[00:00:00] Speaker 01:
This case is Massimo versus Apple, 2022, 1894.

[00:00:06] Speaker 01:
Mr. Holm.

[00:00:09] Speaker 03:
Thank you, Your Honor, and may it please the court.

[00:00:12] Speaker 03:
When the board rendered its obviousness to termination, it relied on the incorrect understanding that Melby's louvered film was designed to minimize ambient light.

[00:00:26] Speaker 03:
That is not the case, and Melby is quite clear on this point.

[00:00:30] Speaker 03:
Melby repeatedly identifies as the purpose of its louvered film the reduction of ghost images formed from a CRT computer screen or other backlit displays such as a car dashboard.

[00:00:44] Speaker 03:
The board repeatedly relied on this initial erroneous understanding throughout its opinion.

[00:00:50] Speaker 03:
For example, it found that Melby teaches a film that reduces the influence of ambient light and cited the other reference, Webster,

[00:01:00] Speaker 03:
the desire of Webster to avoid ambient light.

[00:01:03] Speaker 03:
Later, the board found that reducing excessive ambient light also happens to be one of the goals of Melby.

[00:01:10] Speaker 03:
But again, it is not one of Melby's goals.

[00:01:14] Speaker 03:
And later yet, the board found that Webster and Melby have a similar objective.

[00:01:20] Speaker 03:
And that objective is a reduction of optical interference in the form of excessive ambient light with a light control film being placed over a

[00:01:30] Speaker 03:
light-sensitive detector.

[00:01:32] Speaker 03:
And that finding is wrong for two reasons.

[00:01:35] Speaker 03:
First, the ambient light issue, and second, the fact that Webster, which deals with physiological monitoring systems, has a different type of problem than Melby, which deals with light emitters.

[00:01:49] Speaker 03:
So a computer screen or a car dashboard, the louvered film of Melby is placed on the emitting aspect, not a detecting aspect.

[00:01:59] Speaker 03:
The reason why this is a reversible error.

[00:02:02] Speaker 01:
What you're arguing against is anticipation.

[00:02:05] Speaker 01:
But of course, obviousness doesn't require the same.

[00:02:10] Speaker 03:
That's absolutely true, Judge Lloyd.

[00:02:12] Speaker 03:
But the board relied on tying the two references together through that ambient light finding.

[00:02:18] Speaker 03:
And so the justification for the obviousness determination had to do with the fact that both addressed the same problem, and that is,

[00:02:28] Speaker 03:
what I just referred to, that the board found that Webster and Melby have a similar objective.

[00:02:36] Speaker 03:
So it was effectively a same problem, KSR type analysis.

[00:02:44] Speaker 03:
And that is at APPX 33, where the board found that they acted in precisely the manner to achieve precisely n contemplated by each of Webster and Melby.

[00:02:57] Speaker 03:
So the board was relying on a chaos archive argument that drew a parallel between the purposes of each of the references when there is no support for the idea that they had the same purpose at all.

[00:03:12] Speaker 03:
And that's the reason why this is a reversible error on its own, is because without that tying together based upon the ambient light, the purpose of the sensor of the louvered film in Melby being to

[00:03:26] Speaker 03:
reduce ambient light, there's no reason an arisen would have looked to it.

[00:03:32] Speaker 03:
There's a second.

[00:03:34] Speaker 03:
I'm happy to address any of the court's questions on Melby.

[00:03:37] Speaker 00:
Well, I guess I'm just wondering.

[00:03:38] Speaker 00:
I mean, this is a question of fact right.

[00:03:40] Speaker 00:
Apple had an expert that explained that Melby did teach this.

[00:03:47] Speaker 00:
And the board relied on that.

[00:03:51] Speaker 00:
At least that, right.

[00:03:52] Speaker 00:
I mean, we're dealing with a substantial evidence review.

[00:03:55] Speaker 00:
What's conclusions with respect to what the prior art talked?

[00:03:58] Speaker 03:
I believe, and we cite this in our briefing, I believe their expert relied on a slightly different and erroneous, I think Apple's disclaimed this.

[00:04:06] Speaker 03:
Apple's expert actually relied on the idea that you would substitute Mel Bies Luverd film for a diffusing element.

[00:04:13] Speaker 03:
And that's not present in Webster.

[00:04:15] Speaker 03:
And Apple in their briefing has said that that was wrong or an obvious error.

[00:04:21] Speaker 03:
I'll note that that obvious error also appears in the petition itself, and the board recognized that.

[00:04:28] Speaker 03:
So there's a little bit of tension here.

[00:04:29] Speaker 03:
The ambient light theory, I don't believe came up necessarily in the expert declaration specifically that Melby disclosed ambient light as a goal.

[00:04:42] Speaker 03:
Now, I think what the expert did say is that after you form that combination, you would recognize that

[00:04:50] Speaker 03:
it would reduce ambient light.

[00:04:52] Speaker 03:
But that's a retrospective approach.

[00:04:55] Speaker 03:
So you don't look retrospectively after you've combined the two references together to form a sensor.

[00:05:01] Speaker 03:
You look prospectively as to whether there's a reason to make that combination in the first place.

[00:05:06] Speaker 03:
I think that's what was absent.

[00:05:07] Speaker 04:
Just to be clear, you don't dispute that Webster discloses the claimed sensor elements, right?

[00:05:14] Speaker 03:
We don't dispute that Webster discloses a sensor.

[00:05:18] Speaker 03:
And we also don't dispute that Webster discloses a film that filters wavelengths.

[00:05:24] Speaker 03:
What we do dispute with respect to the board's factual findings about Webster is that the board found that Webster broadly disclosed some type of light filter.

[00:05:36] Speaker 03:
We think that that finding is not supported by substantial evidence because, in fact, what Webster does is disclose only one kind of light filter.

[00:05:46] Speaker 03:
And it's not an example in Webster.

[00:05:49] Speaker 04:
It does disclose concerns on unwanted ambient light.

[00:05:55] Speaker 03:
We also acknowledge that Webster identifies ambient light as an issue.

[00:06:00] Speaker 04:
but when we're sure this is quite a bit uh... factors involving the center right webster discloses uh... very uh... high-level eight pulse oximetry sense but the go-back uh... it seems to me that you the way i read it you you don't this dispute that webster claims uh... the central

[00:06:25] Speaker 03:
we don't have to disclose is the claims that we don't did we don't dispute that we have to disclose is an emitter discloses a detector but we do just dispute that there would be any reason to have a louvered film the ambient light issue that talks about the problem with ambient light also correct it does is it identifies a problem but and and i don't think you dispute that milby discloses of the louvers

[00:06:52] Speaker 03:
We do not dispute that Melby discloses a leverage structure.

[00:06:56] Speaker 01:
The solution.

[00:06:58] Speaker 03:
It is.

[00:06:58] Speaker 03:
But there is no identification that that would be a solution.

[00:07:03] Speaker 03:
Now, the problem is that you don't get to just pick out any film and say, well, this is the solution.

[00:07:09] Speaker 03:
There may be many, many different solutions that, in retrospect, become clear.

[00:07:15] Speaker 03:
And that's what we're dealing with here.

[00:07:17] Speaker 03:
Because what Webster says in response to the ambient light issue

[00:07:22] Speaker 03:
It's concerned with blocking light that comes from the side and what they do is they recess the photodetector.

[00:07:28] Speaker 03:
For example, you can imagine you're standing at a window and you take some steps back from the window and you feel the view is narrowed.

[00:07:34] Speaker 03:
What it does not do, and this is very important because in pulse oximetry it's a very sensitive type of measurement, it doesn't block light coming in from the window itself.

[00:07:45] Speaker 03:
That's the difference.

[00:07:46] Speaker 04:
So the Louvert film actually... But at that point, why wouldn't a person skilled in the art be able to figure this out just with practicality?

[00:07:55] Speaker 03:
Well, I will note that despite being found to be a comprehensive view of the field at the time, Webster doesn't mention Louvert's in any context has ever been used.

[00:08:08] Speaker 00:
Yeah, well, that's why, as Judge Laurie said a few minutes ago, we're not talking about anticipation.

[00:08:13] Speaker 00:
We're talking about obviousness.

[00:08:14] Speaker 00:
That's why we combine it with Melby.

[00:08:17] Speaker 03:
That's right.

[00:08:17] Speaker 03:
And again, what we want to point out here is that the reason for the combination was a misapprehension that the louvered structure of Melby was designed to reduce ambient light, and there is no such disclosure.

[00:08:31] Speaker 00:
Well, didn't the board conclude that it also teaches that film is useful in a wide variety of applications?

[00:08:38] Speaker 00:
and there's lights in Rome where Melby about that and so they concluded it was sufficient and under our standard of review I'm not clear on how we could discard that.

[00:08:51] Speaker 03:
Whether or not it's useful in a wide variety of applications is different than whether the specific teaching that the board relied on for its obviousness combination and that specific teaching is that the purpose of Melby's film was to reduce ambient light and that's clearly not supported by substantial evidence.

[00:09:08] Speaker 03:
So it's not just that it could be used.

[00:09:11] Speaker 03:
It's that the board's analysis specifically relied on the fact that it was disclosed as being useful for reducing the impact of ambient light.

[00:09:23] Speaker 03:
So that is the type of factual finding where you do need substantial evidence support, because under KSR, the obvious determination, the strategy or the theory that was taken

[00:09:35] Speaker 03:
was that there was a commonality of purpose.

[00:09:39] Speaker 03:
And if that's not supported by substantial evidence, then the theory falls apart.

[00:09:43] Speaker 03:
Whether or not it could be used, and we haven't addressed the issue of whether, ultimately, after the combination, it could have that function.

[00:09:57] Speaker 03:
But the bottom line is you have to make it first.

[00:10:00] Speaker 01:
You set the bar pretty low on patentability.

[00:10:06] Speaker 03:
Judge Lloyd, respectfully, the Luverd film, this, to my understanding, it's an almost unique feature, and that's why they didn't cite any references.

[00:10:18] Speaker 03:
I think there's maybe one reference cited in the context of a different combination from many, many decades ago for a completely different purpose, but wasn't something that was used.

[00:10:32] Speaker 03:
So it's not a,

[00:10:35] Speaker 03:
The idea of this particular patent was using the directionality of the elect to give you additional information.

[00:10:42] Speaker 03:
And I think that was a new feature in the art.

[00:10:43] Speaker 04:
It sounds to me that you're arguing that Mel B is not in the same analogous field as Webster.

[00:10:51] Speaker 03:
We're not raising an analogous argument.

[00:10:53] Speaker 03:
That's not the issue.

[00:10:55] Speaker 04:
You're not calling it that, but that's what it sounds like you're doing.

[00:10:58] Speaker 04:
Well, I believe that the courts.

[00:11:01] Speaker 04:
You're arguing there's nothing that would take a person skilled in the art from Webster to Melbourne.

[00:11:08] Speaker 03:
That is what we are arguing.

[00:11:09] Speaker 03:
Because in the context of these sensors, blocking light coming in from the measuring site, which is what a Luverd film does, it blocks what they call on-axis light.

[00:11:19] Speaker 03:
And the reduction is quite significant.

[00:11:20] Speaker 03:
It could be 20%, 25%, or more percent on-axis.

[00:11:24] Speaker 03:
That's because you put a physical barrier in the way of the light.

[00:11:28] Speaker 03:
even the light that you want.

[00:11:29] Speaker 03:
And that would be very undesirable in the context of these types of sensors.

[00:11:37] Speaker 01:
We can save the rest of your time.

[00:11:40] Speaker 03:
I will save the rest of my time for rebuttal.

[00:11:42] Speaker 03:
Thank you, Your Honor.

[00:11:43] Speaker 01:
Thank you, Mr. Helm.

[00:11:45] Speaker 01:
Ms.

[00:11:45] Speaker 01:
Diggott.

[00:11:58] Speaker 02:
May it please the court, Lauren Degen for Apple.

[00:12:02] Speaker 02:
Substantial evidence supports the board's finding to combine Melby's louvers with Webster's censor.

[00:12:09] Speaker 02:
First, Webster's teaches repeatedly the desire to avoid unwanted light.

[00:12:15] Speaker 02:
Melby likewise teaches a solution to the problem of avoiding unwanted light in the form of these louvers, this louvered film.

[00:12:24] Speaker 02:
Webster goes further.

[00:12:26] Speaker 02:
Webster says that one should place some type of light filter over the detector as a way to avoid unwanted light and then of course Melby teaches a type of light filter.

[00:12:39] Speaker 02:
The board relied

[00:12:41] Speaker 02:
To make the findings of a motivation to combine, the board relied on Webster's teachings.

[00:12:46] Speaker 02:
That alone is substantial evidence, but the board had more.

[00:12:49] Speaker 02:
It relied on Dr. Anthony's declaration, including in paragraphs 100 through 104, that appendix 57 through 60, who explains that one of organized skill in the art would have been motivated by these teachings in Webster's to take the louvered film of Melby and apply it to Webster's censor.

[00:13:10] Speaker 02:
We talked a little bit about, my colleague talked a little bit about this idea of ambient light.

[00:13:15] Speaker 02:
Webster teaches on appendix 950 that a type of unwanted light is excessive ambient light.

[00:13:24] Speaker 02:
And that is the nature of the teachings in Webster's.

[00:13:28] Speaker 02:
The board does say

[00:13:31] Speaker 02:
that Melby would help with that problem.

[00:13:34] Speaker 02:
I think to be very candid, Melby doesn't use the phrase ambient light, that Melby is very clear about his desire to mitigate unwanted light.

[00:13:45] Speaker 02:
proposes a structure that has a wide variety of applications.

[00:13:49] Speaker 02:
Column one talks about goggles.

[00:13:51] Speaker 02:
The end of column four talks about a sunscreen.

[00:13:53] Speaker 02:
It's not simply the backlit.

[00:13:55] Speaker 02:
The sun comes through one direction for the sunscreen.

[00:13:59] Speaker 02:
The light comes up from the backlit.

[00:14:01] Speaker 02:
The structure of the louver is agnostic to the direction of the light.

[00:14:04] Speaker 02:
It functions in the same way, controlling the directionality of the light.

[00:14:10] Speaker 02:
I want to point out and respond to Council's argument that Webster's

[00:14:15] Speaker 02:
Teaching to use some type of filter is not limited exclusively to a wavelength type filter.

[00:14:22] Speaker 02:
If we look at appendix 950, where Webster is teaching us about different types of unwanted light, one type of unwanted light... Does Melby teach avoiding ambient light?

[00:14:34] Speaker 02:
Melby teaches avoiding unwanted light.

[00:14:37] Speaker 04:
It's not ambient light.

[00:14:38] Speaker 04:
It doesn't use the words ambient.

[00:14:41] Speaker 04:
Most of your argument now has been on ambient light.

[00:14:46] Speaker 04:
So how would a purchase skill in the art at Webster know to go to Melby if ambient light is not the objective?

[00:14:58] Speaker 02:
So Webster teaches us that excessive ambient light is one kind of unwanted light.

[00:15:05] Speaker 02:
And Mel B speaks to the desire to avoid off-axis light, unwanted light.

[00:15:13] Speaker 02:
And so, again, because it's an obvious conversation, Your Honor, one doesn't have to start with one reference and be directed to another.

[00:15:21] Speaker 02:
A person with ordinary skill in the art is already aware of both teachings, both references.

[00:15:26] Speaker 04:
And since both references are talking about how to... I understand, but as you agree, Melby doesn't teach avoiding ambient light.

[00:15:36] Speaker 02:
Melby teaches avoiding unwanted light.

[00:15:38] Speaker 04:
Unwanted light, but not ambient light.

[00:15:40] Speaker 02:
But since ambient light is a type of unwanted light, the references are in the same, making the same sort of teachings.

[00:15:47] Speaker 04:
And if I can speak to a little bit of Webster... Can you say that perhaps the board misapprehended ambient light for unwanted light, or vice versa?

[00:15:56] Speaker 02:
So I think in the part of the final written decision, the board is talking about Webster's teachings about unwanted light and ambient light being a kind of unwanted light and in the combination describing how using Melby's specific technique to

[00:16:16] Speaker 02:
avoid unwanted light would have the effect of ambient light.

[00:16:20] Speaker 02:
So the language may be a little loose, but the context was describing the operation of the combination.

[00:16:28] Speaker 02:
But the fact that Melby doesn't specifically speak to ambient light with respect to one of skill in the art who understands that ambient light is a type of unwanted light, which Melby is talking about, I think is more than substantial evidence.

[00:16:41] Speaker 02:
Again, we're looking to support the board's finding that the teachings together

[00:16:46] Speaker 02:
result in the claim combination.

[00:16:50] Speaker 02:
And so through the lens of substantial evidence, we have both teachings with respect to unwanted light and Dr. Anthony's explanation of how one of Moria's skill in the art, reading Webster and knowing of Melby would have been motivated to combine them.

[00:17:09] Speaker 01:
Excuse me.

[00:17:11] Speaker 01:
You want ambient light when you want to get vitamin D.

[00:17:15] Speaker 01:
But in certain circumstances, it may be unwanted.

[00:17:19] Speaker 02:
That is exactly right.

[00:17:20] Speaker 02:
And in Appendix 950, the Webster reference explains that excessive ambient light is unwanted light.

[00:17:31] Speaker 02:
I will say for Webster, I want to make the point.

[00:17:34] Speaker 02:
Webster talks about the need to, this is Appendix 950, the need to minimize the effect from light other than the optical signals of interest.

[00:17:45] Speaker 02:
And it talks about the designer must attempt to limit the light reaching the photodiode to that which is traveled through tissue containing arterial blood.

[00:17:54] Speaker 02:
So he's focusing on making sure that the detector

[00:17:59] Speaker 02:
is obtaining light that has passed through the blood.

[00:18:02] Speaker 02:
And it talks about two different kinds of unwanted light.

[00:18:05] Speaker 02:
One is by wavelength, and one is by direction.

[00:18:08] Speaker 02:
It specifically says one can decrease the angle of incidence to the photodiode.

[00:18:14] Speaker 02:
This concept of controlling the direction of the light to avoid the unwanted light of a certain direction is specifically also mentioned in Melby with respect to the benefits of its louvers filled.

[00:18:27] Speaker 02:
Again, this is in column four talking about

[00:18:29] Speaker 02:
light entering at a grazing angle would be a type of unwanted light.

[00:18:36] Speaker 02:
In addition to the broad teachings of that, some type of light filter can be used in order to obtain the benefits of avoiding unwanted light.

[00:18:48] Speaker 02:
Both references teach this idea of a way it's useful to avoid unwanted light due to its directionality.

[00:19:02] Speaker 02:
And Dr. Anthony, following up on this point in paragraph 100 of his declaration, is very clear that Melby teaches that one can restrict the direction of light using the louver filters.

[00:19:15] Speaker 02:
So for those reasons, we would say that this record contains more than sufficient evidence from which the board made its findings of the motivation to combine Melby's louvers with Webster's sensor.

[00:19:28] Speaker 02:
Again, that would be Webster's teaching, Dr. Anthony's description of the references,

[00:19:32] Speaker 02:
and Melby's solutions to the problem of unwanted light.

[00:19:39] Speaker 02:
If the court doesn't have further questions, I will yield.

[00:19:41] Speaker 01:
Let me ask you an irrelevant question that you know a lot about US patents.

[00:19:47] Speaker 01:
Why is this Melby rather than Cobb when Melby is the fourth listed inventor?

[00:19:53] Speaker 01:
Doesn't that seem unusual?

[00:19:55] Speaker 02:
I will confess, I have the same question.

[00:20:02] Speaker 02:
I'm afraid I don't know, Your Honor.

[00:20:03] Speaker 02:
I think sometimes people pick a name in the petition, and we're not always privy as to why Melby gets his day in the sunlight here as opposed to for Mr. Hobbs.

[00:20:14] Speaker 01:
We'll consider it properly anyway.

[00:20:17] Speaker 01:
Properly?

[00:20:18] Speaker 01:
Thank you.

[00:20:19] Speaker 01:
Mr. Helm has some huddle time.

[00:20:25] Speaker 03:
Thank you, Your Honor, and I'll try to be short.

[00:20:29] Speaker 03:
The issue of equating ambient light in Melby and Webster first came up in the reply briefing before the board.

[00:20:38] Speaker 03:
It wasn't presented in the petition itself.

[00:20:41] Speaker 03:
It said APPX 28, where the petitioner argued in the reply that Webster describes that one type of unwanted light that should be minimized is ambient light.

[00:20:49] Speaker 03:
which is the type of light the light control film of Melby is designed to minimize.

[00:20:53] Speaker 03:
So this was the express argument that was made before the board and that the board applied.

[00:20:58] Speaker 03:
It wasn't a generic idea of unwanted light.

[00:21:02] Speaker 03:
It was specifically equating the purpose of Melby and Webster.

[00:21:06] Speaker 03:
And that came up for the first time on reply.

[00:21:09] Speaker 03:
There was no reply declaration submitted in this proceeding.

[00:21:13] Speaker 03:
So it was unsupported by expert testimony.

[00:21:16] Speaker 03:
The issue of some type of light filter

[00:21:20] Speaker 03:
We believe that properly read, Webster does not disclose anything other than a wavelength filter.

[00:21:26] Speaker 03:
And that's because when it mentions some type of light filter, it immediately in the next sentence says, this is or this means you can filter wavelengths of light.

[00:21:36] Speaker 03:
So it's an IDS statement, not an EG statement.

[00:21:40] Speaker 03:
And finally, the discussion of ambient light in Webster comes in a completely different section than this discussion of films placed over the detector.

[00:21:49] Speaker 03:
And that's important because placing something over the detector has the possibility of impeding the light from the measurement site, the desired light.

[00:21:57] Speaker 03:
That's exactly what you would expect with a louvered film that would impede the light from the measurement site.

[00:22:03] Speaker 03:
The decrease in the angle of incidence has to do with recessing the photo detector back, as I've discussed before, stepping back from the window, as opposed to putting a structure over the window that would block the light.

[00:22:14] Speaker 03:
And if there's no further questions, I'm happy to say that.

[00:22:17] Speaker 01:
Thank you both for shedding light on this case, and it is not unwanted.

[00:22:22] Speaker 01:
The case is submitted.