[00:00:00] Speaker 03:
Our next case for argument is 22-1127, Kinetic versus Samsung.

[00:00:11] Speaker 03:
How do I say your name, counsel?

[00:00:12] Speaker 01:
Beem.

[00:00:13] Speaker 03:
Beem?

[00:00:14] Speaker 01:
Yes.

[00:00:14] Speaker 03:
Beem, please proceed.

[00:00:16] Speaker 01:
Thank you, Your Honor.

[00:00:16] Speaker 01:
I'm pleased to clear it.

[00:00:17] Speaker 01:
My name is Edward Beem of Armstrong T. Zell on behalf of Appellant Kinetic Incorporated.

[00:00:23] Speaker 01:
This court has made clear that evidence of motion to combine and expectation of success are separate legal requirements.

[00:00:30] Speaker 01:
It is not enough for Samsung to have shown that a skilled artisan would have been persuaded to combine the Le Jama and Sasaki references.

[00:00:39] Speaker 01:
Appellee also had to show that a skilled artisan would have reasonably expected to achieve success in the combination.

[00:00:49] Speaker 01:
This court requires an expert to explain how and why the skilled artisan would have a reasonable expectation of success

[00:00:57] Speaker 01:
and combining the asserted references.

[00:00:59] Speaker 04:
So we're all clear.

[00:01:00] Speaker 04:
I mean, because some of your beliefs sounded like you were pushing back on the motivation to combine aspect.

[00:01:05] Speaker 04:
But we're all clear that that wasn't part of the remand, right?

[00:01:09] Speaker 01:
Yeah, I believe the only question on remand.

[00:01:10] Speaker 04:
Yeah, because it's, I know the two are cousins, so it's hard to differentiate.

[00:01:15] Speaker 04:
But to be clear, motivation to combine was already affirmed.

[00:01:19] Speaker 04:
Yes.

[00:01:20] Speaker 01:
Yes.

[00:01:22] Speaker 01:
The appellee's expert, Dr. About, offered no such testimony as to the reasonable expectation of success.

[00:01:28] Speaker 01:
And the appellee's focus on the person with ordinary skills in the art to their ability to write software code is really a red herring.

[00:01:36] Speaker 01:
Appellees also cite Fornar for the proposition that... Why is that a red herring?

[00:01:42] Speaker 01:
Because simply being able to write code doesn't have anything to do with how a system or function is incorporated.

[00:01:55] Speaker 01:
Right, but that statement really reflects a desired outcome, not how such an outcome would be achieved.

[00:02:05] Speaker 03:
Well, the outcome would be achieved through some code, right?

[00:02:12] Speaker 03:
It would be different if you had said, oh, there isn't code that's capable of doing this or something.

[00:02:18] Speaker 03:
But if you have an algorithm and you have an expert that says this is relatively simple tech, and all it would take would be generating some code.

[00:02:29] Speaker 03:
I mean, granted, this paragraph is brief, but there doesn't seem to be any significant complexity to the technology here.

[00:02:36] Speaker 03:
And he says,

[00:02:37] Speaker 03:
All it would take is a little bit of code, and then it would be done.

[00:02:40] Speaker 04:
And I'll just add to that before you respond.

[00:02:42] Speaker 04:
And your expert didn't really refute that.

[00:02:45] Speaker 04:
You had an expert.

[00:02:46] Speaker 04:
Your expert could have gone into why this isn't easy or simple, et cetera.

[00:02:51] Speaker 01:
Well, our expert testified, did testify, at least more forcefully to the motion, the beginning of this analysis, that both references were incompatibly combined.

[00:03:02] Speaker 01:
They couldn't be combined.

[00:03:03] Speaker 01:
They were inopposite.

[00:03:04] Speaker 01:
So I don't think you even get to a reasonable expectation of success.

[00:03:08] Speaker 01:
But as to reasonable expectation of success, the one paragraph that they cite

[00:03:14] Speaker 01:
you're changing the software code such that orientation is only detected and that orientation relies on the substantially stationary aspect.

[00:03:26] Speaker 01:
That, I think, is a function that is not explained and that you just don't somehow code over.

[00:03:32] Speaker 01:
Simple coding may be a one or a zero, an on or off.

[00:03:36] Speaker 01:
But this is not a turning off, turning on scenario.

[00:03:39] Speaker 01:
This is here.

[00:03:41] Speaker 04:
Did you have expert testimony that went through and parsed this and showed why this was not a simple thing?

[00:03:48] Speaker 04:
It seems to me you're not disputing what they're saying.

[00:03:50] Speaker 04:
You're just saying this isn't simple or straightforward.

[00:03:53] Speaker 04:
And did you have an expert explain why not?

[00:03:56] Speaker 01:
Um, our expert, but I could get evidence throughout the, the, the, um, uh, argument expert has talked about how.

[00:04:05] Speaker 01:
The software or the algorithms itself between determining fast and slow motion, that's all very complex.

[00:04:13] Speaker 01:
The 106 patent itself is replete with examples of complex algorithms.

[00:04:19] Speaker 01:
How to understand what motion is fast, what motion is slow, how do you infer, which is the heart of the patent, how do you infer between different types of motions?

[00:04:29] Speaker 01:
And how do you then have a command?

[00:04:32] Speaker 02:
Where did your experts say that, what you're saying now?

[00:04:36] Speaker 01:
I'll point out to where the expert goes through sort of the, you know, where he points to it, but the teachings that the... I've got it actually, it's at 1784 through 1788, I think if I'm correct.

[00:04:58] Speaker 04:
I mean part of this is

[00:05:01] Speaker 04:
And I'm not seeing it.

[00:05:02] Speaker 04:
Part of it is motion to combine, which is not before us.

[00:05:06] Speaker 04:
And I'm really not seeing it.

[00:05:11] Speaker 01:
But I think, again, it's a slippery slope if we just allow that simple commentary, that some sort of simple modification for which

[00:05:23] Speaker 01:
no one has ever explained.

[00:05:25] Speaker 01:
There's no testimony of what, quote, simple modification of software could even mean.

[00:05:29] Speaker 02:
Well, your point is that it's much more complicated than their experts said it was.

[00:05:33] Speaker 02:
But the problem is, you're a lawyer.

[00:05:37] Speaker 02:
It's interesting to hear from you, but you're not an expert in this.

[00:05:39] Speaker 02:
You needed an expert to say, no, it's not so simple.

[00:05:42] Speaker 01:
Yeah, but that would be our burden.

[00:05:43] Speaker 01:
Their burden is to show how

[00:05:47] Speaker 01:
the combination would occur, even though it's, quote, simple.

[00:05:50] Speaker 03:
No, their burden is to show there's a reasonable expectation of success with regard to the combination.

[00:05:55] Speaker 03:
And if their expert comes in and says, oh, this would be simple to achieve, a little bit of code could be written.

[00:06:01] Speaker 03:
It could be done.

[00:06:01] Speaker 03:
He's an expert.

[00:06:03] Speaker 03:
That's a question of fact, ultimately.

[00:06:05] Speaker 03:
I mean, how do we on appeal flip that?

[00:06:09] Speaker 01:
it becomes a slippery slope if anyone, for example, in just a simple software, this is not a software patent, but if you had a software patent and someone, an expert, could just say, you know, the modification would be really simple to do, well, how would you do the modification?

[00:06:23] Speaker 01:
Do you provide any?

[00:06:23] Speaker 04:
Well, yeah, but this is beyond that.

[00:06:25] Speaker 04:
It's not long, it doesn't go on through pages, but it's quite specific and enough sort of to

[00:06:31] Speaker 04:
sort of shift at least the burden of production to you to say what the problem is.

[00:06:36] Speaker 04:
I mean, you're right.

[00:06:37] Speaker 04:
If he had just said, this is a simple modification, then maybe it would have been more unfair for your expert to have to figure out what the heck he was talking about.

[00:06:46] Speaker 04:
But it's clear what he's talking about.

[00:06:47] Speaker 01:
Well, our expert does still contend that the references were in opposite.

[00:06:53] Speaker 01:
They did not pair together.

[00:06:56] Speaker 01:
And I'm going to get that citation.

[00:06:58] Speaker 01:
Because he didn't believe there was even a motivation to combine, I don't think he necessarily needed to get to specific proof.

[00:07:06] Speaker 04:
Yeah, but isn't that the problem in terms of the structure and the posture of our case, where we're already past the motivation to combine and we're looking exclusively at reasonable expectation of success?

[00:07:17] Speaker 04:
So that's the central focus.

[00:07:19] Speaker 04:
So we're looking for what their expert said and what your expert said on that point.

[00:07:25] Speaker 01:
Right, and we don't believe they even met the burden

[00:07:27] Speaker 01:
from their expert to show how the combination would have occurred.

[00:07:31] Speaker 01:
Again, we believe that he's described a desired outcome.

[00:07:36] Speaker 01:
I think it's simple to have these two things together.

[00:07:40] Speaker 01:
No, you have to provide some basis for which the code could be written.

[00:07:44] Speaker 01:
I mean, code just expresses that which we want the outcome to be, right?

[00:07:49] Speaker 01:
And if he had said, well, if you look at the flow chart in this piece of art, if you look at how this mechanism works here, if they appointed to something and said, then the code is modeled on that function, that's sufficient.

[00:08:03] Speaker 01:
But here, it's just a simple modification creates this outcome.

[00:08:07] Speaker 04:
And we're on a substantial evidence review here, right?

[00:08:10] Speaker 01:
Correct, yes.

[00:08:11] Speaker 04:
And so the board just, you know, clearly the burdens have to be signed appropriately, and that's a legal question.

[00:08:19] Speaker 04:
But beyond that, I mean, if the board said there was enough, just clean it up to us.

[00:08:34] Speaker 04:
We've got a differential standard of review in that regard, right?

[00:08:37] Speaker 01:
But what I think, the board tended to really go far afield and search, frankly, for the how.

[00:08:44] Speaker 01:
They went to the patent.

[00:08:46] Speaker 01:
They dug around and looked for other things outside of what their expert said.

[00:08:50] Speaker 01:
So the board draws their conclusion of the how, not just based on their expert opinion.

[00:08:55] Speaker 04:
Well, it's not an extraordinary search for the board to look to the patent to answer its questions.

[00:09:00] Speaker 04:
That's not, you know, more important.

[00:09:01] Speaker 01:
No, but they look to our patent, though.

[00:09:05] Speaker 01:
would be, which shows the how, right?

[00:09:07] Speaker 01:
Our patent says, here is an equation for absolute, how you find absolute gravity, or motion versus gravity, how you find orientation.

[00:09:20] Speaker 01:
We have very specific graphs, flow charts, very scientific ways of figuring out very complex motion and figuring out what those things mean.

[00:09:32] Speaker 01:
Again, pointing to ours.

[00:09:34] Speaker 02:
Yeah, but that wasn't the issue in connection with the combination.

[00:09:38] Speaker 02:
That was already in the Linjama reference.

[00:09:45] Speaker 02:
I'm sorry.

[00:09:46] Speaker 02:
It was already in the Linjama reference.

[00:09:48] Speaker 02:
We'll pass that.

[00:09:52] Speaker 01:
Correct.

[00:09:53] Speaker 01:
In this case, the experts trying to take a teaching from Tosaki and change Linjama in a certain way

[00:10:01] Speaker 01:
And again, he says, if you just simply change the code, you put the 1 plus 1 equals my outcome.

[00:10:10] Speaker 01:
But he doesn't explain how Tasaki would fit or modify.

[00:10:14] Speaker 01:
How would it modify?

[00:10:15] Speaker 01:
How would you do it?

[00:10:16] Speaker 01:
Point to something within Tasaki that says, this is how I would modify the detecting of the substantially stationary field that the device is seeing.

[00:10:31] Speaker 04:
Where in the board's decision was it relying on your patent?

[00:10:35] Speaker 04:
Because I'm looking at it now, and I'm looking at their citations to what the experts were talking about.

[00:10:40] Speaker 01:
I'll grab you that citation when I get it.

[00:10:44] Speaker 01:
I'll reserve the rest of my time.

[00:10:44] Speaker 01:
If there's no other questions.

[00:10:46] Speaker 03:
OK, thank you very much.

[00:10:48] Speaker 03:
Mr. Is it Bansall?

[00:10:50] Speaker 03:
Yes.

[00:10:51] Speaker 03:
Mr. Bansall, please proceed.

[00:10:56] Speaker 00:
Good morning, Your Honors.

[00:10:57] Speaker 00:
May it please the court?

[00:10:58] Speaker 00:
Let me start with Judge Dyke's question and his observation that Linjama already establishes that the mobile terminal can detect orientation, and it can detect fast motion, and it can detect slow motion.

[00:11:16] Speaker 00:
So the expectation of success inquiry here concerns only the change that is being made to Linjama's gesture detector.

[00:11:26] Speaker 00:
And that's a simple software change.

[00:11:28] Speaker 00:
Instead of detecting orientation all the time, the gesture detector is modified to detect orientation only during slow motion.

[00:11:39] Speaker 00:
In basic programming terms, this is like writing a software function.

[00:11:44] Speaker 00:
If x, then y. If slow motion, then detect orientation.

[00:11:52] Speaker 00:
testified on appendix page 812 paragraph 154 and as the board found on appendix pages 16 through 18 a skilled artisan with two years of experience in motion sensing technology and a bachelor's degree in electrical or computer engineering would find making such a change simple and straightforward.

[00:12:13] Speaker 00:
His testimony is substantial evidence for the board's factual finding and

[00:12:16] Speaker 00:
A reasonable expectation of success unless your honors have any further questions.

[00:12:21] Speaker 00:
I will give the court back its time Okay, thank you counsel.

[00:12:25] Speaker 01:
Mr. Bean you have your rattle time didn't give you much time Appendix eight is when they begin to start talking about specification of the 106 and

[00:12:43] Speaker 04:
I mean, I took you at your word, but I understood you to say that the board relied heavily on your own patent, how you did it.

[00:12:50] Speaker 04:
And I'm just not finding it in what the board said.

[00:12:53] Speaker 04:
So I'm missing something.

[00:12:54] Speaker 01:
Oh, I'm sorry.

[00:12:55] Speaker 01:
Appendix 18.

[00:12:58] Speaker 01:
So we further, we are persuaded that the simple modifications of the software code for gesture detection is at least as clear as in the 106 with respect to software.

[00:13:08] Speaker 01:
And it just doesn't seem to make sense.

[00:13:10] Speaker 01:
The 106 is not a software.

[00:13:13] Speaker 04:
Where are you looking on the page?

[00:13:14] Speaker 01:
I'm sorry.

[00:13:15] Speaker 01:
The first paragraph.

[00:13:16] Speaker 04:
Further, we are persuaded that some eradication is at least as clear.

[00:13:20] Speaker 04:
So they were comparing it to the 106.

[00:13:22] Speaker 04:
Correct.

[00:13:23] Speaker 01:
And my argument would be... Which is appropriate, right?

[00:13:27] Speaker 01:
Which is appropriate, but the 106 also includes functionality.

[00:13:30] Speaker 01:
I mean, an immense functionality.

[00:13:31] Speaker 01:
And it's not a software.

[00:13:33] Speaker 01:
There isn't a software.

[00:13:34] Speaker 01:
Where does the software come from?

[00:13:35] Speaker 01:
So our client had a software application that was on a mobile device.

[00:13:43] Speaker 01:
How do you achieve that application?

[00:13:45] Speaker 01:
Well, you write software.

[00:13:46] Speaker 01:
How do you write software to engage and operate in the way that the patent would like you to?

[00:13:51] Speaker 01:
You read the 106, and you take those equations and functions and translate them into software code.

[00:14:00] Speaker 02:
Simple changes.

[00:14:01] Speaker 02:
Those are not the equations and functions necessary to make the combination.

[00:14:05] Speaker 02:
Oh, I'm sorry.

[00:14:06] Speaker 02:
Those are not the software functions that are necessary to make the combination.

[00:14:14] Speaker 02:
They're already there in Indiana.

[00:14:18] Speaker 01:
is pointing out wherein how you would modify.

[00:14:23] Speaker 01:
And there's a question of, frankly, whether or not they're frankly disclosed in Lejama-Tasaki sufficiently.

[00:14:27] Speaker 01:
But that said, if what in Lejama is, what would you change?

[00:14:34] Speaker 01:
How would you do it?

[00:14:35] Speaker 01:
Point to anything about how, other than just it's a simple change.

[00:14:39] Speaker 01:
Again, I think this provides a very slippery slope moving forward.

[00:14:42] Speaker 01:
If an expert can just come in and say,

[00:14:46] Speaker 01:
You know, for this aspect, we're just going to make it up.

[00:14:48] Speaker 01:
I believe, as an expert, that this is a very simple thing to change.

[00:14:53] Speaker 01:
I can add 1 plus 1 equals 2.

[00:14:55] Speaker 03:
And if it's a 1 or 0... You keep saying simple thing to change, as though he didn't specify how to change it.

[00:15:01] Speaker 03:
He said the simple modification would have been made to the software code for gesture detection 16, such the orientation.

[00:15:09] Speaker 03:
And he goes on to finish the sentence.

[00:15:11] Speaker 03:
That's different from an expert, I grant you.

[00:15:14] Speaker 03:
If the expert just said, oh, it would have been simple.

[00:15:17] Speaker 03:
Full stop.

[00:15:17] Speaker 03:
That would be really problematic and very conclusory.

[00:15:20] Speaker 03:
But instead, he says it's a simple software modification.

[00:15:23] Speaker 03:
He goes on and explains what the modification would be functionally.

[00:15:28] Speaker 03:
And there's just nothing on the other side that suggests that wouldn't be just as simple to code as he says it would be.

[00:15:36] Speaker 03:
So it is substantial evidence.

[00:15:38] Speaker 01:
But it is what you want the outcome to be, not how you would ever achieve the outcome.

[00:15:43] Speaker 01:
And again, we don't really have a definition for what substantially stationary is, but that still is including motion.

[00:15:51] Speaker 01:
that's still trying to inference motion.

[00:15:55] Speaker 03:
You got to go for it.

[00:15:57] Speaker 04:
It's all an attorney argument.

[00:15:59] Speaker 04:
And I'm sorry.

[00:15:59] Speaker 04:
It's fair for the board to say we've got one expert, and we understand what he's saying.

[00:16:05] Speaker 04:
It's not conclusory.

[00:16:07] Speaker 04:
And what does your expert have to say about why he's wrong?

[00:16:10] Speaker 04:
It's not enough for you to get up before the panel and give your view about what the deficiencies are.

[00:16:18] Speaker 01:
My rebuttal to that would simply be that that was not a burden.

[00:16:20] Speaker 01:
They didn't provide enough evidence to support the how, the reasonable expectation of success.

[00:16:28] Speaker 04:
And on a substantial evidence review?

[00:16:31] Speaker 04:
Yes.

[00:16:32] Speaker 04:
OK.

[00:16:35] Speaker 03:
Thank you, Mr. Bean.

[00:16:36] Speaker 03:
Thank you, Mr. Bensel.

[00:16:37] Speaker 03:
This case is taken under submission.