[00:00:00] Speaker 03:
Next case is 23-14-17, park revision versus PLC.

[00:00:05] Speaker 01:
You're up again.

[00:00:10] Speaker 01:
I apologize about that if there's repetition, but new record.

[00:00:15] Speaker 01:
Good morning again.

[00:00:19] Speaker 01:
Again, let's talk about why we're here today.

[00:00:21] Speaker 01:
Why we're here today, again, is the PTAB decided that in this case, it's a little different.

[00:00:27] Speaker 01:
It's attorney argument, plus no evidence.

[00:00:30] Speaker 03:
What do we got in this case?

[00:00:31] Speaker 01:
Oh, I'm sorry.

[00:00:32] Speaker 01:
This case is the 835 patent.

[00:00:37] Speaker 01:
And the 835 patent, the particular references are Hulko, and Schillitz, and Gibson.

[00:00:43] Speaker 01:
So it's a different set of patents.

[00:00:44] Speaker 01:
And this patent's directed to a cable modem.

[00:00:47] Speaker 01:
And so what happened?

[00:00:48] Speaker 01:
In this case, the PTEP decided that attorney argument, no evidence, and in this case, bare expert assertions can invalidate a patent.

[00:00:57] Speaker 01:
And again, we don't believe that's correct.

[00:00:59] Speaker 01:
We believe that it turns the process on its head, and I'll explain why.

[00:01:02] Speaker 01:
And we believe that the

[00:01:04] Speaker 01:
that this court should address this issue, and that the invalidity determination of the PTAB should be reversed.

[00:01:12] Speaker 01:
Again, two issues.

[00:01:14] Speaker 01:
Issue number one is there was an Administrative Procedures Act violation.

[00:01:19] Speaker 01:
Issue number two is that there was no substantial evidence that Gibson, Holko, and Schlitzsch disclosed a storage element that stores non-negligible amounts of energy.

[00:01:31] Speaker 01:
So going to the Administrative Procedures Act,

[00:01:33] Speaker 01:
What do we have here?

[00:01:36] Speaker 01:
First time in the reply brief, TCL, the petitioner, raised the issue of this federal circuit case for the first time.

[00:01:43] Speaker 01:
We moved to strike and said that they knew about this issue.

[00:01:47] Speaker 01:
They should have raised it before.

[00:01:48] Speaker 01:
And the board said, no, too bad.

[00:01:52] Speaker 01:
We're going to move forward.

[00:01:53] Speaker 01:
And they did not strike this new evidence or a new position.

[00:01:59] Speaker 01:
And we believe that's an abuse of discretion.

[00:02:02] Speaker 01:
So with regards to what happened, when the

[00:02:05] Speaker 01:
petitioner submitted their petition.

[00:02:08] Speaker 01:
They attached an exhibit.

[00:02:10] Speaker 01:
In this case, it's exhibit 1011, which was the district court's prior Markman decision.

[00:02:15] Speaker 01:
which specifically talked about a storage element storing at least uncontested parts, storing non-negligible amounts of energy, which TCL now says open flexicography.

[00:02:26] Speaker 01:
And so, and I don't know if I said this, and that Exhibit 101, I think it's in Appendix, or it is in Appendix 370, you can see where they cite it to it.

[00:02:36] Speaker 01:
And that's the court order from the district court attached to the petition.

[00:02:40] Speaker 01:
At that point, it was their burden to address the issue in their petition.

[00:02:46] Speaker 01:
They should have addressed it.

[00:02:47] Speaker 01:
They didn't.

[00:02:48] Speaker 01:
And so they just left non-negligible amounts of energy alone, didn't say anything.

[00:02:52] Speaker 01:
We came along.

[00:02:53] Speaker 01:
We talked about non-negligible amounts of energy.

[00:02:56] Speaker 01:
then in response, for the first time, they brought up the Qualcomm Parker Vision case from 2015.

[00:03:02] Speaker 01:
And in that case, the Federal Circuit talked about what the inventor talked about, but we never heard the argument before.

[00:03:08] Speaker 01:
Now we're at the point of a surreply.

[00:03:10] Speaker 01:
Our expert has talked about non-negligible amounts of energy.

[00:03:14] Speaker 01:
Our expert has explained why it's relevant.

[00:03:18] Speaker 01:
And the one thing I want to point out, because I do think it's important,

[00:03:24] Speaker 01:
is that our experts, they say well, you know, and Dr. Steer specifically during his deposition, and this is Appendix 2242-2243,

[00:03:35] Speaker 01:
why page 62, column 23 to 6325, he specifically was faced with this Federal Circuit decision and the only thing he could say was that I don't find what I did calculating non-negligible amounts of energy to be inconsistent with what Mr. Soros talked about in the Fed Circuit and what the Fed Circuit talked about.

[00:03:55] Speaker 01:
And so what do we have here?

[00:03:57] Speaker 01:
So we have a situation where on a surreply, we had no, as of right, the ability to have our expert opine and specifically address head-on commercial viability and that it's successfully down-converts, which, according to Mr. Sorrels, which TCL ignores and the PTAB ignores, Mr. Sorrels

[00:04:23] Speaker 01:
specifically stated successful down conversion means you meet standards.

[00:04:28] Speaker 01:
Not just anything that down converts meets standards.

[00:04:31] Speaker 01:
And they just want to ignore that.

[00:04:32] Speaker 01:
And the PCAP just wants to ignore that because it's inconvenient.

[00:04:36] Speaker 01:
At the end, we believe that there was an Administrative Procedure Act violation.

[00:04:41] Speaker 01:
It was foreseeable.

[00:04:42] Speaker 01:
They knew about it.

[00:04:43] Speaker 01:
They had the burden.

[00:04:44] Speaker 01:
They should have addressed it.

[00:04:45] Speaker 01:
They didn't.

[00:04:46] Speaker 01:
And then we're put in the position.

[00:04:47] Speaker 01:
And we can't guess what they're going to argue.

[00:04:49] Speaker 01:
And so just like they can't guess, we can't guess.

[00:04:52] Speaker 01:
But in this case, they knew.

[00:04:55] Speaker 01:
They knew.

[00:04:55] Speaker 01:
And if you look in our, again, if you look in our reply brief, we address the timing.

[00:05:00] Speaker 01:
When they knew about the timing, they filed the petition four months after the district court ruled on what a storage element was.

[00:05:10] Speaker 01:
And I believe in this case, I think nine days after

[00:05:14] Speaker 01:
we first showed our view of what non-negligible amounts of energy and all those calculations in the first case, that's when they filed their petition in this case.

[00:05:23] Speaker 01:
So it was certainly foreseeable that they knew.

[00:05:26] Speaker 01:
So in terms of storage elements storing non-negligible amounts of energy,

[00:05:30] Speaker 01:
Again, here, there's no substantial evidence that the capacitors of Hulko and Schlitz is a storage element that stores non-negligible amounts of energy.

[00:05:38] Speaker 01:
Again, Dr. Steer is the only one that provided a declaration to talk about what non-negligible amounts of energy means.

[00:05:45] Speaker 01:
He wasn't rebutted.

[00:05:46] Speaker 01:
His credibility wasn't questioned.

[00:05:49] Speaker 01:
He was just ignored, ignored.

[00:05:51] Speaker 01:
And so the petitioner had the burden.

[00:05:54] Speaker 01:
They had the opportunity on a reply to put in an extra declaration.

[00:05:57] Speaker 01:
They pay experts, however much they pay experts, and they could not find their expert, Dr. Shoemaker, whatever his name is, unwilling, or they didn't apparently, put in a declaration.

[00:06:08] Speaker 01:
All he had to say was, yes, Hoco and Schlitz is commercially viable.

[00:06:16] Speaker 01:
It meets the standards or whatever.

[00:06:18] Speaker 01:
Whatever they wanted to say, they could have done it and they didn't do it.

[00:06:21] Speaker 01:
And that is telling.

[00:06:22] Speaker 01:
The fact that they didn't have their expert on a reply support their position and they just went with, you know, this is what Qualcomm said, you know, that is extremely telling.

[00:06:33] Speaker 01:
And so again, what did the PTAB do?

[00:06:34] Speaker 01:
So the logic of the PTAB was first, they said, okay, we have non-negligible amounts of energy.

[00:06:39] Speaker 01:
What does that mean?

[00:06:40] Speaker 01:
Well, fortunately, we have the Federal Circuit and Qualcomm case that tells us.

[00:06:43] Speaker 01:
And so they said that means it's energy distinguishable.

[00:06:46] Speaker 00:
The board basically did a carbon copy of what it did in the 1415 battlefield, right?

[00:06:50] Speaker 00:
Correct.

[00:06:51] Speaker 01:
OK.

[00:06:51] Speaker 01:
We know what the board did.

[00:06:55] Speaker 01:
Right.

[00:06:55] Speaker 01:
So again, the only thing there was, just like in the other case that we just discussed in the 1415 case, all there was was attorney argument.

[00:07:04] Speaker 01:
That's it.

[00:07:05] Speaker 01:
There was no supporting declaration of their expert to support what they were saying.

[00:07:09] Speaker 01:
all attorney argument.

[00:07:10] Speaker 01:
And again, so what was the board left with?

[00:07:13] Speaker 01:
Nothing.

[00:07:14] Speaker 01:
There were no doctors here who they didn't criticize or they didn't say anything about and say, oh, he's not credible.

[00:07:19] Speaker 01:
They just kind of ignored it.

[00:07:20] Speaker 01:
And they said, well, again, in this case, Hoco and Schlitz just talk about radio applications generally.

[00:07:26] Speaker 01:
And because they talk about radio applications and because things are, patents are viewed to be enabled, somehow enablement

[00:07:33] Speaker 01:
magically becomes it's commercially viable, and it meets specifications.

[00:07:37] Speaker 01:
And there's no case, again, that I am aware of where enablement of a patent, you presume that it's commercially viable, and you can presume that it meets standards.

[00:07:50] Speaker 01:
That case law doesn't exist.

[00:07:52] Speaker 01:
And so again, the board was faced to back them.

[00:07:56] Speaker 01:
They had to backfill.

[00:07:57] Speaker 01:
So they had to come up with this new argument about enablement.

[00:08:00] Speaker 01:
And again, this inherency argument that we raised in our gray brief, they haven't met that standard of inherency.

[00:08:06] Speaker 01:
And so the other issue

[00:08:09] Speaker 01:
with regards to this is that Dr. Steer also talked about, you know, there's no dispute that Hulko and Schlitz are sample and hold systems and they have sample and hold capacitors.

[00:08:22] Speaker 01:
TCL doesn't say that it's not the case and the board doesn't say that's not the case.

[00:08:27] Speaker 01:
And Dr. Steer explains that in this case, and I don't believe it was rebutted, that those capacitors only hold negligible amounts of energy.

[00:08:36] Speaker 01:
And that's the appendix 2 0 1 3 to 2 0 1 7 at paragraphs 357 to 366.

[00:08:42] Speaker 03:
If the inherency is a large part of your argument, weren't you required to preserve it in blue?

[00:08:48] Speaker 03:
Because I don't judge.

[00:08:49] Speaker 01:
OK, I'll move on then.

[00:08:50] Speaker 01:
I'll move on.

[00:08:52] Speaker 01:
And then, so if you don't believe Dr. Steer, okay, I'm sorry, the other part of the appendix for Dr. Steer is appendix 1999 to 2004, paragraph 310 to 333.

[00:09:04] Speaker 01:
And so Dr. Steer explained that when you have a sample and hold system, which nobody debates that Hulko and Schlitzer sample and hold systems, that means that it stores negligible amounts of energy.

[00:09:16] Speaker 01:
And if you don't believe Dr. Steer, our patent specifically says that.

[00:09:20] Speaker 01:
So in appendix 1715,

[00:09:22] Speaker 01:
This is the 551 patent, which is incorporated by reference into the 835.

[00:09:27] Speaker 01:
On column 66, lines 62 to 65, that patent says, again, incorporated by reference, holding modules and holding capacitance as used above identify systems that store negligible amounts of energy.

[00:09:42] Speaker 01:
So don't take Dr. Scheer's words for it.

[00:09:44] Speaker 01:
Look at our own patent.

[00:09:45] Speaker 01:
And when we talk about what a holding system is, a holding system is a sample and hold system.

[00:09:51] Speaker 01:
And so you don't have to take doctor words for it.

[00:09:54] Speaker 01:
You could look at what was said in our patent early on before any litigation happened in terms of what negligible amounts of energy is and that sample and hold systems store whole negligible amounts of energy.

[00:10:05] Speaker 01:
They didn't rebut that.

[00:10:06] Speaker 01:
They didn't address it.

[00:10:06] Speaker 01:
They didn't talk about it, meaning they're experts, TCL's experts.

[00:10:09] Speaker 01:
And so the board had nothing to rely upon.

[00:10:12] Speaker 01:
Then the last point I want to raise is I could reserve some time.

[00:10:15] Speaker 01:
is a combination of Gibson and Schiltz.

[00:10:18] Speaker 01:
So petitioners state that both Gibson and Schiltz disclose mixers.

[00:10:22] Speaker 01:
And so this goes to my point about bare expert assertions, that when TCL, the petitioner, was putting their combinations together, what their experts said is that, listen, Schiltz and Gibson both talk about mixers, and they both down-convert.

[00:10:39] Speaker 01:
That was pretty much the extent of it.

[00:10:41] Speaker 01:
Then what happened is that, and they said, oh, that's a bare pronouncement.

[00:10:45] Speaker 01:
I view it as a bare pronouncement.

[00:10:46] Speaker 01:
And they said, listen, because they both talk about mixers and because they both down-convert, all of a sudden that means you can just swap one for the other, no problem.

[00:10:54] Speaker 01:
Not so fast.

[00:10:55] Speaker 01:
So Gibson,

[00:10:56] Speaker 01:
is a non-sampling mixer, or called a heterodyne mixer, which is always on.

[00:11:02] Speaker 01:
Schlitz works differently.

[00:11:04] Speaker 01:
It's a sampling mixer.

[00:11:05] Speaker 01:
It turns on and off.

[00:11:06] Speaker 01:
You can't just swap one for the other.

[00:11:08] Speaker 01:
And Steer addresses this as Appendix 1993 to 1994, Paragraph 294 to 296,

[00:11:14] Speaker 01:
With regards to Gibson, with regards to Schultz, Appendix 1995 to 1998, Paragraph 298 to 306, and he says you don't combine them in Appendix 2018 to 2022 in Paragraphs 381 to 388.

[00:11:31] Speaker 01:
So what happens?

[00:11:33] Speaker 01:
Dr. Steer explains this.

[00:11:35] Speaker 01:
Do they put anything to counter that in the reply?

[00:11:37] Speaker 01:
No.

[00:11:37] Speaker 01:
Again, in the reply brief, they couldn't get an expert to provide evidence to counter what Dr. Steer said in reply to what Dr. Steer said.

[00:11:45] Speaker 01:
They had the opportunity and tellingly, they TCL the petitioner.

[00:11:49] Speaker 01:
did nothing.

[00:11:50] Speaker 01:
Nobody responded to Dr. Steer.

[00:11:52] Speaker 01:
It was unrebutted to respond to what Dr. Steer said.

[00:11:56] Speaker 01:
And just to be clear, basically what they're saying is you have two liquids and they can be swapped because they said there's mixers and they both down-convert.

[00:12:04] Speaker 01:
In this case, they're basically saying, because you have two liquids, you can just swap them.

[00:12:07] Speaker 01:
So if I have a car with a gas tank that I can put gas in, their position is that because both gas and water are liquids, you could put water in place of the gas.

[00:12:15] Speaker 01:
These systems don't work together, as Dr. Sears said.

[00:12:18] Speaker 01:
They're inconsistent.

[00:12:20] Speaker 01:
Once you swap the mixers of Schlitz for Gibson, it changes the system.

[00:12:26] Speaker 01:
It's completely different.

[00:12:26] Speaker 01:
It's like putting water, because gas and water are both liquids, it's like putting water in a car, in a gas tank.

[00:12:36] Speaker 01:
And that just doesn't work, and that's the same issue here.

[00:12:38] Speaker 03:
And you're into your rebuttal time.

[00:12:40] Speaker 01:
Yeah, I'm wrapping up right now.

[00:12:41] Speaker 01:
And then so this court has specifically said,

[00:12:44] Speaker 01:
Combining systems that change the basic principle under which the prior art was designed to operate, or that rendered the prior art inoperable or for its intended purposes, may fail to support a conclusion of obviousness.

[00:12:58] Speaker 01:
That's exactly what happened here.

[00:12:59] Speaker 01:
That's Plas-PAC Industries versus Sultzer.

[00:13:03] Speaker 01:
That's 600 Fed Appendix 755, 757 to 758.

[00:13:09] Speaker 01:
And with that, I'll conclude.

[00:13:11] Speaker 01:
Thank you.

[00:13:35] Speaker 02:
May it please the court, Ted Miley for the for the appellees.

[00:13:40] Speaker 02:
I'm going to respond just briefly on a few things.

[00:13:43] Speaker 02:
One was Judge Shen's question about whether the Parker vision could have submitted a expert declaration and that was actually addressed in the Vidal case.

[00:13:53] Speaker 02:
It's on page 981.

[00:13:55] Speaker 02:
I quote, if Parker vision believed Intel's reply raised an issue that was inappropriate for a reply brief,

[00:14:01] Speaker 02:
or that Parker Vision needed a greater opportunity to respond.

[00:14:05] Speaker 02:
Beyond that, provided by the rules, e.g.

[00:14:07] Speaker 02:
to include new argument and evidence in its surreply, it was incumbent upon Parker Vision to contact the board and request authorization for an exception to the rules.

[00:14:16] Speaker 02:
And that would be authorized under 37 CFR section 42.5b.

[00:14:22] Speaker 02:
In the final written decision in our case, this case, the 1417 case, at

[00:14:28] Speaker 02:
The appendix 2511 to 2512, which is the order denying the motion to strike, the board made the points that Parker Vision never explained why it would need new expert testimony, and that it didn't move for new expert testimony, and it could have.

[00:14:45] Speaker 02:
Instead, they used the limited time in the proceeding to file a procedural motion to strike our reply.

[00:14:51] Speaker 02:
I would also note that in the SIR reply below, Parker Vision expressly conceded

[00:14:58] Speaker 02:
This is at page 2531, and it's also in the final written decision at page 53.

[00:15:04] Speaker 02:
They conceded that the showing of down conversion as proof for non-negligible energy is, quote, one way.

[00:15:11] Speaker 02:
It's one way to show non-negligible energy.

[00:15:13] Speaker 02:
Well, we only need one way.

[00:15:14] Speaker 02:
We don't need to do calculations.

[00:15:23] Speaker 02:
Parker Vision did not talk about the claim construct.

[00:15:25] Speaker 02:
They had an argument about cable modem be limiting.

[00:15:28] Speaker 02:
They made a few arguments.

[00:15:29] Speaker 02:
And they didn't talk about it, but I just want to clear the record on their main argument in their opening brief at page 79 was that cable modem is limiting because it provides antecedent basis for some dependent claims.

[00:15:41] Speaker 02:
But the board at appendix 25, note 22, held that that argument was waived and not preserved because they brought it up for the first time at oral argument.

[00:15:49] Speaker 03:
I think you're better off addressing what your friend addressed this morning.

[00:15:53] Speaker 02:
Okay?

[00:15:54] Speaker 02:
That's all I was going to say about that.

[00:15:56] Speaker 02:
Everything else in the case is substantial evidence.

[00:15:59] Speaker 02:
We had evidence and arguments for what the storage modules were, what the motivation to combine was.

[00:16:05] Speaker 02:
They had their counter evidence.

[00:16:07] Speaker 02:
The board weighed them and determined in our favor.

[00:16:10] Speaker 02:
And there's nothing that they've put forth on appeal to show that there was not substantial evidence.

[00:16:19] Speaker 00:
What about their argument about gasoline and water?

[00:16:22] Speaker 00:
You can't just swap one mixer for another because the mixers operate very differently just as gasoline and water do.

[00:16:32] Speaker 02:
There was two grounds.

[00:16:33] Speaker 02:
I'll go to that.

[00:16:34] Speaker 02:
That's the motivation to combine.

[00:16:36] Speaker 02:
On ground one, which was Holko with Gibson.

[00:16:42] Speaker 00:
Let's just stick to Gibson and Schultz since that's the one that covers all the time.

[00:16:49] Speaker 02:
If you look to appendix, aside from everything that it down converts, it does so in radios, which is in the record.

[00:16:56] Speaker 02:
Shilts provided, and aside from Shilts expressly stating to use the switch capacitor as a mixer, which is on appendix 76 to 78, Shilts provided two express reasons for why you would want to use a switch capacitor as a mixer.

[00:17:13] Speaker 02:
This is at appendix 78.

[00:17:14] Speaker 02:
The board also referred to this at appendix 80 to 82.

[00:17:19] Speaker 02:
The first reason I will quote from the record, quote, the sample and hold circuit may be accurately operated at high frequencies, unquote.

[00:17:28] Speaker 02:
Two, quote, may be applied to virtually any RF and IF signals, unquote.

[00:17:34] Speaker 02:
That is a motivation to use a specific mixer.

[00:17:38] Speaker 02:
Gibson also has a mixer, but it doesn't disclose.

[00:17:42] Speaker 02:
what type of mixer it is.

[00:17:43] Speaker 02:
It just has the symbol for a mixer, which is a circle with an X in it.

[00:17:48] Speaker 02:
And so there's at least three reasons to use it.

[00:17:51] Speaker 02:
They both use mixers, and Schiltz provides multiple reasons for why.

[00:17:56] Speaker 02:
And when the board relied on this evidence, it didn't just say, like we heard earlier in a different appeal today, common sense.

[00:18:03] Speaker 02:
The board, and I can quote from Appendix 81,

[00:18:07] Speaker 02:
to the point about the mixers, the board rejected that argument and said, that argument, that specific argument, quote, does not undermine petitioners' argument and evidence that the particular structures proposed for combination, one, are substantially similar, two, operate in a similar manner, and three, function predictably, and four, with a reasonable expectation of success once combined.

[00:18:32] Speaker 02:
That's substantial evidence.

[00:18:35] Speaker 02:
The ground one

[00:18:37] Speaker 02:
Combination which was not really addressed did not even rely on the mixers from the secondary reference whole code the main reference Taught the mixer and there was no combination so the argument about the mixers being incompatible is simply irrelevant If I could quickly talk about storage modules Again Parker vision says that there was no evidence.

[00:19:04] Speaker 02:
That's that's not correct and

[00:19:08] Speaker 02:
For the first round, HOCO was the storage module at appendix 49 to 50.

[00:19:14] Speaker 02:
HOCO is the sample and hold circuit.

[00:19:17] Speaker 02:
HOCO, after it samples the incoming signal, the patent teaches that another switch is open, quote, to transfer the charge on the first capacitor, that's the holding capacitor, to the output.

[00:19:29] Speaker 02:
If that was negligible, why would they talk about that?

[00:19:31] Speaker 02:
And three, that the mixer directly demodulates the input signal, just like the Qualcomm case.

[00:19:36] Speaker 02:
And that was all supported by our expert, Dr. Shoemake, for example, at appendix 494 to 496, which is excited at appendix 50.

[00:19:45] Speaker 02:
So that's substantial evidence.

[00:19:46] Speaker 02:
That's ground one.

[00:19:48] Speaker 02:
Ground two, the Schiltz.

[00:19:54] Speaker 02:
This is at appendix 85 to 88 on the board's decision.

[00:19:57] Speaker 02:
There's substantial evidence that SHLTS is a storage module.

[00:20:01] Speaker 02:
For example, it's also a hold capacitor.

[00:20:04] Speaker 02:
SHLTS discloses a, quote, high speed sample and hold circuit, unquote, comprising a switch capacitor.

[00:20:09] Speaker 02:
And it, quote, provides an improved radio, which uses a sample and hold circuit in various mixing applications, including down conversion, unquote.

[00:20:21] Speaker 02:
This is by Dr. Shoemake in Appendix 498-500, our expert.

[00:20:26] Speaker 02:
Schiltz also discloses, quote, radios that use a high-speed sample and hold circuit as a mixer.

[00:20:31] Speaker 02:
This is Appendix 88.

[00:20:32] Speaker 02:
That the mixer, quote, operates as a down converter in Radio 10.

[00:20:37] Speaker 02:
This is Appendix 88.

[00:20:38] Speaker 02:
It also has commercial uses, not that it's required.

[00:20:42] Speaker 02:
but, quote, an improved radio having a receiver capable of receiving a wideband RF signal, unquote, appendix 88.

[00:20:49] Speaker 02:
So that's Brown 2.

[00:20:50] Speaker 02:
That's substantial evidence.

[00:20:52] Speaker 02:
I'll stop here unless the court has questions.

[00:20:55] Speaker 00:
The other side says that if you look at their incorporated 551 patent, they define that sample and hold capacitors hold negligible amounts of energy.

[00:21:07] Speaker 00:
And so therefore, the fact that your reference that you're relying on

[00:21:13] Speaker 00:
holding capacitor means that it's storing only negligible amounts of energy.

[00:21:21] Speaker 00:
What do you have to say about that?

[00:21:22] Speaker 02:
I think that's primarily an end run around the claim construction.

[00:21:25] Speaker 02:
That verbiage comes from that paragraph that you all dealt with in the VDAL case and the board dealt with here, where it has multiple sentences that talk about holding modules and storage modules.

[00:21:37] Speaker 02:
But the lexicography was that the storage module just has to have non-negligible energy.

[00:21:43] Speaker 02:
There's nothing in the construction that says, if you hold the energy, it can't be non-negligible.

[00:21:50] Speaker 02:
I don't think that's even logical or a matter of engineering.

[00:21:54] Speaker 02:
And also, their patent, whatever it says about their invention, doesn't define the prior art inventions, which have non-negligible energy.

[00:22:06] Speaker 02:
Thank you.

[00:22:11] Speaker 01:
All right, I'm up again.

[00:22:13] Speaker 01:
Smaller device.

[00:22:15] Speaker 01:
What was that?

[00:22:15] Speaker 01:
The smaller device.

[00:22:17] Speaker 01:
Smaller device, yes.

[00:22:17] Speaker 01:
I'll try to make it quick.

[00:22:19] Speaker 01:
OK, so let me address a couple of issues.

[00:22:21] Speaker 01:
So Dr. Steer, again, don't believe our patent in terms of what holding elements are.

[00:22:25] Speaker 01:
Dr. Steer addressed that, number one.

[00:22:28] Speaker 01:
They have no expert that talked about holding elements, and this, that, or the other thing, and what they do.

[00:22:33] Speaker 01:
So it's Dr. Steer's everybody testimony further supports what the patent says about holding, and that's a negligible amount of energy.

[00:22:40] Speaker 01:
The council raised a number of arguments, their attorney arguments.

[00:22:44] Speaker 01:
He didn't identify anywhere where his expert, he was going through it and trying to cobble together stuff.

[00:22:48] Speaker 01:
He said, well, because it's releasing energy, therefore it must be non-energy.

[00:22:52] Speaker 01:
Where is that in the expert report?

[00:22:54] Speaker 01:
That's his statement.

[00:22:55] Speaker 01:
That's not his expert statement.

[00:22:56] Speaker 01:
There is no testimony from their expert that rebuts what Dr. Steer says, that says what he says is wrong.

[00:23:02] Speaker 01:
Again, they had the reply brief.

[00:23:03] Speaker 01:
They couldn't do it.

[00:23:04] Speaker 01:
They couldn't get their expert, apparently, to come up with these positions.

[00:23:08] Speaker 01:
That's telling.

[00:23:09] Speaker 01:
If you have an expert, why not use them?

[00:23:14] Speaker 01:
Possibly, because the expert wouldn't take the positions, because they're fundamentally flawed.

[00:23:18] Speaker 01:
That's not how the technology works.

[00:23:19] Speaker 01:
The technology does not work the way they're saying.

[00:23:22] Speaker 01:
And they also said that, he pointed to the patent law that's saying, well, for Gibson and Schiltz, that the technology is similar.

[00:23:31] Speaker 01:
It's similar in the sense that they both down-convert.

[00:23:33] Speaker 01:
Sure, but it's not similar in any other sense.

[00:23:35] Speaker 01:
It's water and gasoline.

[00:23:37] Speaker 01:
They're both liquids, but they do very different things.

[00:23:39] Speaker 01:
And you can't put water, as we know, in your gas tank, and your car is going to work.

[00:23:44] Speaker 01:
It's not going to work very well.

[00:23:47] Speaker 01:
They tried to excuse that they didn't address the issue.

[00:23:50] Speaker 01:
So going back to the issue of the untimeliness of when they raised their issue on the Qualcomm case.

[00:23:57] Speaker 01:
They tried to excuse that with, well, you could have asked the board for a sir reply.

[00:24:01] Speaker 01:
Which, by the way, it's not as of right.

[00:24:04] Speaker 01:
That's maybe they would allow it, but that doesn't excuse.

[00:24:07] Speaker 01:
They had the burden.

[00:24:08] Speaker 01:
They knew about it.

[00:24:09] Speaker 01:
It was foreseeable.

[00:24:10] Speaker 01:
They had the burden to address the non-negligible amounts of energy, and they didn't do it.

[00:24:14] Speaker 01:
They chose not to do it.

[00:24:16] Speaker 01:
And when they had another opportunity to do it on reply, they couldn't get an expert to say it because it's not true.

[00:24:21] Speaker 01:
It's inconsistent.

[00:24:23] Speaker 01:
Their expert would not have been able to support the position to talk about these systems being commercially viable, to being meeting standards,

[00:24:29] Speaker 01:
And so that's it.

[00:24:31] Speaker 01:
I'm out of time.

[00:24:32] Speaker 01:
I think you got it.

[00:24:33] Speaker 01:
Thank you very much.