[00:00:00] Speaker 01: Our first case for argument today is 22-1257, Unilock v. Dougal. [00:00:05] Speaker 01: Mr. Jackson, please proceed. [00:00:08] Speaker 03: Thank you, Your Honor. [00:00:09] Speaker 03: May it please the Court? [00:00:11] Speaker 03: So the board below erred in its implicit claim construction of the scanning step and also the relationship, the understanding between the scanning step and the selecting step. [00:00:24] Speaker 03: as well as it erred in applying those constructions to the Poulsen reference, the prior art reference. [00:00:33] Speaker 03: So one of the foundational principles of the board's decision, as well as the petition, was that in step 402 of Poulsen, it sets the frequencies that are to be scanned. [00:00:48] Speaker 03: And in step 404, [00:00:50] Speaker 03: that Paulson scans the exact same frequencies that were predetermined in step 402. [00:00:56] Speaker 03: A problem with that argument is that Paulson is very clear in figure five that the sampling that it does is outside the bounds of the range of frequencies that can be selected in step 402. [00:01:12] Speaker 03: So it can't be that step 402 determines or selects, identifies the predetermined frequencies that have been scanned [00:01:20] Speaker 03: allegedly in step 404. [00:01:22] Speaker 03: And I'll note that, you know, PULSEN never actually uses the phrase scan or any variation of that word in the reference anywhere. [00:01:28] Speaker 03: It talks about sampling. [00:01:30] Speaker 03: It creates a noise characteristic across an entire spectrum. [00:01:35] Speaker 03: And so it's not looking at the frequencies that were predetermined in step 402. [00:01:41] Speaker 03: So PULSEN doesn't therefore disclose predetermined frequencies or the scanning of predetermined frequencies. [00:01:48] Speaker 03: And moreover, [00:01:50] Speaker 03: Step 404 was relied upon to scan predetermined frequencies for a free frequency. [00:02:00] Speaker 03: So it's got to detect a free frequency in that step. [00:02:04] Speaker 03: But pulsing is very clear that it doesn't determine potential transmission frequencies until later in the process at step 406. [00:02:13] Speaker 03: So again, the step relied upon here for the scanning. [00:02:18] Speaker 01: saying now feels like a turning argument, and this is a fact question where we have to give substantial evidence deference. [00:02:27] Speaker 01: And the board, in addition to interpreting Paulson, relied on Mr. Lipoff's testimony. [00:02:35] Speaker 01: How do you get around that in this scenario? [00:02:39] Speaker 01: Whether you're right in a de novo standard isn't the standard. [00:02:43] Speaker 01: It's substantial evidence that the board [00:02:46] Speaker 01: interpreted the relationship between 402 and 406 differently than you're suggesting, and Mr. Lipov gave testimony which they relied on. [00:02:53] Speaker 01: How isn't that the substantial evidence? [00:02:58] Speaker 03: And I think we cite these cases on page 24 of our opening brief. [00:03:02] Speaker 03: If the testimony is clearly inconsistent with the reference, then the testimony is to be disregarded. [00:03:07] Speaker 03: It's not to be relied upon. [00:03:08] Speaker 03: So our position is that Mr. Lipoff has clearly misread figure four and figure five in the associated text of Paulson and is not to be given any credit toward the substantial evidence standard. [00:03:21] Speaker 03: Reading the reference itself also contradicts the board's analysis. [00:03:27] Speaker 03: Again, the board relied on Mr. Lipov's testimony to come to its conclusion. [00:03:33] Speaker 03: And therefore, I think that the board's analysis and the, quote, substantial evidence that would support that are undermined by that misreading of the Paulson reference. [00:03:43] Speaker 03: So the predetermined frequencies, I think also, and Your Honor, I appreciate that I think this is [00:03:52] Speaker 03: You could view it as a question of fact. [00:03:54] Speaker 03: I think you could also view at least part of the issue in this case as being a question of laws. [00:03:58] Speaker 03: It relates to the way the board implicitly understood the claim language. [00:04:04] Speaker 03: It said it wasn't making any explicit claim constructions. [00:04:07] Speaker 03: It wasn't necessary here, but then it applied the claims in such a way. [00:04:10] Speaker 02: Did you ask for a claim construction? [00:04:12] Speaker 03: Yes, your honor. [00:04:13] Speaker 03: It was, we did ask below, but the court in, I don't remember. [00:04:16] Speaker 02: What claim construction did you ask for? [00:04:20] Speaker 03: Your Honor, I'd like to look at that before my rebuttal and I'll come back up and identify that for you. [00:04:29] Speaker 02: You hear this argument all the time when people have lost and they want to try to transform substantial evidence into a legal question. [00:04:36] Speaker 02: But if you didn't really, if you're not coming up here and say, we asked for this claim construction, the board clearly didn't follow it and its plain language is wrong, then [00:04:46] Speaker 02: What can we do? [00:04:48] Speaker 02: It's a substantial evidence question. [00:04:49] Speaker 02: You can try to argue implicit claim of instruction all you want, but it doesn't sound like one to me. [00:04:54] Speaker 03: Your Honor, if I could on rebuttal, respond to that. [00:04:58] Speaker 02: I mean, it's not really fair to your opposing counsel to not be able to respond on opening argument, but it's fine. [00:05:04] Speaker 03: I would be relying on the board's decision, because the board typically lays out the claim construction disputes in its analysis. [00:05:15] Speaker 03: So I'll look for that to see if that's discussed here in the opinion. [00:05:22] Speaker 03: So having said that, Your Honor, I appreciate your comment, certainly. [00:05:28] Speaker 03: But I think that the analysis clearly contradicts the way Paulson describes the operation here. [00:05:34] Speaker 03: and the way that it was relied upon in the board. [00:05:36] Speaker 03: Everything for the scanning step was put in step 404. [00:05:40] Speaker 03: There's not a real, I think, debate that the analysis of locating the potential transmission frequencies doesn't come until step 406. [00:05:51] Speaker 03: That's described in column 13 of Paulson, roughly lines 28 to looks like 49. [00:06:01] Speaker 03: So that comes after [00:06:03] Speaker 03: the sampling step 404 has occurred. [00:06:06] Speaker 03: So it can't be that there were this determination of potential frequencies that could be transmitted in step 404, because that determination is not made until step 406, where it's the two-step analysis. [00:06:19] Speaker 03: One, the question is, is it within the capability of the, is it a clear frequency? [00:06:29] Speaker 03: And secondly, is that frequency one that the receiving device can demodulate? [00:06:34] Speaker 03: So if it can't demodulate them, then it can't possibly be a candidate for a predetermined frequency. [00:06:41] Speaker 03: So that determination doesn't occur until step 406. [00:06:46] Speaker 03: So it's not part of the scan. [00:06:48] Speaker 03: It can't be part of the scanning [00:06:50] Speaker 02: step in the... So you want us to ignore the expert testimony and read this reference for ourselves and make factual findings about what it discloses that's contrary to the board. [00:07:02] Speaker 03: We're asking the panel here to look at the private reference as compared to Mr. Lipov's testimony and you'll see that the two don't align. [00:07:11] Speaker 03: I don't want to see that. [00:07:13] Speaker 02: He's an expert. [00:07:15] Speaker 02: I'm an English major. [00:07:17] Speaker 03: Well, it's the analysis that I just laid out, Your Honor. [00:07:19] Speaker 02: You can see where he's... Well, how do I know you're more correct than the expert is correct? [00:07:24] Speaker 02: This is why we have a substantial evidence standard, which is we are not fact-finders and we are not experts. [00:07:31] Speaker 02: And if there's factual evidence supporting the board's decision, we have to defer to it. [00:07:37] Speaker 03: Yes. [00:07:37] Speaker 03: I understand, Your Honor. [00:07:40] Speaker 03: If there are no other questions, I'll reserve the remainder of my time. [00:07:43] Speaker 01: Thank you, Mr. Jackson. [00:07:44] Speaker 03: Thank you. [00:07:48] Speaker 00: Thank you, Your Honor. [00:07:49] Speaker 00: May it please the Court. [00:07:51] Speaker 00: As the Court seems to appreciate, there is substantial evidence here. [00:07:55] Speaker 01: Most of the questions that are involved in this case are, in fact... Just out of curiosity so we can put this issue to rest, do you understand this appeal to be about a claim construction matter of law, or I really only understood the appeal to be a substantial evidence question of what's disclosed in Paulson? [00:08:10] Speaker 00: That is correct, Your Honor. [00:08:11] Speaker 00: It is a substantial evidence question. [00:08:13] Speaker 00: There are sort of two aspects of the claims that they're contesting, scanning a plurality of predetermined frequencies and scanning for a free frequency. [00:08:27] Speaker 00: On scanning a plurality of predetermined frequencies, they did not raise any claim construction that I'm aware of, any dispute in relation to that aspect. [00:08:36] Speaker 00: When it comes to scanning for a free frequency, [00:08:39] Speaker 00: They did raise claim construction issues, but we addressed those in the brief. [00:08:44] Speaker 00: And we think that you don't even need to get there because the board made factual findings about how Paulson's system is essentially identical to the 952 patents system in the relevant ways. [00:08:59] Speaker 00: And in particular, the way that the system scans by sampling for noise and then compares that noise that's sampled to a predetermined threshold [00:09:09] Speaker 00: That aspect is the same across both references. [00:09:13] Speaker 00: So you don't really need to get to a question of the claim construction issue that they raised about scanning for a free frequency, because substantial evidence supported the board's view that the systems are essentially the same. [00:09:25] Speaker 00: So wherever they might try to draw the line between scanning and selecting, which is what Mr. Jackson was talking about a moment ago, that same set of lines would cover policy. [00:09:37] Speaker 00: So yes, that's a long way to answer your question. [00:09:41] Speaker 00: One thing I'd like to point out on scanning a plurality of predetermined frequencies is that the board did credit Mr. Lipov's testimony, and it makes sense that it did so because it gives meaning to step 402 in Paulson. [00:10:00] Speaker 00: Under Uniloc's view, [00:10:02] Speaker 00: The predetermined frequencies, what Paulson refers to as the initially determined frequencies in step 402, they essentially have no purpose later in the process. [00:10:12] Speaker 00: They haven't identified in their briefing, and I haven't heard today yet from Mr. Jackson, any reason why there would be any initial determination at step 402 that would then be used later by Paulson. [00:10:26] Speaker 00: It's essentially disregarding those frequencies. [00:10:29] Speaker 00: Whereas under, as Google's expert testified, there is a purpose. [00:10:34] Speaker 00: You're trying to rule out frequencies that you just know you're never able to use because that initial determination is based on the theoretical capabilities of the sending device and the transmitting, or the transmitting device and the receiving device. [00:10:48] Speaker 00: And so we have a, there's a reason why step 402 exists, but under Uniloc's view, they essentially wipe that reason out. [00:10:55] Speaker 01: Well, I mean, isn't it even more? [00:10:57] Speaker 01: Doesn't figure four directly link the output of step 402 to the input of step 404? [00:11:02] Speaker 00: It absolutely does, Your Honor. [00:11:04] Speaker 00: So turning to scanning for a free frequency, Uniloc primarily raises two arguments there, that the scanning and selecting steps need to be different. [00:11:17] Speaker 00: And that's their first argument. [00:11:20] Speaker 00: But Google and the board both identified different aspects of Paulson for the scanning feature and for the selecting feature. [00:11:28] Speaker 00: So their argument does not actually allege any error, really, in what the board did or what Google's petition advanced, because we treated them as different, identified different things in Paulson, talked about 404 and the following steps being [00:11:43] Speaker 00: the scanning, and then the selecting happens at 414. [00:11:48] Speaker 00: And then Uniloc also has argued as their second argument that the scanning itself must identify the free frequency. [00:11:54] Speaker 00: But the problem with that argument is that in the 952 patent, they say that the scanning finds a free frequency by first sampling for noise and comparing to a threshold. [00:12:08] Speaker 00: And that that all is part of the scanning that happens in the 952 patent. [00:12:12] Speaker 00: But when they look at Paulson, which also discloses sampling for noise and then comparing to a threshold, they say that that comparison is actually not part of the scanning and needs to be considered part of some other step. [00:12:25] Speaker 00: And that's just inconsistent between the two reference, between the 952 and the approach they're taking there for their own patent versus how they're viewing Paulson. [00:12:33] Speaker 00: And that's an unreasonable view of scanning for a free frequency. [00:12:38] Speaker 01: And again, Mr. Lippoff's testimony is the only evidence of record from a skilled artist on this point, right? [00:12:43] Speaker 00: That is correct, Your Honor. [00:12:45] Speaker 01: Kind of hard for us to reject it on appeal when the board credited it. [00:12:48] Speaker 00: I fully agree with that. [00:12:51] Speaker 01: Anything further? [00:12:51] Speaker 00: No, Your Honor. [00:12:52] Speaker 01: Thank you, Counsel. [00:12:53] Speaker 01: Mr. Jackson, you have some rebuttal time. [00:12:56] Speaker 03: Thank you, Your Honor. [00:12:57] Speaker 03: So to respond to Judge Hsu's question, unfortunately, the entire patent owner response is not reproduced in the appendix. [00:13:08] Speaker 03: But at APPX 324 to 326, there is the discussion about the claim language that we're talking about and what it means. [00:13:16] Speaker 03: But it doesn't seem to be under a heading called claim construction. [00:13:23] Speaker 03: Where to begin? [00:13:23] Speaker 03: So let me just start with one of the last things Google's Council just talked about, which was the selecting in Step 414. [00:13:32] Speaker 03: Again, if you read this text associated with Step 414, it doesn't say selecting. [00:13:39] Speaker 03: In fact, you can look here in Figure 4. [00:13:41] Speaker 03: What it does in 404 is it associates a frequency with the geographic location. [00:13:47] Speaker 03: And in the reference, it talks about doing that so that [00:13:51] Speaker 03: It doesn't have to go through this process again every time it wants to be used. [00:13:54] Speaker 02: I mean, you're getting up here and telling us your view of how Paulson works, but there's an expert from Google that says Paulson works a different way than you're describing. [00:14:04] Speaker 02: And mere disagreement with that isn't enough. [00:14:07] Speaker 02: I mean, the board found it credible. [00:14:08] Speaker 02: We have a very high standard for [00:14:11] Speaker 02: overturning credibility determinations of experts. [00:14:15] Speaker 02: Just re-arguing with the experts' opinions doesn't show why it's so completely wrong that we should disregard it. [00:14:21] Speaker 03: Your Honor, I appreciate that. [00:14:23] Speaker 03: I do. [00:14:24] Speaker 03: We're relying on the Homeland Housewares case in attendance. [00:14:27] Speaker 02: Well, I understand the case law, but you're not arguing that this is so completely outside. [00:14:31] Speaker 02: You're just saying this is our view of Paulson. [00:14:33] Speaker 02: Well, he has another view. [00:14:34] Speaker 02: I mean, unless you can show that his is [00:14:40] Speaker 02: inherently contradictory or it completely misreads the language, but you're just arguing what Paulson says. [00:14:48] Speaker 03: Well, that is our argument, your honor, which is it's inherently contradictory to what the reference actually says. [00:14:53] Speaker 03: And therefore we can't rely on his testimony. [00:14:56] Speaker 02: Well, why is it inherently contradictory? [00:14:58] Speaker 02: Because the reference doesn't specifically say that it operates in the way you do either. [00:15:05] Speaker 03: I'm just paraphrasing what's said in the reference or quoting from the reference. [00:15:09] Speaker 03: I'm not trying to [00:15:10] Speaker 03: re-characterize the reference in any way. [00:15:12] Speaker 02: Yeah, but you're just arguing the reference. [00:15:14] Speaker 02: What you need to be arguing is he said X about the reference. [00:15:17] Speaker 02: That's flatly inconsistent with this language. [00:15:21] Speaker 02: I haven't heard any of that from you. [00:15:28] Speaker 02: That seems to be the only way to get around an expert opinion, is to argue what's wrong with the expert's opinion, not argue what's your view of the reference. [00:15:37] Speaker 03: Your Honor, I'm not doing a good job, but that's [00:15:40] Speaker 03: What I'm trying to do is to say, because the board's decision was based on what Mr. Lipoff said. [00:15:45] Speaker 03: So when I said the board says this, and it's inconsistent with the reference, perhaps I should have said Mr. Lipoff's testimony was X, and it's inconsistent with the reference. [00:15:56] Speaker 03: But that is the point I'm trying to make, Your Honor, which is Mr. Lipoff's testimony contradicts what the reference explicitly says about the alleged scanning step, which is really a sampling in 404. [00:16:09] Speaker 03: the selecting in 414, in particular with Mr. Lipov's testimony about how in 404, Paulson only samples the frequencies that were selected in 402. [00:16:24] Speaker 03: Again, that's clearly contradicted by the text discussing 402 and 404. [00:16:30] Speaker 03: And also, there's no discussion, again, this contradicts Mr. Lipov's testimony, there's no discussion in the reference in Paulson about [00:16:38] Speaker 03: using the frequencies selected in 402 as the set of frequencies to be sampled in 404. [00:16:47] Speaker 01: Figure 4 links it directly. [00:16:48] Speaker 01: Figure 4 shows the output of 402 going directly into the input of 404. [00:16:52] Speaker 03: This is a flowchart of the process. [00:16:56] Speaker 03: It's saying you do step 402 first, then you do step 404. [00:16:59] Speaker 03: But the results of 402 are never described as being the starting point of the sampling. [00:17:04] Speaker 03: And we know that's not the case, because if you look at Figure 5, [00:17:07] Speaker 03: the range of frequencies that are sampled exceeds the boundary, the upper boundary in particular, of what could have been identified in step 402. [00:17:16] Speaker 01: I'm just going to tell you, counsel, I think this argument is nearly frivolous. [00:17:21] Speaker 03: Your Honor, I'm making the best argument I can. [00:17:23] Speaker 01: Yeah, but sometimes you've got to convince your client that there's no point in appealing when you have no [00:17:30] Speaker 01: legitimate basis for appeal. [00:17:32] Speaker 01: And that's kind of where we are here. [00:17:34] Speaker 01: Do you have anything further? [00:17:35] Speaker 03: Nothing further. [00:17:35] Speaker 03: Thank you. [00:17:36] Speaker 01: I thank both counsels for their argument. [00:17:38] Speaker 01: This case is taken under submission.