[00:00:00] Speaker 03:
Our next case is DSS Inc.

[00:00:03] Speaker 03:
vs. Seoul Semiconductor Company Limited, 22-1372.

[00:00:33] Speaker 03:
Mr. Smith, you reserved three minutes of your time for the rebuttal, correct?

[00:00:45] Speaker 02:
May I please the court?

[00:00:46] Speaker 02:
My name is Matthew Smith, and I represent the Appellant DSS, Incorporated.

[00:00:51] Speaker 03:
Just speak up just a little bit.

[00:00:52] Speaker 02:
Oh, sorry.

[00:00:52] Speaker 02:
Sorry.

[00:00:53] Speaker 02:
The board's decision in the underlying IPR relied incorrectly on claim construction of several terms in the claims of the 119 patent.

[00:01:02] Speaker 02:
Correcting the construction of any one of these would change the outcome of the IPR.

[00:01:07] Speaker 02:
The first and most glaring error in the claim construction was for the term layered phosphor particles.

[00:01:12] Speaker 02:
Borders applied the law when it ignored the limitations of the specification requiring that the layer of possible particles be at least two particles thick Do you agree that the figures are not to scale?

[00:01:23] Speaker 02:
Yes, it says so There are two instances with the plain ordinary meaning of a claim term can be the part from the limitation from the specification and limitations from the specification can be imported they are when the patentee access its own lexicographer and

[00:01:39] Speaker 02:
and when the specification disavows or disclaims the claim scope.

[00:01:43] Speaker 02:
Here the board improperly reviewed the patent for definitional terms.

[00:01:48] Speaker 02:
However, there is no indication that the patent was acting as its own lexicographer.

[00:01:59] Speaker 04:
that the term requires at least two particles.

[00:02:04] Speaker 04:
It could be two particles.

[00:02:05] Speaker 02:
The specification specifically says that it must be multiple particles.

[00:02:12] Speaker 04:
I get that.

[00:02:13] Speaker 04:
You made that argument below.

[00:02:15] Speaker 04:
But tell me specifically, your construction, I mean,

[00:02:38] Speaker 04:
I may not always be right, but that's the way I see it.

[00:02:41] Speaker 04:
Here, I'm trying to figure out exactly why you would want a layer of phosphor particles to have to have at least two particles thick, and I would think you would know just where in the specification that is.

[00:02:55] Speaker 02:
Well, as I was saying, it says that the layers must be many particles thick.

[00:03:00] Speaker 02:
So many particles implies that it's more than one.

[00:03:02] Speaker 02:
So that's at least two.

[00:03:05] Speaker 02:
The reason for this is that as the light, the blue light in the example of a white LED, the blue light hits the cluster particles, which turn it to yellow light.

[00:03:16] Speaker 02:
And that's perceived as white light.

[00:03:21] Speaker 02:
So to have two particles, that makes it more consistent as white light.

[00:03:27] Speaker 04:
But you could have claimed that.

[00:03:29] Speaker 04:
You could have had that in your claim.

[00:03:31] Speaker 04:
That's true.

[00:03:33] Speaker 02:
Okay.

[00:03:38] Speaker 02:
So, the surrounding language also sparks the claim scope.

[00:03:44] Speaker 02:
The sentences before the overt is a vowel.

[00:03:46] Speaker 02:
states that the drawings are not to scale and show layers of relatively large fossil particles.

[00:03:52] Speaker 00:
Just so that I'm making sure of my notes around this, what's your best portion of the spec for what you're continuing as a disavowal?

[00:04:00] Speaker 02:
The paragraph on page 98 of the appendix, column 5, paragraph starting at line 14.

[00:04:09] Speaker 00:
OK, so you're pointing to appendix page 98, column 5, lines

[00:04:17] Speaker 00:
14 through 19 to say that that's some form of disavowal?

[00:04:20] Speaker 02:
Yes.

[00:04:21] Speaker 02:
It specifically says it is to be understood that the foster particles are actually uniform layers constructed from many small particles and the layers are many particles thick.

[00:04:32] Speaker 02:
It is to be understood.

[00:04:33] Speaker 02:
So they're saying that it has to be at least two particles.

[00:04:38] Speaker 03:
But is that really a clear and unmistakable disavowal?

[00:04:41] Speaker 02:
I believe it is.

[00:04:42] Speaker 02:
It's to be understood.

[00:04:43] Speaker 02:
What else are they saying?

[00:04:45] Speaker 02:
They're telling you that this is how it is.

[00:04:51] Speaker 02:
Additionally, there are other indications that the patentee intended to disavow layers of particles less than at least two particles thick.

[00:05:00] Speaker 02:
For example, the figure so

[00:05:02] Speaker 02:
layers of particles at least two particles thick, which taken with the disclaimer that the figures show particles with fewer layers indicates that the two particles is the lower limit of the thickness of the layers of particles.

[00:05:16] Speaker 02:
Similarly, the 119th pattern in the paragraph starting on column three, line 65 on appendix page 97,

[00:05:25] Speaker 02:
describes the option of a phosphor layer being composed of multiple sub-layers of phosphor particles.

[00:05:31] Speaker 02:
Even though this is optional language, it still requires there to be multiple layers, and each one has to be, even if each sub-layer is one particle fit with multiple layers.

[00:05:43] Speaker 00:
But you just said it was optional language.

[00:05:45] Speaker 00:
I think the language says can be, so that's not a requirement if it's optional.

[00:05:50] Speaker 02:
It's an optional construction of how the layers are made, but it still says that the layer is made of optionally sub-layers.

[00:06:00] Speaker 02:
And whether or not those layers are one or two particles thick, there are many sub-layers.

[00:06:04] Speaker 02:
So the total has to be at least two particles thick.

[00:06:10] Speaker 03:
And your argument today rises and falls on that particular point.

[00:06:14] Speaker 02:
But yeah, that's our main argument.

[00:06:16] Speaker 02:
But we have other arguments that there is other construction that the court, the board got wrong that would also require them to, would make the... Is your position if any of the four, if we find that any of the four were not to be affirmed, it would change the outcome?

[00:06:37] Speaker 02:
And for construction yes, that's correct.

[00:06:41] Speaker 04:
Yeah, anyone it's not cumulative.

[00:06:42] Speaker 02:
It's no the two layers does affect some of them, but not all of them and they're all individually enough to say that the board got the construction wrong Would it be correct to say that you've You abandon your obviousness challenges

[00:07:08] Speaker 02:
Now, I think we did.

[00:07:11] Speaker 02:
In the briefing below, we mentioned them briefly by saying that the combination of references couldn't have... You argued those below?

[00:07:22] Speaker 02:
We briefly stated that the combination of references could not obviate the claims because the main reference did not anticipate the claim as shown by the board.

[00:07:40] Speaker 04:
If I could shift over to the claim term, phosphor particles covering said dye in direct contact there with

[00:07:48] Speaker 04:
Can you explain why it seems like your construction, proposed construction, abandoned anything to do with the conformal layer?

[00:08:00] Speaker 04:
Would you address that?

[00:08:02] Speaker 02:
No, we agree that it still needs to be conformal.

[00:08:04] Speaker 02:
Conformal just means that it covers the entire, it conforms to the whole shape of the device, not just the LED, but the

[00:08:14] Speaker 02:
where needs to be at least two particles thick and in direct contact with the LED itself, as stated in the claim.

[00:08:21] Speaker 02:
It's the plain reading of the claim.

[00:08:23] Speaker 02:
It just conforms to the rest of the device.

[00:08:25] Speaker 04:
But from my reading, it's the conformal layer that needs to be in direct contact.

[00:08:31] Speaker 04:
That's conformal layer of particles.

[00:08:33] Speaker 04:
Not that it has to be in conformal.

[00:08:36] Speaker 04:
In it, it's that your deal is the bottom layer of

[00:08:42] Speaker 04:
particulars is indirect contact with the dye.

[00:08:45] Speaker 04:
But when I read claim one, it says it's the conformal layer of the phosphoparticles conforming said dye and indirect contact.

[00:08:53] Speaker 02:
Yes, that's correct.

[00:08:56] Speaker 02:
The there's nothing in the in the claims that say that the conformal layer has to be anything other than the particles and the particles can Are also it's not atoms.

[00:09:04] Speaker 02:
It's not molecules.

[00:09:05] Speaker 02:
It's particles.

[00:09:06] Speaker 02:
They could they could Attach other things to them to make up the particle.

[00:09:11] Speaker 02:
It does not just have to be Did anyone ask for a construction of what a conformal layer meant we agreed on that or We at least agreed on some conformal

[00:09:26] Speaker 00:
Do you agree that if we uphold the board's claim constructions, we do not need to reach DSS's anticipation arguments?

[00:09:35] Speaker 02:
Yeah, we agree with that.

[00:09:36] Speaker 02:
That if the board is upheld, then the anticipation is correct.

[00:09:46] Speaker 02:
The third cause that the board got wrong was the layer of particles covering a portion of the sidewalls.

[00:09:54] Speaker 02:
The board must conclude that it's having no limitation on the portion size or the extent of coverage.

[00:10:02] Speaker 02:
But the layer says that referring back to before where there has to be two particles thick, so must the particles covering the sidewalls.

[00:10:13] Speaker 02:
and since it's a cup shaped sidewalls with slopes going upwards, the phosphor particles must also follow the slope where the power goes upwards.

[00:10:23] Speaker 04:
When I looked at the entire figure, it didn't really conform with what you... You kind of truncated it to show the deal going up like that, but the entire figure isn't... I don't think it supports... I don't think it supports explaining why I'm wrong.

[00:10:40] Speaker 02:
The figure shows that the

[00:10:43] Speaker 02:
The plasma particles extend about to the bottom layer.

[00:10:48] Speaker 02:
If you look at, for example, figure 2, even the arrow points to arrow at 35 points to the plasma particles extending about to the portion where the flat portion of the base of the device.

[00:11:07] Speaker 00:
What appendix cage are you on?

[00:11:08] Speaker 02:
I'm sorry.

[00:11:09] Speaker 02:
93.

[00:11:13] Speaker 02:
Cheers.

[00:11:20] Speaker 02:
The fourth error in claim construction was for the clause, the layer comprising a residue of a slurry of said phosphor particles in the volatile sub-solvent.

[00:11:30] Speaker 02:
Said residue comprising a portion of said slurry that remains when a portion of the volatile sub-solvent is removed.

[00:11:37] Speaker 02:
The board found that DSS agreed with Sol's narrow killing construction and applied that.

[00:11:42] Speaker 02:
However, the board appears to have been confused about what DSS did and did not agree to.

[00:11:48] Speaker 02:
The proportion of DSS patent owners cited by the board only states that DSS agreed with Sol regarding the terms conformal and substantially uniform thickness.

[00:12:00] Speaker 02:
However, on the same page, DSS specifically disagreed with Sol's narrower claim construction and provided its own, which was ignored by the board.

[00:12:10] Speaker 04:
If we start with the first one, you start with layer of phosphoparticles, and we determine that the PTAB got that one right, does it eliminate your arguments on the other ones?

[00:12:25] Speaker 02:
No.

[00:12:26] Speaker 02:
For example, this one does not rely on that at all on claim two.

[00:12:33] Speaker 04:
OK.

[00:12:35] Speaker 04:
Because my understanding is,

[00:12:37] Speaker 04:
If I'm on the right one, said layer of phosphorus particles, is that the one you're on?

[00:12:43] Speaker 04:
Sorry?

[00:12:43] Speaker 04:
If you're on said layer of phosphorus particles covering a portion, is that the one you're on, or have you skipped to the next one?

[00:12:49] Speaker 02:
I'm on claim two.

[00:12:50] Speaker 02:
That's the only phosphorus particles covering the light source said phosphorus particles covering at least a portion of said light, and then goes into describing what the layers are.

[00:13:02] Speaker 04:
prizes for the rest of the story that does not matter whether or not it's so now you didn't make an argument we have made that argument but it does not depend on that you want to save the rest of your time for work

[00:13:38] Speaker 01:
Good morning, your honors.

[00:13:39] Speaker 01:
May it please the court.

[00:13:40] Speaker 01:
My name is Itay Lahav of Rattlescue LLP, representing the police.

[00:13:47] Speaker 01:
I want to address the question of the relationship between all these arguments.

[00:13:53] Speaker 01:
There were some questions about that.

[00:13:55] Speaker 01:
I think it's extremely clear from the appellate briefing, putting aside the record below, that the way it's been argued is,

[00:14:02] Speaker 01:
In order to find at least the second and third issues, meaning that the phosphor particles have to touch the dye or that the phosphor particles have to rise above the dye on the sidewalls, you need to agree with Appellant that the layer has to be two particles thick.

[00:14:21] Speaker 01:
I think if you look at page 29 of the opening brief, it's clear that the reason why there can even be a bottom layer

[00:14:32] Speaker 01:
is because there's an assumption that the layer is at least two particles thick.

[00:14:37] Speaker 01:
Otherwise, their construction doesn't make any sense, and it specifically relies on winning the first argument.

[00:14:44] Speaker 01:
And very similarly, having the phosphor particles rise above the dye, so they say, is because you can't tell whether it has a uniform thickness or a uniform characteristic.

[00:14:59] Speaker 01:
If it's merely sitting on the bottom, it has to rise up at least two particles thick.

[00:15:04] Speaker 01:
So they've specifically tied the second and third arguments to the first.

[00:15:09] Speaker 01:
I think for all the reasons that were discussed during counsel's presentation, there's no basis for importing a limitation of at least two particle-fit layers into the claim.

[00:15:24] Speaker 00:
Could you also respond to Fulton's argument that there was a clear disavowal in County 5?

[00:15:30] Speaker 01:
Yes, in two respects.

[00:15:32] Speaker 01:
Number one, there is none.

[00:15:34] Speaker 01:
It's hard to point to an absence.

[00:15:35] Speaker 01:
Obviously, the part at the end of the specification is we see in lots of patents right at the end before the claims saying, look, we're not limited to all the embodiments here, and the figures are nearly exemplary.

[00:15:47] Speaker 01:
That's what they're pointing to.

[00:15:49] Speaker 01:
It is just the opposite of what a disavowal or a disclaimer would be.

[00:15:53] Speaker 01:
But I also want to say that the word disavowal came up for the first time on reply

[00:16:00] Speaker 01:
at the end in this court.

[00:16:02] Speaker 01:
They argued lexicography below.

[00:16:05] Speaker 01:
They argued lexicography in their opening brief.

[00:16:10] Speaker 01:
Now, they're twins in a sense, but it's actually one is saying this is something, and the other is saying this isn't something.

[00:16:18] Speaker 01:
And if you look at their opening brief,

[00:16:20] Speaker 01:
They say this statement explicitly defines the structure.

[00:16:27] Speaker 01:
Below Appendix 1085 in their patent owner response, the inventors clearly define in their layer.

[00:16:34] Speaker 01:
The board took them at their word and analyzed the question as one of lexicography.

[00:16:44] Speaker 01:
It's only in the reply brief where, all of a sudden, we see disavowal.

[00:16:49] Speaker 01:
Now, I don't think it makes an ultimate difference.

[00:16:51] Speaker 01:
I'm just saying it's been a little bit of shifting sense, as we've put in our brief.

[00:16:56] Speaker 01:
And there's a bit of a short treatise at the end of their reply brief on waiver.

[00:17:00] Speaker 01:
I don't think we need to reach any of those issues, although I'm happy to address them.

[00:17:05] Speaker 01:
Do you disagree?

[00:17:08] Speaker 04:
with opposing counsel that if we find, in your favor, with respect to layer phosphor particles, that it doesn't essentially resolve all of them.

[00:17:19] Speaker 04:
If you find, for us, with respect to layer, that if we affirm the PTAB's construction for layer phosphor particles that the PTAB gave, would it take care of all of them?

[00:17:30] Speaker 01:
it would, and let me address that last part, because I addressed the first three arguments, but didn't explain why it addressed for the fourth, although Your Honor and Judge Albright, you hit on it in your question.

[00:17:41] Speaker 01:
Because they actually didn't put forth a construction for residue, despite counsel's argument, if you look at the record, there is a reference to earlier argumentation about the claim term of the layer.

[00:17:57] Speaker 01:
And then there is the

[00:17:58] Speaker 01:
agreement to conformal and uniformity.

[00:18:01] Speaker 01:
So there's nothing left there.

[00:18:03] Speaker 01:
So they can't have it both ways.

[00:18:05] Speaker 01:
Either they waive the argument that's not there, or it depends on the layer argument, and then it all rises and falls on the first issue.

[00:18:18] Speaker 01:
There's a lot new, and I can respond to it in the reply,

[00:18:26] Speaker 01:
Frankly, we think this is a very, very straightforward case for affirmance.

[00:18:30] Speaker 01:
I'm happy to take any questions, but I'm happy to not spend any more time and see the rest of my time.

[00:18:36] Speaker 00:
I'm going to ask a question.

[00:18:37] Speaker 00:
Please.

[00:18:38] Speaker 00:
Do you agree that if we just resolve the claim construction issues, then, and I think I can ask you a similar question to what I asked opposing counsel, and we actually uphold them, as Judge Albright indicated, we wouldn't need to reach the anticipation arguments,

[00:18:55] Speaker 03:
and or obvious arguments yes I agree all right nothing else I think you're honest for your time this will restore you back to three minutes if you need that

[00:19:13] Speaker 02:
I just want to address two things.

[00:19:15] Speaker 02:
First of all, with the clean construction of the layer of phosphoparticles touching in direct contact with the dye, the only reason that we have added in the clean construction that it needs to be the bottom layer of particles touching the dye is to make it have sense throughout the dye.

[00:19:34] Speaker 02:
Continuity through the claims if you find that there does not need to be two particle thickness then all the particles above the led touching the diet would be acceptable as well secondly we did address the the residue of the of the layer in our Patent owner's opening brief at the p-tab Appendix page 1090 we specifically say that

[00:20:04] Speaker 02:
a specific kind of posture layer having characteristics taught by the 119 patent.

[00:20:10] Speaker 02:
The claims of the 119 patent are included in the 119 patent.

[00:20:13] Speaker 02:
So the characteristics are specifically taught by the 119 patent.

[00:20:18] Speaker 02:
And then below that, it says, moreover, in accordance with petitioners, alternative physical construction for the purpose of claim two and its dependence

[00:20:26] Speaker 02:
Patent owner agrees that the phosphor layers must be also conformal and have substantial uniform thickness.

[00:20:32] Speaker 02:
So we only agreed with those two terms.

[00:20:34] Speaker 02:
We did not agree with their whole plane construction.

[00:20:38] Speaker 02:
There's no further questions?

[00:20:40] Speaker 03:
No.

[00:20:40] Speaker 03:
Thank you.

[00:20:41] Speaker 03:
Thank you.

[00:20:42] Speaker 03:
We thank all the parties for their arguments this morning.

[00:20:44] Speaker 03:
This court will now go into recess.