[00:00:00] Speaker 02:
My next case is Cale Alcal lighting versus Wolfspeed et al.

[00:00:08] Speaker 02:
2024, 1194, 1221, 1222, and 1223.

[00:00:14] Speaker 02:
Mr. Cahill.

[00:00:16] Speaker 02:
May it please the court.

[00:00:22] Speaker 00:
My name is Ron Cahill, and I represent CAO Lighting, the plaintiff and appellant in this matter.

[00:00:29] Speaker 02:
So it's CAO rather than Lighting.

[00:00:31] Speaker 00:
CAO.

[00:00:31] Speaker 00:
And the inventor is Dr. Denson Chow, also spelled CAO.

[00:00:37] Speaker 00:
The patents at issue are directed to solving a problem that the lighting industry struggled with for years.

[00:00:43] Speaker 00:
How to replace traditional incandescent and fluorescent general purpose lights, light bulbs,

[00:00:49] Speaker 00:
with light sources having high-powered semiconductor chips.

[00:00:54] Speaker 00:
This is discussed throughout our brief in the secondary indicia and in the background of the 961 patent.

[00:01:00] Speaker 02:
Getting right to the main issue.

[00:01:02] Speaker 02:
The main issue was public accessibility of this presentation and its deposit at the University of New Wisconsin library.

[00:01:16] Speaker 00:
Your Honor, there's a lot of mud thrown at the wall on this particular topic, but we think it boils down to a simple failure of evidence.

[00:01:25] Speaker 00:
The board found that the Crames 2000 reference was publicly accessible because the title of the conference at which the paper was presented was cataloged in the library system.

[00:01:39] Speaker 00:
And the board found, based on no evidence, that a person of ordinary skill in the art would be able to locate that title and then locate the crime's reference.

[00:01:50] Speaker 00:
Now, no expert talked about, the legal standard is, a POSA must be able to find the reference through the exercise of reasonable diligence.

[00:02:02] Speaker 00:
No witness spoke to oppose of finding the Crames 2000 reference.

[00:02:07] Speaker 02:
Is public accessibility a question of law or fact?

[00:02:12] Speaker 00:
So it's a question of law that depends on a number of factual findings.

[00:02:17] Speaker 00:
And here, there is no evidence to support the board's finding.

[00:02:21] Speaker 00:
No experts said it.

[00:02:23] Speaker 00:
No librarians said it.

[00:02:26] Speaker 00:
Now, this court in, for example, the Samsung case

[00:02:30] Speaker 04:
Can I just get clarified?

[00:02:32] Speaker 04:
So when you describe what there was no evidence for, it seemed to me you combined two things as to one of which there was evidence.

[00:02:43] Speaker 04:
The one that there was evidence is the evidence from his waters, the Wisconsin science tech or tech science or something librarian that said,

[00:02:59] Speaker 04:
a person, skilled artisan, looking for the volume, could find the volume in the catalog as of June 29, 2000.

[00:03:16] Speaker 04:
But then, so there is evidence that a skilled artisan could find the volume.

[00:03:25] Speaker 04:
Our law doesn't say, does it?

[00:03:28] Speaker 04:
that somebody has to know of the existence of sub-parts, the titles, to be able to search for them.

[00:03:39] Speaker 04:
The point, after all, is to find things that you don't already know existed.

[00:03:46] Speaker 04:
So what is it that you think that's legally necessary but missed?

[00:03:52] Speaker 00:
So the task is the posa has to be able to find the Crames 2000 reference through the exercise of reasonable diligence.

[00:04:01] Speaker 00:
And the Crames article isn't cataloged.

[00:04:04] Speaker 00:
So how do we go about determining whether a posa would find that exercise?

[00:04:09] Speaker 04:
But it seems to me possible that that test could mean there's an ambiguity, as I'm understanding it, about what it is that the relevant artist has to be looking for.

[00:04:23] Speaker 04:
It's irrelevant artisan.

[00:04:25] Speaker 04:
It's the question whether, if a relevant artisan knows of the existence of a particular article, that that person could find it somewhere in public.

[00:04:35] Speaker 04:
I don't think that's the case.

[00:04:37] Speaker 00:
Well, I don't think it is either, Your Honor.

[00:04:38] Speaker 00:
In this case, the motivation to combine starts with the Begum and Ruffles.

[00:04:43] Speaker 00:
And the Begumin reference purports to make one of these LED light bulbs, but says very little about the LEDs and doesn't provide the high powered LED that Dr. Chow does.

[00:04:55] Speaker 00:
And so Cree and the board look at Begumin and say, well, someone reading Begumin would be motivated to go look for a light emitting diode to use in that reference.

[00:05:11] Speaker 00:
And so that's what the person of ordinary skill in the art is doing.

[00:05:14] Speaker 00:
And then the question is, when they go look for that, would they be able to find the Cramps 2000 reference through the exercise of reasonable diligence?

[00:05:23] Speaker 04:
And as I understand, the board said, well, somebody in that position would, in fact, be searching for things, volumes, like light emitting diodes, research, manufacturing, and applications.

[00:05:36] Speaker 04:
And having found that, the person would find what's inside that volume, which

[00:05:42] Speaker 00:
Right.

[00:05:43] Speaker 00:
And the board made that up.

[00:05:46] Speaker 00:
There is no evidence to support that.

[00:05:49] Speaker 00:
So this court has always required, when someone's looking for a reference, that the facts around reasonable diligence be determined.

[00:05:59] Speaker 00:
So for example, in the Samsung case that's in our brief, there was a reference that was on a listserv.

[00:06:06] Speaker 00:
And this court wanted to know, well, how many people received the listserv?

[00:06:11] Speaker 00:
How difficult was it to get on the listserv?

[00:06:14] Speaker 00:
Would a person of ordinary skill in the art in the particular field, would they join it?

[00:06:18] Speaker 00:
And remanded to determine those things.

[00:06:20] Speaker 02:
Well, this was a presentation at a conference with a lot of people.

[00:06:25] Speaker 02:
And there was a document produced that was distributed there, right?

[00:06:29] Speaker 02:
And then it was sent to the Wisconsin Library

[00:06:34] Speaker 02:
that where it was indexed by title.

[00:06:38] Speaker 02:
So it clearly was a there there.

[00:06:41] Speaker 00:
Well, Your Honor, I think that some of those facts aren't true.

[00:06:45] Speaker 00:
So something was presented at the conference.

[00:06:49] Speaker 00:
We don't know if it was the paper.

[00:06:50] Speaker 00:
It may have been a poster or an oral presentation.

[00:06:54] Speaker 00:
Dr. Lebby said that the proceedings were disseminated to members, but he didn't say when.

[00:07:01] Speaker 00:
So the board didn't rely on it.

[00:07:03] Speaker 00:
Because there is no evidence as to when the papers were disseminated to members, or who the members were, or how many of them there were.

[00:07:11] Speaker 00:
Mr. Levy said he never said he received one.

[00:07:15] Speaker 00:
He never said he was a member.

[00:07:16] Speaker 00:
So we don't know any of that.

[00:07:19] Speaker 00:
What is cataloged is the title of the conference proceedings, which is Light Emitting Diodes, Research, Manufacturing, and Applications.

[00:07:30] Speaker 00:
Now, applying Samsung and Acceleration Bay, I think we would need to know, in order to find the Crames reference with reasonable diligence, well, what would that person of ordinary skill in the art be searching for?

[00:07:46] Speaker 00:
How many hits would they get?

[00:07:49] Speaker 00:
How much would they have to wade through to actually find the Crames 2000 reference?

[00:07:53] Speaker 00:
In the Acceleration Bay case from this court,

[00:07:58] Speaker 00:
There was a website to which reports had been updated, and they were cataloged by author and year.

[00:08:06] Speaker 00:
And this court was concerned that there was no evidence of what a person of ordinary skill in the art would find if they went looking for the asserted reference.

[00:08:16] Speaker 00:
There was some evidence that for the year 1999, there were hundreds of references, and a person of ordinary skill in the art would have to look through all of those titles to find the relevant nugget.

[00:08:28] Speaker 00:
And this court said, that's not good enough.

[00:08:30] Speaker 00:
That's not reasonable diligence.

[00:08:33] Speaker 00:
Here, we don't have any evidence of what a person of ordinary skill in the art would look for and find if they searched the world for light emitting diodes

[00:08:44] Speaker 00:
Would they have to go through 3,000 references to find this conference proceedings and then crams within it?

[00:08:51] Speaker 03:
That seems like on this quick- Is it part of your argument, counsel, that you think, for example, the Ms.

[00:08:55] Speaker 03:
Waters declaration is inadequate?

[00:08:58] Speaker 03:
Because you're saying the board made certain things up.

[00:09:00] Speaker 03:
And I do feel like the board properly relied on this Ms.

[00:09:04] Speaker 03:
Waters declaration for part of what would be found by Opposers.

[00:09:08] Speaker 00:
Right.

[00:09:08] Speaker 00:
And we accept the Waters declaration.

[00:09:12] Speaker 00:
that the University of Wisconsin received the conference proceedings and catalogued the title of the conference proceedings.

[00:09:22] Speaker 00:
That's not enough to find that Claims 2000 was publicly accessible.

[00:09:31] Speaker 00:
And at the board, we argued the Salesforce case, which relies on Samsung and Acceleration Bank, and the exact same facts here, the exact same facts.

[00:09:42] Speaker 00:
There was a conference proceeding that was cataloged.

[00:09:47] Speaker 00:
And there was no evidence that a person with ordinary skill in the art searching generally would locate the article that was within the conference proceedings based on only the conference proceedings being catalogued.

[00:10:03] Speaker 00:
It's identical to the facts here.

[00:10:06] Speaker 00:
And it went the other way.

[00:10:07] Speaker 00:
It wasn't publicly accessible.

[00:10:09] Speaker 00:
So the board said the difference between that and this is, well, here, a person of ordinary skill in the art would find the Crimes 2000 reference based on the conference title.

[00:10:21] Speaker 00:
And they based that conclusion on no evidence, because no one said that, except counsel.

[00:10:30] Speaker 00:
No experts said it.

[00:10:31] Speaker 00:
No librarians said it.

[00:10:36] Speaker 02:
You're not attacking the reference, but its availability.

[00:10:39] Speaker 00:
So there's a difference between being technically accessible and being publicly accessible.

[00:10:45] Speaker 00:
And this court's case law makes that distinction.

[00:10:47] Speaker 00:
We don't argue that it wasn't technically accessible.

[00:10:52] Speaker 00:
We argue that a person of ordinary skill in the art would not have been able to find it exercising reasonable diligence.

[00:10:57] Speaker 00:
And there's no evidence to support that he would.

[00:11:00] Speaker 00:
And that makes it not publicly accessible under this court's case law and under the case law at the board.

[00:11:08] Speaker 00:
I would like to pick up the claim construction issue, if I could move on to that.

[00:11:16] Speaker 00:
The claim is to a light source.

[00:11:20] Speaker 00:
And it includes all sorts of configuration of the light, configuration of the heat sink, configuration of the LEDs, the actual layers within the LEDs.

[00:11:29] Speaker 00:
In some cases, which layer is on top of which other layer.

[00:11:33] Speaker 00:
That it's white light.

[00:11:35] Speaker 00:
And it also requires that the critical claim limitation is a light emitting diode chip configured to output light at greater than about 40 milliwatts.

[00:11:49] Speaker 00:
The board said the claim does not require a chip that when placed in the bulb actually operates at more than about 40 milliwatts.

[00:11:58] Speaker 00:
And we think that's plainly wrong based on this court's case law.

[00:12:05] Speaker 00:
Using Parker Vision as an example, this court's held that an apparatus that is reasonably capable of performing the claimed functions without significant alterations falls within the claim.

[00:12:20] Speaker 00:
And what that means here in the way this claim has always been treated, the way it was treated in the district court where the claim construction comes from, the way it was treated by the parties here, the way it was treated in the reexamination where the claims were allowed, is that

[00:12:35] Speaker 00:
The LED in the light bulb has to be capable of emitting 40 milliwatts.

[00:12:42] Speaker 00:
And that means there has to be a circuit that will provide it with enough drive current to do that.

[00:12:47] Speaker 02:
As you can see, your interrobital time, you can use it now or save it.

[00:12:53] Speaker 00:
I'll save it.

[00:12:54] Speaker 02:
Thank you.

[00:12:56] Speaker 02:
Mr. Alamani.

[00:13:03] Speaker 01:
Good morning, may it please the court.

[00:13:04] Speaker 01:
My name is John Aldimani, here on behalf of Cree and Wolfspeed.

[00:13:08] Speaker 01:
I'll address the Crane's publication status briefly, and then I'll talk about the combination of Begum and Crane's.

[00:13:14] Speaker 01:
And I think that will help to resolve the issue regarding claim construction.

[00:13:18] Speaker 01:
And I'll address claim 41 if I have time.

[00:13:21] Speaker 02:
I would think you want to get to the public availability of the reference.

[00:13:26] Speaker 01:
And I'll start there.

[00:13:27] Speaker 01:
So the contrary to...

[00:13:31] Speaker 01:
Contrary to counsel's argument, the board had substantial evidence.

[00:13:35] Speaker 01:
So as we argued in our briefing and below, the Crames paper and the proceedings of the SPIE qualify under the Ymre Hall Blue Clips, the line of cases, even without Dr. Levy's testimony.

[00:13:50] Speaker 01:
But his testimony further qualifies it under MK Holdings, the other case we cited in our briefing.

[00:13:55] Speaker 01:
So, Henry Hall says if you index it, it's likely available.

[00:13:59] Speaker 01:
That was indexing the German Library.

[00:14:01] Speaker 01:
Luke Calypso adds that indexing by subject matter can be a helpful indicator that one of SkillNet would be able to find it.

[00:14:07] Speaker 01:
So, here we have Ms.

[00:14:08] Speaker 01:
Waters' testimony that's undisputed.

[00:14:10] Speaker 01:
It says, as of 2000, before the critical date, the proceedings were in the index and they were indexed by light emitting diodes.

[00:14:18] Speaker 01:
Also in the title was year 2000.

[00:14:23] Speaker 01:
And so the board held that a person with skill in the art examining the proceedings would be able to find the article.

[00:14:29] Speaker 01:
So the article is on page two of the proceedings.

[00:14:32] Speaker 01:
I'm not sure that matters, but the article is authored by Dr. Crames, who we all agree is a superstar in the field.

[00:14:39] Speaker 01:
The title of the article itself is High Brightness LEDs.

[00:14:42] Speaker 01:
So one of the skill in the art in 2000 who had Begum then, who was looking for an LED to fill in the holes of the Begum disclosure, would be looking for LEDs.

[00:14:51] Speaker 01:
They would find if they looked in the index at the University of Wisconsin, the proceedings for SPIE, the very latest ones or at least one in 2000 would be light emitting diodes, design analysis, et cetera.

[00:15:05] Speaker 01:
That would be a place to look when they open those up and looked at the table of contents.

[00:15:08] Speaker 01:
They would see a collection of LED articles, the first of which was authored by a superstar and its high brightness LEDs.

[00:15:14] Speaker 01:
I think that in and of itself was qualified as a publication under the Henry Hall and Blue Calypso cases, but the board went further.

[00:15:22] Speaker 01:
They also showed that it was publicly available and one of ordinary skill exercising reasonable diligence to find it under the rubric in M&K Holdings that was part of it.

[00:15:32] Speaker 01:
So in the M&K Holdings case, what the court said was that if you

[00:15:38] Speaker 01:
If the site had prominence, it was about a website.

[00:15:40] Speaker 01:
But it said the site itself had prominence.

[00:15:43] Speaker 01:
So one of the skill narrowed would know to go to the initial web page.

[00:15:46] Speaker 01:
The web pages themselves did not have a search capability.

[00:15:49] Speaker 01:
And so what the court found that a piscita that had access to it could search the web page itself.

[00:15:55] Speaker 01:
And they could start from the most recent meeting.

[00:15:58] Speaker 01:
And they could move their way backwards, navigating from the most recent to the oldest.

[00:16:03] Speaker 01:
Similarly here, we have Dr. Levy's testimony, which the board relied.

[00:16:07] Speaker 01:
What Dr. Levy said, this is cited in appendix 24 to 25, but they're citing his testimony at 10039 through 10040.

[00:16:23] Speaker 01:
What he said is, I was a person of skill in the art in 2000.

[00:16:25] Speaker 01:
This is 22 years before his testimony, but I was a person of skill in the art in 2000.

[00:16:31] Speaker 01:
along with other persons of skill in the field of optoelectronics attended these speed conferences.

[00:16:37] Speaker 01:
He further said, as CAO's counsel mentioned, that they were disseminated and they were sent to libraries.

[00:16:44] Speaker 01:
The way we relied on that testimony is because it was also in the library, which helped to corroborate his testimony and make it more credible.

[00:16:51] Speaker 01:
But the board relied on all this testimony to find that one of the skill in the art would have been interested in those few proceedings.

[00:16:57] Speaker 01:
Dr. Levy said it has prominence under the M&K rubric.

[00:17:02] Speaker 01:
And so it had prominence.

[00:17:03] Speaker 01:
They would be looking for that.

[00:17:04] Speaker 01:
So in addition to the Henry Hall and Blue Calypso cases meeting that standard, I think we've met the further rubric that M&K sets out.

[00:17:14] Speaker 01:
Are there questions about that, Your Honors?

[00:17:19] Speaker 01:
Okay, so what I'd like to do is move to the Begum and Graham's combination.

[00:17:23] Speaker 01:
We briefed the construction of Configure 2 and whether it means capable of, but I think for purposes of the board's findings and these combinations, it really doesn't matter.

[00:17:34] Speaker 01:
We set out in the petition argument that the claims were met under Plaintiff's Order of Meaning.

[00:17:38] Speaker 01:
Dr. Levy testified on that basis.

[00:17:41] Speaker 01:
Dr. Crane showed a physical embodiment.

[00:17:43] Speaker 01:
So I think whether it's configured to or the broader capable of, either way the board's findings hold.

[00:17:49] Speaker 01:
And so in the first set of findings that the board addressed, they found that our evidence was sufficient to establish that one of OrganicSkill would put the Crane's chip in the Begman lamp.

[00:18:00] Speaker 01:
So no disembodied LED, not sitting by itself.

[00:18:03] Speaker 01:
The Crane's chip in the LED lamp

[00:18:05] Speaker 01:
They relied on Dr. Levy's testimony where he said one of Skilniart would put that crankshaft in the Begum and Lamp and he testified that flame 21's limitation of more than 40 milliwatts would be rendered obvious because the crankshaft was capable of exceeding 40 milliwatts.

[00:18:23] Speaker 01:
It would go up to 170 milliwatts if driven at its ultimate drive current.

[00:18:29] Speaker 03:
Can you give me the J8 pages for that testimony you were just describing?

[00:18:32] Speaker 01:
Pardon me?

[00:18:33] Speaker 03:
Can you give me the appendix pages for that testimony?

[00:18:35] Speaker 01:
Sure.

[00:18:35] Speaker 01:
His testimony is at appendix 10047 through 10048.

[00:18:41] Speaker 01:
The board refers to this as appendix 13 through 14.

[00:18:47] Speaker 01:
So this is garden variety obviousness.

[00:18:49] Speaker 01:
They have the documents.

[00:18:50] Speaker 01:
They combine the documents.

[00:18:51] Speaker 01:
They rely on Dr. Levy.

[00:18:52] Speaker 01:
And then they say that Chow's experts are discredited or unpersuasive.

[00:18:58] Speaker 01:
The basis for that, this is appendix 15 through 16.

[00:19:02] Speaker 01:
And actually, appendix 39 is probably the clearest.

[00:19:04] Speaker 01:
They say, we find them unpersuasive because the hypothetical that CHOW came up with or that CAO came up with is premised on the crane ship being driven at 1.5 amperes, so at its maximum drive current, and also based on outputting 390 lumens, which is related to a 40 watt bulb in the proceedings.

[00:19:24] Speaker 01:
But the board found levy was credible.

[00:19:27] Speaker 01:
CAOs experts were not.

[00:19:29] Speaker 01:
One of skill narrow would have combined the two references.

[00:19:31] Speaker 01:
The board notes that what is relevant as it claims discloses a single chip that has the capability of outputting more or less, out like depending on the current that's applied to it.

[00:19:41] Speaker 01:
So that's the first finding.

[00:19:43] Speaker 01:
And then they went beyond that to a second finding.

[00:19:45] Speaker 01:
So I think you can affirm on that basis.

[00:19:47] Speaker 01:
But the board also found, this is appendix 41 through 43, so the second set of analysis they put together.

[00:19:53] Speaker 01:
where they said that Crane's chips could and would be installed in the lamp, into Begman's lamp, based on explicit disclosures in Begman, and then based on Dr. Crane's testimony about how one would actually do that.

[00:20:07] Speaker 01:
Again, that's in Appendix 42, where they printed Dr. Crane's testimony.

[00:20:11] Speaker 01:
And so they concluded Appendix 43 that wanted skill in the art on that basis, but also have found this obvious.

[00:20:17] Speaker 01:
And I'll note, when they made that finding, and this is in the middle, about Appendix 40,

[00:20:22] Speaker 01:
They noted that Chao's own witnesses testified regarding how one would understand the crane's reference.

[00:20:29] Speaker 01:
So the board was looking at how would one of Skillnair actually understand the crane's reference?

[00:20:33] Speaker 01:
Would they think that she wanted to drive it at the highest possible drive current?

[00:20:38] Speaker 01:
And they said patent owner's witness, Mr. York, testified that the practical drive current for the crane's ship, so the way one of Skillnair would read that reference was that it would be driven somewhere around 350 milliamps.

[00:20:52] Speaker 01:
So based on either one of those two combinations, the claim is invalid, is obvious, based on any construction that the term configured to.

[00:21:02] Speaker 03:
Before you turn to the next issue, can I ask you to at least go back to the public accessibility issue and tell me your thoughts on two cases that were cited by opposing counsel, Acceleration Bay and Salesforce?

[00:21:14] Speaker 01:
Yeah.

[00:21:15] Speaker 01:
So on the Salesforce case?

[00:21:17] Speaker 03:
Salesforce and Acceleration Day.

[00:21:18] Speaker 01:
So the Salesforce one I think is easier of the two.

[00:21:20] Speaker 01:
So the board, that's a board case, non-presidential, it's not a federal circuit case.

[00:21:24] Speaker 01:
But what the board found there is that you had the title of proceedings, so you had proceedings similar to here, except the title of it was the Society of International Computing.

[00:21:33] Speaker 01:
It's very broad.

[00:21:34] Speaker 01:
The actual subject matter of the

[00:21:38] Speaker 01:
of the content.

[00:21:39] Speaker 01:
This is at Appendix 26-27 of the final written decision.

[00:21:42] Speaker 01:
The claims related to, I don't know what this means, but a message gateway and content reformatted in a vectorized format.

[00:21:50] Speaker 01:
And what the board found, I think reasonably, is that if you had a claim to vectorized format,

[00:21:54] Speaker 01:
Going off and searching for computing wouldn't do anything.

[00:21:59] Speaker 01:
That doesn't make sense.

[00:22:00] Speaker 01:
It wouldn't lead you to the reference.

[00:22:02] Speaker 01:
As opposed to in our case, where someone is, with Beggin, is specifically looking for an LED.

[00:22:07] Speaker 01:
And so the subject matter in the proceedings, the title of the proceedings itself, is LED.

[00:22:11] Speaker 01:
And so it's different on that.

[00:22:13] Speaker 01:
I think for the Acceleration Bay case.

[00:22:15] Speaker 02:
If you pointed out the board case is not precedent.

[00:22:19] Speaker 01:
Yeah, it's not it.

[00:22:20] Speaker 01:
It's not presidential anywhere, even at the board.

[00:22:23] Speaker 01:
And then the second case is Acceleration Bay.

[00:22:25] Speaker 01:
And the Acceleration Bay case, and I think CAO's counsel alluded to this, was about having to skim thousands and thousands of pages.

[00:22:31] Speaker 01:
So there was no argument made at the board about the number of volumes or any of that.

[00:22:35] Speaker 01:
What the board did find though was that, and I think this aligns with M&K Holdings as opposed to Acceleration Bay, is that if you were looking at the reference starting from the newest, the most recent proceedings, and the title includes 2000,

[00:22:47] Speaker 01:
Then like M&K Holdings, it would be obvious or it would be reasonable for a person's skill in the art exercising reasonable diligence to start at the latest one and move backwards.

[00:22:58] Speaker 04:
Did the board rely on the fact that this reference had basically the date of yesterday on it and that if you're in a fast-moving field, you're probably going to look at the most recent stuff

[00:23:17] Speaker 01:
They did.

[00:23:17] Speaker 04:
They said- Did the board say anything like that?

[00:23:20] Speaker 01:
They did.

[00:23:20] Speaker 01:
They said that it would be reasonable for them to look, and I don't have the exact site here, but they said it would be reasonable to look at the most recent proceedings.

[00:23:30] Speaker 01:
So yes.

[00:23:33] Speaker 02:
Okay.

[00:23:33] Speaker 02:
Okay.

[00:23:33] Speaker 02:
Do you want to mention your class appeal briefly?

[00:23:36] Speaker 02:
Sure.

[00:23:44] Speaker 01:
So as to claim 41,

[00:23:46] Speaker 01:
The limitations flat or substantially flat side.

[00:23:50] Speaker 01:
I think, for purposes of this argument, the main error that the board committed here was not looking at all the evidence.

[00:23:57] Speaker 01:
So we cited Emory, Warsaw, Orthopedic, which says that the panel must, or the board must, consider all the prior in its entirety.

[00:24:06] Speaker 01:
There's another case, Belden v. Birktek, 805 F3, 1054.

[00:24:10] Speaker 01:
We didn't cite this, but it says a reference must be considered for everything it teaches.

[00:24:14] Speaker 01:
So where the board erred here is in not considering the unregarded testimony of Dr. Lebby.

[00:24:20] Speaker 01:
and additional disclosures in Allen beyond Figure 6B.

[00:24:25] Speaker 01:
that we referred to in our reply briefing below, which included a statement about, so Dr. Levy testified both that Figure 6B shows a flat side, so he said one scale in the art at the time in 2000 would have considered the sides of Allen to be flat.

[00:24:44] Speaker 01:
That's unrebutted.

[00:24:45] Speaker 01:
There's no testimony on the other side.

[00:24:47] Speaker 01:
He wasn't deposed about it.

[00:24:48] Speaker 01:
And then the Allen reference,

[00:24:52] Speaker 01:
Talks about a lamp housing may be manufactured so it's to appear in any standard configuration, such as an ordinary hour type lamp configuration, which looks like a flood lamp, essentially.

[00:25:03] Speaker 01:
So the end of it is flattened.

[00:25:05] Speaker 01:
It looks like a cone or a space capsule.

[00:25:08] Speaker 01:
So the end of it's flattened.

[00:25:09] Speaker 01:
There's nothing in the record that suggests that the board looked at that.

[00:25:12] Speaker 01:
So CAO cited a part of the board's decision where they did cite to figure 6B, which is part of our argument.

[00:25:20] Speaker 01:
And they discounted that.

[00:25:22] Speaker 04:
Can I just ask, do I remember right?

[00:25:25] Speaker 04:
You did not present that figure with the three B's at the figure that you're now relying on.

[00:25:33] Speaker 04:
You did not hand it to the board and say, look, if you want to know what's substantially flat, it looks like this.

[00:25:42] Speaker 01:
Not in that way, Your Honor.

[00:25:43] Speaker 01:
But we did present it in our reply brief.

[00:25:45] Speaker 01:
We cited to that specific statement in our reply brief

[00:25:49] Speaker 01:
There's a little argument in the briefing about the fact that there's a typo that it says Figure 2.

[00:25:54] Speaker 01:
But if you look at the reference, Figure 2 is a circuit board.

[00:25:56] Speaker 01:
But we relied on that statement about that lamp.

[00:26:01] Speaker 01:
There could be any standard configuration, including that flood lamp.

[00:26:05] Speaker 01:
So it is properly there.

[00:26:08] Speaker 01:
CAO filed motions to exclude before the board, but not to exclude that evidence.

[00:26:14] Speaker 01:
And they didn't object to that as not having been raised in the petition.

[00:26:17] Speaker 01:
Beyond that, the law requires that the board view the reference in its entirety.

[00:26:22] Speaker 01:
And so from that standpoint as well, we feel like to the extent that they were going to... Well, I don't know what they did with Dr. Levy's testimony.

[00:26:31] Speaker 01:
It doesn't appear that they considered it.

[00:26:32] Speaker 01:
But if they were going to reject that, they should have looked at the reference in its entirety and didn't do so.

[00:26:40] Speaker 01:
At least there's no indication.

[00:26:42] Speaker 01:
There are other places in the decision.

[00:26:44] Speaker 01:
CAO actually raises where the board talks about the fact that there was no competing evidence.

[00:26:49] Speaker 01:
So when they talk about the Crames publication in Dependix 25, they say, there's no evidence of record that suggests Crames is not a printed publication.

[00:26:57] Speaker 01:
So they know that they have a duty to look at the entire record.

[00:27:01] Speaker 01:
But in the case of this claim, there's no indication at all that they looked at that.

[00:27:04] Speaker 01:
So for those reasons,

[00:27:06] Speaker 01:
We believe that that, actually believe you could reverse that based on the unrecorded record, but at least vacate and remand that.

[00:27:13] Speaker 03:
Council, if you intended to rely on a figure 3B, Adam figure 3B before the board, why was it omitted in the SINs that was quoted?

[00:27:22] Speaker 01:
I'm sorry, I didn't understand.

[00:27:24] Speaker 03:
I think that there was maybe some confusion.

[00:27:26] Speaker 03:
There's figure two versus a figure three B. If the intention was to rely on figure three B in the sense that was quoted, why wasn't figure three B identified?

[00:27:34] Speaker 01:
So our intention was to rely on figure six B to begin with.

[00:27:38] Speaker 01:
And we had an expert testimony to back that up.

[00:27:40] Speaker 01:
But as the board

[00:27:43] Speaker 01:
seemed to be grappling with narrowing the definition of the term.

[00:27:46] Speaker 01:
We addressed that in a brief, but I don't want to go down the hole.

[00:27:49] Speaker 01:
But as they started talking about how they were narrowing, looking at it in a different way, particularly the oral argument, we were relying on the fact that the Allen disclosure is much more complete than what's said in the CAO patent.

[00:28:01] Speaker 01:
And so maybe in retrospect with the three-dimensional claim, it would have been better to start there, but that's not what we did.

[00:28:09] Speaker 01:
But I think it's fairly before the board in any event, based on the disclosure in Allen.

[00:28:12] Speaker 01:
And I think they have a duty to look at it in any event.

[00:28:15] Speaker 01:
And I realize my time's expired.

[00:28:16] Speaker 02:
Your time has been given you a minute to rebuttal on the cross-appeal if there's something to rebut.

[00:28:23] Speaker 01:
Understood.

[00:28:23] Speaker 01:
Thank you, Your Honor.

[00:28:24] Speaker 02:
Mr. Cahill.

[00:28:35] Speaker 00:
Thank you, Your Honors.

[00:28:36] Speaker 00:
One thing I'd like to address is on the issue of publicly available.

[00:28:43] Speaker 00:
You know, counsel suggested a person of ordinary skill in the art would look at the most recent proceedings.

[00:28:47] Speaker 00:
Counsel suggested that websites organize things by the most recent proceedings.

[00:28:52] Speaker 00:
The conference websites do.

[00:28:54] Speaker 00:
None of that is in the record here.

[00:28:57] Speaker 00:
None of it.

[00:28:58] Speaker 02:
But your opponent mentioned reliance on Dr. Lebby's testimony.

[00:29:05] Speaker 00:
Dr. Lebby didn't say that, well, first of all, the record that we're talking about is at the University of Wisconsin Library.

[00:29:18] Speaker 00:
It's not the conference proceeding website.

[00:29:22] Speaker 00:
It's indexed.

[00:29:24] Speaker 00:
by title, author, the date recorded, and that's what's indexed.

[00:29:31] Speaker 00:
So there isn't, here are the most recent conference proceedings.

[00:29:35] Speaker 00:
You're just searching that index.

[00:29:37] Speaker 00:
And Levy doesn't say anything different.

[00:29:40] Speaker 04:
I'm sorry, but just the conference proceedings, the catalog entry

[00:29:53] Speaker 04:
months before the priority date.

[00:29:56] Speaker 04:
Somebody in the field of LEDs, I mean, did the board say anything to the effect?

[00:30:04] Speaker 04:
What seems kind of intuitive is that if you want to see what the most recent advances are, maybe work backwards from, I think, a known technical society.

[00:30:16] Speaker 00:
Well, there is no evidence of that in our record.

[00:30:22] Speaker 00:
The board didn't say we would start with the most recent.

[00:30:26] Speaker 00:
There is a different Federal Circuit case where that was the case.

[00:30:30] Speaker 00:
There is no evidence of that here.

[00:30:33] Speaker 00:
And also, we don't know.

[00:30:37] Speaker 00:
Acceleration Bay came up again.

[00:30:41] Speaker 00:
where there were potentially hundreds of titles to look through.

[00:30:48] Speaker 00:
Counsel suggested thousands of pages.

[00:30:50] Speaker 00:
There were hundreds of titles.

[00:30:52] Speaker 00:
And that was too much.

[00:30:54] Speaker 00:
And he said, there's no evidence below how many pages someone would run into doing this.

[00:31:00] Speaker 00:
And that's exactly the problem.

[00:31:02] Speaker 00:
In this court's Samsung case, it said you need to know that stuff.

[00:31:07] Speaker 00:
If a person of ordinary skill in the art goes and searches for LEDs, how many hits are they going to get?

[00:31:14] Speaker 00:
Are they going to get a million?

[00:31:15] Speaker 00:
Are they going to get 3,000?

[00:31:17] Speaker 00:
This well-known conference, its proceedings numbered 3,938 as of 2000.

[00:31:28] Speaker 00:
How many hits do you get searching for light-emitting diodes?

[00:31:31] Speaker 00:
None of that's in the record, so we don't know what reasonable diligence is.

[00:31:35] Speaker 02:
Thank you, counsel.