[00:00:00] Speaker 04:
The first case this morning is 22-1046 Intel Corporation versus Qualcomm, Inc., Mr. Dowd.

[00:00:09] Speaker 04:
You've reserved four minutes for rebuttal.

[00:00:11] Speaker 05:
I have your honor.

[00:00:13] Speaker 04:
You may proceed.

[00:00:14] Speaker 05:
Thank you, your honor.

[00:00:15] Speaker 05:
May it please the court tuned out on behalf of Intel.

[00:00:18] Speaker 05:
The board committed two principal errors.

[00:00:20] Speaker 05:
First, the board improperly read a selective boost requirement into claim 10 and 19 of the 558 patent.

[00:00:28] Speaker 05:
And second, for claims 15 through 20, the board interpreted the prior clock reference

[00:00:34] Speaker 05:
in a way that's not supported by substantial evidence and that even if the board's interpretation were credited, is inconsistent with the legal requirement, applies the anticipation requirement incorrectly.

[00:00:47] Speaker 05:
So starting with the claim construction issue.

[00:00:50] Speaker 05:
First, the board's conclusion that the claims, claims 10 and 19, would not have been obvious relies on the erroneous construction that reads a selective boost requirement into the claims.

[00:01:03] Speaker 01:
And I want to note.

[00:01:05] Speaker 01:
I have a question for you, before you get into the merits.

[00:01:08] Speaker 01:
Yes.

[00:01:08] Speaker 01:
One of the concerns I have here is this court previously considered an appeal in a related case

[00:01:16] Speaker 01:
where the same claim constructions for issues were raised as an alternative grounds for affirmance.

[00:01:23] Speaker 01:
But in addition, on the main appeal, those claim constructions would have been relied on to affirm.

[00:01:31] Speaker 01:
And we issued a rule 36 in that case.

[00:01:35] Speaker 01:
Am I bound by that determination in that case?

[00:01:39] Speaker 05:
So we thought through that at the time.

[00:01:41] Speaker 05:
And the reason that we argued

[00:01:44] Speaker 05:
the alternative grounds for affirmance was to preserve this claim construction issue, I think that you're not bound by that claim construction.

[00:01:52] Speaker 05:
And the decision in that case does not impact your ability to reach the claim construction issues now because you're not.

[00:01:59] Speaker 01:
You would agree, though, that the court's decision in that case rests on the narrower claim construction, right?

[00:02:13] Speaker 05:
So in that case, my recollection of the case is that it was primarily a motivation to combine issue.

[00:02:24] Speaker 05:
And the dispute was whether there was motivation.

[00:02:27] Speaker 05:
The board found motivation, and this court affirmed based on that finding.

[00:02:32] Speaker 05:
And so the court didn't need to reach the question of the claim construction to address that appeal.

[00:02:38] Speaker 05:
If, as we suggest, the claim is broader than the narrower construction that the board used, that would still stand.

[00:02:50] Speaker 05:
Because we suggest that the claim certainly covers an embodiment that has selective boost.

[00:02:59] Speaker 01:
But your argument, I hear what you're saying.

[00:03:01] Speaker 01:
The only problem is that in that prior case, the board had found the claims were not invalid in view of the part.

[00:03:09] Speaker 01:
And then we affirm that.

[00:03:12] Speaker 05:
I don't believe that's correct.

[00:03:13] Speaker 05:
That's incorrect.

[00:03:14] Speaker 05:
The board found that the claims were invalid over the prior art reference.

[00:03:19] Speaker 01:
And that's the appeal involved, the claims that were found invalid.

[00:03:23] Speaker 05:
That was, for example, claim 11.

[00:03:25] Speaker 05:
And in that case, it was a combination that included an additional reference called Myers.

[00:03:30] Speaker 05:
And that provided the selective boost that the board said was required by the claims.

[00:03:37] Speaker 05:
Here, we're talking about claim 10, independent claim from which claim 11 depends.

[00:03:43] Speaker 05:
And what claim 11 adds to claim 10 is actually the selective boost limitation that does not appear in claim 10.

[00:03:52] Speaker 05:
And so the issue is slightly different.

[00:03:54] Speaker 05:
And again, just getting back to your honor's question, if claim 11 is invalid under the narrower construction, it's certainly invalid under a construction that admits of both selective boost and boost only.

[00:04:07] Speaker 05:
So that, I think, addresses the issue.

[00:04:11] Speaker 05:
I come back to the standard, though.

[00:04:13] Speaker 05:
And this is just a bit of a reminder, because it's been a while since we've had, at least I've had a case under BRI.

[00:04:19] Speaker 05:
But this is a case under BRI.

[00:04:21] Speaker 05:
And I think that's important, because the standard, the construction standard is the broadest, and this is under CUSO speed, and the CFR is 37 CFR 42.100B.

[00:04:34] Speaker 05:
The board was required to give each claim the, quote, broadest reasonable construction in light of the specification in which it appears.

[00:04:42] Speaker 05:
And your honors will recall that there was a public policy reason behind that, which was the ability to amend the claims, which exists in IPRs.

[00:04:52] Speaker 05:
Here, the question before the board was therefore whether the construction proposed by Intel was reasonable in light of the specification.

[00:05:02] Speaker 05:
Intel's construction covers both embodiments that are disclosed in the specification, both the boost-only embodiment and the selective boost embodiment.

[00:05:13] Speaker 03:
Would Intel's construction though render some other portions of the claim meaningless, like the means for generating a second supply voltage?

[00:05:22] Speaker 05:
It would not, Your Honor.

[00:05:23] Speaker 05:
It would not.

[00:05:26] Speaker 05:
That language, I should say, actually is specifically informative of Broadcom's construction.

[00:05:35] Speaker 05:
So if you look to the means for generating limitation, it's a means for generating a second supply voltage based on the envelope signal and the boosted supply voltage.

[00:05:49] Speaker 05:
That is completely consistent with a boost-only embodiment.

[00:05:52] Speaker 05:
Because what it's saying is you're generating the second supply voltage based on the envelope signal and the boosted supply voltage.

[00:06:02] Speaker 05:
That is how the patent in the specification starting at column one and the disclosure in the summary of the invention actually describes the boost-only embodiment.

[00:06:12] Speaker 05:
And here I'm reading from column one, line 37.

[00:06:16] Speaker 05:
The envelope amplifier may receive an envelope signal and the boosted supply voltage and may generate a second supply voltage based on the envelope signal and the boosted supply voltage.

[00:06:28] Speaker 05:
Boosted only.

[00:06:29] Speaker 05:
Where the board goes awry, and this was Qualcomm's argument, was it then focuses on the PMOS term, this transistor, this PMOS transistor term.

[00:06:40] Speaker 05:
and says, well, the source of that transistor is recited as receiving the boosted supply voltage or the first supply voltage or the first supply voltage.

[00:06:52] Speaker 05:
And what the board did was say, based on the word or, we are going to require in this claim selecting between the two.

[00:07:00] Speaker 01:
Isn't the figure in the patent anyway, doesn't it show three of your mosses?

[00:07:04] Speaker 01:
I mean, I looked at it, and one of them has a P moss that receives the source voltage.

[00:07:08] Speaker 01:
One of them has a P moss that receives the boosted voltage.

[00:07:11] Speaker 01:
And one of them has a P moss that receives either the boosted voltage or the source voltage.

[00:07:18] Speaker 01:
And three of them.

[00:07:19] Speaker 05:
That is true, Your Honor.

[00:07:21] Speaker 01:
That's what, figure three?

[00:07:22] Speaker 05:
It's figure three, and it's also figure five.

[00:07:26] Speaker 05:
But the key here is, and this is, I think, why the BRI standard matters, is what the specification describes is it describes a boost-only embodiment.

[00:07:38] Speaker 05:
And I've pointed to column one, but column eight is explained.

[00:07:41] Speaker 02:
Are there other claims in this patent that are boost-only?

[00:07:45] Speaker 05:
No, Your Honor.

[00:07:46] Speaker 05:
Well, no, Your Honor.

[00:07:48] Speaker 05:
And that is, I think, an important issue.

[00:07:50] Speaker 02:
Do they all have this one?

[00:07:52] Speaker 04:
uh... all of the uh...

[00:08:13] Speaker 05:
I don't know that it would matter to my argument, Your Honor.

[00:08:15] Speaker 05:
But fortunately here, there are not such claims.

[00:08:20] Speaker 05:
All of the claims that we're talking about that actually recite boost at all, my colleague says, require selective boost.

[00:08:29] Speaker 05:
And that is the construction that was adopted below.

[00:08:32] Speaker 05:
And so we're in this curious position where the only claims that actually talk about boosting

[00:08:38] Speaker 05:
do not cover the boost only embodiment according to the board's construction.

[00:08:42] Speaker 05:
And we think that that is unreasonable because getting back to the standard, the question is, first, what is the broadest construction in light of the specification?

[00:08:52] Speaker 05:
Well, the broadest construction would cover both embodiments.

[00:08:56] Speaker 05:
And then the question is, is covering both embodiments reasonable?

[00:09:00] Speaker 05:
And to Judge Stark's question, clearly it is, because the specification teaches both.

[00:09:07] Speaker 05:
And under this court's decision in Katz and in Immunex, there is a strong presumption against excluding a disclosed embodiment.

[00:09:19] Speaker 01:
What about the fact that there is no embodiment where the input

[00:09:24] Speaker 01:
the input voltage, the source voltage would be used.

[00:09:29] Speaker 01:
And the claims that you interpret them would include something that's in the prior art.

[00:09:34] Speaker 05:
That's actually the, that is the, well first, any claim that is invalid is anticipated by the prior art.

[00:09:41] Speaker 01:
I'm just saying it would include the admitted prior art in the specifications.

[00:09:45] Speaker 01:
So do we take that into account?

[00:09:48] Speaker 01:
If you say or means or, then you know, they admit that

[00:09:52] Speaker 01:
There's if there's an envelope circuit that just is doing its function based on the input voltage that that's in the prior.

[00:10:01] Speaker 01:
So maybe there's something from that discussion, the specification that helps to understand what they meant by order.

[00:10:10] Speaker 05:
But what they do disclose, Your Honor, is, and I'm reading here from column 8, they do disclose expressly an embodiment, and this is at line 25, where the entire envelope tracker is operated based on the V-boost voltage from the boost converter.

[00:10:25] Speaker 05:
So it is clearly a disclosed embodiment.

[00:10:28] Speaker 05:
And the question I think Your Honor had was, what about the operating on the first voltage only?

[00:10:33] Speaker 05:
There is no first only embodiment disclosed in the patent.

[00:10:38] Speaker 01:
There is none.

[00:10:40] Speaker 05:
But the boost only is also in the priority.

[00:10:43] Speaker 05:
That's the Choi reference that we say about it.

[00:10:45] Speaker 01:
I understand, but it's in the priority according to as the specifications written.

[00:10:49] Speaker 01:
That's what I meant.

[00:10:49] Speaker 05:
And so to get to that point, coming back to this source and the or, if all we had was the PMOS term alone, and it said based on the boost or the first,

[00:11:04] Speaker 05:
or is disjunctive.

[00:11:05] Speaker 05:
It means A or B. So if all we had was the PMOS term alone, then this claim could be met by a PMOS that receives either the boost or the first.

[00:11:16] Speaker 01:
The work of the- I'm sorry, Your Honor, but- I was just going to ask you about claim.

[00:11:19] Speaker 01:
I understand your argument on claim 10.

[00:11:21] Speaker 01:
I really do.

[00:11:21] Speaker 01:
But let me ask you about one of the arguments you have is that claim 11 really is reciting the selective boost.

[00:11:27] Speaker 01:
And therefore, you don't want to interpret claim 10 to have selective boost.

[00:11:31] Speaker 05:
Correct.

[00:11:32] Speaker 01:
Is that because they used the word either?

[00:11:34] Speaker 01:
I mean, using your logic, I could say, you can have to my kids.

[00:11:40] Speaker 01:
You can either have a donut, or you can have a bagel for breakfast, but you can't have both.

[00:11:45] Speaker 01:
I just said either or.

[00:11:47] Speaker 01:
I guess that's selective.

[00:11:49] Speaker 01:
But I mean, why do you think either means that they get to have both?

[00:11:54] Speaker 05:
If I can, Your Honor, first, I want to just finish the thought on the generating term and the work that it does in the claim.

[00:12:01] Speaker 05:
Because what's on the table is you've got a boost-only embodiment, a first-only embodiment, and then a selective boost embodiment, which would cover either of those, right?

[00:12:11] Speaker 05:
The work that is done by the generating limitation is to say, well, the second supply voltage, which is the output voltage from this circuit,

[00:12:21] Speaker 05:
is based on the envelope signal and the boosted supply voltage.

[00:12:25] Speaker 05:
So it's that language which says the claim doesn't cover the first only, not the language in the PMOS transistor.

[00:12:32] Speaker 05:
So that is how that gets squared.

[00:12:35] Speaker 05:
On claim 11, the interesting thing about claim 11, and I understand your honor's point that I'm sort of placing a lot of weight on the word either, but the reason I am is, again, because of the specification.

[00:12:49] Speaker 05:
So if there is a distinction between claim 10 and claim 11, it is this word.

[00:12:54] Speaker 05:
It is because it says and either the boosted or the first supply.

[00:12:59] Speaker 05:
And if we go back to column one, in the summary of the invention, those words are used to distinguish between the two embodiments.

[00:13:09] Speaker 05:
We have at line 37 the boost-only embodiment that I've already read.

[00:13:16] Speaker 05:
But then if we go down to about line 42,

[00:13:19] Speaker 05:
It proceeds to say, in one design, the envelope amplifier may further, so clearly it's permissive, it's not required, and it's an additional embodiment, it may further receive the first supply voltage and may generate the second supply voltage based on either the first supply voltage or the boosted supply voltage.

[00:13:40] Speaker 05:
So this is the language of claim 11.

[00:13:44] Speaker 05:
Appearing in the summary of the invention when they're introducing the idea of selective boost So that is why we would say claim 11 is the selective boost claim claim 10 is Is not so limited Thank you

[00:14:04] Speaker 03:
board.

[00:14:05] Speaker 03:
It is.

[00:14:09] Speaker 03:
Help me understand that because it seems the board is addressing pages 19 to 20 and maybe 23.

[00:14:21] Speaker 03:
Do you know.

[00:14:23] Speaker 03:
were aware they needed to take that step, but they somehow got it wrong.

[00:14:27] Speaker 03:
What's the argument?

[00:14:28] Speaker 05:
I think it's an as-applied failure, Your Honor.

[00:14:31] Speaker 05:
I agree with you that they cite the Microsoft case, but then what they go on to say is that when they apply the standard for anticipation, they say that it was not established that quark shows the elements of the claim in an embodiment.

[00:14:50] Speaker 05:
as arranged in the claim.

[00:14:51] Speaker 05:
And that is their specific ruling.

[00:14:53] Speaker 05:
That is where they're applying the law of anticipation.

[00:14:57] Speaker 03:
Are you saying they did not consider what a person still in the ARC would have thought was disclosed by the combination of embodiments in the law?

[00:15:08] Speaker 05:
Specifically, yes.

[00:15:09] Speaker 05:
That is the argument, because they say it is not disclosed in an embodiment.

[00:15:14] Speaker 05:
But that is not the law.

[00:15:15] Speaker 05:
And on that, I'd cite, Your Honor, the AT&T case

[00:15:19] Speaker 05:
which says, anticipation occurs when a prior reference discloses each element of the claim dimension, not only where a particular embodiment within a reference discloses each element of the claim dimension.

[00:15:31] Speaker 05:
So.

[00:15:34] Speaker 04:
Thank you, Your Honor.

[00:15:41] Speaker 00:
Sure.

[00:15:42] Speaker 00:
Mayor Goyes.

[00:15:44] Speaker 00:
The traditional pronunciation.

[00:15:48] Speaker 00:
May it please the court.

[00:15:49] Speaker 00:
I would like to begin where Mr. Dowd left off, which is the board's findings that claims 15 through 20 are patentable over-the-clock reference and entails failure to show otherwise.

[00:16:03] Speaker 00:
Anticipation is a pure question of fact.

[00:16:07] Speaker 00:
Likewise, the subsidiary issue of what a reference teaches a person of ordinary scale knee art is also a pure question of fact.

[00:16:16] Speaker 00:
The board's numerous findings here demonstrated that figures five and six are separate and distinct embodiments.

[00:16:23] Speaker 00:
And therefore, there was no anticipation under Intel's theory.

[00:16:28] Speaker 01:
Is it your position that if they're separate embodiments, they can't be relied upon in any way to anticipate?

[00:16:37] Speaker 00:
The way Intel presented its argument here, they cannot.

[00:16:40] Speaker 00:
Intel had one theory, which was figure five and figure six are a single embodiment.

[00:16:45] Speaker 00:
Intel never made the argument.

[00:16:46] Speaker 00:
that anticipation could be had under that once-in-visage standard, where figure five and figure six are separate embodiments, that they would somehow disclose the claimed subject matter.

[00:16:58] Speaker 00:
Intel had never made that argument.

[00:17:00] Speaker 00:
We know that.

[00:17:01] Speaker 01:
Did the board say that they waived that?

[00:17:04] Speaker 00:
The board did not say that they waived it.

[00:17:05] Speaker 00:
The board said.

[00:17:06] Speaker 01:
And the board addressed it.

[00:17:08] Speaker 00:
The board addresses that once-in-visage standard and the Microsoft decision, I believe, on pages 19 and 20 of the

[00:17:17] Speaker 00:
final written decision.

[00:17:18] Speaker 00:
And it mentions it in page, I want to say, 18 when it's reciting the party's arguments.

[00:17:23] Speaker 00:
What the board did there, the board's mention reflects the board's acceptance of Qualcomm's argument, which Qualcomm made throughout the IPR proceedings, that Intel failed to provide any evidence, offer any rationale, or supply any argument that a person of ordinary skill in the art would at once envisage the claim subject matter if

[00:17:45] Speaker 00:
as the board correctly found, figures five and figure six were separate embodiments.

[00:17:50] Speaker 00:
And we know that because Intel filed its IPR reply brief.

[00:17:55] Speaker 00:
Intel had two arguments in its IPR reply brief.

[00:17:58] Speaker 00:
First, at appendix four, four, two, five, eight, Intel

[00:18:05] Speaker 00:
made clear that it was relying exclusively on a single embodiment theory because Intel there argued that Qualcomm is, quote, wrong that figure five and figure six are separate embodiments.

[00:18:18] Speaker 00:
Likewise, its expert declaration parroted the language from its reply at 2068.

[00:18:24] Speaker 00:
The only other argument Intel made with respect to anticipation was that figure five alone would anticipate the challenge claims.

[00:18:34] Speaker 00:
And that's at appendix 4255 and a similar declaration, intelligence reply declaration at 2065.

[00:18:44] Speaker 00:
And the board correctly rejected that argument as untimely and waived.

[00:18:49] Speaker 00:
So if we look at the board's decision in context of the proceedings below and in the full context of

[00:18:56] Speaker 00:
the final written decision, it's clear that the board's reference to At Once In Visage and the Microsoft decision is accepting Qualcomm's argument that Intel did not provide any evidence.

[00:19:11] Speaker 00:
Importantly, Your Honors, we know Intel didn't make this argument because cases such as AT&T, Blue Calypso, and Kennametal, on which Intel now relies to assign legal error

[00:19:24] Speaker 00:
to the board were nowhere mentioned by Intel down below.

[00:19:28] Speaker 01:
Can I ask you a question?

[00:19:29] Speaker 01:
Of course.

[00:19:30] Speaker 01:
In this circumstance, where a party is citing figures five and six, they're arguing they're the same embodiment.

[00:19:37] Speaker 01:
There's a response that they're not the same embodiment.

[00:19:39] Speaker 01:
And they're saying figure five says all of it.

[00:19:42] Speaker 01:
They're relying on elements from figure five and six.

[00:19:45] Speaker 01:
How much of a burden is it to show the once-in-vision argument?

[00:19:51] Speaker 01:
How much evidence, what evidence are you looking for beyond

[00:19:55] Speaker 01:
the prior reference itself?

[00:19:58] Speaker 00:
I'd like to answer on two parts.

[00:19:59] Speaker 00:
First, Your Honor, there is no evidence here.

[00:20:00] Speaker 00:
So as a matter of record, there's no evidence that they would be combined.

[00:20:04] Speaker 01:
What would the evidence look like?

[00:20:06] Speaker 01:
Sure.

[00:20:06] Speaker 01:
That's what I'm asking.

[00:20:07] Speaker 01:
I'm trying to figure out, is it just some expert saying, well, I'm a person of ordinary skill in the art.

[00:20:12] Speaker 01:
I would look at these two figures, and I would think there's not that much difference between them.

[00:20:17] Speaker 01:
One has voltage.

[00:20:17] Speaker 01:
One has current.

[00:20:19] Speaker 01:
One seems to be a little bit more detailed than the other.

[00:20:21] Speaker 01:
But there are differences.

[00:20:22] Speaker 01:
So there must be different embodiments.

[00:20:24] Speaker 01:
But how much do I have to opine on?

[00:20:28] Speaker 00:
So let me approach it this way.

[00:20:29] Speaker 00:
It's a difference.

[00:20:30] Speaker 00:
Relying on a single embodiment versus separate embodiments, I think this court case law makes clear that it's a different test, a different standard, different evidence, and different elements of proof.

[00:20:39] Speaker 01:
Well, tell me specifically, what would be the case?

[00:20:43] Speaker 00:
There would have to be some evidence in the record that a person of skill in the art would immediately understand the claimed invention based on two separate embodiments.

[00:20:52] Speaker 00:
There's no evidence like that.

[00:20:53] Speaker 00:
The only evidence we have here is that figure five and figure six, the only evidence until presented.

[00:20:59] Speaker 00:
What form would be evidence?

[00:21:01] Speaker 00:
It would be expert testimony.

[00:21:03] Speaker 00:
It would be analysis of why a person of skill in the art would immediately be directed to envision the claimed subject matter based on two separate embodiments.

[00:21:15] Speaker 03:
If we put aside whether the argument was made and whether evidence was presented, is it your contention

[00:21:21] Speaker 03:
The board actually applied the test yet once envisioned combination Correctly or did they make a mistake and only say whether they would have once envisaged that there was a single embodiment that anticipated

[00:21:35] Speaker 00:
On this record, the board applied it correctly because there was no evidence to support that argument.

[00:21:41] Speaker 03:
But if there was evidence, then do you concede that they erred in how they applied the pass?

[00:21:48] Speaker 00:
Not at all, Your Honor, because the findings by the board demonstrate that a person of ordinary skill and the art would not at once envisage the claim subject matter based on two different embodiments.

[00:21:58] Speaker 00:
The board found that

[00:21:59] Speaker 00:
figure six operates in a current domain, whereas figure five operates in a voltage domain.

[00:22:06] Speaker 03:
Does the board ever address whether a person of skill in the art would at once envisage a combination of embodiments disclosed in clock that would together teach all the elements of your claims?

[00:22:19] Speaker 00:
I think the board on page

[00:22:22] Speaker 00:
I want to say page 19 or 20 makes clear that Intel failed to provide sufficient evidence and arguments to address the differences between figures five and six.

[00:22:35] Speaker 00:
And therefore, the board did not go on to that last.

[00:22:43] Speaker 00:
Correct.

[00:22:43] Speaker 00:
So with respect to the anticipation arguments, Your Honor, under the deferential standard, the board's findings

[00:22:48] Speaker 00:
are fully supported on the record, especially in view of the arguments that Intel itself presented and the only theories that Intel advanced.

[00:22:57] Speaker 00:
I would now like to turn to the claim construction argument.

[00:23:01] Speaker 00:
Here, the board correctly construed

[00:23:03] Speaker 00:
the language at issue in claims 10 and 19 to mean that two alternative voltages are available at the source to be used to generate a second supply voltage.

[00:23:17] Speaker 00:
That is the first supply voltage or the boost voltage.

[00:23:22] Speaker 00:
The board's construction fully aligns with the intrinsic evidence and the claim language.

[00:23:28] Speaker 00:
If we use claim 10 as an example,

[00:23:31] Speaker 00:
Claim 10 is written in means plus function format.

[00:23:35] Speaker 00:
The language at issue here is part of the second means plus function limitation in claim 10.

[00:23:42] Speaker 00:
As the board noted, there is no dispute that the corresponding structure for the second limitation in claim 10, this is at appendix 4041, is the structure 170A, which appears in figures three and figure five.

[00:23:59] Speaker 00:
and the 558 patent uniformly and consistently describes structure 170A in figures three and figures five and in the text as providing a V battery voltage which is the claimed first supply voltage and a V boost which is the claimed boosted voltage.

[00:24:19] Speaker 00:
Second, Ford correctly rejected Intel's construction because it is not reasonable.

[00:24:26] Speaker 00:
This court makes clear

[00:24:27] Speaker 00:
that if a construction renders claim language a nullity, that construction is disfavored and wrong.

[00:24:35] Speaker 00:
But Intel's construction does precisely that.

[00:24:38] Speaker 00:
Under Intel's approach, only a first supply voltage need be available.

[00:24:44] Speaker 00:
In that case, the claim language in the second means plus function limitation, which recites generating a second supply voltage

[00:24:53] Speaker 00:
based on a boosted voltage would be annulled because no boosted supply voltage would be available.

[00:25:01] Speaker 01:
Just for a minute, just testing that theory, what if somebody wanted to write a claim that was broad enough they could cover both embodiments?

[00:25:12] Speaker 01:
They could, right?

[00:25:14] Speaker 01:
It doesn't necessarily mean the language is annulled.

[00:25:16] Speaker 00:
It means it's broad.

[00:25:19] Speaker 00:
Under Intel's construction, it would render a nullity.

[00:25:22] Speaker 00:
And claim 11 does cover both embodiments.

[00:25:25] Speaker 00:
Claim 11 recites.

[00:25:27] Speaker 00:
Claim 11 modifies the recited function in claim 10 and says that the boosted voltage can be generated by, I'm sorry, the second supply voltage can be generated by a boosted voltage or a first supply voltage.

[00:25:41] Speaker 00:
So that modifies the functional limitation in the second means plus function clause in claim 10.

[00:25:46] Speaker 00:
That's separate and apart from the structure that is necessary to carry out invention.

[00:25:53] Speaker 01:
What about claim 19?

[00:25:54] Speaker 01:
I mean, claim 19 kind of stands on its own.

[00:25:57] Speaker 01:
It's the first time that the first applied voltage and the boosted supply voltage are discussed.

[00:26:05] Speaker 01:
And it simply says, you've got a boost converter operative to receive the first applied voltage and provide a higher voltage.

[00:26:12] Speaker 01:
And then the envelope amplifier operates based on the first supply voltage, or the boosted supply voltage.

[00:26:18] Speaker 01:
I mean, that could just be somebody saying, I want to have a claim that's broad enough to cover either scenario, either circuit.

[00:26:24] Speaker 01:
And sometimes patent owners do write broad claims, right?

[00:26:30] Speaker 00:
They do, but I don't think that in any way undermines the board's construction here.

[00:26:34] Speaker 01:
I see.

[00:26:34] Speaker 01:
But I'm trying to understand your argument that it somehow makes some language

[00:26:39] Speaker 01:
Superfluous, just because the envelope amplifier doesn't operate on the boosted supply voltage.

[00:26:44] Speaker 00:
And with respect to claim 19, right, Your Honor, I think, as we explained in our brief, if only the first supply voltage were available under Intel's construction, there would be no need to generate a second, there would be no need to have a boosted voltage with claim 19.

[00:27:02] Speaker 01:
But what if they wanted to have a claim that was broad enough that would cover either scenario?

[00:27:09] Speaker 00:
And I think the claim language does that in view of the board's construction.

[00:27:15] Speaker 00:
Do you think our rule 36 in the earlier states has any impact on our decision to vet?

[00:27:21] Speaker 00:
It's suggestive, but I agree with Mr. Dowd that it was a case where the board, this court affirmed under a broader construction.

[00:27:30] Speaker 00:
I don't think it does.

[00:27:33] Speaker 01:
So you don't think that that case finds our determination in the claim construction today?

[00:27:38] Speaker 00:
I think it's a justice, but it was a rule 36.

[00:27:40] Speaker 00:
I do not.

[00:27:45] Speaker 00:
Unless there's any further questions, I would ask that the court affirm the board's findings of patentability with respect to the challenge claim.

[00:27:52] Speaker 00:
Thank you.

[00:27:56] Speaker 05:
If I may, Your Honors, I'd just briefly address the clock issue, unless there are questions about any.

[00:28:01] Speaker 04:
No, I'd like to hear about that.

[00:28:03] Speaker 04:
OK.

[00:28:04] Speaker 04:
Because it does sound to me like, I mean, I understand your argument from the floor.

[00:28:08] Speaker 04:
I understand your friend's argument that this, that you concentrated on arguing that five and six were the same body notes.

[00:28:16] Speaker 04:
And that's why the board didn't address this other way.

[00:28:23] Speaker 05:
We did, Your Honor.

[00:28:25] Speaker 05:
And I would start by suggesting that the very point that we were making is you would read these two things together.

[00:28:40] Speaker 05:
That was the thrust of our point in our brief.

[00:28:42] Speaker 05:
We cited them together, and we cited how they were read together.

[00:28:46] Speaker 05:
And by making that argument, we were saying a person of skill would read them together.

[00:28:51] Speaker 04:
But that's different than saying they're just one in a more detailed version of the same body.

[00:28:59] Speaker 05:
I don't think that it is, Your Honor.

[00:29:02] Speaker 04:
Why not?

[00:29:05] Speaker 04:
Honestly, that doesn't make a lot of sense to me.

[00:29:07] Speaker 04:
If there are two embodiments, and you say, well, a person still could read them together to anticipate this pattern, that's still two embodiments.

[00:29:17] Speaker 04:
But it seems like your argument was focused on these aren't two embodiments at all.

[00:29:21] Speaker 04:
it's the same embodiment, the second one just provides more detail.

[00:29:25] Speaker 05:
So, to be clear, Your Honor, our primary argument, and this is driven by the text of Kwok, is that figure five discloses how to implement figure six.

[00:29:36] Speaker 05:
And Kwok says this expressly, which is why we say the board's finding lacks substantial evidence.

[00:29:42] Speaker 05:
It says,

[00:29:43] Speaker 05:
In discussing figure five, although the feed forward signal can be injected after the integrator, it's added before the integrator in figure five, and here's the key, considering the implementation of the summing circuit, that's the circuit we care about, summing current, summing voltage, and the integrator will be explained in the next section.

[00:30:06] Speaker 05:
The next section is figure six.

[00:30:08] Speaker 05:
And then in figure six, it actually addresses

[00:30:12] Speaker 05:
The summation, and it says, I think one of your honors pointed this out, you can implement that summation in the voltage domain or the current domain.

[00:30:21] Speaker 05:
Either one of those implementations is within what we are describing.

[00:30:25] Speaker 05:
So that is why there is a lack of substantial evidence.

[00:30:30] Speaker 05:
And if we go to A19 to 20, which is where the board's analysis is,

[00:30:35] Speaker 05:
The only evidence they cite is their own reading of this page of quokk.

[00:30:41] Speaker 05:
They don't cite any expert testimony in support of that at all.

[00:30:44] Speaker 05:
But there was expert testimony.

[00:30:46] Speaker 03:
What evidence do you present?

[00:30:47] Speaker 05:
But there was an expert testimony.

[00:30:49] Speaker 05:
And here I would go to, I think it's A1289 through 1290.

[00:30:55] Speaker 05:
This is Dr. Apsel from Cornell who is analyzing these figures.

[00:31:01] Speaker 05:
And what she says is, and this gets Judge Shoes to your point, what she's saying is,

[00:31:07] Speaker 05:
You know, whether they're one embodiment or two, you would read them together.

[00:31:12] Speaker 05:
She specifically says, figure six of Kwok, which is a detailed implementation of the type of circuit shown in figure five.

[00:31:20] Speaker 05:
shows these same features, and then she highlights the correspondence between them.

[00:31:25] Speaker 05:
And then over on 90, she walks through how a person of skill would read these two figures together.

[00:31:32] Speaker 05:
Quartz figure six includes the summing circuit, which identifies the combination of the summing circuit in figure five, which she identifies using the epsilon, and the integrator in figure five.

[00:31:46] Speaker 05:
And then as shown in Figure 6, you can bring them together.

[00:31:48] Speaker 04:
OK, but to me, this sounds like a different argument than I thought you were making, which is it still sounds to me you're arguing now at the point that the board's decision that these are two embodiments of a substantial object.

[00:32:03] Speaker 04:
But what I was interested in hearing is the alternative theory of the legal heir, that the board has not applied the other form of anticipation, that a skilled artist can look at two separate embodiments and still

[00:32:20] Speaker 04:
I don't see where you've made it.

[00:32:22] Speaker 04:
And this stuff you're pointing to doesn't sound like that argument.

[00:32:26] Speaker 05:
So maybe I'm misapprehending the question, because I was attempting to direct you to where the evidence that supports that you could read these two together was.

[00:32:35] Speaker 04:
But the other thing is not reading them together.

[00:32:38] Speaker 04:
It's saying one is a more detailed explanation of the other one.

[00:32:46] Speaker 04:
So it's the same in body language.

[00:32:47] Speaker 05:
well actually it's it's I think it does both duty but but if there's any doubt about this here with the word type of.

[00:32:55] Speaker 01:
You emphasize the word type of figure six o'clock which is a deep detailed implementation of the type of circuit shown in figure five.

[00:33:04] Speaker 01:
Were you really trying to emphasize that type of language?

[00:33:07] Speaker 05:
I'm not trying to place overemphasis on the word type of.

[00:33:11] Speaker 01:
I thought maybe you were trying to say that that was showing that maybe even if they were different embodiments, they relate.

[00:33:18] Speaker 04:
Your quote is a response to their argument that these are two embodiments, where you say, even if these are two embodiments, anticipation law still provides an end to that standard.

[00:33:28] Speaker 04:
Is there anything in your briefing that said that?

[00:33:31] Speaker 05:
It happened directly at the hearing, Your Honor.

[00:33:33] Speaker 05:
And this was an argument that they were... Yes, A4486 and the discussion between Mr. Goldenberg and Judge Jefferson that appears starting on that page through 488.

[00:33:46] Speaker 05:
And the reason I'm citing you there is, and this is starting at line 10,

[00:33:51] Speaker 05:
Mr. Goldenberg, who's arguing below, says the argument is that quark anticipates.

[00:33:56] Speaker 05:
Quark is a reference that includes both figures five and figure six, and those figures inform each other.

[00:34:02] Speaker 05:
So he's saying a person of skill would read those figures together.

[00:34:06] Speaker 05:
And then he goes on to reference the Viscati case, which is Microsoft versus Viscati.

[00:34:11] Speaker 05:
That's the standard.

[00:34:13] Speaker 05:
And then Judge Jefferson asked the question, does it matter if five and six are directed at different embodiments of the invention?

[00:34:20] Speaker 05:
So we're specifically addressing this different embodiments idea.

[00:34:23] Speaker 05:
And Mr. Goldenberg argues, we would agree with that.

[00:34:27] Speaker 05:
We would agree that, and the law that the patent owner cites, the Biscotti case, those embodiments were incompatible embodiments.

[00:34:37] Speaker 05:
there is nothing incompatible about figures five and six.

[00:34:41] Speaker 05:
They're directed to the same thing.

[00:34:43] Speaker 05:
So he's specifically arguing that even if these are separate embodiments, they are still compatible.

[00:34:49] Speaker 05:
You would still bring them together.

[00:34:51] Speaker 05:
And then if we go over to 4487, I mean, our point about figure six is that it sheds light on how one of ordinary skill would understand figure five.

[00:35:02] Speaker 04:
OK, Mr. Dodd, I think they have an argument in the lifetime.

[00:35:06] Speaker 05:
Thank you, Your Honor.

[00:35:08] Speaker 04:
Appreciate it.