[00:00:00] Speaker 04:
Our next case for argument today is 23-1943 HD silicon solutions versus microchip.

[00:00:09] Speaker 04:
Ms.

[00:00:09] Speaker 03:
Brooks, please proceed.

[00:00:11] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:13] Speaker 03:
My name is Sarah Brooks, and I represent the appellant HD silicon solutions.

[00:00:18] Speaker 03:
We're here today on the 002 patent, and there's three issues on appeal.

[00:00:23] Speaker 03:
The first issue is claim construction, and the term being construed is software layer.

[00:00:29] Speaker 03:
Now, both parties agree that the term software layer should be given its plain and ordinary meaning, and the board agreed that the term software layer should be given its plain and ordinary meaning.

[00:00:40] Speaker 03:
However, the parties disagree as to what the plain and ordinary meaning of software layer is.

[00:00:46] Speaker 03:
Microchip argues that the term software layer means code at a particular level and cites to dictionary.com in support of the word layer.

[00:00:58] Speaker 00:
Well, the claim says a software layer.

[00:01:01] Speaker 03:
I'm sorry.

[00:01:02] Speaker 00:
The claim says a software layer.

[00:01:05] Speaker 00:
And so that certainly must include one, right?

[00:01:08] Speaker 03:
Well, the case law that they cite, Your Honor.

[00:01:11] Speaker 00:
Does not say that a software layer means one And our doesn't say that it means only one it can include one or more, but if it includes includes one doesn't Giles anticipate or render the claim obvious Well our interpretation of the word the term software layer your honor is not that a software layer itself means two or more

[00:01:42] Speaker 03:
What we're saying is that a person of ordinary skill, when they see the word software layer, they understand that a software layer must interface or interact with other layers.

[00:01:53] Speaker 03:
So the other layers are implied to be interacting, not that the term a software layer means two or more, just that it would mean to a person of ordinary skill that it's a relationship.

[00:02:05] Speaker 03:
If I can provide an example, because Microchip cites to dictionary.com,

[00:02:11] Speaker 03:
And they say a layer is like a layer of clothing worn over or under another.

[00:02:17] Speaker 03:
Well, you can talk about a layer of clothing, but also understand that the layer is only a layer because it is worn above or under another.

[00:02:26] Speaker 03:
So the same is true of our argument of a software layer.

[00:02:29] Speaker 03:
You can talk about an individual software layer, but understand that it's only a software layer by virtue of its relationship to another software layer that's above or under it.

[00:02:39] Speaker 00:
But it still can include one.

[00:02:44] Speaker 03:
I understand what you're saying, Your Honor, but in our view, it is describing a relationship to other software layers.

[00:02:52] Speaker 03:
I understand your position.

[00:02:56] Speaker 03:
So our definition of software layer is wordy, but is supported by intrinsic and extrinsic evidence.

[00:03:03] Speaker 03:
Our definition is that a software layer means computer program code executed on a processor

[00:03:11] Speaker 03:
that comprises one level of hierarchy of functional components that interfaces with neighboring levels.

[00:03:18] Speaker 03:
Now, the second issue on appeal is whether there was substantial evidence to determine.

[00:03:24] Speaker 01:
Before you move to the second issue, the embodiments at figures five through seven, I think the board found would have been excluded from the claims under your more awardee construction.

[00:03:36] Speaker 01:
If that's what the board found, why were they wrong about that?

[00:03:40] Speaker 03:
Figures five and seven.

[00:03:42] Speaker 01:
I think five, six, and seven.

[00:03:44] Speaker 03:
So those figures, your honor, especially figure five, it's just a flow diagram.

[00:03:55] Speaker 03:
So figure five is depicting one aspect of figure four.

[00:04:01] Speaker 03:
It's a flow diagram.

[00:04:02] Speaker 03:
The same is true, I believe, of figure seven.

[00:04:05] Speaker 03:
If you look at appendix 38, which

[00:04:10] Speaker 03:
describes the figures.

[00:04:13] Speaker 03:
It says figure seven is a data flow diagram and figure five is a, it also says as a flow diagram.

[00:04:20] Speaker 03:
If you look at the description of figure four, it says that it's a block diagram in accordance with embodiments of the invention, embodiments plural.

[00:04:31] Speaker 03:
And then figure six in contrast is, it actually says it's one embodiment of the present invention.

[00:04:40] Speaker 04:
Well, but if the board is correct as a factual matter that figure six, which is one embodiment of the present invention, shows only one software layer, why doesn't that suffice?

[00:04:54] Speaker 03:
Well, it shows the trusted software layer.

[00:04:58] Speaker 03:
According to figure four, it's the trusted software and the untrusted software are interfacing or interacting.

[00:05:08] Speaker 03:
It could be not depicted in figure six, but again, someone that, a person of ordinary skill in the art that understands the term software layer would understand that it is interfacing or interacting with other software layers, whether or not it's depicted in figure six.

[00:05:39] Speaker 04:
you think that resort to your expert's testimony is necessary to reach the conclusion that you want on the Plain and Ordinary meeting?

[00:05:47] Speaker 03:
Well, I think even Microchip's expert agreed that a software layer means more than one.

[00:05:57] Speaker 04:
More than one layer.

[00:05:58] Speaker 04:
Not more than one layer of software, right?

[00:06:00] Speaker 04:
A software layer could be hardware.

[00:06:02] Speaker 04:
There would be hardware layers, couldn't there?

[00:06:05] Speaker 04:
Yes.

[00:06:06] Speaker 04:
So the word layer may imply

[00:06:09] Speaker 04:
you know, layering, but it doesn't mean all of those layers are software.

[00:06:13] Speaker 03:
Right, understood.

[00:06:16] Speaker 03:
Well, in Giles, for example, a microchips expert says that it, he says that there is not clear that there's more than one layer in Giles.

[00:06:27] Speaker 04:
Well, but the board count that there was, I mean, I'm looking at page 662 of the appendix, which is the picture from Giles, right?

[00:06:32] Speaker 04:
This is the picture from Giles, page 662 of the appendix.

[00:06:38] Speaker 04:
And the board expressly found, and I'm going to say it because it's a quote from page 12.

[00:06:41] Speaker 04:
While we're looking at the figure, I'll read the quote from page 12 of the board's opinion.

[00:06:46] Speaker 04:
Giles teaches that its code 163, that's the software layer, has access to OTP memory module 122, that's on the bottom right,

[00:06:58] Speaker 04:
within a secure processor, secure component 102.

[00:07:02] Speaker 04:
In fact, patent owner acknowledges that Giles describes the software 163 may have privileged status as a secure privilege mode device with full access to the entire map of the component 102.

[00:07:16] Speaker 04:
And before you say something different, the board, as a factual matter, found 102, which includes all of that.

[00:07:23] Speaker 04:
It includes the software layer and the OTP memory

[00:07:27] Speaker 04:
was all part of the same secure processor.

[00:07:30] Speaker 04:
So unlike the prior art that you overcame during prosecution where you pointed to the software layer communicating with something outside of the single processor, the board in this case found that the software layer at 163 was communicating with the OTP memory and found both of those were within the same secure processor.

[00:07:52] Speaker 04:
which makes it different from your prosecution history argument that you made.

[00:07:57] Speaker 04:
So why isn't that sufficient?

[00:08:01] Speaker 03:
I think we're talking about a different issue now, right?

[00:08:04] Speaker 03:
Are we talking about claim construction still?

[00:08:07] Speaker 03:
Because I'm a little confused.

[00:08:08] Speaker 03:
This was an argument, I think, we made as to whether Giles... I'm sorry.

[00:08:16] Speaker 04:
You're exactly right.

[00:08:19] Speaker 04:
I'm now talking about what Giles discloses.

[00:08:22] Speaker 04:
you admitted that the word layer could include a software layer and a hardware layer, right?

[00:08:26] Speaker 04:
And you admitted that things have to be in communication with each other.

[00:08:29] Speaker 04:
And I'm showing you that the Giles reference discloses a software layer, the board defined it in its fact findings at 163, and at least a hardware layer, which by the way has some software in it, but at the OTP memory, defined it as all within the secure processor and defined them as communicating with each other.

[00:08:49] Speaker 04:
Unless your construction requires two different software layers, Giles discloses what I think you've acknowledged your construction includes, which is a software layer that can communicate with a hardware layer.

[00:09:02] Speaker 04:
Your argument is that the board wasn't giving the word layer any meaning, that it was, when it said it could be a single layer, that that was a problem.

[00:09:13] Speaker 04:
I think the board did give the word layer meaning.

[00:09:16] Speaker 04:
And I think as they applied it to Giles, it's clear the meaning they gave it.

[00:09:19] Speaker 04:
And I don't see your construction argument precluding that very fact finding the board made.

[00:09:25] Speaker 03:
So I don't remember that argument being made before the board.

[00:09:30] Speaker 04:
The only argument that microchip.

[00:09:32] Speaker 04:
I just read to you from the board's fact findings.

[00:09:33] Speaker 04:
So you may not think that argument was made before the board, but that is precisely what they found as a factual matter.

[00:09:39] Speaker 04:
OK.

[00:09:39] Speaker 03:
Well, microchip.

[00:09:42] Speaker 03:
The only place where Microchip makes an argument that a hardware layer, for example, could be a layer is in their experts' reply declaration.

[00:09:50] Speaker 03:
And what they say, and this is at Appendix 1375, what he says for the first time is that the boot ROM code, which is 163, is interacting with the E JTAG port, which is the scan interface.

[00:10:09] Speaker 03:
So I don't think Microchip ever made the argument that the hardware part of what the boot ROM code is interacting with is the OTP memory.

[00:10:19] Speaker 03:
I guess that's what is making you confused.

[00:10:22] Speaker 03:
Are you saying that the board found that the hardware part?

[00:10:25] Speaker 04:
I'm saying I don't think the board read the word layer out of the claims at all.

[00:10:28] Speaker 04:
I think the board read the word layer as potentially not requiring multiple layers of software stacked on top of each other.

[00:10:36] Speaker 04:
But I don't think they read the word layer out.

[00:10:38] Speaker 04:
You argued to us that the board rendered the word layer superfluous.

[00:10:43] Speaker 04:
That's what you argued.

[00:10:44] Speaker 04:
And I'm trying to explain to you that I don't think that's

[00:10:46] Speaker 04:
accurate, it doesn't square with my reading of the board opinion, where they seem to have utilized the word layer to include potentially a hardware layer.

[00:10:57] Speaker 04:
And then they went on to make fact findings that Giles actually teaches exactly that.

[00:11:01] Speaker 04:
And that's why this element is actually present in Giles.

[00:11:06] Speaker 04:
So that's what I think they did.

[00:11:08] Speaker 04:
Maybe not as clearly as I just did.

[00:11:10] Speaker 04:
Fair enough.

[00:11:11] Speaker 04:
But that's the way I interpret their opinion.

[00:11:13] Speaker 03:
OK.

[00:11:14] Speaker 03:
Well, going back to the layers stacked on top of each other, that is exactly what Microchip's expert did argue at his deposition.

[00:11:22] Speaker 03:
Not only did he talk about dictionary.com, the layers of clothing,

[00:11:26] Speaker 03:
The other examples he used were layers of cake, one stacked over another.

[00:11:30] Speaker 03:
And I have a reference for you.

[00:11:36] Speaker 03:
Appendix 1648.

[00:11:38] Speaker 03:
He talked about layers of cake stacked one on top of another.

[00:11:42] Speaker 03:
He also talked about layers of rock that would be exposed in the southwest.

[00:11:48] Speaker 03:
All the examples that he cited as extrinsic evidence, but inside Appendix 1648,

[00:11:55] Speaker 03:
He cited various patents and other things.

[00:11:58] Speaker 03:
They're all three layers, three shells or layers.

[00:12:03] Speaker 03:
Again, they never point to anything like that in Giles until the reply declaration after his deposition in which they say the boot ROM code interacts with the AJ tag port, which is the scan interface.

[00:12:20] Speaker 03:
I guess going back to our definition in the time that I have left, we did point to a software textbook that says, a recurring theme in any discussion of software architecture or architecture styles is that of layering.

[00:12:41] Speaker 03:
The essential concept is simple.

[00:12:43] Speaker 03:
The structure of the system or part of it is organized into a set of layers.

[00:12:48] Speaker 03:
each stacked one above another with well-defined interfaces between each layer.

[00:12:53] Speaker 03:
So we think that is very similar to the definition that we've proposed.

[00:12:58] Speaker 03:
At his deposition, we asked Microchips expert whether that would be a reasonable definition.

[00:13:04] Speaker 04:
I just don't see how that changes anything in your favor.

[00:13:07] Speaker 04:
The board found Giles discloses this by having the software layer talk to the memory, which is all in the same processor.

[00:13:18] Speaker 04:
I guess I don't see the argument you're making as leading to any different outcome.

[00:13:23] Speaker 03:
Well, let's talk about the functional aspect of our definition, because the boot ROM code in Giles is just at startup.

[00:13:32] Speaker 03:
It just says, initially, it's at initiating the computer.

[00:13:36] Speaker 04:
OK, wait.

[00:13:37] Speaker 04:
I'll make it as simple as I can so we can avoid the complexity.

[00:13:41] Speaker 04:
If I say you're dressed today in layers, and you have a shirt layer, and you have a jacket layer,

[00:13:47] Speaker 04:
If I say you're wearing a shirt layer, that doesn't necessarily imply you got to have three shirts, right?

[00:13:52] Speaker 04:
You could have a shirt, a t-shirt, a bra, a jacket, whatever.

[00:13:54] Speaker 04:
You're wearing layered clothing.

[00:13:56] Speaker 04:
Like when you go skiing, you wear layers.

[00:13:59] Speaker 04:
They're not all the same layer.

[00:14:00] Speaker 04:
So in this case, how did the board fail to give meaning to the word layer to the extent that it found the prior art disclosed hardware and software layers that interact with each other?

[00:14:13] Speaker 03:
Again, I didn't read that part of the board's final written decision as being as clear as what you're articulating today, and I did not read that in microchip's argument until their reply declaration, and they are arguing in the reply declaration that the

[00:14:37] Speaker 03:
Not what you're saying today, that the OTP memory is the hardware layer, but the JTAG port, the scan interface, is the other layer that it's interacting with.

[00:14:48] Speaker 04:
But you agree the board found the OTP.

[00:14:50] Speaker 04:
That quote from page 12 of their opinion that I read out loud, the board found that there's interaction.

[00:14:55] Speaker 04:
Sure.

[00:14:56] Speaker 04:
Okay.

[00:14:56] Speaker 04:
Sure.

[00:14:57] Speaker 04:
I agree.

[00:14:57] Speaker 03:
I just didn't... I never go outside board fact-finding, so I just want to make sure that I'm not... Yes.

[00:15:03] Speaker 03:
The boot run code is interacting with the OTP memory, absolutely, in Giles.

[00:15:07] Speaker 03:
I did not understand that the board then said that the OTP memory is a hardware layer.

[00:15:13] Speaker 03:
Because I don't think they reached the finding that more than one layer was required.

[00:15:19] Speaker 03:
I don't think they agreed that there needed to be another layer, be it hardware or anything else.

[00:15:26] Speaker 04:
I agree with you.

[00:15:27] Speaker 04:
They didn't expressly say more than one layer is required.

[00:15:30] Speaker 04:
That's why I started by saying, I don't think you win even if you win, because I think their fact findings

[00:15:37] Speaker 04:
preclude your victory, even if I thought they aired in their claim construction, which I don't, because I think they applied it correctly.

[00:15:46] Speaker 04:
What I'm saying is if I just give you those words you want, minus that it has to be two software layers, because I don't think it has to be two software layers, just like I don't think you have to wear two shirts on top of each other.

[00:15:56] Speaker 04:
If there are layers, I think they expressly found layers in the prior art.

[00:16:02] Speaker 03:
I think what you're saying, though, is that

[00:16:07] Speaker 03:
If you do agree, and maybe you don't, that a software layer, the term software layer to a person of ordinary skill, would imply that it's interacting with another layer, be it software or hardware,

[00:16:17] Speaker 03:
that is not the construction they came up with, it was just code at a particular level.

[00:16:22] Speaker 04:
Yeah, but even if you're worried about the construction, their fact finding is clear that this software layer is in fact interacting with another piece of hardware.

[00:16:30] Speaker 04:
So even if they got the construction wrong, under the construction that may be the correct one, they've made fact findings that still result in your client not prevailing.

[00:16:39] Speaker 03:
So you're saying if you

[00:16:42] Speaker 03:
reversed their claim construction, came up with a new claim construction, remanded it, it would still be the same.

[00:16:48] Speaker 04:
I wouldn't remand it, because they've already made fact findings on this record that support the same outcome they've reached.

[00:16:53] Speaker 04:
OK, understood.

[00:16:54] Speaker 04:
So that's the problem.

[00:16:55] Speaker 04:
OK, let's let him do a little something.

[00:16:57] Speaker 04:
I'm sorry if I downplayed argument.

[00:16:59] Speaker 04:
I apologize.

[00:17:03] Speaker 02:
Thank you, Your Honors.

[00:17:06] Speaker 02:
Good morning.

[00:17:06] Speaker 02:
Brett Schuman on behalf of Microchip.

[00:17:08] Speaker 02:
May it please the court?

[00:17:10] Speaker 02:
I've obviously been listening to the questions.

[00:17:15] Speaker 02:
On the claim construction issue, Appellant has tried to make a claim construction issue about the term software layer.

[00:17:24] Speaker 02:
A lot of discussion about levels and layers.

[00:17:26] Speaker 02:
Same thing happened at the PTAB.

[00:17:28] Speaker 02:
It's in the record.

[00:17:29] Speaker 02:
It was discussed by the PTAB judges.

[00:17:32] Speaker 02:
Very similar questions, actually, at appendix 423, 426.

[00:17:34] Speaker 02:
The PTAB boiled down the claim construction issue by quoting patent owner.

[00:17:42] Speaker 02:
This is on page nine of the appendix.

[00:17:44] Speaker 02:
It's page nine of the final written decision of judgment.

[00:17:49] Speaker 02:
Patent owner noting that both parties proposed constructions use the word levels and code, stating, and this is a quote from patent owner, the main difference between the parties constructions is that patent owner contends there's more than one layer of software, whereas petitioners construction does not allow for that.

[00:18:10] Speaker 02:
I heard Ms.

[00:18:11] Speaker 02:
Brooks say, I was a little surprised, our construction doesn't mean two or more layers of software.

[00:18:17] Speaker 02:
The board quoted patent owner as saying below there has to be two or more or more than one layer of software.

[00:18:26] Speaker 02:
I think Judge Lurie's first question gets to the issue, the claims, where we start the intrinsic record says a software layer.

[00:18:36] Speaker 02:
And our argument is not that the claims are limited to one software layer, because Figure 4 has trusted and untrusted multiple layers of software.

[00:18:45] Speaker 02:
Our argument is the claims have to include one layer of software, or they could include more than one layer of software.

[00:18:54] Speaker 02:
Software layer is not defined anywhere in the intrinsic record, period.

[00:18:59] Speaker 02:
So patent owner's argument relies on a lot of extrinsic evidence from their own expert and purported admissions, which I'll get to in a second, from our expert at Deposition.

[00:19:11] Speaker 02:
But software layer is not defined anywhere in the patent.

[00:19:16] Speaker 02:
There were some questions about figures five through seven.

[00:19:19] Speaker 02:
I think those are very good examples.

[00:19:22] Speaker 02:
Patent owner's construction, two or more software layers, would exclude the embodiments described in figures five, six, and seven.

[00:19:30] Speaker 02:
And it's not just the figures themselves.

[00:19:34] Speaker 02:
Patent owner's council was discussing how the figures are drawn.

[00:19:39] Speaker 02:
But the actual description, in the written description of figures five, six, and seven,

[00:19:45] Speaker 02:
This is starting at column 6 line 15 and it goes all the way through column All the way through column 10 nearly to the end of the description describing figures 5 6 & 7 They just talk about a single piece of software trusted software.

[00:20:04] Speaker 02:
That's a software layer which is covered by the claims I Appreciate all that but is it possible that the board?

[00:20:15] Speaker 01:
misunderstood notwithstanding the quote of their own statement that misunderstood what they were trying to argue on the claim construction because today's not the first day that they tell us the issue is not whether two or more software layers are required.

[00:20:29] Speaker 01:
They said that at least in their gray brief at page one that the issue is instead on the claim construction.

[00:20:35] Speaker 01:
whether the term software layer itself indicates a relationship in which that one layer interfaces with another.

[00:20:43] Speaker 01:
If that's really what they mean, do you dispute that?

[00:20:48] Speaker 01:
Does that change the outcome here?

[00:20:50] Speaker 02:
Well, two things.

[00:20:51] Speaker 02:
Their construction position has clearly been shifting.

[00:20:54] Speaker 02:
And so I don't think the board misunderstood their claim construction.

[00:20:58] Speaker 02:
It's on page 9 again in the appendix.

[00:21:01] Speaker 02:
It's a direct quote, so it's not an interpretation or a characterization.

[00:21:05] Speaker 02:
The intrinsic record does not provide any support for what I think Ms.

[00:21:10] Speaker 02:
Brooks accurately characterized as a bit of a wordy construction and the part you're referring to of their construction, a hierarchy of functional components that interfaces with neighboring levels.

[00:21:22] Speaker 02:
That's not anywhere in the intrinsic record.

[00:21:25] Speaker 02:
And as I think the colloquy between Chief Judge Moore and Ms.

[00:21:29] Speaker 02:
Brooks was demonstrating, even if some interaction is required,

[00:21:35] Speaker 02:
There's plenty of interaction going on in Giles, the reference that the board found rendered the challenge claims obvious.

[00:21:43] Speaker 02:
There's plenty of interaction going on between the levels.

[00:21:45] Speaker 02:
The code, OTP code 163, the boot ROM code is referred to, interacting with the

[00:21:53] Speaker 02:
secure component, which is a secure processor, and that's supported by the board's fact-finding.

[00:21:58] Speaker 01:
So there is interaction.

[00:21:59] Speaker 01:
Right.

[00:21:59] Speaker 01:
So for purposes of the appeal, you don't dispute that the proper construction could include a necessity of interaction, and you think you still win?

[00:22:09] Speaker 02:
Yeah.

[00:22:11] Speaker 02:
I think interaction is established.

[00:22:13] Speaker 02:
So we still win.

[00:22:14] Speaker 02:
I think this is perhaps

[00:22:16] Speaker 02:
what Chief Judge Moore and Ms.

[00:22:18] Speaker 02:
Brooks were describing.

[00:22:19] Speaker 02:
The court, the board, excuse me, found Planned and Ordinary Meeting and our construction that they adopted as Planned and Ordinary Meeting was simply software code at a particular level, so it doesn't require interaction.

[00:22:31] Speaker 04:
But at a particular level means that there exist other levels.

[00:22:35] Speaker 04:
That's it.

[00:22:36] Speaker 04:
One of their arguments was that they read out the word layer.

[00:22:39] Speaker 04:
Right?

[00:22:39] Speaker 04:
That software is not the same thing as a software layer.

[00:22:42] Speaker 04:
Because layering implies, like, I would not say that your clothes were layered if all you were wearing was a shirt.

[00:22:47] Speaker 04:
Nothing else.

[00:22:48] Speaker 04:
No undershirt, no jacket.

[00:22:49] Speaker 04:
You're not, I wouldn't say, oh, that's a shirt layer.

[00:22:52] Speaker 04:
You know what I mean?

[00:22:53] Speaker 04:
Because there's nothing else.

[00:22:54] Speaker 04:
So the software has to, whether it's interactive, there has to be something to the word layer.

[00:22:59] Speaker 04:
It has to mean something.

[00:23:01] Speaker 04:
And I don't think the board read it out because when they pointed to the memory in Giles,

[00:23:05] Speaker 04:
They were saying that this software interacts with this memory, which is all on the same processor chip.

[00:23:11] Speaker 04:
And so I think that regardless of what the definition of layer means, in this case, a software layer,

[00:23:18] Speaker 04:
it was sufficiently met by their fact-findings in light of Giles.

[00:23:22] Speaker 04:
Is that fair?

[00:23:24] Speaker 02:
I agree with all that.

[00:23:25] Speaker 02:
I agree with all that.

[00:23:26] Speaker 02:
And I don't think we need to get to... Well, you were fighting to start a little bit on the interact point.

[00:23:31] Speaker 04:
That's why I wasn't sure.

[00:23:33] Speaker 02:
Simply because I don't think there's any problem with the way the board construed software layer.

[00:23:37] Speaker 02:
But if some interaction is required, of course the software is interacting in Giles.

[00:23:43] Speaker 02:
with the secure component.

[00:23:45] Speaker 02:
And so yes, you can have interaction.

[00:23:47] Speaker 02:
And if this court were to write an opinion that required some interaction between a software layer and another layer, it just doesn't have to be multiple software layers.

[00:23:57] Speaker 02:
So I think in your analogy, if my body is the hardware layer and my single shirt is the software layer, and somehow there's some hypothetical interaction between my body and the shirt, that would meet

[00:24:08] Speaker 02:
construction that requires some interaction between the hardware layer and the software layer that's an imperfect I'm trying to run with the analogy here, but not well but the interaction excuse me and

[00:24:22] Speaker 02:
This really gets to, I'd like to move on to the deposition admission or purported admission that Ms.

[00:24:30] Speaker 02:
Brooks latched onto.

[00:24:31] Speaker 02:
And it's all over the briefs.

[00:24:32] Speaker 02:
I can't count the number of times I raised it.

[00:24:36] Speaker 02:
Dr. Alpert, at his deposition, was being asked not about the O02 patent, not about Giles, the reference that the board found invalidated the claims.

[00:24:46] Speaker 02:
And he was really not even being asked about any reference at all when he was simply asked whether

[00:24:51] Speaker 02:
software can be a software layer.

[00:24:53] Speaker 02:
And his answer, which Miss Brooks, I believe, respectfully mischaracterized, I wrote down as, Alpert admits Giles does not include more than one layer.

[00:25:06] Speaker 02:
It was not about Giles at all, to be crystal clear.

[00:25:09] Speaker 02:
It's at pages 1647 and 1648.

[00:25:12] Speaker 04:
Do you really think this matters?

[00:25:14] Speaker 02:
I don't, but because Miss Brooks and the briefs, I don't.

[00:25:18] Speaker 04:
And the board already found communication in Giles between OTP memorandum.

[00:25:24] Speaker 04:
I mean, you can beat a dead horse a couple more times if you want, but you don't really have to.

[00:25:29] Speaker 02:
I'll yield the rest of my time, Your Honor.

[00:25:35] Speaker 02:
The deposition testimony, which is extrinsic evidence, which the board considered all of it, does not stand for what Ms.

[00:25:41] Speaker 02:
Brooks said during her opening remarks.

[00:25:44] Speaker 02:
She was not talking about Giles in the abstract.

[00:25:48] Speaker 02:
Piece of software out here, a little app that somebody develops out in Silicon Valley may or may not be a software layer.

[00:25:54] Speaker 02:
People of ordinary skill in the art might not refer to it as a layer.

[00:25:57] Speaker 02:
That's all he was saying in that piece of deposition testimony that Ms.

[00:26:01] Speaker 02:
Brooks mentioned.

[00:26:03] Speaker 02:
With that, I will yield my time.

[00:26:04] Speaker 02:
Thank you.

[00:26:05] Speaker 04:
Ms.

[00:26:06] Speaker 04:
Brooks, you have some more time.

[00:26:14] Speaker 03:
So, Your Honors, I want to talk about your question on whether the board found that the boot rom code in Giles interacts with the OTP memory and whether or not that would constitute interacting with another level or layer.

[00:26:33] Speaker 03:
I think, Your Honor, if that were true, then any software would be a software layer.

[00:26:38] Speaker 03:
It, again, I think goes back to our argument that

[00:26:41] Speaker 03:
In that case, there would be no difference between software and software layer.

[00:26:44] Speaker 03:
And the reason is that any code, which would be software, would, by virtue of it being software or code, interact with something else.

[00:26:53] Speaker 03:
And so I want to point you to some testimony by Microchips expert.

[00:27:00] Speaker 03:
He says, at appendix 1589, executed on a processor is a basic definition of software.

[00:27:10] Speaker 03:
He also said at Appendix 1646, code would be executed on a processor.

[00:27:16] Speaker 03:
That's a common understanding.

[00:27:18] Speaker 03:
And he's talking about just the term software without the word layer attached to it.

[00:27:23] Speaker 03:
So respectfully, Your Honor, I think that if the boot ROM code of Giles were interacting just with the OTP memory, that would be any code would be interacting with any software

[00:27:35] Speaker 03:
code would be interacting with something else, and I do think that would render the layer part of software layer meaningless to a person of ordinary skill.

[00:27:46] Speaker 04:
The other thing I wanted, so before you move on, my clerk's not fast enough.

[00:27:51] Speaker 04:
He's way too slow on the balcony, giving me the site that I'm looking for.

[00:27:54] Speaker 04:
But my recollection, and so you'll just have to at this point correct me because I'm just going to wing it.

[00:27:58] Speaker 04:
But my recollection is during prosecution, you distinguished this because the thing that the software layer was interacting with was off chip.

[00:28:06] Speaker 04:
And that in this case, that's why I was very careful to show you, the board defined the entire thing as within chip.

[00:28:12] Speaker 04:
So in this case, you have the software interacting with something else on the same chip.

[00:28:17] Speaker 04:
The software layer is interacting with another layer contained on the same chip.

[00:28:21] Speaker 04:
And during prosecution, you specifically overcame the prior arc by saying, oh no, that thing doesn't count because it's off chip.

[00:28:27] Speaker 04:
Our software module is interacting with something off chip, therefore they're not layers.

[00:28:31] Speaker 04:
So I don't think I've read it out of existence.

[00:28:34] Speaker 04:
I might be completely misremembering it.

[00:28:37] Speaker 04:
My clerk now says I could look at 8636, but that ship has sailed, law clerk.

[00:28:41] Speaker 03:
So that part of our argument, your honor, was with respect to a certain term in claim limitation in claim one, which requires the software layer.

[00:28:53] Speaker 03:
Let me read it.

[00:28:54] Speaker 03:
to access trusted resources in said secured processor.

[00:28:58] Speaker 03:
So what we were saying is the trusted resources have to be located on the secure processor, whereas the trusted resources are the OTP memory.

[00:29:08] Speaker 03:
Whereas in the prior art, it was located off chip, and we were equating that with Giles as well, which if you look at the block diagram, it looks like it's located off chip.

[00:29:17] Speaker 03:
So that was the trusted resources being located on the secure processor, not

[00:29:23] Speaker 03:
for the software layer term, if that makes sense.

[00:29:27] Speaker 03:
I do.

[00:29:27] Speaker 03:
I understand your argument.

[00:29:29] Speaker 03:
The last thing I wanted to point to your honor, one last thing, it is Appendix 1274.

[00:29:35] Speaker 03:
All the examples of software layer, while a base layer could be the hardware layer, they're stacked one above the other.

[00:29:43] Speaker 03:
And most often, there is a software layer interacting with another software layer, even if the base layer is a hardware layer.

[00:29:50] Speaker 03:
And an example of that, Your Honor, is at Appendix 1274.

[00:29:53] Speaker 03:
This is actually an example that Microchip cites.

[00:29:57] Speaker 03:
There's a boot layer, a memory management layer, and an access layer.

[00:30:01] Speaker 03:
And I believe at least maybe all three of these are software layers.

[00:30:04] Speaker 03:
But that, again, I don't think is disclosed in Giles.

[00:30:09] Speaker 03:
And the board did not make such a finding.

[00:30:13] Speaker 03:
OK.

[00:30:13] Speaker 04:
You thank the council, which case has taken other submissions.