[00:00:00] Speaker 03:
The next case is also Massimilio Versacoppi, 2022, 2069, 7071, and 72.

[00:00:15] Speaker 03:
I think we're back to pronounce curvature theory again.

[00:00:18] Speaker 00:
Thank you, Your Honor.

[00:00:23] Speaker 00:
I'm going to touch on the optics theory again briefly because in this third appeal, there was a different stated theory, which was most pronounced curvature.

[00:00:35] Speaker 00:
And then I'm going to briefly talk about some dependent claims that we believe there's not evidence to support the validity of those dependent claims.

[00:00:45] Speaker 00:
First of all, in this particular appeal,

[00:00:51] Speaker 00:
There's no adhesion motivation or Osaka decision at least not yet by the board.

[00:00:55] Speaker 00:
It's really all about the optics and Reliance on Inukawa to improve light collection and an interesting in this appeal and Apple's brief Apple admitted quote a convex lens would generally cause incoming light to condense toward the center and that's consistent with what Apple's petition argued and we believe The board should have addressed it's adequately addressed in its decision and if you look at

[00:01:23] Speaker 00:
Apple's brief, I'm sorry, our reply brief at pages six to seven.

[00:01:30] Speaker 00:
Take a moment to look at it, to go there if you'd like.

[00:01:36] Speaker 00:
You see a variety of lens shapes throughout these appeals.

[00:01:41] Speaker 00:
And whether it's the greatest curvature theory, most pronounced curvature theory, our view is you look at these illustrations and they really don't support Apple's theory that a person was stealing art wood and led to this combination.

[00:01:56] Speaker 00:
In some cases, it looks like the most pronounced curvature is right over the center LED.

[00:02:01] Speaker 00:
In other cases, we don't see any of that curvature at all.

[00:02:05] Speaker 00:
And so we think the board should have addressed those inconsistencies.

[00:02:09] Speaker 00:
And under personal web, we think it's important that there be a clear evidence-based explanation of the combination, how it works.

[00:02:18] Speaker 00:
And particularly in this case, where there's a universe of potential lens shapes, that clear description that can be really analyzed and understood is what tells us that a person of skill in the art would have really been led to these particular claims.

[00:02:30] Speaker 00:
And we just don't have that in the record here.

[00:02:34] Speaker 00:
I also want to discuss also a failure to explain why a most pronounced curvature theory, I'll go with that in this appeal, would lead to a single lens over multiple detectors, which was not in the prior art, which is the basis for the claims being allowed that Massimo disclosed.

[00:02:55] Speaker 00:
And we know from the case law that

[00:02:59] Speaker 00:
there needs to be a reason for the specific design choice made, that's cuts forth.

[00:03:05] Speaker 00:
And there needs to be showing that a person of skill in the art would combine the elements the way the claimed invention does, like an active video.

[00:03:12] Speaker 00:
And what we don't have is a connection between a person of skill in the art wants to place a greatest curvature, or excuse me, in this appeal, most pronounced curvature, most pronounced curvature near the detector.

[00:03:25] Speaker 00:
Why would that lead a person of skill in the art to place a single lens over multiple detectors?

[00:03:30] Speaker 00:
Why wouldn't that lead a person of skill in the art to place a convex surface over each detector, as was shown in the prior art?

[00:03:36] Speaker 00:
In fact, that would provide you more curvature near the detector.

[00:03:40] Speaker 00:
And especially where this is not a case where there's just a few simple design choices and a percentile skill in the art would choose among them, where there's a universe of potential design shapes, we think that that whole is very important.

[00:03:53] Speaker 00:
Now I'm going to briefly just discuss some dependent claims and then a little bit on reasonable expectation of success if there's time.

[00:04:00] Speaker 01:
Are you independently challenging the mean path length limitation?

[00:04:04] Speaker 00:
Yes, that's what I'm going to address now.

[00:04:06] Speaker 00:
Perfect.

[00:04:10] Speaker 00:
In its petition, we have particular dependent claims that require that the light permeable cover is configured to reduce a mean path length of light traveling to the at least four detectors.

[00:04:23] Speaker 00:
Apple's experts agree that mean path length meant, on average, the average path length of light entering the convex surface.

[00:04:32] Speaker 00:
In Apple's petition and in Apple's expert declaration, Apple's expert addressed this by showing that light would be directed towards the center.

[00:04:42] Speaker 00:
And he said the light would be directed towards the center, referring to the light as a whole as far as we could possibly discern.

[00:04:52] Speaker 00:
And that was consistent with Apple's overall theory that light would be condensed towards the center.

[00:04:57] Speaker 00:
And that's how Apple showed that claim limitation was satisfied.

[00:05:00] Speaker 00:
The issue we have is now that the board adopts a greatest curvature theory, as opposed to just a simple theory that light would be directed towards the center, we have no expert testimony supporting the invalidity of those claims.

[00:05:15] Speaker 00:
And in fact, in this appeal, what the board said was,

[00:05:20] Speaker 00:
In this case, they did look at that particular evidence, not the many admissions from the deposition, but the board did talk about what Apple's expert said in his declaration and how that arrow pointed to the center, and it said the light would condense toward the center.

[00:05:36] Speaker 00:
And the board said, nope, that's not what he meant.

[00:05:38] Speaker 00:
That's not what he said.

[00:05:40] Speaker 00:
In fact, he was just analyzing the flow of a single, he was just analyzing how a single ray of light would go towards the center.

[00:05:47] Speaker 00:
And Apple's expert testified that, well,

[00:05:50] Speaker 00:
you know, in connection with discovering this flaw in the theory, that that was just showing the path of a single light.

[00:05:56] Speaker 00:
And if you perform the analysis for a number of additional rays of light, if you did that analysis, that would show that mean path length is reduced, essentially acknowledging that Apple does not have expert testimony on that point in the record.

[00:06:11] Speaker 00:
And there's nothing to show that these claims are invalid.

[00:06:15] Speaker 01:
Can you make the appendix citations that show you raised this issue below?

[00:06:20] Speaker 00:
We raised this issue as challenging Apple's overall theory.

[00:06:24] Speaker 00:
But we understood Apple's theory to be an Apple's expert declaration to see that the light was being directed towards the center.

[00:06:31] Speaker 00:
So we didn't separately challenge these claim limitations below, because we understood Apple's expert theory to be, and looks like on its face as to what it says, that light as a whole, on average, mean, would be directed towards the center.

[00:06:46] Speaker 00:
And so Apple's argued waiver.

[00:06:47] Speaker 00:
We understand that's an issue here.

[00:06:49] Speaker 00:
And our view is we cited a case that conscientiousness is required, not clairvoyance.

[00:06:57] Speaker 00:
We really don't think we could have contemplated that the board would reinterpret Apple's testimony regarding the flow of light to that detector as just pertaining to a single ray of light, when if you look at that testimony, it clearly says overall light is directed towards the center.

[00:07:13] Speaker 00:
But even if this court would find that waiver could apply,

[00:07:17] Speaker 00:
We know that waiver is discretionary.

[00:07:18] Speaker 00:
That's under Syngenta.

[00:07:20] Speaker 00:
And this court tends to not apply waiver, at least in some circumstances, when the record is clear so that this court can make a decision.

[00:07:29] Speaker 01:
And in this case- Just to sum up, though, so let me try to have the record clear.

[00:07:32] Speaker 01:
You did not independently challenge the mean path limitation, mean path length limitation, right?

[00:07:39] Speaker 00:
That's correct.

[00:07:40] Speaker 01:
And you also didn't independently challenge that in the earlier appeal we talked about, 1631.

[00:07:45] Speaker 00:
That's correct.

[00:07:46] Speaker 01:
Thank you.

[00:07:47] Speaker 00:
Yeah, our view is, when you look at that testimony, we did not, and we don't think we could have reasonably contemplated the board would reinterpret that testimony and interpreting this mean path-length provision and his description of the light.

[00:08:01] Speaker 00:
Remember, he doesn't say a ray of light in this initial declaration.

[00:08:04] Speaker 00:
That was later.

[00:08:04] Speaker 00:
The light is directed towards the center.

[00:08:07] Speaker 00:
But even if we should have, where the record's adequately developed, that's in capsule, then this court obviously has discretion to go ahead and decide the issue.

[00:08:18] Speaker 00:
And we think the board's reasoning is clear.

[00:08:20] Speaker 00:
We think it's wrong.

[00:08:21] Speaker 00:
We think it's clearly wrong.

[00:08:23] Speaker 00:
But the board interpreted that as pertaining to a single ray of light.

[00:08:27] Speaker 00:
And if that's true, there's just no evidence in connection with the petition or anywhere else that those claims are invalid.

[00:08:38] Speaker 00:
And just briefly, reasonable expectation of success.

[00:08:41] Speaker 00:
I've already made the point.

[00:08:41] Speaker 00:
We think the court's precedent requires a clear evidence-based description of the combination and how it works.

[00:08:47] Speaker 00:
And in particular, we think that the board should have addressed

[00:08:50] Speaker 00:
Apple's experts extensive testimony about how complex it is to determine where light would fall in the detector and determine, you know, and choose a particular lens shape.

[00:09:00] Speaker 00:
And all the complexity of that we think the board did not consider, the board should have considered.

[00:09:05] Speaker 00:
And what we don't have from these pictures

[00:09:09] Speaker 00:
A clear understanding of what this combination, a person of skill and the art, what that combination would look like, which takes away our ability to challenge that combination.

[00:09:20] Speaker 00:
And it also makes it not clear whether it would actually satisfy the claims or which claims.

[00:09:25] Speaker 00:
For example, the protrusion height claims.

[00:09:27] Speaker 00:
Without a clear description of the combination, we can't know that.

[00:09:29] Speaker 00:
So I will stop there unless your honor has more questions.

[00:09:32] Speaker 00:
Your honors.

[00:09:34] Speaker ?:
Thank you.

[00:09:42] Speaker 02:
I'm going to start with the council's argument with respect to there not being a motivation to use a single cover when one was combining Aizawa and Inokawa, and I would state very simply that Aizawa uses a single cover, Inokawa uses a single cover, and there's frankly no need to have a motivation to keep something that's actually in both references.

[00:10:05] Speaker 02:
Focusing, I guess we'll go back to the pronounced curvature point.

[00:10:09] Speaker 02:
And I think council's main objection is sort of a repeated one that the board somehow didn't adequately reconcile how a particular lens could both direct light towards the detectors based on the convexity there and the idea that it would also generally

[00:10:30] Speaker 02:
send light towards the center.

[00:10:33] Speaker 02:
And again, just so the court has it, I can refer you to the testimony in our expert appendix 3576 through 77.

[00:10:43] Speaker 02:
Really paragraph 32 talks about, and 33 talks about how it's the same figure without the red arrows, but talks about how light

[00:10:53] Speaker 02:
Far from focusing light to a single central point, a faceta would have understood that Asaki's cover provides a slight refracting effect such that light rays that may have missed the active detection area are instead directed towards the area as they pass through the interface provided by the lens.

[00:11:09] Speaker 02:
So again, through the substantial evidence lens, there's more than enough in this record to support the board's findings with respect to this issue of motivation combined between Aizawa and Okawa.

[00:11:21] Speaker 02:
The last thing I will touch on, I think, is these dependent mean path length claims.

[00:11:30] Speaker 02:
Your honor is absolutely right.

[00:11:32] Speaker 02:
The board's discussion of it is short, given the treatment it received during briefing before the board.

[00:11:39] Speaker 02:
However, the board did cite our expert's testimony, and in particular,

[00:11:46] Speaker 02:
at appendix 75, 32 to 34, paragraphs 107 to 108, talks about why it is that the mean length

[00:11:59] Speaker 02:
The main path length is shortened because of the light being more directed instead of obliquely angled.

[00:12:06] Speaker 02:
This testimony is again substantial evidence to support the validity of these dependent claims.

[00:12:11] Speaker 02:
And I think it's improper to fault the board for not devoting more pages to this issue when Massimo itself did not elaborate on this point before it.

[00:12:22] Speaker 02:
I apologize, there is this issue of reasonable expectation of success.

[00:12:27] Speaker 02:
Again, Massimo's arguments in this regard, I think, ignore the board's findings that one of skill in the art would have had an understanding of these basic optics principles on which the board relied.

[00:12:40] Speaker 02:
This is something the board found a person of skill in the art would have.

[00:12:44] Speaker 02:
It's not surprising, given the definition of a person of skill in the art, including people with electrical engineering degrees, trained in electrical, computer science,

[00:12:52] Speaker 02:
whatnot, and our expert points out that these sort of basic principles would be encountered by anyone of the BS in those sorts of degrees.

[00:13:01] Speaker 02:
So the reasonable expectation of success here really rises or falls with the notion that Massimo advances to kind of derail the motivation behind in general.

[00:13:13] Speaker 02:
person of skill in the art would have understood that convexity of a lens can be tailored so that the light will be delivered to the place where the do-most-good is some of the language we saw in the testimony.

[00:13:23] Speaker 02:
But the board's finding that one of skill in the art would have been able to tailor such a lens is supported by substantial evidence.

[00:13:32] Speaker 02:
Any other questions?

[00:13:34] Speaker 03:
Thank you, Ms.

[00:13:35] Speaker 03:
Tehan.

[00:13:36] Speaker 03:
Mr. Lawson has five minutes plus if you need it.

[00:13:40] Speaker 00:
I will not need it, and I will just

[00:13:42] Speaker 00:
respond briefly.

[00:13:44] Speaker 00:
Certainly throughout these appeals, Apple's argument has been that there's substantial evidence.

[00:13:49] Speaker 00:
But we've pointed to specific errors, and we think under this case, allow those errors to support or remand.

[00:13:54] Speaker 00:
And we think that looking at the evidence, substantial evidence requires an examination of the record as a whole.

[00:14:00] Speaker 00:
And we don't think that happened here, and I think the board's

[00:14:04] Speaker 00:
record leaves more questions than answers.

[00:14:06] Speaker 00:
How can a lens concentrate light in the center and also at the periphery?

[00:14:13] Speaker 00:
How can a lens concentrate light everywhere?

[00:14:15] Speaker 00:
And if it would really be known to a person of steel in the art that they would want to place the greatest curvature near the detector, why doesn't that appear in any document?

[00:14:24] Speaker 00:
Why does an Ikawa show errors pointing to the center?

[00:14:27] Speaker 00:
And why did Apple's expert testify that an Ikawa

[00:14:30] Speaker 00:
explains and would motivate a person's skill in the art to direct light towards the center.

[00:14:38] Speaker 00:
Why do we see so many different illustrations of Apple's combination?

[00:14:46] Speaker 00:
If this is really the greatest curvature, or in this case, the most pronounced curvature,

[00:14:50] Speaker 00:
or increase light everywhere, if that's really something that would be known of skill in the art and that would cause a person of skill in the art to make these changes, why doesn't that appear anywhere in Apple's petitions and declarations?

[00:15:01] Speaker 00:
And I will stop there unless you all have questions.

[00:15:05] Speaker 03:
And thank you both for shedding concentrated light on these cases.

[00:15:09] Speaker 03:
In this case, Mr. Mitchell.