[00:00:00] Speaker 03:
My next case is Parker Vision versus Intel, 2022, 2173.

[00:00:05] Speaker 03:
Mr. Chalko, you may proceed.

[00:00:11] Speaker 01:
Good morning, Your Honors.

[00:00:13] Speaker 01:
My name's Jason Charco.

[00:00:14] Speaker 01:
I represent Parker Vision.

[00:00:15] Speaker 01:
And I want to address three issues today.

[00:00:18] Speaker 01:
Issue number one is Downey Cedra does not disclose a switch.

[00:00:21] Speaker 01:
And there's some very important stuff that I would like to point the court to that I think would be helpful to its decision.

[00:00:26] Speaker 01:
Number two, the PTAB's definition of switch is wrong.

[00:00:29] Speaker 01:
And there's additional information that I would like to point the court to.

[00:00:32] Speaker 01:
Not additional, but focus the court on certain issues.

[00:00:35] Speaker 01:
And we also believe, as we said in our brief, there's an Administrative Procedures Act violation.

[00:00:40] Speaker 01:
our inability to respond to certain issues that were raised for the first time in petitioners' reply.

[00:00:46] Speaker 04:
Yes, sir.

[00:00:48] Speaker 04:
It seems to me that an elementary factor in your argument with respect to the switch, it just seems to me that it contravenes the understanding of what a switch is

[00:01:08] Speaker 04:
in the industry.

[00:01:09] Speaker 04:
I mean, the switch is an electronic device for opening and closing a circuit.

[00:01:16] Speaker 04:
And your arguments appear to

[00:01:19] Speaker 04:
want to lead us to reach some other type of definition.

[00:01:24] Speaker 01:
I would like to address that, your honor.

[00:01:26] Speaker 01:
So I'll start with that.

[00:01:28] Speaker 04:
Do you think, am I correct, it's an electric device for opening and closing a circuit?

[00:01:33] Speaker 04:
That's a switch.

[00:01:34] Speaker 01:
I think that's part of it, your honor.

[00:01:35] Speaker 01:
So when you look at the patent, as with any patent, you have to look at the... What do you mean part?

[00:01:41] Speaker 04:
That is the definition of a switch.

[00:01:43] Speaker 01:
So when you're looking at the definition of a switch, you have to look at how it's talked about in the patent, correct?

[00:01:49] Speaker 01:
Like we have to look at what the patent talks about a switch.

[00:01:52] Speaker 04:
I understand that for the purposes of this case, but generally speaking, a switch is an electric device for opening and closing.

[00:01:59] Speaker 01:
Right, like a wall switch or something you open and close.

[00:02:02] Speaker 01:
Yeah, I would agree that in the general context, but bringing it back to where the patent stands, right?

[00:02:06] Speaker 01:
So if we look at what's disclosed in the patent, I think that's relevant to look at.

[00:02:11] Speaker 01:
and all the embodiment, your honor, so if I could hit that issue first.

[00:02:15] Speaker 01:
Our position is that there is, with regards to the patent, there is no lexicography.

[00:02:23] Speaker 01:
So the PTAB relied on one sentence in a section called to control a switch.

[00:02:29] Speaker 01:
It's not a definition of the switch.

[00:02:31] Speaker 01:
It doesn't say what the switch is, okay?

[00:02:33] Speaker 01:
So it's

[00:02:34] Speaker 01:
It doesn't say the switch means this, the switch refers to this, the switch is this.

[00:02:39] Speaker 01:
There was no clear intent to define in that section.

[00:02:42] Speaker 01:
That's the only, that one sentence in column, I forget what it is, but that one sentence that the PTAB relied upon.

[00:02:50] Speaker 01:
And in that one sentence, if that is not lexicography, which we don't believe it is, then you have to look at the rest of the patent.

[00:02:58] Speaker 01:
And in the context of the rest of the patent,

[00:03:00] Speaker 01:
Every diagram, it's not, this is just an embodiment.

[00:03:03] Speaker 01:
This is how the patent works fundamentally.

[00:03:05] Speaker 01:
Every diagram, every disclosure talks about what a switch is, and everything talks about having an independent control input.

[00:03:12] Speaker 01:
Every single diagram, and that's just because the patent doesn't work, the technology doesn't work without the ability to control the opening and closing of a switch.

[00:03:21] Speaker 01:
And without, you won't get a system that operates what will happen if you don't have, you can't,

[00:03:25] Speaker 01:
the whole point of the system is to open and close the switch and basically up convert a signal and you need that control signal to do it and it has to be independent you have to be able to independently control them so and then the reason why it's not like psychography your honors is because if you look at the discussion of

[00:03:54] Speaker 01:
So this is in column seven of the patent, your honors.

[00:04:01] Speaker 01:
And you look down to lines 57, that's where the PTAB relied upon.

[00:04:07] Speaker 01:
And again, not a definition of a switch.

[00:04:10] Speaker 01:
The last line is what they focus on.

[00:04:12] Speaker 01:
It says, if the switch is controlled by an electronic signal,

[00:04:16] Speaker 01:
it is typically a different signal than the signals connected to either terminal of the switch.

[00:04:23] Speaker 04:
Let's look at claim one.

[00:04:25] Speaker 04:
Sure.

[00:04:26] Speaker 04:
And point to any elements of claim one regarding that there's an express requirement for independent control on the operation of the switch.

[00:04:39] Speaker 01:
Independent control?

[00:04:40] Speaker 01:
Well, there is independent control for operation of the switch.

[00:04:44] Speaker 01:
There's a discussion about control signals.

[00:04:47] Speaker 01:
But control signals are different than independent control inputs.

[00:04:50] Speaker 01:
Inputs and signals, like the back of my TV, has inputs to it.

[00:04:55] Speaker 01:
And I have connections into that TV.

[00:04:56] Speaker 01:
And signals can go into that.

[00:04:58] Speaker 01:
But an input is like a port.

[00:04:59] Speaker 01:
A signal is something else.

[00:05:01] Speaker 04:
Show me claim one.

[00:05:03] Speaker 01:
What is that?

[00:05:04] Speaker 01:
Well, Your Honor, it talks about a switch.

[00:05:08] Speaker 01:
That's our belief that that is where that element lies, the independent control input.

[00:05:14] Speaker 01:
And it talks about a signal, a control signal.

[00:05:18] Speaker 04:
I'm referring to an express requirement for the independent control input for each switch.

[00:05:30] Speaker 01:
The words independent control input is not in the

[00:05:34] Speaker 01:
in the claim, but that doesn't mean that a switch doesn't include that concept, especially where it talks about a control signal.

[00:05:42] Speaker 01:
A control signal has to come through something.

[00:05:44] Speaker 02:
Did you have expert testimony that this wouldn't work without the independent control?

[00:05:51] Speaker 02:
You said that this morning, but that's lawyer arguing.

[00:05:54] Speaker 02:
Did you have expert testimony to that effect?

[00:06:00] Speaker 01:
I'm not sure.

[00:06:01] Speaker 01:
Let me see.

[00:06:03] Speaker 01:
I don't recall, Your Honor.

[00:06:10] Speaker 01:
So the bottom line is that the only thing that the board was relying upon was this one sentence that talked about a signal.

[00:06:19] Speaker 01:
A signal is not an input.

[00:06:20] Speaker 01:
Inputs and signals are two different things.

[00:06:22] Speaker 01:
If it's not lexicography, then it opens up to the whole specification.

[00:06:27] Speaker 01:
And the whole specification, when you look at specification,

[00:06:29] Speaker 01:
specifically states every diagram, every embodiment, specifically states that this is how it works.

[00:06:36] Speaker 01:
It has to have an independent control input.

[00:06:39] Speaker 01:
And I'd like to point your honors to Appendix 1430.

[00:06:48] Speaker 01:
And this is page 46 of our opening brief.

[00:06:52] Speaker 01:
And there's a diagram there.

[00:06:54] Speaker 01:
It looks like this.

[00:06:58] Speaker 01:
And so I think this kind of explains the point of why this typical language is not about inputs.

[00:07:08] Speaker 01:
And it's not saying that that language doesn't preclude that you could have an independent control input, which is what the board argued and the board held.

[00:07:16] Speaker 01:
And so I'm going to read the language.

[00:07:18] Speaker 01:
And it's figure 28A.

[00:07:20] Speaker 01:
It has a pink box around it.

[00:07:21] Speaker 01:
And I'm going to read the language.

[00:07:23] Speaker 01:
And I think it's helpful to see.

[00:07:25] Speaker 01:
It says, if the switch is controlled by an electronic signal,

[00:07:28] Speaker 01:
It is typically a different signal than the signals connected to either terminal of the switch.

[00:07:33] Speaker 01:
Well, that's 28A.

[00:07:34] Speaker 01:
That's what it shows.

[00:07:35] Speaker 01:
You see, there's a blue input coming on an input.

[00:07:38] Speaker 01:
There's a green output going on the output.

[00:07:41] Speaker 01:
And there's a red, another red input coming in.

[00:07:44] Speaker 01:
So there is an independent control input.

[00:07:46] Speaker 01:
So that's the typical case, 28A.

[00:07:48] Speaker 01:
If you look at 28C and 28D on the same page as your honor, what you see is a different configuration.

[00:07:56] Speaker 01:
And you see an input, you see an output, and you still see on the output there's two signals on the output, right?

[00:08:03] Speaker 01:
So this I guess you call the atypical situation.

[00:08:06] Speaker 01:
But there's two signals on the output, so it doesn't fall into the typical situation.

[00:08:09] Speaker 01:
So let's call it the atypical situation.

[00:08:11] Speaker 01:
You still have an independent control input.

[00:08:13] Speaker 01:
You still have that red line.

[00:08:15] Speaker 01:
Figure 28 see of our brief page 46 and you still have that REM lines 1604 coming in That's an independent control input all embodiments have independent control inputs.

[00:08:25] Speaker 01:
It's not a preferred embodiment.

[00:08:27] Speaker 01:
It is it is the only embodiment So that's it with regards to

[00:08:35] Speaker 01:
independent control inputs and why the board got it wrong because they looked at a single sentence and that sentence is not lexicography not is not it means it refers to it's talking about control and that and therefore it opens it up to the whole specification and when you look at the whole specification this is what the Florida court did

[00:08:54] Speaker 01:
When they came up with their construction, they looked at this very passage about typical.

[00:08:58] Speaker 01:
They said they looked at the passage.

[00:08:59] Speaker 01:
They said, we see it says typical.

[00:09:01] Speaker 01:
And then they went to the rest of the specification.

[00:09:03] Speaker 01:
And they said, when we look at everything, the district court in Florida, they said, we see it to have an independent control input.

[00:09:08] Speaker 01:
And that's where the definition originally came from.

[00:09:10] Speaker 01:
And then the district court in Texas said the same thing.

[00:09:13] Speaker 01:
But the court in Florida also looked at the same exact thing.

[00:09:17] Speaker 01:
And apparently, they didn't find lexicography either because they opened it up to the entire specification.

[00:09:21] Speaker 01:
And that's why the switch in this particular case

[00:09:24] Speaker 01:
is a electronic device that is dictated by an independent control input, the opening and closing of a circuit.

[00:09:34] Speaker 01:
If I may, if you have any additional questions, I'll move on to my first point.

[00:09:40] Speaker 01:
Thank you, Your Honor.

[00:09:42] Speaker 01:
So I think an important point that I want to point out to Your Honor is

[00:09:47] Speaker 01:
They're even under the PTAB's control.

[00:09:49] Speaker 01:
Even if you take the construction of a switch as an electronic device for opening and closing a circuit, Downey, et cetera, combined together does not disclose that.

[00:09:58] Speaker 01:
And I think the PTAB overlooked what was going on.

[00:10:03] Speaker 01:
So if you could turn to page 48 of the brief, and I would like to talk about this diagram.

[00:10:09] Speaker 01:
It has a brown triangle and a brown line around it.

[00:10:14] Speaker 01:
And it's an important diagram because Downey

[00:10:17] Speaker 01:
Itself explains what that configuration is it tells you exactly what that is and it says it's not a switch It's a it's a configuration that is always on it's never going on and off And so if you look at and this is also in our patent owner response at appendix 2381 and so what you can see in this this is figure 2c of downing and figure 2 again page 48 of the brief in figure 2c what we can see is a brown triangle and

[00:10:44] Speaker 01:
And we see what's called a feedback line.

[00:10:47] Speaker 01:
That feedback line causes that whatever is in that brown triangle to stay on.

[00:10:53] Speaker 01:
It's specifically designed to stay on.

[00:10:55] Speaker 01:
And our expert does talk about that.

[00:10:59] Speaker 01:
And so we talk about it in Appendix 2352.

[00:11:02] Speaker 01:
And it's Dr. Steer's declaration at Appendix 2598.

[00:11:06] Speaker 01:
Sorry, that's the wrong site.

[00:11:12] Speaker ?:
Sorry.

[00:11:12] Speaker 01:
appendix 2632 at paragraph 198 and what he said is he said that always stays on and how did he know that because he went into Downey and Downey said what that little triangle was Downey specifically said at appendix 448 which is the Downey patent column 5 line 21.

[00:11:34] Speaker 01:
He said that inverter is a specific part number

[00:11:37] Speaker 01:
He said, that is a specific part.

[00:11:39] Speaker 01:
It's a fair child semiconductor part.

[00:11:41] Speaker 01:
Look at that.

[00:11:42] Speaker 01:
So that's what Dr. Steer did.

[00:11:43] Speaker 01:
He looked at that.

[00:11:44] Speaker 01:
He went to look at what they were disclosing.

[00:11:47] Speaker 03:
So, yes.

[00:11:49] Speaker 03:
That's fine, Your Honor.

[00:11:52] Speaker 01:
I'm going to continue if I could, Your Honor.

[00:11:55] Speaker 01:
And so what did Dr. Steer do?

[00:11:58] Speaker 01:
He looked at

[00:11:59] Speaker 01:
Appendix 2550 to 53 and what did he find?

[00:12:03] Speaker 01:
He found what Downey talked about so this is on Appendix 2550 so Downey this is a diagram All right, and what is it?

[00:12:13] Speaker 01:
What does it say it says in this configuration?

[00:12:16] Speaker 01:
So if you see on the top right there, you see the configuration it has that by the feedback line Here's figure 2c feedback line, right?

[00:12:27] Speaker 01:
Brown triangle feedback line.

[00:12:28] Speaker 01:
And that's a very important configuration because what is this appendix 2550 saying?

[00:12:33] Speaker 01:
It says it's acting in a linear mode of operation.

[00:12:37] Speaker 01:
A linear mode of operation.

[00:12:38] Speaker 01:
That configuration is a linear mode of operation.

[00:12:41] Speaker 01:
You can't just look at the triangle, which is what the patent office did, and what the petitioners did.

[00:12:46] Speaker 01:
They just looked at that triangle.

[00:12:47] Speaker 01:
You can't do that.

[00:12:47] Speaker 01:
You've got to look at the whole circuit.

[00:12:49] Speaker 01:
And so when you look at the whole circuit, Downey says that it's a linear amplifier.

[00:12:53] Speaker 01:
So what is a linear, it's an amplifier that's operating in a linear mode.

[00:12:59] Speaker 01:
I apologize.

[00:13:01] Speaker 01:
And so what does that mean?

[00:13:02] Speaker 01:
Well, let's look at what the petitioners pointed to.

[00:13:05] Speaker 01:
If you look at APPX 3.119, what does it say?

[00:13:09] Speaker 01:
It says a linear amplifier

[00:13:12] Speaker 01:
for a linear amplifier, it says transistor operation lies somewhere between being fully on and fully off, meaning it's on all the time.

[00:13:23] Speaker 01:
So that specific configuration is always on, never off.

[00:13:27] Speaker 01:
And like I said, Dr. Steer, Appendix 2632, Paragraph 198, and he cited this very document, APPX 2550 to 53.

[00:13:41] Speaker 01:
So what did they do?

[00:13:43] Speaker 01:
They said, well, put Cedra in there.

[00:13:44] Speaker 01:
Put Cedra in because it shows a switch.

[00:13:46] Speaker 01:
So they say, Cedra shows a little triangle and Downey discloses a little triangle.

[00:13:52] Speaker 01:
So they said, put a switch in there.

[00:13:53] Speaker 01:
But if you put the switch in there, all that does is it causes the switch to always stay closed.

[00:13:57] Speaker 01:
That bypass, you can't ignore that.

[00:13:59] Speaker 01:
Sorry, it's a feedback line.

[00:14:01] Speaker 04:
No one disputed that Cedra is a switch.

[00:14:04] Speaker 01:
No.

[00:14:05] Speaker 01:
Sedra is configured as a switch.

[00:14:07] Speaker 04:
You don't dispute that today.

[00:14:08] Speaker 01:
Correct.

[00:14:08] Speaker 01:
Sedra is configured as a switch.

[00:14:10] Speaker 01:
But if you put a switch in something that's meant to keep it on all the time, meaning that it's closed all the time, it doesn't operate as a switch.

[00:14:18] Speaker 01:
So if you take a switch and you close it all the time, it stays closed, which means that that circuit that they're pointing to is always on.

[00:14:26] Speaker 01:
It never shuts off, ever.

[00:14:28] Speaker 01:
And Dr. Steer explained that, and I explained that to you.

[00:14:32] Speaker 01:
And the problem is, if you use it as a switch.

[00:14:34] Speaker 03:
Counsel, you've elected to use up your time.

[00:14:38] Speaker 03:
I just want to make sure you understand that you won't have any rebuttal time.

[00:14:43] Speaker 01:
OK.

[00:14:44] Speaker 01:
I'll have some rebuttal time, Your Honor.

[00:14:46] Speaker 01:
OK, thank you.

[00:15:01] Speaker 00:
Thank you, and may it please the court.

[00:15:04] Speaker 00:
This case really has two discrete issues.

[00:15:07] Speaker 00:
One, dealing with claim construction on the second switch limitation, and the other, a factual dispute about the first and third switch limitations.

[00:15:16] Speaker 00:
I'll start with the factual dispute, because that's what opposing counsel just ended with.

[00:15:22] Speaker 00:
We can sit here all day and debate about whether

[00:15:26] Speaker 00:
what Downey shows and whether this feedback loop means the switch is always on.

[00:15:31] Speaker 00:
But that's not what this court is here to do.

[00:15:33] Speaker 00:
The court is not here to reweigh the evidence.

[00:15:37] Speaker 00:
The board looked at the evidence on both sides, including the expert testimony on both sides, and found Intel's evidence more persuasive and found Intel's expert more credible.

[00:15:50] Speaker 00:
And so having considered all of the evidence that

[00:15:55] Speaker 00:
Parker vision is talking about now that the board resolved that factual dispute and like I said this court gives broad deference to the the the boards weighing of the evidence and You know Parker vision is is asking for you to reweigh the evidence on appeal and that's simply not not the job of this court

[00:16:19] Speaker 02:
On the second issue... What did Intel's expert say about Downey and the argument that this item is always on?

[00:16:30] Speaker 00:
Yes, so in the expert's initial declaration he pointed to the inverter in Downey and said that's the first switch and then in the

[00:16:44] Speaker 00:
Parker Visions expert offered the opinion that no, that's an amplifier that's always on.

[00:16:50] Speaker 00:
And then in the reply declaration from Intel's expert, he explained that it's not this either-or, it can be a switching amplifier.

[00:17:04] Speaker 00:
And Downy describes

[00:17:07] Speaker 00:
the inverter as a nonlinear amplifier and the expert explained why that indicates that it's a switch and can turn on and off.

[00:17:15] Speaker 00:
So yes, there was competing expert testimony on this highly technical factual issue and the board chose to found intel evidence more persuasive.

[00:17:28] Speaker 00:
On the claim construction issue, the Parker vision is really trying to minimize this one sentence in the specification that they keep saying.

[00:17:37] Speaker 00:
But it's in a section called terminology, which is you don't always see sections like this in patents where the patentee is coming out and giving you essentially a glossary of terms that are going to be used in the specification.

[00:17:55] Speaker 00:
And minimizing this as one sentence really ignores that fact.

[00:18:02] Speaker 00:
If you look at that definition, it says that if a switch is controlled by an electron signal, it is typically a different signal than the signals connected to either terminal of the switch.

[00:18:13] Speaker 00:
And we know that typically means usually but not always.

[00:18:18] Speaker 00:
And so a simple grammatical reading of this shows that that can't be a hard and fast requirement of a switch.

[00:18:30] Speaker 00:
The fact that

[00:18:31] Speaker 00:
all of the embodiments may show an independent control input, can't change that.

[00:18:38] Speaker 00:
This court has said on many occasions that even if all embodiments show a specific configuration or a specific limitation, that's not a reason to limit the claims.

[00:18:50] Speaker 00:
And so if you look at the claim language, there's nothing in the claim language to point to their construction.

[00:18:56] Speaker 00:
And the fact that the embodiment showed the independent control input is simply not enough, given this express definition in the specification.

[00:19:08] Speaker 00:
Lastly, I'd just like to mention the district court constructions, which opposing counsel brought up.

[00:19:15] Speaker 00:
There were courts in Texas and Florida that construed SWITCH and adopted Parker Visions.

[00:19:25] Speaker 00:
construction.

[00:19:26] Speaker 00:
The board was obligated to consider those constructions, which it did.

[00:19:30] Speaker 00:
The problem with the constructions is neither court really provided any explanation or analysis of why they adopted those constructions.

[00:19:41] Speaker 00:
So they're really not particularly helpful to this case or this court in showing why Parker Vision's construction should be adopted.

[00:19:56] Speaker 00:
There are no further questions.

[00:19:58] Speaker 03:
Apparently not.

[00:19:59] Speaker 03:
Thank you, Mr. Foreman.

[00:20:00] Speaker 03:
Thank you.

[00:20:01] Speaker 03:
Mr. Charcot, as mentioned, you chose to use your time, but we'll give you a minute for rebuttal.

[00:20:08] Speaker 01:
So going back to the point I was making with putting CEDRA into that triangle,

[00:20:13] Speaker 01:
If you put Sedra into that triangle, it stays on all the time.

[00:20:16] Speaker 01:
It's operating as an amplifier.

[00:20:18] Speaker 01:
You can't change its condition.

[00:20:19] Speaker 01:
So regardless of what you put in that little box, it's an amplifier.

[00:20:22] Speaker 01:
And Downey specifically said it hacks to operate as an amplifier.

[00:20:26] Speaker 01:
Now, if you make Sedra, if you say it's a switch and it opens and closes, if you're saying that you put it in there and it's operating as a switch, well, it won't work.

[00:20:35] Speaker 01:
And we have appendix 2631, paragraph 197 of Dr. Steer's declaration affidavit.

[00:20:43] Speaker 01:
He said, it's configured as a switch, is unsuitable, or would not work to the intended purpose as an amplifier if it was a switch, if it was opening and closing.

[00:20:52] Speaker 01:
He specifically says.

[00:20:53] Speaker 01:
And then Appendix 2609, paragraph 151, you have that gained.

[00:20:59] Speaker 01:
And then the other thing, Your Honor, with regards to claim construction, it's about Phillips.

[00:21:04] Speaker 01:
And it's Phillips and the section talking about definition or terminology, he did not point to one thing

[00:21:12] Speaker 01:
which said, switch means this.

[00:21:14] Speaker 01:
He said he's pointing to a section that has nothing to do with what a switch means.

[00:21:19] Speaker 01:
Thank you, Your Honor.

[00:21:20] Speaker 03:
Thank you, Counsel.

[00:21:21] Speaker 03:
We'll take the case to run the submission.