[00:00:00] Speaker 02:
Our next case is IG Licensing versus Honeywell et al.

[00:00:05] Speaker 02:
2023-1137.

[00:00:06] Speaker 02:
May I begin then, Your Honors?

[00:00:13] Speaker 02:
I think we're ready, so please proceed.

[00:00:17] Speaker 03:
Yes, Your Honor.

[00:00:19] Speaker 03:
Good morning, and may it please the courts.

[00:00:21] Speaker 03:
Your Honor, there are a group of PGPP references in this case that are necessary to invalidate the 65 patents claims that the Board did here.

[00:00:30] Speaker 03:
The 625 patent was filed on March 31st, 2005, but properly derives its April 2nd, 2000, quote, priority date from a Korean application.

[00:00:40] Speaker 03:
The 3CPP reference is post date is equal to 2000.

[00:00:43] Speaker 02:
Well, that's the question, isn't it?

[00:00:46] Speaker 02:
It doesn't disclose E, A, G, C, H.

[00:00:53] Speaker 03:
That's what you need.

[00:00:56] Speaker 02:
That's what you need to get around the 3GPP reference.

[00:01:02] Speaker 03:
Yes, Your Honor, in order to get the access to that bring applications priority room.

[00:01:09] Speaker 03:
And that is why, the reason why the board found as it did and found that we did not have access to that priority room

[00:01:18] Speaker 03:
was due to its erroneous claim to construction of the term Enhanced Absolute Ranked Channel.

[00:01:23] Speaker 03:
In short, the board found that the term requires Enhanced Absolute Ranked Channel, or T, solely to absolute ranks.

[00:01:34] Speaker 03:
The error the board had, though, was because it began its claim to construction by looking at extrinsic evidence, by starting with the three GEPs version of that channel, and then looking to the 625

[00:01:48] Speaker 03:
happened itself to determine whether or not it disclaimed that extrinsic definition by engaging in that text of institutional analysis, which this court sort of ruled time and time again.

[00:02:00] Speaker 00:
Council, I have a question for you, which is, if I agreed with the board's claim construction,

[00:02:11] Speaker 00:
But I first looked at the specification and the intrinsic evidence, and then looked at the extrinsic evidence, but thought that the board was correct in its construction.

[00:02:23] Speaker 00:
Since I reviewed de novo, isn't any error that you're talking about, then, harmless error?

[00:02:34] Speaker 03:
You know you're wrong.

[00:02:38] Speaker 03:
If Your Honor was to reach the same conclusion by following the appropriate analysis, then Your Honor would be following the proper procedure and protocol.

[00:02:51] Speaker 03:
However, even if Your Honor were to agree with the board's ultimate conclusion, there is still the fact of the matter that the Korean application does in fact disclose the concept of absent ranks itself.

[00:03:05] Speaker 03:
And thus, there is no substantial evidence to support the portals, including that it's not disclosed.

[00:03:11] Speaker 00:
OK.

[00:03:11] Speaker 00:
Let me ask you a claim construction question.

[00:03:14] Speaker 00:
In the claim language itself, it uses the word absolute grant in it.

[00:03:19] Speaker 00:
How do you get around that?

[00:03:20] Speaker 00:
To me, that's pretty compelling that it uses that word when describing what the channel is.

[00:03:30] Speaker 03:
Well, Your Honor, the claim line itself uses the abbreviation EAGCH, which is supposed to be the same.

[00:03:37] Speaker 00:
And it says absolute grant.

[00:03:39] Speaker 00:
It says enhanced absolute grant channel.

[00:03:42] Speaker 00:
Then it gives the EAGCH in parentheses, right?

[00:03:47] Speaker 00:
I think that's claim 16 I'm looking at.

[00:03:51] Speaker 03:
Yes, Your Honor.

[00:03:53] Speaker 03:
I did not mean to imply that there was a distinction between the two.

[00:03:57] Speaker 03:
What I mean to say, Your Honor, is that

[00:03:58] Speaker 03:
It uses that term EGCH, Enhanced Absolute Grant Channel, but that term is itself explicitly defined.

[00:04:05] Speaker 03:
And that term, as defined in column three, and then later, to some extent, in column four of the specification, that term contains no requirement, but it limited to solely absolute.

[00:04:20] Speaker 00:
Can I, let's look, are you, I think that you're,

[00:04:24] Speaker 00:
relying on like lines 14 to 16, right?

[00:04:30] Speaker 03:
Can I ask you, why isn't the language at lines

[00:04:44] Speaker 00:
17 to 19 enough to show that this is actually talking about an absolute grant as opposed to a relative grant where it says no B transmits a command as to how much transition power or a level of data rate transmission a UE is permitted to transmit.

[00:05:04] Speaker 00:
I mean, why isn't that an absolute grant?

[00:05:10] Speaker 03:
Well, Lord, Your Honor, the reason is that that definition applies both to absolute and to relative grants.

[00:05:15] Speaker 00:
Why?

[00:05:16] Speaker 03:
The distinction between an absolute and a relative, please apologize, right?

[00:05:19] Speaker 00:
Yeah, no, go ahead.

[00:05:20] Speaker 00:
Continue.

[00:05:21] Speaker 03:
Sure.

[00:05:22] Speaker 03:
The distinction between an absolute and relative grant is not that, let me backtrack.

[00:05:28] Speaker 03:
Both an absolute and a relative grant define the maximum amount of bandwidth a user or equipment is allowed to use.

[00:05:35] Speaker 03:
The distinction is that an absolute grant tells the user or equipment

[00:05:39] Speaker 03:
Your maximum bandwidth is X. The relative grant says, you previously were allowed X. We are going to increase that or decrease that by one.

[00:05:50] Speaker 03:
So a relative source back.

[00:05:52] Speaker 00:
I assume we know we understand that.

[00:05:54] Speaker 00:
I'm still trying to understand where it just says how much transition power.

[00:05:59] Speaker 00:
Would that be enough to say,

[00:06:02] Speaker 00:
You know, I'm telling you how much transition power, stock, that means I'm telling you how much, not relative to anything, but just how much.

[00:06:11] Speaker 03:
Yes, you're right.

[00:06:12] Speaker 03:
I would agree.

[00:06:13] Speaker 03:
Or that would encompass an absolute grant, but it also encompasses a relative grant, because it's saying what your maximum amount is, it's just saying that relative to the previous maximum, your new maximum is either increased or decreased.

[00:06:26] Speaker 03:
So it encompasses both.

[00:06:28] Speaker 03:
There's no restriction to be just the one.

[00:06:32] Speaker 01:
Under your understanding of the claim term, what does absolute mean?

[00:06:38] Speaker 03:
Absolute means that it does not pertain to or does not refer to a prior maximum in the way that a relative grant necessarily does.

[00:06:50] Speaker 03:
Absolute just says, your maximum is this.

[00:06:54] Speaker 03:
That is what the absolute means.

[00:06:56] Speaker 03:
The relative is, your maximum is this.

[00:06:58] Speaker 03:
It's just increased or decreased from a prior maximum.

[00:07:02] Speaker 01:
So do you agree that what you just explained, as your understanding of absolute, does have to be part of the proper construction of EACHCH?

[00:07:13] Speaker 03:
I agree with that, Your Honor.

[00:07:15] Speaker 03:
At no point are we saying that the Enhanced Absolute Rain Channel does not cover absolute rain.

[00:07:20] Speaker 03:
It's just not limited to sole and absolute grants.

[00:07:23] Speaker 03:
That's the point.

[00:07:23] Speaker 01:
OK.

[00:07:24] Speaker 01:
Well, then help me out on that latter part.

[00:07:25] Speaker 01:
Why is it not limited to that when the patent distinguishes between EAGCH and the relative channels?

[00:07:35] Speaker 03:
Certainly, Your Honor.

[00:07:35] Speaker 03:
Well, if you take a look at the definition of the relative channel, which we find here in column four, the distinction that is written by the patentee is that the enhanced relative grant channel

[00:07:50] Speaker 03:
The transmission channels are pre-allocated on letter B, and so only two units of the pre-allocated channel will receive standard assignments.

[00:07:58] Speaker 01:
I'm sorry, I was having a little trouble hearing you.

[00:08:00] Speaker 01:
Were you just reading from column four, or did you add something to that?

[00:08:04] Speaker 03:
Oh, I was just reading from column four, lines 47 through 57.

[00:08:11] Speaker 03:
I was specifically reading from a sentence about 53 down.

[00:08:16] Speaker 03:
Thank you.

[00:08:18] Speaker 03:
The important point here is that when the distinction between the two channels is discussed in the specification, it's referring to the amount of UV on the channel that are being transmitted to, not that one handles only relative and one handles absolute.

[00:08:34] Speaker 03:
That's the distinction there that happens in the issues.

[00:08:38] Speaker 01:
I have a question about claim construction process.

[00:08:42] Speaker 01:
If this, in fact, is a term of art,

[00:08:47] Speaker 01:
Have we ever said that the board or a court can't start by looking to extrinsic evidence to understand, is something a term of art?

[00:08:57] Speaker 01:
And if so, what is its meaning?

[00:09:01] Speaker 03:
Yes, Your Honor.

[00:09:02] Speaker 03:
This court has ruled that there is a place for that extrinsic evidence.

[00:09:08] Speaker 03:
And the board may certainly look there.

[00:09:13] Speaker 03:
But it cannot be the end all.

[00:09:17] Speaker 01:
As we know in Phillips and as we've seen in actually... Right, it can be the starting point, the extrinsic evidence, but the analysis overall has to, I think we say, center the intrinsic.

[00:09:30] Speaker 01:
Would you agree with that?

[00:09:32] Speaker 03:
Yes, Your Honor, but indeed there is additional case law which says that when the intrinsic evidence itself is clear, one need not even turn to the extrinsic evidence.

[00:09:43] Speaker 03:
I believe I'm thinking here, Your Honors,

[00:09:49] Speaker 03:
Nice, Toronto, trustees of Columbia University, of course.

[00:09:54] Speaker 03:
I had Steve at GeoSolutions, where the report said that if the meaning of a claim term is fear from the intrinsic evidence, there is no reason to resort to extrinsic evidence whatsoever, whatsoever being the only part of being outside that quote there.

[00:10:11] Speaker 00:
Be that as it may, don't you have to show us that the patent owner here was being his or her own lexicographer in order to succeed?

[00:10:21] Speaker 00:
And doesn't lexicography require some sort of clear definition?

[00:10:26] Speaker 00:
I mean, here you're asking us to understand that an enhanced absolute grant channel doesn't just send absolute grants.

[00:10:39] Speaker 00:
It feels kind of like a negative limitation, and my problem is that I'm having a hard time

[00:10:46] Speaker 00:
reading the definition, what you're pointing to as the definition in column three, as excluding absolute, saying it's not limited to absolute grants.

[00:10:56] Speaker 00:
It's describing what the channel is in ways that doesn't really address whether it's talking about absolute or relative grants.

[00:11:04] Speaker 00:
And because the words absolute grant are in the language of the claim itself,

[00:11:09] Speaker 00:
Enhanced absolute grant channel.

[00:11:12] Speaker 00:
I'm having a hard time understanding how I'm clearly supposed to say not with saying the fact This is absolute grants.

[00:11:18] Speaker 03:
It's not limited to that The specification needs to be read in the context of the entire patent and from the perspective of what they have

[00:11:40] Speaker 03:
And so when we look at the clear language, the fact that the clear language does not mandate one or the other.

[00:11:47] Speaker 03:
And the fact that the enhanced absolute grant channel may be able to carry, or can carry absolute grants, but is not so limited.

[00:11:56] Speaker 03:
What the patent number's position here is simply that we're not asking you to read out the word absolute grant from the name.

[00:12:06] Speaker 03:
We're saying that based on the sports case law, you can't read it in as a requirement.

[00:12:11] Speaker 03:
not without something more explicit than what's here in the intrinsic evidence.

[00:12:16] Speaker 03:
And you certainly can't import that limitation from an extrinsic source.

[00:12:20] Speaker 03:
That is the original source.

[00:12:21] Speaker 00:
But what if I think it's not imported from an extrinsic source?

[00:12:25] Speaker 00:
I think it's imported from the specification in the plain claim language itself.

[00:12:29] Speaker 00:
And I think a poser would know what an absolute grant is.

[00:12:34] Speaker 00:
I mean, this goes a little bit to Judge Stark's point as well, which is that even when you look at Phillips and it says, OK, first start with the plain claim language, you're supposed to look at what a person of ordinary skill in the art would understand that plain claim language to be.

[00:12:51] Speaker 00:
And so to the extent that there was any resorting to extrinsic evidence here, it was to try to understand what that plain claim language means.

[00:13:00] Speaker 00:
Why isn't that improper?

[00:13:03] Speaker 00:
Or is it improper?

[00:13:05] Speaker 00:
Yeah.

[00:13:07] Speaker 00:
Go ahead.

[00:13:07] Speaker 00:
Sorry.

[00:13:08] Speaker 03:
I apologize, Your Honor.

[00:13:09] Speaker 03:
I missed the last word on that.

[00:13:10] Speaker 00:
I was just trying to understand why that was improper.

[00:13:12] Speaker 00:
I'm sorry.

[00:13:12] Speaker 00:
It's hard with this.

[00:13:13] Speaker 00:
I apologize, because I think I was repeating my question a little bit.

[00:13:18] Speaker 00:
So please, if you can, answer my question.

[00:13:20] Speaker 00:
If you want, I can re-ask it.

[00:13:22] Speaker 03:
No.

[00:13:23] Speaker 03:
No problem, Your Honor.

[00:13:25] Speaker 03:
I believe I understand it.

[00:13:27] Speaker 03:
If not, we'll clarify.

[00:13:29] Speaker 03:
The reason why it's improper is because of the

[00:13:32] Speaker 03:
The reason why it's proper is because of the limited role that assigns specification.

[00:13:36] Speaker 03:
It is certainly the case that you can look outside and have an understanding.

[00:13:41] Speaker 03:
But when the specification is this clear and lacks that prohibition, that's what the board needs to lay the bound on.

[00:13:50] Speaker 03:
If anything else, this counts the role of specification, which is exactly what this board will against themselves.

[00:13:56] Speaker 02:
Counsel, you're well into your bottle.

[00:13:59] Speaker 02:
I assume you want to save it.

[00:14:02] Speaker 02:
We will save it for you, Ms.

[00:14:04] Speaker 02:
Merrill.

[00:14:14] Speaker 04:
May it please the court, Courtney Merrill for Appellees.

[00:14:18] Speaker 04:
I agree with my colleague that we need to look at the context of the patent for clean construction and it's important to note that the patent is explicitly directed to methods and

[00:14:28] Speaker 04:
for performing 3GPP WCDMA.

[00:14:31] Speaker 04:
So that POSA looking at the patent is automatically looking into 3GPP technical specifications.

[00:14:38] Speaker 04:
And looking and taking a step back at the context of how we got here, the 625 applicant filed this patent application adding content directed to this particular proper noun, the enhanced absolute grant channel EHECH.

[00:14:57] Speaker 04:
Council would have us believe that it's just a coincidence that the 3GPP had only a few months before specifically defined, reached agreement on, defined, and published amendments to the technical specifications explaining what an EAGCH is.

[00:15:11] Speaker 04:
And that a posita, particularly a posita that the board had determined was knowledgeable about the development of new and then existing specifications, would have no idea what this meant.

[00:15:25] Speaker 04:
and wouldn't have assigned some meaning to this important development by the 3GPP.

[00:15:33] Speaker 04:
And so when faced with the petition, based on the very, very 3GPP documents that define this term, the applicant's response was to request a plain and ordinary meaning that reads out the very language of the term and reads the word absolute out from the E-A-G-C-H.

[00:15:53] Speaker 04:
It also reads the enhanced VE out of the EAGCH.

[00:15:57] Speaker 04:
The E derives from the 3GPP's entire project creating these new channels and procedures for improving the efficiency of the uplink process.

[00:16:09] Speaker 04:
So we're not just reading out absolute grant, we're reading out

[00:16:12] Speaker 04:
the E-AGCH developed by the 3GPP at this time that the POSA the board had defined and appellant has never disagreed was knowledgeable about the WCDMA and 3GPP technical specification development process.

[00:16:28] Speaker 04:
So the board appropriately considered and was not persuaded by appellants' arguments in the proceedings below.

[00:16:34] Speaker 04:
And as my colleague agrees, the board did consider intrinsic evidence.

[00:16:40] Speaker 04:
The intrinsic evidence in the final written decision considered the language that appellant has presented as definitional.

[00:16:47] Speaker 04:
It also considered language that appellants had presented arguing about the implication of figures that never are tied to EAGCH,

[00:16:58] Speaker 04:
It considered all of this evidence.

[00:17:01] Speaker 04:
And so to try to reframe the claim construction process as subject to the Texas digital presumption is inconsistent with the board's explanation.

[00:17:12] Speaker 04:
As your honors have pointed out, the board instead started with the process of identifying what this term of art meant, but not treating it as a presumption that had to be overcome, but rather as a starting point for the discussion of what is this proper noun?

[00:17:28] Speaker 04:
not in any way applying the presumption of Texas Digital.

[00:17:33] Speaker 01:
Where does the board discuss the intrinsic evidence in connection with the planning construction dispute?

[00:17:40] Speaker 04:
Absolutely.

[00:17:40] Speaker 04:
So I would point your honors first to the introduction where the board starts with

[00:18:07] Speaker 04:
the explanation that... What page are you looking at?

[00:18:10] Speaker 00:
I apologize, Your Honor.

[00:18:12] Speaker 00:
Are you looking at the final decision or the institution decision?

[00:18:15] Speaker 04:
I'm looking at the final written decision, but you're right, Your Honor.

[00:18:17] Speaker 04:
The board also addressed this in the institution decision.

[00:18:21] Speaker 04:
But I'm actually turned right now to the final written decision.

[00:18:24] Speaker 04:
At appendix page 15, the board quotes the language that Pellant has pointed to here as defining

[00:18:35] Speaker 04:
the EAGCH.

[00:18:36] Speaker 04:
As Your Honors have noted, the case law that the appellant relies on to establish that it was a lexicographer defining EAGCH in a way here that is different than what that POSA would have understood from the approved 3GPP technical specifications is

[00:18:57] Speaker 04:
lacks a clear disclaimer or identification that this is in some way intended to change what the 3GPP had defined the term to be.

[00:19:08] Speaker 01:
But is that really a fair use of the intrinsic evidence?

[00:19:11] Speaker 01:
What that looks like to me is that they started with the extrinsic evidence, got a definition from the extrinsic evidence, and then looked to the patent to see whether it disavowed or changed through lexicography.

[00:19:26] Speaker 01:
what they defined from the extrinsic evidence, which seems contrary to Phillips.

[00:19:32] Speaker 04:
Well, I'd point respectfully, Your Honor, to the board had said that a POSA would be understanding the EAGCH from the perspective of the three GPP materials.

[00:19:46] Speaker 04:
They didn't assign a rigid definition of what exactly that means.

[00:19:49] Speaker 04:
They pointed to where in these technical specifications the characteristics of the channel had been identified.

[00:19:55] Speaker 04:
the absolute grants sent over the channel were identified and defined but never said here are the specific requirements only that this is a 3GPP defined term and a POSA, the POSA that appellant did not disagree and did not contest would be knowledgeable regarding these new and then existing technical specifications.

[00:20:19] Speaker 00:
I was just going to ask

[00:20:22] Speaker 00:
The argument I'm hearing from your opposing counsel is that this word was redefined by the inventor through lexicography in the patent specification.

[00:20:35] Speaker 00:
And why isn't the disclosure, then I think it's in column three, where they say an enhanced absolute grant channel is blah, blah, blah, and they don't limit it to absolute grants, why isn't that definitional?

[00:20:51] Speaker 04:
So your honor is obviously aware, and it's in the briefing, that there are occasions when is can be treated as definitional.

[00:20:58] Speaker 04:
But where we have an established turn of art, there has to be something more.

[00:21:02] Speaker 04:
It has to be clear to the posa that there is an intention here to change what is already in this turn of art with the 3GPP defined.

[00:21:09] Speaker 04:
I don't see anything in this language that is inconsistent.

[00:21:12] Speaker 04:
The first sentence

[00:21:13] Speaker 04:
that your honors refer to on column three, line 14, is providing a very high-level description that yes, an EAGCH is in fact one particular defined downlink channel.

[00:21:30] Speaker 04:
That sentence doesn't indicate to a POSA that the

[00:21:34] Speaker 04:
applicant is intending to change the meaning in some way to broaden it out.

[00:21:38] Speaker 00:
And to that second sentence... Can you be more specific?

[00:21:40] Speaker 00:
Because I think what you're saying is that there's nothing here that says that it's not limited to absolute grants.

[00:21:47] Speaker 00:
Is that what you mean?

[00:21:48] Speaker 04:
No.

[00:21:48] Speaker 04:
No, I'm sorry, Your Honor, if I misspoke.

[00:21:50] Speaker 04:
So what I'm saying is, I see this sentence as just providing, in the context of the 3GPP, this is one particular type of downlink channel.

[00:22:00] Speaker 04:
But I don't see this as saying, it is just a downlink channel that anything can be sent down.

[00:22:06] Speaker 04:
Does that clarify my previous answer?

[00:22:07] Speaker 00:
Yeah, because I was given an easy question.

[00:22:09] Speaker 00:
My question was easy.

[00:22:11] Speaker 00:
I was saying, nothing in here limits says that it will allow anything.

[00:22:16] Speaker 00:
But you answered that question well.

[00:22:18] Speaker 04:
Exactly right.

[00:22:19] Speaker 04:
And I appreciate the questions, Your Honor, you asked earlier about that second sentence and whether or not it is possible.

[00:22:24] Speaker 04:
APOZA would have understood that that was intended to be consistent and to say that,

[00:22:29] Speaker 04:
Yes, you are providing that level, that absolute level and maximum of transmission power and level of data, which is a clear contrast to a relative.

[00:22:39] Speaker 00:
But it doesn't say, right?

[00:22:40] Speaker 00:
It doesn't say here absolute or relative.

[00:22:43] Speaker 00:
You must agree with that, because there's similar language in the Korean application.

[00:22:48] Speaker 04:
Similar language to what, Your Honor?

[00:22:49] Speaker 00:
To this language.

[00:22:50] Speaker 00:
The language that you're referring to, the next sentence, which is lines,

[00:22:55] Speaker 00:
18 to 20, or 19, where it says a command as to how much transition power or level of data rate transmission is permitted to transmit.

[00:23:04] Speaker 00:
It doesn't say absolute or relative, right?

[00:23:06] Speaker 04:
No, it does not say that, Your Honor.

[00:23:08] Speaker 04:
But I also don't see and hear any language that it would inform a POSA that the applicant here was intending for an EAGCH to be something different and broader than the, at this point in time, already defined EAGCH.

[00:23:26] Speaker 00:
Can I ask you something else?

[00:23:27] Speaker 00:
I mean, at the time of the invention, setting aside the full definition of E-H-E-C-H, is there any evidence of what a person who ordered areas of government art thought the words absolute grant meant?

[00:23:41] Speaker 04:
Well, we obviously have a dispute as between the parties what the time of invention is.

[00:23:45] Speaker 04:
The date of application, April 2005, until and unless it can be shown that the claims are supported by an earlier priority date is the date of invention.

[00:23:54] Speaker 04:
And your question, I believe your honor, is what else would show what Opposa believe this to be?

[00:24:01] Speaker 00:
I guess I'm setting aside EAGCH.

[00:24:06] Speaker 00:
Is there any evidence in the record on the meaning of absolute grant either at the time of the Korean application or at the time that you contend is the effective filing date?

[00:24:16] Speaker 04:
So looking at each of those two separate dates,

[00:24:19] Speaker 04:
The absolute grants did not exist in 3GPP wireless telecommunications in 2004.

[00:24:25] Speaker 00:
But did they exist outside of that?

[00:24:27] Speaker 00:
Sorry?

[00:24:29] Speaker 00:
Was that a word?

[00:24:32] Speaker 00:
Is there any evidence in this record about what the phrase absolute grant means?

[00:24:37] Speaker 04:
I believe, Your Honor, you're intending to refer to appellants experts testimony regarding the DOCSIS cable standard.

[00:24:43] Speaker 04:
Is that what you're referring to?

[00:24:44] Speaker 04:
That is evidence in the record of what a very different standard to a different technology outside the scope of opposes knowledge that dealt with a different type of absolute grant.

[00:24:54] Speaker 04:
But that is separate.

[00:24:55] Speaker 04:
I apologize.

[00:24:56] Speaker 04:
No, no, that's fine.

[00:24:57] Speaker 04:
Thank you.

[00:24:58] Speaker 04:
OK.

[00:24:58] Speaker 04:
But that is the only absolute grant introduced to the record.

[00:25:02] Speaker 04:
It was explicitly considered.

[00:25:04] Speaker 04:
and rejected by the board because it is directed to a different standard for a different technology and not a technology within the knowledge of the POSA as defined.

[00:25:15] Speaker 01:
If we agree with the claim construction here, what else, if anything, do we have to decide?

[00:25:19] Speaker 04:
I don't believe anything needs to be decided, Your Honor.

[00:25:23] Speaker 04:
I believe that the board got it right.

[00:25:25] Speaker 04:
And as Your Honor has already pointed out,

[00:25:28] Speaker 04:
I respectfully disagree with the pallent that the board performed an impermissible Texas digital analysis.

[00:25:35] Speaker 04:
But even if they had, it would be harmless.

[00:25:37] Speaker 04:
Because in the context of the 625 patent, where it is clear that the applicant is trying to inform the person of ordinary skill in the art that we are looking at methods intended for performance in 3GPP, you are necessarily using 3GPP

[00:25:55] Speaker 04:
technical defined systems and channels in the technical specifications.

[00:26:01] Speaker 00:
Isn't 3G licensing arguing in the alternative that even under the board's construction that there's written description support in the Korean application?

[00:26:15] Speaker 04:
They're arguing that the Korean application, which never mentions the EAGCH because it did not exist,

[00:26:23] Speaker 04:
nonetheless supports it, I respectfully disagree.

[00:26:25] Speaker 00:
Okay.

[00:26:26] Speaker 00:
I just was confused about your answer because we still have to resolve that question even if we adopt the board's claim construction.

[00:26:33] Speaker 00:
The question of priority?

[00:26:34] Speaker 00:
We still have to resolve the question of priority, right?

[00:26:37] Speaker 04:
Well, so I believe Appellant has conceded that if the board's claim construction stands, it necessarily has already resolved priority because

[00:26:48] Speaker 04:
There is no support for a 3GPP-defined EAGCH in the Korean application, nor could there be.

[00:26:56] Speaker 04:
It's an impossibility because it didn't exist.

[00:27:01] Speaker 02:
Anything further?

[00:27:03] Speaker 04:
Thank you, Your Honor.

[00:27:05] Speaker 02:
Anything further?

[00:27:06] Speaker 04:
Unless there's any other questions, I'm happy to answer.

[00:27:08] Speaker 04:
I'll relinquish my remaining time.

[00:27:11] Speaker 04:
Thank you.

[00:27:17] Speaker 02:
Let me express the view with one shot.

[00:27:20] Speaker 02:
personal view.

[00:27:22] Speaker 02:
I heard the word poser at least a dozen times.

[00:27:26] Speaker 02:
And of course, I know what it means.

[00:27:28] Speaker 02:
But I personally think we ought to speak English.

[00:27:32] Speaker 02:
And the patent profession in this court are often accused of using jargon and considering themselves different from the mainstream of the law.

[00:27:44] Speaker 02:
If someone used that expression, arguing before the Supreme Court,

[00:27:48] Speaker 02:
They would be very disdainful of it.

[00:27:50] Speaker 02:
That's just my thought.

[00:27:53] Speaker 02:
Mr. DiMarco, you have two minutes for a bottle.

[00:27:58] Speaker 03:
Yes, Your Honor, thank you.

[00:27:59] Speaker 03:
And I wanted to dive actually directly into something my friend stated about doctors being outside the scope of a procedure's knowledge.

[00:28:06] Speaker 03:
This is one of the things I referenced earlier in my main case, which is that the fact of the matter is that is simply not the case.

[00:28:14] Speaker 03:
There is, in fact, under-budded expert testimony

[00:28:17] Speaker 03:
from 3G's own experts stating that a procedure not only would have been aware of DOCSIS, but in reviewing the Korean application and looking to see whether it disclosed an absolute right, would have relied on that standard and knowledge of that standard to determine whether or not the Korean application disclosed an absolute right.

[00:28:39] Speaker 03:
Now the board simply dismissed this out of hand saying that and I quote,

[00:28:45] Speaker 03:
DOCSIS reveals nothing about the procedure's understanding of the 3GPP standard scheduling commands.

[00:28:50] Speaker 03:
But this ignores the undercutted expert testimony of the parent's expert who stated that a procedure would have actually considered this knowledge.

[00:29:00] Speaker 03:
This in and of itself, as we argued in our briefing and I mentioned briefly in my argument in May, is in and of itself an APA violation.

[00:29:07] Speaker 03:
It's not supported by substantial evidence.

[00:29:11] Speaker 00:
Mr. DiMarco, can I ask you a quick question?

[00:29:14] Speaker 00:
In your blue brief, you say even under the board's construction of the EAGCH, the board erred in determining that the 625 patent is not entitled to the priority date of the Korean application.

[00:29:26] Speaker 00:
Are you maintaining that argument?

[00:29:28] Speaker 03:
Yes, Your Honor, we are.

[00:29:34] Speaker 03:
Thank you.

[00:29:35] Speaker 00:
That was it.

[00:29:36] Speaker 00:
I have nothing else.

[00:29:37] Speaker 03:
But yes, Your Honor, that is, in fact, the case.

[00:29:39] Speaker 03:
We argue that the board's decision is not supported by substantial evidence.

[00:29:42] Speaker 03:
It has ignored the testimony and simply dismissed, out of hand, Mr. Litvov's testimony by saying that DOCSIS review has nothing to do with the procedure's understanding of the scheduling commands, in spite of the fact that that is precisely the testimony he provides.

[00:29:58] Speaker 03:
In addition, each of the aspects of the next absolute branch are disclosed.

[00:30:03] Speaker 03:
I see my time is up.

[00:30:06] Speaker 02:
Thank you, counsel.

[00:30:07] Speaker 02:
We have your argument and the case is submitted.