And specifically, the pilot tone is preferably not modulated, and the pilot symbol, which is related to the tone, can be generated

[00:20:17] Speaker 01:
and be an unmodulated pile-up symbol.

[00:20:20] Speaker 01:
In addition, the board also noted that Van Zingelum discloses the transmission of a message from transmitter to receiver to avoid unneeded decoding operations at the receiver in the low-power state.

[00:20:35] Speaker 01:
And that's at Appendix 17.

[00:20:37] Speaker 01:
They cited the petition.

[00:20:39] Speaker 01:
And they also cited Van Zingelum at Appendix 846, Column 7, 15 to 17.

[00:20:47] Speaker 01:
In a preferred embodiment, the transmitter informs the receiver that pilot symbols will be sent in order to avoid unnecessary decoding operations at the receiver's side.

[00:20:58] Speaker 01:
And that was in the decision with specific reference to claim one.

[00:21:03] Speaker 01:
So the board's decision on that inoperability argument is supported by substantial evidence, regardless of whether the signal requires modulation.

[00:21:16] Speaker 01:
because of the power reduction argument, and also because there is evidence in the record that the symbol may not be modulated, which provides substantial evidence for the board's further or alternative reason for rejecting that argument.

[00:21:34] Speaker 01:
Now, with regards to the alleged false trigger argument, that there may be some signal strength at 16 kilohertz

[00:21:44] Speaker 01:
that could trigger the resume signal.

[00:21:48] Speaker 01:
First, P2Delta is sort of changing its argument at this point because in the

[00:21:56] Speaker 01:
arguments that it made, it basically said that it relied only on the 16 kilohertz argument.

[00:22:05] Speaker 01:
Now they say, well, there's some signal strength going all the way down to 4 kilohertz, and that could be a problem.

[00:22:11] Speaker 01:
There's evidence in the record that on page 21 of the opening brief, the blue brief, there is a figure that he, through Delta, relied upon to illustrate that.

[00:22:26] Speaker 01:
And their expert also relied upon the same figure.

[00:22:31] Speaker 01:
And the expert never testified about anything other than 16 kilohertz.

[00:22:36] Speaker 01:
And instead of saying that 16 kilohertz would wake up the resume signal detector, which is what TQ Delta argues in their brief, if you look at the actual expert testimony, he said it may be sufficient to trigger the detector.

[00:22:54] Speaker 01:
Well, maybe.

[00:22:56] Speaker 01:
indicates it may not be.

[00:22:58] Speaker 01:
And that would be substantial evidence to support that argument fails.

[00:23:05] Speaker 01:
But if you look at the figure on page 21 of the opening brief, that indicates there's below 30 kilohertz.

[00:23:15] Speaker 01:
There is a sharp decrease in the signal strength.

[00:23:19] Speaker 01:
And counsel argued, well, it goes all the way down to 3.4 kilohertz, and that could result in a false trigger.

[00:23:26] Speaker 01:
Well, their expert testified at appendix, let's see, their expert testified that the signal strength dropped off very sharply.

[00:23:47] Speaker 01:
And this is at appendix 1426 and 1427.

[00:23:51] Speaker 01:
The expert referred to the figure

[00:23:55] Speaker 01:
And if you look at the figure, the signal strength drops off very sharply.

[00:24:00] Speaker 01:
So the experts said at 16 kilohertz, it may have sufficient strength to create a problem.

[00:24:06] Speaker 01:
It also may not.

[00:24:08] Speaker 01:
But with reference to the figure, if you go on down to 4 kilohertz, that's pretty much down to almost to the voice band where there is no signal strength.

[00:24:18] Speaker 01:
So 16 kilohertz may or may not be sufficient.

[00:24:22] Speaker 01:
Certainly, a person of ordinary skill looking at this diagram that TQDelta's own expert said would be knowledgeable to somebody of ordinary skill in the art could see that at 4 kilohertz, there would be very little signal strength, and there would be very little likelihood of a false trigger.

[00:24:43] Speaker 01:
And it's our position that a person of ordinary skill in the arts would have been able to make that adjustment.

[00:24:49] Speaker 01:
We made that argument before the board at the trial hearing that it would be a simple KSR standard.

[00:24:57] Speaker 01:
I think the board, KC Delta is trying to make this argument in violation of KSR by saying, well, you can't just click these two parts together and they will work perfectly without some adjustment.

[00:25:11] Speaker 01:
KSHAR basically says, a person of ordinary skill in the art can make necessary adjustments in order for two parts to work together.

[00:25:19] Speaker 01:
And we think it's very clear from the record here that that's exactly what the board correctly found that a person of ordinary skill in the art could make the frequency adjustment in order to avoid this hypothesized false trigger.

[00:25:35] Speaker 01:
And again, this is the same argument that the

[00:25:38] Speaker 01:
board made that the T2 delta made with reference to the pilot tone in the previous case.

[00:25:44] Speaker 01:
So the board is consistent throughout in rejecting these arguments, and a different result in this case is not indicated.

[00:25:57] Speaker 00:
OK.

[00:25:58] Speaker 00:
Any questions for Mr. Gresham?

[00:26:01] Speaker 03:
Not from Judge Wallach.

[00:26:05] Speaker 00:
OK.

[00:26:06] Speaker 00:
Thank you, Mr. McAndrews.

[00:26:07] Speaker 00:
You have your rebuttal.

[00:26:10] Speaker 02:
Thank you, Your Honor.

[00:26:12] Speaker 02:
Yes.

[00:26:12] Speaker 02:
I want to start with the last point he made there.

[00:26:14] Speaker 02:
And it's what I guess he's calling the false trigger argument.

[00:26:18] Speaker 02:
And it has been referred to that in the record occasionally.

[00:26:22] Speaker 02:
So this argument he just made here, it's the very first time this has ever been made.

[00:26:28] Speaker 02:
And this is a pattern we've seen is they make an argument that has never previously been made.

[00:26:32] Speaker 02:
So this argument about 4 kilohertz and the may or may not

[00:26:39] Speaker 02:
That was not made in their petition.

[00:26:42] Speaker 02:
It was not made in their reply where it should have gone if it was going to go anywhere.

[00:26:47] Speaker 02:
Um, after we had made the incompatibility argument, um, it wasn't there.

[00:26:51] Speaker 02:
He's mentioning something that, um, the attorney for heiress apparently came up with during the course of the hearing.

[00:26:58] Speaker 02:
But of course that was not, uh, you know, hearing before the board, of course, that was not supported by substantial evidence because there was none.

[00:27:06] Speaker 02:
And it was also not supported by any argument that they had made in the brief.

[00:27:09] Speaker 02:
Again, their reply brief at the board did not address in any way, shape or form the false trigger argument.

[00:27:18] Speaker 02:
So everything that he's describing here is brand new starting with the appeal.

[00:27:26] Speaker 02:
So it's improper for that reason.

[00:27:29] Speaker 02:
As far as substantial evidence for these issues, I heard him reference and I was,

[00:27:35] Speaker 02:
I found that you referenced something at Appendix 17 for the assertion that somehow the board's rejection of the incompatibility argument was supported by substantial evidence.

[00:27:50] Speaker 02:
But he was citing something from the board's finding with respect to an element of the claim, which is receive a message to enter into a low power mode that has nothing to do with

[00:28:03] Speaker 02:
the synchronization symbol and nothing to do with the incompatibility.

[00:28:08] Speaker 02:
And it certainly didn't form a basis for the board's rejection of TQ Delta's incompatibility argument that was not supported by substantial evidence.

[00:28:21] Speaker 02:
Lastly, he mentioned, I guess it's a new waiver argument that he's making for the first time here.

[00:28:29] Speaker 02:
It didn't show up.

[00:28:32] Speaker 02:
in the red brief, but he's saying that it was incumbent upon PQ Delta to make an argument that distinguished the findings on claim six from claim one, and I'm not sure what argument that was supposed to be, but I'm not sure how we can waive an argument, which is a rebuttal argument, when the affirmative argument was never made in the first place.

[00:29:01] Speaker 02:
Unless there's further questions, I'll rest there.

[00:29:04] Speaker 00:
Okay.

[00:29:05] Speaker 00:
Any more questions?

[00:29:06] Speaker 00:
Any questions for Mr. McAndrews?

[00:29:08] Speaker 03:
Not from Judge Wallach.

[00:29:12] Speaker 00:
Okay.

[00:29:14] Speaker 00:
All right.

[00:29:15] Speaker 00:
Judge Raina, okay?

[00:29:16] Speaker 02:
Yes, I'm fine.

[00:29:19] Speaker 00:
Thank you.

[00:29:20] Speaker 00:
All right.

[00:29:21] Speaker 00:
Argument thanks to counsel.

[00:29:24] Speaker 00:
The case is taken under submission.

[00:29:26] Speaker 00:
And that concludes this panel's scheduled arguments for today.

[00:29:31] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.