[00:00:00] Speaker 03:
Our next case for argument is 22-1128, Kinetic versus Samsung.

[00:00:07] Speaker 03:
Mr. Halderman, please proceed.

[00:00:09] Speaker 00:
Good morning.

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

[00:00:11] Speaker 00:
My name is Mark Halderman from Armstrong Teasdale on behalf of Appellant Kinetic, Inc.

[00:00:17] Speaker 00:
The court can decide this appeal on one issue, namely the patent trial and appeal board's decision

[00:00:23] Speaker 00:
It's premised on the erroneous interpretation of this court's previous claim construction of the sleep command limitation, which requires that the sleep command must be sent shortly after and in direct response to the executed command.

[00:00:39] Speaker 00:
Samson's response highlights that the board's decision was based on a faulty construction, one where sleep commands need not always be sent, which would defeat the 146 patent's purpose of ignoring returning motion.

[00:00:53] Speaker 00:
Reversal is appropriate because both Samsung and the board have conceded that the Liberty Nougira combination does not require sleep commands after executed motion commands.

[00:01:05] Speaker 00:
Instead, the combination only sends sleep commands if Liberty's movements have low velocities and a button is pressed.

[00:01:15] Speaker 00:
The board also erred because it improperly concluded that the Liberty references switching to fine-mode clicking

[00:01:22] Speaker 00:
the alleged sleep command, can be sent in response to executed motion commands simply because its events are not limited to button clicks.

[00:01:32] Speaker 00:
But not being limited to something is not the same thing as teaching something else.

[00:01:37] Speaker 00:
And Liberty does not teach an executed command as an event that causes it to switch modes.

[00:01:44] Speaker 00:
Moreover, the board left unsupported its finding that liberty's tremor, unintentional movements that liberty discards, and velocity, the device's rate of speed, teach the executed command.

[00:01:56] Speaker 00:
Finally, the board's confused analysis improperly relied on combinations not alleged in Sam's petition and was otherwise inconsistent with the findings it incorporated by reference from its original decision.

[00:02:11] Speaker 00:
Each of these errors warrant reversal.

[00:02:13] Speaker 02:
The first and primary issue is a claim construction dispute that, as I mentioned, alone wars reversal because- Is there something, just to help me out a little, because I find this a little confusing, is there something you can point to on the first point, perhaps, that the board said that leads you to conclude that it misconstrued the construction?

[00:02:35] Speaker 02:
It would just be helpful to me if you have something in hand so I can know what I'm looking for.

[00:02:40] Speaker 00:
For example,

[00:02:43] Speaker 00:
In Samson's response on page 46, they quote to the appendix at 16, which uses the board's remand decision, and they quote that the board further found that Liberty's sleep command instruction is sent immediately following and direct response to a movement indicating a velocity below a predetermined threshold, such as during a precise cursor movement.

[00:03:08] Speaker 00:
So that is

[00:03:10] Speaker 00:
is a conditional sending of a sleep command only when velocity is at a certain speed.

[00:03:16] Speaker 01:
There has to be a determination as to when to put the thing to sleep.

[00:03:24] Speaker 01:
It's not going to be put to sleep all the time.

[00:03:27] Speaker 00:
Well, the way that the patent works is that you're right.

[00:03:32] Speaker 00:
You can move the device, and it doesn't necessarily execute a command and result in a sleep command.

[00:03:40] Speaker 00:
But what the patent teaches and what this court has said is that if the motion command is executed, then it must send the sleep command.

[00:03:53] Speaker 00:
So just continuing on answering your honor's question, at page 792 of this court's original decision,

[00:04:04] Speaker 00:
The court expressly confirmed that the step motion algorithm indicates what must be done and when it must be done, and concluded that the sleep command is sent, not that it may be sent.

[00:04:16] Speaker 00:
And if an executed motion command occurs and a sleep command is not sent, then the entire purpose of the invention is eviscerated, because then the returning motion would not be ignored, which is the entire purpose of the pattern.

[00:04:42] Speaker 00:
And in fact, this court had agreed with Kinetic that sending a sleep command 10 minutes after an executed command defeats the purpose of the 146 patent.

[00:04:55] Speaker 00:
But never sending any sleep command despite an executed command similarly defeats the purpose.

[00:05:03] Speaker 00:
Returning motion is just not ignored.

[00:05:06] Speaker 00:
And not only is Samsung's interpretation in direct conflict

[00:05:10] Speaker 00:
in our opinion, with the court's previous decision.

[00:05:13] Speaker 00:
But the 146 patent makes clear that the claims are not drafted to capability.

[00:05:19] Speaker 00:
The claims do not recite that they are capable of or for performing some function.

[00:05:24] Speaker 02:
Yeah, but this isn't an anticipation case.

[00:05:28] Speaker 02:
This is an obviousness case.

[00:05:30] Speaker 00:
Right, but so Samsung had argued that the claims don't even require any sending of the sleep command because of its capability, because the claims are directed towards capability.

[00:05:43] Speaker 00:
And my point is that in light of this court's decision saying that the sleep command must be sent and the fact that the claims don't include

[00:05:54] Speaker 00:
language that is typical for capability claims, such as saying it is for performing a certain function, that they are not capability claims.

[00:06:06] Speaker 00:
And indeed, the claims demand algorithmic structure because they recite that they are configured to include the step motion algorithm.

[00:06:17] Speaker 00:
And both the claims and the specification, they only use active language.

[00:06:22] Speaker 00:
which most of this court's decisions that I've seen, they state that that requires actual structure, not mere capability.

[00:06:34] Speaker 00:
And indeed, the specification at appendix 48, 1366 to 14.2, it is explicit that after the execution of any motion input command,

[00:06:50] Speaker 00:
The user can bring the device back into its previous position with the sleep command ignoring the returning motion.

[00:06:58] Speaker 00:
What column and line number are you at?

[00:07:03] Speaker 00:
1366 to 142.

[00:07:10] Speaker 00:
Next, the board erred because its combination does not teach the sleep command limitation as construed by this court.

[00:07:18] Speaker 00:
Samson claims that the board only relied on Liberty, not Noguera, as disclosure for this limitation.

[00:07:23] Speaker 00:
And although Connect does not agree, even if Samson's position is accepted as true.

[00:07:28] Speaker 01:
My understanding of what the board said is they got the sleep command from Liberty and the motion command and the sleep state from McGurk, correct?

[00:07:39] Speaker 00:
And they got the motion command and the sleep command from nuclear?

[00:07:43] Speaker 00:
Is that what you said?

[00:07:44] Speaker 01:
No, the sleep state.

[00:07:47] Speaker 01:
They got the motion command and the sleep state from Nagura and the sleep command from Liberty.

[00:07:52] Speaker 00:
So that is not at all how we interpret the board's decision because, for example, on

[00:08:03] Speaker 00:
Page 19 of the final written decision, the board states that the sleek command must be sent in response to the executing of Nogira's command to move the pointer.

[00:08:15] Speaker 00:
So that part is the executed command that they now say was Nogira, whereas in the original decision, they said it was Liberty's movement to align the cursor over a fine target.

[00:08:32] Speaker 00:
And then on page 20, the board found that the proposed system's pointer position is updated.

[00:08:38] Speaker 00:
Again, a Noguera disclosure teaches a command is executed, and that afterwards, the system discards motion data.

[00:08:47] Speaker 01:
I don't understand how that's inconsistent.

[00:08:49] Speaker 00:
Well, because discarding motion data is only taught by liberty.

[00:08:54] Speaker 00:
So they are saying that after the command is executed, it's entered into this sleep period where motion data is discarded.

[00:09:03] Speaker 00:
But that's not no gira as they alleged in the first decision.

[00:09:07] Speaker 00:
That's liberty.

[00:09:09] Speaker 00:
And that is at appendix 521.

[00:09:19] Speaker 01:
But in fact, both Nagura and Liberty show sleep periods.

[00:09:23] Speaker 01:
But my understanding of the board's decision is that they're relying on, for this purpose, they're relying on Nagura's disclosure of the sleep period.

[00:09:33] Speaker 00:
But if that were true, I don't see why they would say that it begins, that it discards motion data.

[00:09:42] Speaker 00:
Because Nagura doesn't discard anything.

[00:09:44] Speaker 00:
It averages.

[00:09:46] Speaker 02:
Well, I mean, as I see the board, I mean, in various places at 20 and 21 where they're talking about this, they're constantly talking about liberty and nuclear together.

[00:09:57] Speaker 02:
Right.

[00:09:57] Speaker 02:
So I. Well, but that alone.

[00:09:59] Speaker 02:
And the combination of the two.

[00:10:02] Speaker 02:
So you're saying, well, initially, they were relying on the wrong reference to make a point?

[00:10:08] Speaker 00:
Oh, I think now they are relying.

[00:10:10] Speaker 00:
They have switched the references from the first time relying on liberty

[00:10:15] Speaker 00:
for the executed command and Noguera for the sleep period to now relying on Noguera's updating of the pointer position for the executed command and Liberty's discarding for the sleep period.

[00:10:31] Speaker 01:
So let's assume we disagree with you about that.

[00:10:34] Speaker 01:
What else have you got?

[00:10:36] Speaker 00:
Well, even if Samson is correct and the board

[00:10:44] Speaker 00:
relied on Ogierre for the sleep period, I think that, as I said before, even then, liberty does not teach always sending a sleep command in response to executed commands.

[00:10:57] Speaker 00:
And instead, what it teaches is events that were known to cause undesirable movement.

[00:11:06] Speaker 00:
But an executed command is not undesirable.

[00:11:09] Speaker 00:
In fact, Liberty and Ogierre, they teach,

[00:11:12] Speaker 00:
an unintentional movement occurs that you discard it.

[00:11:16] Speaker 00:
And the 146 pattern, it teaches translating intentional user actions into precise commands.

[00:11:24] Speaker 00:
So the executed command of the 146 has to be intentional

[00:11:28] Speaker 00:
And tremors are not intentional.

[00:11:31] Speaker 00:
They are what liberty serves to discard and not execute.

[00:11:36] Speaker 00:
And velocity, that's just the rate of the movement.

[00:11:39] Speaker 00:
That is also not a command that is executed.

[00:11:42] Speaker 00:
That's just the device moving around.

[00:11:45] Speaker 00:
And it's not until the button is clicked, the device's button is clicked, that Noguera knows that unwanted movement is expected to result from that physical push of the button.

[00:11:58] Speaker 00:
Otherwise, if you're just moving the device slowly but intentionally, and the velocity is low, under Samsung in the board's position, a sleep command would be sent, and those intentional slow-motion pointing gestures would be discarded.

[00:12:15] Speaker 03:
Mr. Holderman, do you want to save rebuttal time?

[00:12:18] Speaker 00:
Yes, Your Honor.

[00:12:19] Speaker 03:
Okay.

[00:12:19] Speaker 03:
Let's hear from opposing counsel.

[00:12:22] Speaker 03:
Counsel, how do I say your name?

[00:12:23] Speaker 03:
Is it Citrione?

[00:12:26] Speaker 03:
That's correct, Your Honor.

[00:12:30] Speaker 04:
Good morning, Your Honors.

[00:12:31] Speaker 04:
May it please the Court.

[00:12:32] Speaker 04:
My name is Philip C. Doran, and I'm arguing on behalf of L.E.

[00:12:36] Speaker 04:
Sampson.

[00:12:37] Speaker 04:
Many of Kinetic's positions hinge on an issue of claims scope explicitly raised by Kinetic for the first time in this appeal, for a phrase that this Court has already construed in a prior appeal, namely, Kinetic

[00:12:49] Speaker 04:
argues that this court's prior construction of the phrase sending a sleep command after the command is executed requires sending a sleep command after each and every executed command.

[00:13:00] Speaker 04:
Because of this prior construction did not include in each and every requirement, excuse me, this court's prior construction did not include in each and every requirement.

[00:13:11] Speaker 04:
That's because the issue that was discussed in the prior appeal dealt with the immediacy of the sleep command, not the frequency.

[00:13:17] Speaker 04:
But this court also could not have construed the claim in such a narrow way, because if you look at the claims, claim 22 is a broad and comprising claim.

[00:13:26] Speaker 04:
So while it does discuss sending a sleep command after an executed command, it doesn't exclude instructions that would prevent not sending a sleep command after an executed command.

[00:13:38] Speaker 04:
Additionally, the plaintiff is a claimant.

[00:13:40] Speaker 02:
I'm sorry.

[00:13:41] Speaker 02:
I wasn't on the original panel.

[00:13:43] Speaker 02:
Was this an issue of discussion in the prior appeal?

[00:13:49] Speaker 04:
It was not, Your Honor.

[00:13:51] Speaker 04:
In the prior appeal, the only issue that was discussed related to the immediacy of the sleep command.

[00:13:58] Speaker 04:
And the court, at its decision at page 792, stated that the sole disagreement between the parties regarding the meaning of this phrase, sending the sleep command,

[00:14:07] Speaker 04:
Is quote the length of time that can occur between the executed command and the sleep command the court that resolved that dispute by construing this phrase to be quote shortly after an indirect response to the executed command.

[00:14:22] Speaker 04:
So the issue in the prior appeal.

[00:14:24] Speaker 04:
was solely about this immediacy issue.

[00:14:26] Speaker 04:
How quickly after the executed command must the sleep command be sent?

[00:14:30] Speaker 04:
There was no discussion.

[00:14:31] Speaker 01:
So what you're saying is that this notion that it has to be done every time there's a motion command is a new argument?

[00:14:40] Speaker 04:
That's correct, Your Honor.

[00:14:41] Speaker 04:
This is an issue that Connecticut really explicitly identified for the first time in its reply brief.

[00:14:46] Speaker 04:
It spent the first 10 pages explaining that this is their construction.

[00:14:51] Speaker 04:
and discuss the courses to try.

[00:14:54] Speaker 01:
Reply brief or reply brief before the board?

[00:14:56] Speaker 04:
Excuse me, the reply brief and this appeal.

[00:14:59] Speaker 01:
Did they make the argument to the board?

[00:15:02] Speaker 04:
No, your honor, that argument was not raised to the board.

[00:15:05] Speaker 04:
In fact, if you look at the board's decision at epiphany seven, you can see there they also repeat this issue of immediacy, reflecting an understanding

[00:15:15] Speaker 04:
of the prior court's decision that claim construction dispute relating to the issuance of the sleep command dealt with, quote, immediacy.

[00:15:24] Speaker 04:
That's from the court's decision on remand at Appendix 7.

[00:15:27] Speaker 04:
So this issue wasn't addressed below as well.

[00:15:31] Speaker 04:
So this is a new issue.

[00:15:33] Speaker 04:
But even if we consider this argument, Your Honor, there's no support for it.

[00:15:38] Speaker 04:
In addition to the claims being comprising claims, the claim also simply states in the instructions

[00:15:44] Speaker 04:
that there is a single A command for the motion input algorithm and a sleep command.

[00:15:50] Speaker 04:
There's not a requirement for multiple commands for the motion input algorithm.

[00:15:55] Speaker 04:
There's not a requirement for multiple sleep commands.

[00:15:58] Speaker 04:
And there's certainly not a requirement that every single executed motion command must be followed by a sleep command.

[00:16:06] Speaker 04:
And the same is true if you look at the specification.

[00:16:09] Speaker 04:
There's simply no mention in the specification about sending a sleep command after each

[00:16:13] Speaker 04:
at every executed command.

[00:16:17] Speaker 02:
Council, I just think I want to look back at the board opinion.

[00:16:20] Speaker 02:
I think you may have overstated it, because I do see on Appendix 16 of the board's opinion where it does reference an argument.

[00:16:29] Speaker 02:
I think this is the same thing.

[00:16:31] Speaker 02:
He argues that Petitioner muddies the claim construction, because neither Liberty nor Nargana combination teaches lead command that must be sent.

[00:16:41] Speaker 02:
So it seems like, am I wrong, misreading this, that this issue was raised before the board?

[00:16:48] Speaker 04:
Your Honor, that issue, the must be sent, that's not a dispute.

[00:16:52] Speaker 04:
The sleep command must be sent after an executed command.

[00:16:56] Speaker 04:
The dispute is whether a sleep command must be sent after each and every executed command.

[00:17:02] Speaker 04:
So it's a frequency issue.

[00:17:03] Speaker 04:
There's no disagreement between the parties that a sleep command must be sent or is sent after the executed command.

[00:17:10] Speaker 04:
That's not quite the dispute, Your Honor.

[00:17:12] Speaker 04:
It's really about, do you have to send a sleep command each and every time?

[00:17:17] Speaker 04:
That's the dispute, if I understood your question.

[00:17:20] Speaker 02:
Okay, thank you.

[00:17:22] Speaker 04:
Now, going back to the specification for a moment, Council did point, Your Honors, to one specific portion of the specification at appendix 48, column 13, line 66 to column 14.

[00:17:35] Speaker 04:
Line 3, where it mentions

[00:17:37] Speaker 04:
After any motion input command, the user can either bring the device back into the previous position or change the orientation in any way.

[00:17:44] Speaker 04:
The suggestion is that if that portion of their suggestion is that that means there is, after every motion input command, a returning motion.

[00:17:57] Speaker 04:
That's not what that sentence states.

[00:17:59] Speaker 04:
That sentence merely states that you may have a motion command, and any type of motion command can result in a returning motion.

[00:18:06] Speaker 04:
The specification then goes on to say, you can ignore that type of returning motion by sending a sleep command.

[00:18:14] Speaker 04:
It doesn't state that the purpose of ignoring returning motion can only be achieved by sending the sleep command after each and every executed command.

[00:18:23] Speaker 04:
The specification doesn't even state that every executed command is necessarily followed by a returning motion.

[00:18:31] Speaker 04:
Now, if you did

[00:18:33] Speaker 04:
actually ignore, or sorry, send this link command after each and every execute command, then you would result in a device that's unreliable or unusable.

[00:18:44] Speaker 04:
Because what happened is, as Judge Dyke raised in one of his questions, you would end up ignoring not only returning motion, but intended motions by the user, such as when you wanna move the pointer across the screen, scroll,

[00:18:58] Speaker 04:
or highlight text, all examples that the 146 patent explains, you could perform with such devices.

[00:19:04] Speaker 04:
That's at column 10, line 41 to 49, A46, and column 11, like 54 to 59, that appendix 47.

[00:19:13] Speaker 04:
Now, I think it's important also to note that in its remand briefing before the board at A542, kinetic suggests that if the device is moved but there is no returning motion, and then a sleep command is sent,

[00:19:28] Speaker 04:
that would result in users being unable to reliably use the device.

[00:19:32] Speaker 04:
So here we have, I guess the main point with this quote is that you have an admission from Kinetic that you shouldn't send a sleep command when there is no returning motion.

[00:19:42] Speaker 04:
And that's because the device cannot be reliably used in a situation like that.

[00:19:47] Speaker 04:
Yet here we have Kinetic arguing that you must send a sleep command after each and every executed command, which would result in motions other than returning motions being ignored.

[00:19:58] Speaker 04:
unless Connecticut is actually implying that the claim should also be read such that each and every executed command must be followed by a termination.

[00:20:08] Speaker 03:
I'm going to channel one of my colleagues, and I'm going to say I'm tiring of this sleep command argument.

[00:20:15] Speaker 03:
Could you possibly move on to one of your other arguments?

[00:20:19] Speaker 04:
Sure, Your Honor.

[00:20:21] Speaker 04:
So the other issue that was raised by counsel dealt with the board

[00:20:28] Speaker 04:
this relates to whether the sleep command, but it relates to whether the prior art discloses this limitation.

[00:20:33] Speaker 04:
So if we set aside this each and every instruction, the question is, does Liberty still disclose this sleep command?

[00:20:41] Speaker 04:
The argument that was raised is that Liberty doesn't disclose the sleep command limitation because a sleep command is only sent if there is a button click, not because of a prior executed command.

[00:20:55] Speaker 04:
And counsel explained that

[00:20:58] Speaker 04:
The board's decision was based on a finding that liberty isn't limited to button clicks, it actually extends to executed motions.

[00:21:07] Speaker 04:
But the board's decision wasn't limited in that way.

[00:21:10] Speaker 04:
Their decision was based on two findings.

[00:21:13] Speaker 04:
First, because the court's construction really requires that the sleep command be sent shortly after in direct response to the executed command, it doesn't preclude the existence of any additional

[00:21:24] Speaker 04:
Undersighted features, such as a button click.

[00:21:27] Speaker 04:
So the board found that even if there is a button click in Liberty, the instruction in Liberty, which is where the C command in Liberty, which is an instruction to hit or apply a button clicking technique, that is still set shortly after an indirect response to an executed motion command that indicates a velocity.

[00:21:45] Speaker 04:
blow a set threshold.

[00:21:48] Speaker 04:
So the board's decision is actually, even in the situation where there is a butt click, supports the finding that the XPC command at Liberty is set after in a direct response to an executed motion command.

[00:22:03] Speaker 04:
Now, the issue of whether Liberty also discloses- And counsel, this is Judge Gross.

[00:22:10] Speaker 02:
On that point,

[00:22:11] Speaker 02:
Our revised claim construction talked about no substantial event.

[00:22:17] Speaker 02:
So I guess you're presuming that this button click would not constitute, no one is arguing that that's a substantial event, right?

[00:22:25] Speaker 04:
That's correct, Your Honor.

[00:22:26] Speaker 04:
Because the instruction, the sleep command, the liberty is actually set based on the velocity, you either enter a five-mode clicking technique if the velocity is below a set threshold, or you enter into a four-mode clicking technique if it's above

[00:22:47] Speaker 04:
in that sleep command, or the sleep command has actually set the instruction to enter into the final clicking technique.

[00:22:53] Speaker 04:
So because velocity is actually a determining factor, whether or not there's this button click is irrelevant.

[00:22:59] Speaker 04:
It is a substantial editing activity.

[00:23:02] Speaker 04:
So based on the citations to Liberty, substantial evidence supports that determination by the board.

[00:23:10] Speaker 04:
It also supports the board's determination that Liberty is not limited to button clicks, it does describe

[00:23:15] Speaker 04:
very broad disclosure about its techniques being applied to, quote, any known device interaction that yields undesirable movement and are not limited to button clicks.

[00:23:27] Speaker 04:
So in that situation as well, it's a separate finding by the board that even if you read liberty to not be limited to button clicks, it would be disclosed as well.

[00:23:38] Speaker 03:
Well, counsel, you're missing one important point.

[00:23:42] Speaker 03:
We can't read that at all.

[00:23:44] Speaker 03:
We just have to review the board's reading of it for substantial evidence, correct?

[00:23:49] Speaker 04:
That's correct, Your Honor.

[00:23:50] Speaker 04:
That's correct.

[00:23:51] Speaker 04:
You do have to read the board's.

[00:23:52] Speaker 03:
But when you say even if we were to read it differently, that's not the standard.

[00:23:58] Speaker 04:
That's correct, Your Honor.

[00:23:59] Speaker 04:
The board read this disclosure in liberty as extending beyond just one click.

[00:24:04] Speaker 04:
and sending sleep commands in response to movement itself.

[00:24:08] Speaker 04:
That finding is based on the teachings of liberty itself, and that is substantial evidence supporting the board's decision.

[00:24:18] Speaker 04:
So just quickly, Your Honor, there was some discussion about Samsung and the board changing their positions.

[00:24:25] Speaker 04:
That's simply not true.

[00:24:27] Speaker 04:
As Judge Steit properly summed the board and Samsung,

[00:24:33] Speaker 04:
relied on liberty for the sleep command and the reactivity limitations.

[00:24:37] Speaker 04:
The GUERRA was relied on for everything else.

[00:24:40] Speaker 04:
What Connecticut's done in its brief is take certain portions of Samsung and the board's statements about the prior references out of context and present them in this way that it makes it appear that Samsung and the board changed their positions.

[00:24:51] Speaker 04:
Just as one example, much of the discussion in the brief and in the board's decision

[00:24:58] Speaker 04:
that Connecticut points to is the obviousness analysis.

[00:25:00] Speaker 04:
So of course, there's discussion of both references to explain how when they are combined, they can use references.

[00:25:07] Speaker 04:
But at no point did either SAMHSA or the board change their positions from the petition and the initial final decision.

[00:25:15] Speaker 04:
So with that, Your Honor, unless there's any additional questions, I will sit down.

[00:25:20] Speaker 03:
OK, thank you, Council.

[00:25:24] Speaker 03:
Thank you.

[00:25:24] Speaker 03:
Halderman, you have some rebuttal time?

[00:25:27] Speaker 00:
Thank you, Your Honors.

[00:25:29] Speaker 00:
Just a few points that I want to quickly address.

[00:25:32] Speaker 00:
He claims that there's no support in the 146 pound for sending a command after each and every command, but as was recognized in the first decision,

[00:25:42] Speaker 00:
The specification says that the sleep command is sent, not that it may be sent.

[00:25:49] Speaker 00:
And then further.

[00:25:51] Speaker 01:
Well, what about the argument that this is a new argument?

[00:25:53] Speaker 01:
This is not.

[00:25:54] Speaker 01:
OK.

[00:25:54] Speaker 01:
He sent the case back to have the board consider.

[00:25:58] Speaker 01:
And this is not an argument even raised before the board on remand.

[00:26:03] Speaker 00:
That's not true.

[00:26:04] Speaker 01:
So on our remand brief on how is this within the scope of what we did originally?

[00:26:10] Speaker 00:
The scope of the remand the scope of the mandate with because it's the issue is whether the sleep command is sent after the command is executed and so it it's important that

[00:26:30] Speaker 00:
that what we interpret after the command is executed to mean means that it must occur.

[00:26:36] Speaker 00:
And we did argue that on our remand brief on page 508 and 509 of the appendix, and we did argue it in our opening brief of this appeal on page 40 and 41.

[00:26:49] Speaker 00:
So I think it was disingenuous to say that we didn't raise it before.

[00:26:54] Speaker 00:
We focused more on it being a claim construction dispute in the reply brief, because SAMHSA made clear what the board didn't make quite as clear, that they say sleep commands do not have to result.

[00:27:12] Speaker 01:
And I don't see it five.

[00:27:18] Speaker 00:
508 and 509.

[00:27:22] Speaker 00:
So the top of 509, notably, however, although Liberty's alleged sleep command may optionally be sent at some undefined point in time after a movement, it is not sent in direct response.

[00:27:34] Speaker 00:
So we were arguing that the, and then later on that same paragraph, we say, therefore, Liberty's alleged sleep command is not necessarily sent after the execution of the motion command.

[00:27:47] Speaker 00:
So what we were arguing there is that our interpretation of the court's restriction required that it must be sent.

[00:27:56] Speaker 00:
And even if that is not what the panel had in mind originally, we believe that that's the only support in the patent.

[00:28:07] Speaker 00:
And Samsung hasn't pointed to anything that says, oh, you can only send it when there is certain velocities.

[00:28:14] Speaker 00:
And the argument that it would make it

[00:28:17] Speaker 00:
an inoperable device, I don't understand that at all.

[00:28:22] Speaker 00:
I mean, the device has to include this algorithm.

[00:28:27] Speaker 00:
There has to be some instructions in there that says, if this, then do that.

[00:28:32] Speaker 00:
But it can't be, if the device moves a certain speed, which isn't executed,

[00:28:41] Speaker 00:
Then then then only send the sleep command, but if the device is at a higher speed