[00:00:04] Speaker 02: Good morning, your honors. [00:00:09] Speaker 02: May it please the court. [00:00:11] Speaker 02: So the two issues I would like to discuss today are, number one, we believe there is an APA violation from the board. [00:00:19] Speaker 02: And number two is a claim destruction issue. [00:00:22] Speaker 02: Both of those are issues of law for the court to consider. [00:00:25] Speaker 02: And so I'll start with the first APA violation. [00:00:27] Speaker 00: Just out of idle curiosity, what happened to Intel? [00:00:32] Speaker 02: Intel, the party, settled. [00:00:35] Speaker 02: So with regards to the APA violation, so there was abusive discretion here. [00:00:40] Speaker 02: So what happened is that a new issue was raised for the first time by Intel in their reply brief regarding what non-negligible amounts of energy is. [00:00:50] Speaker 02: Never heard, never saw it, never heard about it before at the reply brief. [00:00:54] Speaker 02: In Sirreply, we attempted to address the issue. [00:00:58] Speaker 02: The board struck anything that we had to say on non-negligible amounts of energy. [00:01:02] Speaker 02: They wouldn't let us get a word in on that issue. [00:01:05] Speaker 02: Um, so we had no notice going into, uh, prior to the reply, we had no notice of the position. [00:01:11] Speaker 01: So I understand it in your patent owner response. [00:01:13] Speaker 01: You were the ones that, uh, construed storage element, which sounds like a very basic term. [00:01:21] Speaker 01: to have all these very intricate requirements. [00:01:24] Speaker 01: Number one, it's an energy transfer system, the whole energy transfer system, and two, the storage element stores non-negligible amounts of energy. [00:01:38] Speaker 01: And then you propose to say, well, the reference doesn't have an energy transfer system. [00:01:44] Speaker 01: Was there anything stopping you at that time, in your patented response, from saying, and the reference does not disclose storing non-negligible amounts of energy, only storing negligible amounts of energy? [00:01:55] Speaker 02: So we did say that. [00:01:57] Speaker 02: So if you turn to appendix APTX, start with [00:02:09] Speaker 02: two systems that we talked about, bulger sampling systems and energy transfer systems. [00:02:14] Speaker 02: Those were the two distinguishing systems that we discussed. [00:02:17] Speaker 02: And so I'll start with the punch line. [00:02:20] Speaker 02: So we look at the patent owner's response, ATPX 797. [00:02:24] Speaker 02: Is that volume two? [00:02:28] Speaker 01: Volume two. [00:02:37] Speaker 02: So if you look at the first full paragraph, it talks about, it says, the capacitor and tailow, however, are not storage elements because the capacitors of tailow are not elements of an energy transfer system. [00:02:52] Speaker 02: Tailow is a voltage sampling system. [00:02:53] Speaker 02: So we didn't stop it, right? [00:02:55] Speaker 02: Because we could have said voltage energy transfer system. [00:02:58] Speaker 02: We didn't stop it. [00:02:58] Speaker 02: We kept going. [00:02:59] Speaker 02: And we said, as such, the capacitor and tailow are holding elements. [00:03:03] Speaker 02: So holding elements and then and that's this is the ground. [00:03:07] Speaker 02: This is our section that we respond specifically to the grounds. [00:03:10] Speaker 02: And then if you look at APTX 7 7 1 we explain what a holding element is and we and in that section we talk about a holding element. [00:03:21] Speaker 02: It's holding modules and holding capacitance, as used above, identify systems that store negligible amounts of energy. [00:03:27] Speaker 02: So we didn't just stop with the argument about voltage sampling versus energy sampling or energy transfer system. [00:03:33] Speaker 02: We went further. [00:03:33] Speaker 02: And we talked about a holding element. [00:03:36] Speaker 02: And we described in our argument what a holding element was. [00:03:40] Speaker 02: So we did address the issue in our patent owner response. [00:03:45] Speaker 02: But what we didn't have was the other side's position on non-negligible energy until the reply, because they didn't offer a claim construction. [00:03:54] Speaker 02: They didn't offer any discussion of non-negligible energy. [00:03:58] Speaker 02: The only thing that they said. [00:03:59] Speaker 01: Well, I guess I'm a little bit confused. [00:04:01] Speaker ?: Sure. [00:04:01] Speaker 01: you seem to be saying two different things at the same time. [00:04:06] Speaker 01: Number one, you're saying in your patent owner response, you did in effect make the argument that Taylor lacks an element that stores non-negligible amounts of energy by saying something in 797 that referred back to 771. [00:04:24] Speaker 01: So now you're also saying, [00:04:27] Speaker 01: We couldn't have made that argument until we got to our sir reply and then saw what the petitioner said in reply. [00:04:34] Speaker 01: So really, it's either one or the other. [00:04:36] Speaker 01: Which one do you want to pick? [00:04:38] Speaker 02: OK. [00:04:39] Speaker 01: So did you make the argument in your patent order response? [00:04:41] Speaker 01: Yes. [00:04:42] Speaker 02: We made the argument in the patent order response. [00:04:44] Speaker 02: And in the sir reply, we tried to expand upon that based on what was said for the first time in reply. [00:04:50] Speaker 02: So we were expanding upon what we already said. [00:04:52] Speaker 01: OK. [00:04:52] Speaker 01: So then for us, [00:04:54] Speaker 01: it boils down to, for the court, it boils down to whether we think the board was reasonable in reaching a conclusion that what you've said here at 797 that may silently in an unstated way refer back to something you said in 771 was not in fact an argument about [00:05:14] Speaker 01: whether TALO has a storage element that stores non-equitable amounts of energy, right? [00:05:21] Speaker 02: Right, right. [00:05:22] Speaker 01: If you think the board was reasonable in concluding that you didn't make that argument, then there isn't an APA problem. [00:05:28] Speaker 02: Well, I still believe there is. [00:05:30] Speaker 02: And the reason why there is is because it's similar to the Novasiv case. [00:05:35] Speaker 02: So in the Novasiv case, and we cite that in our brief at [00:05:41] Speaker 02: on page 64 of our opening brief. [00:05:43] Speaker 02: It's Novasiv, Inc., 841, F3rd, 966. [00:05:49] Speaker 02: And in the Novasiv case, a very similar situation happened. [00:05:52] Speaker 02: In the Novasiv case, what happened is that in the petition, the petitioner made statements about very specific figures of a piece of prior art. [00:06:04] Speaker 02: And what happened then in the patent owner respondent relied on those very specific figures. [00:06:10] Speaker 02: And then in the reply for the first time, they raised a new figure. [00:06:16] Speaker 02: And this court said it's an APA violation because what happened is the board didn't allow the patent owner [00:06:25] Speaker 02: in the oral argument. [00:06:27] Speaker 02: At that time, there were no survey flies. [00:06:28] Speaker 02: Didn't allow the patent owner during oral argument to make the argument. [00:06:32] Speaker 02: And that's the same case we have here. [00:06:33] Speaker 02: So even regardless of the position of whether or not, again, we believe that we made the argument in our patent owner response, but putting that aside under the basic case, we're entitled to, under the APA, entitled to respond to an argument we've never heard before. [00:06:50] Speaker 02: We had no knowledge of. [00:06:51] Speaker 02: We're entitled to say, you know, they raised three very specific points. [00:06:55] Speaker 02: So for the first time in the, in the reply brief, [00:06:58] Speaker 02: we start seeing calculations of non-negligible amounts of energy. [00:07:02] Speaker 02: We saw all of a sudden a position of the size of the capacitor matters. [00:07:08] Speaker 02: We saw a position about integrating energy. [00:07:11] Speaker 02: And I'll talk about that real quickly and why that's not right. [00:07:13] Speaker 01: But we had to respond to that. [00:07:14] Speaker 01: Let's assume for the moment that the board was reasonable in concluding that you didn't make this argument in your patented response about tail oil lacking non-negligible amounts of energy being stored. [00:07:27] Speaker 01: Was there something Is there an explanation for why you couldn't have made that Well, we didn't know the specific arguments you you know You were the side that came up with this construction this you know energy transfer system Scores non-negligible amount of energy and then you went forward and said Taylor doesn't have an energy transfer system [00:07:53] Speaker 01: what was stopping you at that point in time, as I'm saying. [00:07:56] Speaker 01: And Taylor doesn't soar non-needily. [00:08:01] Speaker 02: Just to be clear, we believed what we said did address the issue. [00:08:06] Speaker 02: Right. [00:08:06] Speaker 02: So beyond that, we didn't know what positions the other side was going to take because they'd never talked about it before. [00:08:13] Speaker 02: So the only thing we were doing was, under NUVASA, we were reacting to what we were presented with. [00:08:20] Speaker 02: We never heard any of these issues before. [00:08:21] Speaker 02: So we had no reason to do calculations because [00:08:24] Speaker 02: They didn't have any calculations. [00:08:26] Speaker 02: We didn't have reasons to talk about integration and we have reasons to talk about size of capacitors because it was never discussed and the reality is is that when you look at what they argued you could think about sort of capacitors right capacitors are What the storage element is or the the holding elements are they're just capacitors. [00:08:43] Speaker 02: It's an electronic circuit Think about a capacitor like a bucket. [00:08:46] Speaker 00: Okay a capacitor stores energy. [00:08:48] Speaker 00: That's what it does [00:08:49] Speaker 02: It stores energy, but think about a capacitor like a bucket of water. [00:08:53] Speaker 02: So depending on how I use that bucket and what system it is, that depends how much energy it stores. [00:08:58] Speaker 02: I can use the bucket of water to put it under my sink to catch drips of water. [00:09:01] Speaker 02: I could use the same bucket of water to wash my car and fill it up right to the top. [00:09:04] Speaker 02: So you can't just look at a capacitor [00:09:06] Speaker 02: and say, oh, the capacitor stores non-negligible amounts of energy. [00:09:10] Speaker 02: If I use it in a system like my car, it's going to be a significant amount of water because I need a full bucket. [00:09:16] Speaker 02: If I'm using it to catch drips under my sink, it's going to be little drips. [00:09:20] Speaker 02: And just to be clear, the analogy is voltage sampling is the little drips. [00:09:24] Speaker 02: Energy sampling is that full bucket. [00:09:26] Speaker 02: So you can't just look at a capacitor and tell what the capacitor is doing. [00:09:31] Speaker 02: You have to look at the system it's in. [00:09:33] Speaker 02: That's why we argued about energy [00:09:35] Speaker 02: That's why we put the concept of energy transfer system into the definition. [00:09:39] Speaker 02: What they did is they came and raised arguments in the reply brief. [00:09:44] Speaker 02: And in the reply brief, they said, number one, look at the size of the capacitor. [00:09:48] Speaker 02: Well, I can't look at the size of the bucket because the same bucket I used to wash my car is the same size as the bucket as I used to catch a drip. [00:09:54] Speaker 02: So just looking at the size of the capacitor doesn't tell you anything. [00:09:57] Speaker 02: They then argued, look at the volume, essentially, of the capacitor, how much it could store. [00:10:03] Speaker 02: Could store, not actually stored, could store. [00:10:06] Speaker 02: And the total volume, so he calculated, their expert calculated the volume of the bucket. [00:10:10] Speaker 02: But that doesn't tell me anything, because I have to look what system it's in. [00:10:14] Speaker 02: So that's wrong. [00:10:15] Speaker 02: And then he said, well, if you integrate the energy, then what happens is it integrates energy. [00:10:22] Speaker 02: But integration doesn't tell you anything, because if I integrate drips of energy into a bucket, [00:10:26] Speaker 02: It still could be a little. [00:10:28] Speaker 02: If I integrate lots and lots of water as I'm filling up my bucket for washing my car, that's a lot of energy. [00:10:34] Speaker 02: So we had to address that issue. [00:10:36] Speaker 02: It was wrong. [00:10:37] Speaker 02: We needed to address it. [00:10:38] Speaker 02: We didn't have the ability to address those specific issues. [00:10:41] Speaker 02: And that's what we tried to do in our surreply and got blocked at every way by the board. [00:10:46] Speaker 02: And to us, that's in violation of the APA. [00:10:49] Speaker 00: Am I correct? [00:10:50] Speaker 00: You've abandoned the Graham argument. [00:10:52] Speaker 02: Yes. [00:10:54] Speaker 02: And so going back to the point that I was making is that that was the first time we had, you know, and just to be clear, they said, right now, Intel, well, now Solicitor, was arguing lexicography, OK? [00:11:08] Speaker 02: So obvious, lexicography. [00:11:11] Speaker 02: And they point to something Parker Vision said from 2016, like six years ago. [00:11:16] Speaker 02: So they knew all that information, but they didn't provide a definition. [00:11:19] Speaker 02: And then, so basically we got sandbagged. [00:11:22] Speaker 02: They didn't provide a definition, there was no, they could have, they're saying it's lexicography, so obvious, Parker vision said something six years prior, they had all that evidence, and they were completely silent in their opening, in their petition. [00:11:35] Speaker 02: And then they said nothing. [00:11:37] Speaker 02: And then we said, at that time, we said, no, this is what the definition should be. [00:11:41] Speaker 02: And we said, it has to be an element of an energy transfer system. [00:11:44] Speaker 02: There is no lexicography here. [00:11:46] Speaker 02: And I'll get into the second issue of lexicography. [00:11:50] Speaker 02: But that was the first time we had the ability to address the issue. [00:11:53] Speaker 02: And that's what we were trying to do. [00:11:57] Speaker 02: Maybe I could go to the lexicography issue. [00:12:02] Speaker 02: Is that OK? [00:12:03] Speaker 01: I'm curious. [00:12:07] Speaker 01: The claim doesn't say anything about an energy transfer system. [00:12:11] Speaker 01: Do you have other claims that actually call out? [00:12:14] Speaker 01: Energy Transfer System? [00:12:16] Speaker 02: Not in this patent, I don't think so. [00:12:18] Speaker 02: I'm not sure. [00:12:18] Speaker 01: Or, I mean, I'm sure there's some big, endless family of patents here. [00:12:23] Speaker 02: There may, I don't know if there's another patent that specifically says the word Energy Transfer System in it. [00:12:30] Speaker 01: I don't know, but... So getting here, I understand your position that storage elements [00:12:37] Speaker 01: is like specialized lingo for basically a capacitor in an energy transfer system. [00:12:45] Speaker 01: And the first question I have is, is there a case out there that says whenever there is a term in the claim for a component that exists only in a particular environment, then you should read into the claim not only that specialized component, [00:13:07] Speaker 01: but all of the other components that make up that environment. [00:13:11] Speaker 01: And so this little term for this little component carries on its back, I don't know, 10 other components that coexist with this component in that environment. [00:13:22] Speaker 01: Phillips. [00:13:23] Speaker 02: You have to read the specification. [00:13:25] Speaker 01: I don't think Phillips on its back had that kind of situation. [00:13:29] Speaker 02: I so the bottom line is we look you look at the specification as a whole. [00:13:34] Speaker 02: Can I can I just raise one issue to the first point because before I forget because I think it's important for the just sorry just pivot and then I'll come right back. [00:13:41] Speaker 02: I'm not trying to avoid the question. [00:13:43] Speaker 02: Okay. [00:13:44] Speaker 02: So the one issue that I want to address is not only did the patent board exclude our evidence right. [00:13:50] Speaker 02: But they relied on the argument, only the argument, that was made in the petitioner's reply for the first time. [00:13:58] Speaker 02: So they didn't go back to what was said in the petition. [00:14:00] Speaker 02: They went back to the issue that was raised in the reply, and then they prevented us from talking about. [00:14:06] Speaker 02: So that lines up with the nuvasive case, which is exactly what happened, is that the issue that they couldn't [00:14:12] Speaker 02: It was the exact point that was raised in the reply in New Basis that was the basis for the patent board's decision. [00:14:21] Speaker 02: And that's exactly what happened in this case. [00:14:23] Speaker 02: The things that were put into the reply brief for the first time was exactly what the patent office relied upon. [00:14:30] Speaker 02: So sorry about that. [00:14:30] Speaker 02: Now going back to the question that you asked. [00:14:32] Speaker 02: So in terms of the let's go through the specification because I'm not a specific if you could just say if there is a case you're not aware of I'm not aware of it getting this specific thing you have not aware of a case However, I do think Phillips is relevant because if you look at the specification as a whole So the question is is there like psychography our position is that there's no like psychography There's a single storage element gets its plain ordinary meaning which is just an element that stores a [00:15:00] Speaker 02: No, I'm sorry. [00:15:01] Speaker 02: There is a single sentence that the board points to the lexicography. [00:15:05] Speaker 02: It's not lexicography. [00:15:06] Speaker 02: It's comparative. [00:15:07] Speaker 02: If you look at the whole paragraph, if you look at the context of the specification, the specification talks about two systems, energy transfer systems and sample and hold systems. [00:15:16] Speaker 02: Just the board's statement, the board's construction says an element of a system, any system in the whole world, any electrical system in the world that stores non-negligible amounts of energy. [00:15:28] Speaker 02: That can't be correct. [00:15:29] Speaker 02: The patent is not that broad. [00:15:31] Speaker 02: The patent only talks about, and just to be clear, if you're talking about any electronic system in the world, that construction cannot be correct. [00:15:40] Speaker 02: The patent's not that broad. [00:15:42] Speaker 02: And if you look at just, let's say, down conversions. [00:15:44] Speaker 01: Well, the claim on its face looks pretty darn broad. [00:15:46] Speaker 01: And then, you know, it's 64 columns long. [00:15:48] Speaker 01: It doesn't say anything about the minimum storage element. [00:15:51] Speaker 01: You have to look at 128-column patent incorporated by reference before you dig through that whole thing and find a particular interesting paragraph that talks about storage modules. [00:16:02] Speaker 01: I mean, this is not exactly [00:16:04] Speaker 01: friendly to the public notice function of a claim. [00:16:09] Speaker 01: No one would know, just looking at the claim, that it has all this stuff about an energy transfer system. [00:16:14] Speaker 02: Well, it's just that what you would know is that the 551 patent is incorporated by reference, and nobody disputes the board. [00:16:20] Speaker 02: Nobody disputes that the 551 patent is incorporated by reference. [00:16:23] Speaker 02: And that has a very specific section. [00:16:26] Speaker 02: There's different sections in the patent dealing with storage health. [00:16:29] Speaker 02: with storage elements and energy transfer systems. [00:16:33] Speaker 02: Basically there's two sections in the past. [00:16:35] Speaker 02: There is a energy transfer system section and there's a whole, I could point you to the appendix where it actually lays it out on APPX 5207 and 5208. [00:16:45] Speaker 02: There's literally only two systems. [00:16:47] Speaker 02: That's it. [00:16:47] Speaker 02: That's all it's talked about in the patent. [00:16:49] Speaker 02: Two systems. [00:16:50] Speaker 02: Sample and hold systems, energy transfer system. [00:16:53] Speaker 02: That's it. [00:16:54] Speaker 02: The patent cannot be broad enough. [00:16:55] Speaker 02: If you're looking for down conversion systems, you could have heterodyne, homodyne systems, energy transfer systems, voltage sampling, or sample and hold systems. [00:17:04] Speaker 02: The way the board construed it to be any system ever, that's just not what the patent says. [00:17:10] Speaker 02: It's not that broad. [00:17:11] Speaker 02: The patent distinguishes over heterodyne and homodyne systems, and it talks about two systems. [00:17:16] Speaker 02: So the board's construction is way too broad. [00:17:18] Speaker 02: And going back to your point, Your Honor, so I gave the citations, but if you go to the specific paragraph, [00:17:25] Speaker 02: The paragraph is very clear. [00:17:26] Speaker 02: It tries to distinguish between when you have sample and hold systems that use holding elements, that hold negligible amount of energy, and when you have energy transfer systems. [00:17:39] Speaker 02: that have storage elements and store non-negligible amounts of energy. [00:17:43] Speaker 02: And it spends huge volumes of pages discussing the distinguish between the two. [00:17:49] Speaker 02: And then when you get to the specific paragraph, by the way, that paragraph that we've all talked about, [00:17:55] Speaker 02: That's in a section on energy transfer. [00:17:58] Speaker 02: It's actually in a section called introduction to energy transfer. [00:18:01] Speaker 02: That term, when you look at this storage element, is specifically directed to an energy transfer system. [00:18:07] Speaker 02: It is not directed to anything else. [00:18:08] Speaker 02: There's only two things in the, there's only two systems in the specification. [00:18:13] Speaker 02: It's not if it's not a holding up. [00:18:15] Speaker 02: It's either holding element or storage element You're either associated with a voltage sampling or a sample and hold system, or you're associated with a energy transfer system [00:18:46] Speaker 03: I'd like to start with a question that Judge Chen asked earlier on the claim construction issue about whether there are other claims in either the 444 patent or the family that actually claim an energy transfer system. [00:19:00] Speaker 03: And if you look at the 551 patent, [00:19:03] Speaker 03: basically all of the claims claim an energy transfer system and they show that the patentee had the ability and the knowledge of how to claim an energy transfer system and did so in the 551 patent. [00:19:17] Speaker 03: So for example in claim one of the 551 patent it recites a method for generating a lower frequency signal from the transferred energy from the carrier signal which is [00:19:33] Speaker 03: energy transfer system. [00:19:37] Speaker 03: Claim two is generating an energy transfer signal having the aliasing rate and using the energy transfer signal to transfer the energy from the carrier signal. [00:19:47] Speaker 03: And this goes on and on including [00:19:51] Speaker 03: there's recitations of what the energy transfer signal is made up of, the non-negligible aperture of the pulses, et cetera, et cetera. [00:20:05] Speaker 03: So all of those details that they're trying to incorporate into claim three, you can find those in the claims of the 551 patent. [00:20:13] Speaker 03: So if they wanted all of that detail in their claim, they should have put it in there. [00:20:18] Speaker 03: There are over 200 claims in 551. [00:20:21] Speaker 03: Correct. [00:20:22] Speaker 03: And if you look at, I mean, looking at the 551 patent, looking at, you know, starting at claim one, and, you know, there's a lot of dependent claims that depend on claim one. [00:20:37] Speaker 03: Claim 64, claim 68, claim 74, all of these recite the elements of an energy transfer system. [00:20:45] Speaker 01: The 551, that's not a parent patent of the 444 here. [00:20:51] Speaker 03: No. [00:20:51] Speaker 03: It's incorporated by reference. [00:20:53] Speaker 03: But still, it's the same patentee here. [00:20:58] Speaker 03: And so they did claim an energy transfer system in a different patent. [00:21:04] Speaker 03: Your friend spent most of his time on the APA issues. [00:21:07] Speaker 03: Sure. [00:21:09] Speaker 03: On the ADA issue, I guess the starting point to me, which I didn't hear from the other side, is the board's rule in 37 CFR 42.23b, which says that no new evidence is allowed in the SOAR apply. [00:21:24] Speaker 03: So the default rule is that you cannot introduce new evidence in the SOAR apply. [00:21:29] Speaker 03: And that file of motion, that [00:21:31] Speaker 03: Correct. [00:21:32] Speaker 03: You can file a motion. [00:21:33] Speaker 03: You can ask the board to do so. [00:21:35] Speaker 03: And the board's decision points out they didn't do that here. [00:21:39] Speaker 03: They just filed this reply with their new evidence. [00:21:43] Speaker 03: And the new evidence was a whole new set of calculations about energy storage and capacity. [00:21:50] Speaker 03: So at the get-go, you can resolve this issue by saying that they didn't follow the rule and they didn't ask for permission to not apply the rule. [00:22:06] Speaker 03: But even so, I think that [00:22:10] Speaker 02: What the board struck was just the attachments, the declarations, and the new evidence? [00:22:17] Speaker 03: From my understanding, it was exhibit 2022, which was a number of pages of calculations showing that Intel's experts calculations on energy storage were incorrect. [00:22:31] Speaker 03: and then their surreply presented argument based on this evidence. [00:22:43] Speaker 03: So the board struck both the argument and the surreply and the exhibit. [00:22:51] Speaker 03: I guess the point here is that [00:22:54] Speaker 03: In the way that the IPR system is structured, once you have the ability to make an argument, you need to make it in the first opportunity you have. [00:23:03] Speaker 03: Intel filed their petition and didn't offer claim construction for storage element, which is not required under the rules. [00:23:13] Speaker 03: And then the patent owner response comes and they offer this claim construction and the claim construction includes the requirement of storing non-negligible amounts of energy. [00:23:24] Speaker 03: At that point they had sufficient evidence and sufficient ability to make any argument they wanted about that claim construction. [00:23:33] Speaker 03: The only argument they made about the claim construction is that TALO does not disclose an energy transfer system. [00:23:41] Speaker 03: They could have also said, and by the way, let's look at Taylor's capacitors and see how much energy they store. [00:23:49] Speaker 03: And here's our evidence showing they don't store non-negligible amounts. [00:23:55] Speaker 03: But they didn't do so. [00:23:57] Speaker 03: And so then Intel comes back in the reply, and now they have this plane construction that's been presented. [00:24:03] Speaker 03: And they disagree with the energy transfer system part of it, but they agree with the non-negligible energy part of it. [00:24:10] Speaker 03: And so they take that agreed upon part of the construction and they present evidence why the prior art meets that limitation. [00:24:19] Speaker 03: It's just too late now in the game for Parker Vision to use the surreply to offer this evidence that could have offered earlier. [00:24:31] Speaker 03: And so beyond the fact that Parker Vision violated the board's rule, there's nothing unfair or underhanded about the way that the board dealt with this. [00:24:44] Speaker 03: Going back to the claim construction issue, I just want to point out that there were really three pieces of evidence that resolved this case and show why the board's construction was correct. [00:24:55] Speaker 03: The first one that we talked about were the claims in the 551 patent, which show how to claim an energy transfer system. [00:25:05] Speaker 03: The second one is the specification, which, as the board found, includes an explicit definition of the term storage module. [00:25:16] Speaker 03: I think it's consistent with this board's case law that says that when you use the word refers to in the specification, it's typically a definitional language. [00:25:28] Speaker 03: So here, they use the word, saying, storage modules and storage capacitances refer to systems that store non-negligible amounts of energy from an input EM signal. [00:25:41] Speaker 03: And then further, they reiterate this point at appendix page 5251, the bottom of column 99. [00:25:51] Speaker 03: It says, the storage module is 6506. [00:25:54] Speaker 03: and 6716 store non-negligible amounts of energy from the EM signal 1304. [00:26:00] Speaker 03: And then at the top of column 100, it says, the goal of the storage modules 6506 and 6716 is to store non-negligible amounts of energy transferred from the EM signal 1304. [00:26:14] Speaker 03: So we have multiple instances in the specification supporting the board's construction. [00:26:19] Speaker 03: And then the final point, which was not discussed in the opening, is that in an earlier IPR, Parker Vision agreed with the board's construction. [00:26:29] Speaker 03: Specifically, Parker Vision stated that the specification provides an explicit definition of the term storage module. [00:26:38] Speaker 01: This is them referring to the 551 critical paragraph, right? [00:26:41] Speaker 03: Correct. [00:26:42] Speaker 03: And this is the appendix page 4876. [00:26:45] Speaker 03: And then they quote that critical paragraph, and they say the incorporated 551 specification explicitly defines a storage module and draws the distinction between storage modules and holding modules. [00:26:57] Speaker 01: And whether you use broadest reasonable interpretation or Phillips, when you've got lexicography in the specification, you land on the exact same construction. [00:27:07] Speaker 03: That's correct, Your Honor. [00:27:08] Speaker 03: And I haven't heard really any explanation about how you can reconcile that position with their current position. [00:27:18] Speaker 03: So I think it's those three pieces of evidence, which might be pretty clear and straightforward, support the board's construction. [00:27:28] Speaker 01: That doesn't count as prosecution history, does it? [00:27:33] Speaker 01: Because whatever patent that was going on in that 2014 RPX IPR, that comes from a different patent family. [00:27:41] Speaker 03: Correct. [00:27:41] Speaker 03: Yeah, that was in an IPR proceeding in a different patent that also incorporated the 551. [00:27:47] Speaker 01: So it's not intrinsic evidence. [00:27:48] Speaker 01: Maybe it's extrinsic evidence? [00:27:50] Speaker 03: I mean, if it's not intrinsic, I guess it has to be extrinsic. [00:27:53] Speaker 03: But I think it's a special kind of extrinsic evidence, because you have the party itself. [00:28:01] Speaker 03: contradicting their current position you know whether it's there's an estoppel that that no one got into that here so I'm not going to take that position but it's pretty good evidence when when the party says one thing and then switches their position later on thank you [00:28:29] Speaker 02: So I'll go backwards. [00:28:30] Speaker 02: I'll start with where he ended off, and then I'll try to work on it. [00:28:32] Speaker 00: I want to ask you a question. [00:28:33] Speaker 02: Yes, sir. [00:28:35] Speaker 00: The motion to exclude exhibit 2022, those were attorney prepared exhibits for a deposition. [00:28:45] Speaker 00: Correct. [00:28:46] Speaker 02: And just to be clear, that 2022 was not, contrary to what counsel said, was not the basis of all the arguments we put in the survey. [00:28:53] Speaker 02: That was not it. [00:28:54] Speaker 02: That was something different. [00:28:56] Speaker 00: Okay. [00:28:57] Speaker 00: The, the, uh, Red Bridge said that those were erroneous. [00:29:04] Speaker 00: That the calculations were erroneous. [00:29:05] Speaker 02: Well, he actually started to talk through them. [00:29:08] Speaker 02: Because the reason why we created that exhibit is because you could probably, well, I don't know if you have it, but they're very long. [00:29:14] Speaker 00: I do have it. [00:29:14] Speaker 02: Oh, they're very long equations. [00:29:15] Speaker 02: We couldn't put it on the record. [00:29:16] Speaker 02: So we weren't really creating an exhibit. [00:29:19] Speaker 02: We were using it as cross-examination. [00:29:20] Speaker 02: And the board said you can't do it. [00:29:21] Speaker 02: But that was the only way we could cross-examine him on formulas to show the formula he used. [00:29:26] Speaker 02: All he did was calculate the volume of the bucket. [00:29:28] Speaker 02: He didn't use the formulas that you would use to calculate the volume of the bucket in a system, in a particular system. [00:29:34] Speaker 02: And so that's why we created that exhibit. [00:29:36] Speaker 02: But just to be clear, contrary to what counsel said, that is not all of the arguments that we made in the surreply. [00:29:41] Speaker 02: I don't know how much that was in the surreply at all. [00:29:44] Speaker 00: It's an exhibit to the surreply. [00:29:46] Speaker 02: It's an exhibit in the surreply, but it's not the base of all the arguments. [00:29:49] Speaker 00: The board was very clearly exercised by your failure to apply for permission. [00:29:56] Speaker 02: Uh, correct. [00:29:57] Speaker 02: But just to be clear that what they excluded were arguments, not exhibits, not evidence. [00:30:02] Speaker 02: It was, it was arguments that they excluded. [00:30:05] Speaker 02: So the only evidence. [00:30:06] Speaker 01: You're saying not arguments dealing with the exhibit. [00:30:09] Speaker 01: Correct. [00:30:10] Speaker 02: They excluded the arguments. [00:30:13] Speaker 02: In terms of changing positions on the 2014 IPR, just to be clear, Parker Vision's definition as objective evidence that we didn't think it was lexicography, just that last sentence that we're talking about, we didn't use the exact language of that last sentence. [00:30:26] Speaker 02: We actually changed the language when we proposed a construction. [00:30:29] Speaker 02: We proposed a construction that's an apparatus that stores non-negligible amounts of energy from the carrier signal. [00:30:33] Speaker 02: That is different than that last sentence. [00:30:36] Speaker 02: If we really meant to say it was lexicography, just that last sentence, there would be no reason why we would have changed the language of the lexicography. [00:30:44] Speaker 02: And in terms of what we said in that 2014 decision, we said the incorporated 551 specification explicitly defines a storage module and draws a distinction between storage modules and holding modules. [00:30:57] Speaker 02: When we made that statement, explicit definition and distinction, we cited the whole entire paragraph. [00:31:03] Speaker 02: The distinction that we were referring to were the underlined paragraphs. [00:31:06] Speaker 02: There's paragraphs that are underlined that talk about the distinction between holding elements and storage elements. [00:31:11] Speaker 02: So what Parker vision was talking about in 2020 [00:31:13] Speaker 02: 2014 was they were talking about the distinguishing features But that whole paragraph the disputed paragraph that we're talking about that entire paragraph Provides the context for our definition that paragraph starts off talking about energy transfer system That's paragraphs in the section about energy transfer systems the paragraphs that council cited about oh, there's a there's other paragraphs I think it was in the column 99 and I'm getting a little lost are you saying the [00:31:42] Speaker 01: In 2014 IPR, you took a position that storage module includes an energy transfer system. [00:31:51] Speaker 01: That was part of your proposed construction? [00:31:53] Speaker 02: No, just, sorry. [00:31:54] Speaker 01: No, that was not... It was just an apparatus that stores non-metallic energy. [00:31:58] Speaker 01: Correct. [00:31:58] Speaker 02: Because at that time, we didn't say it was... We didn't say just that one sentence of electric energy, and at that time, the BRI standard controlled. [00:32:05] Speaker 01: Right? [00:32:07] Speaker 01: Okay. [00:32:07] Speaker 02: Thank you very much, Your Honor. [00:32:08] Speaker 02: Thank you.