[00:00:00] Speaker 04:
Our next case for argument is 23-1223.

[00:00:04] Speaker 04:
I'm going to say Phillips, because I don't know how to say the first word, which someone will tell me later, versus Quektel Wireless.

[00:00:11] Speaker 04:
Mr. Lippman.

[00:00:13] Speaker 04:
Can you say that first word?

[00:00:15] Speaker 00:
Conan Cliche, I think.

[00:00:17] Speaker 00:
That's my best.

[00:00:18] Speaker 04:
It's your client, right?

[00:00:19] Speaker 00:
Yeah.

[00:00:20] Speaker 00:
You should know.

[00:00:21] Speaker 04:
You know how to say their name?

[00:00:23] Speaker 02:
In griefs, I'll use Phillips.

[00:00:26] Speaker 00:
Yeah, we always say Phillips.

[00:00:27] Speaker 04:
I know, but I'm supposed to say the whole name, and I don't know why.

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

[00:00:31] Speaker 04:
Please proceed.

[00:00:32] Speaker 00:
Good morning, Your Honors.

[00:00:33] Speaker 00:
May it please the court?

[00:00:33] Speaker 00:
Oh, wait.

[00:00:34] Speaker 04:
Before I do, I forgot yesterday and today.

[00:00:36] Speaker 04:
We are so grateful and lucky to have Judge Mazant from the Eastern District of Texas joining us today.

[00:00:42] Speaker 04:
It's a real treat for us, and we appreciate his willingness to serve with us.

[00:00:47] Speaker 04:
Thank you, Chief.

[00:00:47] Speaker 04:
Thank you.

[00:00:48] Speaker 04:
Sorry.

[00:00:48] Speaker 04:
Please proceed.

[00:00:49] Speaker 00:
Yeah.

[00:00:49] Speaker 00:
Good morning, Your Honors.

[00:00:50] Speaker 00:
Good morning, Judge Mazant.

[00:00:51] Speaker 00:
Thank you for being here.

[00:00:52] Speaker 00:
Kevin Lippman on behalf of Philips, or Conan Cliche Philips.

[00:00:57] Speaker 00:
We are here today because the board found in the underlying enterprise review that certain claims of the 814 patent are invalid based on obviousness, based on a combination of this Choi reference, specifically the background section of that reference, and the Gallimudi reference.

[00:01:14] Speaker 04:
OK, so for me, I have to stop by asking a procedural question.

[00:01:19] Speaker 04:
There are three implementations that the board looked to.

[00:01:24] Speaker 04:
If I agree that there was substantial evidence for any one of those, do you lose?

[00:01:29] Speaker 00:
I think that's correct.

[00:01:31] Speaker 04:
You have to get past all three.

[00:01:33] Speaker 00:
All three, yes.

[00:01:35] Speaker 04:
All right, so don't bother with the first one because I actually agree with you.

[00:01:40] Speaker 04:
I mean, my colleagues may not, but that means you've got to get by two and three.

[00:01:43] Speaker 04:
So don't start with your easy ones.

[00:01:45] Speaker 04:
Start with your hard way.

[00:01:46] Speaker 00:
All right, go ahead.

[00:01:46] Speaker 00:
So yeah, I'll turn it into implementation number two.

[00:01:49] Speaker 00:
So I think the easiest way to understand is if you have the briefs in front of you, there's a chart on page 48 of the briefs, I think.

[00:01:55] Speaker 00:
And that's taken from Mr. Lanning's testimony.

[00:01:58] Speaker 00:
But you can see what in that second page, 48 of the opening brief.

[00:02:16] Speaker 00:
So if you see that chart, it provides kind of an easy way to analyze the situation.

[00:02:23] Speaker 00:
So under this implementation, you have... You think this is an easy way to understand?

[00:02:29] Speaker 00:
Yeah, well, yeah, easy way.

[00:02:30] Speaker 00:
I mean, this stuff is complicated, let's be fair about that.

[00:02:35] Speaker 00:
But the chart sort of at least dumbs it down a certain amount, let's say, put it that way.

[00:02:40] Speaker 00:
So you can see on the left side, there's the control channels, right?

[00:02:43] Speaker 00:
And so you can see that there's

[00:02:44] Speaker 00:
there's gonna be four control channels that are used in any one given TTI.

[00:02:49] Speaker 00:
And a key thing for both this implementation and the second one is this underlying admitted situation where within a given TTI, within a time interval, once a channel is used, you can't use that same channel again.

[00:03:04] Speaker 00:
And so that's the key thing I think to understand for both the second implementation and the third one.

[00:03:09] Speaker 00:
And what the chart helps you see is that

[00:03:11] Speaker 00:
is that there's basically these eight choices.

[00:03:13] Speaker 00:
So you can use, if you use channel one, for example, on the top of the chart, then you're gonna have those two bits in the second column.

[00:03:24] Speaker 00:
Those are just another way of saying one.

[00:03:26] Speaker 00:
So zero zero is just a binary way of saying one.

[00:03:30] Speaker 00:
Zero one is a binary way of saying two.

[00:03:32] Speaker 00:
So that's just the binary way of basically saying this is the information that's conveyed by using that channel.

[00:03:38] Speaker 00:
And then that bit three value, that's the dynamic one.

[00:03:40] Speaker 00:
And so each time you use the channel, that dynamic bit is gonna either be zero or one.

[00:03:45] Speaker 00:
That's what binary means, right?

[00:03:47] Speaker 00:
And so basically it breaks it down into these eight scenarios.

[00:03:51] Speaker 00:
So once you use a channel to go to one UE, that's the user equipment.

[00:03:55] Speaker 00:
So let's say you have three UE's.

[00:03:57] Speaker 00:
If you're sending channel, in the brief, for example, you use channel two on page 50, right?

[00:04:03] Speaker 00:
So if you use channel two, it's gonna go

[00:04:06] Speaker 00:
you know, showing of the chart.

[00:04:07] Speaker 00:
Use channel two to send it to that UE.

[00:04:09] Speaker 04:
You are so deep in the weeds right now.

[00:04:12] Speaker 04:
How about you tell us, like step back for a second, and tell us what you think this shows without going through it.

[00:04:19] Speaker 04:
Just start from a why this implementation satisfies which particular concern.

[00:04:27] Speaker 00:
Start bigger picture, please.

[00:04:28] Speaker 00:
Yeah, bigger picture is that you can't assign

[00:04:32] Speaker 00:
all the codes to each UE within a given TTI.

[00:04:36] Speaker 00:
So the TTI is a time frame.

[00:04:38] Speaker 00:
So within that one time frame, because you can only use a channel once within a time frame, once you use that channel up on one UE, you can't do it to the next.

[00:04:46] Speaker 00:
So basically you're restricted once you say the number of codes that are going to be used for one UE, the next UE can't use the same number of codes.

[00:04:56] Speaker 00:
and it can't use the other number two, so here it can't use five, sorry, it can't use three codes and it can't use four codes on the second UE.

[00:05:03] Speaker 00:
And so the most, the basic example that we give is let's say you have three UE's, so there's three cell phones out there, each of, you know, your honors has a cell phone, right, and then the base station's trying to send, and information's trying to send codes to it.

[00:05:18] Speaker 00:
And let's say you're doing the same thing, so you have the same data channel quality and the same data requirements.

[00:05:23] Speaker 00:
You would think that the natural way to do that would be to send five codes to each.

[00:05:26] Speaker 00:
But once I send five codes using channel one to you, I can't again, in that same TTI, send five codes.

[00:05:33] Speaker 02:
But just to move back even further from the details, my understanding of this is that this turned out to be a battle of the experts.

[00:05:43] Speaker 02:
And it came down to an issue we often see on motivation.

[00:05:47] Speaker 02:
Your expert saying that this would have been problematic, this would have discouraged one skilled in the art from making the combination.

[00:05:55] Speaker 02:
And the other expert said, yeah, but there were advantages.

[00:05:59] Speaker 02:
advantages for power and transmission resource savings.

[00:06:04] Speaker 02:
And those are equally important.

[00:06:07] Speaker 02:
So how did the board err on a substantial evidence review?

[00:06:11] Speaker 02:
By at least crediting.

[00:06:13] Speaker 02:
He didn't discredit your expert in terms of what he was saying, but weighing the benefits versus the burdens and coming out and saying, I'm crediting this expert that, yes, there would have been these benefits.

[00:06:26] Speaker 02:
And that would have been sufficient to establish a motivation.

[00:06:29] Speaker 02:
One, why is that wrong?

[00:06:32] Speaker 02:
And two, why is it wrong as a matter of law that the board was within its rights to do this balancing and say there was sufficient motivation in any event?

[00:06:41] Speaker 00:
Yes, and so the first part I think I would say is if the board's not understanding the facts quite correctly and understanding what the drawbacks are, then it can't correctly weigh the experts.

[00:06:51] Speaker 00:
So without the underlying

[00:06:53] Speaker 02:
Well, I disagree with what I laid out in simplistic and probably non-correct technical thing that your expert said these would have been the burdens if you had done this and the other side said yes, but they were good.

[00:07:07] Speaker 02:
savings, power savings, and other benefits to that.

[00:07:11] Speaker 00:
So I think that's where you get to the second part, is if you assume we're correct and that the board is not right in terms of these factual issues with the drawbacks.

[00:07:20] Speaker 00:
I think ultimately what you're left with is- No, but we can't assume you're correct.

[00:07:22] Speaker 04:
Because Dr. Wells said that there are measures that could be taken to mitigate the lockout.

[00:07:27] Speaker 04:
Locking out was one of your big problems.

[00:07:29] Speaker 04:
And so the board could have credited that too.

[00:07:30] Speaker 04:
So we don't start from the premise that we assume you're correct.

[00:07:35] Speaker 04:
We have to start from, is there substantial evidence in this record to support what the board found?

[00:07:39] Speaker 04:
And what Judge Prost is pointing out is that Dr. Wells testified that what you're saying isn't as bad as you're saying it is because there are ways to mitigate it.

[00:07:49] Speaker 04:
there are other benefits other than the flexibility that would be achieved.

[00:07:53] Speaker 04:
And that's kind of really hard to get around on a substantial evidence burden.

[00:07:57] Speaker 04:
So we can't start by assuming everything you said is correct, because their expert pointed out that he believed, at least, or he opined, that there are ways to mitigate the concerns you were talking about.

[00:08:08] Speaker 04:
And that's why a skilled artisan would have been willing to make the combination and go with the trade-offs.

[00:08:13] Speaker 00:
Right, I think that's correct for implementation number two in particular.

[00:08:17] Speaker 00:
Implementation one, I think there's a whole issue with the channels, but so implementation two, I think you're right.

[00:08:21] Speaker 00:
I already told you about implementation one.

[00:08:22] Speaker 00:
Yeah, yeah, okay.

[00:08:23] Speaker 00:
But so yeah, to be fair, I think what you're left with is at the end is you have their experts saying, okay, there is the drawback in terms of lack of flexibility, but you get these power savings, right?

[00:08:36] Speaker 00:
He basically says in different ways you have power savings.

[00:08:38] Speaker 00:
What he never identifies is what are those power savings, right?

[00:08:41] Speaker 00:
So if you don't know how much power you save, how can you actually do any weighing?

[00:08:44] Speaker 04:
Oh my god, that's substantial evidence.

[00:08:46] Speaker 04:
This is a substantial evidence review.

[00:08:47] Speaker 04:
What you're talking about is, oh my gosh, we don't know how much the power savings is.

[00:08:50] Speaker 04:
We don't get to think about that on appeal.

[00:08:53] Speaker 04:
That's not where we live.

[00:08:55] Speaker 00:
No, I disagree respectfully, Your Honor.

[00:08:57] Speaker 00:
I think the case law says if it's all based on conclusively expert testimony, that is not substantial evidence.

[00:09:04] Speaker 00:
And I would suggest that that is

[00:09:06] Speaker 00:
conclusively, just to say that the power of benefits outweighed the drawback.

[00:09:10] Speaker 00:
They said more than that.

[00:09:13] Speaker 02:
They didn't just say that.

[00:09:15] Speaker 02:
They analyzed it.

[00:09:16] Speaker 02:
And there were several pages.

[00:09:17] Speaker 02:
I think I'm on the right page, which is 30, 31, right?

[00:09:21] Speaker 02:
I mean, they discussed the testimony.

[00:09:23] Speaker 02:
They discussed it.

[00:09:23] Speaker 02:
I mean, maybe they're wrong.

[00:09:26] Speaker 02:
But based on the substantial evidence review, it wasn't just one sentence bottom line.

[00:09:30] Speaker 02:
We believe him and not him.

[00:09:32] Speaker 02:
And so we're moving on here.

[00:09:35] Speaker 00:
Well, I think it looks like that maybe when you read the opinions at a high level.

[00:09:41] Speaker 00:
But if you understand both the drawbacks and that they weren't looked at correctly, and then you understand what the way it eventually comes down to, I think the gist of it is that they're just saying that, well, we think that he said the power savings were enough compared to the drawbacks of the lack of flexibility in the codes.

[00:10:01] Speaker 00:
that's where it comes down to, and I think at the end of the day, that's conclusory, and you can say it in a more detailed way, but I think that's essentially all that's being said there.

[00:10:08] Speaker 00:
Like Dr. Wells says, well, the power savings would do four different things for you, but ultimately he's only saying a person with an ordinary skill would be motivated by power savings to do those things, and here's the underlying reasons why you do it.

[00:10:21] Speaker 00:
So I think there's some clever wordsmithing in terms of how they say it, but I think at the end of the day, it's really just a conclusory opinion that says,

[00:10:29] Speaker 00:
Yeah, you get these power savings, I can't identify what they are, but maybe enough to do anything to change UMTS entirely, you know, to... Did he say, I can't identify what they are?

[00:10:38] Speaker 00:
No, he didn't say, I can't, but he just doesn't.

[00:10:41] Speaker 04:
Okay, and did your expert or did you all point out that the power savings he's claiming are either non-existent or minuscule compared to...

[00:10:51] Speaker 00:
I think that's right.

[00:10:55] Speaker 04:
Where is your evidence that contradicts his testimony, which I think his testimony is on 2193.

[00:11:01] Speaker 04:
So where is your evidence that contradicted that, or that questioned and suggested it was conclusory and should be rejected for that reason?

[00:11:09] Speaker 04:
And not your argument, but your testimony.

[00:11:13] Speaker 00:
Yeah, I think it is 2563, 2564, for example.

[00:11:21] Speaker 04:
Is this Lanning?

[00:11:23] Speaker 00:
Lanning, yes, with the appendix pages I'm giving you.

[00:11:30] Speaker 02:
Paragraph 156.

[00:11:32] Speaker 00:
Yeah, paragraph 156.

[00:11:34] Speaker 04:
It doesn't seem to say anything about the power.

[00:11:45] Speaker 00:
Yeah, I think it's into 157, I guess I would say.

[00:11:48] Speaker 00:
So for example, 157 says a person learning skill in the art would not combine the alluding choices as suggested in the second example because doing so would create unnecessary and serious restrictions on the system capacity.

[00:12:00] Speaker 04:
What that does not say is at all what you just said before, which is that Dr. Wells' explanation of the quantity of power savings was too conclusory and should be rejected.

[00:12:15] Speaker 04:
You haven't even shed, it doesn't seem to me from the record, reason to question that his assertion of power savings is

[00:12:25] Speaker 04:
legitimate, i.e.

[00:12:26] Speaker 04:
something an ordinarily skilled artisan would have taken into account.

[00:12:29] Speaker 04:
To call that into question for substantial evidence purposes, you'd have to have something that points to either it's minuscule and therefore a skilled artisan wouldn't have looked to it.

[00:12:39] Speaker 04:
And then you can say, look, his testimony is conclusory.

[00:12:42] Speaker 04:
His testimony doesn't quantify it.

[00:12:44] Speaker 04:
And when we quantify it, it's so small as to be negligible.

[00:12:48] Speaker 04:
You have to have something.

[00:12:49] Speaker 04:
You can't just say,

[00:12:51] Speaker 04:
I mean, if he says there's a power savings, and he's an expert, and your expert doesn't contradict that, then under substantial evidence, I don't think we have a choice but to allow the board to make that call.

[00:13:01] Speaker 00:
Yeah, I think the other place is on paragraph 142 and appendix 2557 as well.

[00:13:06] Speaker 00:
So for example, in that paragraph, this refers to the other one.

[00:13:13] Speaker 00:
It says, monitoring the four control channels puts an unnecessary burden on the UAE with very little or no benefit.

[00:13:20] Speaker 00:
And so he's essentially saying there that the benefit, which is supposedly the power savings, is small, right?

[00:13:27] Speaker 04:
With all due respect, that's more conclusory, because it doesn't even address the specific benefits that Dr. Wells is attributing.

[00:13:34] Speaker 04:
What you just pointed to is more conclusory than the thing you're alleging is conclusory.

[00:13:39] Speaker 00:
But we don't have the burden of proof, right?

[00:13:41] Speaker 00:
I mean, they need to satisfy the burden of proof, right?

[00:13:46] Speaker 00:
And they can't do it.

[00:13:46] Speaker 04:
Just to be clear, we're on appeal, and you're the appellant.

[00:13:49] Speaker 04:
So you have to establish the error below.

[00:13:53] Speaker 04:
At this stage in the process, you have to prove that the board didn't have substantial evidence for what it did, not the other way around.

[00:14:00] Speaker 00:
And I think what I'm saying is that they didn't have substantial evidence because they rely on conclusory testimony.

[00:14:04] Speaker 00:
I don't think you can get around relying on conclusory testimony by saying what the other expert did as well.

[00:14:09] Speaker 00:
But it's you saying it's conclusory.

[00:14:10] Speaker 04:
You're an attorney.

[00:14:11] Speaker 04:
You don't have evidence to back that up.

[00:14:14] Speaker 04:
At least you haven't pointed us to any.

[00:14:16] Speaker 00:
That it's conclusory.

[00:14:18] Speaker 04:
Yes, he articulated a particular benefit, power savings.

[00:14:22] Speaker 04:
You're standing here complaining he didn't quantify the amount of power savings.

[00:14:26] Speaker 04:
But you don't actually have any evidence that says there's reasons a skilled artisan would want it quantified.

[00:14:32] Speaker 04:
He says there's power savings.

[00:14:33] Speaker 04:
That's a legitimate benefit.

[00:14:36] Speaker 04:
You didn't even question it anywhere.

[00:14:38] Speaker 00:
I think in paragraph 142, he did question it, but I mean, I know you're saying that it's conclusory, but I respectfully disagree.

[00:14:46] Speaker 00:
He doesn't even reference it.

[00:14:47] Speaker 04:
He doesn't even use the words power savings.

[00:14:49] Speaker 04:
He doesn't even use the word power in any of those paragraphs.

[00:14:51] Speaker 00:
Right.

[00:14:51] Speaker 00:
Well, because he's talking about the overall burden on the system, so maybe he should have articulated that in a better way, but with his word choice, I guess.

[00:15:00] Speaker 00:
If you're placing an overall burden on the system, I think it's got to involve power issues.

[00:15:08] Speaker 00:
I think that was sort of implicit in what he's saying, but perhaps he could have used those extra words.

[00:15:11] Speaker 04:
You clearly know your tech really well, so I don't want you to think otherwise.

[00:15:16] Speaker 04:
This is the substantial evidence review standard.

[00:15:18] Speaker 04:
We don't make decisions in the first instance.

[00:15:20] Speaker 04:
And we don't know the tech as well as you do.

[00:15:23] Speaker 00:
I do appreciate that.

[00:15:25] Speaker 00:
But I do think it comes down to the case law that says that substantial evidence is not satisfied by conclusory testimony.

[00:15:31] Speaker 00:
I think that's ultimately what they relied on.

[00:15:34] Speaker 04:
OK.

[00:15:34] Speaker 04:
Let's save you a little bit of time for rebuttal.

[00:15:36] Speaker 04:
Mr. Courtney?

[00:15:50] Speaker 03:
Thank you, Your Honor.

[00:15:51] Speaker 03:
Rob Courtney from Fish for Quectel.

[00:15:54] Speaker 01:
Counsel, if we find that the first implementation or version isn't supported by central evidence, how does that impact the case?

[00:16:01] Speaker 03:
I don't think the record would support that, but obviously that's the course of the termination.

[00:16:06] Speaker 03:
We would then proceed, as Chief Judge Moore suggested to my colleague, to the second and third variants.

[00:16:11] Speaker 01:
What about some of the dependent claims?

[00:16:15] Speaker 01:
That the PTAD made findings for claims 5, 7, 10, and 31 that deal with the issue of you need more than four channels.

[00:16:25] Speaker 01:
So what do we do with that?

[00:16:28] Speaker 03:
So I think at this stage, there is no dispute that the two references, Choi and Gallamudi, have all the necessary technology.

[00:16:37] Speaker 03:
Everything's there.

[00:16:39] Speaker 03:
We're at the reason to combine stage.

[00:16:41] Speaker 03:
So you are correct.

[00:16:42] Speaker 03:
For that first combination, there are dependent claims that are under discussion.

[00:16:46] Speaker 03:
I think were the court to say there was not sufficient cover there,

[00:16:55] Speaker 03:
Because the hypothetical combination would not practice, I think there would need to be either reversal or remand, depending on the nature of the court's objection to that first hypothetical.

[00:17:07] Speaker 01:
If it's based on any more than four channels.

[00:17:10] Speaker 01:
That's what the PTAB found for those dependent claims.

[00:17:13] Speaker 03:
Right.

[00:17:14] Speaker 03:
So I would mention for the court's benefit, Golan-Moody

[00:17:18] Speaker 03:
expressly avoids ever saying UMTS is limited to four, right?

[00:17:24] Speaker 03:
It directs the reader towards... Can I just follow up?

[00:17:27] Speaker 04:
I just want to make sure, Mr. Courtney, that I understand.

[00:17:30] Speaker 04:
I asked him, what if I find implementation two and or three, there's substantial evidence, and I got the impression that you win and the case is over.

[00:17:42] Speaker 04:
I appreciate your candor.

[00:17:44] Speaker 04:
You always have to be candid.

[00:17:45] Speaker 04:
You get major points for candor.

[00:17:47] Speaker 04:
Are you now telling me that if I have a problem with implementation one, I have to vacate at least as to some claims?

[00:17:54] Speaker 03:
So I think I am telling you that because- I just want to make sure.

[00:17:57] Speaker 03:
As the court knows- I appreciate the candor.

[00:17:58] Speaker 04:
You've got to be candid.

[00:17:59] Speaker 04:
That's a good thing.

[00:18:00] Speaker 03:
Right.

[00:18:00] Speaker 03:
As the court knows, obviousness always turns on this hypothetical combination of elements.

[00:18:04] Speaker 03:
We posit a hypothetical combination and we analyze it.

[00:18:07] Speaker 03:
And if the court finds that the first posited combination

[00:18:13] Speaker 03:
can't survive, then I think there are dependent claim problems because the board is relying on that hypothetical combination.

[00:18:19] Speaker 04:
And there was nothing in this brief that said everything stood or fell together or anything?

[00:18:23] Speaker 03:
Well, I mean, we are the FLE.

[00:18:26] Speaker 03:
So I would say that we are the FLE.

[00:18:31] Speaker 03:
So the parties have treated these as rising and falling together.

[00:18:34] Speaker 03:
I do think, however, that that first combination

[00:18:41] Speaker 03:
there is not the defect that the chief judge, with all respect, expressed skepticism about that first combination.

[00:18:47] Speaker 03:
So I would like to talk about that.

[00:18:49] Speaker 04:
Yep.

[00:18:49] Speaker 04:
I think that would be really useful.

[00:18:50] Speaker 03:
So the issue is, I think as the chief judge and the other questioning from my colleague illuminated, there's not a lot of dispute that were artisans in 2006 to make the first combination.

[00:19:06] Speaker 03:
Some efficiency could be saved in the- But we're in Troy.

[00:19:08] Speaker 01:
Point is to we're in Troy that says that

[00:19:11] Speaker 01:
you have more than four channels to get a three-bit reduction.

[00:19:16] Speaker 03:
Troy does not say that.

[00:19:17] Speaker 03:
Gollum Moody says that.

[00:19:19] Speaker 03:
So point me where then, Gollum Moody.

[00:19:21] Speaker 03:
Yeah, that is in, I'll direct you first to figure one, which is on appendix 1746.

[00:19:30] Speaker 03:
And Gollum Moody in that says, you know, we can have one channel, two channels, all the way up to M, right?

[00:19:36] Speaker 03:
And I think it is... Wait, slow down.

[00:19:38] Speaker 04:
What page?

[00:19:39] Speaker 04:
18... 1746.

[00:19:40] Speaker 04:
Oh, 1746.

[00:19:41] Speaker 04:
Okay.

[00:19:42] Speaker 04:
1746 and figure two.

[00:19:54] Speaker 03:
Figure one.

[00:19:55] Speaker 04:
Oh, figure one.

[00:19:57] Speaker 04:
Okay.

[00:19:58] Speaker 03:
And 1746 is in the center.

[00:20:00] Speaker 03:
They're saying, I mean, how many channels are we going to monitor?

[00:20:02] Speaker 03:
We've got one, two, all the way up to M.

[00:20:05] Speaker 03:
And I think that is more than sufficient, under a sufficiency of the evidence standard, to establish that a skilled reader could read that and say, okay, Gollamoodie is not expressing a limitation.

[00:20:16] Speaker 03:
He's in fact, when I read the rest of Gollamoodie's teachings, proposing that the more channels you monitor, the more bits you can save.

[00:20:23] Speaker 01:
Is that all you have, or some other site reference?

[00:20:26] Speaker 03:
That is not all I have, and I'm glad you asked.

[00:20:29] Speaker 03:
Dr. Wells.

[00:20:29] Speaker 01:
Dr. Wells discussed this in the specs or anything, anything here in the patent other than Dr. Wells.

[00:20:39] Speaker 03:
Dr. Wells' testimony is evidence that is relevant to obviousness.

[00:20:41] Speaker 01:
I understand, but I'm trying to see in the written, in the patents, is there something that illustrates more than four.

[00:20:51] Speaker 03:
Within this patent, I think we have these references to log2m, not log24.

[00:20:57] Speaker 03:
That's in 1748, column three, line five and going on.

[00:21:02] Speaker 03:
He says you can configure for m equals four, but then he's illustrating your... I'm sorry, you're just going too fast for me.

[00:21:10] Speaker 04:
Column three, line five, that says similarly if each user is configured to monitor m equal four HS channel.

[00:21:18] Speaker 03:
Yep.

[00:21:18] Speaker 03:
So he's saying four is an option.

[00:21:21] Speaker 04:
But it says M-4.

[00:21:23] Speaker 04:
Doesn't that mean a number up to 4?

[00:21:25] Speaker 04:
Isn't that like, if I say 1-4, that means somewhere between the number 1 and the number 4?

[00:21:32] Speaker 03:
So that's not how Dr. Wells read it.

[00:21:33] Speaker 03:
That's not how the board read it.

[00:21:34] Speaker 03:
I think what this is saying is we're illustrating one example is 4.

[00:21:39] Speaker 03:
But to find out how many bits you're going to save, you're going to take the log 2 of M. He doesn't just say, oh, it's 4, so you save two bits.

[00:21:46] Speaker 03:
or you can't save more than two bits.

[00:21:48] Speaker 03:
There's no statement of restriction like that in Gollamoodie.

[00:21:50] Speaker 03:
Gollamoodie is saying, take however many channels you're gonna monitor and take the second logarithm of it.

[00:21:57] Speaker 03:
And that's teaching you how many bits you're gonna save.

[00:22:01] Speaker 03:
I'd also direct Judge Mazan, thank you, to figure two on page 1746.

[00:22:11] Speaker 04:
And figure two, we see that- What about figure one?

[00:22:13] Speaker 04:
I mean, I thought figure one.

[00:22:15] Speaker 04:
What about column one,

[00:22:16] Speaker 04:
line 65 of Gala Mundi, which says, each user is capable of monitoring up to M-4 channels.

[00:22:31] Speaker 04:
What about that?

[00:22:32] Speaker 04:
Isn't that up to 4?

[00:22:33] Speaker 04:
I mean, what else do the words up to mean in that situation?

[00:22:38] Speaker 03:
So I'm actually, Chief Dishmore, I'm really glad this came up, because I think it's an error that runs throughout the briefing from Phillips.

[00:22:45] Speaker 03:
In this background section, Golamudi is describing the current technology as of his authorship, which is 2006.

[00:22:53] Speaker 04:
Are you going to now tell me that that means that up, basically the prior art, the background section, could only do up to four channels?

[00:23:01] Speaker 03:
It says up to four in that text, which is describing the background.

[00:23:07] Speaker 03:
Now, technology advances, and the obviousness inquiry

[00:23:12] Speaker 03:
looks at, okay, let's say we were designing the next generation.

[00:23:15] Speaker 03:
We're going to 4G, 5G, 6G.

[00:23:19] Speaker 03:
Could it be more than four?

[00:23:21] Speaker 03:
And figure two, I mean we've discussed figure one, we've discussed column three.

[00:23:25] Speaker 03:
Figure two shows six.

[00:23:28] Speaker 03:
Page 1746.

[00:23:31] Speaker 03:
We have the HS SCH channel numbers on the top, element 40, and it's illustrating six being monitored.

[00:23:40] Speaker 03:
So Gala Moody is literally proposing, okay, four is common, we all like four, we're experienced with four, maybe six, maybe more.

[00:23:53] Speaker 03:
There's efficiencies to be gained if we do that.

[00:23:54] Speaker 03:
Are there trade-offs?

[00:23:55] Speaker 03:
Absolutely.

[00:23:56] Speaker 03:
Dr. Wells, Chief Judge Moore, Judge Post, the questioning established, Dr. Wells did not hide from the fact that there are some trade-offs, I do think the argument from my counterparts maybe overstates those trade-offs.

[00:24:09] Speaker 03:
And we would submit, and the board correctly found, that those trade-offs are not of a kind that would dissuade a person of skill from pursuing Gala Moody to modify Choi.

[00:24:22] Speaker 03:
In fact, I mean, Gala Moody is literally proposing to the field, maybe UMTS could be tweaked.

[00:24:29] Speaker 03:
Maybe there's something here that we should consider.

[00:24:33] Speaker 03:
And before I leave Gala Moody, I do want to talk about Dr. Wells' testimony.

[00:24:40] Speaker 03:
Dr. Wells, as I think Judge Prost said, he's an expert.

[00:24:43] Speaker 03:
He's coming in.

[00:24:44] Speaker 03:
He is providing to the board and indirectly to this court testimony from one who has experience in this area to help the board move beyond the bare text of the references to understand the perspective of an ordinary person of ordinary skill in the art.

[00:25:02] Speaker 03:
And he stated, and the board expressly relied thereon,

[00:25:07] Speaker 03:
that within the field for the purposes of moving forward, he was not able to see any hard and fast restriction against moving away from four monitored channels.

[00:25:20] Speaker 03:
And he explained why.

[00:25:22] Speaker 03:
He said, you know, four is a convenient number.

[00:25:25] Speaker 03:
We've certainly done it that way in the past, but if there were a reason to move away from four, Dr. Wells' view was that a person of skill would have pursued that.

[00:25:36] Speaker 03:
And that is at the center of all of the arguments surrounding that first variation.

[00:25:44] Speaker 03:
I do think, also, the statements that Phillips is presenting about how pursuing Variant 1 would require this massive refit and we'd have to replace everyone's handsets and replace everyone's base stations, that's not in the record.

[00:25:59] Speaker 03:
Their expert, Mr. Lanning, did not say it.

[00:26:00] Speaker 04:
I'm struggling a little bit.

[00:26:01] Speaker 04:
I don't see you pointing to Figure 2 in your red brief at all.

[00:26:05] Speaker 04:
under this implementation, or for Gallimandi anywhere.

[00:26:09] Speaker 04:
Did you do that?

[00:26:11] Speaker 04:
Did Dr. Wells talk about it?

[00:26:12] Speaker 04:
Is it in the record?

[00:26:13] Speaker 04:
I don't see the board also citing figure two.

[00:26:16] Speaker 04:
So I don't see anybody.

[00:26:17] Speaker 04:
Figure two, honestly, you're coming out of the blue for me on figure two.

[00:26:22] Speaker 04:
So was that in your petition?

[00:26:24] Speaker 04:
Did you rely on it?

[00:26:25] Speaker 04:
Did the board cite it?

[00:26:26] Speaker 04:
Is it somewhere in this record?

[00:26:27] Speaker 04:
Did you make the argument?

[00:26:28] Speaker 04:
Because you didn't make it in your red brief.

[00:26:29] Speaker 04:
I just went back in red.

[00:26:31] Speaker 03:
It's not in the red brief.

[00:26:31] Speaker 03:
That's correct.

[00:26:33] Speaker 04:
You did not make the argument to us

[00:26:35] Speaker 04:
that we should rely on figure two in Gallimandi to establish the more than four channels for implementation one.

[00:26:43] Speaker 04:
Did you make that argument?

[00:26:44] Speaker 04:
Did Dr. Wells make that argument?

[00:26:46] Speaker 04:
Is it in his testimony?

[00:26:48] Speaker 04:
Did Dr. Wells rely on figure two?

[00:26:50] Speaker 04:
No, is what he said.

[00:26:51] Speaker 03:
I think the answer is no.

[00:26:52] Speaker 03:
I will say.

[00:26:53] Speaker 04:
So your expert didn't rely on figure two.

[00:26:55] Speaker 04:
You didn't argue figure two to us.

[00:26:56] Speaker 04:
Did the board find, because I'm reviewing the board, that figure two provided a disclosure of more than four channels in Gallimandi?

[00:27:04] Speaker 03:
It did not.

[00:27:07] Speaker 04:
Did you, did you argue it in the petition?

[00:27:08] Speaker 04:
Because as we all know, after SAS, I mean, this is a petition case, right?

[00:27:12] Speaker 04:
Sure.

[00:27:13] Speaker 04:
Yeah.

[00:27:13] Speaker 04:
After SAS, I can only rely on what you argued in the petition.

[00:27:17] Speaker 04:
Nobody, not the board or me can go beyond that.

[00:27:21] Speaker 04:
In the petition, did you argue that figure two satisfies this element?

[00:27:24] Speaker 03:
We did not.

[00:27:25] Speaker 03:
I mean, complete honesty, we are, I mean, I appreciate it.

[00:27:29] Speaker 04:
I love your honesty.

[00:27:30] Speaker 04:
It makes me like you as an advocate tremendously.

[00:27:33] Speaker 04:
Just makes the case harder.

[00:27:34] Speaker 04:
But that's not your fault.

[00:27:36] Speaker 04:
So you're stuck with respect.

[00:27:38] Speaker 03:
With respect, I think this case only becomes harder with respect.

[00:27:41] Speaker 04:
Do you believe I can now rely on Figure 2 as the basis for establishing something that when it wasn't ever referenced to the board, when it wasn't argued, when your expert didn't opine on it, and it wasn't even argued to me, do you think now I, at the appellate court stage, can make a fact finding that Figure 2 discloses this?

[00:28:03] Speaker 03:
This court reviews the entirety of the record, right?

[00:28:06] Speaker 03:
Now, the board did not rely on it, and I think that this court can certainly say the board did not rely on figure two.

[00:28:12] Speaker 03:
However, when reviewing the entirety of the record... OK, wait.

[00:28:15] Speaker 04:
So the entirety of the record, you think, for petition purposes,

[00:28:19] Speaker 04:
If, for example, three embodiments are disclosed in a reference, and you say, embodiment one provides the elements of my claim, but you never mention embodiment two or three, you think the entirety of the reference and what I can rely on to affirm the board

[00:28:34] Speaker 04:
It might be that I conclude the bill is completely wrong and figure one doesn't disclose it, but I can conclude nonetheless that I can go find it in other places in the references.

[00:28:44] Speaker 04:
Even though they weren't argued, those were not the embodiments that were appointed to, I can nonetheless do that.

[00:28:50] Speaker 03:
OK.

[00:28:50] Speaker 03:
I think if we're hypothesizing a situation where this court discards all the rest of the board's fact finding, all the experts, everything else, and just says only figure two, no, Chenery doesn't permit that.

[00:29:00] Speaker 03:
We can't do that.

[00:29:01] Speaker 04:
Well, it's not just only figure two.

[00:29:03] Speaker 04:
We can't say also figure two, right?

[00:29:05] Speaker 04:
We can't use figure two.

[00:29:06] Speaker 02:
But to use, I think everybody is agreeing on what exists.

[00:29:11] Speaker 02:
But your brief at 27, 28, 29, you did rely on, you started with figure one with us.

[00:29:18] Speaker 02:
And that was included in, I don't remember if that was precisely called out by the board.

[00:29:23] Speaker 02:
So you have figure one on page 28.

[00:29:28] Speaker 02:
What can you do with figure one?

[00:29:30] Speaker 02:
I mean, you started and then moved over to figure two, and it seems like we were more readily embracing figure two than figure one, but you've still got figure one left.

[00:29:37] Speaker 03:
Right, so figure one is where we began, and I think figure one alone is sufficient to support the board's determination, because it uses this concept of M, right?

[00:29:46] Speaker 03:
That runs throughout Gala Moody, that the number of monitor channels is an integer M, and Gala Moody encourages those of skill to experiment with M,

[00:29:56] Speaker 03:
And the number, the amount of bits saved will be the second logarithm of M. So are there implementational difficulties in that?

[00:30:04] Speaker 03:
Possibly.

[00:30:05] Speaker 03:
But it is something that's under discussion.

[00:30:08] Speaker 03:
I do also think Dr. Wells' discussion that persons of skill would not find the move from four to eight if we're thinking about a clean move.

[00:30:18] Speaker 03:
We're moving from an old technology to a new technology as a technical matter.

[00:30:23] Speaker 03:
His testimony that Person of Skill would not be dissuaded from the proposed combination is entitled to wait.

[00:30:29] Speaker 03:
It is evidence in the record.

[00:30:30] Speaker 03:
It is sufficient to support the board's determination.

[00:30:33] Speaker 03:
The standard here is we're looking for a record that's reasonably adequate to support the fact finding.

[00:30:39] Speaker 03:
This court does not reweigh facts, as I think the whole panel has noted.

[00:30:42] Speaker 03:
And Dr. Wells' testimony, which the board expressly credited, does expressly address this issue.

[00:30:49] Speaker 04:
What is Dr. Wells' testimony?

[00:30:52] Speaker 04:
Are you talking about paragraph 9 on 2185?

[00:30:55] Speaker 03:
I'm out of time.

[00:30:57] Speaker 03:
May I answer?

[00:30:58] Speaker 03:
Of course.

[00:31:01] Speaker 03:
Okay.

[00:31:01] Speaker 03:
So for the first variation, we directed, the board cited, yeah, 21... Paragraph 9 on 2185?

[00:31:08] Speaker 03:
2185 and 86, yeah.

[00:31:14] Speaker 04:
What does he say about the state of the art and how a skilled artisan would have gone above four, despite Gollum Mundy's statement that at the time the art was only capable of monitoring four?

[00:31:25] Speaker 03:
So paragraph nine, as we were just discussing, he says, a person of skill would have recognized, while this is how most UMTS systems were implemented at the time, this was not a hard and fast rule for all UMTS systems.

[00:31:38] Speaker 03:
Now that is a statement of opinion by one qualified to make it.

[00:31:42] Speaker 03:
So that is evidence.

[00:31:43] Speaker 03:
The court can rely on it.

[00:31:44] Speaker 03:
In this case, did rely on it.

[00:31:46] Speaker 04:
This was also not in a hard and fast rule.

[00:31:48] Speaker 04:
And he doesn't point to anything at all.

[00:31:52] Speaker 04:
Like he doesn't say, here's some examples.

[00:31:55] Speaker 03:
The record is what it is.

[00:31:58] Speaker 03:
He said, in my experience, this is how we view this thing.

[00:32:00] Speaker 03:
He was examined on this at deposition.

[00:32:03] Speaker 03:
And I'll direct the court to appendix 2738.

[00:32:11] Speaker 03:
Lines 5 through 17, where Dr. Wells.

[00:32:17] Speaker 02:
Can I take you back to, I'm sorry to interrupt, but I'm behind the curve, too.

[00:32:22] Speaker 02:
It's going too fast for me.

[00:32:23] Speaker 02:
But on paragraph 10, this is Dr. Wells, 2186, right?

[00:32:27] Speaker 02:
He does say, as I described in my initial declaration, a posita would have recognized, based on the disclosures of Gallimandi, that setting the value of m to 8, such that.

[00:32:39] Speaker 02:
So he does discuss.

[00:32:41] Speaker 02:
the Galamati and setting the M to 8, right?

[00:32:47] Speaker 03:
He is, and I want to be clear.

[00:32:49] Speaker 03:
He is saying a person of skill reviewing Galamati would have understood that if that person hypothesized the system that monitors eight channels, you would save three bits of payload.

[00:33:02] Speaker 03:
That's the second logarithm of 8 is 3.

[00:33:06] Speaker 03:
I don't want to suggest that he's saying Gala Modi expressly teaches setting the value of monitor channels to eight.

[00:33:13] Speaker 03:
It says setting the monitor channels to M. Dr. Wells is saying to a person of skill, if you want to save two bits, you do four.

[00:33:21] Speaker 03:
If you want to save three bits, you do eight.

[00:33:23] Speaker 03:
If you want to save four bits, you do 16.

[00:33:24] Speaker 03:
That's how second logarithms work.

[00:33:29] Speaker 04:
Anything further?

[00:33:33] Speaker 03:
No, thank you.

[00:33:35] Speaker 04:
Let's let Mr. Littman have two minutes.

[00:33:41] Speaker 01:
I need to start off just to ask because you answered the Chief's question a certain way, so I didn't ask you the question.

[00:33:47] Speaker 01:
I asked the appellee, I didn't expect the answer because I thought maybe I was wrong on my analysis.

[00:33:53] Speaker 01:
And suddenly my folks raised me this morning, so it wasn't something I had thought about because I thought your answer was what I thought too.

[00:33:59] Speaker 01:
It didn't matter as long as the other two implementations were met.

[00:34:03] Speaker 01:
So what is your answer now to whether when the Chief asked you that question?

[00:34:10] Speaker 00:
The issue is regarding these dependent claims.

[00:34:13] Speaker 00:
Dependent claims, okay.

[00:34:14] Speaker 00:
Because I don't think I was asked that question.

[00:34:15] Speaker 00:
So you weren't asked that question.

[00:34:16] Speaker 01:
You were asked the question though, would it matter if two and three, and you said yes.

[00:34:22] Speaker 01:
And I agree that's true to claims one and 27, independent claims.

[00:34:29] Speaker 00:
Yeah, to be honest, I mean, obviously the focus of the briefing was on the first claim.

[00:34:32] Speaker 00:
I think I'd have to take a closer look than what I have at this moment to better understand.

[00:34:36] Speaker 00:
I'm sorry, I can't hear you.

[00:34:38] Speaker 00:
I'd have to take a closer look at those claims again.

[00:34:40] Speaker 00:
I don't have the moment here to appreciate that.

[00:34:43] Speaker 00:
And our understanding was that it was.

[00:34:45] Speaker 00:
My answer would be the same, that we were thinking any of those three could satisfy it.

[00:34:50] Speaker 00:
And certainly with claim one, what the focus was on this.

[00:34:53] Speaker 00:
I'm not sure exactly how that affects the dependent claims sitting here right now.

[00:35:01] Speaker 00:
I was going to say I'm rebuttal to the same point about this Figure 2, so I won't spend too much time on it, but I think it's clear that that was raised for the first time in oral argument today, and that's improper to rely on.

[00:35:11] Speaker 00:
I think you can look at the TQ Delta case, for example, 942, F3D, 1352, 1358.

[00:35:20] Speaker 00:
review of a patentability determination is confined to the grounds on which the board actually relied.

[00:35:27] Speaker 00:
I will say the other thing that came up here with this first implementation is that

[00:35:31] Speaker 00:
It seems like Quartel is now admitting that UMTS had the UE's only monitor for channels and that I don't think was reflected in the briefing under underlined it or in the appeal briefing and I don't think it's reflected in what the board thought.

[00:35:45] Speaker 00:
The board's opinion was UMTS allows the UE's to monitor more than them for and that's that's reflected on page 20

[00:35:55] Speaker 00:
seven of the brief.

[00:35:56] Speaker 00:
And so what the board did was they said, OK, well, I'm going to look at CHOI paragraph 123 from my understanding of how UMTS worked.

[00:36:04] Speaker 00:
And then there's this kind of like, in our opinion, wrong reading of that paragraph to

[00:36:11] Speaker 00:
to determine that it actually allowed it.

[00:36:12] Speaker 00:
But UMTS is a standard, right?

[00:36:14] Speaker 00:
There is no two UMTSs.

[00:36:15] Speaker 00:
There's no multiple UMTSs.

[00:36:17] Speaker 00:
It's a standard that was created by the 3GPP organization, and it either does it or it doesn't.

[00:36:21] Speaker 00:
And I think what we heard at oral arguments today is an admission that under that standard, the UAE's only monitored four control channels.

[00:36:29] Speaker 00:
And so you would have had to modify what the worldwide standard was to achieve that implementation.

[00:36:39] Speaker 04:
Okay, I thank both counsels for their argument.

[00:36:41] Speaker 04:
This case is taken under submission.