[00:00:00] Speaker 03: Three dash one zero five nine, Sierra Wireless versus Suzwell. [00:00:07] Speaker 03: Ms. [00:00:08] Speaker 03: Merrill, please proceed. [00:00:16] Speaker 02: Thank you, Your Honor. [00:00:17] Speaker 02: May it please the court? [00:00:18] Speaker 03: Hold on, give me a second. [00:00:19] Speaker 03: I made you go too fast. [00:00:20] Speaker 03: Please sit down. [00:00:21] Speaker 03: I don't want them to distract me from what you're saying, so let that liberty sit down. [00:00:25] Speaker 02: Thank you, Your Honor. [00:00:31] Speaker 03: All right, go ahead. [00:00:33] Speaker 02: May it please the court? [00:00:34] Speaker 02: Courtney Merrill, Council for Appellants. [00:00:38] Speaker 02: This is not a complicated technology test. [00:00:40] Speaker 02: This appeal comes down to counting, or more precisely, how to detect if a numbered data block in a sequence of numbered data blocks is missing, just a gap in the numbers. [00:00:54] Speaker 02: The single prior art reference here, Sachs, repeatedly discloses detecting a gap in a sequence [00:01:01] Speaker 02: of numbers. [00:01:04] Speaker 02: The question is whether these teachings, all again contained in a single prior art reference, can be considered together with Sachs's overall teachings of an invention of a disclosed timer. [00:01:15] Speaker 02: Now, we submit that it was legal error for the board to partition Sachs's teachings into separate disclosures and refuse to consider them together. [00:01:26] Speaker 03: There's two different issues. [00:01:28] Speaker 03: One is for anticipation and the other is for obviousness. [00:01:32] Speaker 03: And one of the issues, and just to be clear, I'm very sympathetic with a lot of the arguments you've made, but this is probably the one about which I'm least sympathetic. [00:01:40] Speaker 03: And that is this idea on page 53 of your brief where you seem to be suggesting that if it's in a single reference, it should be treated as all part of the same disclosure for anticipation purposes. [00:01:53] Speaker 03: That's a problem. [00:01:53] Speaker 03: Do you realize Encyclopedia Britannica is a single reference? [00:01:56] Speaker 03: Do you realize Chisholm is a single reference? [00:01:58] Speaker 03: Do you realize treatises are a single reference? [00:02:01] Speaker 03: You had to do more than just say it's in a single reference. [00:02:05] Speaker 03: Now, in particular, I think this goes to your figure four and five combination. [00:02:09] Speaker 03: But I don't think it goes to your four and six. [00:02:11] Speaker 03: So you don't need to take it. [00:02:12] Speaker 03: You may still win despite not winning on that particular argument I'm asking about. [00:02:18] Speaker 03: I'm starting you with the one thing in your brief that most I didn't like. [00:02:22] Speaker 03: And I want to hear your explanation as to why the mere fact that things exist in a single reference makes them all part of the same analysis for anticipation purposes. [00:02:35] Speaker 02: I appreciate your excellent question, Your Honor. [00:02:37] Speaker 02: And you, in particular, are well-suited for that question, having been on both the [00:02:42] Speaker 02: net money and the vitrolic decisions that create this partition. [00:02:46] Speaker 02: And it sounds as though that particular statement was a little bit nartfully worded, because what we're trying to say is that Sachs's invention, that disclosure that's taught in the summary of invention, that's what the board refused to consider along with the particular examples provided later to show how that invention works when responding to different stimuli. [00:03:06] Speaker 02: And so, Your Honor, we're not trying to take the position that the Encyclopedia Britannica is a single reference and should be considered together, but here we're set. [00:03:12] Speaker 03: But I got the sense that you were telling me that figure four and five should [00:03:16] Speaker 03: basically not be treated as two separate embodiments, but rather either one embodiment, though you don't really explain that, either before us or below, or alternatively, that the mere fact that they are near each other in the same reference or something means that they're part of the same embodiment for an anticipation analysis. [00:03:36] Speaker 03: This is the part I'm not following. [00:03:37] Speaker 02: So I refer, Your Honor, to page 9 of SACS, where we've got this discussion where they identify this single system that has the timer that can either stop [00:03:45] Speaker 02: or expire. [00:03:47] Speaker 02: And then I'd refer to example figures four and five, which I admit Sachs in artfully described as embodiments. [00:03:53] Speaker 02: I think what they meant are examples, because it's showing how that one single disclosed system responds to these stimuli. [00:04:01] Speaker 02: This is a box that's intended to receive data transmission. [00:04:05] Speaker 03: Here's my problem. [00:04:07] Speaker 03: The PTO, I defer to on fact findings, and what the prior art discloses is a question of fact. [00:04:14] Speaker 03: And you'd like me to conclude that Sachs inartfully refers to things as two separate embodiments. [00:04:20] Speaker 03: I don't reassess this de novo. [00:04:23] Speaker 03: I give substantial evidence deference to the PTO's fact finding and to anything in the record that supports that fact finding, to the extent that they found that figure four and five are not. [00:04:32] Speaker 03: the two separate arms of the same embodiment, how do I overcome that when the reference itself treats them as two different embodiments and I review under a substantial standard? [00:04:44] Speaker 02: I'm very glad you raised that point because there is an inconsistency in the board's decision on that issue. [00:04:49] Speaker 02: At page 25, appendix page 25, the board found that this is the same structure in figures four and five, same structure. [00:04:56] Speaker 02: But despite that, at appendix page 16, they specifically declined to consider whether it's the same embodiment. [00:05:03] Speaker 02: We respectfully submit, and perhaps this is what you're responding to in the briefing, we don't think it matters if it's the same embodiment or called as an example. [00:05:11] Speaker 02: The point is it's the same structure, the same structure that's showing the summary of invention teaching of the use of this timer capable of stopping. [00:05:19] Speaker 01: And just so I understand, on that, there's not [00:05:24] Speaker 01: Contrary finding by the board. [00:05:26] Speaker 02: Not on figures four and five. [00:05:29] Speaker 01: Correct. [00:05:29] Speaker 01: As to six and seven. [00:05:30] Speaker 01: Correct, your honor. [00:05:34] Speaker 01: And your answer on six and seven is that SACS sort of says on its face, I think you say, you can add these algorithms for, you can add these algorithms. [00:05:49] Speaker 02: Exactly, it's an additional unclaimed feature that goes far beyond, includes additional details beyond the claims that we're talking about here. [00:05:56] Speaker 02: If anything, it's as though the challenge we have with SACS is that it includes, from the perspective of Procida, additional detail never contemplated by the incredibly high level claims of the 396 patent, which is just operating without thinking about how this works in a real 3GPP system despite claiming that it is intended for a 3GPP system. [00:06:16] Speaker 02: But if I may, you're exactly right, Your Honor. [00:06:18] Speaker 01: In your view of the matter, is there anything that we need to or should do about the point made in the dissenting APJ's dissent? [00:06:29] Speaker 02: I'm glad you raised the indefiniteness question, Your Honor. [00:06:32] Speaker 02: So in case it wasn't clear from our briefing, we absolutely believe that these claims are indefinite, but that they are nonetheless, under Intel v Qualcomm, capable of being determined in terms of their patentability [00:06:46] Speaker 02: before the board. [00:06:47] Speaker 02: And so we don't believe that anything is necessary now. [00:06:50] Speaker 02: As the board pointed out in their claim construction analysis, the parties did implied consent to this construction that would, for purposes of just this proceeding, allow them to determine the patentability of all claims, even though we have this issue with 1C and 8C, where we absolutely agree it is indefinite. [00:07:16] Speaker 03: The problem for me with that is if it's indefinite, then I don't see how the prior art discloses it. [00:07:26] Speaker 03: But if I, like the board, treat it as being disclosed, in fact, by the device in Sachs, which is articulated in the combination of figure four and figure six, which Sachs itself expressly says to combine, [00:07:46] Speaker 03: Um, I think that it's possible for you to prevail, but if, if it's indefinite, then sex doesn't say that if, because if what more APJ more said is true, sex doesn't disclose that. [00:08:02] Speaker 03: And so you can't have it both ways. [00:08:04] Speaker 03: If you're going to win on sex, you're going to lose on indefiniteness. [00:08:09] Speaker 03: And I, that door can't be left open. [00:08:11] Speaker 02: Well, but this comes down to, you know, the, [00:08:13] Speaker 02: CISFEL not opposing this implied claim construction from the board. [00:08:18] Speaker 02: The board's claim construction basically fixed the issue with the claims. [00:08:23] Speaker 02: by interpreting it to be consistent with figure 12. [00:08:25] Speaker 03: I think claim construction is a question of law. [00:08:27] Speaker 03: I don't defer to stipulations of claim construction or failure to object to claim construction. [00:08:33] Speaker 03: When I say what the claim construction is, it then binds everybody else. [00:08:37] Speaker 03: So if I'm going to go with this claim construction that likely has you prevailing on stats, you don't have an indefiniteness argument anymore. [00:08:46] Speaker 02: So I'm going to point, Your Honor, to the policy discussion. [00:08:49] Speaker 02: Which one do you want? [00:08:50] Speaker 02: Well, I actually want both. [00:08:51] Speaker 02: I want my cake and I want to eat it, too, under the policy discussion of Intel v. Qualcomm. [00:08:55] Speaker 02: And the reason for that is that the court has recognized that it is often necessary to evaluate indefiniteness to protect the interests of petitioner in securing a decision. [00:09:06] Speaker 02: We would be losing all the effort and thought and analysis that the board put into these claims. [00:09:13] Speaker 02: APJ Moore had very, I thought, clearly advised Sisvel to amend the claims in the institution. [00:09:20] Speaker 02: Why are you fighting? [00:09:20] Speaker 03: Why do you still want indefiniteness? [00:09:22] Speaker 03: You can't kill claims twice. [00:09:24] Speaker 03: If they're dead under sacks, why do you need to somehow hold onto the edge of the cliff by your fingernails on indefiniteness? [00:09:31] Speaker 03: It does not make sense to me. [00:09:33] Speaker 02: I'm glad you raised that question, Your Honor. [00:09:34] Speaker 02: So this patent has been asserted more than a dozen times to date. [00:09:39] Speaker 02: And the board doesn't, unfortunately, have the ability to determine indefiniteness. [00:09:44] Speaker 02: And so in this forum, this is the only way that the court can address what is a very invalid claim. [00:09:50] Speaker 02: It's invalid as anticipated as well as invalid as indefinite. [00:09:53] Speaker 03: Once again, you can't tell something twice. [00:09:55] Speaker 03: Explain to me why you're clinging to indefiniteness if you might win on anticipation. [00:10:01] Speaker 02: Well, you just hit it right there with your question, Your Honor. [00:10:04] Speaker 02: Might win. [00:10:04] Speaker 02: We would have to go to a federal court and ask them to evaluate indefiniteness, go through the burden, expense, and inconvenience. [00:10:11] Speaker 01: I think there's a failure of communication here. [00:10:13] Speaker 01: Oh, my apologies. [00:10:14] Speaker 01: So I thought the question was, suppose you win this case in this form. [00:10:19] Speaker 01: Who cares? [00:10:20] Speaker 01: Oh, I agree. [00:10:21] Speaker 02: My apologies. [00:10:22] Speaker 02: I misunderstood. [00:10:23] Speaker 02: No, I agree, Your Honor. [00:10:27] Speaker 02: Can I just double check something? [00:10:31] Speaker 01: Intel, Qualcomm, and there are a few other cases. [00:10:35] Speaker 01: I think I was on one of the other ones, began with the name K or something. [00:10:43] Speaker 01: Have we ever said that indefiniteness [00:10:52] Speaker 01: What might otherwise be an indefiniteness problem of a claim in an IPR can be disregarded by an unopposed assumption about the meaning about the claim construction. [00:11:10] Speaker 02: I don't believe I've seen that discussion from your honor. [00:11:13] Speaker 02: I've only seen the reference to whether or not it would be logically impossible. [00:11:17] Speaker 02: Where the parties in the majority of the board were in agreement as to what [00:11:21] Speaker 02: we believe these claims were intended to cover, I would argue it's not logically impossible. [00:11:25] Speaker 01: And the kind of stipulation or something here, just tell me more about that. [00:11:33] Speaker 02: There's no stipulation, Your Honor. [00:11:35] Speaker 02: So petitioner, we were petitioner in the below proceedings, had asked for plain and ordinary meaning as the claim construction. [00:11:42] Speaker 02: Sisfeld did not disagree. [00:11:44] Speaker 02: And the board and institution, again with a dissent by APJ Moore, [00:11:48] Speaker 02: had flagged this issue and recommended to many of the claims to fix this indefiniteness issue, there was no decision made. [00:11:56] Speaker 02: And that the board decided, or excuse me, noted in the final written decision is that the parties appear to have implicitly agreed to a claim construction that basically reads figure 12 and the disclosure of figure 12 as being this step 1c. [00:12:12] Speaker 01: And remind me, does the other side now disagree with that on appeal here? [00:12:20] Speaker 02: It's not clear to me, Your Honor, for the briefing. [00:12:24] Speaker 03: Can I ask, in my understanding, if I was to agree with you that the board erred on anticipation, like let me give you a, for example, go to JA 26, where the board says at the bottom, are you with me? [00:12:41] Speaker 02: One moment, Your Honor. [00:12:43] Speaker 03: All right, I'm there. [00:12:44] Speaker 03: The board says it's unclear how petitioner intends to combine figure four and six, OK? [00:12:51] Speaker 03: And it says, therefore, we determine petitioner doesn't sufficiently carry its burden of showing unpatentability. [00:12:56] Speaker 03: Well, I'll tell you, I think SACS at page 14 actually says combine four and six. [00:13:01] Speaker 03: So I think that is absolute not supported by substantial evidence, that statement. [00:13:06] Speaker 03: So if I'm correct about that, then this results in a vacate and remand to the board for them to answer the question. [00:13:16] Speaker 03: Because basically, they're saying there's no reason to combine these. [00:13:20] Speaker 03: But what they haven't done is expressly decide that either Figure 4 or Figure 6 necessarily discloses the additional sequence limitation of Claim 3. [00:13:30] Speaker 03: Am I right? [00:13:31] Speaker 03: Am I understanding of the process part? [00:13:34] Speaker 02: Well, you are, but I'd take a step back and say we actually think that there was an underlying error as well in terms of the anticipation standard that the board considered. [00:13:44] Speaker 03: I know, but I don't agree with you on that. [00:13:45] Speaker 03: So if you're going to part, I do agree, possibly, with you on that. [00:13:48] Speaker 02: Well, in addition to the point that you raised, Your Honor, we'd also point out that- Don't answer my question. [00:13:52] Speaker 03: Don't give me in additions. [00:13:54] Speaker 03: Answer my question. [00:13:54] Speaker 03: If I am correct in what I'm saying, is the answer I have to vacate and remand? [00:13:59] Speaker 03: Because while I think that the board may have erred in whether it was obvious to combine these two aspects of the Sachs reference based on Sachs's, in fact, disclosure that can be combined, isn't the answer I have to vacate and remand, though, because claim three adds a sequence element that the board just didn't address because they found no reason to combine it. [00:14:15] Speaker 03: I can't do that in the first instance. [00:14:17] Speaker 02: Agreed, Your Honor. [00:14:19] Speaker 03: OK. [00:14:19] Speaker 03: Now you can tell me whatever else you want to. [00:14:21] Speaker 02: Thank you, Your Honor. [00:14:22] Speaker 02: So for all of claims 3, 4, 5, 9, and 10, I'd also point out that the board declined to consider appellants reliance on art that didn't require any combination no matter whether or not you're describing it as a [00:14:37] Speaker 02: another embodiment or not. [00:14:39] Speaker 02: So in particular for claims three and nine, we have discussion in the background that we had specifically cited that the board didn't consider, as well as in claim four, we had discussion on figure four. [00:14:50] Speaker 03: Let me ask you another question. [00:14:51] Speaker 03: Based on what I said before, which is it seems to me particular to claim three, does that extend, it doesn't extend to the other claims that you're appealing? [00:15:02] Speaker 03: What I was talking about before, the concern about Figure 4 and Figure 6, that seems to me to be relevant to the unpatentability of Claim 3. [00:15:09] Speaker 03: Is it relevant to the other claims? [00:15:11] Speaker 03: You're appealing 3 to 5, 9 and 10. [00:15:14] Speaker 03: Yes. [00:15:14] Speaker 03: I'm just trying to wrap my head. [00:15:15] Speaker 03: There's so many arguments in this case and so many different issues. [00:15:18] Speaker 03: And I'm just trying to wrap my head around which arguments go to which issues. [00:15:22] Speaker 02: There are, Your Honor. [00:15:23] Speaker 02: So Claims 3 and 9 are identical except for the claim from which they depend. [00:15:27] Speaker 02: And we had in the briefing, in the petition, relied on discussion regarding identifying a gap, not just in Figure 6, but also in connection with the background discussion of the technology that the board just never considered. [00:15:41] Speaker 02: And we also cited to discussion in SACS regarding Figure 4. [00:15:47] Speaker 02: we can almost set aside this issue of four and six, because we did specifically mention the discussion on figure four, which walks through an example of how you identify a gap. [00:16:00] Speaker 02: And so the same applies for dependent claim four, where we'd also cited to you at appendix 292 the background discussion of identifying a gap, as well as [00:16:10] Speaker 02: at page 292 of the appendix, page 12 of SACS, line 25 to page 13, line 9, where again... I've got to be honest, I'm completely lost. [00:16:19] Speaker 03: I don't even know what you're arguing at this point. [00:16:21] Speaker 03: You've lost me. [00:16:22] Speaker 03: So try to bring me back. [00:16:23] Speaker 02: Yes, Your Honor. [00:16:24] Speaker 02: So we're arguing that the board found that we didn't provide a reason to combine with six, but we had also independently pointed to the identification of a gap in figure four. [00:16:33] Speaker 03: Combine four and six? [00:16:35] Speaker 02: Right. [00:16:36] Speaker 01: These are figures. [00:16:37] Speaker 02: Figures. [00:16:37] Speaker 02: My apologies. [00:16:38] Speaker 03: Why do you need a reason to combine four and six when Sachs expressly tells you you can? [00:16:42] Speaker 02: Exactly, Your Honor. [00:16:43] Speaker 03: Then let me just get you onto one other argument, which is the not skilled artisan. [00:16:50] Speaker 03: On that point, it seems to me the answer would have to be, I think, to vacate and remand. [00:16:57] Speaker 03: Because while certainly you have to be a skilled artisan, it seems that the board [00:17:02] Speaker 03: didn't do the assessment of whether the particular gentleman's experience may suffice to meet the bachelor's degree in electrical engineering, which he doesn't have. [00:17:14] Speaker 03: So while you're correct almost from like a chennery standpoint, meaning the board relied on his testimony and made it clear, and it's also clear he doesn't have precisely the background [00:17:28] Speaker 03: that they say, and in fact is missing one of what they call a minimum credential, basically. [00:17:33] Speaker 03: But based on years of experience, we have to leave room for the board to say this equates to. [00:17:38] Speaker 03: I mean, who's the guy that invented all computers in his garage but didn't go to college? [00:17:42] Speaker 03: There's people who are amazing and come up with these things and clearly can be qualified as an expert based on years of experience. [00:17:50] Speaker 03: But the board just didn't do it in this case. [00:17:51] Speaker 03: Is that the problem? [00:17:53] Speaker 02: We're not attempting, by the way, to diminish Mr. Bates's experience. [00:17:55] Speaker 02: But it's related to the physical laying of equipment, not the actual design of the procedures, the protocols for transmitting data within it. [00:18:02] Speaker 03: Stop, stop. [00:18:02] Speaker 03: Again, you're not going to get me to make a fact finding of whether he's qualified or not. [00:18:06] Speaker 03: So what you're arguing right now is completely irrelevant. [00:18:08] Speaker 03: My question to you is, what do I do precisely with the board's [00:18:14] Speaker 03: Reliance on testimony of someone that didn't have one of the credentials they expressly articulated was something a skilled artisan would have. [00:18:22] Speaker 02: So we would recommend that it be remanded to be redetermined without reliance on his testimony. [00:18:28] Speaker 03: Why? [00:18:28] Speaker 03: Why do I have to tell them not to rely? [00:18:30] Speaker 03: I mean, somebody with a bachelor's degree and three years of experience, to be clear, I have a bachelor's degree in electrical engineering. [00:18:37] Speaker 03: I have no business doing anything more complicated than turning the light switches on and off in my house. [00:18:43] Speaker 03: So isn't it possible that somebody could have 40 plus years of experience [00:18:53] Speaker 03: doing electrical engineering-like stuff, even though they don't have the degree, and that the board might find that that satisfies. [00:19:02] Speaker 02: Just why we briefed this issue at length in the underlying proceedings, argued about it at the oral argument before the board, but didn't get an answer. [00:19:08] Speaker 01: Right. [00:19:09] Speaker 01: So I can't give you the answer on appeal. [00:19:10] Speaker 01: It's a fact. [00:19:11] Speaker 01: And given that there are issues to be decided on remand, which I think you agreed with, then [00:19:19] Speaker 01: feels like what to do about Mr. Bates is not a question we can skip. [00:19:26] Speaker 02: I believe that's correct, Your Honor. [00:19:28] Speaker 03: OK, let's hear from opposing counsel. [00:19:44] Speaker 00: Good morning, Your Honors. [00:19:45] Speaker 00: May it please the court, Robert Gajarsa on behalf of Crossbell and Sisselville [00:19:48] Speaker 00: I know there's a lot of issues in this appeal, and there's probably a lot of questions about them. [00:19:52] Speaker 00: I'm happy to address them. [00:19:53] Speaker 00: But I would like to call the court's attention to two items from the cross-appeal, namely that element 1c is not disclosed or practiced in sacks, and the board's conditionality requirement was wrong. [00:20:04] Speaker 00: And if element 1c is not practiced, then all of the claims are valid. [00:20:08] Speaker 00: That would resolve this entire case. [00:20:10] Speaker 00: And indeed, what I would like to do is start with 1C with a quick overview and then get into the specifics, because I think that's important to understand what's going on here. [00:20:19] Speaker 00: Namely, element 1C requires stopping the timer when the missing data block is missed. [00:20:25] Speaker 00: The petitioner relied on to teach element 1C figure 5 embodiment. [00:20:29] Speaker 00: And they also explained that page 40 of the petition, which is apex 275, note 11, [00:20:35] Speaker 00: They explained what the conditionality, this factual conditionality condition that the petitioner believed C and D would impose. [00:20:43] Speaker 00: Namely, that C is not triggered unless the one data block is received. [00:20:47] Speaker 00: In other words, when you receive that data block, you perform C. If not, you go to D. That's how the petition put it. [00:20:55] Speaker 00: As Cisseville explained below, the SAX-T reorder timer does not stop. [00:21:00] Speaker 00: When you receive the data block, it stops when you receive all of them. [00:21:04] Speaker 00: and the reordering procedure is complete. [00:21:06] Speaker 00: And I'll walk the course specifically through that. [00:21:08] Speaker 00: The board, however, said on Apex 18 that SACS does not depict or describe anything else occurring after the receipt of the missing data block in order to trigger the stop at the timer. [00:21:21] Speaker 00: If we turn to Figures 4 and 5, specifically Figure 5, for the course conveniences can be found on Apex 14. [00:21:28] Speaker 00: If you look at the PDUs, the data blocks that are being received, the first one is 5-6. [00:21:34] Speaker 00: As Sachs explains, that starts the timer because there are missing data blocks, namely 1, 2, 3, and 4. [00:21:46] Speaker 00: If you look at the next block that's received in Figure 5, it's 1-2. [00:21:50] Speaker 00: The missing data block, at least one of the missing data blocks is received. [00:21:57] Speaker 00: the timer is not stopped when 1-2 is received. [00:22:00] Speaker 00: If you look down at the figure, when 3-4 is received, the timer still doesn't stop. [00:22:06] Speaker 00: As the figure expressly says, stop timer when reordering is finished. [00:22:13] Speaker 00: And that's exactly what Sachs describes if your honors turn to page 1280 of the appendix. [00:22:21] Speaker 00: Sachs expressly describes, and this seems to be at least [00:22:24] Speaker 00: in my opinion, agreed to by the experts, how this is read. [00:22:28] Speaker 00: That top paragraph on the Apex 1280, this can be achieved by stopping the duration of... I'm sorry, can you tell me what page and line number you're on? [00:22:36] Speaker 00: It's Apex 1280, it's lines 1 through 12. [00:22:40] Speaker 03: Are we in SACS? [00:22:41] Speaker 00: This is SACS, yes. [00:22:43] Speaker 03: Page number of SACS in line? [00:22:44] Speaker 00: Page number of SACS is column 14, I believe. [00:22:48] Speaker 00: The pages are a bit confusing, there's a lot of page numbers on there. [00:22:52] Speaker 00: If you're looking at the PDF page number on the bottom, it's page 16 of 34. [00:22:56] Speaker 03: I'm not. [00:22:57] Speaker 03: I'm looking at Sachs. [00:22:58] Speaker 03: So what? [00:22:59] Speaker 03: Page 14 and what line number? [00:23:01] Speaker 00: It's lines 1 through 14. [00:23:03] Speaker 00: This is what the board cited to. [00:23:04] Speaker 00: This is what the Sierra Wireless experts cited to. [00:23:09] Speaker 00: This is also what Sisyphilis expert discusses. [00:23:12] Speaker 00: In order to achieve the minimum reaction time, this is describing figure 5, the reordering delay shall prefer it will be stopped when all outstanding PDUs are received. [00:23:22] Speaker 00: and the sent sequence is reestablished. [00:23:25] Speaker 00: That's what Sysful keeps referring the board to about how the timer is not stopped until the reordering is done. [00:23:31] Speaker 00: Indeed, that's exactly what the next sentence says. [00:23:36] Speaker 00: Stopping the duration of the T reorder timer when reordering is finished. [00:23:42] Speaker 00: exactly as Figure 5 says, plain on its face, to stop the timer when the reordering is finished. [00:23:47] Speaker 01: This is a method claim, right? [00:23:50] Speaker 00: Yes, Your Honor. [00:23:51] Speaker 01: So in an example, I don't know whether one is shown when there is a single missing data block and it comes in. [00:24:01] Speaker 01: At that point, it would, even in your view, [00:24:07] Speaker 01: The sacks would even, in your view, meet the 1C element. [00:24:13] Speaker 00: We would have to stop the timer if it did. [00:24:16] Speaker 00: Right. [00:24:17] Speaker 01: So figure four is just showing an example where, at the beginning, there are four missing blocks, right? [00:24:27] Speaker 01: One, two, three, and four. [00:24:28] Speaker 01: And it's going to keep the clock running until all four of them come in. [00:24:37] Speaker 01: That teaches an example, again, where different stimuli, it seems to be the word people use, I think of it as an input, where block two comes in, one is missing. [00:24:50] Speaker 01: Sachs would say, start the clocks and as two comes in, stop it when one comes in. [00:24:55] Speaker 00: That would meet one C. If that's what Sachs said, it would. [00:24:59] Speaker 00: But it doesn't say that, Your Honor. [00:25:00] Speaker 00: What it says is stop the timer when reordering is finished. [00:25:04] Speaker 03: And in Apex 1280, the page... What about page 9, line 34? [00:25:16] Speaker 03: And the board cited this at page 17 of its opinion, which is why I'm directing you to it. [00:25:19] Speaker 03: It says, in a preferred embodiment, the timer is stopped before the time expires when, at the reception of a data packet, the sequence is established. [00:25:28] Speaker 03: So that doesn't seem to... [00:25:32] Speaker 03: Reception the board cited that why isn't that substantial evidence? [00:25:35] Speaker 03: I see your point about page 14 But I think just Toronto is saying that's not all there is in this reference And what I'm pointing to is what the board cited why isn't that substantial evidence for its fact-finding? [00:25:46] Speaker 00: For the same reason we're talking about the other page your honor It's the last portion of the sentence when at the reception of a data packet the sequence is established the sequence being established means rearranging the data packets and [00:25:59] Speaker 00: reordering the data packets exactly as sacks describes on 1280 it says if you look at that same paragraph We're reading from that same language is there when all outstanding PD years received and the sent sequence is reestablished Sacks uses that same word sent sequence is established reestablished That's what sacks is talking about if you look at the bottom of the page [00:26:20] Speaker 00: What it's talking about is that the order is starting after receiving three to four, and the sequence one, two, three, four, five, six, seven, eight is reestablished. [00:26:28] Speaker 00: How does it get that sequence again? [00:26:31] Speaker 00: It takes the out of order PVUs and shuffles them back into the sequence. [00:26:36] Speaker 01: And just to be clear, this word reordering can mean two different things. [00:26:41] Speaker 01: One can be, I asked for that coffee. [00:26:44] Speaker 01: It hasn't come yet. [00:26:46] Speaker 01: I'm asking for it again. [00:26:47] Speaker 01: The other is putting things [00:26:50] Speaker 01: in a sequence that they were not in. [00:26:54] Speaker 01: When sex uses the term reordering, which is it using? [00:26:58] Speaker 00: The latter, Your Honor. [00:26:59] Speaker 00: And that's shown on this page expressly, where it says the sequence is reestablished. [00:27:03] Speaker 00: That's what it means. [00:27:04] Speaker 00: It lays it out one through eight. [00:27:06] Speaker 00: It says, here's the original sequence you're looking for. [00:27:08] Speaker 00: One and two came out of order. [00:27:10] Speaker 00: It came after five and six. [00:27:11] Speaker 00: You swap them. [00:27:12] Speaker 00: You put them in the right order in the buffer. [00:27:14] Speaker 00: That's not taught. [00:27:17] Speaker 00: So one element, one C, is not taught. [00:27:19] Speaker 00: element 1C, again, requires stopping the timer when the missing data block is received. [00:27:26] Speaker 00: Importantly, as I promised on conditionality, this disposes of all the claims because all the claims have this independent claim feature, 1C. [00:27:34] Speaker 00: The board read the petition and agreed with the petition in terms of conditionality that you could perform A, B, and C or A, B, and D. [00:27:46] Speaker 00: And the problem with that is it doesn't make sense in terms of fact. [00:27:49] Speaker 00: It doesn't make sense in terms of logic. [00:27:52] Speaker 00: And it doesn't make sense in terms of the law. [00:27:54] Speaker 03: So I'm trying to see if I can get to where you are on what reorder means. [00:28:01] Speaker 03: And on page 14, at about line 14, when Sachs talks about reorder, so my problem is I don't [00:28:14] Speaker 03: If this were de novo, I feel like you'd have a much stronger case on whether SACS, when it talks about reordering, means putting in order versus [00:28:25] Speaker 03: initiating another order for the missing information. [00:28:28] Speaker 03: And so that's I'm trying to just find the very best place where you think sex most clearly leads to the sequence part, as opposed to the request part. [00:28:40] Speaker 03: And at page 14, line 14, that paragraph again, [00:28:45] Speaker 03: talks about reordering the data packets often leads to high delays in responding to the sender. [00:28:52] Speaker 03: However, if packet reordering occurs infrequently, the previous scheme may already be sufficient. [00:28:57] Speaker 03: Doesn't that seem to be using the word reordering in the context of reaching out to the sender for additional information as opposed to putting in order? [00:29:07] Speaker 00: I don't read it that way, Your Honor. [00:29:09] Speaker 00: No. [00:29:09] Speaker 00: If you look at the example above, it clearly states that the T-reorder started after receiving, and the sequence is reestablished. [00:29:17] Speaker 00: And therefore, the timer is stopped. [00:29:20] Speaker 00: Dr. Kakey is also, Sierra Wireless is expert at Apex 1172, also explained that SACS refers to reordering of PDUs in sequential order in the buffer. [00:29:33] Speaker 00: That's their own expert talking about reordering in the buffer. [00:29:36] Speaker 00: And that's exactly. [00:29:36] Speaker 01: What's that page again? [00:29:38] Speaker 00: Apex 1172, paragraph 154. [00:29:41] Speaker 00: It continues over to 1173, Your Honor. [00:29:46] Speaker 00: And indeed, I'm not aware of SACS talking about requesting information being the same as reordering. [00:29:53] Speaker 00: Requesting information is a request. [00:29:55] Speaker 00: It's a retransmission request. [00:29:56] Speaker 00: It's ARQ. [00:29:57] Speaker 00: That's what the process is about. [00:29:59] Speaker 00: You have the SACS. [00:30:00] Speaker 03: Does SACS call it that? [00:30:03] Speaker 00: In terms of the request, it [00:30:05] Speaker 00: There's status reports that it talks about all throughout, Your Honor. [00:30:09] Speaker 00: Yes. [00:30:09] Speaker 03: No, no. [00:30:10] Speaker 03: Does SACS? [00:30:12] Speaker 03: Again, trying to find support for what you're suggesting. [00:30:17] Speaker 03: So does SACS expressly distinguish reordering from requesting, for example, somewhere? [00:30:24] Speaker 03: Or does it use requesting over and over when referring to the [00:30:31] Speaker 03: the outreach for the packet. [00:30:33] Speaker 03: Do you understand? [00:30:35] Speaker 03: I mean, I see reorder everywhere in here. [00:30:38] Speaker 03: And so. [00:30:40] Speaker 00: And reorder means, I don't believe there was a dispute below that reorder means reordering the PDUs. [00:30:46] Speaker 00: I mean, that's what Sachs describes it as. [00:30:49] Speaker 00: When it talks about the status report is removed in the buffer and transmitted, that's where it's sending something. [00:30:55] Speaker 00: Reordering on its face means that. [00:30:58] Speaker 00: And that's exactly what Sachs is talking about. [00:31:00] Speaker 00: It's the whole purpose of the T reorder timer, is that you are reordering them. [00:31:06] Speaker 00: The board said there was nothing that depicts or describes it. [00:31:09] Speaker 00: And if your honors disagree that it's that clear, at least it would have to have a remand to the board to explain it. [00:31:15] Speaker 00: Because the board's finding on Apex 18 that nothing depicts or describes something else being done is not accurate. [00:31:22] Speaker 03: I guess the problem is the board also talks about [00:31:27] Speaker 03: the timer stopping in response to reception of the data packet with regard to SACS. [00:31:32] Speaker 03: And so I have to conclude. [00:31:34] Speaker 03: You're right. [00:31:37] Speaker 03: I mean, the board, reordering is certainly linked both by Figure 5 and the text. [00:31:44] Speaker 03: But the board also seems to hinge its determination on the reception of the data packet, not just the reordering. [00:31:54] Speaker 00: So why is that wrong? [00:31:57] Speaker 00: It's that same line that you cited, Your Honor, that it's expiry when at the reception of the data packet. [00:32:03] Speaker 00: The problem with the board's opinion is it just doesn't read the rest of the sentence. [00:32:07] Speaker 00: When at the reception of the data packet, the sequence is established. [00:32:10] Speaker 00: And that's what Sachs is talking about. [00:32:12] Speaker 00: In order to achieve the minimum reaction time of link protocol, specifically talking about Figure 5, which is what the petition relied on exclusively, Sachs expressly teaches [00:32:22] Speaker 00: that is stopped when all the outstanding PDUs are received. [00:32:24] Speaker 00: That is why it doesn't stop when you get 1-2, which alone should have triggered D under the conditionality of the factual condition that was established in the petition, but it doesn't. [00:32:33] Speaker 00: And the reason is it needs all of the PDUs in order to shuffle them back into space. [00:32:38] Speaker 03: Again, same thing I asked for the opposing counsel. [00:32:40] Speaker 03: If I agree with you and if you're correct, that would mean I would vacate and remand the board's determinations [00:32:48] Speaker 03: that claims 1, 2, 6, and 8 are unpatentable, but the board would have to go back and consider them now in light of obviousness, which was also before the board on these claims, correct? [00:33:01] Speaker 00: We believe the obviousness was waived, Your Honor. [00:33:02] Speaker 00: They didn't explain how those items would actually be combined. [00:33:06] Speaker 03: To who? [00:33:07] Speaker 00: Wave before who? [00:33:08] Speaker 00: Wave before the board, Your Honor. [00:33:09] Speaker 03: Well, they have to decide that. [00:33:10] Speaker 03: They haven't decided that. [00:33:11] Speaker 03: I can't decide that they wave something before the board, can I? [00:33:15] Speaker 00: No, in that case, Your Honor, you could decide it, as we put in the briefing. [00:33:19] Speaker 00: But you'd have to remand and let the board decide that, yes. [00:33:22] Speaker 00: But here, the operation of SACS is so clear, you don't need to remand an element 1C. [00:33:28] Speaker 00: There's no other reasonable way to read the record. [00:33:30] Speaker 00: On the face of Figure 5, it expressly says, stop timer when reordering is finished. [00:33:38] Speaker 00: What it's doing in that is not doing that. [00:33:40] Speaker 00: And on 12 Apex, 1280, it does the same. [00:33:43] Speaker 00: In the short time I do have remaining, I would like to address conditionality, if that's OK with the court, with the court's permission. [00:33:48] Speaker 03: Well, I'd really like you to address the appellant's appeal. [00:33:52] Speaker 03: Is that what you're about to address? [00:33:54] Speaker 00: I was going to address the conditionality of the claims, which would be required under the board's interpretation. [00:33:59] Speaker 00: The board said you can do A, B, and D, and still practice the claims. [00:34:03] Speaker 03: I'd like you to. [00:34:04] Speaker 03: You have 41 seconds, and I'm happy to be a little bit generous. [00:34:07] Speaker 03: But you need to address the appellant's appeal. [00:34:10] Speaker 00: OK, the appellant's appeal in particular for figures 6 and 7, Your Honor, we don't believe that they are established in the petition itself. [00:34:19] Speaker 00: It has a conclusory statement that you could potentially combine all of them from the overall disclosure. [00:34:24] Speaker 00: That's not enough. [00:34:25] Speaker 00: It has to be a specific embodiment itself. [00:34:28] Speaker 00: In terms of the definiteness statement that came up and was discussed for a while, [00:34:32] Speaker 00: We don't believe that APJ Moore was saying that. [00:34:34] Speaker 03: How about I get you to jump to the points that I am more concerned about? [00:34:37] Speaker 03: Why don't you address the expert who was relied on throughout by the board in its opinion? [00:34:44] Speaker 00: We believe his expert qualifications, as the board said on AppEx 8, Your Honor, wouldn't have changed the board's opinion. [00:34:49] Speaker 03: But I don't see how I don't have to vacate and remand on that point, unless I agree with you on the cross appeal. [00:34:56] Speaker 03: I don't see how, because the board articulated what was required to be an ordinarily skilled artisan. [00:35:03] Speaker 03: And he doesn't meet those minimum requirements. [00:35:06] Speaker 03: He may. [00:35:07] Speaker 03: The board is, of course, free to determine that his years of experience suffice for a bachelor's in electrical engineering. [00:35:13] Speaker 03: But he doesn't have a bachelor's in electrical engineering. [00:35:16] Speaker 03: And it wouldn't be appropriate to let non-skilled artisans give testimony on these kinds of things. [00:35:22] Speaker 00: Two responses, number one, Your Honor, is that there is precedent out there, cited in the briefing, that a proceder or an individual can talk about things that are in their background if it's of assistance to the board. [00:35:31] Speaker 00: But I do agree with you, Your Honor, that if there is a problem there, [00:35:35] Speaker 00: If this court doesn't accept the board's finding that it wouldn't affect their opinion, then yes, Ruman would be. [00:35:40] Speaker 03: They didn't make a finding. [00:35:41] Speaker 03: They didn't analyze. [00:35:43] Speaker 03: They didn't even address the issue that he doesn't suffice under their articulated standard for what a final school in the art is. [00:35:50] Speaker 03: Did they? [00:35:51] Speaker 00: They did not. [00:35:51] Speaker 00: What they said is Sisyphus was different. [00:35:53] Speaker 00: Sisyphus said you could have less education for more experience. [00:35:58] Speaker 00: That was Sisyphus' proposed posita standard. [00:36:02] Speaker 00: And the board said it didn't matter. [00:36:03] Speaker 00: If this court finds that it does matter, the proper course is to remand to the board. [00:36:07] Speaker 00: for it to figure out if it does affect the outcome. [00:36:09] Speaker 00: But we submit that element 1C is so clear, it doesn't. [00:36:13] Speaker 00: And conditionality itself, the board's conditional analysis. [00:36:16] Speaker 03: And then I want to get you to look really quick at Figure 4 and 6. [00:36:20] Speaker 03: And in particular, the board's finding on JA26, which is what I walked through closing counsel with, where they suggest it is unclear how petitioning tends to combine Figure 4 and 6. [00:36:33] Speaker 03: and why a post-cita would have been motivated to make that combination. [00:36:37] Speaker 03: My problem is, SACS itself expressly says, I guess we'll see if I can find that page, page 14, that you can find, take the addition of figure six and add it into figure four. [00:36:49] Speaker 03: So I don't know why they would need to articulate a motivation to make a combination that the reference on its face suggests expressly. [00:36:57] Speaker 03: So if that's a concern, what happens then? [00:37:02] Speaker 00: I'm looking at page 14. [00:37:03] Speaker 00: I just don't see where Sachs actually says you can combine 4 and 6. [00:37:06] Speaker 00: What Sachs says is to completely solve the problem of packer reordering, the previous scheme can be improved by adding at least one additional state variable to the receiver. [00:37:15] Speaker 01: The emphasis, I think, for current purposes, should be on the words by adding. [00:37:20] Speaker 00: Correct. [00:37:22] Speaker 00: It doesn't describe, as Sisyphil told the board, what would potentially have to be taken away. [00:37:26] Speaker 00: And there's distinctions between 4, 5, and 6. [00:37:29] Speaker 00: Specifically, what does the state variable do? [00:37:32] Speaker 00: When does the status report sent? [00:37:33] Speaker 00: It's not the same scheme as five. [00:37:36] Speaker 00: It's receiving one PDU instead of two, and the payer, this is all was pointed out to the board. [00:37:40] Speaker 03: And I think that's- Wait, when it says to completely- I'm making sure I'm following. [00:37:44] Speaker 03: To completely solve the problem of packet reordering, the previous scheme, and I thought the previous scheme was referring to the prior paragraphs, which are about figure four and five. [00:37:52] Speaker 03: Am I wrong? [00:37:54] Speaker 00: That would be my understanding too, yes, Your Honor. [00:37:56] Speaker 03: Okay, so we're talking about to solve the problem, [00:37:59] Speaker 03: from Figure 4 and 5 can be improved by adding at least one additional state variable in the receiver. [00:38:05] Speaker 03: Isn't that what Figure 6 is about, state variables in the receiver? [00:38:10] Speaker 00: It is, but what that paragraph doesn't say is how you're actually going to combine those two. [00:38:15] Speaker 00: If you look at Figures 4 and 5... But it doesn't have to say how. [00:38:19] Speaker 03: How is a different question than motivation? [00:38:21] Speaker 03: What the board found is they didn't need the motivation to combine. [00:38:25] Speaker 03: That was their express finding on 26 and 27. [00:38:27] Speaker 03: Those are the exact words they used. [00:38:29] Speaker 03: They didn't say, and therefore it doesn't explain how. [00:38:33] Speaker 03: They said they didn't satisfy the motivation. [00:38:35] Speaker 03: And that, it seems to me, is suggesting a combination, even if it doesn't say how. [00:38:40] Speaker 00: I think what the board was likely trying to say is that the motivation to combine the elements as they are. [00:38:46] Speaker 00: And I think that's the problem, is that the petition doesn't explain [00:38:49] Speaker 00: how you would combine those elements and make it functional without removing something. [00:38:54] Speaker 00: How would you get from a system that receives pairs of PDUs to a system that receives singles? [00:38:59] Speaker 03: On your view of things, I don't have to reach anything in the appellant's appeal if I agree with your arguments about reordering and putting in sequence and that being the trigger to stop the timer. [00:39:15] Speaker 02: Correct. [00:39:16] Speaker 03: And is that true? [00:39:19] Speaker 03: Regardless of the board's reliance on an expert who wasn't technically qualified as an expert? [00:39:28] Speaker 00: Yes. [00:39:28] Speaker 00: And because it's so clear on the record, no other reasonable fact finder would be able to. [00:39:32] Speaker 03: Well, but if you're correct, I have to vacate and remand, right? [00:39:39] Speaker 03: Isn't that the outcome, if you're right? [00:39:41] Speaker 00: We would submit that reversal is because you can't read the sacks any other way. [00:39:45] Speaker 00: It's so clear. [00:39:45] Speaker 00: But yes, your honor would be vacate and remand. [00:39:49] Speaker 03: And if I vacate and remand, is there anything left for the board to do when I vacate and remand? [00:39:59] Speaker 03: Again, there's so many issues in this case. [00:40:00] Speaker 03: I'm just trying to wrap my head around what has to be decided, depending on how I decide things. [00:40:05] Speaker 03: So if I were to vacate and remand on claims one, two, six, and eight, is there any necessity to decide any of the other questions, and in particular, the one that concerns me is the expert? [00:40:15] Speaker 00: No, we don't believe they would, Your Honor, because number one, the board said the qualifications expert didn't change its opinion. [00:40:21] Speaker 00: But number two, the record is clear. [00:40:23] Speaker 00: If I step back for a second, Sachs says repeatedly that the trigger to stop the timer is not when the missing data, when the missing PDU in that example is received. [00:40:35] Speaker 03: My concern is, does that only go to anticipation and not obviousness? [00:40:43] Speaker 03: I mean, look, without a doubt, I think that they were wrong in relying on your expert without explaining why his credentials nonetheless suffice because he doesn't have the minimum credentials they articulated. [00:40:53] Speaker 03: So hands down, I think that's wrong. [00:40:55] Speaker 03: So what I'm worried about is, if I vacate and remand in your favor on your cross appeal, what happens below [00:41:04] Speaker 03: Like, for example, obviousness. [00:41:05] Speaker 03: Does the board then pivot to obviousness on this issue, even though it's not exactly disclosed by Sachs? [00:41:11] Speaker 03: It would also be obvious to stop the timer at X point. [00:41:14] Speaker 03: I just don't know. [00:41:15] Speaker 03: And so I'm just trying to figure out, since that's on the table, should I also make it clear to them, oh, and by the way, if there's anything more that you need to do on remand, please be mindful of the fact that you didn't explain why Mr. Bates satisfies. [00:41:28] Speaker 03: Do you understand what I'm trying to go? [00:41:29] Speaker 03: I'm just trying to think about how I write an opinion. [00:41:31] Speaker 00: Absolutely, Your Honor. [00:41:33] Speaker 00: What I would draw your attention to is a portion of the last sentence you had there about, would it be obvious to add this in the absence of a teaching in SACS? [00:41:42] Speaker 00: And that specific argument was never presented in the petition. [00:41:46] Speaker 00: So the board would simply say on remand that argument wasn't presented in the petition. [00:41:51] Speaker 00: Once he is not taught, it's over. [00:41:55] Speaker 00: There's nothing that preserves that argument below. [00:41:59] Speaker 00: The one C really matters here because of the conditionality analysis by the board, which was wrong. [00:42:06] Speaker 00: As a factual legal logic matter, this court recited it in high terror in Lincoln. [00:42:11] Speaker 00: We cited high terror to the board below. [00:42:14] Speaker 00: Those cases all collectively teach that every step of a method claim has to be reformed. [00:42:19] Speaker 03: So what exactly would be the downside, apart from possibly it being advisory? [00:42:23] Speaker 03: I don't know. [00:42:25] Speaker 03: They made an obviousness argument in the petition. [00:42:27] Speaker 03: I don't understand the scope of that argument. [00:42:29] Speaker 03: You all have thrown so much at us in this case. [00:42:32] Speaker 03: What would be the downside of me saying, and by the way, if there's anything further to do, [00:42:36] Speaker 03: Can you please articulate clearly why Mr. Bates nonetheless satisfies the minimum standards for the ordinarily skilled artisan, because you can't just assume it when he doesn't have the minimum standards? [00:42:46] Speaker 00: Oh, the downside, I don't think there would be any, Your Honor. [00:42:48] Speaker 00: I think that would be totally reasonable for this court to say, while we're remanding, you can also do this if it affects the opinion. [00:42:54] Speaker 00: The board still has it statement on Apex 8 saying standard doesn't matter. [00:42:58] Speaker 00: But if this court disagrees, you can do that also. [00:43:02] Speaker 00: What would be of assistance, though, in this case, I would [00:43:04] Speaker 00: like to petition the panel, is to clarify the statements on conditionality that the board relied on here. [00:43:11] Speaker 00: And specifically, my friend from Sierra said that Lincoln is an early precedent of this court. [00:43:16] Speaker 00: 2010, I don't want to date myself, but 2010 doesn't seem that early to me. [00:43:21] Speaker 00: But the board's opinion in Schulhauser did reference this court's opinions, non-precedential opinions, in Apolera and also Cyber Settle. [00:43:32] Speaker 00: which the board found to be persuasive in finding that conditionality opposite of what Lincoln held, opposite of what Highterra held, has to be on a step-by-step basis in all the steps. [00:43:43] Speaker 00: All the steps do not need to be performed if there is a gate that you're going through. [00:43:47] Speaker 00: And that would be of great assistance to the bar to clarify that question in a presidential opinion. [00:43:53] Speaker 00: We would submit that Highterra's analysis should be adopted as the correct one. [00:43:57] Speaker 03: Just out of curiosity, why do I need to reach that issue if I agree with you? [00:44:01] Speaker 03: and one, two, six, and eight, six through one, two, and six through eight about the reordering versus, you know, why do I, why do I, I mean, what you're asking me to do is jump in way into a big issue of law that could affect lots of other cases when it may be unnecessary. [00:44:18] Speaker 03: Why do I need to do that? [00:44:20] Speaker 03: Or why should I do that? [00:44:21] Speaker 00: To be fair to the board. [00:44:22] Speaker 03: Is it because there might still be something open? [00:44:24] Speaker 03: The same reason I said, should I address the Mr. Bates thing? [00:44:27] Speaker 03: Is it because there might still be something open in this case that depends or hinges on conditionality? [00:44:32] Speaker 03: And I'm just. [00:44:33] Speaker 00: Yes, Your Honor. [00:44:34] Speaker 00: So what the board found was they said you can do A, B, and D, or A, B, and C. And so they didn't find four and five of the same body that disclosed both. [00:44:44] Speaker 00: What they found was four disclosed ABD and five disclosed ABC. [00:44:50] Speaker 00: And therefore, it's anticipated under either interpretation. [00:44:54] Speaker 00: And so if this court were to reverse on conditionality, that would have to be addressed. [00:44:58] Speaker 00: And the reason why that matters is if you reverse on conditionality, as this court held in Lincoln, every single step, even conditional steps, have to be met by the same embodiment. [00:45:08] Speaker 00: And that would be the instruction to the board. [00:45:11] Speaker 00: That would also potentially dispose of all the issues because C is not met. [00:45:16] Speaker 00: And because C is not met, it doesn't matter if there's one that teaches D. [00:45:21] Speaker 00: In essence. [00:45:22] Speaker 03: OK, I understand your argument. [00:45:23] Speaker 03: We're way over time. [00:45:24] Speaker 03: Thank you so much, Mr. Garza. [00:45:26] Speaker 03: Ms. [00:45:26] Speaker 03: Merrill, you have for a little time to give her a full time. [00:45:35] Speaker 02: I apologize. [00:45:35] Speaker 02: Thank you, Your Honor. [00:45:36] Speaker 02: I'd like to go back to your very first question very briefly. [00:45:39] Speaker 02: And you had referenced and analogized Sachs [00:45:43] Speaker 02: to the Encyclopedia Britannica, I'm going to respectfully disagree that this single 30-page reference directed to a single invention with different figures showing how that invention works is an appropriate read. [00:45:53] Speaker 02: And that's exactly why I think your honor's authority in vitrolic is the right authority to follow here, because we're looking at a single invention, not the net money example where you've got very discrete different processes that would require combination. [00:46:07] Speaker 02: Turning, unless there's any questions on the area of law. [00:46:10] Speaker 03: Well, I don't think that's, I think that you're completely wrong. [00:46:13] Speaker 03: I think that the point I was making, I was showing you why the legal standard that you're requesting is wrong, because it would extend all the way to the Encyclopedia Britannica. [00:46:21] Speaker 03: I never was analogizing this case to the Encyclopedia Britannica. [00:46:25] Speaker 03: The problem here, I mean you could have a two-page reference, and if it discloses two different embodiments, [00:46:30] Speaker 03: You can't combine one and two and call it anticipation. [00:46:33] Speaker 03: It does not matter the length. [00:46:35] Speaker 03: I was pointing out to you the reason for the court's long-standing rule of law that we don't combine embodiments in a reference for anticipation purposes. [00:46:43] Speaker 03: The reasoning behind it so that you understand. [00:46:46] Speaker 03: So anyway, why don't you choose a different topic. [00:46:49] Speaker 03: You got three minutes. [00:46:50] Speaker 02: All right. [00:46:51] Speaker 02: Turning to the next topic, I turn to [00:46:53] Speaker 02: counsel re-arguing the board's factual determination at appendix page 18 regarding limitation 1C. [00:47:01] Speaker 02: The board spent two pages discussing all of the competing information, briefing, and arguments and testimony from our expert and their declarant regarding this issue. [00:47:11] Speaker 02: We submit that the board has already considered all the arguments being remade here in appeal. [00:47:16] Speaker 02: and that they're asking you not to decide this as a substantial evidence question, but rather as a redo of the board's analysis. [00:47:23] Speaker 03: I think what I need you to really get directly to, and it's the only thing you should probably be talking about in your rebuttal, is this reorder issue. [00:47:32] Speaker 03: I need you to tell me why Mr. Garza isn't correct about the disclosure at page 14, and the only thing the board cites [00:47:40] Speaker 03: that contradicts his explanation is that little sentence at page 9 spanning page 10, but even the rest of that sentence talks about the sequencing. [00:47:49] Speaker 03: So this is the biggest issue for you, and your entire case stands or falls on it. [00:47:54] Speaker 03: So this is what you should have stood up with. [00:47:55] Speaker 02: So at page 17, I'd first refer you to the board's citation to the complete sentence. [00:48:02] Speaker 02: In the preferred embodiment, the timer is stopped before the timer [00:48:05] Speaker 02: free when at the reception of a data packet the sequence is established. [00:48:10] Speaker 02: That in combination with the figure, figure five, that shows us that same instance. [00:48:15] Speaker 03: Please stop. [00:48:15] Speaker 03: You're at page 17. [00:48:16] Speaker 03: Where are you? [00:48:16] Speaker 02: Yes, Your Honor. [00:48:17] Speaker 02: Appendix page 17, the bolded language, three lines from the bottom. [00:48:24] Speaker 03: At the reception, now where is that in the stacks? [00:48:28] Speaker 03: Where is that in the stacks? [00:48:28] Speaker 02: That's in the summary of invention, Your Honor, on page nine of stacks, lines 24 to 26. [00:48:34] Speaker 03: Page nine. [00:48:36] Speaker 03: 24. [00:48:37] Speaker 03: No, it's not in the paper. [00:48:40] Speaker 03: It's not line 24. [00:48:41] Speaker 03: I'm not saying material. [00:48:43] Speaker 03: Oh, OK. [00:48:44] Speaker 02: So I apologize. [00:48:53] Speaker 02: It's lines 34. [00:48:54] Speaker 02: I gave you the wrong line number, Your Honor. [00:48:56] Speaker 02: So line 34 on page 9 of SACS, at the reception of the data packet, is that key language about timing. [00:49:04] Speaker 02: So without [00:49:06] Speaker 02: And the board did consider what their declarant had to say, regardless of whether he qualifies as an expert. [00:49:10] Speaker 02: They considered what he had to say and found that he did not provide any reason to believe that we're talking about two things that are occurring in series, as opposed to something that is occurring [00:49:18] Speaker 02: instantaneously with receipt of the missing data packets. [00:49:23] Speaker 01: I think I'm understanding what you're saying. [00:49:24] Speaker 01: So the next sentence at bottom of 17 is the board expressing its interpretation of that sentence, but agreeing with petitioner that it's the receipt of the missing data, not an artificial and separate reordering procedure to which the timer is tied. [00:49:41] Speaker 02: Exactly, Your Honor. [00:49:42] Speaker 02: Thank you. [00:49:44] Speaker 01: That's the point you're making. [00:49:45] Speaker 02: Exactly, Your Honor. [00:49:46] Speaker 02: It's that language [00:49:48] Speaker 02: which the board also considers next to figure five, where you see at that same exact point, as soon as those data packets arrive, boom, the timer stops. [00:49:58] Speaker 01: And this is kind of acknowledging that there is perhaps some uncertainty about the exact quoted language. [00:50:05] Speaker 01: But this is the better interpretation, I think, the board would argue. [00:50:08] Speaker 02: It's not just the better determination. [00:50:10] Speaker 02: But better interpretation, it's the factual determination of the board. [00:50:14] Speaker 03: But part of the concern I have is that figure five? [00:50:17] Speaker 03: Yes, Your Honor. [00:50:18] Speaker 03: It says stop timer when reordering is finished. [00:50:23] Speaker 02: Which the board specifically discussed is not a separate step that's being performed based on the evidence that was before it. [00:50:29] Speaker 03: Are you saying the word reorder doesn't mean putting the packets in the order that they're supposed to be? [00:50:35] Speaker 02: It means that they're all physically present. [00:50:38] Speaker 03: So do you think that the board expressly found that when packet 3 is received after packet 4, such that the order is 1, 2, 4, 3, that that has achieved reordering? [00:50:54] Speaker 02: that it has achieved the completion of the sequence, which I believe they describe as reorder. [00:50:57] Speaker 02: Now, that's not what I asked you. [00:50:58] Speaker 03: I'm trying to understand what the word reorder means in this act's reference. [00:51:02] Speaker 03: And did the board make any express fact findings about what it means? [00:51:06] Speaker 02: They did make a fact finding that they agreed with our position that it's not something that occurs after an additional set up at the top of appendix page 18, Your Honor. [00:51:17] Speaker 03: What did they say? [00:51:18] Speaker 03: Where did they say what reorder means? [00:51:20] Speaker 02: On line two, we agree that the cited evidence in SACS more closely supports petitioner's position. [00:51:26] Speaker 03: That doesn't say anything about what the word reorder means. [00:51:28] Speaker 03: That just goes to the ultimate conclusion of the timer being stopped when one of two things happens. [00:51:33] Speaker 03: I'm trying to understand what the word reorder means within the SACS reference. [00:51:39] Speaker 02: I submit that the explanation that it's not after the occurrence of some additional step is exactly defining that, Your Honor. [00:51:48] Speaker 02: that it's not a separate step that's occurring. [00:51:51] Speaker 01: And then the board is then pointing, I think in the next sense, to figure five and noticing in the language that says stop time when reordering is finished is exactly at the moment three and four come in, not a few microseconds later when an additional process of rearranging the sequence occurs. [00:52:13] Speaker 01: That's what the board is [00:52:14] Speaker 01: This is what you think the board is saying. [00:52:16] Speaker 02: Yes, and that is what we had to argue below and consistent with the evidence that our expert has submitted in his declaration. [00:52:23] Speaker 03: But how can figure five stand for that exact fact finding at page 18 when figure five itself, when as soon as packets three and four come in, it says stop timing when reordering is finished. [00:52:45] Speaker 03: So the figure itself doesn't say stop timing when received. [00:52:53] Speaker 03: It says stop timing when reordering has finished. [00:52:56] Speaker 02: So in the proceedings below, the board considered testimony both from CISFEL's declarant as well as from our expert and found that their declarant had no basis, no evidence, no support for this idea that he was trying to create these steps that occur in series. [00:53:11] Speaker 02: but did find credible our experts' testimony on this issue that a person of ordinary skill would have understood that that timer is stopping immediately. [00:53:21] Speaker 03: Where did the board say that? [00:53:23] Speaker 02: Well, it found that it didn't agree in the next paragraph on page 18 that Mr. Bates did not explain why he believed reordering occurred before the timer stopped, either in his first declaration or in his second declaration. [00:53:46] Speaker 03: What do I do with that language in Figure 5, though? [00:53:50] Speaker 03: Figure 5 expressly says, stop timer when reordering is finished. [00:53:53] Speaker 03: How do I ignore that? [00:53:55] Speaker 02: It sounds silly, Your Honor, but the line on Figure 5 shows that the timer is stopped the instant those data packets arrive. [00:54:04] Speaker 01: And I think your reading is that is when reordering is finished. [00:54:09] Speaker 02: Correct, Your Honor. [00:54:10] Speaker 01: There's no additional, it's not saying stop the timing when an additional thing called reordering is finished. [00:54:16] Speaker 01: Exactly, Your Honor. [00:54:16] Speaker 01: And it would defeat the purpose. [00:54:17] Speaker 01: This is now. [00:54:18] Speaker 02: You are exactly right, Your Honor. [00:54:19] Speaker 02: It would defeat the purpose of SACS. [00:54:21] Speaker 02: The purpose of SACS is to make sure that as soon as those data packets arrive, that you are stopping the timer so that you aren't inadvertently sending out those spurious transmission requests asking for the data packets to be sent again. [00:54:31] Speaker 02: Adding a delay would be inconsistent with the entire teaching and purpose of SACS, just to ensure that the instant that they arrive, [00:54:39] Speaker 02: that you are not allowing that timer to continue running and run the risk of it expiring. [00:54:54] Speaker 03: OK. [00:54:55] Speaker 03: Thank you, counsel. [00:54:57] Speaker 03: Mr. Gayarza, you have a little bit of two minutes of rebuttal time. [00:55:02] Speaker 03: And you have to limit it, obviously, to your cross appeal. [00:55:04] Speaker 00: Yes, Your Honor. [00:55:05] Speaker 00: Thank you. [00:55:10] Speaker 00: May it please the court. [00:55:11] Speaker 00: I would like to address the point about reordering potentially being retransmitting something. [00:55:16] Speaker 00: I would draw the court to two citations. [00:55:19] Speaker 00: First is Apex 1173. [00:55:22] Speaker 00: This is the testimony, the declaration of appellant's expert. [00:55:28] Speaker 00: An appellant's expert says on that page, if you're looking about three lines from the top is where it starts. [00:55:36] Speaker 00: The timer continues until the RLC receives each of the expected but missing PDUs. [00:55:41] Speaker 00: Again, we already discussed this. [00:55:43] Speaker 00: That's not what 1C says. [00:55:45] Speaker 00: 1C doesn't say receive all of them. [00:55:47] Speaker 00: It says when you receive at least one, so it should have stopped the 1-2, but it didn't. [00:55:50] Speaker 00: And that's a complete correctly ordered subset. [00:55:53] Speaker 00: That's, I think, where the board was confused. [00:55:57] Speaker 00: Because simply receiving out of order PDUs doesn't make it correctly ordered. [00:56:01] Speaker 00: It can't as a matter of logic. [00:56:03] Speaker 00: It's going into the buffer sequentially. [00:56:05] Speaker 00: The explanation that I would like to call the court's attention to is the next sentence there. [00:56:09] Speaker 00: When that occurs, Figure 5 explains to stop the reordering is finished. [00:56:13] Speaker 00: Here, SACS refers to the reordering of the received PDUs in sequential order in the buffer. [00:56:20] Speaker 00: That is from their own experts saying reordering is [00:56:24] Speaker 00: putting it in sequential order in the buffer. [00:56:27] Speaker 00: That's exactly what Figure 5 says on its face. [00:56:29] Speaker 00: That's exactly what SACS says at Apex 1280 at the top and explains it. [00:56:33] Speaker 00: In addition, in SACS itself, and this is just in context of the words themselves, if you look at Apex 1268, which is page 2 of SACS, that paragraph starting at line 15 going to lines 34 talks about the difference. [00:56:46] Speaker 00: And if you look at the terminology in there, they have terminology about reordering. [00:56:51] Speaker 00: But in the middle at line 20, it says [00:56:53] Speaker 00: The requests for retransmission of Veroni's packets are denoted with status messages. [00:56:59] Speaker 00: So again, when it's not reordering, it's asking for it again. [00:57:03] Speaker 00: That's, again, a status message. [00:57:05] Speaker 00: And that's what the board overlooked in 1C, which is plain on its face in the record, which submit requires reversal. [00:57:12] Speaker 01: Did the board discuss the appendix 1173 point exhibit 1002 at page 80? [00:57:22] Speaker 00: They did not discuss that, no, Your Honor, in their findings that are relevant here. [00:57:26] Speaker 00: Did you present that to the Board on this issue? [00:57:30] Speaker 00: 1173, yes, I believe so. [00:57:32] Speaker 00: I can find that citation. [00:57:41] Speaker 00: I'm almost positive that was referred to in our, at least our reply or post-institution response below, Your Honor, that starts at, the reply is at 660 and then [00:57:52] Speaker 00: discussions of 1C and the elements there would be 513 is where it starts. [00:58:01] Speaker 00: Again, though, the reversal in C is necessary if this court also finds that the elements are not conditional, which they're not. [00:58:11] Speaker 00: In that respect, I think a very quick analogy. [00:58:15] Speaker 00: If the method were simpler here, I know it's very complex. [00:58:18] Speaker 00: But if it's playing baseball in the winter and it's starting a game in the winter [00:58:22] Speaker 00: If during the first inning the temperature drops by 10 degrees, you stop the game. [00:58:28] Speaker 00: And then the next provision is if you finish nine innings of the baseball game, you sign points to the winner. [00:58:34] Speaker 00: The board would say, all you have to do to practice that claim is assign points to the winner if you play nine innings. [00:58:40] Speaker 00: But that guts the heart of the claim. [00:58:42] Speaker 00: And here, that's the factual part. [00:58:44] Speaker 00: Indeed, on Apex 275, note 11. [00:58:46] Speaker 00: OK. [00:58:47] Speaker 00: Done. [00:58:47] Speaker 03: Thank you. [00:58:50] Speaker 00: Done. [00:58:51] Speaker 03: Thank you. [00:58:52] Speaker 03: Thanks, both counsel. [00:58:53] Speaker 03: Please take another submission.