[00:00:00] Speaker 04:
We are very happy to have District Court Judge Schrader sitting with us today from the Eastern District of Texas.

[00:00:08] Speaker 04:
We appreciate his service.

[00:00:10] Speaker 04:
Our first case for argument today is 23-1537, Intel Corporation versus PACT.

[00:00:18] Speaker 04:
Mr. O'Quinn, please proceed.

[00:00:20] Speaker 03:
Thank you, Chief Judge Moore.

[00:00:21] Speaker 03:
May it please the Court, John O'Quinn on behalf of Intel.

[00:00:24] Speaker 03:
The Board committed a fundamental methodological error that permeates its decision by requiring a specific teaching or suggestion in the asserted prior art grounds to treat a low battery determination as a triggering event for reducing clock speed, rather than address how the background knowledge of a skilled artisan informed the broad general teachings of BATIA as required by KSR.

[00:00:45] Speaker 03:
That alone requires remand, but this court should simply reverse because applying KSR, this is a straightforward case for obviousness for a simple limitation that distills to reducing power when a device is low on power.

[00:00:58] Speaker 04:
The board found as a factual matter that the petition was

[00:01:04] Speaker 04:
attempting to use Klein, the petitioner, to supplement a missing element.

[00:01:13] Speaker 04:
That's a question of fact we have to review for substantial evidence.

[00:01:17] Speaker 04:
Why are they wrong?

[00:01:18] Speaker 03:
So first, Chief Judge Mora, I'm not sure that's actually a factual determination as opposed to a methodological one in the sense that we... They're making a determination about what your argument is?

[00:01:33] Speaker 03:
I'm not aware of this court treating that as being a factual question.

[00:01:38] Speaker 03:
And if you look at, for example, at cases like Provost Ewer and Vicor versus Simcor, it's a violation of the APA where the board doesn't address, where the board misapprehends a party's argument.

[00:01:50] Speaker 03:
I think this case is very analogous to this court's decision in Ariosa, where this court concluded at least a remand was required, where the court recognized

[00:02:01] Speaker 03:
that the board was not necessarily actually making a determination of whether or not this was background knowledge that a skilled artisan would have had in reading and interpreting the prior art reference.

[00:02:17] Speaker 04:
And so here... But they did.

[00:02:19] Speaker 04:
They expressly took into account whether this was background knowledge, and they stated so in the opinion.

[00:02:26] Speaker 03:
So Chief Judge Moore, when you look at page... I think you're referring to page 53 of the opinion.

[00:02:32] Speaker 03:
And what the board does is it goes on to say, even if we were to consider Klein as providing such knowledge as contemplated by Ariosa, we further agree with patent owner petitioner does not persuasively explain that knowledge would have led a person to reduce clock frequency according to battery state.

[00:02:49] Speaker 03:
And the reason that they conclude that is they say that there's not evidence that one would have analogized to a low battery condition, excuse me, analogize the low battery condition to an over temperature condition.

[00:03:00] Speaker 03:
What the board is doing here is two things.

[00:03:02] Speaker 03:
First, it is limiting BACHIA to its teachings about thermal management.

[00:03:08] Speaker 03:
I mean, our simple modest argument was that BACHIA describes different types of events.

[00:03:14] Speaker 03:
It describes... Triggers.

[00:03:15] Speaker 04:
BACHIA describes triggers.

[00:03:16] Speaker 03:
Different types of triggers.

[00:03:18] Speaker 04:
But it doesn't disclose low battery mode.

[00:03:21] Speaker 03:
It does not disclose low battery mode.

[00:03:23] Speaker 03:
It discloses a genus of triggers.

[00:03:25] Speaker 03:
It just refers to environmental changes.

[00:03:28] Speaker 03:
And our argument was that a skilled artisan

[00:03:31] Speaker 03:
With the background knowledge that they... You don't think it's a fact question?

[00:03:34] Speaker 04:
You don't think it's a fact question whether one of skill in the art would think that when Badia talks about tick triggers, it's nonetheless also disclosing... Are you saying it's disclosing or just a skilled artisan would find obvious that this is a different trigger?

[00:03:51] Speaker 03:
A skilled artisan would find obvious that low battery was a trigger.

[00:03:56] Speaker 03:
Klein specifically says that low battery is a trigger.

[00:03:59] Speaker 04:
Can I just ask, why didn't you put that in the ground?

[00:04:04] Speaker 04:
I don't understand that.

[00:04:05] Speaker 03:
So Chief Judge Moore, the argument that we were making is not that there's anything to be changed about how... I think it doesn't disclose low battery as a trigger.

[00:04:14] Speaker 04:
Does not disclose it.

[00:04:15] Speaker 03:
I agree with that.

[00:04:16] Speaker 04:
Klein does.

[00:04:17] Speaker 04:
So why didn't you put it in the ground?

[00:04:20] Speaker 04:
It seems to me this is a poorly drafted petition, and you want us to save you from yourself.

[00:04:25] Speaker 03:
So Chief Judge Moore, respectfully, I think the argument that we made was that there's nothing here that changes.

[00:04:32] Speaker 03:
And we're not making an argument that changes.

[00:04:34] Speaker 04:
There's no doubt it's an element.

[00:04:35] Speaker 04:
It's an element.

[00:04:36] Speaker 04:
Isn't it an element of the claim?

[00:04:38] Speaker 04:
Detection of low battery mode trigger assist event.

[00:04:40] Speaker 03:
I agree that that has to be.

[00:04:42] Speaker 04:
There's a specific element of the claim, yes?

[00:04:44] Speaker 03:
It is an element of the claim.

[00:04:45] Speaker 04:
And you agree that neither Batia nor

[00:04:50] Speaker 04:
Nickel, disclose that element, correct?

[00:04:52] Speaker 03:
I agree that they don't disclose that.

[00:04:55] Speaker 03:
What they disclose, what Baccia discloses, is that environmental triggers, including triggers of going to battery power, for example, are triggers that a skilled artisan would know from Baccia means go to a low power mode.

[00:05:11] Speaker 03:
And the question and our argument for the board, we weren't trying to change how BOTCHA operates.

[00:05:16] Speaker 03:
Our argument wasn't that BOTCHA operates differently.

[00:05:19] Speaker 03:
It's just what a skilled artisan with the background knowledge that they have in reading BOTCHA understand that environmental changes include the most basic, and we argued this specifically at Appendix 261,

[00:05:31] Speaker 03:
include the most basic of if you have a low-power condition, that that is a reason to reduce power.

[00:05:38] Speaker 03:
And we ultimately then rely on Baccia for how you move to a low-power condition and rely on Baccia for lowering clock frequency.

[00:05:48] Speaker 04:
What about on page 54?

[00:05:49] Speaker 04:
Again, the board seems to have made fact findings on page 54.

[00:05:54] Speaker 04:
You pointed to 53, but they seem even more expressed on 54 about the differences between

[00:06:00] Speaker 04:
Batia and Klein's low power mode triggering.

[00:06:06] Speaker 04:
And they explain why they expressly don't find it obvious to do so, to use Batia to import in the low power mode trigger.

[00:06:18] Speaker 03:
So Chief Judge Moore, I think this analysis, I think you're referring to the top of 54, where the board ultimately

[00:06:28] Speaker 03:
It concludes the client is used not for describing the state of the art, but for teaching what it refers to as a missing element.

[00:06:35] Speaker 03:
And I think that's it.

[00:06:36] Speaker 04:
Well, it's not just that it refers to it.

[00:06:37] Speaker 04:
You referred to it as a missing element.

[00:06:38] Speaker 04:
I referred to it as a missing element.

[00:06:40] Speaker 04:
We all referred to it as a missing element.

[00:06:41] Speaker 04:
You admitted it is not an element present in either of the two references.

[00:06:45] Speaker 04:
So it is therefore a missing element.

[00:06:46] Speaker 03:
Right.

[00:06:47] Speaker 03:
And the question is, when a person of skill in the art, at the time, with the background knowledge that they had, reads the specific reference

[00:06:56] Speaker 03:
in Batia to environmental changes, would they understand that this includes a low battery condition?

[00:07:04] Speaker 03:
And that is exactly the issue that this court remanded over in Ariosa.

[00:07:09] Speaker 03:
In Ariosa, the court recognized that to the extent that the board had made a factual finding, this is not something a person of ordinary skill in the art would have known.

[00:07:21] Speaker 03:
that that, of course, would be the deserved deference.

[00:07:23] Speaker 03:
But to the extent that the board was instead not considering it to illuminate how the other prior art references should be read, but instead that the board was treating it as though it needs to be part of the combination, that that is wrong.

[00:07:36] Speaker 03:
And that's wrong under KSR.

[00:07:38] Speaker 03:
This court made clear in Randall v. Rea that the inquiry not only permits, but it requires consideration of common knowledge.

[00:07:46] Speaker 03:
And we're relying on Klein to illustrate

[00:07:49] Speaker 03:
not only what that common knowledge was, but that it illuminates Bacchia and that a skilled artist and reading Bacchia at the time would have understood that those environmental changes, those received events, include one that goes to low power.

[00:08:06] Speaker 03:
And this really is sort of here.

[00:08:09] Speaker 04:
You're now morphing and saying they would have understood this to include low power.

[00:08:14] Speaker 04:
So you're saying Bacchia discloses low power, not that low power

[00:08:17] Speaker 04:
would be obvious to a skilled artisan in light of what Batya discloses, but your argument is now that Batya actually discloses it?

[00:08:23] Speaker 03:
Well, my argument, Chief Judge Moore, is that a skilled artisan with Batya in hand would understand that a low battery trigger is exactly the kind of trigger

[00:08:37] Speaker 03:
that Bacha is referring to.

[00:08:39] Speaker 03:
No, it doesn't explicitly disclose it.

[00:08:41] Speaker 03:
In the same way that if I have a blender and say a blender can be used for blending bananas and strawberries and such, but it doesn't explicitly say that the blender can be used for blending raspberries, a skilled artisan who knows that raspberries can be blended, you're not changing how the blender is being used.

[00:08:58] Speaker 04:
Do you want to move on to your ACPI argument?

[00:09:00] Speaker 03:
Sure.

[00:09:01] Speaker 03:
I'd be happy to.

[00:09:02] Speaker 03:
I think the board committed another methodological error in treating this as

[00:09:07] Speaker 03:
improper rebuttal evidence.

[00:09:09] Speaker 03:
First of all, ACPI, of course, was disclosed in the petition itself.

[00:09:14] Speaker 03:
Our use of ACPI in reply or in rebuttal was exactly the way that this court sanctioned in Anacor.

[00:09:22] Speaker 03:
That is, that this court approved in Anacor, page 1380, where the court said the petitioner and IPR proceeding may introduce new evidence after the petition stage if the evidence is legitimate reply or if it is used to document the knowledge

[00:09:36] Speaker 03:
that skilled artisans would bring the bear in reading the prior art identified as producing obviousness.

[00:09:42] Speaker 03:
And that's exactly what we were using ACPI for.

[00:09:45] Speaker 03:
ACPI is referred to throughout Batia itself.

[00:09:49] Speaker 04:
And we are then using ACPI to show that a skilled artisan with Batia in hand... On page 16 of your brief, Mr. Aquinn, you expressly state that Batia incorporates by reference the ACPI.

[00:10:02] Speaker 04:
Do you understand what the term incorporate by reference is in patent context?

[00:10:06] Speaker 03:
I do, and I understand it's more commonly an anticipation concept.

[00:10:11] Speaker 04:
I'd like you to show me where, since you understand what BATIA means by incorporation by reference, and you didn't hedge on that, I'd like you to show me where BATIA incorporates the ACPI by reference.

[00:10:22] Speaker 03:
Sure.

[00:10:23] Speaker 03:
So I'd refer you, among other places, to column 13, lines

[00:10:35] Speaker 03:
Lines 29 to 40, describing when the system detects a power mode change in response to the power management module, writing to the predetermined control register.

[00:10:49] Speaker 04:
I'm sorry, column 13, line 40?

[00:10:52] Speaker 03:
I'm sorry, lines 29 through 40, that paragraph.

[00:10:55] Speaker 04:
Where does it say it incorporates it by reference?

[00:10:58] Speaker 03:
Well, Chief Judge Moore, this court has never held that it has to use the words incorporate by reference.

[00:11:02] Speaker 03:
It's just whether a skilled artisan would understand that it's.

[00:11:05] Speaker 04:
Actually, we do.

[00:11:06] Speaker 04:
Incorporate by reference is a patent term of specific meaning.

[00:11:09] Speaker 04:
Do you know what it means?

[00:11:11] Speaker 04:
To incorporate something by reference means that you expressly incorporate it by reference.

[00:11:16] Speaker 04:
Where do they do that?

[00:11:18] Speaker 04:
And then that document is subsumed within this document, its entire

[00:11:23] Speaker 04:
nature is subsumed.

[00:11:24] Speaker 04:
All of its teachings are subsumed.

[00:11:26] Speaker 04:
When something is incorporated by reference, we treat it as if it is now part of and fully encapsulated in this existing document.

[00:11:33] Speaker 03:
So an advanced display to 12F3 at 1283, this court said that to determine whether or not it's incorporated by reference, you assess what an ordinary skilled artisan would find to be incorporated.

[00:11:45] Speaker 03:
And I'm not arguing, nor is there a statement in the Baccia reference that

[00:11:52] Speaker 03:
says we incorporate all of the ACPI by reference.

[00:11:56] Speaker 03:
That is not the argument that we are making.

[00:12:00] Speaker 03:
But instead, it is as this court said in Husky Injection 838 F3 to 1248.

[00:12:08] Speaker 03:
We assess whether a skilled artisan would understand the host document to describe with sufficient particularity the material incorporated.

[00:12:16] Speaker 04:
And I think what you have here was the specific- So are you now saying that only particular material was incorporated or, like your brief, do you claim all of ACPI was incorporated by reference in BATIA?

[00:12:26] Speaker 03:
Chief Judge Moore, we certainly didn't mean to suggest that all of ACPI was- You stated it.

[00:12:32] Speaker 04:
You didn't mean to suggest it.

[00:12:33] Speaker 04:
You stated it.

[00:12:33] Speaker 04:
On page 16, BATIA also incorporates by reference the ACPI specifications.

[00:12:38] Speaker 03:
Yeah.

[00:12:40] Speaker 03:
I apologize for being too imprecise.

[00:12:45] Speaker 03:
My point was exactly consistent with this court's case law, that those aspects.

[00:12:50] Speaker 03:
What aspects?

[00:12:51] Speaker 04:
So not all of ACPI was incorporated by reference.

[00:12:55] Speaker 04:
Now is what you're saying.

[00:12:56] Speaker 04:
So which portions were incorporated by reference, and how do I know which portions?

[00:12:59] Speaker 04:
Because in your brief, you say it's all incorporated by reference.

[00:13:01] Speaker 04:
You don't delineate particular portions and say only these portions and here's why.

[00:13:05] Speaker 03:
So Chief Judge Moore, I'm pointing again specifically to column 13.

[00:13:10] Speaker 03:
lines 29 through 40 with respect to the incorporation of ACPI's interrupts.

[00:13:17] Speaker 03:
The very first interrupt that's identified by ACPI, this is an appendix 3285, is where it defines the concept of an interrupt, is a system control interrupt to inform the operating system of power status.

[00:13:35] Speaker 03:
For example, a device can trigger an interrupt to inform the operating system

[00:13:39] Speaker 03:
that the battery has reached low power.

[00:13:41] Speaker 03:
That is from ACPI.

[00:13:42] Speaker 03:
And I'm referring to the interrupts here at column 13.

[00:13:47] Speaker 03:
I think that there's a similar passage in the middle of column 12 making specific reference around line 45 to how ACPI events are used.

[00:13:58] Speaker 03:
I see I'm well into my rebuttal time.

[00:14:00] Speaker 03:
I'm happy to answer additional questions.

[00:14:03] Speaker 03:
Or I'd like to reserve the balance of my time for rebuttal.

[00:14:05] Speaker 04:
OK.

[00:14:05] Speaker 04:
You can reserve the balance of your time.

[00:14:06] Speaker 03:
Thank you, Chief Judge Moore.

[00:14:18] Speaker 04:
Mr. Weisburs?

[00:14:19] Speaker 02:
Weisburs, yes.

[00:14:20] Speaker 02:
Okay, please proceed.

[00:14:21] Speaker 02:
May it please the court, Sanford Weisburs for the appellee pact.

[00:14:25] Speaker 02:
I'd like to begin with the board's decision.

[00:14:28] Speaker 02:
Our position is that the board engaged in fact-finding on this question, unlike in Ariosa.

[00:14:34] Speaker 04:
Here's what I don't understand.

[00:14:36] Speaker 04:
They cite Klein in the petition in multiple places, one place with regard to Batia in particular.

[00:14:46] Speaker 04:
I understand that it isn't listed in the grounds, but it wasn't as though you were blindsided by their sudden reference to Klein.

[00:14:53] Speaker 04:
It is mentioned in the petition.

[00:14:56] Speaker 02:
Agreed.

[00:14:57] Speaker 02:
On the other hand, just as an aside, ACPI is not mentioned in this portion of the petition.

[00:15:01] Speaker 02:
But Klein, we acknowledge, is.

[00:15:03] Speaker 02:
And so I think what the board did was the board didn't say, we're not going to address Klein.

[00:15:07] Speaker 02:
That's what happened in REO.

[00:15:08] Speaker 02:
So the board said, we're not going to address this reference that was not part of the combination.

[00:15:12] Speaker 02:
The board did address Klein, and the board found as a finding of fact how a skilled artisan would or would not use Klein to interpret Batya.

[00:15:22] Speaker 02:
And that's where the key passage in Batya is on Appendix 2360, Column 12.

[00:15:28] Speaker 02:
That's where Batya talks about over-temperature, which is certainly the main thrust of Batya.

[00:15:34] Speaker 02:
Batya also talks about

[00:15:35] Speaker 02:
some power supply transitions, the board here considered both of those.

[00:15:40] Speaker 02:
And I'd like to point the court to a portion of the board's decision that has not been discussed so far at Appendix 50.

[00:15:46] Speaker 01:
Just to be clear, I took it that Mr. O'Quinn's point about bata is not limited to the power supply transition.

[00:15:58] Speaker 01:
That's

[00:15:59] Speaker 01:
one item in a list under a slightly, under a more general category of environmental conditions, which clearly not limited to overheating, docking, undocking, power supply transition.

[00:16:15] Speaker 01:
And I took the point of at least the reference of 261 in the petition to be that

[00:16:23] Speaker 01:
An ordinary artisan would in fact understand this somewhat general category of environmental conditions, which is not limited to overheating, to include you're now on battery, you better check how much you have.

[00:16:39] Speaker 02:
That question, we respectfully submit, is itself a question of fact.

[00:16:42] Speaker 02:
So we look at the word environmental changes in column 12 of Batia, again, appendix 2360.

[00:16:49] Speaker 02:
The board gets deference on its interpretation of the scope of prior art.

[00:16:55] Speaker 02:
The board is entitled to interpret that term in light of what follows.

[00:16:59] Speaker 02:
Yes, maybe one possible interpretation would be environmental changes, or other events, or these open-ended catch-all terms that get you anywhere you want to go.

[00:17:08] Speaker 02:
Another interpretation, and the one the board adopted, however, is that environmental changes is limited to what follows it.

[00:17:14] Speaker 02:
So there are canons of interpretation.

[00:17:17] Speaker 02:
Aeostem, generis, nasatura, asosis.

[00:17:19] Speaker 02:
That's basically what the board was doing here.

[00:17:21] Speaker 02:
It was saying, we're not going to just blow up this

[00:17:24] Speaker 02:
term into being an all-encompassing term, we're going to interpret it in light of the other terms that surround it.

[00:17:29] Speaker 02:
And what we are going to find, as a matter of fact, is that this is limited to over-temperature, power supply transitions, and there's another mention of user commands and system usage.

[00:17:40] Speaker 02:
So that's how the board interpreted this.

[00:17:43] Speaker 01:
And the board's... Even assuming that that's what the board was saying, how is that reasonable?

[00:17:50] Speaker 02:
it's reasonable because it follows a standard interpretive approach in statutory interpretation and patent interpretation, which is that sometimes

[00:17:58] Speaker 02:
terms that might otherwise seem broad are interpreted by the surrounding terms.

[00:18:03] Speaker 02:
And that is what the board did here.

[00:18:05] Speaker 01:
This is a little miscellany of various environmental conditions that could affect whether, for the purpose of lowering your consumption of power, would want to change from one high drain to low drain method of proceeding.

[00:18:28] Speaker 02:
Yes, I'm not contesting that that is a possible interpretation.

[00:18:31] Speaker 02:
I think that there are two possible interpretations here, and I think it's also important, and I'd like to refer the court to Appendix 3408, which is actually from the ACPI specification.

[00:18:41] Speaker 02:
When one brings battery power into the mix,

[00:18:44] Speaker 02:
it's yet another variable that has to be traded off.

[00:18:46] Speaker 02:
So you've got temperature, you've got power consumption, and you now have battery.

[00:18:51] Speaker 02:
So another reason why a skilled artisan and the board, reading column 12 of Batia, could decide, well, battery threshold is not within this list.

[00:18:59] Speaker 02:
It's because that introduces a whole complex set of other issues that

[00:19:04] Speaker 02:
would be difficult to solve for a skilled artisan.

[00:19:07] Speaker 02:
So you've got both the statutory interpretation canon of Nausicaa associae, as Eustim generis, and you also have this policy scientific concern about bringing an entirely new variable into play.

[00:19:19] Speaker 02:
And the board could reasonably, and as a matter of fact, resolve that question.

[00:19:22] Speaker 02:
And this court should review that for substantial evidence.

[00:19:25] Speaker 02:
Now the board also, as to power supply transitions, which I would submit is the leading other event besides over-temperature,

[00:19:33] Speaker 02:
The board specifically found at appendix 54, we agree with patent owner that a power supply transition is different from moving below a battery threshold.

[00:19:42] Speaker 02:
And I just want to pause a moment on that issue.

[00:19:45] Speaker 02:
So what is a power supply transition?

[00:19:47] Speaker 02:
It's when you unplug or plug something into the wall.

[00:19:50] Speaker 02:
So it's an abrupt shift of alternating current power from the wall versus battery.

[00:19:55] Speaker 02:
The board specifically found, as a matter of fact, that that's different from the battery being used and falling below a threshold.

[00:20:02] Speaker 02:
And that, again, is a finding of fact.

[00:20:04] Speaker 00:
What's your best evidence that changing to a power supply transition really is different and distinct from the low power mode?

[00:20:14] Speaker 02:
I think that the best evidence we have is sort of the abrupt nature of it.

[00:20:19] Speaker 02:
So when you go below a battery threshold, the battery is being used, and then it eventually runs out below a threshold.

[00:20:27] Speaker 02:
On the other hand, a power supply transition doesn't say anything about how much charge is in the battery.

[00:20:32] Speaker 02:
It just says you're going from one power source to another.

[00:20:35] Speaker 02:
And one can actually see, if we flip back a few pages in Batya to Figure 1, you see how this is diagrammed.

[00:20:42] Speaker 02:
This is important also because this is really the lone explicit mention of battery in Batia is this figure as well as a sentence describing it.

[00:20:50] Speaker 02:
So if we look at Appendix 2341, we see on the upper right corner, battery versus external source outlet.

[00:20:58] Speaker 02:
What power supply transition is about is switching from one of those elements to the other.

[00:21:04] Speaker 02:
It's not about how much charge is in one versus the other.

[00:21:06] Speaker 02:
It's about a switch from one to the other.

[00:21:08] Speaker 02:
And the board was within its rights.

[00:21:10] Speaker 01:
I'm sorry.

[00:21:11] Speaker 01:
In one of them, there's infinite supply still.

[00:21:16] Speaker 01:
The other, there's a quite finite supply.

[00:21:20] Speaker 01:
And everybody would know that.

[00:21:22] Speaker 01:
And I think the patent itself says detecting available battery power is something everybody knows how to do.

[00:21:34] Speaker 01:
That doesn't use those terms, but it says

[00:21:38] Speaker 01:
Well known in the yard.

[00:21:39] Speaker 01:
So how could this actually be meaningfully distinguished when you're looking at these environmental conditions?

[00:21:49] Speaker 01:
What's this great additional either technical or trade-off problem that would mean that an ordinary skilled artisan would not think of this?

[00:22:03] Speaker 02:
So first of all, the patent does state along the lines of what Judge Chironto you said.

[00:22:07] Speaker 02:
however it does not go the further step and say and then you would adjust clock frequency so i just want to make that clear but in terms of what this happened this real one time that's an issue that was that was just a picture of the claims it's a good claim no yes in in the specification was describing what was known in the prior art or whatever it doesn't it says yes people know how to detect battery threshold but it does not say in the prior art that people knew that we could go

[00:22:34] Speaker 02:
So just to make that clear, in terms of why is this different, I think it goes back to the recognition in ACPI, among other places, that battery life versus thermal requirements versus power consumption are complicated variables.

[00:22:49] Speaker 02:
And batia itself, just on over temperature, which is its main focus, has a bunch of mathematical formulas of how to draw that balance.

[00:22:56] Speaker 02:
So if you're adding another variable into the mix,

[00:22:59] Speaker 02:
and you're tracking, OK, battery life is going down.

[00:23:03] Speaker 02:
When are we going to send a signal and adjust clock frequency?

[00:23:07] Speaker 02:
That, we submit, and the board found, we think as a matter of fact, is different from a change of the power supply from one to the other.

[00:23:16] Speaker 02:
Now, could a reasonable fact finder have possibly found another way?

[00:23:20] Speaker 02:
Possibly.

[00:23:21] Speaker 02:
But under the substantial evidence standard, the board can choose between one of two reasonable approaches.

[00:23:29] Speaker 02:
briefly turn to ACPI.

[00:23:31] Speaker 02:
I think it's important here that the petition on claim eight, and I'd refer the court to appendix 259 to 262, that's the portion of the petition that talks about claim eight, which is the main claim that we're here before you today, does not cite ACPI.

[00:23:45] Speaker 02:
It does cite Klein, does not cite ACPI.

[00:23:48] Speaker 02:
For the first time in the reply, ACPI was cited, and they cited the battery management sections of ACPI.

[00:23:54] Speaker 02:
In our brief, we've explained that BATIA itself, to the extent it references ACPI, is talking about processor power management sections, which are separate from the battery management sections.

[00:24:06] Speaker 02:
So we do not believe that the standard for incorporation by reference has been met.

[00:24:10] Speaker 02:
But in any event, even if it has been met as to processor power management, it has not been met as to battery power management.

[00:24:16] Speaker 02:
I think it's also important to recognize that the board did not stop with its holding, that this was improper reply argument.

[00:24:22] Speaker 02:
The board went on to address it on the facts.

[00:24:25] Speaker 02:
And the board found, among other things, that the battery in the ACPI specification is a smart battery or a control method battery.

[00:24:36] Speaker 02:
It is not a generic battery.

[00:24:37] Speaker 02:
Batia, on the other hand, does not make reference to a smart battery or a control method battery, but only to a generic battery.

[00:24:43] Speaker 02:
And again, it's only in that one

[00:24:45] Speaker 02:
short reference in the figure as well as one sentence in the specification.

[00:24:49] Speaker 02:
We think that, too, supports why the board could find that battery threshold is not to be read into this overarching term, such as other events or environmental condition.

[00:25:04] Speaker 02:
Briefly on the question of whether a skilled artisan would just use common sense, we don't think that's the standard.

[00:25:11] Speaker 02:
Cases like KSR and Orendi hold that

[00:25:14] Speaker 02:
The standard is whether a skilled artisan would find that it has common sense, not whether.

[00:25:19] Speaker 01:
Can you just double check one of the, so you I think referred at the beginning of your argument about an ordinary language interpretation principle when there's a list.

[00:25:30] Speaker 01:
Sometimes everything has to be like kind.

[00:25:33] Speaker 01:
But here the last clause of the phrase is more other of it.

[00:25:40] Speaker 01:
Quite, quite general.

[00:25:43] Speaker 01:
other events, not or other, some narrower term that might, in a more limited way, characterize what is shared by the previously mentioned items.

[00:25:54] Speaker 01:
Why?

[00:25:57] Speaker 02:
First of all, I think that that, respectfully, I think that is the context in which that interpretation is often applied, where the last term in a series is a broader, is a facially broader term.

[00:26:06] Speaker 01:
I'm not making myself clear.

[00:26:09] Speaker 01:
It always,

[00:26:10] Speaker 01:
occurs where it's facially broader.

[00:26:12] Speaker 01:
The question is how much broader?

[00:26:14] Speaker 01:
Typically, the situation is where the last term is broader than the individual preceding items, but is nevertheless a kind of defined genre of some sort.

[00:26:28] Speaker 01:
And that tells you that even that term is supposed to take its definition.

[00:26:35] Speaker 01:
from what came before.

[00:26:36] Speaker 01:
But event is like thing.

[00:26:40] Speaker 01:
It's just a temporal version of thing.

[00:26:41] Speaker 01:
It's infinitely broad.

[00:26:46] Speaker 02:
Here's how I'd approach that question.

[00:26:49] Speaker 02:
Let me try it again.

[00:26:50] Speaker 02:
Again, focusing on appendix 2360, column 12, we kind of see two lists of things.

[00:26:55] Speaker 02:
One starts in about line 14.

[00:26:59] Speaker 02:
That one begins with the words other events.

[00:27:02] Speaker 02:
And then you've got another list that starts at about line 33.

[00:27:07] Speaker 02:
And that's the one that ends with other event.

[00:27:09] Speaker 02:
Now, if you compare those two lists, the first time around, it's saying what other events means.

[00:27:18] Speaker 02:
Other events is what's starting the process.

[00:27:20] Speaker 02:
And then it lists some things like over-temperature, power supply transitions.

[00:27:24] Speaker 02:
The second time around, other events comes at the end.

[00:27:27] Speaker 02:
Now I think it's interesting that in the first list, but not in the second list, they specifically call out coupling or discoupling of the external source port.

[00:27:36] Speaker 02:
That is not specifically called out in the second list.

[00:27:39] Speaker 02:
And I think that's another reason

[00:27:41] Speaker 02:
why the board could say okay well what is other than me in the second list didn't it must mean couple of this couple because they omitted that from the second list of things now again i'm not going to be only possible interpretation but i do think that other events particularly given the first list which starts with those words and then defines it by what's comes next could inform how that word is used in the second list uh... and i think that's a plausible interpretation of the board could adopt here uh...

[00:28:11] Speaker 02:
Unless the Court has further questions, I'd ask that the Board be affirmed.

[00:28:16] Speaker 04:
Thank you, Mr. Weiser.

[00:28:17] Speaker 04:
Mr. Quinn, you have a little time.

[00:28:19] Speaker 03:
Thank you, Chief Judge Moore.

[00:28:24] Speaker 03:
The Board's methodological error here is that the Board did not consider how Klein informs how a skilled artisan at the time would read Bacchia's

[00:28:35] Speaker 03:
general category of environmental changes.

[00:28:38] Speaker 03:
You can look through the board's opinion.

[00:28:40] Speaker 03:
They don't address it.

[00:28:42] Speaker 03:
And I would agree that if the board came to the conclusion that a skilled artisan would not read environmental changes as encompassing battery, that that would be a fact question that this court would review for substantial evidence.

[00:28:56] Speaker 03:
I would say substantial evidence would be lacking in that.

[00:28:58] Speaker 03:
But that's what the board didn't do.

[00:29:00] Speaker 03:
That is what makes this case just like Ariosa.

[00:29:03] Speaker 03:
And that's what, at a very bare minimum,

[00:29:05] Speaker 03:
requires a remand.

[00:29:06] Speaker 03:
And part of why the board didn't do that is because the board was focused on Bachia itself and looking for a teaching or suggestion from Bachia.

[00:29:16] Speaker 03:
It says that at Appendix 52, 54, at Appendix 55, twice, and again at Appendix 58.

[00:29:23] Speaker 03:
And I think that other event language that you were referring to, Judge Toronto, notably that exact same language appears in the 301 at Appendix 114.

[00:29:33] Speaker 04:
Let me just understand.

[00:29:35] Speaker 04:
You argued to the board that Klein's detection of low battery condition is another type of environmental change like Batia.

[00:29:47] Speaker 04:
You argued this expressly to the board, right?

[00:29:49] Speaker 03:
That's correct.

[00:29:51] Speaker 04:
And they instead, yeah, I know, I have it right open right here.

[00:29:55] Speaker 04:
You instead have, they instead sided with the petitioner and said that they didn't agree

[00:30:01] Speaker 04:
with your argument, and they agree with the patent owner's argument, that it would not be included, didn't they?

[00:30:09] Speaker 04:
Isn't that what they thought?

[00:30:10] Speaker 03:
I don't think that's a fair reading of the board's opinion.

[00:30:12] Speaker 03:
I think that what the board did is treated it as though this was a part of a combination.

[00:30:18] Speaker 03:
And if you look at the red brief at pages 22 to 24, that is exactly.

[00:30:23] Speaker 04:
You don't think they made a fact finding at all regarding your argument about whether or not

[00:30:32] Speaker 04:
Klein's detection of a low battery mode is an environmental change like those disclosed in FATIA such that a skilled artisan would have?

[00:30:42] Speaker 03:
I don't.

[00:30:42] Speaker 03:
I think that the board was looking at whether or not Klein could be combined.

[00:30:46] Speaker 03:
And that, again, tellingly, if you looked at pages 22 to 24 of the red brief, that is exactly how PAC defends the board.

[00:30:53] Speaker 03:
That was the board's error.

[00:30:55] Speaker 03:
And then the last point that I would make is that with respect to the use of ACPI in REPLY,

[00:31:01] Speaker 03:
It was used exactly as this court reversed the board for failing to consider and address in this court's decision an AMC versus Fall Line for all of these reasons.

[00:31:13] Speaker 03:
And again, starting with the board, really focusing on Bachi itself repeatedly as needing to provide the teaching or suggestion.

[00:31:21] Speaker 03:
Contrary to the Supreme Court's decision in KSR,

[00:31:24] Speaker 03:
the board's decision should be vacated and either remanded or outright reversed.

[00:31:28] Speaker 03:
I'm happy to answer any additional questions the court may have.

[00:31:30] Speaker 04:
Thank you.

[00:31:31] Speaker 04:
I thank both counsel.

[00:31:32] Speaker 04:
This case is taken under submission.