[00:00:03] Speaker 03: We have six cases on the calendar this morning. [00:00:10] Speaker 03: Four of them from the PTAB involving the same parties. [00:00:14] Speaker 03: One from the Veterans Court and one from the Times Court. [00:00:18] Speaker 03: And these latter two will be submitted on the briefs and not be argued. [00:00:24] Speaker 03: The first argued case is Apple versus Massimo Corporation. [00:00:30] Speaker 03: 2022, 1890, Mr. Spranklin. [00:00:47] Speaker 00: May it please the court. [00:00:48] Speaker 00: My name is Thomas Spranklin and I represent Appellant Appalink in this matter. [00:00:51] Speaker 00: I'll try to reserve three minutes for rebuttal. [00:00:54] Speaker 00: Your honors, it is a bedrock principle that the language of the claims control the scope of the invention. [00:01:00] Speaker 00: Here, the claim language all points in the single direction, that the board erred by construing processing characteristics as characteristics determined from a signal received from one or more light detectors. [00:01:11] Speaker 00: Independent claim one, for example, shows that the inventor knew how to write out the board's preferred construction, and yet still chose to use a broader term, processing characteristics, elsewhere in that very claim. [00:01:22] Speaker 02: Well, is it your contention that processing characteristics has a plain, ordinary meaning that wasn't applied here? [00:01:28] Speaker 00: Yes, Your Honor. [00:01:30] Speaker 00: The plain and ordinary meaning we proposed to the court, let me just make sure I'm reading this precisely, was characteristics or features obtained from or used for processing information. [00:01:42] Speaker 00: That's in our petition. [00:01:44] Speaker 00: And so, Your Honors, we would submit that at a minimum, the board erred by adopting this narrower construction. [00:01:49] Speaker 02: But this isn't really a plain and ordinary meaning of the terms, right? [00:01:52] Speaker 02: This is more a question of whether or not there's any limitation to what could be construed as a broad, unlimited term. [00:01:59] Speaker 02: Is that what's at stake here? [00:02:01] Speaker 00: Your Honor, I might respectfully disagree with that. [00:02:03] Speaker 00: I think we have proposed a plain and ordinary meaning of the phrasing. [00:02:06] Speaker 00: I would refer you to the active video case, which we cited in our reply brief. [00:02:10] Speaker 00: That actually involved far more complicated language than what we have here. [00:02:13] Speaker 00: I can quote it to if you like, but I'm sure you can find in the decision. [00:02:16] Speaker 00: And there, this court affirmed the district court that basically just looked at the words, said here's what they would mean to an ordinary person. [00:02:22] Speaker 00: Didn't look to further evidence, just looked at the terms and the language of the patent, and construed them from there. [00:02:27] Speaker 02: But this term is so broadly construed by you, it could fit in any context. [00:02:32] Speaker 02: Processing characteristics with no limit. [00:02:34] Speaker 02: So isn't it fear game and claim construction to look at the entirety of the specification and see if there's any real meaning in the context of these claims? [00:02:44] Speaker 02: This is a context question, right? [00:02:47] Speaker 00: So, Your Honor, a couple of responses to that. [00:02:48] Speaker 00: So I think, first of all, we would say that the specification doesn't provide any help in this area. [00:02:56] Speaker 00: It uses the term processing characteristics only once. [00:02:59] Speaker 00: And I think even my friends on the other side would not argue that that's definitional. [00:03:03] Speaker 00: What the board relied on was mostly one embodiment, which appears in Figure 4 in the patent. [00:03:08] Speaker 00: And of course, it's well understood that, in general, you cannot read an embodiment into the scope of the claims. [00:03:14] Speaker 00: The second point, Your Honor, I do think this is important [00:03:16] Speaker 00: is we didn't write the path. [00:03:19] Speaker 00: The inventor wrote it, and he or she chose to use very broad language. [00:03:24] Speaker 00: You can actually see this if you look at claim one, because I think this is worth looking at. [00:03:27] Speaker 00: The text is very specific for the first two limitations, but as you start going further into the claim, it gets broader and broader as you go. [00:03:34] Speaker 00: The inventor made a strategic choice that they wanted to use that term processing characteristics, which might sweep in more information. [00:03:40] Speaker 00: and not the earlier language they used in that same claim. [00:03:43] Speaker 00: But Your Honor, the claim one doesn't convince you. [00:03:45] Speaker 00: I do want to move to claim four, because there we have a superfluity problem. [00:03:48] Speaker 00: And I think we lay this out best at page 17 of our opening brief, where we lay out what it would actually look like if you wrote the board's proposed construction into the language of the claim. [00:03:59] Speaker 02: Before you get to that, and I'm fine with you doing that, but is there any dispute? [00:04:04] Speaker 02: The whole purpose of the invention [00:04:06] Speaker 02: is to get information from the patient and use it to adjust the device's power. [00:04:12] Speaker 02: So isn't it fair game in construction to look at what the whole point of what's going on here and to limit what is otherwise an unlimited term of processing characteristics that could apply [00:04:25] Speaker 02: to anything, anywhere, and construe it in the context of the invention? [00:04:31] Speaker 00: So, Your Honor, respectfully, no. [00:04:32] Speaker 00: And I guess one additional point I should have made to an earlier question you asked. [00:04:35] Speaker 00: You say that the term is unbounded, it's overly broad. [00:04:38] Speaker 00: We submit there are actually some things that fall outside of that. [00:04:41] Speaker 00: Let me give you one example. [00:04:43] Speaker 00: Battery level in the device, that's not something that relates to processing or is linked to processing in any way. [00:04:48] Speaker 00: but might otherwise map onto the terms of the claims. [00:04:51] Speaker 00: If the battery level reaches a certain point, you might switch to higher power processing. [00:04:55] Speaker 00: So we push back respectfully on the notion that this is an unbounded term. [00:04:59] Speaker 00: But, Your Honor, the reason why I don't think we look to the big notions in the specification, which, unlike all the cases the other side has cited, does not use this term in a definitional sense, even implied or explicitly, the reason why we care about this is the public notice requirement of patents. [00:05:15] Speaker 00: You get several decades protection for patents, and in exchange, you lay out your invention clearly in the terms of the claim. [00:05:21] Speaker 00: That's the deal that was struck with the public. [00:05:23] Speaker 00: Now, sure, if you write in the specification, I mean term X to mean Y. Absolutely, you can do that. [00:05:29] Speaker 00: If you say, I mean term X does not mean term Y. Absolutely, you can do that. [00:05:33] Speaker 00: But we don't have anything like that here. [00:05:35] Speaker 00: And the other side is not pointed to a similar case that I'm aware of that deals with this context where the key term to be interpreted appears only in the spec once and has no definition either implied or expressed. [00:05:47] Speaker 00: And so, Your Honor, we would submit that in that situation, you must look to the plain meaning of the term. [00:05:51] Speaker 00: And I think it's enough for you just to disagree with the board's interpretation. [00:05:54] Speaker 00: You could send it back, and the board could apply a plain meaning at that point. [00:05:58] Speaker 00: You don't necessarily need to adopt our plain meaning, although we think you certainly could. [00:06:01] Speaker 00: But I respectfully submit that with claim one and claim four, as I was mentioning, it's very difficult to read that limiting term into the broad language of processing characteristics. [00:06:10] Speaker 00: So I did want to return to claim four, Your Honor. [00:06:13] Speaker 00: So if you look at page 17 of our brief, our opening brief, we lay out what it would look like if you actually wrote this term into claim four. [00:06:23] Speaker 00: So instead of saying, wherein said processing characteristics comprise signal characteristics from one or more light-sensitive detectors, you end up with basically the same sentence twice. [00:06:34] Speaker 00: Processing characteristics determined from a signal received from one or more detectors configured to detect light comprise signal characteristics from one or more light-sensitive detectors. [00:06:43] Speaker 00: There's two points of superfluity here. [00:06:46] Speaker 00: You have the characteristics determined from a signal that's repeated with signal characteristics. [00:06:50] Speaker 00: And you also have detectors configured to detect light, which is repeated from one or more light-sensitive detectors. [00:06:56] Speaker 00: There's just no there there. [00:06:57] Speaker 00: Now, even if we accept the board's construction, which is that it's only partially duplicative, and I don't understand my friends on the other side to dispute that there is indeed some duplication in claim four from claim one. [00:07:08] Speaker 02: Yeah, but the answer was it provided additional [00:07:10] Speaker 00: Well, I might push back on that slightly, Your Honors, because the additional details that the board pointed to was signal characteristics. [00:07:16] Speaker 00: And as written in here, you would have characteristics determined from a signal, which seems very similar to me. [00:07:21] Speaker 00: But regardless, Your Honor, I would point you to the Siafi case, which I recognize is an unpublished decision. [00:07:26] Speaker 00: But I think it's persuasive precedent, because it's directly the situation we have here. [00:07:30] Speaker 03: Can't be persuasive precedent by definition. [00:07:36] Speaker 00: I'm sorry? [00:07:36] Speaker 03: It cannot be persuasive precedent. [00:07:39] Speaker 00: Excuse me. [00:07:40] Speaker 00: Persuasive reasoning, perhaps, Your Honor. [00:07:42] Speaker 00: Thank you. [00:07:43] Speaker 00: So CFI dealt with precisely the situation we have here, where there was one portion of a defendant claim that was rendered superfluous based on the construction. [00:07:51] Speaker 00: And the Siafi court held that was enough. [00:07:54] Speaker 00: And I think this goes back again to the public notice requirement that this court has spoke about in the Bicon case. [00:07:59] Speaker 00: We need the public to understand what is in the claims. [00:08:02] Speaker 00: And unlike in statutory construction or something like that, the inventor is actually getting a bargain here. [00:08:10] Speaker 00: The inventor is getting the patent monopoly for a set amount of time. [00:08:13] Speaker 00: They have an obligation to lay this out. [00:08:15] Speaker 00: And just one more point on this, Your Honor, is because I do think it's important. [00:08:19] Speaker 00: They could have fixed this problem at any time. [00:08:21] Speaker 00: They could have amended the patent during the initial examination process. [00:08:24] Speaker 00: They could have amended it during the IPR process. [00:08:27] Speaker 00: We raised this point prominently in our opening brief. [00:08:29] Speaker 00: The other side has no response to this. [00:08:31] Speaker 00: So if they truly wanted processing characteristics to have this narrower definition, signals received from one or more light detectors, they could have simply written that into the claim and resolved this issue. [00:08:41] Speaker 00: And they chose not to do that. [00:08:43] Speaker 00: So Your Honors, I would submit when you have two strong textual indications [00:08:47] Speaker 00: in the language of the claims, and nothing in the specification that speaks to this issue, and nothing in the prosecution history that speaks to that issue. [00:08:55] Speaker 00: All the interpretive clues we have go towards the conclusion that the board was mistaken in this case, and that a plain meaning should be applied. [00:09:05] Speaker 00: Happy to answer any further questions about that. [00:09:08] Speaker 00: So our other argument, your honors, is related to the DAB prior art reference. [00:09:13] Speaker 00: I would, I think, start with our APA-related argument. [00:09:17] Speaker 00: We presented two different arguments related to the app in our petition. [00:09:21] Speaker 00: The first one was you can save power in a pulse oximeter by stopping something called the artifact suspension module entirely. [00:09:31] Speaker 00: And the board did not buy that argument, and we are not objecting to that in this appeal. [00:09:36] Speaker 00: However, we also raised the second argument, that you can save power by partially suspending the motion artifact suspension module. [00:09:44] Speaker 00: And I think it can be a little bit, I think there's some difficulty here, because the phrase motion artifact suppression is very similar to motion artifact suppression module. [00:09:57] Speaker 00: But one is the broader term, and one is the narrower term. [00:10:00] Speaker 00: So the clearest place in our petition, Your Honors, that I would point you to, is at appendix 85, where we have a diagram that lays out figure 21 from Diab. [00:10:12] Speaker 00: And I think this is probably the clearest place in the record, so I just want to linger on it for a second. [00:10:17] Speaker 00: Figure 21 from DIAB lays out the motion artifact suppression module. [00:10:21] Speaker 00: So this is a diagram of it. [00:10:23] Speaker 00: And we circled two things in kind of ugly red boxes. [00:10:26] Speaker 00: And we said, these are additional processing for motion artifact suppression. [00:10:31] Speaker 00: And we left two things uncircled. [00:10:32] Speaker 00: That was the DC removal and the bandpass filter. [00:10:35] Speaker 00: The only reason to explain why there would be additional processing for motion artifact suppression within that module is under a partial suspension theory. [00:10:46] Speaker 00: And we explain that theory further in our reply brief, and that's at pages appendix 1688 to 1689, where we use exactly the same diagram that we used in our opening petition. [00:10:59] Speaker 00: And following it, we said, as shown in the example above, the clean plus thermograph waveform can be generated using traditional filtering techniques, such as bandpass filtering of the infrared signal, if motion is not detected, or using a correlation cancelor 571 if motion is detected, consistent with the app's disclosure. [00:11:18] Speaker 00: Alternatively, and I won't read it out to you, but alternatively, we said, you could suspend the module in its entirety. [00:11:24] Speaker 00: So we presented this theory in our petition, [00:11:26] Speaker 00: We defended it in our reply when the other side suggested that our argument was limited to the suspension. [00:11:32] Speaker 00: And we also raised it at the hearing itself. [00:11:34] Speaker 00: I can point you to appendix 2005 there, where we lay out one of our theories for obviousness was, quote, you shut down at least the portions of processing that are devoted to motion suppression. [00:11:45] Speaker 00: So, Your Honors, we submit that at a minimum, the board had an obligation under the APA to address this partial suspension argument. [00:11:52] Speaker 00: And that requires itself remand on all the DAB-based claims. [00:11:56] Speaker 00: If you have no further questions on that, I'm happy to answer them. [00:11:59] Speaker 00: But otherwise, I will turn to our last argument, which is also DIAB related, that the board erred by importing an adherency standard rather than the traditional KSR obviousness standard. [00:12:10] Speaker 00: This is fairly straightforward. [00:12:11] Speaker 00: The board used the word necessarily when talking about the learnings from DIAB and Amano. [00:12:17] Speaker 00: I think it said, it was not obvious because the spending use of the module wouldn't quote necessarily lessen power consumption. [00:12:24] Speaker 00: That is an appendix page 31. [00:12:26] Speaker 00: And of course, I don't think the other side disputes that the requirement that something necessarily must be present is both inherently and not required. [00:12:35] Speaker 00: KSR is a much more flexible standard. [00:12:38] Speaker 00: And I understand the other side to be, their main argument to be that, well, we forced this notion on the board by using confusing language and the board just adopted our language. [00:12:48] Speaker 00: And I want to be very clear, Your Honors, we didn't use the words necessarily. [00:12:52] Speaker 00: We simply talked, we did a regular obviousness standard analysis. [00:12:56] Speaker 00: Our expert used the phrase straightforward and obvious. [00:13:00] Speaker 00: And there was no suggestion of inherency in that. [00:13:02] Speaker 00: I understand that to be their primary response to the inherency argument. [00:13:06] Speaker 00: I'm happy to hear what my friend on the other side says when he stands up. [00:13:11] Speaker 05: Your honors, if you have no further questions, I'll reserve the rest of my time for rebuttal. [00:13:20] Speaker 00: Yes, Your Honor. [00:13:21] Speaker 00: I understand my friend's argument to be on the other side that we basically put words in the board's mouth, and we didn't use that word necessarily that the board then put into its decision. [00:13:30] Speaker 00: We focused more on the regular obviousness standards, or expert, as I said, mentioned straightforward and obvious. [00:13:35] Speaker 05: You used the word, maybe not the way the board understood it, but you can't say you didn't use the word. [00:13:43] Speaker 00: Well, Your Honor, I will stand up in rebuttal, and I'll look back to make sure I'm getting this precisely right. [00:13:48] Speaker 00: If we did use it in some context, I apologize. [00:13:51] Speaker 00: I believe what we said is that it would result in something, or we use the would phrasing rather than necessarily. [00:13:59] Speaker 00: But if we use necessarily, I will double check, and I will correct and recognize. [00:14:02] Speaker 00: OK. [00:14:02] Speaker 00: Thank you, Your Honor. [00:14:09] Speaker 03: Mr. Jensen. [00:14:13] Speaker 01: Thank you, Your Honor, may it please the court. [00:14:17] Speaker 01: Um, I will just address some of the points that, um, counsel made for the appellant. [00:14:25] Speaker 01: This I think is pointed out by Judge Prost is just an ordinary run of the mill claim construction under Phillips. [00:14:34] Speaker 01: This wasn't about simply the plain meaning of the words and didn't need anything more. [00:14:41] Speaker 01: The parties submitted constructions for these terms. [00:14:45] Speaker 01: And what they were arguing about was whether or not those were the, what was the ordinary meaning. [00:14:51] Speaker 01: So that all the talk about lexicography and disavowal and special definitions, that wasn't an issue. [00:14:57] Speaker 01: This was simply under Phillips, a normal run of milk case. [00:15:01] Speaker 04: What's your response to the other side's argument concerning public notice and how public notice relates to claim construction? [00:15:11] Speaker 01: Sure, as determined by the board, one of ordinary skill in the art would understand this claim to require that the processing characteristics are derived from the signals. [00:15:24] Speaker 01: And the court didn't just move to the spec. [00:15:27] Speaker 01: And we, of course, know from Phillips that the spec is the single best source of understanding these were not just plain terms that they argued didn't require any further construction. [00:15:40] Speaker 01: So the public was on notice as a result of what the claims actually said. [00:15:45] Speaker 01: And the only input in the claim and the only input in the patent, there is only one input to this system. [00:15:53] Speaker 01: And that's receiving one or more signals from one or more detectors configured to detect said light after attenuation by said tissue. [00:16:03] Speaker 01: I think what appellants are asking is that [00:16:07] Speaker 01: that be inserted everywhere that term shows up processing characteristics again. [00:16:15] Speaker 01: But the board did not just rely upon one embodiment in the spec. [00:16:20] Speaker 01: The board and Massimo. [00:16:23] Speaker 01: The board and Massimo relied upon the claims and the understanding that that is the input to the system. [00:16:29] Speaker 01: It is the only input to the system. [00:16:32] Speaker 01: So those processing characteristics must come from that. [00:16:36] Speaker 01: And this is part of the public record as well, which means nobody needs to ever worry that Massimo's point somehow suggests that these claims could just obtain anything from anywhere, a completely unbounded thing. [00:16:51] Speaker 01: We can't have the claims be so broad as to encompass things which are not supported by the specification. [00:16:59] Speaker 01: And that comes specifically from Phillips. [00:17:02] Speaker 01: It changed the law from the Texas digital time as the court full well knows. [00:17:08] Speaker 01: We're not at the time where, Hey, it's just what the words in the claims are. [00:17:12] Speaker 01: The case law sense then has made very clear that we turn to the entire intrinsic record. [00:17:20] Speaker 01: And in fact, Phillips said the specification is always highly relevant. [00:17:26] Speaker 01: The best source of understanding a technical term is the specification from which it arose. [00:17:33] Speaker 01: The claims do not. [00:17:34] Speaker 02: Yes, but we have a line of cases, and I know there are all these lines of cases that flow in claim construction, but the Thorner line of cases that say if there's just some claim in ordinary meaning, you need a clear and explicit disavowal or some sort of lexicography in order to limit the broad meaning of the claim. [00:17:53] Speaker 01: Correct. [00:17:54] Speaker 02: And Phillips doesn't change that. [00:17:56] Speaker 01: Correct. [00:17:57] Speaker 01: And in this case, as you pointed out previously, we weren't dealing with any contention by Apple that they just were understandable on their face and that therefore maybe a dictionary would be appropriate or nothing because everybody understands them. [00:18:16] Speaker 01: We're talking about a technical term, processing characteristics. [00:18:20] Speaker 01: And that processing characteristics, unbounded by anything, unbounded by the spec, [00:18:26] Speaker 01: could be anything, right? [00:18:29] Speaker 01: And so we weren't dealing with something that just has a plain meaning. [00:18:34] Speaker 02: Well, I think your friend would probably say on his public notice is, if that's the case, then it was incumbent upon the patent number to explain or curb or clarify that term as it appears in the claim. [00:18:51] Speaker 02: It's insufficient to do it in connection with embodiment. [00:18:56] Speaker 01: I think in the context of the patent and read as an intrinsic record as a whole, as the board did, the board didn't just start and end with the specification. [00:19:07] Speaker 01: The board, in pages 9 through 14 of its opinion, went through the entire intrinsic record, starting with the claims, noting that the claims had only one input. [00:19:19] Speaker 01: noting that they also dealt with the Claim 4 issue and the Claim 8 issue. [00:19:24] Speaker 01: Claim 4, they understood, further refined the claim to signal characteristics, and Claim 8 to power consumption. [00:19:34] Speaker 01: There were two types of things disclosed in the spec, physiological parameters and signal characteristics, which could be used for this threshold. [00:19:44] Speaker 01: the processing characteristics, therefore it's logical, it's broader than just signal characteristics because there were two different types described in the spec. [00:19:54] Speaker 01: But in terms of whether the public has noticed, one of the cases that council relied upon actually I think is pretty telling and that is [00:20:13] Speaker 01: Well, the court, council had turned to Chaffee and mentioned Chaffee. [00:20:18] Speaker 01: That was one of those cases where the court determined there were two elements in the dependent claim. [00:20:26] Speaker 01: and one of them would be rendered completely superfluous. [00:20:31] Speaker 01: And so the claim differentiation was not overcome. [00:20:34] Speaker 02: So we're talking about claim four here. [00:20:36] Speaker 01: And claim four just says that the processing characteristics comprise signal characteristics, right? [00:20:46] Speaker 01: And they like to [00:20:48] Speaker 01: loss over that, signal characteristics from the one were light detectors. [00:20:52] Speaker 01: And the light detectors are indeed the only thing that was involved. [00:21:02] Speaker 01: I think the kinetic concept case is also instructive. [00:21:06] Speaker 01: The term was wound. [00:21:09] Speaker 01: That's a pretty plain term. [00:21:13] Speaker 01: Wound can be almost anything. [00:21:15] Speaker 01: And the court held there that to construe the wound to include things that weren't in spec, which was only skin, to construe wound to include fistula and pus pockets would expand the scope of the claims far beyond anything described in the specification. [00:21:35] Speaker 01: I think that's what Apple is asking us to do here. [00:21:39] Speaker 01: It's just ignore the rest of it. [00:21:40] Speaker 01: Look at these things in a vacuum. [00:21:43] Speaker 01: Look at the terms in a vacuum. [00:21:45] Speaker 01: and construe them devoid and separated and divorced from the entirety of the intrinsic record. [00:22:03] Speaker 01: Intellectual Ventures case, I think is very telling. [00:22:08] Speaker 01: And Apple in its reply suggests we tried to cabin that case. [00:22:12] Speaker 01: The claim term was application-aware resource allocation, a technical term like processing characteristics. [00:22:21] Speaker 01: The construction of that term was a resource allocator that allocates resources based on application type, which can be discerned using information obtained from any of the network layer, transport layer, and application layer, seven. [00:22:41] Speaker 01: There was another claim. [00:22:42] Speaker 01: that specifically had two of those layers in it. [00:22:47] Speaker 01: None of that was in the claim that was being construed or the term. [00:22:52] Speaker 01: In our case, the only input to the system are the detected signals. [00:23:00] Speaker 01: The argument there was about whether or not it could be any one of those, as described in the spec, or it had to be just one of that. [00:23:09] Speaker 01: It had to at least come from layer seven. [00:23:12] Speaker 01: But the term was application aware resource allocator. [00:23:15] Speaker 01: The same argument could be made there. [00:23:17] Speaker 01: Well, we should just let that piece stand. [00:23:19] Speaker 01: That would indicate we don't need to provide a construction to terms. [00:23:23] Speaker 01: We're just going to let the terms stand, and we're going to give them to the jury, contrary to the precedent of this court. [00:23:32] Speaker 01: On THEO. [00:23:41] Speaker 01: Court has no more questions on, on claim construction, on DIOB. [00:23:46] Speaker 01: On the issue of these two arguments that were made, it's well covered in the briefs that, and throughout the reply, the headings say that it would not execute, it would suspend and not execute the operations. [00:24:05] Speaker 01: However, I think that we may have missed something in [00:24:11] Speaker 01: board's decision. [00:24:12] Speaker 01: The board did a very good job here of going through the evidence and cataloging it. [00:24:17] Speaker 01: And what the board said at page 28, Joint Appendix page 28, in that regard, we conclude the petitioner does not offer adequate evidence or argument that Diop contemplates either not generating a clean plesism graph, which would have to happen if you took their approach, or some [00:24:39] Speaker 01: non-use of that module in so generating a clean wavefront. [00:24:45] Speaker 01: The board's decision did not hinge on whether it was all or some. [00:24:51] Speaker 01: And something that the board never stated that was in Apple's reply at page 24 was that the board required the entire module. [00:25:00] Speaker 01: The word entire doesn't show up in the board's opinion. [00:25:04] Speaker 01: What the board said was, or some non-use of that module. [00:25:08] Speaker 01: in so generating a clean waveform. [00:25:11] Speaker 01: That's at page eight of the Joint Appendix. [00:25:18] Speaker 01: Interestingly, on that point, Apple simply argued that a skilled artisan could use only portions of the motion artifact suppression to create a clean, and that it could be used. [00:25:33] Speaker 01: That's not the test. [00:25:34] Speaker 01: The question is, would a one ordinary skill in the art [00:25:38] Speaker 01: do it that way, and why would they do it that way? [00:25:41] Speaker 01: And the board found Massimo presented plausible reasoning and evidence that such power reduction may not occur in Diab's differently structured and configured system, and credited the expert of Massimo as being the more credible. [00:25:58] Speaker 01: He also mentioned inherency. [00:26:01] Speaker 01: And I think Judge Raina had it right when the term used. [00:26:07] Speaker 01: They used the word, it would result in power consumption. [00:26:12] Speaker 01: The board was simply responding to the argument it was presented with. [00:26:16] Speaker 01: Apple argued this in their reply to the PTAB at page 9 in the heading, [00:26:24] Speaker 01: And page 13 in the text, that's joint appendix 1691 and 1695. [00:26:31] Speaker 01: And they did the same thing at the petition. [00:26:35] Speaker 01: That's in the joint appendix at 85. [00:26:39] Speaker 01: The board simply found the evidence by Dr. Monsetti more credible. [00:26:46] Speaker 01: They said, Posito would have found it obvious, would not have found it [00:26:52] Speaker 01: What Apple stated, sorry, was a posita would have found it obvious to suspend and not execute operations of DOB's Motion Artifact Suppression Module. [00:27:01] Speaker 01: The board found that Apple failed to show a reduction of power follows from the teachings. [00:27:09] Speaker 01: Apple never explained how a posita would do that. [00:27:12] Speaker 01: And what Apple had said was would, it would result, and the board was simply responding. [00:27:19] Speaker 01: the argument that was prevented, the board did not put an inherency obligation on Apple. [00:27:24] Speaker 01: Apple took the position that it would result. [00:27:28] Speaker 01: Didn't say it might result, said it would result. [00:27:31] Speaker 01: Again, at page 85, or at 1691 and 1696. [00:27:36] Speaker 01: And if there's no further questions, I will cede the rest of my time. [00:27:41] Speaker 03: Thank you, counsel. [00:27:43] Speaker 03: Frankly, has little under two minutes [00:27:49] Speaker 00: Thank you, Your Honor. [00:27:50] Speaker 00: I'll try to keep this to three points. [00:27:53] Speaker 00: So with regards to the claim construction point, my colleague, my friend on the other side referenced Phillips. [00:27:59] Speaker 00: We agree Phillips is the controlling law in the circuit. [00:28:01] Speaker 00: But what Phillips says is that the claim language is the bedrock of any interpretation. [00:28:06] Speaker 00: Now, we don't dispute that the specification and prosecution history are relevant and important. [00:28:11] Speaker 00: But the problem we have in this case, Your Honor, is that the specification history only uses the word processing characteristics once. [00:28:18] Speaker 00: Now, my friend mentioned the kinetics case, which talks about wounds. [00:28:21] Speaker 00: I actually think that's a bad case for them, because in the specification there, wounds came up multiple times. [00:28:26] Speaker 00: And so the court was able to take a look at that word in context, how it was used many, many times, and come up with a concrete definition. [00:28:34] Speaker 00: Here we only have one referencing to processing characteristics in the spec and nothing else. [00:28:39] Speaker 00: Now, related to that point, Your Honors, [00:28:40] Speaker 00: I understand, Your Honor Judge Prost, to be suggesting that this really only talks about light detectors. [00:28:45] Speaker 00: Respectfully, that's not quite true. [00:28:47] Speaker 00: Figure 3 in the patent has a provision 302, which is a sensor. [00:28:52] Speaker 00: The specification says that that could include EG 110, which refers to a light sensor, but it doesn't limit it to light sensors. [00:28:59] Speaker 00: So there is a room in the patent specification for something that goes beyond that. [00:29:03] Speaker 00: And I think the last point I will make, the notion that my colleague on the other side mentioned about physiological measurements being a processing characteristic in the spec, that's defined nowhere in the spec. [00:29:13] Speaker 00: That is what the expert said without citation in his report. [00:29:16] Speaker 00: Now, very quickly on the DIAB point, on the Appendix 28, we think the language my colleague has pointed to is ambiguous because the board talks about total suspension above and total suspension below. [00:29:25] Speaker 00: To the extent you think that the board bracingly addressed this issue, it clearly did not [00:29:30] Speaker 00: in the full meaning of what we suggested, including the petition with our annotated diagram. [00:29:36] Speaker 00: And on inherency, I just want to respond to Judge Raina's point. [00:29:40] Speaker 00: Your Honor, we looked quickly back at the briefing. [00:29:42] Speaker 00: We didn't see the word necessarily used in the context of inherency. [00:29:45] Speaker 00: It came up briefly when talking about the total suspension, but not the personal suspension. [00:29:49] Speaker 05: Apparently, I may have misspoken. [00:29:51] Speaker 05: You didn't use the word. [00:29:52] Speaker 04: You used it. [00:29:53] Speaker 04: It would. [00:29:54] Speaker 04: Yes. [00:29:54] Speaker 04: And the board came back and reasoned that you meant necessarily. [00:29:58] Speaker 00: That is correct, Your Honor. [00:30:00] Speaker 00: We would submit that error. [00:30:01] Speaker 00: Our expert used the proper obviousness standard. [00:30:04] Speaker 00: We were reliant on KSR. [00:30:05] Speaker 00: And so there's no reason for the board to incorporate a whole legal doctrine based on the word would. [00:30:10] Speaker 00: But I don't believe we use the word necessarily. [00:30:12] Speaker 05: You're right. [00:30:14] Speaker 00: Thank you, Your Honors. [00:30:14] Speaker 00: I think my time has expired. [00:30:15] Speaker 00: If there's any further questions, I'm happy to answer them. [00:30:18] Speaker 03: Thank you, counsel. [00:30:19] Speaker 03: Case is submitted. [00:30:20] Speaker 00: Thank you.