[00:00:00] Speaker 03: The next case is a live core ink versus Apple ink, number 23-1512. [00:00:06] Speaker 03: Mr. Pack again. [00:00:11] Speaker 01: Thank you, Your Honor. [00:00:12] Speaker 03: I think this time you've saved three minutes for rebuttal. [00:00:14] Speaker 03: Is that correct? [00:00:15] Speaker 01: That's right, Your Honor. [00:00:19] Speaker 01: So Your Honor, I'd like to begin by making it clear that [00:00:23] Speaker 01: with respect to the PTAB's final written decision order, we are contending there were two legal errors, not just a substantial evidence challenge. [00:00:33] Speaker 01: And I think I can demonstrate that, actually, by just walking you through one portion of what... Can I just ask you a question I asked your friends in the previous case? [00:00:43] Speaker 03: Yes. [00:00:43] Speaker 03: If we disagree with you here at a firm, does that get rid of the case we just heard from too? [00:00:48] Speaker 01: Well, we understand that to be the case. [00:00:50] Speaker 03: OK, nice. [00:00:51] Speaker 03: I just wanted to give you an opportunity to be on the record. [00:00:55] Speaker 01: So Your Honor, let me walk you through, I think very concisely here, some of the things that we saw in Apple's response in the red brief. [00:01:05] Speaker 01: If Your Honor's turn to page two of the Apple response brief, [00:01:18] Speaker 01: And what you will see there is that Apple notes, just consistently with what you heard in the ITC case on the confirmation step, that detection and confirmation are two different functions, two different steps. [00:01:34] Speaker 01: And that's a very important part of the invention being cited. [00:01:38] Speaker 01: And this is detect based on PPG data the presence of an arrhythmia and then confirm. [00:01:44] Speaker 01: the presence of the arrhythmia based on the ECG data. [00:01:47] Speaker 01: Clearly two steps. [00:01:49] Speaker 01: Then you turn to page 14 in the same response brief. [00:01:55] Speaker 01: They acknowledge that the dependent claims of the 731 and the 499 patents recite using a machine learning algorithm to detect in the language of the 731 or determine [00:02:11] Speaker 01: using the language of the 499 pattern, the presence of an arrhythmia. [00:02:16] Speaker 01: So clearly, we're not talking about machine learning in those claims for ECG confirmation. [00:02:21] Speaker 01: We're talking about machine learning for the initial detection step. [00:02:26] Speaker 01: And just to give you a little bit of background, as we noted in my intro, Your Honors, the PPG data does not have the reliable hallmark indicators of most common forms of arrhythmia, such as P wave absence for atrial fibrillation. [00:02:41] Speaker 01: Machine learning looks at millions of data points to be able to detect patterns that may not be visible even to a trained cardiologist. [00:02:49] Speaker 01: And so what we're talking about in these dependent claims is using machine learning algorithms trained on PPG data for the initial detection step. [00:02:58] Speaker 01: So that's the element that they have to show, that the PTAB have to show. [00:03:02] Speaker 01: If you look at page nine, [00:03:06] Speaker 04: Before you refer to more pages, you suggested there were two legal errors. [00:03:10] Speaker 01: Yes. [00:03:10] Speaker 04: Could you tell me what they are? [00:03:11] Speaker 01: Yes, Your Honor. [00:03:12] Speaker 01: So the two legal errors are this. [00:03:15] Speaker 01: The first legal error is that what actually the PTAP found with respect to the Shmueli reference, which was the primary reference that Apple was relying on, is the following. [00:03:26] Speaker 01: We agree with Petitioner that after an ECG is measured, it would have been obvious to confirm arrhythmia. [00:03:34] Speaker 01: using a machine learning algorithm. [00:03:37] Speaker 01: Confirm. [00:03:39] Speaker 01: So the obviousness finding from the key tab after crediting all the Apple arguments was simply that it would have been obvious to use machine learning to confirm, not based on ECG and other data, not detecting arrhythmia in the first step using PPG data. [00:03:59] Speaker 01: And that's the legal error. [00:04:01] Speaker 01: And the second legal error, Your Honor, [00:04:04] Speaker 01: The mixing of, and you can see this in page 57 of the Apple brief, despite relying on these two steps being different, what Apple argues now as a basis to support the PTABS finding is a machine learning algorithm trained to confirm an arrhythmia is necessarily also trained to detect that arrhythmia. [00:04:31] Speaker 01: So after having spent all of this time at the ITC arguing these are two distinct steps and acknowledging all the intrinsic record, because they cannot find the use of any machine learning using PPG data to detect, what they're now arguing and what they encourage the PTAB to do is to conflate two distinct steps of an invention. [00:04:53] Speaker 01: So that's the second legal area. [00:04:55] Speaker 01: And that's found at page 57. [00:04:58] Speaker 01: And that's because, [00:05:01] Speaker 01: If you look at page 31 of the red brief, Your Honor, you will see the annotation is important because it really helps establish what Apple is trying to do here. [00:05:16] Speaker 01: This is the figure of Shmueli that they're relying on and the PTAB relied on. [00:05:21] Speaker 01: And if you look at that figure, you have three boxes. [00:05:26] Speaker 01: Detect irregular heart condition and [00:05:30] Speaker 01: The input into that is the SP02 input, which is the PPG. [00:05:35] Speaker 01: You have detection parameters, which are some of the input parameters that are provided into the detection step. [00:05:42] Speaker 01: Then you have the search correlation. [00:05:45] Speaker 01: And what you see, the box that Apple drew, which is the argument that they presented to the PTAB, is that this entire three boxes represent what they call confirming the PPG diagnosis. [00:05:59] Speaker 01: And so what they're pointing to as the machine learning is the search correlation box, which is to the right. [00:06:06] Speaker 01: They've only identified at best one machine learning algorithm that Apple and the PTAB contend is used for the generation of the search correlations. [00:06:16] Speaker 01: But that box is the same place that Apple and the PTAB is pointing to for confirmation. [00:06:23] Speaker 01: And so both cannot be true. [00:06:25] Speaker 01: And that's the reason why there is legal error here. [00:06:29] Speaker 01: Furthermore, it goes on to say in the red brief at page 32. [00:06:38] Speaker 03: I'm a little confused why you're calling this legal error. [00:06:41] Speaker 03: It still sounds awful like substantial evidence to me when you're pointing to specific parts of the prior art and saying it doesn't support the conclusion. [00:06:51] Speaker 01: No, Your Honor, because what we're saying, the reason why I'm saying it's a legal error is the ultimate conclusion that the PTAP found [00:07:00] Speaker 01: as a predicate for the obviousness of this limitation was that it's obvious to use machine learning for confirmation using ECG data. [00:07:09] Speaker 01: So it's a legal error to take that finding and then render obvious and invalid a claim that is about machine learning for detection using PPG. [00:07:19] Speaker 01: That's the legal error. [00:07:20] Speaker 01: That's why we've contested substantial evidence based on the experts. [00:07:25] Speaker 01: But I really want to focus on this because this is different than saying, [00:07:29] Speaker 01: the experts, evidence shouldn't come in based on credibility reasons. [00:07:35] Speaker 01: What we're saying is the finding, the ultimate predicate finding that the PTAB reached based on arguments as we're seeing now how Apple had to draw the boxes in Shmueli was about a different concept altogether, which is using machine learning for confirmation that involved ECG data. [00:07:52] Speaker 01: And that's very obvious. [00:07:54] Speaker 00: It seems to me that the board reached that legal conclusion based upon its assessment of the evidence and what the evidence taught, including the testimony of Dr. Chapman. [00:08:11] Speaker 00: And I don't know. [00:08:15] Speaker 00: To me, it's hard to characterize this as a legal issue when it's all about [00:08:22] Speaker 00: what the evidence showed, and whether the evidence taught detecting or confirming. [00:08:30] Speaker 00: That's a substantial evidence question. [00:08:34] Speaker 01: No, Your Honor, because in this case, the conclusion as stated in the PTAB's final written decision had nothing to do with detection. [00:08:46] Speaker 01: So the ultimate obviousness finding, even if you credit what the PTAB did under the substantial evidence standard, [00:08:53] Speaker 01: reaches an ultimate conclusion that says it would have been obvious in light of the Shmueli teachings to use machine learning for confirmation, not detection. [00:09:05] Speaker 01: And the legal error, Judge Lin, is that you cannot then take that finding, urged by Apple, and then legally conclude that a separate step in the dependent claims about detection using PPG data [00:09:21] Speaker 01: is also rendered obvious. [00:09:22] Speaker 01: There's just no support for that. [00:09:23] Speaker 01: And that's the reason why we think this is a legal error to make that leap. [00:09:26] Speaker 04: I want to talk to you about your discovery and secondary considerations point. [00:09:31] Speaker 04: It looks like you never made any secondary considerations evidence contention to the board, even though if I follow the timing correctly, [00:09:43] Speaker 04: the administrative law judge at the commission had already made findings about copying and a publicly available decision by the time you got to the oral hearing before the board. [00:09:53] Speaker 04: If that is correct, aren't these issues waived or forfeited many times over by you? [00:10:00] Speaker 01: No, Your Honor, because as you saw, much of the evidence on [00:10:08] Speaker 01: the secondary consideration involved Apple's confidential documents. [00:10:12] Speaker 04: Right, but isn't it true, is it correct that the initial decision of the ALJ was out by the time you were in front of the board? [00:10:20] Speaker 01: All the briefing had been done, Your Honor. [00:10:22] Speaker 01: So what happened was, let me go through the timeline here. [00:10:26] Speaker 04: So, I'm sorry, I don't, you don't want to go back down the details, but so are you saying you did not have the institution decision at the time you went to the oral hearing in front of the board? [00:10:38] Speaker 01: You mean the public, the ID? [00:10:41] Speaker 01: Sorry, the initial determination. [00:10:43] Speaker 01: We didn't have the initial determination. [00:10:44] Speaker 04: Right, so why not present that, or make an effort to present that, [00:10:49] Speaker 04: to the PTAB and to say there's other secondary consideration evidence we'd like to present. [00:10:56] Speaker 04: You may be able to enforce some of it from this public document. [00:10:59] Speaker 04: Sure. [00:10:59] Speaker 04: You made no effort whatsoever. [00:11:01] Speaker 01: The reason for that, Your Honor, is that under the PTAB rules, we had to put all of our arguments in the written submissions. [00:11:08] Speaker 03: The PTAB can always make exceptions to its rules in extraordinary circumstances. [00:11:13] Speaker 03: You have to give them the opportunity to do it. [00:11:15] Speaker 03: Yes. [00:11:16] Speaker 03: And you didn't ask them, right? [00:11:17] Speaker 03: You didn't make a motion to supplement the record or file a supplemental brief. [00:11:23] Speaker 03: So you didn't even mention it at the oral hearing. [00:11:25] Speaker 01: Right. [00:11:26] Speaker 01: And the reason for that, Your Honor, is that I, along with my colleagues, we were subject in particular [00:11:32] Speaker 03: And you could have told the board that we have additional information that's subject to a protective order that we think is relevant to your case. [00:11:41] Speaker 03: You didn't have to actually submit it. [00:11:44] Speaker 03: The board probably would have liked to have known about it. [00:11:47] Speaker 01: We did alert the board to the issuance of the public ID. [00:11:51] Speaker 01: And I did indicate to the board that they should take judicial notice of that. [00:11:55] Speaker 01: But Your Honor, you're correct that I did not raise the secondary consideration. [00:11:59] Speaker 01: evidence specifically. [00:12:00] Speaker 04: If I think that you clearly forfeited or waived these arguments, do we nonetheless have discretion to find maybe exceptional circumstances and reach this issue if I'm uncomfortable with what happened here? [00:12:13] Speaker 04: And if so, how would that argument go? [00:12:15] Speaker 01: Yes. [00:12:16] Speaker 01: The argument will go as this, because this goes back to there is no waiver of a self-enforcing duty of candor. [00:12:24] Speaker 01: So the argument that we're raising is not whether we brought secondary considerations argument [00:12:30] Speaker 04: But you waved this argument, too. [00:12:32] Speaker 04: You never told Apple you thought that they had a self-actual, an automatic, suicide obligation to produce this discovery, did you? [00:12:41] Speaker 01: We don't think we have to, because the law is very clear that the self-enforcing duty does not require any action by any other party. [00:12:49] Speaker 01: The point that we're making, the reason why we think this is an issue that Your Honors should address is, as Your Honors know, definitive rules have been changed. [00:12:59] Speaker 01: to exempt ITC proceedings. [00:13:01] Speaker 01: And in this case, we had two tribunals dealing with the same patents. [00:13:07] Speaker 01: In the future, there will be cases where two tribunals will be dealing with the same prior art as well. [00:13:14] Speaker 01: And what we have now is Apple, under its self-enforcing duty, had the obligation, certainly by January 2022, when we communicated [00:13:29] Speaker 01: specific documents to them and said, these are the documents we would like to seek discovery from you at the PTAB. [00:13:37] Speaker 01: And they threatened [00:13:38] Speaker 01: sanctions against us, even if we were to use that. [00:13:41] Speaker 03: Don't you think you have to raise that argument to the board rather than to us in the first instance? [00:13:48] Speaker 03: Even if it is Apple's obligations, you have to point out that they're not meeting their obligations to the board. [00:13:57] Speaker 03: So the board can take action. [00:13:59] Speaker 03: That's not something we should be doing for the first time on appeal. [00:14:04] Speaker 01: We believe that once we put them on notice, [00:14:07] Speaker 01: that we did not have to take any further action, that they had a self-executing duty of candor. [00:14:13] Speaker 01: And because of that, there was no secondary evidence ever produced by Apple in this case, starting from January of 22 to when the staff attorney came out and found that there is evidence of copying and evidence of industry praise in Apple's files. [00:14:31] Speaker 03: Do you think if you were in a district court and you asked for discovery responses and you felt they were insufficient and you didn't raise that to the district court and allow the district court to remedy it, you could raise it for the first time on appeal? [00:14:48] Speaker 01: No, we think this is different than a discovery. [00:14:50] Speaker 01: And the difference is this, Your Honor, because they characterize this as a discovery dispute about whether we could have served [00:15:01] Speaker 01: discovery requests on Apple. [00:15:04] Speaker 01: But that's not the issue here. [00:15:06] Speaker 01: The issue is this is a discovery obligation by Apple to produce. [00:15:11] Speaker 04: Many district courts or district judges have standing orders that have similar self-enforcing duties. [00:15:17] Speaker 04: So I don't think that gets you very far. [00:15:20] Speaker 01: But that's the basis. [00:15:22] Speaker 03: OK, Mr. Pape, you've exhausted all your time again. [00:15:24] Speaker 03: Yeah, thank you, Robert. [00:15:26] Speaker 03: But we ask you a lot of questions, so I'll restore your full three minutes. [00:15:29] Speaker 03: Oh, thank you. [00:15:30] Speaker 03: Mr. Davies. [00:15:41] Speaker 02: Your Honor, I'm happy to start with the discovery issue we were just discussing, if that's possible. [00:15:48] Speaker 03: It's up to you at your time. [00:15:49] Speaker 03: If you have questions, we'll ask you. [00:15:51] Speaker 02: Fair enough, Your Honor. [00:15:55] Speaker 02: So let's start at the beginning. [00:15:58] Speaker 02: We can go back to the claims. [00:15:59] Speaker 03: I mean, it might help for me, actually, to clear up what he was talking about about confirmation versus detecting. [00:16:08] Speaker 02: Sure. [00:16:08] Speaker 03: Because I thought that the board addressed that. [00:16:13] Speaker 02: The board did address it, Your Honor. [00:16:14] Speaker 02: And it may help to look at Figure 7. [00:16:18] Speaker 02: This is on red beef page 31. [00:16:20] Speaker 02: What page was it? [00:16:22] Speaker 02: Page 31, Your Honor. [00:16:26] Speaker 02: And this just, I think it can set out the claims and what we're talking about here. [00:16:32] Speaker 02: And we can start with element 38, where it says detect irregular heart condition. [00:16:38] Speaker 02: That is what we've been talking about. [00:16:40] Speaker 02: And if you move to the right, you see detection parameters, search correlation. [00:16:45] Speaker 02: And then in element 49, you see what means record PPG and ECG measurements. [00:16:51] Speaker 02: So what that shows is that the ECG goes through search correlation to detection parameters [00:16:57] Speaker 02: and it's confirming the irregular heart condition. [00:17:01] Speaker 02: The other way to see it even more intuitively, perhaps, is to start at the top left, where it says start. [00:17:07] Speaker 02: You've got the PPG measuring the heart regularly, and then if it detects a problem, detect it, get to the ECG, and that ECG confirms. [00:17:16] Speaker 02: So figure seven is showing what [00:17:19] Speaker 02: the first claim says, which is, confirm the presence of arrhythmia based on the ECG data. [00:17:24] Speaker 02: And that's what we just went through. [00:17:25] Speaker 02: You can see how the ECG data is confirming the presence of the arrhythmia. [00:17:31] Speaker 04: Did the board rely on the same search correlation box here in Schmooley to satisfy both the confirming and the detecting? [00:17:40] Speaker 02: The detecting is about the PPG, while the ECG is about the confirming. [00:17:46] Speaker 02: So if you look at element 49, that SP02 refers to PPG. [00:17:52] Speaker 02: So it's the same box you're on in the sense that it's element 49. [00:17:55] Speaker 02: And they're both used as part of the correlation. [00:17:59] Speaker 02: But one of them does the detecting, and one of them does the confirming. [00:18:03] Speaker 04: And where does the board clearly make a finding on detecting versus confirming? [00:18:11] Speaker 02: So confirming is at the board app 93 to 94. [00:18:15] Speaker 02: I'm sorry, I can't hear you. [00:18:17] Speaker 02: Appendix 93 to 94. [00:18:18] Speaker 04: 93 to 94 is confirming and detecting is? [00:18:22] Speaker 02: It's the same area, Your Honor. [00:18:24] Speaker 02: Same what? [00:18:25] Speaker 02: The same page? [00:18:31] Speaker 04: I just didn't hear what you said. [00:18:32] Speaker 02: Yes, Your Honor. [00:18:33] Speaker 04: Thank you. [00:18:36] Speaker 02: So if you look at the block quote on Appendix 94, Schiwelli continuously measuring, measuring the ECG to confirm, [00:18:47] Speaker 02: So measuring the ECG data upon detecting in a regular heart condition. [00:18:54] Speaker 02: And you have Dr. Chapman, who gives us context for what's going on here, which is that the PPG does the detecting, but it's not very good at being portable, while the ECG is the gold standard, but has those 12 wires. [00:19:07] Speaker 02: And so putting the PPG portable helps the regular detection. [00:19:13] Speaker 02: And when it sees a problem, that's when you do the ECG. [00:19:25] Speaker 02: Machine learning you can also see from Figure 7, since we're on Figure 7. [00:19:30] Speaker 02: The detection parameters are taught to change, or can be adjusted based on the machine learning language. [00:19:38] Speaker 02: And that is at, so Board Appendix 110. [00:19:54] Speaker 02: is describing the limitations of the machine learning claims here. [00:19:57] Speaker 02: So I do think it's important to step back and talk about why the machine learning claims here are invalid. [00:20:04] Speaker 02: And that's because what's going on here, I think, is that people are using the magic technical words machine language to expect some sort of deference. [00:20:12] Speaker 02: But they are not complicated words. [00:20:13] Speaker 02: They are simple words. [00:20:15] Speaker 02: And that's the key thing. [00:20:17] Speaker 02: the key thing to recognize. [00:20:19] Speaker 02: And it shouldn't determine anything that is not already stated by the board. [00:20:30] Speaker 02: To move on to the secondary considerations issue, the waiver issue here is so dramatic. [00:20:39] Speaker 03: I mean, when they did tell you they thought the secondary consideration evidence from the ITC was relevant, why didn't you [00:20:49] Speaker 03: submit it to the board? [00:20:52] Speaker 02: The relevant is not quite the right word. [00:20:54] Speaker 02: I mean, they were saying it was inconsistent. [00:20:55] Speaker 02: And that was not our position. [00:20:56] Speaker 02: We did not think it was inconsistent. [00:20:59] Speaker 02: But on the waiver point, Your Honor, I mean, we filed our petition for review in June 2021. [00:21:06] Speaker 02: And we used the word obvious. [00:21:08] Speaker 02: And if their position was that secondary considerations brought that into question, they should have raised it with the board at some level. [00:21:16] Speaker 02: But we didn't see it until May 2023 in this [00:21:19] Speaker 03: Well, I mean, with regards to the industry praise and the stuff that was accessible to them, that's one thing. [00:21:25] Speaker 03: But what about the copying evidence? [00:21:27] Speaker 03: I mean, they didn't get it until the ITC hearing, right? [00:21:31] Speaker 03: That was just your confidential information. [00:21:34] Speaker 02: They certainly could have tried to get it sooner, but yes. [00:21:38] Speaker 02: But it's not on the waiver point. [00:21:40] Speaker 02: The question is, did they make the legal argument? [00:21:42] Speaker 02: I mean, they didn't cite the regulation. [00:21:44] Speaker 02: They didn't go to the PTAB, which has so many procedures. [00:21:46] Speaker 02: They didn't file it. [00:21:47] Speaker 02: and and and and and and and and and and and and and and and and and and [00:22:09] Speaker 04: You refused to even have a discussion with the board about it, I believe. [00:22:13] Speaker 02: We didn't refuse to have any discussions, Your Honor. [00:22:15] Speaker 02: And I'm not sure if that's fair. [00:22:16] Speaker 02: I mean, we said, look, it clearly falls within the protective order. [00:22:20] Speaker 02: Go and ask and try and get it revised. [00:22:23] Speaker 02: And they just didn't do that, which they've done in other settings. [00:22:27] Speaker 02: And so it's a quick proceeding. [00:22:30] Speaker 02: They're not like the standard district court discovery. [00:22:33] Speaker 00: And so it just didn't make the cut for them. [00:22:35] Speaker 00: You don't think that amounted to a bit of gamesmanship? [00:22:38] Speaker 00: That you're hiding behind the protective order? [00:22:41] Speaker 02: No, Your Honor. [00:22:42] Speaker 00: And I think this... When here you had an IPC finding that that evidence was sufficiently strong to overcome a prima facie showing. [00:22:52] Speaker 00: And that's a rare circumstance. [00:22:56] Speaker 00: And yet... [00:22:58] Speaker 00: You just said, well, then no, no, no, it's, we've got a protective order. [00:23:02] Speaker 00: We're not going to provide it. [00:23:04] Speaker 02: Well, first off, your honor, we've submitted 28 day limits, but the T-Tap means with Apple that this information is not relevant to these sorts of patents. [00:23:11] Speaker 02: So it's not gamesmanship, your honor. [00:23:14] Speaker 00: It's us just following the rules, which is- What about their argument that this is sort of self-enforcing, this idea of your [00:23:26] Speaker 00: committing this evidence as part of the routine discovery. [00:23:30] Speaker 00: In a sense, it's certainly not your burden to produce secondary consideration evidence, but nonetheless. [00:23:38] Speaker 02: Right. [00:23:39] Speaker 02: But it's also very narrow. [00:23:40] Speaker 02: It may be self-enforcing, but as those rules often are, it's very narrow. [00:23:43] Speaker 02: And the board has said what inconsistent means. [00:23:46] Speaker 02: And we discussed this in our red brief at 77 to 78. [00:23:49] Speaker 02: If you have a test and you have two results, and one is good and one is bad, then you have to disclose both. [00:23:55] Speaker 02: But that's very different than what's going on here, where we're saying something is obvious. [00:23:58] Speaker 02: they're going back and saying some sort of secondary considerations theory, which we don't agree with and which the PTEP doesn't agree with, is inconsistent. [00:24:06] Speaker 02: That is just not what the power of the PTEP is. [00:24:08] Speaker 00: No, I understand what you're saying. [00:24:10] Speaker 00: But you have to admit that secondary consideration evidence is part of the Graham factors. [00:24:17] Speaker 00: It's part of the obviousness analysis. [00:24:21] Speaker 00: So it's a little difficult to say that it's not [00:24:29] Speaker 00: directly opposite to your position? [00:24:32] Speaker 02: As we see that evidence, Your Honor, and as the piece have agrees with us, it is not directly opposite. [00:24:38] Speaker 02: But also don't remember that they could have started that they had plenty of other secondary considerations evidence that they think is relevant. [00:24:45] Speaker 02: You know, the public praise, their sales, but they don't ever bring that up either. [00:24:50] Speaker 02: And so it's not as if we didn't, the parties just didn't focus on that because it was a fast moving procedure and that's not what happened. [00:24:57] Speaker 02: But it was not gamesmanship. [00:24:59] Speaker 02: Again, it goes from June 2021, where we say obvious, and then this issue comes up in May 2023. [00:25:07] Speaker 02: If that is not waiver, then that should be waiver. [00:25:11] Speaker 02: And in this context, where we're trying to understand what the PTAP means by its own regulations, the PTAP has already said what it thinks of this specific case. [00:25:20] Speaker 02: As an appellate court, you have to give that so much deference to just read their rules the way they read them. [00:25:27] Speaker 02: both generally and in this case, and you have the waiver on top of that. [00:25:33] Speaker 04: You reference the 28-J letters. [00:25:35] Speaker 04: I'm not sure that I interpret them the same way that you do. [00:25:39] Speaker 04: My understanding is that in those subsequent IPRs, I think it's for the 956-7415, the board had the secondary consideration evidence in front of it and considered it and seems to have thought it was at least relevant to its obviousness determination as [00:25:58] Speaker 04: We've said it's always relevant. [00:26:01] Speaker 04: It does not suggest that the prudent course here would be to give the board a chance in the context of the prior art here and the specific patents here to take a look at what the commission said was evidence of copying. [00:26:17] Speaker 02: But Your Honor, two responses. [00:26:20] Speaker 02: The 28J does say petitioner provides a reasonable basis for believing that the allegedly known evidence of secondary considerations did not apply to the challenge patents. [00:26:30] Speaker 02: So they agree that we took a reasonable position. [00:26:33] Speaker 04: That goes to the self-enforcing duty and whether you had an obligation to produce it. [00:26:39] Speaker 04: I'm asking a different question. [00:26:41] Speaker 04: Why shouldn't we say that the totality circumstances here, including the waiver, makes this exceptional and excuse the waiver and let the board have in the context of these patents that two cases are turning on, consider the evidence that the commission found was in some way strong? [00:27:02] Speaker 02: Well, we know the board is right. [00:27:05] Speaker 02: I mean, as I just said, they think this was not inconsistent with our position. [00:27:10] Speaker 02: And that's the argument. [00:27:12] Speaker 02: The argument is that they're making is for a regulation [00:27:16] Speaker 02: that we didn't comply with the regulation. [00:27:18] Speaker 04: I guess I would not be clear in my question. [00:27:20] Speaker 04: I'm not getting to whether or not you've... It's so inconsistent that you had an obligation in a self-enforcing way to produce it. [00:27:28] Speaker 04: I'm saying it seems clear that the evidence is relevant to the obviousness determination that we're reviewing, but yet the entity we're reviewing never had the chance to consider what may be highly probative evidence. [00:27:43] Speaker 02: So, Your Honor, it's important to keep in mind here the purpose of the PTAB process. [00:27:48] Speaker 02: Congress set it up with a very specific goal, which was there were too many improper patents being issued. [00:27:53] Speaker 02: We need an efficient system. [00:27:55] Speaker 02: It's a quick process. [00:27:58] Speaker 02: There are rules about what arguments you can make. [00:28:00] Speaker 02: There are rules about how long the PTAB has to offer. [00:28:03] Speaker 02: If based on this record, with such a serious waiver problem, you were going to remand, then that is not what Americans in Vents Act was supposed to do. [00:28:11] Speaker 02: And district court may be that's a different sense, but this is an agency procedure that Congress set up to deal with a serious problem. [00:28:17] Speaker 02: It's supposed to move quickly. [00:28:19] Speaker 04: And I don't think this is the time to start... Is it not a problem that we have in front of us today two different obviousness determinations from two government entities that [00:28:30] Speaker 04: weren't both privy to the same evidence that could be highly probative of the decision they had to review, they had to make. [00:28:37] Speaker 02: I mean, Congress is clear about who is the proper agency for this sort of situation. [00:28:43] Speaker 02: It's the patent office. [00:28:44] Speaker 02: These are patent documents. [00:28:46] Speaker 02: Right. [00:28:46] Speaker 02: And it's the patent office that didn't have the evidence. [00:28:48] Speaker 03: Wasn't a significant portion of the evidence that was available to the ITC also available to a live court to submit to the board in its patent owner's response? [00:28:58] Speaker 03: Yes. [00:28:59] Speaker 03: Yes. [00:28:59] Speaker 03: This is the copying evidence that was in your possession. [00:29:01] Speaker 03: Yes, Your Honor. [00:29:02] Speaker 03: So they made no attempt at a secondary consideration argument at all, as opposed to just not having a maybe critical piece of evidence, but not the only piece of evidence. [00:29:15] Speaker 02: Yes, Your Honor. [00:29:17] Speaker 02: Certainly, that is one additional reason not to remand, that they just didn't try. [00:29:24] Speaker 02: So yes, but the Pine Office does have a specific role in this setting. [00:29:29] Speaker 02: It's not two agencies of equal weight. [00:29:32] Speaker 02: That's in the Fresenius case. [00:29:33] Speaker 02: That's in the old reliable case. [00:29:36] Speaker 02: That is, the PTAB has a very specific role. [00:29:39] Speaker 02: And it is not one that it should be easily subject to remand. [00:29:49] Speaker 02: If you don't have anything else. [00:29:50] Speaker 02: Thank you. [00:29:58] Speaker 03: No, three minutes. [00:29:59] Speaker 03: OK, thank you. [00:30:01] Speaker 03: It comes right up the wrong way. [00:30:07] Speaker 01: Thanks, Lee. [00:30:08] Speaker 01: Let me ask you. [00:30:10] Speaker 03: Why should we save you on secondary consideration when you didn't make any attempt to put on a secondary consideration case at all? [00:30:17] Speaker 03: I understand this copying evidence is important, and it was important to the commission. [00:30:22] Speaker 03: But it was also important to the commission, the industry, praise. [00:30:25] Speaker 03: And you certainly had access to that. [00:30:29] Speaker 03: But yet, you didn't put that in as a secondary consideration argument. [00:30:34] Speaker 03: You didn't put any secondary consideration arguments in, right? [00:30:36] Speaker 01: We did not style it as a secondary considerations argument, Your Honor. [00:30:40] Speaker 01: We did put into the record in the panel owner's response the FDA approval as well as one of the papers that showed praise. [00:30:49] Speaker 01: We didn't believe without access to Apple's confidential information that we had enough before the PTAP to mount a secondary considerations challenge based on the dearth of the evidence that we had. [00:31:02] Speaker 01: relying purely on. [00:31:03] Speaker 01: But Your Honor, we did submit some of that evidence. [00:31:06] Speaker 01: We noted that during the hearing with the PTAB. [00:31:08] Speaker 04: But only in connection with motivation to combine. [00:31:10] Speaker 01: Motivation to combine, right. [00:31:11] Speaker 01: Because we didn't believe that we had enough to overcome under Grand Factor III. [00:31:15] Speaker 01: One thing I wanted to note, Your Honor, is the relief that they're saying that we should have undertaken is go to the ITC and get permission to modify the protective order. [00:31:25] Speaker 01: But we cited this case, the certified lighting case, where a certain lighting case at the ITC where [00:31:32] Speaker 01: That's exactly what the patent owner tried to do, is to get the seek leave to amend the protective order. [00:31:38] Speaker 01: Apple opposed that and successfully opposed it. [00:31:40] Speaker 01: And the ITC has said that we're not going to modify the patent. [00:31:44] Speaker 03: Sure, but if you'd asked the board, and the board had said, we want this information, there would be some further pressure for the ITC to modify its protective order. [00:31:59] Speaker 03: Perhaps the board could also take it under a productive order. [00:32:03] Speaker 01: That's what we tried to do in the email. [00:32:05] Speaker 01: We said we're not going to do it. [00:32:06] Speaker 03: But we didn't try to do it with the people that could actually effectuate it, which was the members of the board. [00:32:12] Speaker 01: Right. [00:32:12] Speaker 01: But what the board has said in prior decisions, Your Honor, is Garmin case, where they said we're not going to allow discovery without particularized reasons. [00:32:21] Speaker 01: with respect to secondary considerations. [00:32:24] Speaker 01: And so we needed to be able to. [00:32:25] Speaker 03: Don't you think you had a pretty particularized reason here once you had the ITC decision on this? [00:32:31] Speaker 03: I mean, it is unfathomable to me that when you got this decision, you didn't go to the board and say, we have very significant information bearing on obviousness that were. [00:32:42] Speaker 03: can't provide to you because it's under a protective order, but we think we should be able to do it. [00:32:48] Speaker 03: And that the board would have just said, no, we're not going to let. [00:32:51] Speaker 00: Not only significant evidence, but a finding by another agency that it was significant. [00:32:57] Speaker 01: We understand your point, Your Honor. [00:32:58] Speaker 01: And I think we felt that we were relying on their self-enforcing duty, and we did not have evidence, and they were threatening sanctions against us for mentioning it. [00:33:08] Speaker 01: And we were trying to be mindful of our protective order obligations. [00:33:13] Speaker 01: Your Honor, if I could just say one last thing about the... Quickly. [00:33:17] Speaker 01: Yes. [00:33:19] Speaker 01: I think what you heard from counsel is exactly our point on both Lee as well as the Schmule reference. [00:33:29] Speaker 01: The confirmation is different than detection. [00:33:33] Speaker 01: All that the board found at the end for both Lee and for Schmule is that it would have been obvious to use machine learning for a confirmation. [00:33:42] Speaker 01: There was no finding or conclusion at the end about the detection step. [00:33:46] Speaker 01: And that's why we believe, as a substantive matter setting aside the secondary considerations, that this decision cannot be supported. [00:33:53] Speaker 03: Thank you. [00:33:54] Speaker 03: Case is submitted.