[00:00:05] Speaker 00:
Good morning ladies and gentlemen, please be seated We have five cases on the calendar this morning Three from the PTAB one from a district court and one from the MSPB Which is being submitted in the briefs and will not be argued.

[00:00:37] Speaker 00:
Our first case is NeoNode Smartphone versus Samsung and Apple, 2022-2134.

[00:00:47] Speaker 00:
Mr. Graves, you're going to have a busy morning.

[00:00:55] Speaker 00:
Yes, I will.

[00:00:56] Speaker 00:
Please proceed.

[00:00:57] Speaker 01:
Thank you, Your Honor.

[00:01:15] Speaker 01:
Good morning, your honors.

[00:01:18] Speaker 01:
This court should vacate the final written decision entered in IPR 2021-145 because the board erred in three respects.

[00:01:27] Speaker 01:
First, the board failed to provide a reasoned evidence-based explanation for its conclusion that petitioner had shown that a posita would have had a reason to use rents direct off or

[00:01:42] Speaker 01:
tap selection strategy in Hisatomi's device.

[00:01:46] Speaker 01:
Second, the board shifted the burden of proof regarding motivation to combine to Neonode.

[00:01:52] Speaker 01:
And third, the board failed to resolve fact issues that were material to one of the most hotly contested issues in the IPR, which was motivation to combine Hisatomi and REN.

[00:02:05] Speaker 01:
So first,

[00:02:07] Speaker 01:
What was the board's explanation concerning its conclusion or supporting its conclusion that Petitioner had shown a motivation to use Wren's tap selection strategy in Hisatomi's device?

[00:02:23] Speaker 01:
So the two primary references that were the source of

[00:02:29] Speaker 01:
the briefing and the focus of the briefing below as material to this appeal were Hisatomi and Wren.

[00:02:35] Speaker 01:
Petitioners pointed to Hisatomi for most of the limitations.

[00:02:38] Speaker 01:
Hisatomi disclosed a user interface that had a selection of menu icons.

[00:02:46] Speaker 01:
But those menu icons were activated by touch and the claim at issue requires icons that are activatable by tap, tap-activatable icons.

[00:02:58] Speaker 01:
So the petitioners looked to REN to supply TAP activation.

[00:03:04] Speaker 01:
REN was an article that discussed a series of experiments focused on determining which from a selection of six and actually 12 different selection strategies, because there were multiple subtypes within each, how they would perform in terms of speed of activation and error rate

[00:03:28] Speaker 01:
So petitioners looked to rent to supply the TAP activation.

[00:03:33] Speaker 01:
The board's analysis supporting its conclusion, if we exclude sites to cases and quotes and parentheticals, comes down to two sentences.

[00:03:44] Speaker 01:
The first was where the board stated that it need not address Neonode's arguments.

[00:03:51] Speaker 03:
What page are you on?

[00:03:52] Speaker 01:
I'm sorry?

[00:03:53] Speaker 03:
What page are you on?

[00:03:54] Speaker 01:
Appendix 33.

[00:03:54] Speaker 01:
Thank you.

[00:03:56] Speaker 01:
And the entirety of the board's analysis is at the bottom of Appendix 33 to the top of Appendix 34.

[00:04:05] Speaker 01:
So it said that the board need not address Neonode's arguments that Wren teaches a preference for touch because the board agreed with Petitioner that even if Wren expressed a preference for touch, that preference does not rise to the level of a teaching away.

[00:04:21] Speaker 01:
OK, so that, as a matter of law, is insufficient to support the board's conclusion that petitioner had shown a motivation to combine.

[00:04:30] Speaker 01:
And there's case law on that, Polaris v. Arcticat and Rembrandt v. Samsung, that the issue of whether the patent owner shows the teaching away is separate and distinct from the petitioner's burden

[00:04:45] Speaker 01:
of proving a motivation to combine.

[00:04:48] Speaker 01:
So that sentence is insufficient on its face to support the board's conclusion.

[00:04:53] Speaker 01:
The second sentence, the board stated, and this is at appendix 34 near the top, at most REN shows that touch activation has certain benefits over tap activation in certain circumstances.

[00:05:06] Speaker 01:
The evidence does not suggest that these trade-offs would have dissuaded a person of ordinary skill from investigating the use of tap

[00:05:14] Speaker 01:
activation in Hisotomy's device.

[00:05:17] Speaker 01:
So that's it.

[00:05:18] Speaker 01:
That's the sum total of the board's analysis.

[00:05:21] Speaker 01:
And this is insufficient.

[00:05:23] Speaker 04:
What more was it required to be?

[00:05:25] Speaker 04:
I mean, it bases itself off of the arguments.

[00:05:28] Speaker 04:
And it lists the petitioner's arguments, and it lists your arguments.

[00:05:32] Speaker 04:
And it seems that they understood the case, and I'm not sure I see why that's wrong, that you were arguing that the motivation didn't exist because of all the preferences or whatever, or the arguable teaching away in Ren.

[00:05:46] Speaker 04:
And they addressed that issue.

[00:05:50] Speaker 04:
This is all in the same field.

[00:05:52] Speaker 04:
I mean, I guess I appreciate the value of succinctness.

[00:05:57] Speaker 04:
So just because they only said in three sentences where they could have said something in 10 sentences doesn't sway me one way or another.

[00:06:04] Speaker 04:
So what more did they have to say in your view?

[00:06:07] Speaker 04:
It's not enough to say you agree as a matter of law that just because there might be benefits or preferences for one,

[00:06:16] Speaker 04:
would not be sufficient to establish the absence of motivation to come on, right?

[00:06:23] Speaker 01:
Yes, in the abstract.

[00:06:24] Speaker 01:
But the problem with what the board did here is it only evaluated one issue, which is whether the patent donor had proven a teaching away.

[00:06:35] Speaker 01:
That's the only analysis that we have from the board.

[00:06:37] Speaker 01:
The board is required to do more.

[00:06:39] Speaker 01:
It's required to actually analyze, to weigh those advantages and disadvantages.

[00:06:45] Speaker 01:
explain its reasoning, which it did not, and then explain or provide a conclusion based on that explanation of its reasoning.

[00:06:54] Speaker 04:
Well, you're saying that they are supposed to weigh advantages and disadvantages, so they're supposed to make

[00:07:00] Speaker 04:
a determination about whether this was the better or the best option.

[00:07:06] Speaker 04:
And as we've discussed, that's not what our law requires.

[00:07:10] Speaker 04:
So even if it said there are few advantages here and a few advantages here, and you want them to discuss what?

[00:07:17] Speaker 04:
You said way.

[00:07:18] Speaker 04:
You used the word way.

[00:07:20] Speaker 04:
So even if the skills were not equal, does that dissuade us from saying that there would have been a motivation to combine?

[00:07:28] Speaker 01:
Well, there are two issues there.

[00:07:30] Speaker 01:
So first, there's the issue, Your Honor, that you raise.

[00:07:33] Speaker 01:
And I would submit that this case is distinguishable from the Uber case and the Intel vPACT case and Intel vQualcomm, at least the portion of Intel vQualcomm dealing with the DER and version A references for multiple reasons.

[00:07:51] Speaker 01:
But one of them is that in those cases, the two different

[00:07:57] Speaker 01:
options or choices for the design choice argument, at least from what we can discern from the opinions, there was no evidence that the choice that was found to be suitable or acceptable would have rendered the combination, would have degraded the performance of the combination.

[00:08:21] Speaker 01:
Whereas here, there was copious evidence in the record to that effect.

[00:08:26] Speaker 01:
Some of it was undisputed.

[00:08:28] Speaker 01:
Some of it petitioner did dispute.

[00:08:31] Speaker 01:
But in this record, that distinguishes this case from Intel v. Pax and the Uber case and the others that were cited by defendant.

[00:08:42] Speaker 01:
Second, there's a procedural aspect to what Your Honor has raised.

[00:08:48] Speaker 01:
We don't know what the board will do if the case is vacated as it should be.

[00:08:54] Speaker 01:
But as this court has explained in the Nubasive case, among others, the board is obligated to provide a clear evidence-based explanation supporting its conclusion in order for this court to be able to perform its function as an appellate tribunal.

[00:09:12] Speaker 01:
And the board did not do that in this case.

[00:09:15] Speaker 01:
This case is very similar to Nubasive.

[00:09:19] Speaker 01:
Here the board essentially said,

[00:09:21] Speaker 01:
Okay, we don't buy your teaching away argument and therefore that's enough for us to conclude that the petitioner has proven a motivation to combine.

[00:09:31] Speaker 03:
I'm not sure if that's fully fair to the board.

[00:09:35] Speaker 03:
The analysis I would think maybe starts at 31 where the board says we do find persuasive petitioners alternative argument which relies on Wren for teaching TAP, right?

[00:09:47] Speaker 03:
They rejected that Hisatomi taught TAP.

[00:09:51] Speaker 03:
They then say, we're persuaded by petitioner that TAP is in this other prior art, REN.

[00:09:57] Speaker 03:
And then they go on at 32 to say it was well-known, explicitly disclosed by REN.

[00:10:04] Speaker 03:
And then they go on to address that petitioner says tapping is one of a handful of well-known selection techniques.

[00:10:12] Speaker 03:
It has certain desirability and familiarity, and then they go into teaching away.

[00:10:19] Speaker 03:
In context, why can't we say that the path of the board is reasonably discernible?

[00:10:25] Speaker 03:
that they've now found where all the elements are disclosed, and they're considering both sides' arguments, and they're concluding that one, a skill and the art would be motivated to put together a desirable, well-known alternative way of interacting with the device.

[00:10:44] Speaker 01:
Certainly.

[00:10:45] Speaker 01:
The reason is because what you've quoted, Your Honor, is the board's recitation of the competing arguments by the parties.

[00:10:53] Speaker 01:
Now you've quoted certain portions of the FWD in which the board was acknowledging or outlining the arguments that were made by Petitioner.

[00:11:04] Speaker 01:
There are other portions in which the board was outlining arguments made by Neonode.

[00:11:11] Speaker 01:
And the problem is that just pointing to the arguments made... Please step back to the podium for the microphone.

[00:11:17] Speaker 00:
Certainly, Your Honor.

[00:11:18] Speaker 01:
The problem is that just pointing to the arguments made by the two parties and then saying, we agree with petitioner or we agree with patent owner, is insufficient.

[00:11:28] Speaker 03:
Well, sure, if that was all they did.

[00:11:30] Speaker 03:
But as you acknowledge, they then go on to talk about why they're rejecting teaching away over a number of pages, which all, I think, in

[00:11:39] Speaker 03:
makes clear that they're analyzing the arguments, not just reciting them.

[00:11:43] Speaker 03:
And in context, I think maybe we can reasonably discern what they thought about motivation to combine.

[00:11:50] Speaker 03:
Why is that unfair?

[00:11:52] Speaker 01:
Because the court must speculate as to what the reasons for their conclusion concerning motivation to combine are.

[00:12:01] Speaker 01:
uh... here again not free to sit is the board not free to say i agree with everything the petitioner said doesn't have to repeat everything the petitioner said which they agree no absolutely not it does not have to repeat everything the petitioner said but it's not enough for the board simply to repeat everything the petitioner said right in explaining what the the arguments of the parties were and then say we agree with petitioner that's very clear under the new basic case was we review judgments not opinions

[00:12:31] Speaker 01:
That is correct, but there's a particular gloss on that in the administrative law context, which is that under the APA and this court's authority and precedent applying the APA to decisions from the board, the board must provide a reasoned explanation for its conclusion.

[00:12:51] Speaker 01:
And here it did not.

[00:12:54] Speaker 01:
And we would submit to you that this is not simply a

[00:12:58] Speaker 01:
a pointless exercise in sending something back to the board.

[00:13:02] Speaker 03:
Could we conduct a harmless error review if we think maybe they should have been a little clearer, but we know what they meant?

[00:13:09] Speaker 01:
No.

[00:13:10] Speaker 01:
The court is not permitted, actually, to use that form of analysis in reviewing decisions from the board.

[00:13:16] Speaker 01:
That's in the Alacrotech case, where Intel made essentially that argument.

[00:13:22] Speaker 01:
Intel argued, well, the board didn't provide a... even if the court

[00:13:27] Speaker 01:
determines that the board didn't provide a sufficient explanation here.

[00:13:31] Speaker 01:
There's enough material in the record, substantial evidence in the record, to support the board's conclusion.

[00:13:37] Speaker 01:
And this court rejected that argument, categorically.

[00:13:41] Speaker 01:
It said, no, that is insufficient.

[00:13:43] Speaker 01:
Even if there is sufficient evidence in the record, the board still must provide a reasoned explanation for its conclusion.

[00:13:53] Speaker 00:
So if you're into your rebuttal time, would you wish to save it or continue?

[00:13:57] Speaker 01:
I'll save it.

[00:13:58] Speaker 01:
Thank you, Your Honor.

[00:14:01] Speaker 00:
Mr. Panachowski.

[00:14:09] Speaker 02:
Good morning, Your Honors.

[00:14:10] Speaker 02:
Stanley Panachowski arguing on behalf of the appellees Samsung and Apple.

[00:14:15] Speaker 02:
Substantial evidence supports the board's finding of a motivation to combine.

[00:14:20] Speaker 02:
The board also adequately explained its decision

[00:14:23] Speaker 02:
and apply the correct burden of proof.

[00:14:25] Speaker 02:
The board's decision, therefore, should be affirmed.

[00:14:28] Speaker 02:
At argument today, Neonode's counsel does not address the substantial evidence issues.

[00:14:34] Speaker 02:
So I will focus on the APA issue that Neonode raised.

[00:14:38] Speaker 02:
But in the process of discussing the board's findings and reasoning and why they are adequate under this court's decision in Altrai versus Geox, we will also see the substantial evidence cited by the board that supports the final written decision.

[00:14:53] Speaker 02:
New Note's counsel said that the sum total or entirety of the board's analysis was at appendix pages 33 and 34.

[00:15:03] Speaker 02:
Even beyond the fact, as Your Honor pointed out, that there are findings being made there that explain the board's rationale, as Your Honor pointed out, the board's substantive analysis actually begins at appendix page 31.

[00:15:18] Speaker 02:
And in that portion of his decision,

[00:15:21] Speaker 02:
The board did exactly what this court said in Outdry v. Geox, 859 F.

[00:15:27] Speaker 02:
3rd, 1364, was an adequate explanation of the board's decision.

[00:15:35] Speaker 02:
In Outdry, this court said, quote, in this case, the board articulated Geox's arguments with evidentiary support and expressly adopted them to find there would have been a motivation to combine.

[00:15:49] Speaker 02:
That is what the board did here when, at page 31, it said, we find petitioners' alternative argument based on the combination of tap as disclosed in Wren and Hisatomi's pullout menu to be, quote, persuasive.

[00:16:04] Speaker 02:
And the board did not stop there, Your Honors, but the board then identified specifically which of petitioners' arguments the board was agreeing with and finding persuasive.

[00:16:16] Speaker 02:
And that complies with Altra IV geox,

[00:16:18] Speaker 02:
where this court said, you can't simply say, we agree with petitioner without indicating what arguments you agree with or giving any sense of what evidence supports those arguments.

[00:16:31] Speaker 02:
And so here, when the board went on at appendix pages 31 and 32,

[00:16:37] Speaker 02:
to summarize petitioners' arguments in a way that showed the reasons for those arguments.

[00:16:44] Speaker 02:
That satisfied Altra IV geox because the board was giving a reasoned explanation and adopting it as its own.

[00:16:52] Speaker 03:
Even if we accept all that, where is it doing that for motivation to combine as opposed to simply finding that Wren disclosed TAP as a claim limitation?

[00:17:03] Speaker 02:
Yes, Your Honor.

[00:17:03] Speaker 02:
The board does that specifically

[00:17:05] Speaker 02:
with respect to motivation to combine, principally at Appendix page 32, the first full paragraph.

[00:17:12] Speaker 02:
And the board there provides rationales for motivation to combine that align with KSR and with this court's decisions in unwired planet, Intel VPAT.

[00:17:24] Speaker 02:
and other decisions.

[00:17:25] Speaker 03:
It doesn't say motivation to combine.

[00:17:27] Speaker 03:
Would you acknowledge that?

[00:17:29] Speaker 02:
Correct, Your Honor.

[00:17:30] Speaker 02:
It doesn't use the words motivation to combine, but there is no magic words cast under KSR's flexible standard and this court's precedent.

[00:17:38] Speaker 02:
What you need is a reason for a skilled artist and at the time to make the claim combination

[00:17:45] Speaker 02:
And the board at appendix page 32 specifically identifies that reason.

[00:17:51] Speaker 02:
First, the board says that tapping was one of a handful of well-known selection techniques for selecting a target in a GUI at the time of the priority date.

[00:18:01] Speaker 02:
And then the board finds that REN teaches the desirability of using tap, quote,

[00:18:07] Speaker 02:
For example, in dense displays, where targets are close together, and then later on on page 32, the board makes an explicit finding that Hisatomi is a dense device, where you have targets close together in dense displays, and you have a specific teaching in REN that TAP is going to be desirable in that type of device.

[00:18:30] Speaker 02:
And then the board also finds that implementing TAP in Hisatomi's device would have been within the level of ordinary skill,

[00:18:37] Speaker 02:
and would have achieved predictable results.

[00:18:39] Speaker 02:
Again, satisfying KSR, as well as this Court's precedent, in cases like Intel, BPAC, XPP, and Unwired Planet.

[00:18:48] Speaker 02:
And so what we see there, Your Honors, in that paragraph, in addition to the remainder of Appendix Pages 31,

[00:18:55] Speaker 02:
to 34, is the board doing exactly what this court endorsed in the Altra IV Geox case?

[00:19:02] Speaker 02:
And in the process of that, the board also cited the evidence on which it was relying to make those findings.

[00:19:10] Speaker 02:
And that evidence, Your Honors, is more than substantial evidence to support the board's decision, specifically

[00:19:16] Speaker 02:
The board cites Dr. Peterson's declaration, the expert for appellees, at appendix pages 853 and 854, and then 856 and 857.

[00:19:29] Speaker 02:
And what Dr. Peterson explained in his declaration was, at the time, a skilled artisan would recognize that TAP is one of a handful of well-known selection techniques.

[00:19:40] Speaker 02:
and also that Wren teaches that it is desirable in dense displays like Hisatomi's.

[00:19:47] Speaker 02:
And one of the things that Dr. Peterson highlights is that TAP was very familiar to users.

[00:19:54] Speaker 02:
And Dr. Peterson cites

[00:19:57] Speaker 02:
Wren's teaching at Appendix Page 1776 that TAP was like the familiar mouse technique.

[00:20:04] Speaker 02:
So when you have a dense display and then you have a user who may be unfamiliar with using touchscreen devices and selecting targets in dense displays with objects, the fact that the user will be familiar with the mouse technique of pressing down and then releasing in order to activate some sort of icon

[00:20:25] Speaker 02:
or application, that that was an advantage of TAP.

[00:20:29] Speaker 02:
And Dr. Peterson, as well as the REN reference itself, only identified TAP as being like the familiar mouse technique.

[00:20:39] Speaker 02:
Neonode said in its reply brief that touch is also like the familiar mouse technique.

[00:20:45] Speaker 02:
But there is no evidence supporting that assertion.

[00:20:48] Speaker 02:
In fact, both Dr. Peterson

[00:20:50] Speaker 02:
and ran at appendix page 1776, explaining that what makes TAP like the familiar mouse technique is that you're clicking on it, but you're not actually opening the application until you release it.

[00:21:06] Speaker 02:
That is TAP, not touch.

[00:21:08] Speaker 03:
Can you point to anything in the board's opinion that says they were persuaded by the analogy to the familiar mouse operation?

[00:21:14] Speaker 02:
Your Honor, the board did not explicitly discuss the familiar mouse technique rationale.

[00:21:22] Speaker 02:
However, this court, in outright, has made clear that so long as the board cites the evidence that is supporting the explanation it's giving, that that is sufficient.

[00:21:32] Speaker 02:
So when the board cites not just those pages of Dr. Peterson's declaration, but also cites two pages of Wren,

[00:21:39] Speaker 02:
appendix page 1763 and 1776, the board is showing that these are the particular arguments and these are the particular pieces of evidence on which we're relying for these findings that we have explicitly made here.

[00:21:56] Speaker 02:
And REN, at appendix page 1776, contains the rationale not just for narrowing down your options for the selection of targets in a dense display to touch and tap.

[00:22:10] Speaker 02:
It does that when it says that you have other selection techniques that are efficient when targets are not too close together.

[00:22:18] Speaker 02:
But they're not efficient in dense displays.

[00:22:22] Speaker 02:
So for dense displays, we turn to direct on, touch, and then direct off, of which tap is one variant.

[00:22:30] Speaker 02:
And the brain reference says that those are techniques that can be used in dense displays.

[00:22:38] Speaker 02:
And then it specifically zeros in on the direct off technique.

[00:22:43] Speaker 02:
and says, for example, direct off is like the familiar mouse technique, and that is why it is therefore desirable in dense displays.

[00:22:52] Speaker 02:
Even if the law required

[00:22:57] Speaker 02:
the board to have relied on something in the record that showed that TAP had a particular advantage over Touch in the proposed combination.

[00:23:07] Speaker 02:
The board identified that when it cited those pages of REN and those pages of Dr. Peterson's declaration that discuss that teaching in REN.

[00:23:16] Speaker 02:
and make the same point about the familiar mouse technique.

[00:23:20] Speaker 02:
So therefore, under any view of the law that Neonode is advocating, the board made sufficient findings, cited the appropriate evidence, and provided a reasoned explanation.

[00:23:32] Speaker 02:
And under this court's precedent, substantial evidence supports that decision, and it should be affirmed.

[00:23:39] Speaker 03:
Is there any room for a harmless error analysis here, if we're not entirely persuaded by what you're arguing?

[00:23:45] Speaker 02:
Your Honor, I don't think that harmless error would be the appropriate rubric.

[00:23:50] Speaker 02:
I rather think that the appropriate rubric would be this court's holding in nuvasive, that what you need here is a reasonably discernible explanation from the board.

[00:24:04] Speaker 02:
And the reason why this court said that you need to have that is to permit

[00:24:09] Speaker 02:
substantial evidence review.

[00:24:11] Speaker 02:
And therefore this court said in new evasive that we will uphold the decision of less than ideal clarity if we can reasonably discern that the board followed a proper analytical path.

[00:24:23] Speaker 02:
And here, Your Honors,

[00:24:25] Speaker 02:
at pages appendix 31 to 34, there's more than enough to show that the board followed a proper analytical path, made findings that are well supported by substantial evidence, and complied with both nuvasive

[00:24:40] Speaker 02:
as well as this court's holding in Altrai versus Geox.

[00:24:43] Speaker 02:
So I think, Your Honor, that the reasonably discernible standard is what serves the same basic function that the concept of harmless error would here.

[00:24:55] Speaker 02:
But the court does not need to invoke harmless error, because both nuvasive and Altrai versus Geox support more than enough the adequacy of the court's explanation.

[00:25:05] Speaker 03:
But if we were to find it's not a reasonably discernible path,

[00:25:08] Speaker 03:
we have to vacate and remand, is that correct?

[00:25:11] Speaker 02:
Yes, Your Honor.

[00:25:12] Speaker 02:
Under this first precedent in new evasive, if you haven't met that standard, then what you need to do is to vacate and remand for a more robust explanation by the Board.

[00:25:22] Speaker 02:
And of course, Your Honor, as we have argued, we don't think that a remand would be necessary here because there is more than enough at Appendix Pages 31 to 34 in the evidence cited by the Board at those pages to affirm.

[00:25:38] Speaker 02:
Investors Court has further questions.

[00:25:39] Speaker 02:
Thank you, Your Honors.

[00:25:41] Speaker 00:
Thank you, Counsel.

[00:25:43] Speaker 00:
Mr. Graves has some rebuttal time, two and a half minutes.

[00:25:50] Speaker 01:
Thank you, Your Honor.

[00:25:57] Speaker 01:
So at Police Counsel, over and over,

[00:26:00] Speaker 01:
I heard him refer to findings made by the board supporting the board's conclusion.

[00:26:07] Speaker 01:
But if you will review, as I'm sure you have, appendix 31 through 34, you will find that there are no such findings.

[00:26:15] Speaker 01:
All we have are the board's acknowledgments of the arguments of the respective parties, two sentences of analysis rejecting a teaching away, and then a conclusion that motivation to combine had been shown.

[00:26:28] Speaker 01:
That is exactly

[00:26:30] Speaker 01:
the situation in the nuvasive case, where the board summarized the arguments of the parties and then said, you know, we find petitioners' explanation or, you know, we agree with petitioner here.

[00:26:45] Speaker 01:
That's all we have with respect to motivation to combine.

[00:26:48] Speaker 01:
The board did provide an explanation with respect to teaching away, but nothing on motivation to combine, and those are two different analyses.

[00:26:57] Speaker 01:
The out dry case

[00:26:59] Speaker 01:
It's not on point here because in that case the board expressly adopted the arguments by one side and actually provided some explanation as to its reason for doing so.

[00:27:11] Speaker 01:
Here again we have nothing regarding motivation to combine.

[00:27:15] Speaker 01:
The board told us what it concluded and it is possible to try to backfill that and try to figure out what the reasons were

[00:27:26] Speaker 01:
But that's not the function of this court.

[00:27:27] Speaker 01:
This court is required to review not just the conclusion, but the board's reasoning as well to ensure that the board adopted a proper analytical approach.

[00:27:39] Speaker 01:
It's not possible to do that here, given the fact that the board provided no explanation for its reasoning on motivation to combine.

[00:27:52] Speaker 01:
of the testimony of NAPLE's expert, again, looks to the evidence that was presented on motivation to combine.

[00:28:05] Speaker 01:
Neonode presented countervailing evidence from its expert, and it's the board's job to look at the testimony and the other evidence and explain the reasons why it agreed that Petitioner had shown a motivation to combine

[00:28:20] Speaker 01:
It did not do that here.

[00:28:23] Speaker 01:
And there is a real issue for the board to address because this case on the evidence and on the record is distinguishable from Uber, Intel v. Pact, and Intel v. Qualcomm.

[00:28:38] Speaker 01:
There are distinctions here of a factual nature.

[00:28:41] Speaker 01:
They were presented and argued to the board.

[00:28:43] Speaker 01:
The board did not address them.

[00:28:45] Speaker 01:
at all, and it was required to do so under the provisor case.

[00:28:50] Speaker 00:
In addition... As you can see, your time has expired, so we thank you for your first argument, and the case is submitted.

[00:28:58] Speaker 01:
Thank you, Your Honor.