[00:00:02] Speaker 03:
2034 Intel Corporation versus Phillips.

[00:00:51] Speaker 00:
Good morning, Your Honors.

[00:00:54] Speaker 00:
May it please the court?

[00:00:55] Speaker 00:
Christine McCullough for Appellant Indel Corporation.

[00:00:59] Speaker 00:
The board erred in these cases by failing to analyze the arguments as they were presented in the petitions.

[00:01:06] Speaker 00:
The petitions argued obviousness based on two parallel independent references.

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The references OCPS and Menezes in view of Branson Chom's teaching of timing a challenge response pair

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and using that timed challenge response to impose a distance bound.

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Specifically for Menezes, the petition argued that just by timing the existing challenge and response that the Menezes textbook already disclosed and comparing that round trip time to predetermined time selected to correspond to a distance, the challenge claims were obvious.

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for the OCPS.

[00:01:46] Speaker 03:
I got to tell you, I know you devoted a lot of your brief to this kind of APA style issue and I just find it confusing.

[00:01:54] Speaker 03:
I'm not getting it.

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Because the board seems to me did a fairly fulsome analysis.

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You put the pieces of prior art before the board and the question is whether they would have been combined in some way, shape or form.

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So I'm not seeing where the board really misread or did something wrong in a way that would compromise its findings and conclusions with respect to the prior art references.

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And you're not challenging motivation, lack of motivation, right?

[00:02:29] Speaker 03:
And you're not challenging a lot of that, right?

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So we are, Your Honor, challenging the board's finding on a lack of motivation to combine.

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That was the only finding that the board made.

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We do argue that that finding is not supported by substantial evidence.

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But if I could address Your Honor's primary question, I would say two things.

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First, it isn't enough for the board just to evaluate any way in which these references could be combined.

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This court's cases, for example, Shinfu and Provizer, specifically say,

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The board needs to analyze the specific arguments, the obviousness arguments set forth in the petition.

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Those arguments were, would it have been obvious, and the petition said it would have been obvious, to simply time the existing challenge and response in Menezes and compare that to a limit.

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That was the obviousness argument set forth in the petition.

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That argument is nowhere discussed in the board's analysis.

[00:03:25] Speaker 03:
Well, is your problem that the board started looking at Bronze Chom and obviously couldn't ignore the fact that it was a single bit that it described as being an essential element of the distance-bounding protocol?

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Is it your argument that they shouldn't have gone that far?

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That's what they shouldn't have looked at in Bronze Chom?

[00:03:47] Speaker 00:
That's exactly right, Your Honor.

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In terms of analyzing the arguments as presented in the petition, the petition never identified anything related to the low-level details of the examples, the protocols that Brands and Chom walked through.

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There was no discussion in the petition of the single-bit rapid exchange and how that might or might not be combined.

[00:04:06] Speaker 03:
OK, but you put the reference before the board.

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And one of the questions is whether there's motivation to combine.

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So just because the petitioner doesn't cite certain portions of the prior art that it has put before the board, does that mean that the board has to ignore that?

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And the board was only allowed to look at certain portions of Bronze Tom, but not the fact that it implicated only a single bit challenge?

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Certainly not, Your Honor.

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And that's not our argument.

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Um, but the board did not make a finding here, for example, that brands and chom teaches away for measuring distance in any other context.

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The board did not make a finding.

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that Brands and Chom is specifically limited would be understood by a person of skill in the art as specifically limited to the protocols that it walks through.

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The board didn't make any finding like that.

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If it had... I'm sorry, you don't think that the central reliance by the board on this essential element or whatever the phrase is that includes essential right at the beginning of Brands and Chom amounts to saying that as soon as you reach

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you can begin to read Brands and Chom, you see that it thinks for distance measurement, there had better be nothing but a single bit immediately responded to with a single bit.

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No, we do not see that finding anywhere in the board's order, Your Honor.

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What would the board said, and this is at appendix 11, for example, appendix 24, is that Brands and Chom required as an essential element of its protocols

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that single bit rapid exchange.

[00:05:45] Speaker 01:
What if we were to read the board decision which quoted this essential element feature of the single bit challenge response protocol of Brands Charm as finding that

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The problem with this proposed combination is like mixing apples and oranges, in that the brand's charm is really about a single-bit challenge response scheme, because you need that bit signal to be outputted by the prover device immediately.

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And then the primary references you rely on are these much larger multi-bit exchanges.

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That was the basis for saying that it just doesn't seem to be a natural motivation to combine these two different species of dead exchanges.

[00:06:43] Speaker 00:
Well, Your Honor, if the board had made any of those findings, we would be presenting different arguments today.

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That is not what the board found.

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What if we were to read it that way, based on the multiple quotes of the essential element statement from Rans Chom here in the board decision?

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So Your Honor, I think that there is simply no analysis that the board has set forth that would allow the court to understand with certainty that that is, in fact, what the board found.

[00:07:13] Speaker 03:
Well, on 23, the board says, the petitioner bears the burden.

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The petitioner did not adequately address the conflict between Menendez's multi-bit disclosure and Brown-Chom's essential single-bit challenge and rapid response.

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They say essentially the same thing on page 24.

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In other words, Braunstein's multiple exchanges consist of multiple single-bit exchanges, which contrast to Menenza's single-bit, multi-bit exchange.

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I mean, that's what the board relied on.

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And I guess they were looking for the petitioner.

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with some testimony, which I don't think was forthcoming, to say why that doesn't matter, or why even given this distinction, someone would have still been motivated to combine the references.

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Yes, I would say also on appendix 21, this is the only thing that the board found.

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They say this a few different times with slightly different language, but this is exactly the board's finding, that it would not have been obvious to change Brands and Choms' single-bit message to have multiple bits.

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Again, not what the petition argued, not the argument presented in the petition, because that would have led to a less accurate distance measurement and impaired security.

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But ultimately, the petitioner was seeking the board to combine the two references.

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In a particular way, Your Honor.

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to combine the references in a particular way.

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Is there a particular way to ignore the single bit reference and the essential nature of that reference in Choms, that they should have just taken the other stuff in Choms and completely excised and ignored the context in which Choms was talking?

[00:08:46] Speaker 00:
The context is certainly instructive, but it is not limited.

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Prior art is prior art for all that it teaches, Your Honor, and that was the basis on which the combination was made.

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The combination did not depend on the specifics.

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What you just said is right, that prior art is prior art for all that it teaches.

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And doesn't the teaching of Bronze Tom rest on the emphasis on the single bit?

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or as an essential element.

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And wasn't it incumbent upon you to, at least through expert testimony, say why not or why that was easily adjustable and it wouldn't matter in terms of motivating the combination?

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So I would say two things, Your Honor.

[00:09:23] Speaker 00:
First, none of this, the issues on which the board's decision rested, became an issue until oral argument, oral argument before the board.

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This was nowhere in the briefing.

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this dependence on single bet.

[00:09:37] Speaker 00:
you notice that the board went through a number of pages really confirming that these two references describe different protocols, which I don't believe is disputed, and really engaged in almost a bodily incorporation argument.

[00:09:50] Speaker 00:
That was never what the petition had argued.

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That was not the subject of any of the briefing.

[00:09:54] Speaker 01:
In our reply... I'm sorry.

[00:09:56] Speaker 01:
Before you go any further, are you now making some kind of... Well, I didn't see in your blue brief an argument, some kind of APA notice and opportunity argument.

[00:10:05] Speaker 01:
No, we're not making that argument, Your Honor, but we are saying that this is not... Okay, so then I don't know where you're going with this argument that, well, some kind of understanding of Brand's charm was sprung on you at the oral argument before... The question that I was responding to, Your Honor, was wasn't it incumbent on petitioner to satisfy our burden?

[00:10:24] Speaker 00:
The burden that we were attempting to satisfy related to the arguments that we presented in the petition.

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This was not an argument presented in the petition or even one that we were aware of until oral argument, which is why

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We do believe that we did satisfy our burden.

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And I would say two things, just to finish out that thought.

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First, the board did not make a finding that Branson Chom was limited to the details of the protocols.

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And there is substantial contrary evidence in the record that would mean that that finding, if we could read the board's decision as making it, would be completely unsupported by the evidence.

[00:10:56] Speaker 01:
Well, what about a 18, where

[00:10:59] Speaker 01:
The board is doing a compare and contrast between Brent Chom's essential element of a single bit challenge and response, and then moves on to Menzies, which is doing this multi-bit process.

[00:11:16] Speaker 01:
And then it leads with the problem with the proposed combination is the express teachings of Brandstrom require timing a rapid single bit and would have understood that Menzies challenge response has multiple bits.

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And the reason that's a problem according to the board doesn't become articulated until appendix 21 where the board says the reason this is a problem is because the combination would have led to

[00:11:42] Speaker 00:
decreased accuracy and therefore impaired security.

[00:11:46] Speaker 00:
So neither of those findings, those conclusions, are supported by the three pieces of testimony, which is all the board cites to here.

[00:11:52] Speaker 01:
Part of that is also just inaccurate distance calculation.

[00:11:59] Speaker 01:
That's part of the board's concern here.

[00:12:03] Speaker 00:
Well, so two things, Your Honor.

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First, there is no level of accuracy that's required by these claims that the patent doesn't discuss.

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accuracy or even how to calculate distance at all.

[00:12:13] Speaker 00:
So that would be reading in a requirement in the claims that is not there and the patent doesn't even address.

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But the board's findings here rested on three particular pieces of testimony.

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And it cites these three testimonies by Dr. Karp here.

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And that's the entirety of the evidence the board cites.

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And what the board cited

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doesn't actually support its conclusion that this would have led to a delay that would impair security.

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I mean, taking the second part perhaps first, there is no way that in a combination that would simply layer on an additional complementary type of security, to not layer that on doesn't hurt the existing security.

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of the reference, right?

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MENEZAS and OCPS were secure references already.

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So even if this additional distance measurement had only moderate accuracy, it still couldn't have hurt the security of the system.

[00:13:08] Speaker 00:
There is no sense in which that would be supported.

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But also these three pieces of testimony that the board cites, the first one is at appendix

[00:13:19] Speaker 00:
You can find it at $54.95.

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And what this piece of testimony is saying is, in Brands and Chom, the reason that he wants an immediate response, it's not even talking about the single multi-bit thing here, he says the reason that you want a rapid response

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is to ensure that in any round-trip time, transmission time is maximized.

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It's dominant.

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The second piece of testimony that the board cites is at 5505.

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And that is where, Dr. Karp said, a multi-bit signal.

[00:13:47] Speaker 02:
Dominant is different from maximized.

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You just want the processing time on the prover's end to be trivial compared to the actual movement time between sender and receiver so that

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the movement time will closely correlate to a distance without the complexity of adding time where no movement is going on.

[00:14:10] Speaker 02:
And therefore, distance is not being assessed.

[00:14:12] Speaker 00:
That's exactly right, Your Honor.

[00:14:13] Speaker 00:
I didn't mean to use the term maximized.

[00:14:15] Speaker 00:
You're exactly right.

[00:14:16] Speaker 00:
But the punchline of this is there is no indication here that extra transmission time is bad, is leading to inaccuracy in some way.

[00:14:25] Speaker 02:
Suppose I read the transmission there to be the entire round trip, which includes the processing time on the receiving end, which I think is a very natural reading.

[00:14:37] Speaker 02:
Right.

[00:14:37] Speaker 00:
That's exactly right.

[00:14:38] Speaker 02:
It would be bad to have lots and lots of processing time on the receiving end that makes the round trip longer for reasons having nothing to do with distance.

[00:14:47] Speaker 00:
Well, it would be perhaps less accurate to some degree.

[00:14:50] Speaker 00:
it would still be accurate to some degree as well.

[00:14:52] Speaker 00:
The board specifically found there's nothing in the record that quantifies.

[00:14:56] Speaker 02:
You proposed a claim construction of the petition, I think, of predetermined time, a time interval selected to ensure that the first and second communication devices are sufficiently near one another.

[00:15:09] Speaker 02:
Isn't there at least some concept of trying to be accurate about the distance?

[00:15:15] Speaker 00:
Well, sufficiently, Your Honor, also indicates that there's an appropriate level of error that's right in here.

[00:15:19] Speaker 00:
Nothing is ever perfectly accurate.

[00:15:21] Speaker 02:
But certainly... But the sufficiency doesn't apply to the sureness of the assessment, but rather to the length of the distance.

[00:15:29] Speaker 00:
To the nearness.

[00:15:30] Speaker 00:
That's correct, Your Honor.

[00:15:31] Speaker 00:
But there's a correlation between those two.

[00:15:33] Speaker 00:
The precision of the distance measurement will correlate to the precision of the accuracy.

[00:15:39] Speaker 00:
I noticed that I'm well into my rebuttal time, so...

[00:15:43] Speaker 00:
Let's hear from the other side and we'll restore some time.

[00:15:57] Speaker 04:
Good morning, Your Honors.

[00:15:58] Speaker 04:
May it please the Court?

[00:16:00] Speaker 04:
The Patent Trial and Appeal Board's final written decisions upholding the validity of Philip's 809 patent were correctly decided and should be affirmed.

[00:16:09] Speaker 04:
Those decisions are supported by the board's predicate fact findings, which this court reviews for substantial evidence.

[00:16:17] Speaker 04:
And those findings are amply supported by the record below.

[00:16:20] Speaker 03:
Well, what say you to their principal argument, or at least their lead argument on the APA, that the board needed to adhere to the combinations and the analysis and the petition and not go farther, and that it did go farther?

[00:16:37] Speaker 04:
We respectfully disagree, Your Honor.

[00:16:39] Speaker 04:
We believe that the final written decisions and the PTAB did faithfully apply the proposed combinations as they were set forth in the petition.

[00:16:49] Speaker 04:
We see that in multiple instances in the record and the final written decisions.

[00:16:52] Speaker 04:
The board specifically noted that the proposed combination was leaving the primary reference authentication message exchange intact in MENEZES or OCPS

[00:17:05] Speaker 04:
and recognizing that the argument in the petition was, let's add a timing mechanism to that message exchange.

[00:17:13] Speaker 04:
And that's exactly the lens that the final written decisions assess with respect to the combinations.

[00:17:20] Speaker 03:
So the idea that time and distance is correlated is pretty basic.

[00:17:25] Speaker 03:
Right.

[00:17:26] Speaker 03:
So why is it not a fair reading of Braun's charm, whatever it's called, to say that, OK, you could have made the adjustments.

[00:17:36] Speaker 03:
Well, whether it was multi-bit or single-bit, their teaching, adjustments could have been made to this correlation.

[00:17:45] Speaker 03:
And it would have been useful in combining the references and getting to where they got.

[00:17:52] Speaker 04:
Two reasons, Your Honor.

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For one,

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As this court is aware, Brands Chom references and teaches expressly that its essential element or required element for a distance-bounding protocol is the use of rapidly-exchanged single bits.

[00:18:09] Speaker 04:
And so in every instance in which Brands Chom is discussing using a distance-bounding protocol, they say you must use a rapidly-exchanged single bit.

[00:18:20] Speaker 04:
In addition, Your Honor, there's a specific reason for that, and the board discusses it,

[00:18:24] Speaker 04:
in its final written decision.

[00:18:27] Speaker 04:
So at Appendix 22, which is the final written decision, the board noted that even if the references were to be combined in the manner proposed in the petitions, it would result in impaired security.

[00:18:42] Speaker 04:
The board explained further at appendix 15 in the final written decision precisely why that is.

[00:18:48] Speaker 04:
The board noted with approval, the patent owners showing in the proceedings below, that allowing processing time in this system in a way that would skew the analysis of really what we're looking at, which is supposed to be just transmission time, would give rise to the problem of a fraud

[00:19:12] Speaker 04:
referenced by a fast-responding prover.

[00:19:15] Speaker 03:
Well, what the board says on the top of A22, and I don't know if this is it, it would have inflated the delay and reduced the accuracy of the distance measurement, which would have frustrated Ron Choms' goal.

[00:19:30] Speaker 03:
Do we need to take the goal of a prior art reference?

[00:19:33] Speaker 03:
I mean, plenty of times one of the prior art references that one is using is for a teaching in that reference, not necessarily constrained by the precise goal of that reference.

[00:19:45] Speaker 03:
So why are we stuck on what the goal was as opposed to just saying this is a teaching and they could have adjusted the correlation and it would have been applicable to something beyond a single bit?

[00:19:57] Speaker 04:
Here, Your Honor, the petition's proposed combination is that a person of ordinary skill in the art would have looked at Brand's charm and decided to use a distance-bounding protocol.

[00:20:09] Speaker 04:
The problem with the argument that the petition makes is that part and parcel of Brandstam's distance rounding protocol is the use of a rapidly exchanged single bit.

[00:20:19] Speaker 04:
And the reason is that is necessary in order to prevent this fraud that Brandstam refers to, or that's referenced in the final written decision as the fast responding prover.

[00:20:30] Speaker 04:
So in other words, if a first device is transmitting a single bit to a second device,

[00:20:37] Speaker 04:
And the second device has to immediately respond.

[00:20:41] Speaker 04:
To Judge Torano's point, you're taking care of the problem of potentially allowing processing time to overwhelm transmission time.

[00:20:50] Speaker 04:
It's a minimal system.

[00:20:52] Speaker 04:
It's single bit.

[00:20:52] Speaker 04:
It's rapidly exchanged.

[00:20:54] Speaker 04:
You know that the elapsed time is going to be representative of a distance limit.

[00:21:01] Speaker 04:
Now, in the proposed combination,

[00:21:02] Speaker 04:
which proposed timing a many-bit or multi-bit exchange in Moneezes or OCPS, the reverse is true.

[00:21:10] Speaker 04:
You now have a processing delay that necessarily results.

[00:21:14] Speaker 04:
And what can happen in that scenario is the inability to enforce a distance limit.

[00:21:19] Speaker 04:
There's a fraud that Brandstrom refers to at appendix 3212.

[00:21:23] Speaker 04:
Quote, we go on to show how distance bounding can prevent frauds in which a party having access

[00:21:33] Speaker 04:
to the secret keys convinces a verifying party that he is within a certain distance when he is not.

[00:21:39] Speaker 04:
And so that's the fast responding prover.

[00:21:42] Speaker 04:
In other words, a device that would increase its processing power so that it could process multi-bits much faster than would be anticipated in, for example, a consumer device and therefore respond very quickly.

[00:21:57] Speaker 04:
the verifier device would think that, hey, that device must be closer than it really is, not recognizing the device may be much further away and just used significant processing power to be able to respond quickly.

[00:22:13] Speaker 02:
I don't remember this from the portions of the papers that are in the joint appendix from the board proceedings.

[00:22:25] Speaker 02:
Was there material in the petition and counter material or something in the patent owner response about

[00:22:35] Speaker 02:
the kinds of things one might have to do if one was sending, I don't know, a 256 bit message and measuring the return time on that kind of message, as opposed to the single bit.

[00:22:50] Speaker 02:
I mean, I could imagine kinds of things you would do, but was that a subject, either with respect to how it would achieve

[00:22:58] Speaker 02:
whatever is implicit in the predetermined time or reasonable expectation of success.

[00:23:05] Speaker 02:
Tell me what was said in the two science papers about those kinds of modifications.

[00:23:12] Speaker 04:
Yes, Your Honor.

[00:23:13] Speaker 04:
So in the petition and the accompanying expert declaration, there was no acknowledgement, much less seeking to explain away the brand's charm essential element of a single bit and the rapid response.

[00:23:25] Speaker 04:
So there was no mention of it in the petition or the expert declaration.

[00:23:29] Speaker 04:
In patent owner's response, patent owner did point out this fundamental inconsistency conflict in the primary references and the secondary reference brand's charm.

[00:23:41] Speaker 03:
Can you point us to the appendix site where you did that in your patent owner response, what you said about the single bit?

[00:23:47] Speaker 04:
Yes, Your Honor.

[00:24:06] Speaker 02:
Around 375 and so on.

[00:24:10] Speaker 02:
That's what I'm looking at.

[00:24:12] Speaker 04:
Thank you, Your Honor.

[00:24:13] Speaker 02:
There's the many versus one, and then there's the single bit versus data rich transmission.

[00:24:19] Speaker 04:
Appendix 379, Your Honor, it starts single bit transmissions versus data rich transmission, specifically noting the brand's job teaching that each bit of the prover is to be sent out immediately after receiving a bit from the verifier V. And then if we look, Your Honor, over at

[00:24:39] Speaker 04:
Appendix 380 also in the patent owner response.

[00:24:42] Speaker 04:
This is the concept of the fast responding prover I was just mentioning.

[00:24:47] Speaker 04:
And so as patent owner showed in the response, there was no accounting in the initial petition or accompanying expert declaration as to why they apparently thought it okay to disregard the single bit.

[00:25:02] Speaker 04:
And so what patent owner showed in its patent owner response is that

[00:25:05] Speaker 04:
This fast responding prover problem arises if you were to do what the proposed combinations suggested, which is simply try to time a multi-bit message in an authentication protocol.

[00:25:18] Speaker 04:
The fast responding prover would be able to pretend to be closer than it actually was.

[00:25:23] Speaker 04:
And so this creates the security impairment that the board referenced in its final written decision, which is that you now have a system under the false belief, false sense of security,

[00:25:36] Speaker 04:
that I'm going to be able to restrict the provision of information to a device that's within a distance limit when, in fact, now that you're using multi-bit signals between the first and second devices, this second device can commit fraud be much further away than it otherwise would be just by the use of additional processing power.

[00:25:56] Speaker 04:
It's leveraging that processing time that is now attendant to the multi-bit signal.

[00:26:02] Speaker 04:
And Your Honor, Judge Toronto, you asked a question about was there quantification in the record?

[00:26:08] Speaker 04:
And just before I move to that, I will note that even after the patent owner referenced in its patent owner response, as we just looked at these arguments, they were ignored by the petitioner in its reply.

[00:26:20] Speaker 04:
So those arguments were not responded to in the petitioner's reply.

[00:26:25] Speaker 03:
And then it came up in the hearing.

[00:26:27] Speaker 04:
Yes, Your Honor.

[00:26:30] Speaker 04:
To answer your question, Judge Toronto, about

[00:26:32] Speaker 04:
Was any of this quantified in the record?

[00:26:35] Speaker 04:
The answer is no.

[00:26:37] Speaker 04:
The board specifically noted that the petitioner, who of course bears the burden of proof as the one challenging the Phillips patent, at Appendix 23, patent owner correctly points out that there was never any attempt by petitioner or Dr. Karp, which is petitioner's expert, to address the issue of inaccuracy.

[00:27:00] Speaker 04:
And so that was not something that the petitioner acknowledged, much less addressed.

[00:27:06] Speaker 04:
But I think the board analyzed the issue correctly.

[00:27:10] Speaker 04:
Again, if we look at note 15 at appendix 23, the board correctly noted, the issue before us is not whether the references fail to teach or suggest a certain accuracy, but whether one of ordinary skill in the art would have made the proposed combination.

[00:27:28] Speaker 04:
And so back to the initial point, Your Honor, there were findings of fact.

[00:27:32] Speaker 04:
The primary references necessarily require first and second devices that transmit multi-bit signals as part of an authentication.

[00:27:41] Speaker 04:
The secondary reference transmits, this is Brandt-Schaum, as part of its essential element or required element of a distance-bounding protocol.

[00:27:50] Speaker 04:
Single-bit rapidly exchanged messages in order to compute a distance limit

[00:27:55] Speaker 04:
And there was no further analysis or any analysis of that fundamental incompatibility and conflict as the board referenced it in the petition, the accompanying expert declaration, nor even in the reply after Patent Owner identified this fundamental flaw in the petitioned grounds in the Patent Owner response.

[00:28:17] Speaker 03:
Can I ask you a kind of housekeeping question?

[00:28:19] Speaker 03:
Yes, Your Honor.

[00:28:21] Speaker 03:
Just that you cite five pending district court proceedings in the District of Delaware as related cases.

[00:28:28] Speaker 03:
Do they all involve the 809 patent that's at issue here, or do they involve other patents and other issues?

[00:28:36] Speaker 04:
At least four out of the five involved the 809 patent.

[00:28:39] Speaker 04:
Yes, Your Honor.

[00:28:40] Speaker 03:
And are those stayed, or are the proceedings ongoing?

[00:28:44] Speaker 03:
Or what's the nature of what's going on?

[00:28:45] Speaker 04:
The proceedings are ongoing.

[00:28:47] Speaker 04:
There is a pending motion in one of the cases.

[00:28:49] Speaker 04:
There was a markman order last June by Judge Connolly.

[00:28:53] Speaker 04:
And there is a pending defendant's motion, which we expect to be resolved shortly.

[00:28:57] Speaker 03:
And there are no outstanding IPRs dealing with this patent?

[00:29:01] Speaker 04:
That is correct, Your Honor.

[00:29:03] Speaker 04:
How do you pronounce the name of your client?

[00:29:07] Speaker 03:
I try to ignore it.

[00:29:08] Speaker 04:
Your honor, I believe they're listening.

[00:29:10] Speaker 04:
I hope I get this right.

[00:29:11] Speaker 04:
It's Phillips coniclica.

[00:29:13] Speaker 04:
Coniclica.

[00:29:14] Speaker 04:
What?

[00:29:15] Speaker 04:
Say it again.

[00:29:15] Speaker 04:
Coniclica.

[00:29:16] Speaker 04:
Coniclica.

[00:29:18] Speaker 01:
OK.

[00:29:18] Speaker 01:
Thank you.

[00:29:19] Speaker 04:
Unless your honors have additional questions, I return my remaining time.

[00:29:36] Speaker 00:
Your Honor, I do not have... Let's restore three minutes.

[00:29:40] Speaker 00:
Thank you for your indulgence, Your Honor.

[00:29:42] Speaker 00:
I have just three or four points I would like to hit and, of course, address any questions from the court.

[00:29:48] Speaker 00:
First, there was a question as to whether in the petition or the expert report there was any attempt to account for the possibility of having longer signals or delays, something along those lines.

[00:29:58] Speaker 00:
There certainly was.

[00:29:59] Speaker 00:
This came up most specifically in the context of a dependent claim that recited that the predetermined time needed to be selected based on the communication system.

[00:30:09] Speaker 00:
And there, and it's at appendix 1737 to 1739, Dr. Karp said, a person of skill in the art would be able to take into account computation time associated with the cryptographic function being used, would be able to take into account the transmission time and the signal that's being transmitted over the particular medium.

[00:30:27] Speaker 00:
All of that is within the skill of the art in crafting the predetermined time.

[00:30:31] Speaker 02:
I saw it, maybe page 42 or something,

[00:30:37] Speaker 02:
You're brief.

[00:30:37] Speaker 02:
You acknowledge the one thing that you haven't accounted for is the receivers processing time.

[00:30:45] Speaker 00:
Not exactly the receivers.

[00:30:46] Speaker 02:
Something like you can't know that.

[00:30:49] Speaker 00:
Not the receivers processing time, Your Honor.

[00:30:53] Speaker 00:
What Dr. Karp was testifying about, and this is one of the three places that the board cited.

[00:30:58] Speaker 00:
for supporting its finding of inaccuracy, of less accuracy.

[00:31:13] Speaker 00:
That would be known.

[00:31:14] Speaker 00:
Dr. Karp testifies about that at 1739.

[00:31:17] Speaker 00:
What this delay is, is maybe there's an interrupt.

[00:31:20] Speaker 00:
Maybe there's something that the receiver is doing that causes it to wait some indeterminate amount of time before responding.

[00:31:26] Speaker 02:
I was just including in processing time, everything that goes on in the receiver from the moment of receiving till the moment of transmitting back to the sender, whatever that is.

[00:31:38] Speaker 00:
And so I would say, Your Honor, that first, not all delay is created equal.

[00:31:42] Speaker 00:
And Dr. Karp did not testify about any particular type of delay that would be inherent in the MENEZES and OCPS systems.

[00:31:51] Speaker 00:
Those systems had a cryptographic function that was known.

[00:31:53] Speaker 00:
They had a receiver and a transmitter pair that were known to each other.

[00:31:57] Speaker 00:
There was no evidence in the record that that type of unknown, unaccountable delay was present or an issue in MENEZES or OCPS.

[00:32:06] Speaker 03:
What are you asking us to do?

[00:32:07] Speaker 03:
You've got the APA argument.

[00:32:10] Speaker 03:
Does that require a remand for the board to construe the petition, as you say they should have done in the first instance?

[00:32:18] Speaker 03:
Yes, Your Honor.

[00:32:19] Speaker 03:
And what about with the second, let's assume we reject the APA argument, but what about the other arguments you made with regard to motivation and so forth?

[00:32:28] Speaker 03:
Is that a remand or a reversal?

[00:32:29] Speaker 00:
It would be a remand, Your Honor.

[00:32:31] Speaker 00:
There are still issues that need to be addressed.

[00:32:33] Speaker 00:
This is a single argument regarding motivation to combine that the board resolves the entirety of these two petitions on.

[00:32:41] Speaker 00:
And so we would ask for a remand in this case.

[00:32:43] Speaker 00:
We do believe that there is no reasonable argument that the board made a broad finding that Brands & Chom is strictly limited to the details of its protocols.

[00:32:53] Speaker 00:
Dr. Karp testified repeatedly at 1729 and 30, at 1717 and 18,

[00:32:59] Speaker 00:
more pages that we cite in the briefing that Brands and Chom had a greater teaching that a person of skill in the art would understand about the ability to time a challenge response in a cryptographic protocol and use the well-known correspondence between distance and time to impose a distance bound.

[00:33:15] Speaker 00:
The patent describes Brands and Chom as having that same type of broad teaching.

[00:33:19] Speaker 00:
That's at appendix 76.

[00:33:21] Speaker 00:
Branson Chom closes by saying, we don't know exactly how best to use this technology.

[00:33:27] Speaker 00:
This is at appendix 3225.

[00:33:29] Speaker 00:
You should experiment.

[00:33:30] Speaker 00:
You should figure it out.

[00:33:32] Speaker 00:
And there is nothing from Mr. Williams, Felix expert.

[00:33:35] Speaker 00:
that says Brands & Chom was strictly limited, that a person of skill in the art would not have taken anything else away from Brands & Chom, except for the details of its protocols.

[00:33:45] Speaker 00:
And so we do think that there is no reasonable way to find that the board made that implicit finding.

[00:33:51] Speaker 00:
This court dealt with a slightly similar issue in the Vicor case that we cited.

[00:33:56] Speaker 00:
There, there were similarly a couple arguments that the challenger, the patent challenger said had not been addressed by the board.

[00:34:03] Speaker 00:
And this court said, well, the board said that the principal teaching of the reference is something related to, I believe, some type of protocol transmission.

[00:34:16] Speaker 00:
And this court said, maybe that was a broad finding against motivation to combine, but we don't know.

[00:34:21] Speaker 00:
We don't know that without a full and reasoned explanation from the board.

[00:34:25] Speaker 00:
And so this court remanded and they said, on remand, if that is in fact the finding the board intends to make,

[00:34:31] Speaker 00:
say that, say it expressly, and give us a basis and analysis that we can evaluate on appeal for your finding.

[00:34:38] Speaker 00:
And that is exactly the case we have here, Your Honors.

[00:34:41] Speaker 00:
If it is true, and I think that that is the only way that one can harmonize the analysis that the board put forth with the arguments in the petition.

[00:34:49] Speaker 00:
Finish that sentence and then we'll move on.

[00:34:52] Speaker 00:
then we would need a remand for a full and complete evaluation of that finding.

[00:34:58] Speaker 00:
Thank you, Your Honor.

[00:34:59] Speaker 00:
Thank you.

[00:34:59] Speaker 00:
We thank both sides and the case is submitted.