[00:00:00] Speaker 00:
Our first case is Apple versus Core Photonics, 2022-1325.

[00:00:06] Speaker 00:
Ms.

[00:00:08] Speaker 00:
Oliver.

[00:00:10] Speaker 03:
Good morning, and may it please the court.

[00:00:12] Speaker 03:
Angela Oliver on behalf of Apple.

[00:00:15] Speaker 03:
During my opening argument, I'll be addressing Apple's appeal of a few dependent claims.

[00:00:20] Speaker 03:
And I'd like to begin by addressing claims 3 and 19 and claims 8 and 24.

[00:00:26] Speaker 03:
The motivation analysis for these two sets of claims is similar, but not identical.

[00:00:31] Speaker 03:
But the underlying motivation for both of these is guided by two critical facts that are not in dispute.

[00:00:38] Speaker 03:
First, a posita would have been motivated to lower the F number of a lens assembly due to the known advantages of having a lower F number.

[00:00:46] Speaker 03:
And second, one way to go about lowering the F number is to increase the diameter of a lens to allow more light into the system.

[00:00:54] Speaker 03:
Those two facts are the driving motivations for Apple's analysis of these four claims.

[00:00:59] Speaker 03:
Now, particularly with respect to claims three and 19, those claims simply require a diameter to be within a certain range.

[00:01:06] Speaker 03:
And Apple presented a straightforward analysis regarding why this would have been obvious.

[00:01:10] Speaker 03:
Beginning with Ogino's example five, a positor would have wanted to lower the F number and a target goal would have been 2.45 because that is the lowest F number that's already disclosed in the Ogino reference.

[00:01:23] Speaker 03:
Now to lower that number, a Posita would have increased the diameter to allow more light into the system.

[00:01:28] Speaker 03:
And when you model that in Lens Design software, the claimed range, a diameter within the claimed range, gives you that target F number.

[00:01:36] Speaker 03:
So the board did not fully walk through that analysis in its decision regarding claims three and 19, because it got so focused on this idea of changing the shape of the lens.

[00:01:47] Speaker 03:
And respectfully, for claims three and 19, the change in shape of the lens is not relevant because that's simply not part of the claim limitations.

[00:01:55] Speaker 01:
Isn't the board just simply taking on your arguments at the level that you made them?

[00:02:00] Speaker 01:
You've presented the same figure, the same lens arrangement for both

[00:02:05] Speaker 01:
the claims that required the change in the shape of the first lens and the ones that did not, 3 and 19.

[00:02:14] Speaker 01:
So was it an abuse of discretion for the board to think that you were just making the same argument as to all four of those claims?

[00:02:21] Speaker 03:
So respectfully I believe it was because the lens design presented was the same, but that is a complete lens design and it of course includes things that go beyond just the claim limitations.

[00:02:31] Speaker 03:
For claims 3 and 19, all that is required to show motivation

[00:02:35] Speaker 03:
is to show why the diameter changed.

[00:02:37] Speaker 03:
Now, particularly for claims eight and 24, the lens shape is required to be changed.

[00:02:41] Speaker 03:
So it makes sense to look for the motivation to change the shape.

[00:02:45] Speaker 01:
But your argument is that they should not have addressed all four claims the same way and that they failed to give an adequate explanation.

[00:02:54] Speaker 01:
of their rejection of your argument with respect to the ones that don't need the lens change shape, correct?

[00:03:02] Speaker 03:
That's one of our arguments, yes.

[00:03:03] Speaker 01:
And so my question to you is, was that an abuse of discretion for the board to take that on that way, given how you articulated your arguments, which combined all four claims together?

[00:03:15] Speaker 03:
Respectfully, I believe it was an abuse of discretion.

[00:03:17] Speaker 01:
How is it an abuse, given that they did what you did?

[00:03:20] Speaker 03:
Well, because at the end of the day, the board should be focused on showing what on whether the claim limitations have been met.

[00:03:27] Speaker 03:
And so anything beyond that, that would have been changed to change in correspondence with that as part of the lens design software is just not relevant.

[00:03:36] Speaker 03:
And I think the difference between these two claims can be seen by the fact that Apple added additional evidence for claims eight and 24.

[00:03:42] Speaker 03:
So there is some indication in how we briefed this before the board that there is a difference between the two claims.

[00:03:48] Speaker 03:
So specifically at appendix 1114, Dr. Sassean provides a specific motivation for changing the shape of the lens.

[00:03:55] Speaker 03:
And there he explains the shape was changed to allow the lens to better focus incoming light

[00:04:01] Speaker 03:
and providing a thicker edge for easier manufacturing.

[00:04:04] Speaker 03:
So there was additional evidence for those specific claims regarding the change in shape.

[00:04:09] Speaker 03:
Now, I think overall, aside from the argument about how this was briefed and whether the board should have done more for claims three and 19, with respect to all four of these claims, the board still aired as a matter of law and how it analyzed the shape issue.

[00:04:22] Speaker 03:
So the board at appendix page 39 said it acknowledged Apple's evidence regarding motivation to change the shape.

[00:04:29] Speaker 03:
And it didn't disagree with it.

[00:04:31] Speaker 03:
But it said that Apple had to explain why the change in shape was required to achieve these benefits as opposed to other changes.

[00:04:39] Speaker 03:
And Court for Tonics makes this argument on appeal as well.

[00:04:42] Speaker 03:
But that's respectfully not the law.

[00:04:43] Speaker 03:
We have cases like Par Pharmaceutical and others that explain that obviousness does not require a showing

[00:04:48] Speaker 03:
that this combination is better than others, or that it's the best combination.

[00:04:52] Speaker 03:
And that was really the board's reasoning, was that Apple should have explained why we needed to change the shape as opposed to something else.

[00:04:59] Speaker 01:
And so... Your combination included this Ogaino reference, correct?

[00:05:04] Speaker 01:
Yes.

[00:05:05] Speaker 01:
Doesn't Ogaino say that it's a defining feature, that the image side surface lens be concave as opposed to convex?

[00:05:15] Speaker 03:
Respectfully, no.

[00:05:16] Speaker 03:
That's what corporatonics argued.

[00:05:18] Speaker 03:
But Ogino particularly says at Appendix 1203 that its embodiments can be modified in various forms, including by changing the values of the radius of curvature.

[00:05:28] Speaker 03:
And that is the shape or curvature of the lens.

[00:05:30] Speaker 03:
So that's Appendix 1203, Column 1611 through 19.

[00:05:34] Speaker 01:
Did the board not say it was a defining feature, the shape of the lens?

[00:05:40] Speaker 03:
I don't think the board clearly made that finding.

[00:05:42] Speaker 03:
No, they talked about it at appendix page 38.

[00:05:44] Speaker 03:
And they say that corporatonics did not argue a teaching away.

[00:05:48] Speaker 03:
So they certainly didn't make any teaching away findings.

[00:05:50] Speaker 03:
And after beyond that, I don't believe they go forward to make specific findings and address this particular piece of Ogino that we've cited here.

[00:05:58] Speaker 03:
So respectfully, I don't believe Ogino teaches away or anything like that.

[00:06:03] Speaker 03:
And also, even if that were an optimal design in Ogino, that still isn't enough to undermine obviousness.

[00:06:10] Speaker 03:
For example, in Galderma Labs versus Tomar, there was no teaching away where the invention required a higher concentration of a drug, even though the prior art indicated that a certain lower concentration was optimal.

[00:06:23] Speaker 03:
And another case that supports this is the Inrei Gurley case that's cited by the court in Inrei Fulton.

[00:06:29] Speaker 03:
So in sum, I believe for all of these claims, the court should at least vacate and remand because the board improperly required Apple to explain why its change would have been preferred over other options, and that's simply not the law.

[00:06:41] Speaker 03:
I'd like to briefly address Apple's challenge to ground four as well, which deals with claims 16 and 30.

[00:06:48] Speaker 03:
Now these are based on a totally different set of prior art, and here the claim limitations require

[00:06:55] Speaker 03:
the first lens to have a center to edge thickness ratio of less than three.

[00:07:00] Speaker 03:
Now the bike reference that Apple presented expressly teaches that claimed ratio of three to one in its rules of thumb regarding manufacturing.

[00:07:09] Speaker 03:
And that should have been enough to show that the limitation would have been obvious.

[00:07:13] Speaker 03:
But the board rejected Apple's argument by focusing on a different rule of thumb in bike, that there should be a manufacturing tolerance of 0.02 millimeters.

[00:07:22] Speaker 03:
And this was error because bike tells us that its rules of thumb are just quick generalizations.

[00:07:27] Speaker 03:
Bike says they're useful for initial discussions, but they quickly break down.

[00:07:31] Speaker 03:
And bike explains that these are designed for ideally designed optics.

[00:07:35] Speaker 03:
So in other words, Byke itself makes it very clear that these are not hard and fast rules, and that's supported by the testimony of Apple's expert as well at appendix 6124, and it's consistent with this court's earlier treatment of this same reference in the 1961 appeal between these same parties.

[00:07:52] Speaker 03:
There the court said, Byke itself recognizes the need for tremendous flexibility for lens designers.

[00:07:59] Speaker 03:
Now I think what the board did here is trying to distinguish that earlier case is saying that the rules here are more closely related than they were in the 1961 case.

[00:08:08] Speaker 03:
But even if that's true, at most what we have is a trade-off between improved manufacturability for the three to one ratio and reduced manufacturability due to the manufacturing tolerance.

[00:08:20] Speaker 03:
But trade-offs are common in the design process and that does not preclude a finding of obviousness.

[00:08:26] Speaker 03:
In fact, in the 1961 case,

[00:08:28] Speaker 03:
court held that the board properly rejected the blanket assertion that willingness to incur reduced manufacturability would have undermined the motivation to improve manufacturability in other ways.

[00:08:39] Speaker 03:
So it is consistent in an obvious analysis to use one of those rules without being bound by the other.

[00:08:46] Speaker 01:
Even if we agree with all that, that doesn't leave a lack of substantial evidence for the board's adoption of a different position, does it?

[00:08:54] Speaker 03:
Respectfully, I believe it does for two reasons.

[00:08:59] Speaker 03:
One, the existence of trade-offs itself cannot be enough to undermine the motivation to combine.

[00:09:05] Speaker 01:
And so there's no substantial... Have we said that?

[00:09:07] Speaker 03:
I believe that's clear, unless there's some other reason that makes sense with respect to why the trade-off would essentially outweigh the motivation, as long as there's an option, that is what the case law, such as Parpharma, requires.

[00:09:22] Speaker 03:
It doesn't have to be the best option.

[00:09:24] Speaker 01:
So even if it would have been ideal... It doesn't have to be the best option, but a fact finder could say, it undermines my belief in your motivation to combine argument

[00:09:36] Speaker 01:
that there are these trade-offs, and I believe I'm persuaded on the merits that a person still in the art would not actually be motivated to do this given the trade-offs.

[00:09:45] Speaker 01:
We've never said that's an improper line of reasoning, have we?

[00:09:49] Speaker 03:
I don't have a case that's directly on point for that, but what I do think here is that we have the 1961 opinion, which has already interpreted the same reference, and we just have the disclosure from bike itself on its face

[00:10:01] Speaker 03:
saying that these rules quickly break down.

[00:10:03] Speaker 03:
They're only useful for initial discussions.

[00:10:05] Speaker 03:
And so it's perfectly consistent to say that a procedure would have been motivated by one of them, but not be dissuaded by another, even when they're fairly related, as the board suggested here.

[00:10:18] Speaker 03:
So in some, bike expressly contemplates flexibility with respect to how its rules are used.

[00:10:23] Speaker 03:
And so even though it might have been more ideal to satisfy both rules of thumb, obviousness does not require that.

[00:10:28] Speaker 03:
And so the fact that Byke expressly teaches the exact ratio in these claims shows that the ratio would have been obvious to one of ordinary skill in the art, regardless of what other recommendations the Byke reference provides.

[00:10:42] Speaker 03:
So in sum, the board aired in its analysis of grounds three and four, which led it to reach the wrong conclusions regarding patentability of a few claims.

[00:10:51] Speaker 03:
If there are no further questions, Apple asks this court to reverse or vacate and remand with respect to grounds three and four.

[00:10:57] Speaker 00:
We will save your time, Ms.

[00:10:58] Speaker 00:
Oliver.

[00:11:00] Speaker 00:
Mr. Liddell.

[00:11:13] Speaker 02:
Good morning, and may it please the court, Brian Liddell for Core Photonics.

[00:11:17] Speaker 02:
I would like to start with Apple's appeals and then I'll turn to the cross-appeal if the court's permission.

[00:11:24] Speaker 02:
I think as to both of the issues that Apple argued relating to grounds three and four of the petition, it's clear that the board's decision was based on a weighing of the evidence and a finding that Apple's evidence, particularly as to the motivation to combine, was simply not compelling, not persuasive.

[00:11:44] Speaker 02:
In each of those two grounds, the board considered all the evidence.

[00:11:48] Speaker 02:
It weighed that evidence.

[00:11:50] Speaker 02:
It made findings specific to the points that Apple presented and in the manner that Apple presented them as a basis for finding them non-persuasive.

[00:12:00] Speaker 02:
It's hard for me to imagine how that doesn't satisfy the substantial evidence test, particularly when we're talking about a finding against the party with the burden of proof.

[00:12:08] Speaker 02:
So the board is entitled to find that the evidence is simply not persuasive, that the expert did not persuasively explain the motivation to combine, and that's a sufficient basis for the board to find.

[00:12:20] Speaker 02:
no finding of obviousness as it did in these two grounds.

[00:12:25] Speaker 02:
I'm happy to address specific questions about that if the court has them.

[00:12:28] Speaker 01:
I have just one.

[00:12:29] Speaker 01:
Ogyno, where does the board make a finding that the shape of that first lens is a defining feature of that prior art reference?

[00:12:39] Speaker 02:
Sure.

[00:12:40] Speaker 02:
So the board has a discussion of that at page 38 of the appendix.

[00:12:46] Speaker 02:
And specifically, it quotes a portion of Ogyno.

[00:12:49] Speaker 02:
I think it may be Ogino, I'm not entirely sure.

[00:12:52] Speaker 02:
But in any event, I did want to clarify, because there's a block quote here, but it may be a little difficult to parse, because what the reference says is that the first lens, the one that's closest than the one we're talking about, it has a meniscus shape which is convex toward the object side.

[00:13:11] Speaker 02:
Now what that means, so a meniscus-shaped lens, it's a curved lens where you have, so if it's convex on the object side, necessarily it is concave on the image side.

[00:13:21] Speaker 02:
So that's where the board is finding that.

[00:13:23] Speaker 02:
That discussion of Ogino's reference to the need for a meniscus shape for that lens, that's why it's important that it be concave.

[00:13:32] Speaker 01:
The idea that that's a defining feature of that prior reference, however we pronounce it, is that your words or is that the board's words, defining feature?

[00:13:42] Speaker 02:
I believe the board accepted the

[00:13:50] Speaker 02:
So we certainly made that argument.

[00:13:53] Speaker 02:
And I think the board accepted it in the paragraph immediately above the block quote.

[00:13:57] Speaker 02:
They note that that's the argument.

[00:13:59] Speaker 02:
And they point to this very quote as support for that point.

[00:14:04] Speaker 02:
So I think the board accepted that argument and made findings based on that, as shown in that page of the appendix.

[00:14:14] Speaker 02:
Unless there are other questions about those first two issues, I'll turn to the cross appeal.

[00:14:19] Speaker 02:
So the cross appeal raises a rather different set of issues this this was ground two of the petition and ground two of the petition related to making a change

[00:14:33] Speaker 02:
basically was argued to be modifying one of the lenses in a very particular way.

[00:14:39] Speaker 02:
And the problem with that modification was the evidence showed that you couldn't actually make it in the real world, that it was essentially an impossible lens.

[00:14:49] Speaker 02:
There was extensive evidence presented that, in fact, this lens was so thin in its edges that using the techniques the board said you would have to use, you couldn't make it.

[00:15:01] Speaker 02:
the expert evidence showed you couldn't make it with any technique.

[00:15:05] Speaker 02:
Apple never rebutted that evidence.

[00:15:07] Speaker 02:
It never presented any evidence showing that you could actually make the lens in the modification form that was presented in the petition.

[00:15:15] Speaker 02:
It essentially did two things.

[00:15:17] Speaker 02:
It misdirected and suggested that the argument was about commercial scale manufacturability as opposed to just the basic ability to make the lens ever.

[00:15:26] Speaker 02:
And second,

[00:15:29] Speaker 02:
incorrectly relied on essentially a sleight of hand in Apple's reply where Apple presented an entirely different design that was nowhere in the petition and suggested that that design could be manufactured.

[00:15:41] Speaker 02:
While that may or may not be true, it can't show that the design actually presented in the petition could be manufactured.

[00:15:48] Speaker 02:
Showing that you could make one thing doesn't necessarily prove, and they presented no evidence as to how it could prove that you could make the other, which was what was actually presented in the petition.

[00:15:57] Speaker 02:
And it's pretty clear that the board made this error and actually relied on not the, it relied on, it essentially mischaracterized core photonics position.

[00:16:11] Speaker 02:
So Core Photonics explained, you can't make this lens.

[00:16:15] Speaker 02:
The board characterized that instead falsely as you couldn't make it on a commercial scale.

[00:16:21] Speaker 02:
That's at Appendix 33.

[00:16:23] Speaker 02:
It characterized the problem as large-scale manufacturing considerations.

[00:16:27] Speaker 02:
But that wasn't what was presented.

[00:16:29] Speaker 02:
What was presented, in the SIR reply in particular, was that you couldn't make it at all.

[00:16:37] Speaker 02:
This was explained both in the

[00:16:40] Speaker 02:
in the survey itself, for example, at appendix pages 61, 53 to 55, but also in the testimonial submissions from core photonics expert, Dr. Milster, who explained that this couldn't be made, that it wasn't feasible.

[00:16:58] Speaker 02:
There are citations to that in our brief, but specifically he discussed that at pages

[00:17:05] Speaker 02:
54-67 to 68 of the appendix and at 55-47 to 48 of the appendix.

[00:17:13] Speaker 02:
That's Dr. Milster's deposition testimony about that issue.

[00:17:19] Speaker 02:
I'm happy to address questions if you have them about this issue.

[00:17:26] Speaker 01:
In assessing your argument that the board mischaracterized your own argument, is that a question that we review for abuse of discretion?

[00:17:38] Speaker 02:
Because the question is, did the board actually address the arguments presented below?

[00:17:44] Speaker 02:
I believe that's a substantial evidence question.

[00:17:47] Speaker 02:
Was there substantial evidence for the board's finding?

[00:17:49] Speaker 02:
We submit the one aspect that the board had to find was that this lens that Apple was arguing would have been obvious to make based on the prior art was a lens that a person skilled in the art could actually make.

[00:18:04] Speaker 02:
That was something that was presented and it wasn't an argument that was ever addressed by the board.

[00:18:10] Speaker 02:
I don't think that's a substantial evidence.

[00:18:12] Speaker 02:
In fact, I would argue that failure to address an argument entirely or mischaracterization of that argument in failing to address it is a legal error that arguably could be reviewed for clear error and de novo, but at a minimum it's a substantial evidence question.

[00:18:28] Speaker 01:
Haven't we said though that the board has discretion to

[00:18:33] Speaker 01:
read the petition to read the briefs to figure out what arguments are actually before it.

[00:18:38] Speaker 01:
There's a limit, they can't abuse their discretion, but I would have thought this was something we look at for abuse of discretion.

[00:18:45] Speaker 01:
They read your brief, they look at your expert, they try to understand your argument, they're entitled to maybe get a little bit wrong, but we have a deferential review of how they read it.

[00:18:56] Speaker 01:
That's not correct?

[00:19:00] Speaker 02:
i don't think this is about just interpreting the argument i think it's really taking one argument and replacing it with a different i mean it

[00:19:09] Speaker 01:
So if they did that, that would be an abusive discretion.

[00:19:12] Speaker 01:
Maybe you hesitate to say that.

[00:19:13] Speaker 02:
I would say even under the abusive discretion standard, I think this was an abusive discretion in the sense that the board clearly went far beyond or radically changed the argument.

[00:19:27] Speaker 02:
So their whole discussion is about commercial manufacturability, which they also sort of isn't part of the claims.

[00:19:35] Speaker 02:
But that ignores that manufacturability in the sense of being able to make the thing that you're claiming is an obvious thing is absolutely a consideration you would have to have.

[00:19:46] Speaker 02:
The claims are not to some hypothetical or fictional lens.

[00:19:50] Speaker 02:
They're directed, or a lens assembly, they're directed to a real thing that is a lens assembly.

[00:19:55] Speaker 02:
A person of skill in the art confronted with that and looking at the prior art who concluded that a potential combination of the prior art

[00:20:03] Speaker 02:
could only be made in a hypothetical world and not in the real world, there's no question that there'd be no motivation to make such a combination.

[00:20:13] Speaker 02:
That's completely contrary to all of the case law.

[00:20:18] Speaker 02:
This isn't a case where, well, you might try to make it for particular reasons.

[00:20:24] Speaker 02:
And there were arguments made, oh, well, people of skill in the art might be interested in making lenses for research purposes or study purposes.

[00:20:32] Speaker 02:
But you still have to be able to make them.

[00:20:33] Speaker 02:
They still have to be things that could exist in the world, not

[00:20:37] Speaker 02:
hypothetical constructions of the mind, in the same way that a patent disclosing or talking about a time machine wouldn't be helpful here.

[00:20:45] Speaker 02:
That's the kind of lens that Apple was suggesting a person skilled in the art would choose to make.

[00:20:53] Speaker 02:
It's just completely unrealistic.

[00:20:58] Speaker 00:
We will save the rest of your time for a cross appeal, assuming there's something to rebut.

[00:21:06] Speaker 00:
Ms.

[00:21:07] Speaker ?:
Oliver.

[00:21:14] Speaker 03:
May it please the court.

[00:21:16] Speaker 03:
As to Apple's appeal, I'd like to focus just on ground three.

[00:21:20] Speaker 03:
Corporatonix could not point to a place in the board's decision where the board found that Ogino's lens shape was a defining feature of Ogino that could not be changed.

[00:21:28] Speaker 03:
So that is not an independent basis for affirming the board's decision.

[00:21:32] Speaker 03:
The board based its decision on its requirement that Apple needed to show why this proposal was better than other options.

[00:21:39] Speaker 03:
And that is a legal error that impacted all four claims in ground three and favors vacator and remand.

[00:21:46] Speaker 03:
Now turning to Corfotonic's appeal with respect to ground two, the board's findings are supported by substantial evidence.

[00:21:53] Speaker 03:
Apple demonstrated, and the board found, that a procedure would have been motivated to lower the F number in Ogino's example.

[00:21:59] Speaker 00:
Why don't we speak English instead of using anagrams and talk about a person of ordinary skill?

[00:22:05] Speaker 03:
Thank you.

[00:22:06] Speaker 03:
Yes, yes, your honor.

[00:22:08] Speaker 03:
Apple demonstrated that one of skill in the arts would have been motivated to lower the F number in Ogino's example five to an F number of 2.8.

[00:22:16] Speaker 03:
And that's not in dispute.

[00:22:17] Speaker 03:
The only issue here is reasonable expectation of success.

[00:22:22] Speaker 03:
Now, Corporatronics has talked a lot about whether Apple's first example of a lens modified to have an f-number of 2.8 could be manufactured.

[00:22:30] Speaker 03:
But what we have not heard Corporatronics say is that one of skill in the art would not have expected success in lowering the f-number to 2.8 generally.

[00:22:38] Speaker 03:
In other words, Corporatronics has not explained why a person of ordinary skill in the art

[00:22:44] Speaker 03:
would not have been able to make the claimed invention.

[00:22:47] Speaker 03:
Instead, Corporatronics focuses only on the example Apple presented in its petition to show how this could be done.

[00:22:53] Speaker 03:
But that is just one possible lens to sign, as Apple explained in its petition at appendix page 479.

[00:23:00] Speaker 03:
There is evidence that Apusita can make a modified version of Ogino's example 5.

[00:23:05] Speaker 03:
with an F-number of 2.8.

[00:23:07] Speaker 03:
First, Apple, of course, provided other reasons why One of Skill in the Art would have made these lens assemblies, aside from manufacturability.

[00:23:15] Speaker 03:
Apple also went further and explained that if One of Skill in the Art wanted to address the particular manufacturing concerns raised by Corpotonics, One of Skill in the Art could have done so

[00:23:26] Speaker 03:
without changing the fact that the claim limitations would still have been satisfied.

[00:23:30] Speaker 03:
And this is particularly true given the high level of skill in the art here, which includes knowledge of how to use Linux design software such as Zmax.

[00:23:40] Speaker 03:
And there's a helpful discussion of this showing the high level of skill in the art here in the Fisher textbook that the parties have discussed in the briefing.

[00:23:50] Speaker 03:
Unless there are any specific questions from the court,

[00:23:52] Speaker 03:
Apple would respectfully ask that the court affirm with respect to ground two.

[00:23:58] Speaker 00:
Thank you Ms.

[00:23:58] Speaker 00:
Oliver.

[00:23:59] Speaker 00:
Mr. Lodol has some time on the cross appeal.

[00:24:06] Speaker 02:
I don't anticipate using all of it, but very briefly, I think the argument I heard my friend make a moment ago was that the example that Core Photonics pointed out was impossible in the proceedings below was only one possible design and that didn't preclude other possible designs.

[00:24:28] Speaker 02:
The key is it's the one design that Apple relied on in its petition.

[00:24:32] Speaker 02:
It's the only design Apple presented as showing that this supposed combination could be rendered or could render the claims obvious.

[00:24:42] Speaker 02:
They suggested in reply there was a completely different design that was nowhere presented in the petition that was a different way to allegedly combine the references.

[00:24:53] Speaker 02:
That goes well beyond this court's precedence, like Wasica, in terms of the changes that one's allowed to make on reply.

[00:25:02] Speaker 02:
That would be an entirely different way of combining the references, which is exactly what cases like Wasica say you're not allowed to do in reply.

[00:25:12] Speaker 02:
In other words, it was presented essentially in two possible ways, neither of which helps Apple.

[00:25:17] Speaker 02:
Either it's an entirely different combination of the prior art than what was presented in the petition, in which case it should never have been considered by the board.

[00:25:27] Speaker 02:
Or it supposedly helps to show that the combination actually presented in the petition could be made in the real world, but that's a logical fallacy and there was no expert testimony of any kind to connect those two and suggest that this one and whether it might have been manufacturable showed that the prior one could have been manufactured.

[00:25:47] Speaker 02:
And so in either event, that design presented in the reply can't save the board's failures here.

[00:25:55] Speaker 00:
Thank you to both counsels.

[00:25:56] Speaker 00:
The case is submitted.

[00:25:58] Speaker 02:
Thank you.