[00:00:00] Speaker 00: The next case is number 23-1613, Samsung versus Power to Be. [00:00:08] Speaker 00: Mr. Yagura? [00:00:11] Speaker 00: What? [00:00:12] Speaker 00: Oh, sorry. [00:00:13] Speaker 00: I'm looking at my benchmark. [00:00:14] Speaker 00: I'm not. [00:00:14] Speaker 00: Which has the wrong name on it. [00:00:16] Speaker 00: Haber. [00:00:18] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:20] Speaker 03: Benjamin Haber on behalf of Appellant Samson. [00:00:23] Speaker 03: We're going to be talking about two grounds today related to two grounds that were addressed below. [00:00:27] Speaker 03: The first relates to Newton grounds, which turns on an issue of claim construction. [00:00:32] Speaker 03: The 170 patent describes and claims three different types of electromagnetic-based impingement interactions. [00:00:38] Speaker 03: and the claim construction advocated by the patent owner and adopted by the board covers only two of them, and that is reflected and projected radiation, and specifically excludes the third embodiment that is described and claimed in the patent, which is interrupted or blocked electromagnetic radiation impingement. [00:00:56] Speaker 00: And this is despite that. [00:01:00] Speaker 03: This is the exact claim construction argument that was presented below at every opportunity we had to do so before the institution decision. [00:01:09] Speaker 03: At appendix 7522, we submitted the district court's claim construction [00:01:14] Speaker 03: and noted specifically that the patent owner was attempting to exclude embodiments and offering a construction that conflicted with dependent claims. [00:01:23] Speaker 03: The board actually agreed with us in its institution decision. [00:01:25] Speaker 03: That's at appendix 7564. [00:01:26] Speaker 03: In its patent owner response, the patent owner continued to make the same argument, excluding this particular embodiment. [00:01:36] Speaker 03: We replied in our reply to the patent owner response at appendix 8267. [00:01:41] Speaker 03: Again, we argued that the construction was too narrow, excluded dependent claims. [00:01:46] Speaker 03: We specifically referenced the impingement point example, that is the blocking or interrupting embodiment that we explained is excluded by the patent owner's construction. [00:01:57] Speaker 03: And again, there are, I think, four uninterrupted pages of hearing transcript below. [00:02:01] Speaker 03: That's at appendix 838 through 8842, where we raised, again, these same arguments, excluding dependent claims, excluding embodiments. [00:02:11] Speaker 01: The argument was that you did not expressly present the same proposed construction to the board here that you had in the district court. [00:02:20] Speaker 01: Is that correct? [00:02:21] Speaker 03: That is correct. [00:02:21] Speaker 03: In the district court, we were arguing about a different construction that was not adopted by the district court. [00:02:26] Speaker 01: But you do want us to say the correct instruction is the one that the district court rejected. [00:02:31] Speaker 03: No, Your Honor, that is not what we're arguing here. [00:02:34] Speaker 03: What we're arguing here is that the claims are broad enough to cover all of the embodiments that are described in claimant in the patent. [00:02:40] Speaker 03: In the district court, we were arguing for a more narrow construction. [00:02:44] Speaker 03: The district court eventually adopted a construction that was broader than what we argued in the district court, and in our view, was broad enough to cover the independent claims, and that's what we explained to the board before institution. [00:02:54] Speaker 03: as long as it doesn't exclude the blocking and interrupting embodiment. [00:02:59] Speaker 03: And ultimately, the construction that the board adopted, they used the words of the district court, but they added a gloss to it. [00:03:05] Speaker 03: And that gloss specifically excludes this third embodiment that is described by the patent. [00:03:10] Speaker 03: And so the construction that we're asking Your Honors to adopt is that the claim, independent claim one, is broad enough to cover all of the embodiments that are described and claimed in the patent. [00:03:20] Speaker 00: I mean, you keep saying that the claim construction should be adopted, should be broad enough. [00:03:24] Speaker 00: But what is it? [00:03:25] Speaker 00: And this is the problem with the back and forth between the IPRs and the district court is the defendants want [00:03:33] Speaker 00: a broad construction at the PTAB so they can invalidate a narrow construction at the district court so that they can be non-impringing. [00:03:41] Speaker 00: But what's the actual construction you're urging here? [00:03:45] Speaker 03: The actual construction is that the claim should cover projected radiation, reflected radiation, and blocked or interrupted radiation. [00:03:53] Speaker 03: Those are the three examples that are described in the patent and actually [00:03:56] Speaker 01: Covered by a number of dependent claims, so that is the construction that we are urging here so if we were to do what you want on appeal Don't we have to give a construction in words back to the board to apply or would it simply just be? [00:04:10] Speaker 03: Tell them the claim covers all three of those things well, so you could do both of those and you could give a construction specifically that the claim covers impingement interactions based on projected radiation [00:04:23] Speaker 03: reflected radiation and interrupted radiation. [00:04:26] Speaker 03: If that construction was provided, that would cover all of the claims. [00:04:30] Speaker 03: It would cover the full breadth of claim one. [00:04:32] Speaker 03: And it would actually read on the prior art at issue here. [00:04:37] Speaker 03: And I think it's important to identify those three examples. [00:04:45] Speaker 03: They are all given in the patent. [00:04:47] Speaker 03: And at appendix 54, we have figure 1c of the patent, which shows projected radiation, which is radiation that comes from a stylus and is impinging upon the surface of the device. [00:05:00] Speaker 03: At appendix 75, we have figure 18C, which depicts reflected radiation. [00:05:06] Speaker 03: There is a finger that comes into contact with radiation at the surface of the device, and it is reflected through the device to detectors below it. [00:05:14] Speaker 03: And then at appendix 74, we have the embodiment described by 18B. [00:05:21] Speaker 03: And 18B is the blocking or interrupting embodiment. [00:05:26] Speaker 03: And the embodiment of 18 B is actually claimed. [00:05:29] Speaker 03: It's actually claimed in dependent claim 28 dependent claim 28 describes an impingement point that is caused by an object blocking or interrupting radiation and [00:05:43] Speaker 03: One of the main errors that the board committed is that when they construed claim one, they agreed that claim 28 covers this object-based impingement embodiment. [00:05:53] Speaker 03: And they read claim one specifically to exclude claim 28, which is an error. [00:05:57] Speaker 03: It's a violation of a black-letter claim construction law. [00:06:01] Speaker 03: And we know that claim 28 covers an object impinging upon radiation, because that is what the claim says. [00:06:09] Speaker 03: It talks about an impingement point of an object. [00:06:11] Speaker 03: And Claim 28 depends from Claim 27 and Claim 26. [00:06:15] Speaker 03: In Claims 27 and 26, each recite detected radiation falling below a threshold. [00:06:22] Speaker 03: And when detected radiation falls below a threshold, that's because a portion of it has been blocked or interrupted. [00:06:29] Speaker 03: And so Claim 28, Claim 26, Claim 27 cover a specific embodiment that is excluded by the district court, by the patent office's construction. [00:06:45] Speaker 01: Yes. [00:06:47] Speaker 01: At 822, the board said that the patent owner's construction is sufficiently broad so it's encompassed embodiments in which a user touches the assembly. [00:06:57] Speaker 01: Do you agree with that, and is that a relevant issue to the issues on appeal? [00:07:05] Speaker 03: Respectfully, the board below was somewhat confused by the arguments. [00:07:09] Speaker 03: They focused a lot on this touching example. [00:07:12] Speaker 03: I think it is certainly true that the claims are broad enough to cover touching. [00:07:16] Speaker 03: But it is not the case that the claims are limited to touching. [00:07:20] Speaker 01: OK. [00:07:20] Speaker 01: But as construed by the board, is their construction broad enough to include the touching embodiment? [00:07:30] Speaker 03: I don't think so, Your Honor. [00:07:32] Speaker 01: And is that part of the problem? [00:07:33] Speaker 01: From your perspective, we need a construction. [00:07:35] Speaker 01: When you say include the interrupted radiation, is that also including the touching embodiments? [00:07:43] Speaker 03: Yes. [00:07:44] Speaker 03: Yes, Your Honor. [00:07:44] Speaker 03: The touching embodiments is an example of how radiation may be impinged upon. [00:07:49] Speaker 03: And so I don't think that what the board actually did is broad enough to include all of the touching embodiments. [00:07:56] Speaker 03: And that is really the error. [00:08:00] Speaker 03: I think, confusion about how the board addressed Samsung's arguments. [00:08:05] Speaker 03: They focused a lot on touching versus not touching. [00:08:09] Speaker 03: But that really wasn't the basis of Samsung's arguments. [00:08:11] Speaker 03: Samsung's arguments was that there were impingement interactions. [00:08:15] Speaker 03: Some of them were touching-based, and some of them weren't. [00:08:18] Speaker 03: And what was being detected by the detectors was the result of that, whether or not it was reflected radiation or blocked radiation. [00:08:26] Speaker 01: You only ask us to vacate and remand if I understand correctly. [00:08:29] Speaker 01: If we agree with you on the claim construction, is that all we do is agree with you on the claim construction and then send it back to the board for further proceedings? [00:08:39] Speaker 03: So if you agree on the claim construction issue, I think you just remand it back to the district court or to the board for further proceedings. [00:08:46] Speaker 03: Because that claim construction error, I think, affected both of the grounds. [00:08:50] Speaker 03: It affected, it precluded the board from applying the Newton prior art reference. [00:08:55] Speaker 03: And when the board actually addressed the Rehm reference, it addressed it under a very narrow construction that, in our view, is incorrect. [00:09:02] Speaker 03: And if that is incorrect, then that should go back as well. [00:09:07] Speaker 03: On the other hand, if your honors don't agree on the claim construction issue, I believe that the case still needs to be remanded because the board committed some errors in its review of the ream reference. [00:09:17] Speaker 03: Specifically, again, as I mentioned, the board seemed to be confused and they were focused on touching versus not touching. [00:09:22] Speaker 03: and they made a finding at page 45 of the appendix, appendix page 45, focused on whether or not Reem disclosed the limitation, whether the touching aspect of Reem disclosed the limitation, and they found that it did not. [00:09:38] Speaker 03: That is kind of tangential to the argument that Samson presented. [00:09:41] Speaker 03: Samson's argument was based on reflected light, which is plainly taught by Reem, and it wasn't squarely addressed by the board, and that is an error that [00:09:51] Speaker 03: even if your honors accept the board's construction, should be addressed on remand. [00:09:59] Speaker 00: Can you help me with... I was confused by the board's analysis on this point when it required the [00:10:10] Speaker 00: electromagnetic radiation spot to be impinged by electromagnetic radiation itself. [00:10:19] Speaker 00: How did it get there, and how does the claim language support that or not support that? [00:10:25] Speaker 03: Yes, Your Honor. [00:10:26] Speaker 00: That is a... Let me tell you. [00:10:28] Speaker 00: This technology is a little bit tricky for me. [00:10:30] Speaker 00: I have a cell phone, so I understand what touches are. [00:10:33] Speaker 00: But it uses a lot of words in ways that particularly impingement, which is not [00:10:39] Speaker 00: perhaps a natural reading of the way I would read impingement. [00:10:43] Speaker 00: But there's an electromagnetic radiation spot on the two different parts of the sensors, right? [00:10:52] Speaker 00: Why isn't that the spot being impinged? [00:10:55] Speaker 00: And why does it have to be electromagnetic radiation itself doing the impinging rather than just impinging on that spot? [00:11:02] Speaker 03: That is exactly the point, Your Honor. [00:11:05] Speaker 03: The way that the board construed it [00:11:08] Speaker 03: They found that it had to be electromagnetic radiation impinging upon the surface, where I think the most natural read of the language and the figure shows that there is a spot on the surface where there is electromagnetic radiation that is impinged upon. [00:11:22] Speaker 03: You can see that in figure 18 underneath the finger. [00:11:25] Speaker 03: And what the board did is they required [00:11:28] Speaker 03: impingement, which means two things colliding or striking each other, they require that the thing striking something else is electromagnetic radiation. [00:11:37] Speaker 03: And that is just not what the claim says. [00:11:39] Speaker 03: What the claim says [00:11:40] Speaker 03: is that there is an impingement. [00:11:41] Speaker 03: And so there has to be two things colliding together. [00:11:44] Speaker 03: But it doesn't say what has to do the collision. [00:11:47] Speaker 03: And so the board's construction was too narrow. [00:11:49] Speaker 03: They focused on a requirement that only electromagnetic radiation can do the impinging, as opposed to a finger or an object, as shown in a number of the figures. [00:11:57] Speaker 03: And that was just incorrect. [00:11:59] Speaker 00: I mean, some of the examples in specification include radiation impingement, right? [00:12:06] Speaker 00: That's the stylus that emits light. [00:12:09] Speaker 03: Correct, Your Honor. [00:12:09] Speaker 03: And that is, for example, figure 1C. [00:12:11] Speaker 03: And so the construction has to include that embodiment as well. [00:12:14] Speaker 03: And that, I think, is the natural reading of what's happening here. [00:12:18] Speaker 03: We have two things striking each other. [00:12:19] Speaker 03: One of the things involves electromagnetic radiation. [00:12:22] Speaker 03: And the patent describes three different ways that that can be done. [00:12:25] Speaker 03: And they excluded one of them. [00:12:26] Speaker 01: PowerQB says that that renders the electromagnetic radiation spot on the surface requirement meaningless. [00:12:33] Speaker 01: What's your response to that? [00:12:34] Speaker 03: I don't think that's accurate. [00:12:35] Speaker 03: That gives meaning to all of the types of impingement of an electromagnetic radiation spot that are disclosed and claimed in the patent. [00:12:42] Speaker 03: And there are three. [00:12:45] Speaker 03: we are giving meaning to all of them. [00:12:46] Speaker 03: And their argument is that it renders it meaningless, because in their view, the claim is only limited to two of these embodiments. [00:12:53] Speaker 03: And frankly, it's hard to understand how that could be correct. [00:12:57] Speaker 00: You're well into your role. [00:12:58] Speaker 00: Would you like to save the rest of this? [00:13:00] Speaker 00: I'd like to save the rest of it. [00:13:02] Speaker 00: Thank you. [00:13:05] Speaker 00: Mr. Demme? [00:13:11] Speaker 02: Thank you. [00:13:12] Speaker 02: May it please the court? [00:13:13] Speaker 02: Your Honor, I'd like to begin with an argument that Samsung forfeited its claim construction position. [00:13:19] Speaker 02: I think it's particularly strong in this case, Your Honor. [00:13:21] Speaker 02: As Judge Stark noted, Samsung made a proposed construction to the district court and then made a very deliberate decision not to make a claim construction argument to the board. [00:13:31] Speaker 02: And Your Honor, just very briefly, the timeline, I think, is very telling here. [00:13:35] Speaker 02: In the district court case, the day before the petition was filed, Samsung empowered to be exchanged claim terms for construction, and Samsung identified this term for construction. [00:13:46] Speaker 02: When it filed the petition, it did not include the term. [00:13:50] Speaker 02: While the petition was pending before it was instituted, the district court proceedings continued. [00:13:54] Speaker 02: There was claim construction briefing. [00:13:56] Speaker 02: The district court issued a claim construction order rejecting [00:13:59] Speaker 02: Samsung's proposed construction, which expressly said, including this touching aspect, Your Honor. [00:14:07] Speaker 02: And the board then gave Samsung an opportunity to address the construction and to explain whether or not it affected its petition. [00:14:15] Speaker 02: Samsung took a remarkable position, Your Honor. [00:14:17] Speaker 02: that the district court's construction, which it had fought against, actually supported its position. [00:14:23] Speaker 02: And so, Your Honor, SAMHSA had multiple opportunities in the original petition, in its preliminary reply, and even in reply to our patent owner response to advance its own claim construction position, and it never did. [00:14:37] Speaker 02: It made a strategic choice, and it should have to live with it, Your Honor. [00:14:40] Speaker 01: But I think they always made clear that they [00:14:48] Speaker 01: type of impingement, the interference. [00:14:51] Speaker 01: Didn't they make that clear? [00:14:52] Speaker 02: Governor, they argued against our position, but they never advanced their own. [00:14:56] Speaker 01: I mean, the board... That's implicit, and they're saying they disagree with you, and I think they were making clear they disagree with you because you're too narrow. [00:15:06] Speaker 01: Isn't it implicit that they think a broader construction that includes [00:15:12] Speaker 01: to be included is what their position was? [00:15:14] Speaker 02: But, Your Honor, they advanced no arguments in support of an alternative construction below. [00:15:18] Speaker 02: The board made numerous comments about the fact that Samson didn't provide an explicit construction. [00:15:23] Speaker 02: It didn't explain its implicit construction. [00:15:25] Speaker 02: It did not provide substantive argument. [00:15:27] Speaker 02: And then, Your Honor, if you look on appeal, the arguments that Samson's finally come forward with, there's all sorts of new things. [00:15:34] Speaker 02: 12 pages of new arguments, this focus on impingement, which really wasn't even in dispute below. [00:15:39] Speaker 02: I agree it's an unusual term, but the parties essentially agreed that it means collide or strike. [00:15:46] Speaker 02: So all these arguments that we're seeing on appeal are really red herring. [00:15:48] Speaker 00: Well, if you agree that it means collide or strike, then how is the board's decision correct? [00:15:53] Speaker 00: I mean, if you're touching something, it's colliding or striking it. [00:15:57] Speaker 02: Light can collide and strike, Your Honor. [00:15:59] Speaker 02: So it's light striking the surface. [00:16:01] Speaker 00: Well, that's my problem. [00:16:03] Speaker 00: I don't understand how. [00:16:04] Speaker 00: I mean, I understand that there are electromagnetic spots on the device, and there's two different parts of the sensor, or on there. [00:16:14] Speaker 00: Where does the requirement that [00:16:16] Speaker 00: there has to be another source of electromagnetic light that actually does the impinging. [00:16:22] Speaker 02: So, Your Honor, there aren't two sources of electromagnetic radiation. [00:16:25] Speaker 02: There's one source, either coming out of the stylus like you had mentioned, or it could be even reflecting off of a finger or another object. [00:16:32] Speaker 02: But it comes from that object onto the surface. [00:16:35] Speaker 02: It strikes the surface. [00:16:36] Speaker 00: And it hinges on the electromagnetic radiation spot. [00:16:39] Speaker 00: No, no, Your Honor. [00:16:41] Speaker 00: It is. [00:16:41] Speaker 00: Show me the claim language that suggests that it's not the impinging. [00:16:46] Speaker 00: The radiation is doing the impinging, not being impinged upon. [00:16:50] Speaker 00: This is a really unusual way to use the word impingement, which is part of the problem here. [00:16:57] Speaker 02: I mean, Your Honor, in claim one, the claim says, [00:17:02] Speaker 02: This is at APX 127, Your Honor. [00:17:05] Speaker 02: There's an input sensor being configured to provide an output indicative of an impingement of an electromagnetic radiation spot on at least one of different regions of the interactive surface element. [00:17:17] Speaker 00: Wait, what is the electromagnetic radiation spot? [00:17:21] Speaker 02: It's the spot formed by the electromagnetic radiation. [00:17:24] Speaker 02: It's the electromagnetic radiation coming out of the stylus. [00:17:27] Speaker 02: comes down to the surface and impinges the surface, and that makes a spot. [00:17:31] Speaker 02: And the shape of that spot is very important, because that's how, as the rest of the patent explains, that's how the distance is determined, the orientation is determined, movement. [00:17:41] Speaker 02: So it's based upon the analysis of the spot that's being made, is how all of these other functions work, Your Honor. [00:17:47] Speaker 01: It's a spot on the surface. [00:17:53] Speaker 02: Yes, it's a spot. [00:17:55] Speaker 02: The light is coming from the stylus, impinging, hitting the surface, and it makes a spot. [00:18:00] Speaker 02: And these detectors sense the spot, and then there's analysis. [00:18:05] Speaker 01: Do you disagree, just as a matter of basic fact, that you can have a spot formed on the surface from just an object interrupting light and electromagnetic radiation? [00:18:19] Speaker 02: Well, your honor, that's not what is in the prior art. [00:18:21] Speaker 01: I understand you don't think it's in the claim. [00:18:23] Speaker 01: Maybe it's not in the prior art, but that is a thing that can happen. [00:18:27] Speaker 01: And in fact, the patent even talks about it, doesn't it? [00:18:29] Speaker 02: Well, it's light bouncing off of an object. [00:18:31] Speaker 02: So if there's light in the room, ambient light would hit an object and then deflect and hit the surface. [00:18:35] Speaker 01: And that would make a... It would make an electromagnetic spot on the surface. [00:18:40] Speaker 02: Yes. [00:18:40] Speaker 02: And that is within the scope of the claims. [00:18:42] Speaker 02: That's not what the prior art taught, and that's not what Sampson's argument was. [00:18:46] Speaker 01: But if it's within the scope of the claims, then we need to make clear that the correct construction would include it. [00:18:51] Speaker 02: I think the board's construction does include that, Your Honor. [00:18:53] Speaker 02: Because it's projected or reflected. [00:18:55] Speaker 02: So what you're referring to, Your Honor, is to reflect it. [00:18:56] Speaker 01: If we don't think the board's construction includes it, and we don't think this argument is forfeited, then I take it you concede we should send it back with a construction that makes clear that that third embodiment is included. [00:19:08] Speaker 02: Your Honor, I'm not sure what you mean by the third embodiment. [00:19:10] Speaker 01: The board's construction is interference. [00:19:12] Speaker 01: that we've just talked about, the electromagnetic radiation being interfered with by an object. [00:19:17] Speaker 02: So that's not the interference that Samson's talking about. [00:19:19] Speaker 02: Samson's talking about light or radiation going from an emitter to a detector and then something blocking it in the middle and the detector sensing the blocking. [00:19:29] Speaker 02: That's what Samson's talking about. [00:19:31] Speaker 02: Light hitting the object and then reflecting off the object onto the surface is the second embodiment, which is already within the board's construction. [00:19:39] Speaker 02: The board's construction is projected, so that's the stylus projecting the light. [00:19:43] Speaker 02: The second embodiment is reflected already in the board's construction, reflected onto the surface. [00:19:48] Speaker 02: The interruption embodiment, which Samson's talking about and which is described in Newton, is when light is going from an emitter to a detector and it's interrupted in the absence of light reaching the detector. [00:19:58] Speaker 02: is what senses the input. [00:20:02] Speaker 01: And you're saying that the board's construction is broad enough to include that or is not? [00:20:07] Speaker 02: No, the board's construction does not include blocking light. [00:20:12] Speaker 02: It is focused on light making a spot on the surface, whether by projection or by reflection. [00:20:22] Speaker 02: The board's construction is correct. [00:20:24] Speaker 02: I think it's telling that it aligns with the district court's construction. [00:20:28] Speaker 02: As I referred earlier, the independent claims recite impingement of the surface by an electromagnetic radiation spot. [00:20:36] Speaker 02: The dependent claims support this construction. [00:20:38] Speaker 02: They distinguish between electromagnetic radiation impinging a surface and an object impinging a surface. [00:20:44] Speaker 02: Claim 28, which was at APPX 128, describes an impingement by an object. [00:20:51] Speaker 02: It's not impingement by light. [00:20:53] Speaker 02: Claim 12 recites circuitry that distinguishes between touching or not touching. [00:20:58] Speaker 02: If the independent claim was already sensing touching, claim 12 would be superfluous. [00:21:03] Speaker 02: The patentee knew how to recite impingement of an object on a surface. [00:21:07] Speaker 02: There are two different functions. [00:21:08] Speaker 02: And so the independent claims are only reciting the impingement of light on the surface. [00:21:14] Speaker 02: They're not expressly including the impingement of an object on the surface. [00:21:20] Speaker 02: The specification, Your Honor, is consistent with that as well. [00:21:24] Speaker 02: There's numerous examples of radiation impingement, such as the stylus or the object reflecting it. [00:21:29] Speaker 02: And as I said, this is how the patent determines the object's position, orientation, movement. [00:21:36] Speaker 02: It is always a spot of magnetic radiation impinging a surface. [00:21:40] Speaker 02: It's never something impinging a spot. [00:21:43] Speaker 02: It can impinge light going from one to another, but it's never impinging the spot, Your Honor. [00:21:50] Speaker 01: I'm concerned that maybe the board misunderstood what Samsung was arguing at Appendix 21. [00:21:58] Speaker 01: It seems like they're interpreting Samsung's construction, or implicit construction, as requiring that the electromagnetic radiation spot must be touched, impinged upon by something that includes a user, and that that same spot must be on one of the regions. [00:22:16] Speaker 01: Did Samsung really argue or propose that the correct instructions should require touching? [00:22:24] Speaker 02: Well, Your Honor, as we said earlier, we don't think Samson argued much of anything affirmatively, which is why they waived it. [00:22:30] Speaker 01: Well, that would sound like the board must have understood that. [00:22:32] Speaker 02: No, Your Honor, because I think the board and the institution decision originally adopted what it understood Samson's implicit construction to be. [00:22:40] Speaker 02: And Samsung defended that construction. [00:22:42] Speaker 02: It defended the board's judgment. [00:22:43] Speaker 01: But did they defend it by saying, here's what we mean. [00:22:46] Speaker 01: Here's what you, the board, mean when you implicitly adopt our proposal that the surface must be touched? [00:22:56] Speaker 01: Did Samsung ever say that's what we're arguing? [00:22:59] Speaker 02: They never affirmatively said it. [00:23:00] Speaker 02: Samsung has tried to get away with not taking [00:23:02] Speaker 02: a very clear position, Your Honor. [00:23:04] Speaker 02: But the board articulated its understanding of Samsung's implicit construction, and once the institution decision was made, Samsung repeatedly said that the board got it right, that it was under the proper scope, I believe was the terminology that was used. [00:23:18] Speaker 02: But Samsung agreed with the board's understanding of the implicit construction. [00:23:22] Speaker 02: So I don't think this argument is now an appeal to say that the board misunderstood the implicit construction. [00:23:27] Speaker 01: If it did, then Samsung... The board would say in its institution decision, we understand Samsung's construction to require touching. [00:23:38] Speaker 02: I don't believe so, Your Honor, but I'm just trying to find the right page. [00:23:40] Speaker 01: Well, if they didn't, then you can't really fault, or I can't really fault, Samsung for not clarifying or pointing out the error of the board's ways when the board didn't tell us it had an erroneous view until the final written decision. [00:23:54] Speaker 02: Your Honor, I don't think Samsung's even saying now that it requires touching. [00:23:58] Speaker 01: No, I think they're not. [00:24:00] Speaker 01: But my question to you was, I read to you from page 21 of the final written decision. [00:24:04] Speaker 01: It seems to me the board is saying that Samsung is saying it requires touching. [00:24:09] Speaker 02: That's what Samsung said the first time. [00:24:11] Speaker 02: And then it changed its position. [00:24:13] Speaker 02: And then it's changed its position again. [00:24:14] Speaker 02: It's been shifting stands, Your Honor, which is why they've forfeited this claim construction argument. [00:24:19] Speaker 02: They never took a clear affirmative position. [00:24:21] Speaker 02: They just keep to moving target, Your Honor. [00:24:30] Speaker 02: Your honor, then regardless of the claim construction question, we think the substantial evidence supports the board's judgment as to Newton. [00:24:40] Speaker 02: Regardless of whether or not it's the magnetic radiation impinging the surface or an object impinging magnetic radiation, the claim claim language still requires a radiation spot on a surface. [00:24:52] Speaker 02: The Newton reference is a touch panel that includes emitters and detectors around the perimeter. [00:24:57] Speaker 02: And these beams are sent back and forth [00:24:58] Speaker 02: above the surface, parallel to the surface, and touches recognized when the beams are blocked by an object. [00:25:05] Speaker 02: This is the third embodiment that, Your Honor, we say is outside the scope of the board's construction. [00:25:10] Speaker 02: There's nothing in Newton, and Sam said, never made an argument, that Newton discloses magnetic radiation being deflected and then appearing on the surface. [00:25:19] Speaker 02: It's merely the interruption of the light, Your Honor. [00:25:23] Speaker 02: And so the bird found in Samsung admitted that Newton teaches blocking beams above the surface. [00:25:28] Speaker 02: The only detection of light is of the parallel beams crossing above the surface. [00:25:32] Speaker 02: No light is detected from the surface itself. [00:25:35] Speaker 02: There's no signal of magnetic radiation on the surface. [00:25:38] Speaker 02: Therefore, under any construction, Newton does not teach electromagnetic radiation spot on a surface. [00:25:44] Speaker 02: And so no remain is necessary. [00:25:46] Speaker 02: The board's decision should be affirmed under either construction. [00:25:49] Speaker 01: At institutions, didn't the board say, I know it's a different standard, but that it was likely that under Samsung's construction, that Newton did disclose your invention? [00:26:00] Speaker 02: Yes, Your Honor, but the board then found a different construction. [00:26:03] Speaker 01: Right. [00:26:03] Speaker 01: But if we say their construction was wrong, it would seem to me we probably are well-advised to just send it back to the board, especially given that their preliminary review was that Newton probably disclosed the invention. [00:26:15] Speaker 02: Your Honor, we disagree. [00:26:16] Speaker 02: We think that Newton is undisputed as to what's disclosed in Newton. [00:26:19] Speaker 02: Samsung never made an argument that Newton is teaching the reflection of light off an object onto the screen. [00:26:25] Speaker 02: And so there's no basis. [00:26:27] Speaker 02: The claim claim language requires there to be a spot on the surface. [00:26:30] Speaker 02: There's no basis in the record. [00:26:32] Speaker 02: And there's no argument that Samsung could have rightfully raised below that there was a spot on the surface that was being detected in Newton. [00:26:41] Speaker 02: And then finally, Your Honor, for the Reem reference, which Samsung's not challenging the construction on this reference, but is arguing that the [00:26:49] Speaker 02: essentially that the board acted arbitrarily and capriciously in finding that Ream did not disclose a spot on a surface. [00:26:57] Speaker 02: Samson originally argued essentially three sentences about Ream's teaching on this point. [00:27:02] Speaker 02: It said that light will hit an object and be reflected back to a detector element. [00:27:07] Speaker 02: that the object changes the amount of light sensed and that Reem's signal is information corresponding to a spot where the object is touching. [00:27:16] Speaker 02: It did not say that this was information corresponding to a spot where electromagnetic radiation wasn't pinching a surface. [00:27:23] Speaker 02: And your honor, those sentences are at APPX 195 to 196. [00:27:28] Speaker 02: As we pointed out in our patent owner response, Samson did not identify detecting light impinging the surface. [00:27:34] Speaker 02: In reply, Samson argued that Reem teaches detecting light reflected by an object onto the surface. [00:27:39] Speaker 02: This was a new argument that it should not have been allowed to make, although the board considered it anyways. [00:27:45] Speaker 02: As the board noted, [00:27:46] Speaker 02: Figure 2, which Samsung cited, relates to detecting light reflecting off of the surface of an object, not the surface of the screen. [00:27:54] Speaker 02: And so Samsung was playing a little fast and loose with the language in Ream to argue that, well, this is reflecting off the surface. [00:28:00] Speaker 02: The board rightfully pointed out it's the surface of the pencil. [00:28:03] Speaker 02: It's not the surface of the screen. [00:28:05] Speaker 02: Figure 11 was the other new evidence that Samson tried to introduce in reply. [00:28:09] Speaker 02: The board rightfully found that Figure 11 does not discuss the surface at all. [00:28:15] Speaker 02: And I see, Your Honor, I'm at the end of my time. [00:28:17] Speaker 00: Thank you, Mr. Deming. [00:28:18] Speaker 00: The case is submitted. [00:28:20] Speaker 00: Oh, sorry. [00:28:21] Speaker 00: I'm anxious. [00:28:22] Speaker 00: I don't do this very often. [00:28:25] Speaker 00: Even though I now have a couple judges junior to me, I still am not in the middle very often. [00:28:30] Speaker 00: Mr. Haber? [00:28:31] Speaker 03: I'll keep you short. [00:28:32] Speaker 00: You'll keep at the C21. [00:28:33] Speaker 00: All right. [00:28:36] Speaker 03: I just wanted to make a few quick points. [00:28:39] Speaker 03: First, I wanted to just respond on the forfeiture point. [00:28:43] Speaker 03: Frankly, the argument that Pelley is making is not consistent with what the board itself said. [00:28:51] Speaker 03: At Appendix 17, in the fine written decision, the board said, indeed, petitioner has provided a responsive argument disputing patent owner's claim construction. [00:29:00] Speaker 03: And then also, at appendix 19, they note, petitioner also argues that the recitations of touching or contacting independent claims 12, 15, and 28 support petitioner's position, because independent claim one must include touching within its scope. [00:29:14] Speaker 03: This is the argument we make consistently below, and it is the argument that we believe is correct. [00:29:20] Speaker 03: I just want to point to one more appendix page. [00:29:23] Speaker 03: That's appendix 7523. [00:29:27] Speaker 03: There is a footnote there specifically where we submitted the district court's construction to the board. [00:29:33] Speaker 03: We identified expressly that [00:29:36] Speaker 03: Patent owner seems to be seeking a exclusion of the embodiment that's described in its claim and is also taught by Newton and we explained to the board that we thought that that was improper. [00:29:48] Speaker 00: Can you help me get I thought I got a little bit closer to understanding the board's argument of electromagnetic radiation spot with your opposing counsel. [00:29:56] Speaker 00: But it seems like the argument that he was making, and that at least he construed the board was making, is that the electromagnetic radiation spot is created either by an external light source like a stylus that has light, or by ambient light reflecting off something like a finger. [00:30:16] Speaker 00: And so that's what the board was saying when it was, that's the light that impinges on the electromagnetic radiation spot. [00:30:25] Speaker 00: So it's both creating it and impinging it at the same time. [00:30:29] Speaker 03: Yes. [00:30:29] Speaker 03: I think that is what the board is saying. [00:30:31] Speaker 03: And that is an error. [00:30:32] Speaker 03: What the board is saying is that there has to be some external source of radiation that [00:30:37] Speaker 03: hits the surface, and that excludes all of the embodiments in figure 18, where it's an object impinging upon radiation at the surface. [00:30:46] Speaker 03: Our view is that the claim certainly covers that example, but it's not limited to that example. [00:30:54] Speaker 03: With that, Your Honor, we request that the board's decision be vacated and remanded. [00:30:58] Speaker 03: Thank you, Your Honor. [00:30:59] Speaker 00: Thank you. [00:30:59] Speaker 00: Now the case is submitted.