[00:00:00] Speaker 01:
The first case on the docket today is appeal number 22-1324, Apple v. Court for Tonics.

[00:00:10] Speaker 01:
Mr. Flynn, are you ready?

[00:00:12] Speaker 00:
Thank you, Your Honor.

[00:00:12] Speaker 00:
You may please the court.

[00:00:14] Speaker 00:
James Flynn for Apple.

[00:00:15] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:18] Speaker 00:
This is an IPR appeal concerning mounting image sensors on separate printed circuit boards.

[00:00:24] Speaker 00:
Apple's briefing identified two errors with the board's final written decision rejecting its case for obviousness.

[00:00:29] Speaker 00:
First, the board erred in rejecting and ignoring unrebutted expert evidence that a skilled artisan would have understood the prior art May reference to teach mounting those sensors on separate circuit boards.

[00:00:41] Speaker 00:
And second, the board similarly erred in rejecting unrebutted evidence that a skilled artisan would not have been motivated to combine May's separate circuit board teaching with the prior art, such that the challenge claims are rendered obvious.

[00:00:54] Speaker 03:
Where in May is there any disclosure or teaching

[00:00:58] Speaker 00:
of mounting the sensors on different PCBs.

[00:01:02] Speaker 00:
Yes, Your Honor.

[00:01:03] Speaker 00:
There are three mutually reinforcing portions of the May reference that support that teaching, as interpreted by Dr. Sassean's expert declarations.

[00:01:12] Speaker 00:
The first of those is the disclosure at appendix 1568.

[00:01:15] Speaker 00:
That's column 10, lines 14 to 16.

[00:01:56] Speaker 00:
And that's the portion in which May teaches that in addition, in some embodiments, the sensors in the image capture assembly may be positioned next to each other on a common circuit board assembly.

[00:02:07] Speaker 01:
Is it your position, I take it, that because it says in some embodiments, that suggests that in some embodiments, they're not on the same printed circuit board?

[00:02:15] Speaker 00:
Exactly, Your Honor.

[00:02:16] Speaker 00:
And our expert explained that a skilled artisan would have understood that from the May reference.

[00:02:20] Speaker 00:
That's at Appendix 2479 through 2480.

[00:02:22] Speaker 03:
Well, that's just a reference to some embodiments.

[00:02:26] Speaker 03:
That doesn't necessarily mean that there are different embodiments that have a different configuration.

[00:02:34] Speaker 03:
You might imply that.

[00:02:36] Speaker 03:
That's right.

[00:02:38] Speaker 03:
Or read into that.

[00:02:39] Speaker 00:
But that's a bit of a leap, is it not?

[00:02:43] Speaker 00:
I agree that it's an inference, Your Honor.

[00:02:45] Speaker 00:
And that's an appropriate inference for an expert to draw under this court's decision in acoustic tech.

[00:02:50] Speaker 00:
Experts may explain what a skilled artisan would infer from the prior art.

[00:02:54] Speaker 01:
That makes sense.

[00:02:55] Speaker 01:
But what about the substantial evidence standard of review that we have here?

[00:02:59] Speaker 01:
Why is it that that evidence

[00:03:01] Speaker 01:
makes it so it's unreasonable for somebody not to credit that as informatively showing use of different circuit boards.

[00:03:11] Speaker 00:
Yes, Your Honor.

[00:03:12] Speaker 00:
So the first point I'd make is that the board didn't consider this portion of May at all, even though the parties raised it, even though Dr. Sessean's expert declaration discussed it.

[00:03:21] Speaker 00:
And so that alone renders the need for remand here for the board to consider that portion of the disclosure.

[00:03:27] Speaker 00:
And so there was no substantial evidence for them to reject Dr. Sassean's testimony or to ignore it entirely in this respect.

[00:03:35] Speaker 02:
The board expressly says they consider all of Dr. Sassean's testimony.

[00:03:41] Speaker 02:
Are we supposed to not believe them?

[00:03:43] Speaker 00:
Your Honor, they didn't discuss this portion at all.

[00:03:45] Speaker 00:
They didn't explain why they're rejecting it.

[00:03:47] Speaker 00:
They just wrote off the entire declaration.

[00:03:49] Speaker 02:
But they do say, quote, we've considered all of his testimony.

[00:03:54] Speaker 02:
Doesn't that mean they considered all of his testimony, including this portion?

[00:03:57] Speaker 00:
I think that's right, but they didn't explain why they were rejecting it.

[00:04:00] Speaker 00:
And the board needs to give some reasoned explanation.

[00:04:02] Speaker 00:
This is a classic state farm problem where there's an important

[00:04:06] Speaker 00:
portion of the argument presented by the parties, an important component of the problem that the board didn't explain how it was rejected.

[00:04:13] Speaker 01:
I was going to say, so that's not really a substantial evidence argument that you have there.

[00:04:19] Speaker 01:
You're arguing an APA file.

[00:04:21] Speaker 00:
That's right.

[00:04:22] Speaker 00:
This court has framed it in both ways.

[00:04:25] Speaker 00:
So I point to the Ethicon case, where the court reversed, actually, for failure to address unrebutted expert testimony.

[00:04:33] Speaker 00:
So that was an application of the substantial evidence question.

[00:04:36] Speaker 00:
But I agree it could be framed as well as an APA challenge.

[00:04:40] Speaker 00:
Turning back to Judson's original question, the other two portions of the May reference that disclosed the separate circuit board teaching are the figures that are reproduced at page 18 of our opening brief or the appendix at 1551-1552?

[00:04:54] Speaker 01:
That's not actually the reference itself.

[00:05:00] Speaker 00:
So we've annotated the drawings at the opening brief 19.

[00:05:05] Speaker 00:
We can also look at those drawings at 1551.

[00:05:07] Speaker 01:
Just to be clear, what you're pointing to is not the reference itself, it's the expert's annotation of the references to draw the printed circuit boards, right?

[00:05:19] Speaker 00:
That's right, so the annotation in our brief is our own annotation just to display where the sensors are and where a circuit board might be mounted.

[00:05:27] Speaker 00:
The reference itself doesn't have that shading, that's right.

[00:05:32] Speaker 00:
But the expert exclaimed, and this is at 2474 through 2477,

[00:05:37] Speaker 00:
Again, that a skilled artisan would have inferred from these drawings, because the image sensors aren't sitting in the same plane, that those image sensors would need to be mounted on separate printed circuit boards.

[00:05:46] Speaker 00:
There would be no way to mount all three of those sensors, for example, in figure 10E on the same circuit board, assuming that the image sensors need to be mounted in plainer fashion to those circuit boards.

[00:05:56] Speaker 01:
Given the contrary expert evidence, the testimony on this, why wasn't the board free to credit that other testimony

[00:06:07] Speaker 01:
and thus conclude that those printed circuit boards wouldn't necessarily be in different planes or wouldn't be different printed circuit boards.

[00:06:18] Speaker 00:
There was no contrary expert testimony here.

[00:06:20] Speaker 00:
Court photonics presented no evidence on the other side.

[00:06:23] Speaker 00:
So all the board had to go on was the attorney's argument that there could be non-planar mounting.

[00:06:28] Speaker 00:
That was pure theory.

[00:06:29] Speaker 00:
There was no evidence to support it.

[00:06:31] Speaker 00:
And so when the board adopted that attorney argument as its own reasoning, that finding was without substantial evidence, because it was without evidence at all.

[00:06:39] Speaker 01:
But they don't have to credit.

[00:06:41] Speaker 01:
It's true, isn't it, that the board can choose

[00:06:44] Speaker 01:
In light of the references, plain teachings or lack of teachings can choose to credit or not credit expert testimony, right?

[00:06:52] Speaker 01:
There doesn't have to be contrary expert testimony.

[00:06:56] Speaker 01:
Do you agree with that?

[00:06:57] Speaker 00:
I agree with that.

[00:06:58] Speaker 00:
There are standards this court has set for rejecting unrebutted expert testimony.

[00:07:01] Speaker 00:
So that's Granite Construction explains that the board can't reject expert testimony that's unrebutted without finding that it's implausible or completely unfounded in the record, for instance.

[00:07:11] Speaker 00:
And again this court in Intel, for example, in Ethicon has required some factual basis for the board to reject expert testimony in this way.

[00:07:19] Speaker 00:
Again, there was no countervailing evidence of non-planar mounting and therefore the images or the figures is interpreted by Dr. Sassem to disclose separate circuit boards because there would be no other way to align the sensors in parallel fashion to the circuit boards themselves.

[00:07:36] Speaker 02:
Is it really fair, though, to call this unrefuted expert testimony?

[00:07:39] Speaker 02:
The board had May in front of it, and the board was qualified to read May and make its own determination as to what it disclosed and did not disclose.

[00:07:50] Speaker 00:
Your Honor, the board is entitled to read May on its own, of course.

[00:07:54] Speaker 00:
But this court has explained in renovations that the board cannot rely solely on common knowledge or common sense to support its findings.

[00:08:01] Speaker 00:
And here's the, for example, their substitution of the non-planar mounting theory would, I think, at best be described as the board applying its sense of common sense in interpreting May.

[00:08:10] Speaker 00:
But again, there was no evidence to support that finding.

[00:08:13] Speaker 02:
But what about, is it really common sense

[00:08:18] Speaker 02:
to read May and reject your contention and your expert's contention that it discloses the separate printed circuit boards when they just don't see it there.

[00:08:33] Speaker 02:
Is that just relying on common sense, or is that using their own expert background to read a prior art reference and see that it doesn't seem to disclose what you say is there?

[00:08:43] Speaker 00:
The board didn't articulate its reasoning in that way.

[00:08:45] Speaker 00:
It didn't, for example,

[00:08:47] Speaker 00:
suggested it was relying on its own expertise.

[00:08:49] Speaker 00:
It just offered this non-planar mounting theory.

[00:08:52] Speaker 00:
And I returned to that point earlier, that the board didn't discuss the most critical aspect of this issue in the case.

[00:08:59] Speaker 00:
And so at the very least, a remand would be appropriate.

[00:09:03] Speaker 01:
I do seem to recall that the board said that the reference certainly doesn't teach that there would be the only embodiment in which there's non-folded lens embodiment.

[00:09:16] Speaker 01:
shows a single printed circuit board, right?

[00:09:20] Speaker 00:
That's right.

[00:09:21] Speaker 01:
So even if we assume for a minute that the reference tie printed separate printed circuit boards in a folded lens environment, the primary reference was a non-folded environment, right?

[00:09:36] Speaker 00:
That's right.

[00:09:36] Speaker 00:
The reference contains both configurations.

[00:09:38] Speaker 00:
The one from which Dr. Sassem is drawing is the folded configuration.

[00:09:43] Speaker 01:
That's right.

[00:09:44] Speaker 01:
So how do you infer

[00:09:46] Speaker 01:
that this reference teaches for a non-folded lens configuration having separate printed circuit boards.

[00:09:55] Speaker 00:
Right, Your Honor.

[00:09:55] Speaker 00:
So that's this court's explanation in reapplied materials and building versus Burke Tech.

[00:10:01] Speaker 00:
that a reference must be considered for everything it teaches, not limited to the particular invention at hand.

[00:10:06] Speaker 00:
And then KSR, Intel versus Qualcomm.

[00:10:09] Speaker 01:
But the invention, the reference itself discloses a folded embodiment and a non-folded embodiment.

[00:10:14] Speaker 01:
And it's undisputed that in the unfolded embodiment, it shows a single printed circuit board, right?

[00:10:21] Speaker 00:
That's right.

[00:10:21] Speaker 00:
So then I would point us to KSR and the Intel case in which the court explained that if a technique has been used to improve one device, a person of ordinary skill would recognize that it can improve similar devices in the same way.

[00:10:35] Speaker 01:
I guess this goes to motivation to combine.

[00:10:37] Speaker 00:
This is on it.

[00:10:37] Speaker 00:
So as you said, if we're assuming that there's the teaching, it would go to motivation to combine.

[00:10:41] Speaker 00:
Agreed.

[00:10:42] Speaker 00:
I'll offer an analogy here.

[00:10:44] Speaker 00:
So assume a reference teaches making traditional sandwiches with Swiss cheese, and then suppose that the same reference teaches making open-faced sandwiches.

[00:10:54] Speaker 00:
That reference would teach putting Swiss cheese on the open-faced sandwich.

[00:10:57] Speaker 00:
There's no reason to think that the Swiss cheese is limited to traditional sandwiches.

[00:11:02] Speaker 00:
The improvement to the one sandwich can be applied to the other.

[00:11:05] Speaker 00:
And this court has repeatedly said that.

[00:11:07] Speaker 00:
Again, that's the KSR case, the Intel case, that improvements to one device can be applied to others.

[00:11:15] Speaker 00:
And then I point again to Belden where the court explained that if the solution is independent, if there are independent design choices, those design choices can be applied across different configurations, different embodiments.

[00:11:27] Speaker 00:
So again, here, even though May teaches.

[00:11:29] Speaker 01:
I mean, it seems that the very reason you say for why the folded lens embodiment must have separate printed circuit boards is because it's folded and it couldn't operate, it wouldn't be in the same plane, printed circuit boards.

[00:11:43] Speaker 01:
But that doesn't, that rationale for why that teaching is present in reference doesn't apply to the non-folded embodiment.

[00:11:50] Speaker 00:
That's right, but it also doesn't foreclose taking that improvement to the folded configuration and applying it in the non-folded setting.

[00:11:58] Speaker 00:
I'd also point the court to appendix 2478 through 79.

[00:12:01] Speaker 00:
This is the third answer to Gendlin's question about the various components, where Dr. Sassian explains that the May figures 10, the folded configurations, teach a modularity that was advantageous, and that that, again, that modularity could be applied

[00:12:19] Speaker 00:
Non-folded configurations to achieve the same result.

[00:12:22] Speaker 00:
I see a lot of time Thank you very much

[00:12:31] Speaker 04:
Good morning, Your Honors.

[00:12:32] Speaker 04:
May it please the court, Mark Finster, our appellee in core photonics.

[00:12:36] Speaker 04:
We've never merited our own panel before, so it's a pleasure to be here.

[00:12:41] Speaker 04:
There are two independent reasons why the court should affirm.

[00:12:44] Speaker 04:
There is substantial evidence for both the board's decisions that May does not teach separate PCBs or mounting camera units on separate PCBs, and separately and independently,

[00:12:55] Speaker 04:
There's substantial evidence to support the board's finding that there is not a motivation to combine the non-folded Parulski, Huang, and Tang references with the folded embodiment of May.

[00:13:08] Speaker 04:
If the court finds substantial evidence on either one, the court should affirm.

[00:13:12] Speaker 04:
Both are independent reasons for affirming.

[00:13:14] Speaker 03:
How do you respond to Mr. Flynn's argument that in some embodiments, language

[00:13:21] Speaker 03:
sort of infers that there might be other embodiments that beat the language of the claim.

[00:13:28] Speaker 04:
That language actually says in some embodiments, the sensors may be placed next to each other and on a common.

[00:13:34] Speaker 04:
So it's not necessarily so that it

[00:13:40] Speaker 04:
It could be that they're not next to each other, as opposed to not on common boards.

[00:13:44] Speaker 04:
But in any event, there is no express teaching, as the board found, and is apparent from reading May.

[00:13:52] Speaker 04:
putting camera units on separate PCB boards.

[00:13:56] Speaker 04:
So while there may be an inference, there's no teaching.

[00:13:59] Speaker 04:
And that inference, Your Honor, that language allows for different inferences.

[00:14:04] Speaker 04:
And it is not inherent in that disclosure, even inferentially, because it could mean that there are other ways to place sensors, not necessarily on different PCB boards.

[00:14:15] Speaker 03:
As I understand Mr. Flynn's argument, he refers to that language as you can draw.

[00:14:22] Speaker 03:
the inferencing he would like.

[00:14:24] Speaker 03:
And that inference is supported by Dr. Sasacian's testimony, which is unrebutted.

[00:14:32] Speaker 03:
What do you say to that?

[00:14:33] Speaker 04:
Yes.

[00:14:33] Speaker 04:
So, Your Honor, the board absolutely has the power, the ability, to review that testimony and compare it to the evidence cited and determine whether or not it finds it credible.

[00:14:47] Speaker 04:
Appleburg board,

[00:14:48] Speaker 04:
burden of proof in this case.

[00:14:50] Speaker 04:
And just because it's unrebutted doesn't mean it has to be accepted.

[00:14:54] Speaker 04:
Of course, the judges make a determination of credibility.

[00:14:57] Speaker 04:
And here, they specifically go through all, as Judge Stark noted, all of the testimony and all of the evidence that was cited therein, both in the petition and in Dr. Sassian's testimony, and find that it's just not credible.

[00:15:10] Speaker 04:
And they did that for both findings.

[00:15:12] Speaker 04:
that May doesn't teach independent PCB boards and separately for the motivation.

[00:15:18] Speaker 02:
Where does the board address the portion of May that Judge Lynn is asking you about the some embodiments and implying other embodiments?

[00:15:29] Speaker 04:
So, Your Honor, there is not a direct site.

[00:15:34] Speaker 04:
Board's discussion of Dr. Sossian's testimony and the evidence cited therein is at pages appendix 51, 52, and going on to 55.

[00:15:43] Speaker 04:
I agree, Your Honor, that in the parentheses where they cite the evidence in May, they cite all of the

[00:15:51] Speaker 04:
exhibits the figures D through F, the portion at column 7, lines 4 through 15, they cite to the May reference at exhibit 11.

[00:16:03] Speaker 04:
They don't specifically cite that column 10, line 14, but they do specifically say we have reviewed all of Dr. Sassein's testimony and we have specifically reviewed all of May's.

[00:16:14] Speaker 02:
But is that enough?

[00:16:15] Speaker 02:
Don't they owe us some explanation?

[00:16:19] Speaker 02:
as to why they didn't credit the implication that the only expert before them told them was a reasonable inference from from May sure and your honor it's just not fair to say my my friends have said several times in briefing and again here today that

[00:16:35] Speaker 04:
the board ignored Dr. Saucion's testimony.

[00:16:38] Speaker 04:
That's just not true.

[00:16:39] Speaker 04:
There's actually a very thorough and reasoned analysis at pages 51, 52, 53, through 55, as to the first portion, analyzing all of Dr. Saucion's testimony and the portions of it.

[00:16:54] Speaker 01:
I'm sorry to interrupt you, but I think the question is, do they owe us an explanation for why the sentence in May, the specific sentence about in some environments, is not persuasive?

[00:17:05] Speaker 04:
I don't think that that's a specific, that's not a violation of the APA for them not to have specifically addressed that one sentence, because there is a fulsome discussion of Dr. May's testimony.

[00:17:20] Speaker 04:
They explain that they, or Dr. Sasian's testimony, they explain that they reviewed all of his testimony.

[00:17:27] Speaker 04:
They cite all of the paragraphs, including the paragraphs that cite to that sentence at column 10 of May.

[00:17:36] Speaker 04:
state that they didn't find it supported by the evidence.

[00:17:40] Speaker 04:
And they say that they reviewed all of the evidence cited in the petition and Dr. Sostian's.

[00:17:44] Speaker 04:
So the fact that they didn't mention in a very fulsome and thorough disclosure that they didn't specifically mention that one sentence does not constitute an APA violation.

[00:17:57] Speaker 01:
Earlier, you said in quoting that sentence, you said that that in some bodyments language wasn't that persuasive because it says, in some embodiments, the sensors and the image capture assembly may be positioned next to each other and on a common circuit board assembly.

[00:18:13] Speaker 01:
But I just want to note that the end is not in there.

[00:18:16] Speaker 01:
That sentence doesn't have the word end in it.

[00:18:19] Speaker 01:
It says, the sensors in the image capture assembly may be positioned next to each other on a common circuit board assembly.

[00:18:25] Speaker 01:
It's all one sentence.

[00:18:27] Speaker 04:
You are correct, Your Honor.

[00:18:28] Speaker 04:
But as I read that, and I apologize if I misquote, it says, in some embodiments, the sensors in the image capture assembly may be positioned next to each other on a common circuit board assembly.

[00:18:41] Speaker 04:
May be cut packaged in a common integrated circuit package and the lenses may be provided in a common lens assembly That mounts onto the circuit board now that last so one I do think that my suggestion that there's another inference possible from that sentence is also fair and

[00:19:00] Speaker 04:
The other thing that I want to note is that the May reference specifically discloses that the sensors are mounted as part of lens assemblies, and this sentence specifically says that the lens assembly might be mounted on the board.

[00:19:18] Speaker 04:
My friend's suggestion that the board adopted a fanciful unsupported possibility of sensors being mounted non-planarly is actually supported directly in May and it's based on the assumption as my friend said that sensors have to be mounted in a planar fashion and

[00:19:39] Speaker 04:
There is nothing in the record, including in Dr. Sassian's declaration, that says they have to be mounted in a planar fashion.

[00:19:46] Speaker 04:
And they can't be mounted as part of a lens assembly.

[00:19:50] Speaker 04:
So what happens in the folded configuration is the lens is facing up.

[00:19:55] Speaker 04:
The lens is folded across the bottom of the phone or of the camera.

[00:20:01] Speaker 04:
The sensor is over here the PCB board is down here the lens assembly and the sensor are mounted together on the board and so on the PCB and that's what the board is talking about when it says there's nothing that says it can't be on a that all three of the folded in different configurations in different Directions could be mounted on the same PCB board even though the sensors would be non-plain wouldn't be plain Mounted in a cleaner fashion

[00:20:31] Speaker 02:
Is that the evidence the board had for a non-planar embodiment, was just the fact that Dr. Sassian didn't say you couldn't have?

[00:20:40] Speaker 04:
No.

[00:20:40] Speaker 04:
I think, Your Honor, that May specifically says that the sensors are mounted as part of the lens assemblies.

[00:20:50] Speaker 04:
And this portion of column 10 says that the lens assemblies can be mounted on the PCB board.

[00:20:56] Speaker 04:
There is and the absence of any evidence from Dr. Sasse and or otherwise in the record that sensors must be mounted in a planar fashion.

[00:21:06] Speaker 04:
So all of that combines to give substantial evidence for the board's finding that maid is not teaching.

[00:21:13] Speaker 04:
And as to the motivation to combine, which is a completely independent basis, there is a thorough reasoned analysis of pages 55 to 60 of the board's decision in the appendix, 55 to 60, where they go through and they specifically address all of Dr. Sassian's

[00:21:33] Speaker 04:
opinions and evidence regarding the motivation to combine and specifically find that it's too generic, not specific enough, and doesn't support even the preponderance of the evidence that one would be motivated to combine the folded configuration with the non-folded prior art.

[00:21:55] Speaker 01:
Is that the proposed combination, that it has to be the folded configuration of May with the

[00:22:02] Speaker 01:
nine folding configurations.

[00:22:04] Speaker 04:
So there was actually a lot of confusion about this below and the court starts its final written decision acknowledging citing a portion of the transcript.

[00:22:14] Speaker 04:
So the answer is that the proposed combination is taking this idea that they say is present, which the board found was not present, and from the folded configuration.

[00:22:25] Speaker 01:
That's right.

[00:22:27] Speaker 04:
So assuming that that were present, that the folded configuration showed that you could mount on different PCB boards, somehow combining that and applying it to the non-folded configuration, even though

[00:22:41] Speaker 04:
every one of the prior references, Barulski, Huang, Tang, and the non-folded configuration of May all showed the sensor on a single PCB board.

[00:22:52] Speaker 01:
Did you understand the combination to be to modify the primary references in view of May to make them folded or to modify the primary references in view of May

[00:23:05] Speaker 01:
to take May's teaching generally of having separate printed circuit boards either unfolded or non-folded assemblies and put them on the non-folded assemblies of parole scheme, for example?

[00:23:16] Speaker 04:
The latter, Your Honor.

[00:23:18] Speaker 02:
Okay.

[00:23:20] Speaker 02:
In terms of the lack of expert evidence on your side, is granite construction the test that we are to apply to determine if the board could properly

[00:23:32] Speaker 02:
reject the arguably unrevoted testimony from the other side's expert.

[00:23:37] Speaker 02:
And if that is the right test, how can you meet it?

[00:23:40] Speaker 04:
So I think that the proper test, Your Honor, is

[00:23:45] Speaker 04:
So they still have the burden of proof.

[00:23:49] Speaker 04:
And the board has to evaluate the evidence in light of that burden of proof.

[00:23:54] Speaker 04:
And so they don't have to just accept it, even if it's non-rebuttive.

[00:23:58] Speaker 04:
And it's not true that there wasn't argument on the other side.

[00:24:02] Speaker 04:
There was.

[00:24:03] Speaker 04:
But we pointed out problems in Dr. Sossian's declaration compared to May.

[00:24:09] Speaker 04:
It just wasn't there.

[00:24:10] Speaker 04:
And that's what the board found.

[00:24:13] Speaker 02:
Does the board have to find

[00:24:15] Speaker 02:
Dr. Sassian either not credible or implausible or something analogous to that?

[00:24:21] Speaker 04:
I don't think that there are specific words.

[00:24:23] Speaker 04:
I think that they went through and they have to analyze his opinion, compare it to the evidence that he cites and see do they believe that it's credible?

[00:24:31] Speaker 04:
Does it support his opinions?

[00:24:33] Speaker 04:
In this case, his opinion really was

[00:24:36] Speaker 04:
Conclusory this is at appendix 1269 to 1270 where he basically after reviewing the evidence Just as a person of skill in the art would understand that they're on separate boards even though May doesn't say that and he doesn't cite anything for May at that point his the ultimate penultimate conclusion for dr. Saucin really is Conclusory and in this case where there is a conclusory opinion does the board say it to me debate does the board say his testimony is Conclusory and that's why we're not persuaded by it

[00:25:06] Speaker 02:
Does the board say his testimony is conclusory and that's why they're not crediting it?

[00:25:12] Speaker 04:
I do believe that they say that it is conclusory and they did go through and specifically found that the May reference and the portion cited, the evidence cited by Dr. Saucin don't support it.

[00:25:24] Speaker 01:
Do you have a site for that?

[00:25:27] Speaker 04:
So this is on 52

[00:25:34] Speaker 04:
And I'm not sure if they actually stay conclusory.

[00:25:40] Speaker 04:
We find that the petitioner has not shown sufficient evidence.

[00:25:42] Speaker 04:
This is at page 52, line 2.

[00:25:46] Speaker 04:
The portions of May cited in the petition do not teach or suggest more than one printed circuit board, let alone placing each different type of lens unit on separate printed boards.

[00:25:57] Speaker 04:
We have considered all of Dr. Sassem's testimony.

[00:26:00] Speaker 04:
They cite all of the relevant portions, including the portion where he cites Dr. Column 10.

[00:26:09] Speaker 04:
supporting evidence and it's not supportive persuasive that may teachers or suggest placing different ones on separate units.

[00:26:19] Speaker 04:
Then they go through and analyze the rest.

[00:26:23] Speaker 02:
I think that's where my concern is.

[00:26:26] Speaker 02:
If you have Dr. Sassian saying one thing and then on your side you have you have nobody contradicting it.

[00:26:35] Speaker 02:
And if if the board doesn't make it clear that they found Sassian not credible conclusory or implausible they just said we just are not persuaded by him.

[00:26:49] Speaker 02:
Can they really do that?

[00:26:52] Speaker 02:
Maybe that knocks him down to very little bit of evidence or a little bit of probative weight, but there's nothing on the other side.

[00:27:00] Speaker 02:
So how could they not have met their burden?

[00:27:02] Speaker 04:
So there doesn't have to be anything on the other side.

[00:27:04] Speaker 04:
They bear the burden.

[00:27:06] Speaker 02:
But the burden is a preponderance.

[00:27:08] Speaker 02:
You have to, I would think, agree a tiny grain of salt against zero meets your burden by a preponderance, does it not?

[00:27:18] Speaker 04:
I agree that it is a preponderance, but here the board went through Dr. Sossian's analysis.

[00:27:26] Speaker 04:
May just doesn't teach separate PCB boards.

[00:27:29] Speaker 04:
And the fact that they have an expert say one of skill in the art would understand it, the board was within their rights to go through May and analyze it and say, we don't see it.

[00:27:41] Speaker 04:
None of his rationale explains it.

[00:27:46] Speaker 04:
agree that Dr. Sossian doesn't show that sensors can only be mounted in a planar fashion, which is the assumption that underlies his entire opinion and their entire argument.

[00:28:00] Speaker 04:
If sensors don't have to be mounted in a planar fashion, then that is the assumption.

[00:28:05] Speaker 04:
And he doesn't say that that's the only way to mount it and may provide evidence that they can be mounted as part of the assemblies with the assemblies mounted on the PCP.

[00:28:15] Speaker 01:
I see that you're out of time.

[00:28:18] Speaker 04:
And I would just remind the court about the second independent opinion basis for affirmation.

[00:28:26] Speaker 04:
Thank you.

[00:28:28] Speaker 01:
Thank you.

[00:28:28] Speaker 01:
You have nearly all of your time.

[00:28:31] Speaker 00:
Thank you, Your Honor.

[00:28:33] Speaker 00:
I heard Core Photonics articulate an alternative interpretation of May's Column 10 language.

[00:28:40] Speaker 00:
That's the first time we've heard that from Core Photonics.

[00:28:42] Speaker 00:
There was no articulation of an alternative understanding before the board or in their answering brief here.

[00:28:48] Speaker 00:
They suggest that we are saying the court has to accept unrebutted expert testimony.

[00:28:55] Speaker 00:
That's a straw man.

[00:28:55] Speaker 00:
We've never made that contention.

[00:28:57] Speaker 00:
As Judge Sharp pointed out, we rely on granite construction.

[00:29:00] Speaker 00:
Just at a standard the board has to meet.

[00:29:02] Speaker 00:
I didn't hear another articulation of that standard or a citation to a case suggesting that granite construction is not good law here.

[00:29:10] Speaker 00:
Core Photonics asserts that the board found Dr. Sassian not credible.

[00:29:15] Speaker 00:
There's no credibility finding there.

[00:29:16] Speaker 00:
And as we just saw, there's also not a finding that his testimony on separate circuit boards was conclusory.

[00:29:23] Speaker 00:
The board doesn't say that either.

[00:29:27] Speaker 00:
As to planar mounting, we did establish, and these are the figures in our opening brief at 16 to 17, that the state of the art was that image sensors were mounted in planar fashion to the circuit boards.

[00:29:39] Speaker 00:
There's no example of any other kind of mounting.

[00:29:41] Speaker 00:
The section of May just cited doesn't suggest that there's perpendicular mounting, for instance.

[00:29:47] Speaker 00:
It's just that the image capture assemblies are mounted on the printed circuit boards.

[00:29:51] Speaker 00:
It doesn't say anything about planar or non-planar.

[00:29:53] Speaker 02:
Did Dr. Sassian say it must be planar?

[00:29:56] Speaker 00:
He did not.

[00:29:57] Speaker 00:
A plainer theory was raised in court photonics to reply.

[00:30:00] Speaker 00:
So that was after Duster Saucion's last declaration.

[00:30:02] Speaker 00:
So that isn't directly addressed in the declaration.

[00:30:07] Speaker 00:
Those are the points I had, Your Honors, unless you have further questions.

[00:30:12] Speaker 00:
On the remedy, very briefly, we'd ask you to reverse here.

[00:30:15] Speaker 00:
Court of Atomics hasn't disputed that that's the correct remedy.

[00:30:18] Speaker 00:
And because there's no evidence going in the other direction, we think the only reasonable answer here is that the claims are obvious.

[00:30:24] Speaker 00:
Nevertheless, if the court doesn't see it that clearly, we think it may have been warranted for the reasons I've explained earlier, that the board failed to address a major component of the problem.

[00:30:33] Speaker 00:
And on the second point, motivation to combine,

[00:30:36] Speaker 00:
But the board rejected his conclusory testimony that was extremely detailed by Dr. Saucyon that provided a number of reasons.

[00:30:43] Speaker 00:
Modularity was advantageous.

[00:30:45] Speaker 00:
And so again, the board should have considered that rather than rejecting his conclusory and a remount as appropriate.

[00:30:51] Speaker 00:
Thank you, Your Honors.