[00:00:00] Speaker 04:
The first case is 23-1629, Samsung Electronics versus Power2D.

[00:00:07] Speaker 04:
Ms.

[00:00:07] Speaker 04:
Stewart, you reserve five minutes for rebuttal?

[00:00:12] Speaker 04:
Yes, sir.

[00:00:13] Speaker 04:
When you're ready.

[00:00:15] Speaker 01:
May it please the court, Coke Stewart from a Melvin A. Myers for Appellant Samsung.

[00:00:20] Speaker 01:
Samsung's appeal addresses two claim construction issues and one question of substantial evidence.

[00:00:26] Speaker 01:
And if you agree with Samsung on either, you would have to reverse the board, starting with the claim construction issues.

[00:00:33] Speaker 01:
The board read the term detector assembly in the independent claims to require two or more detectors arranged on one edge.

[00:00:41] Speaker 01:
But nowhere in those claims is the requirement of two detector elements, nor is that requirement found in the specification.

[00:00:49] Speaker 01:
Yes, there are many examples of multiple detectors, but the specification states only that preferably

[00:00:56] Speaker 01:
The detector assembly includes an arrangement of detector elements, plural.

[00:01:00] Speaker 00:
Can I ask you before you go on?

[00:01:02] Speaker 00:
Yes, sir.

[00:01:03] Speaker 00:
First of all, about whether you forfeited the arguments?

[00:01:06] Speaker 01:
Your Honor, we did not forfeit the arguments.

[00:01:09] Speaker 01:
With respect to the single detector and one edge argument, first in our petition on page 556, Samsung referred to Reem, paragraph 69, at appendix 894.

[00:01:22] Speaker 01:
And that refers to figure 13C.

[00:01:25] Speaker 01:
Figure 13C shows a touchpad with four transceivers inside four edges of the touchpad.

[00:01:31] Speaker 01:
So basically there, we're arguing a single detector on one edge at each time.

[00:01:37] Speaker 01:
Second, in the reply, at appendix 7562, Samsung opposed Power2B's claim construction and argued that the claims are indifferent to whether the detector assembly includes a single detector element or multiple detector elements.

[00:01:52] Speaker 01:
There are also two more references in the reply.

[00:01:55] Speaker 01:
Samsung argued at appendix 7567 that power-to-be's construction introduces a new concept of array and excludes a single detector embodiment.

[00:02:05] Speaker 01:
And finally, at appendix 7572, again referring to Reem, Samsung also cited to its experts' testimony that detectors 30 and 32 would each be a detector assembly arranged at at least one edge of the interactive surface.

[00:02:21] Speaker 03:
We're looking at two different IPRs, if I'm not mistaken.

[00:02:25] Speaker 03:
Were all of those points that you just listed made in both of the IPRs, or just one of them?

[00:02:31] Speaker 01:
I believe they were, Your Honor, but most of the citations we've been relying on just for simplicity have been from the 850.

[00:02:38] Speaker 03:
You don't see it as any different issue before your question for the two IPRs?

[00:02:43] Speaker 01:
No, Your Honor.

[00:02:44] Speaker 01:
We do not.

[00:02:46] Speaker 01:
Also, referring to what the meaning of assembly is,

[00:02:50] Speaker 01:
This question of whether there are multiple detectors, I think, gets caught up in the meaning of assembly.

[00:02:55] Speaker 01:
And we agree that assembly includes two or more elements.

[00:02:59] Speaker 01:
But the elements don't have to include multiple detectors.

[00:03:02] Speaker 01:
For example, in the specification discussing Figure 4 at Appendix 394, it explains that in the preferred embodiment, the assembly comprises, broadly, a support substrate, detector elements, and a cover layer.

[00:03:19] Speaker 01:
And this description of the assembly

[00:03:21] Speaker 01:
being that's the multiple parts, is tracked almost identically in claims 15 through 19 of the 850 patent, where the dependent claims break up the assembly.

[00:03:31] Speaker 04:
So if we agree with you that there doesn't have to be more than one detector, is there any dispute that the prior art shows an assembly of two or more elements?

[00:03:45] Speaker 04:
If it has one detector, is there any dispute that there is an additional element?

[00:03:49] Speaker 01:
No.

[00:03:50] Speaker 01:
No, Your Honor, because I said the assembly is so broadly described in the specification as just basically including some kind of substrate that the detectors rest on and then a cover layer or a housing or some other component.

[00:04:03] Speaker 01:
So no, Your Honor, I don't think there's any dispute about whether under any interpretation Reem teaches an assembly.

[00:04:10] Speaker 01:
Turning to the edge construction, I think that's even simpler.

[00:04:15] Speaker 01:
Here, even if the dependent claims require more than one detector, they don't require it to be on a single edge.

[00:04:21] Speaker 01:
The claims always explicitly or implicitly require that the detector assembly be at at least one edge.

[00:04:29] Speaker 01:
And the specification states six times that at edges or at an edge is to be interpreted broadly.

[00:04:36] Speaker 01:
And this makes sense, because a person of ordinary skill in the art would not look at the

[00:04:41] Speaker 01:
exemplary figures in the specification and say, okay, well, if the detectors were at the corner or there was a piece of the assembly on one side and the other, that somehow that wasn't meeting the claim elements because it wasn't on a single edge.

[00:04:54] Speaker 01:
And this is fatal to the edge portion of the board's construction, and therefore to its conclusion that RIEM doesn't teach a detector assembly.

[00:05:04] Speaker 01:
Lastly, turning to another independent basis to reverse the board, and that's the application of RIEM 2,

[00:05:11] Speaker 01:
the claim construction.

[00:05:13] Speaker 01:
Under any claim construction, Reem meets the claim limitations.

[00:05:18] Speaker 01:
And I'll give you three reasons why.

[00:05:19] Speaker 01:
First, the text of Reem.

[00:05:22] Speaker 01:
Reem makes it painfully clear that it prefers multiple groups of optical components that include receivers.

[00:05:29] Speaker 01:
Just on the first page of Reem in the abstract, that's at 1874, it explains that not one but one or more groups of optical components are used to

[00:05:39] Speaker 01:
to determine the location of an object.

[00:05:42] Speaker 01:
And the same language is found throughout the reference.

[00:05:44] Speaker 01:
For example, in the first full page of RAIM, and that's at appendix 1891, it teaches that at least one group can be arranged at different locations thereof, referring to the touchpad.

[00:05:58] Speaker 01:
And then when you look at descriptions of figures, for examples in paragraphs 52 through 57 at 1893, it discusses one, two, three, four groupings

[00:06:09] Speaker 01:
And it's obvious they're illustrative, and there's no upper limit to the number of groupings that can be on various edges.

[00:06:16] Speaker 04:
The second reason why ream meets either construct... I struggle a little bit with this part of the argument, because at least the diagrams that I've looked at don't have multiple detectors on one edge.

[00:06:32] Speaker 04:
Well, I think there are two ways to... Are there any actual

[00:06:37] Speaker 04:
examples in the specification, or are you relying on the broader language you're pointing us to?

[00:06:42] Speaker 01:
So, I definitely think we're relying on three different reasons why.

[00:06:47] Speaker 04:
Well, let me just cut to the chase.

[00:06:49] Speaker 04:
I mean, I'm looking at 6A, 6B, and 9E.

[00:06:53] Speaker 04:
None of those have multiple detectors along one edge, right?

[00:06:56] Speaker 01:
Correct.

[00:06:57] Speaker 04:
Is there anything that we've missed that actually shows a specific

[00:07:02] Speaker 04:
example where there are more than one detector along one edge if we agreed with the board's construction on both points?

[00:07:09] Speaker 01:
I do think there are examples.

[00:07:11] Speaker 01:
First of all, there's the example in the specification of the circular edge.

[00:07:16] Speaker 01:
I mean, it doesn't have to be.

[00:07:17] Speaker 01:
It's like looking at these touch screens.

[00:07:20] Speaker 01:
There's kind of like the touchpad equivalent of a stick figure.

[00:07:25] Speaker 01:
It's not really meant to show in great detail.

[00:07:28] Speaker 01:
A little bit more like the patent specification

[00:07:32] Speaker 01:
It's obviously not meant to show that level of detail.

[00:07:35] Speaker 01:
It's just showing the very basics about the way Reem works.

[00:07:39] Speaker 01:
And so even though at first flush it looks like, OK, there's one box within a square, and that one box is a receiver, we have, I think, persuasive testimony from our expert, Dr. Betterson, that a person of ordinary skill in the art, thinking about how you would actually construct this device, would not be thinking, OK, you've got one.

[00:08:02] Speaker 04:
Can I take you a little bit different place?

[00:08:04] Speaker 04:
If we agree with you that there only has to be one detector in an assembly, for the independent claims that don't have the plurality of detectors, is that just a reverse then?

[00:08:18] Speaker 04:
Or does the board need to look at it again?

[00:08:23] Speaker 04:
Is there any other parts of the claim that's disputed with regards to the prior art?

[00:08:29] Speaker 01:
We think it's a reversal, because there are other elements in claim 15 and 26.

[00:08:36] Speaker 01:
But when you look at claim 31, all those elements are found elsewhere in claims where the board found the limitations to be taught.

[00:08:43] Speaker 04:
Was there any dispute about those before the board?

[00:08:46] Speaker 01:
No.

[00:08:46] Speaker 01:
Power to Be didn't dispute the other elements.

[00:08:48] Speaker 04:
It was just about the two detectors.

[00:08:50] Speaker 01:
Yes.

[00:08:50] Speaker 01:
I just wanted to clarify, because I'm not sure it was crystal clear in the briefing, that not only did Power to Be not dispute those other elements, but the board affirmatively found

[00:08:59] Speaker 01:
with made fact findings as to those elements because they are found in claim 31.

[00:09:04] Speaker 03:
Are there not some claims that even if we agreed with you on the detector assembly and to say we agree with you on at least one edge, are there not some claims that we would have to remand for further consideration?

[00:09:16] Speaker 01:
Yes.

[00:09:16] Speaker 01:
Because once the board said that this detector assembly element wasn't met, it just stopped its work.

[00:09:22] Speaker 01:
It didn't continue to make

[00:09:23] Speaker 01:
additional fact findings and reach other claim elements.

[00:09:26] Speaker 04:
And that's all the plurality dependent claims.

[00:09:29] Speaker 04:
Right.

[00:09:29] Speaker 04:
Are there any other independent claims we would have to look at?

[00:09:32] Speaker 01:
I do not believe so, Your Honor.

[00:09:33] Speaker 01:
Those were affirmed.

[00:09:34] Speaker 03:
On the circular embodiment of Reem, Power TV says you didn't make any argument about that to the board, and it would be unfair for us to reach that.

[00:09:44] Speaker 03:
What's your response to that?

[00:09:45] Speaker 01:
Yeah, so we didn't explicitly call out that embodiment.

[00:09:48] Speaker 01:
But I think the point we're just trying to make, as we said, there are a lot of different ways

[00:09:52] Speaker 01:
We pointed to so many different figures in Reem and we were just trying to make the general point that there are a lot of ways to come at this and the figure is very broad.

[00:10:01] Speaker 01:
And we thought it was important context to just point out in the specification in Reem that, you know, it could be a square, it could be an oval, it could be a circle, it could be a lot of different shapes and not to be so hung up on, you know, kind of missing the forest or the trees by just looking at the simple examples they gave.

[00:10:21] Speaker 01:
If your honors have no more questions, I'll reserve my time for rebuttal.

[00:10:24] Speaker 03:
Thank you.

[00:10:24] Speaker 01:
Thank you.

[00:10:30] Speaker 04:
Mr. Dimming, it looks like you reserved three minutes for rebuttal on your class appeal.

[00:10:37] Speaker 04:
That's right, your honor.

[00:10:40] Speaker 04:
When you're ready.

[00:10:41] Speaker ?:
Thank you.

[00:10:52] Speaker 02:
Good morning, Your Honors.

[00:10:56] Speaker 02:
May it please the Court, Mark Deming from Polsonelli on behalf of Power To Be.

[00:11:00] Speaker 02:
Your Honor, I'd like to begin with the Detector Assembly claims that are at issue today.

[00:11:05] Speaker 02:
And at the outset, we believe, Your Honor, that

[00:11:09] Speaker 02:
under any construction, substantial evidence supports the board's findings.

[00:11:13] Speaker 02:
And so although there's been a lot of discussion this morning about different claim constructions, whether or not those have been forfeited, we believe that even if the court were to go with SAMHSA's construction, the board's finding that we did not render the claims of patentable would still be supported by substantial evidence.

[00:11:29] Speaker 02:
The reason for that is that

[00:11:30] Speaker 02:
Samsung failed to identify components in Reem constituting an assembly.

[00:11:35] Speaker 02:
It generally referred to all of the optical components in Reem.

[00:11:39] Speaker 02:
The detectors and the emitters essentially pointed to a box of parts and said some combination of them could be an assembly, but with no explanation.

[00:11:47] Speaker 02:
The board said that this collection of components did not satisfy the claim language.

[00:11:52] Speaker 02:
These multiple components, multiple detectors, multiple emitters do not constitute an assembly.

[00:11:57] Speaker 04:
And so under any construction... Wasn't there a basis for that, that they read the claim as requiring more than one detector?

[00:12:05] Speaker 02:
We are.

[00:12:06] Speaker 02:
I think the board evaluated Samson's original argument, which was emitters and detectors, and said that that did not constitute an assembly.

[00:12:15] Speaker 02:
The board even considered Dr. Peterson's testimony in the deposition

[00:12:19] Speaker 02:
where he identified only two detector elements and said that each of those was an assembly, which wasn't even an argument that Samsung had made.

[00:12:28] Speaker 02:
And then the board even went further and considered the two elements collectively as one assembly, which is an argument that neither Samsung nor Dr. Peterson made.

[00:12:37] Speaker 02:
And the board found that in each of those cases, those did not constitute a detector assembly.

[00:12:42] Speaker 04:
Why isn't it correct, though,

[00:12:44] Speaker 04:
Its analysis was assuming we agree with Samsung that only one detector is required in an assembly.

[00:12:54] Speaker 04:
Why isn't the board's further analysis infected by that error?

[00:12:59] Speaker 02:
The board looked at the evidence that Samsung put forward, which was detectors plus emitters, and said that emitters cannot be part of the assembly.

[00:13:07] Speaker 02:
So the only two types of components that Samsung identified were emitters and detectors.

[00:13:12] Speaker 02:
And the board said emitters cannot be part of the detector assembly.

[00:13:15] Speaker 02:
I don't believe that that finding is the point.

[00:13:17] Speaker 04:
Why did they say that?

[00:13:18] Speaker 02:
An emitter emits, is the words explanation.

[00:13:21] Speaker 04:
Right, because they were looking for a second detector.

[00:13:24] Speaker 04:
And obviously an emitter is not a detector, but if they didn't need a second detector, why isn't there an assembly there?

[00:13:32] Speaker 02:
A single detector by itself would not be an assembly, Your Honor.

[00:13:35] Speaker 02:
even on appeal.

[00:13:36] Speaker 03:
Samson does not argue that a single detector by itself constitutes... I understand their construction to be a detector assembly is a single detector, one or more detectors, plus one or more other components, which doesn't have to be a detector.

[00:13:50] Speaker 03:
That's their position, right?

[00:13:52] Speaker 02:
That is my understanding as well, Your Honor.

[00:13:53] Speaker 03:
And are you actually arguing that if we adopt their construction that you still win?

[00:14:00] Speaker 02:
Yes, your honor, because what the board said, because I agree with your honor, that what Samsung, as I understand it, the plane construction position, is that it's a detector plus something else.

[00:14:08] Speaker 02:
They're saying it doesn't need to be a second detector.

[00:14:10] Speaker 03:
Plus any other component.

[00:14:11] Speaker 02:
Yes, but the only components that Samsung identified and made of record in the proceeding below was detectors and emitters, and the board said... Well, I don't know if that's true, but even if it is, an emitter is an other component, wouldn't you agree?

[00:14:24] Speaker 02:
But the board said that admitted.

[00:14:26] Speaker 03:
But your argument, if I understand it correctly, is if we adopt their construction, you still win.

[00:14:31] Speaker 03:
And you just keep saying the board rejected their position, got that.

[00:14:36] Speaker 03:
If we say the board was wrong on its construction, how do we affirm?

[00:14:40] Speaker 02:
We are, because my point is that.

[00:14:42] Speaker 04:
The board didn't make an alternative finding that even if they only required one detector, then Samsung still didn't prove that, because it didn't show an assembly, did it?

[00:14:55] Speaker 04:
The board didn't apply the construction that Samsung urges, which is a detector assembly only has to have one detector.

[00:15:05] Speaker 04:
So how do we know that there is no detector assembly here?

[00:15:11] Speaker 04:
I'm opposing counsel about whether it was undisputed if there's some other element in addition to the detector that could be part of the assembly.

[00:15:21] Speaker 02:
Yes.

[00:15:22] Speaker 04:
And I mean, this detector is not free-floating.

[00:15:25] Speaker 04:
It's attached to something.

[00:15:26] Speaker 02:
Yes.

[00:15:27] Speaker 02:
And on appeal, they identified a substrate as an example.

[00:15:30] Speaker 02:
They identified a cover layer as an example.

[00:15:32] Speaker 02:
Neither of those things were things that they identified in the underlying proceeding.

[00:15:36] Speaker 02:
And so we would say that they cannot rely on those new elements now to argue that there's other elements

[00:15:41] Speaker 02:
making up an assembly.

[00:15:42] Speaker 02:
And as a practical matter, I think a substrate or a cover are really just components of a detector.

[00:15:47] Speaker 02:
And so if those would count as an assembly... What about the emitters?

[00:15:50] Speaker 02:
Well, Your Honor, and that's where I think there's a disagreement.

[00:15:55] Speaker 02:
And that the board, I think, made a finding about ream separate from the claim construction as to what types of components could be within a detector assembly.

[00:16:04] Speaker 02:
And it said detectors can be, emitters cannot, because emitters serve a different function.

[00:16:08] Speaker 02:
They emit.

[00:16:08] Speaker 04:
Where?

[00:16:09] Speaker 04:
Can you point that part to me in the board's decision?

[00:16:11] Speaker 04:
I thought that they excluded emitters not because they couldn't be part of the assembly, but because they were looking to see whether an emitter was a detector.

[00:16:20] Speaker 02:
And it clearly isn't.

[00:16:22] Speaker 02:
Your Honor, at Appendix 27, I believe, the Board says the petitioner argues that RIEM includes emitters and receivers or optical sensor components.

[00:16:42] Speaker 02:
The board goes on, as we construe above, a detector assembly has two or more detector elements that detect electromagnetic radiation.

[00:16:47] Speaker 02:
Reims emitters emit light rather than detect it.

[00:16:49] Speaker 02:
And so there is an aspect of the claim construction that you're saying you need more than two.

[00:16:53] Speaker 03:
The board is saying an emitter is not a detector.

[00:16:56] Speaker 03:
No one is saying otherwise.

[00:16:58] Speaker 03:
My question remains, and it's maybe Judge Hughes' too.

[00:17:02] Speaker 03:
If we don't agree with that construction, I don't see how we can affirm the lack of a detector assembly in Reims.

[00:17:11] Speaker 04:
I mean, the best you're going to get is a vacate and remand, not maybe an outright reversal.

[00:17:17] Speaker 04:
Because the board didn't address the question of whether there is an assembly if it only has to have one detector.

[00:17:25] Speaker 04:
That's not what that paragraph says.

[00:17:26] Speaker 04:
I mean, that paragraph specifically says they're pointing to these emitters as part of the assembly.

[00:17:31] Speaker 04:
The emitters are receivers.

[00:17:34] Speaker 04:
They're not detectors.

[00:17:37] Speaker 04:
Or they're emitters, not receivers.

[00:17:40] Speaker 02:
I agree with you.

[00:17:41] Speaker 02:
The board's construction was.

[00:17:43] Speaker 04:
This is not helping you on a substantial evidence point.

[00:17:47] Speaker 02:
I understand, Your Honor.

[00:17:47] Speaker 04:
Maybe you want to actually spend time on the actual claim construction argument.

[00:17:51] Speaker 02:
Yes, Your Honor.

[00:17:53] Speaker 02:
So Your Honor, our primary position on the claim construction argument is that it was forfeited below.

[00:18:00] Speaker 02:
Let's assume it's not.

[00:18:02] Speaker 02:
Yes, Your Honor.

[00:18:05] Speaker 02:
So the board's construction was correct.

[00:18:07] Speaker 02:
Power-to-Be proposed two aspects to its construction.

[00:18:11] Speaker 02:
It proposed that the detector assembly had to be

[00:18:13] Speaker 02:
two or more detector elements, and it also had to be a distinct structure.

[00:18:18] Speaker 02:
The board did not adopt the distinct structure aspect of power to beast construction, but did adopt the two or more elements.

[00:18:26] Speaker 02:
The board's construction is fully supported by all of the intrinsic evidence.

[00:18:29] Speaker 02:
The plain language of the claims says an assembly, which is more than just a detector element, if the patentee wanted to claim a detector element,

[00:18:36] Speaker 02:
It could have, but it claimed an assembly.

[00:18:39] Speaker 02:
The dependent claims are consistent with this.

[00:18:42] Speaker 04:
Claims 17, 18, and 19, which are at appendix 420, each referred... Can you point to me your best example of an independent claim that suggests that an assembly has to have two or more detectors?

[00:18:56] Speaker 02:
You are any of the independence claims when they say the word assembly it is an asset assemblage of something.

[00:19:01] Speaker 02:
It is not merely a detector element.

[00:19:03] Speaker 02:
It's an assemblage of detector elements.

[00:19:05] Speaker 02:
So I think any of the independent claims are best.

[00:19:07] Speaker 04:
Is that a natural reading of detector assembly?

[00:19:09] Speaker 04:
Why can't an assembly be one detector and something like a substrate or other element?

[00:19:16] Speaker 02:
You are.

[00:19:17] Speaker 02:
I think if the patent deed wanted to say a detector element or a detector sensor, it would have.

[00:19:23] Speaker 02:
It described individual components in other instances throughout the claims.

[00:19:27] Speaker 04:
If it thought that detector assembly always referred to two or more detectors, why did it feel the need to specifically identify a plurality of detectors in the dependent claims?

[00:19:38] Speaker 02:
I think those dependent claims were adding other features and functions to the detector assembly, other than just saying it was a plurality of detector elements.

[00:19:47] Speaker 02:
I can refer to page 420 of the appendix.

[00:19:52] Speaker 04:
That doesn't really answer the question, though.

[00:19:54] Speaker 04:
I mean, if you thought that detector assembly inherently meant two or more detectors, and the specification disclosed that, then there would have been no need to add the word plurality of detectors, because it would have already been defined by detector assembly itself.

[00:20:10] Speaker 02:
I'm just looking at, for example, Claim 17, where it just specifies that the detector assembly comprises a support substrate and an arrangement of detector elements.

[00:20:21] Speaker 02:
If it was a single element, it could just say a support substrate.

[00:20:28] Speaker 02:
The additional limitation there is the substrate.

[00:20:32] Speaker 02:
And for example, I don't believe any of the dependent claims say, for example,

[00:20:37] Speaker 02:
where in the detector assembly is a plurality of detector elements.

[00:20:42] Speaker 02:
It's always combined with something else.

[00:20:51] Speaker 02:
Your Honor, in addition to the claim language, the specification also distinguishes very clearly between two types of embodiments.

[00:20:58] Speaker 02:
There are interspersed detector elements that are interspersed throughout the surface layer, individual detector elements.

[00:21:05] Speaker 04:
Let's just assume we disagree with you about the detector claim limitation.

[00:21:10] Speaker 04:
Do you want to talk about the long one edge claim construction?

[00:21:13] Speaker 02:
Yes, your honor.

[00:21:14] Speaker 02:
So we don't believe that that was a claim construction question at all.

[00:21:17] Speaker 02:
I would describe that as the board applying the plain language of the claim to the prior art.

[00:21:23] Speaker 02:
And so assuming that the construction of detector elements is two or more detectors, then all the board was saying is that there must be two or more detectors.

[00:21:32] Speaker 04:
Well, I get that.

[00:21:33] Speaker 04:
But let's assume that was error.

[00:21:35] Speaker 02:
Yes, your honor.

[00:21:35] Speaker 04:
Does that error infect there along one edge?

[00:21:38] Speaker 04:
uh... application i i agree with you i don't see any specific claim construction or even implicit clinton structural on along one edge but it seems that they've used the two-deck detector element

[00:21:54] Speaker 04:
kind of subverts their along one edge analysis as well.

[00:21:58] Speaker 02:
So your honor, if the construction was, as Samsung suggests, and it was the detector plus something else, I think then the board would still be looking for the detector plus the something else all on one edge.

[00:22:10] Speaker 02:
And Samsung still did not identify that.

[00:22:12] Speaker 02:
The board found that Samsung never clearly identified any edge.

[00:22:23] Speaker 02:
And then throughout Samson's briefing below, they always referred to the edge in the singular.

[00:22:30] Speaker 02:
There's, I think, one reference.

[00:22:31] Speaker 02:
It's a fleeting reference.

[00:22:32] Speaker 02:
It's even in a parenthetical that referred to edges as a plural.

[00:22:36] Speaker 02:
This was something that only came up on appeal.

[00:22:39] Speaker 02:
And Samson's construction, Your Honor, is just wrong.

[00:22:45] Speaker 02:
A single element on any edge was sufficient.

[00:22:48] Speaker 02:
In other words, there would be no one edge that would need to have two or more detectors.

[00:22:52] Speaker 02:
So this would essentially be either eliminating the detector assembly limitation or the edge limitation, Your Honor.

[00:22:57] Speaker 02:
And I see them into the rebuttal period.

[00:22:59] Speaker 04:
Thank you.

[00:23:17] Speaker 01:
Just a few points, your honors.

[00:23:24] Speaker 01:
We would ask that the court grapple with the issue of what Reem teaches, even if it agrees with us in the claim construction.

[00:23:32] Speaker 01:
Because our concern is otherwise, we're just going to go back to the board.

[00:23:36] Speaker 01:
They're just going to look at Reem again.

[00:23:38] Speaker 01:
They're going to say, there's a box.

[00:23:40] Speaker 01:
There's a box here.

[00:23:41] Speaker 01:
And we're going to be back up again.

[00:23:44] Speaker 01:
And one particular concern we have is that the board didn't really grapple with the expert testimony on this point.

[00:23:49] Speaker 04:
Well, let me ask you this, because I'm a little concerned whether there's a clear enough understanding of REEM, and I think the board has to do it in the first instance, and also what it means to have an assembly.

[00:24:04] Speaker 04:
Let's assume we agree with you that detector assembly can have just one detector.

[00:24:11] Speaker 04:
OK.

[00:24:14] Speaker 04:
and something else.

[00:24:18] Speaker 04:
But did the board do a construction on that something else?

[00:24:22] Speaker 04:
My understanding is the board just said, we need to, Reem doesn't show too, so we're going to stop.

[00:24:27] Speaker 01:
Yes.

[00:24:27] Speaker 04:
And I'm a little uncomfortable about how far we go on determining whether a ream builds it.

[00:24:33] Speaker 04:
I think we can, if we're doing correcting their claim construction, we can say detector assembly includes one detector.

[00:24:41] Speaker 04:
And I assume that you've proposed something in your papers below.

[00:24:45] Speaker 04:
But what you've talked about in your appellate briefs of being a substrate, do you think that emitters can be part of the assembly?

[00:24:51] Speaker 01:
We do, because the specification uses the word comprises.

[00:24:55] Speaker 01:
when it discusses what's in the assembly.

[00:24:57] Speaker 01:
So it's really not limiting.

[00:24:59] Speaker 04:
So it's just one detector element in addition to additional elements conforming.

[00:25:05] Speaker 04:
If we say that, then can't the board then figure out what frame discloses?

[00:25:12] Speaker 01:
Well, yes, except I think they could get hung up on the one-edge issue again.

[00:25:16] Speaker 01:
And I know you... Well, sure.

[00:25:18] Speaker 04:
We've got to deal with that, too.

[00:25:19] Speaker 01:
Yeah.

[00:25:20] Speaker 01:
So then, right.

[00:25:21] Speaker 04:
But I think the one-edge issue, at least for the independent claims, is largely the result of their hypothetically erroneous claim construction requirement, too.

[00:25:32] Speaker 04:
If it only required one, even if it is along one edge, all the independent claims

[00:25:39] Speaker 04:
clearly are along one edge at least.

[00:25:42] Speaker 04:
And so it's just the dependent claims that we need to discuss.

[00:25:46] Speaker 01:
Right.

[00:25:46] Speaker 01:
And as you said, some have an arrangement or they have a plurality.

[00:25:49] Speaker 01:
And we just wouldn't want them to say, OK, well, you win as the independent claim because you've shown one detector on one edge and then just kind of miss the boat on everything else, which is, OK, fine.

[00:26:02] Speaker 01:
Some require two.

[00:26:03] Speaker 01:
Now what do we do?

[00:26:04] Speaker 01:
Does it really have to be on one edge when it says at least one edge?

[00:26:07] Speaker 01:
Right.

[00:26:08] Speaker 03:
Do you view at least one edge as a claim construction question on the hypothetical where we've reversed the claim construction on the detector assembly?

[00:26:18] Speaker 03:
Do we have a second claim construction dispute?

[00:26:20] Speaker 03:
Is that what you're saying?

[00:26:21] Speaker 01:
We think you do, because below, the argument was really about this separate issue that we're not even talking about here today, which is, is there a structure?

[00:26:29] Speaker 01:
Is there an array?

[00:26:30] Speaker 01:
I mean, that was the whole ballgame.

[00:26:32] Speaker 01:
And we're not even talking about that here.

[00:26:34] Speaker 01:
So what happened was, kind of out of the blue in the final written decision,

[00:26:38] Speaker 01:
The board spent three pages saying, OK, well, maybe there's two detectors on two different edges, but there aren't two detectors on a single edge.

[00:26:47] Speaker 01:
And then they spent three pages talking about that, which I don't think anybody was expecting that once they said, OK, you don't need a structure, you don't need an array, well, now there's this other part of the claim limitation, one edge, and we have to construe it.

[00:27:01] Speaker 01:
And as we said, first of all, it says at least one edge many, many times.

[00:27:07] Speaker 01:
And the one time it says Ann and Edge, it's implicit that it's referring to one or more, because that's how you interpret claims when it says Ann or the or the.

[00:27:15] Speaker 01:
So we think that's important.

[00:27:16] Speaker 01:
But again, we just didn't want to let the application of Reem kind of not be included in whatever you all might be thinking of doing, because it just seems like the board was looking

[00:27:29] Speaker 01:
at such a high level.

[00:27:30] Speaker 01:
They were just looking at the figures.

[00:27:32] Speaker 04:
I mean, does it solve the problem if we anticipate that there's going to be a claim construction issue along one edge and make our views known on that proper claim construction?

[00:27:45] Speaker 01:
Yes.

[00:27:45] Speaker 04:
Because that's going to be the dispute for the dependent claims.

[00:27:49] Speaker 01:
If you say at least one edge is not the proper reading of at least one edge, then the interpretation of Reem is

[00:27:59] Speaker 01:
It must be, I mean, even under the simple drawings.

[00:28:02] Speaker 03:
Real quickly on detector assembly, Mr. Denning says you never pointed to the substrate as possibly being the additional component plus one detector.

[00:28:09] Speaker 03:
Is he right about that?

[00:28:10] Speaker 01:
Yeah, I'm not sure we did, Your Honor.

[00:28:13] Speaker 01:
I think we were just referring generally to different components that could be in the assembly, and we were starting with the concept of emitters and detectors because those were described in kind of assembly language as optical components.

[00:28:26] Speaker 01:
So we didn't really feel the need to get into exactly how the detector is attached, or is there a cover on top of it, or is there a housing.

[00:28:34] Speaker 04:
We just thought that was there.

[00:28:36] Speaker 04:
OK, I think we have your argument.

[00:28:38] Speaker 04:
Mr. Deming, you didn't raise your cross appeal on your opening, and she didn't raise it on rebuttal.

[00:28:43] Speaker 04:
So you'll just have to rest on your briefs on that.

[00:28:49] Speaker 02:
OK, I'm not allowed to raise it this time?

[00:28:51] Speaker 04:
No, you have to raise it during your opening.

[00:28:53] Speaker 04:
No, you don't get rebuttal.

[00:28:56] Speaker 04:
You only got rebuttal on your cross appeal, and you didn't raise it.

[00:28:59] Speaker 04:
You don't get to read about her argument.

[00:29:01] Speaker 04:
She gets the last word.

[00:29:02] Speaker 04:
So the case is submitted.