[00:00:00] Speaker 00: And our next case is number 23, 2184, power to B versus Samsung Electronics. [00:00:09] Speaker 00: You just stay where you are. [00:00:32] Speaker 00: Okay, Mr. Daniels. [00:00:38] Speaker 02: Thank you, Your Honors. [00:00:40] Speaker 02: My name is Adam Daniels, and I'm representing Pellin Power 2B in this matter. [00:00:51] Speaker 02: Your Honors, the main question here that unravels all of the issues comes down to unspoiled testimony. [00:00:59] Speaker 02: And specifically, testimony by [00:01:02] Speaker 02: petitioner's expert, Dr. Buderson, to define an input area in a reference called Ishii, in Ishii alone. [00:01:10] Speaker 02: So this is just to give you a little bit of context for where I'm going. [00:01:15] Speaker 02: So the claimed invention here generally has an input object, which is a stylus, an input area, and a sensor array positioned outside of the input area. [00:01:32] Speaker 02: And the sensor is further operative to provide an output indication regarding an electromagnetic radiation pattern. [00:01:39] Speaker 02: And so if you look at figure four of the patterns, you can see that there's a few different ellipses that are being shown. [00:01:45] Speaker 02: And those ellipses will correspond to the radiation from the pen on the surface itself. [00:01:50] Speaker 02: And so those ellipses are circles. [00:01:51] Speaker 02: That's the radiation pattern. [00:01:53] Speaker 02: And as the pen, the orientation of the pen or the distance of the pen moves, it'll create an elongated circle or ellipse. [00:02:00] Speaker 02: or will have a bigger circle altogether. [00:02:02] Speaker 02: So the size and the shape of the dimensions of that elliptical spot can then be used to calculate the relative position of that input object, meaning the stylus. [00:02:13] Speaker 02: So what's important here is during prosecution, the two references that are being cited and the two references that were applied, Bird, in particular, was considered a number of times by the Patent Office. [00:02:23] Speaker 02: And Bird also makes a lot of references to Ishii and describes Ishii as nothing more than an example integrated display. [00:02:30] Speaker 02: And so in the context of the asserted patents, the interpretation of the input area was the display for Figure 3, and this is uncontested, the parties don't dispute this, the display in Figure 3, which I believe is Display 12, the display in Figure 4, which again I believe is Display 12, the display in Berger. [00:02:50] Speaker 02: But when it comes to Ishii, which again provides an integrated display, the petition had to rely upon unsupported testimony. [00:02:57] Speaker 02: And that unsupported testimony specifically says that a posita would have understood that the waveguides in Ishi define the extent of the input area. [00:03:15] Speaker 02: So even just from a high-level point of view, we have an integrated display where the handwriting happens. [00:03:21] Speaker 02: You're writing on the display with a stylus. [00:03:22] Speaker 02: That's where the input area is. [00:03:23] Speaker 02: You have the handwriting that's on bird. [00:03:25] Speaker 02: That's where the input area is. [00:03:27] Speaker 02: And then on Ishii, where there's handwriting input, which is shown in Ishii's Figure 5, somehow we have a new definition for Ishii's input area. [00:03:33] Speaker 02: And that was in the petition to start. [00:03:37] Speaker 02: And so as a threshold matter, that testimony is unsupported. [00:03:42] Speaker 02: And we cited the Arendy case. [00:03:44] Speaker 02: It was Arendy versus Apple case. [00:03:47] Speaker 02: It's unsupported testimony to supply a limitation that's missing in the reference. [00:03:52] Speaker 02: So again, we added the limitation, which was a sensor array positioned outside of the input area, to distinguish over Byrd's integrated display. [00:04:00] Speaker 02: And not only Byrd's integrated display, we also provide an issue to the Patent Office. [00:04:04] Speaker 02: And throughout Byrd, Byrd references the issue as nothing more than an example integrated display. [00:04:10] Speaker 03: Does this argument still apply even if we agree with the board's construction of input area? [00:04:17] Speaker 03: Yes, Your Honor. [00:04:17] Speaker 02: This is a threshold issue. [00:04:19] Speaker 02: Regardless of plan construction, [00:04:21] Speaker 02: This is using expert testimony to wholly supply a missing limitation. [00:04:24] Speaker 03: And that limitation is missing even if we adopt the board's construction of input areas. [00:04:29] Speaker 03: Yes, Your Honor. [00:04:33] Speaker 02: And so one thing that I also want to point out and note is when it comes to this testimony, so this testimony appears in the petition. [00:04:40] Speaker 02: I'm looking at appendix 234 to 235. [00:04:44] Speaker 02: And the petition cites to this expert testimony at paragraph 113. [00:04:50] Speaker 02: And I also provided in our briefing a side-by-side comparison. [00:04:58] Speaker 02: And I believe it was in our opening brief at page 43. [00:05:02] Speaker 02: I think I provided a table. [00:05:04] Speaker 02: I believe that's the correct reference. [00:05:06] Speaker 02: So as you can see, this paragraph is the paragraph that finds this missing limitation in Ishii. [00:05:12] Speaker 02: And the paragraph is directly copy and pasted. [00:05:16] Speaker 02: And there were about five sentences [00:05:19] Speaker 02: The petition copies four sentences, and the fifth sentence is actually an admission on the record, which I'll discuss in a minute. [00:05:26] Speaker 02: But in the context of this unsupported testimony, it begins by stating issue discloses a photo sensor formed in and end portion of the waveguides. [00:05:36] Speaker 02: And the reason why that's important is the petitioner has annotated the waveguides. [00:05:42] Speaker 02: This is the annotated figure nine. [00:05:45] Speaker 02: The petitioner annotated the entire length of those waveguides as the alleged input area. [00:05:51] Speaker 02: So Ishii teaches that a photo sensor, which Ishii describes as a functional. [00:05:56] Speaker 00: What does Ishii teach that the input area is the intersection of the waveguides from the x and y axis? [00:06:03] Speaker 00: And isn't it necessary in order to determine position to have the input area be the intersection? [00:06:12] Speaker 02: That could define, I believe, a sensing area. [00:06:15] Speaker 02: But when it comes to the input area, Ishii provides figure five, which shows where the handwriting inputs are. [00:06:19] Speaker 00: So you agree that the, in other words, you agree that in order to have an input, you have to have overlap between the X and the Y guides, right? [00:06:37] Speaker 02: So to be clear, I agree that that overlapping intersection would provide part of a sensing area. [00:06:45] Speaker 02: But the entire length of Ishii's waveguide detects the light. [00:06:50] Speaker 02: So Ishii's waveguide as a structure, so this is optical sensing. [00:06:54] Speaker 02: As a structure, it has a very specific dimension, and it's sensitive to attenuate very specific wavelengths of light. [00:07:01] Speaker 02: So the entire waveguide itself would define an area that it could sense the light. [00:07:07] Speaker 02: But when it comes to the input area, the display is where the handwriting happens. [00:07:11] Speaker 02: The display is where those inputs happen. [00:07:15] Speaker 02: And so again, just to pull this back into proper context, the parties do not dispute the display with no respect to the underlying structures. [00:07:25] Speaker 02: The display is the input area in the context of the patents, the specification. [00:07:29] Speaker 02: The display is the input area in the context of Byrd. [00:07:32] Speaker 02: And again, that's without respect to any of the physical dimensions of Byrd's sensors. [00:07:38] Speaker 02: Byrd's entire display, which petitioner annotated multiple times, is the input area. [00:07:42] Speaker 02: And then when you turn to Ishii, [00:07:44] Speaker 02: We have a handwriting input area, and the only thing that would support the definition for Ishii's input area is unsupported testimony. [00:07:54] Speaker 02: So continuing on with Dr. Peterson's statements, the first thing that I noted was Ishii actually teaches, even taking a step aside. [00:08:03] Speaker 02: So we have this input, the larger issue is unsupported testimony. [00:08:07] Speaker 02: We have a secondary issue, which is the display is the input area. [00:08:10] Speaker 02: And we're not saying that, to be very clear, power to beast position is not that the display is the input area for all cases. [00:08:15] Speaker 02: We're talking about a very specific context for the integrated displays disclosed in figure four of the specification, which both parties agree the claims do not encompass. [00:08:25] Speaker 02: The context of birds integrated display and the context of issues integrated display. [00:08:32] Speaker 02: And so I'll note that [00:08:34] Speaker 02: Even if we set aside the display being the input area, the waveguides, assuming the waveguides define the input area according to what petitioner annotated, each sheet teaches the photo sensor, a single photo sensor, which the functional circuit is inside of each individual waveguide to provide respective X and Y information. [00:08:53] Speaker 02: And then some other additional processing circuitry will accumulate all of those outputs from those waveguides and then determine an X and Y position. [00:09:02] Speaker 02: But the photo sensor, Ishii very clearly states, is in the waveguide. [00:09:07] Speaker 02: And in fact, Ishii provides a number of citations that say it's in. [00:09:11] Speaker 02: So even if the display is not the input area, which it is, even if we go with petitioner's definition of the input area, which is the unsupported testimony, Ishii still teaches that the photo sensor, which is the alleged sensor array, is in the actual waveguide itself. [00:09:26] Speaker 02: It's not outside, which is what the claims require. [00:09:32] Speaker 02: And another thing that I'll note, and we mentioned it in our briefs, I want to make the record very clear. [00:09:37] Speaker 02: There is a very big difference between the sensor portion and the photo sensor. [00:09:43] Speaker 02: So Ishii, throughout its entire specification, discusses a photo sensor, which is manufactured and fabricated at the same time as the waveguides. [00:09:52] Speaker 02: The waveguides in the photo sensor are made by either additive or subtractive processing, kind of like semiconductor. [00:10:00] Speaker 02: So you have a silicon substrate, and you can etch away parts of that silicon substrate to create a display panel. [00:10:05] Speaker 02: And you can form the waveguides. [00:10:06] Speaker 02: And during that process, the photo sensor is inside of the waveguide, every one of those waveguides. [00:10:12] Speaker 02: The sensor portion is a different thing. [00:10:15] Speaker 02: The sensor portion could refer to handwriting circuitry. [00:10:17] Speaker 02: It could refer to a lot of things. [00:10:19] Speaker 02: There was an improper citation in this testimony. [00:10:23] Speaker 02: And I'm referring to the second sentence, [00:10:26] Speaker 02: of Dr. Peterson's testimony in paragraph 113 is that Appendix 351. [00:10:31] Speaker 02: In the second sentence, Dr. Peterson says, quote, Ishii discloses an optical waveguide 36, an X or Y sensor portion 34, and a Y or X sensor portion 35 formed in an end portion. [00:10:48] Speaker 02: That's not correct. [00:10:50] Speaker 02: Ishii, when you look at that paragraph, that citation of Ishii, Ishii says that that X or Y sensor portion [00:10:56] Speaker 02: And the waveguides are just formed in between the picture elements. [00:11:00] Speaker 02: So Ishii's not talking about a photo sensor there. [00:11:03] Speaker 02: So Petitioner's expert is relying upon the sensor portion to represent the position of the photo sensors. [00:11:10] Speaker 02: But Ishii uses a different word. [00:11:11] Speaker 02: Ishii says a photo sensor is formed in, in each waveguide, because that's how it operates. [00:11:21] Speaker 02: The other thing that I want to quickly correct on the record [00:11:24] Speaker 02: is this references to a sentencing patent embodiment. [00:11:27] Speaker 02: So this is in our briefs. [00:11:29] Speaker 02: But Samsung, as well as the board, relied upon this sentencing patent embodiment and stated that we relied upon the sentencing patent embodiment during prosecution to support the issued recital. [00:11:40] Speaker 02: We did not. [00:11:41] Speaker 02: That's incorrect. [00:11:42] Speaker 02: The correct amendment where we actually relied upon the disclosures was referencing figure three. [00:11:48] Speaker 02: And that was an amendment on June 12, 2009. [00:11:53] Speaker 02: That's at appendix 3688. [00:11:54] Speaker 02: That was the amendment that actually corresponded to the issued claim recitals. [00:11:59] Speaker 02: So there was no sensing pad reference. [00:12:02] Speaker 02: So that's another error on the record. [00:12:14] Speaker 02: Okay. [00:12:15] Speaker 02: So getting back to this larger issue about what the input area is in the context of these references. [00:12:20] Speaker 02: Both parties, again, agree that Bird's figure one is the input area. [00:12:23] Speaker 02: And I'll read you a quote. [00:12:25] Speaker 02: This was from Samsung during oral argument in the proceedings below. [00:12:28] Speaker 02: Regarding Bird's input area, quote, it's the writing surface where the pen is used to input information. [00:12:36] Speaker 02: If that's correct, then why is an Ishii's writing surface where the pen is used to input information the input area? [00:12:44] Speaker 02: So if you use that definition that they explained during their oral argument, [00:12:49] Speaker 02: With Berg, as the writing surface where the pen is used to input information, to then use that on Ishi, you result with Ishi's display. [00:12:57] Speaker 02: Again, Figure 5 shows the handwriting going over the display. [00:13:00] Speaker 02: That's the input area. [00:13:03] Speaker 04: Are you still challenging the board's interpretation of input area? [00:13:07] Speaker 02: Yes, Your Honor. [00:13:10] Speaker 02: So the other thing that I'll note about the construction that the board entered for the input area, it just rearranged the words. [00:13:15] Speaker 02: And the board's actual support for that, saying the input area is the area of input, doesn't resolve this issue. [00:13:21] Speaker 02: That came from our expert testimony, where he specifically said, I am not talking about a claim construction, but the input area is just an off-the-cuffer mark as the area of input. [00:13:30] Speaker 02: But he specifically said, I'm not talking about a claim construction. [00:13:33] Speaker 02: And that was just his testimony. [00:13:37] Speaker 02: So even if we adopt the board's construction, [00:13:41] Speaker 02: Our expert, under his understanding of an input area, comes to a very different conclusion than their expert applying this alleged definition, neither of which both of those definitions were not proposed to the board at all. [00:13:59] Speaker 02: And with that, Your Honors, I would also like to address Claim 20. [00:14:05] Speaker 02: So in Claim 20, there was no support. [00:14:10] Speaker 02: Sorry, Your Honors, I jumped the gun. [00:14:12] Speaker 02: Thank you. [00:14:43] Speaker 01: May it please the court, William Fink for appellee, cross-appellant, Samsung. [00:14:48] Speaker 01: I'd like to reserve three minutes for cross-appeal rebuttal. [00:14:54] Speaker 01: So we're going to be discussing the 570 and 364 patents that my colleague did. [00:15:01] Speaker 01: And specifically, I'd like to make a few points on his opening argument. [00:15:11] Speaker 01: All throughout this IPR, there's been this claim that Samsung is agreeing with Power to Be on a number of things. [00:15:23] Speaker 01: And it's kind of shifted over time. [00:15:26] Speaker 01: But the gist of it is that because Ishii has a display that also has an input area, that we agree that the display is the input area, or that the input area is the display. [00:15:40] Speaker 01: And therefore, the sensing portions of the display or the sensing array portion of the array must be also inside the input area. [00:15:50] Speaker 01: And so it's kind of a logical fallacy. [00:15:55] Speaker 01: The input area takes input. [00:15:57] Speaker 01: This is what their expert read on. [00:15:59] Speaker 01: It takes input from an input object. [00:16:03] Speaker 01: And it directs it as the word found, Dr. Peterson [00:16:07] Speaker 01: testified, it directs it to peripheral light sensors. [00:16:13] Speaker 01: And that's shown in Figure 9, which is marked up at paragraph 113 of Dr. Peterson's declaration, Appendix 351. [00:16:24] Speaker 01: And the red area, 34, 36, is a sensor array. [00:16:31] Speaker 01: Now, this is clearly not drawn to scale. [00:16:34] Speaker 01: It's a mock-up that's showing the waveguides in an orange color and the sensors in a red color. [00:16:44] Speaker 01: And then it talks about... Which page is this now? [00:16:48] Speaker 01: This is appendix 351. [00:16:49] Speaker 04: Just so you know, we don't have the colors that you have in our appendix. [00:16:53] Speaker 01: Oh, I'm sorry, Your Honor. [00:16:54] Speaker 01: So the rectangles at the end of figure nine, the rectangle that's labeled 34 would be the sensor, and then the [00:17:03] Speaker 01: the sensor array, and then the waveguides are the amber colored, or sorry, sorry your honor, 36 would be the perpendicular stripes. [00:17:13] Speaker 00: Okay, so what they're saying is that if the waveguides are the input area, [00:17:25] Speaker 00: the input area continues into the rectangular area. [00:17:31] Speaker 00: So the rectangular area of the sensor array is not outside the input area. [00:17:38] Speaker 00: That's their argument. [00:17:39] Speaker 01: That is one of their arguments. [00:17:40] Speaker 01: There's a number of arguments. [00:17:42] Speaker 00: And the board at 25, no 12, says no, no. [00:17:48] Speaker 00: The ends of [00:17:50] Speaker 00: the guides that are on top of the sensor array are not input areas, right? [00:17:55] Speaker 00: That's correct, your honor. [00:17:57] Speaker 00: And so what's the basis for that? [00:17:59] Speaker 01: So the board considered the argument in footnote 12 and made an alternative finding. [00:18:09] Speaker 01: That footnote is cited at appendix 234. [00:18:19] Speaker 01: I'm sorry. [00:18:23] Speaker 01: Let me find the reference to the petition. [00:18:28] Speaker 01: So what the board said was that the waveguides define the extent of the input area. [00:18:35] Speaker 01: And what it cited was the petition at appendix 234. [00:18:41] Speaker 01: And then it said the light. [00:18:45] Speaker 01: This is according to the board of Appendix 29. [00:18:48] Speaker 01: The light from the input object is collected by the waveguides and conducted or guided to their ends. [00:18:55] Speaker 01: So that's a finding the board made. [00:18:57] Speaker 01: The light is guided to their ends. [00:19:00] Speaker 01: And then addressing the argument that my colleague made here, the board said that, to be clear, we refer to the waveguides as the petitioner does, which is those portions that conduct light to their ends. [00:19:16] Speaker 01: And then they said, we view the peripheral light sensors and photosensing circuits connected to the waveguides to be separate from and not part of the waveguides. [00:19:23] Speaker 00: So they're saying that the overlap area between the waveguides shown in Figure 9 and the rectangular area, the sensor array, those aren't part of the input area, right? [00:19:35] Speaker 00: Correct. [00:19:36] Speaker 01: That's correct, Your Honor. [00:19:38] Speaker 01: And the board based that on Ishii's other disclosures, which I'll refer you to, which the most important one is at appendix 27 and 28, where the board addressed these arguments. [00:19:54] Speaker 01: And the board was persuaded in particular by the, and this is in our red brief at page 44, and citing appendix 28 of the final written decision. [00:20:08] Speaker 01: had reproduced the block quote, the sensor portions 34 and 35 are positioned at the end of the waveguides so they can receive light that is leaked from the end of the waveguides. [00:20:21] Speaker 01: That's a quote, that's a direct quote. [00:20:26] Speaker 01: And the board, we also cited appendix 746, paragraph 76 through 79 for that. [00:20:35] Speaker 01: So that was the basis for the board's finding [00:20:37] Speaker 01: Regardless of how you interpret figure nine, you can interpret it a couple different ways. [00:20:43] Speaker 01: But the bottom line is that you have light leaking from the end of the waveguides down to the substrate where the photo sensors reside. [00:20:56] Speaker 01: And that is where the input area ends. [00:21:00] Speaker 01: So you have the light gathering portion of the waveguides [00:21:08] Speaker 01: And then you have the photo sensing portion. [00:21:11] Speaker 01: And the board weighed all of this evidence. [00:21:14] Speaker 01: What's important is the board weighed all of this evidence, including all of the testimony of Dr. Karen's, that's Power to Be's expert, Dr. Peterson, Samsung's expert, and found that all consistent with the notion that the input area extends to the end of the waveguides and no further. [00:21:32] Speaker 01: And whether there's a display that may [00:21:35] Speaker 01: exceed the boundaries of the input area by a very small amount, it's not really discussed by either expert, is really irrelevant. [00:21:45] Speaker 01: The display displays light, the input area collects light, and they don't have to be coterminous. [00:21:55] Speaker 01: There's no requirement. [00:21:57] Speaker 01: This doesn't come up because the Power to Bees expert didn't really try to make any of this. [00:22:05] Speaker 04: Power to Bees, if I remember correctly, makes the argument that if this is how you're going to interpret input area, then this limitation will always be satisfied. [00:22:15] Speaker 01: I'm sorry, Your Honor. [00:22:16] Speaker 01: Could you repeat that? [00:22:18] Speaker 04: I believe that they argue that if this is how you're going to interpret input area, [00:22:23] Speaker 04: then the limitation requiring that the sensors or waveguides be outside of the input area will always be satisfied. [00:22:32] Speaker 04: That is one of the arguments they make. [00:22:35] Speaker 04: So my question is, what is your response to that in particular? [00:22:43] Speaker 01: Well, in the context of Ishi, that's true, because you have light [00:22:49] Speaker 01: gathered by these waveguides. [00:22:51] Speaker 04: Can you think of a context of a different reference where it wouldn't be true? [00:22:55] Speaker 01: Where it wouldn't be true that the input area is always outside. [00:23:01] Speaker 01: Well, I think if you look at the patent, figure three has a display, and then it has sensors arrayed outside the display. [00:23:10] Speaker 01: And so in that case, the sensors [00:23:15] Speaker 04: I'm not sure that really answers my question. [00:23:18] Speaker 01: I'm sorry. [00:23:19] Speaker 04: My question is, setting the display aside, I guess, but just saying if input area is so broad as to include any place where you can provide input, of course, the sensors, can you think of any examples where the sensors would be within the place where the input? [00:23:37] Speaker 01: Yes. [00:23:37] Speaker 01: I mean, the patent at Figure 4 provides examples of where you have a sensor array that's actually overlaying [00:23:45] Speaker 01: the input area and is coterminous with the display. [00:23:47] Speaker 01: I mean, it's figure four of the patent. [00:23:50] Speaker 01: It's described as the photo sensors being above, under, or integrated into the display. [00:23:59] Speaker 01: So that's exactly the figure four embodiment. [00:24:02] Speaker 01: They would claim that's not covered because it's coextensive. [00:24:06] Speaker 01: That doesn't really make any sense. [00:24:08] Speaker 01: That's an example of where the display and the input area are perfectly coterminous. [00:24:18] Speaker 01: If there are no further questions on the appeal, I'd like to turn to the cross appeal. [00:24:32] Speaker 01: So, Your Honors, the board found all 26 challenge claims of three patents invalid except for claim 20 of the 364 patent. [00:24:43] Speaker 01: And just to orient ourselves, the board focused on one part of the claim, the last part of claim 20 in the 364 patent that says, and generating control signals by the input circuitry. [00:24:57] Speaker 01: The board said Samsung did not address it. [00:24:59] Speaker 01: But Samsung did address it. [00:25:01] Speaker 01: It did what petitioners routinely do in these cases with large groupings of similar claim limitations. [00:25:08] Speaker 01: It grouped similar claims together. [00:25:10] Speaker 01: and cross-reference them. [00:25:12] Speaker 01: And in this case, at appendix 5474 to 5476 of the petition, Samsung group claims 6, 7, 13, and 20, which have very similar claim limitations. [00:25:26] Speaker 01: In the case of claim 20, it depends from claim 17. [00:25:33] Speaker 01: And by cross-referencing claim 13 and claim 6 grouped together, [00:25:38] Speaker 01: It addressed the detecting thresholds intensity portion of claim 20, which is also similar to the output indication of intensity. [00:25:49] Speaker 03: So my concern with this argument is that you concede the language is similar, maybe substantially similar, but not identical to the language of any of those other claims you expressly addressed. [00:26:02] Speaker 03: And I don't see where you even argue to the board, hey, we're relying on what we're cross-referencing because it is so similar to this language that only appears in Claim 20. [00:26:15] Speaker 03: Can you help me with that? [00:26:16] Speaker 01: Yes. [00:26:18] Speaker 01: Well, I disagree with part of what you say, Your Honor. [00:26:21] Speaker 01: Samsung addressed in several pages at 54, 75, and 76, it actually addressed the intensity [00:26:31] Speaker 01: The difference between claim 13's output indication of intensity, claim 13, and then address the language of detecting thresholds of intensity. [00:26:48] Speaker 01: So Samsung addressed the threshold portion. [00:26:51] Speaker 03: But how about the generating control signals? [00:26:53] Speaker 01: The generating control signals, OK. [00:26:55] Speaker 01: So what Samsung [00:26:58] Speaker 01: said in claim 13 is when you have the output of the intensity that you create a signal that is sent to the microprocessor 16 in GAVA. [00:27:11] Speaker 01: And so that's the portion that Samsung intended. [00:27:16] Speaker 01: And granted, it's not in hoc verba. [00:27:21] Speaker 01: This is the generating control signals. [00:27:23] Speaker 01: But that's the only signal that Samsung talks about in the dependent claims. [00:27:27] Speaker 00: What is a control signal? [00:27:30] Speaker 01: Well, that's a good question because the patent doesn't actually tell us what the control signal is. [00:27:35] Speaker 01: It's undefined. [00:27:36] Speaker 01: It only shows up in claim 20 of all three patents that are in this family or in this claim set. [00:27:43] Speaker 01: It only shows up in claim 20 generating control signals. [00:27:46] Speaker 01: And then it doesn't actually do anything other than it's untethered to any other claim limitation. [00:27:54] Speaker 01: But what Samsung said, and [00:27:57] Speaker 01: is the, or what Samsung understood it to mean was the same as the input circuitry that generates an electronic input. [00:28:08] Speaker 01: So that is claim 17F. [00:28:11] Speaker 00: Is the question here that we're dealing with whether the control signal is different from other inputs? [00:28:21] Speaker 01: Well that's the point of our [00:28:23] Speaker 01: argument is we don't know because the board didn't make any findings about what was missing. [00:28:28] Speaker 01: The dissent did. [00:28:29] Speaker 01: There's two problems with the board's decision. [00:28:32] Speaker 01: Number one is it doesn't actually address control signal and say, well, we think this means something and you didn't talk about it. [00:28:43] Speaker 01: And on the other hand, it didn't actually address the evidence in claim 13 and the other claims, 6 and 7, or 17F. [00:28:54] Speaker 01: It didn't say, OK, we kind of see there's evidence here. [00:28:58] Speaker 01: And I think what Judge Melvin's dissent shows that at least one judge [00:29:06] Speaker 01: saw substantial evidence that the claim is taught, also saw that the control signal doesn't add any further, doesn't define anything further over. [00:29:16] Speaker 03: Did you ever say in your petition the control signal doesn't add anything? [00:29:21] Speaker 03: We did not. [00:29:21] Speaker 03: To be fair, Your Honor. [00:29:22] Speaker 03: You just completely did not address this limitation, right? [00:29:26] Speaker 01: Well, we believe we did by putting them together. [00:29:28] Speaker 01: But yes, in retrospect, again, this is, in retrospect, had the board asked us, we could have said that. [00:29:36] Speaker 01: and we could have addressed this. [00:29:38] Speaker 03: Well, I think the patent owner response called this out, that you missed this limitation in your petition. [00:29:43] Speaker 03: Did they not? [00:29:44] Speaker 01: The patent owner response did call this out. [00:29:49] Speaker 01: Did you fix it in the reply? [00:29:50] Speaker 01: And I don't think we went back and addressed generating control signal. [00:29:55] Speaker 01: Because I think our view was it was clear from the teachings of claim 13 that there's an output signal. [00:30:02] Speaker 01: But did you even say that much to the board in your reply? [00:30:06] Speaker 01: No, we didn't. [00:30:08] Speaker 01: No, Your Honor, we didn't. [00:30:15] Speaker 01: So I would conclude by just saying the board left us devoid of a record of whether control signal means anything and whether or not the dissent is wrong, that there is substantial evidence to support a finding that the control signal is present. [00:30:32] Speaker ?: OK. [00:30:34] Speaker 00: Thank you. [00:30:35] Speaker 00: Mr. Daniels. [00:30:48] Speaker 02: Thank you, Your Honors. [00:30:49] Speaker 00: So what's a control signal? [00:30:52] Speaker 02: I think a control signal is what it says. [00:30:55] Speaker 02: It's a signal that would, I mean, I apologize. [00:30:58] Speaker 02: I'm not trying to be rude. [00:31:01] Speaker 02: I believe a control signal is something that would [00:31:03] Speaker 02: control, provide some sort of control to the device itself. [00:31:35] Speaker 02: So claim 13, as I'm looking at it. [00:31:50] Speaker 02: That's providing an output indication as I read it. [00:31:54] Speaker 00: What? [00:31:55] Speaker 02: Claim 13 of the 364 patent, Your Honor. [00:31:57] Speaker 00: Yeah. [00:31:58] Speaker 02: Yeah. [00:31:58] Speaker 02: So as I look at claim 13, I don't see a control signal here. [00:32:02] Speaker 00: Well, no. [00:32:04] Speaker 00: My question is, if control signal just means any output, then claim 13 shows a control signal. [00:32:12] Speaker 00: And the cross-reference to claim 13 would show the existence of a control signal. [00:32:18] Speaker 00: That's the problem. [00:32:21] Speaker 02: Well, if a control signal could mean anything, so I don't agree with the proposition that a control signal could mean any kind of output. [00:32:32] Speaker 02: I believe that by reciting the words control signal that... Well, what does it mean? [00:32:36] Speaker 00: I mean, you haven't given me any indication that it means anything except output. [00:32:43] Speaker 02: My understanding of a control signal would that it would be a signal that would provide some sort of control to the device itself. [00:32:48] Speaker 00: So, for example... Well, doesn't clamp 13 show that? [00:32:53] Speaker 00: There's an output that... [00:32:55] Speaker 02: I don't see that the output provides any sort of additional conveying additional instructions. [00:33:01] Speaker 02: The output of 13, as I see it, is an output indication of the intensity of radiation in the pattern. [00:33:12] Speaker 02: So I believe that. [00:33:13] Speaker 03: Let me ask you maybe the same question, but the gray brief at page one compares claim 20 to claim 17, because it depends from claim 17, correct? [00:33:24] Speaker 03: That's correct, Your Honor. [00:33:25] Speaker 03: And at page one of the great brief, they write, the only difference between the portion of claim 17 that we're concerned with and the portion of claim 20 that we're concerned with is the difference between an electronic input and a control signal. [00:33:39] Speaker 03: So what is the difference? [00:33:41] Speaker 03: Is there some material difference between an electronic input and a control signal? [00:33:47] Speaker 02: I believe so, Your Honor. [00:33:49] Speaker 02: First of all, again, they use different words. [00:33:53] Speaker 04: I believe that electronic input is being received by a different device, right? [00:33:57] Speaker 02: That's what I understand, Your Honor. [00:33:59] Speaker 04: OK, so why couldn't, though, the control signal be the thing that's the electronic input that's being received? [00:34:05] Speaker 04: I think that's the position of the descent, right? [00:34:08] Speaker 02: Yes. [00:34:12] Speaker 02: Your Honor, we're seeing that for the first time in terms of it was not in the petition. [00:34:16] Speaker 02: There was no construction. [00:34:17] Speaker 02: There was no issues. [00:34:18] Speaker 00: You don't have an answer to that. [00:34:20] Speaker 02: Your Honor, I don't have an answer other than to say I believe a control signal is something that is different. [00:34:24] Speaker 02: And I believe that it is different than just a mere output. [00:34:27] Speaker 04: What is it? [00:34:27] Speaker 04: I mean, what is it then? [00:34:30] Speaker 04: I mean, you should be prepared for this question for sure. [00:34:33] Speaker 02: Sure, Your Honor. [00:34:34] Speaker 02: So I believe a control signal is something that would be controlling the device. [00:34:36] Speaker 02: So to give you an example of a control signal. [00:34:39] Speaker 04: So that could be an input signal to the device. [00:34:42] Speaker 02: I don't know that an input signal to the device just conveys information about an input, whereas a control signal would convey, in my opinion, a control signal would convey information that would actually cause the device to take a further action. [00:34:55] Speaker 02: So there may be instances where those two are one and the same, but in the context of how it's written and how it's claimed, I believe just an input signal could be an indication of radiation, for example, whereas a control signal would actually convey additional information to tell the device to do something. [00:35:12] Speaker 03: If we can't find a material difference, what should we do? [00:35:16] Speaker 03: Even recognizing that the petition didn't address it and the reply didn't address it, what should we do if we think or can't tell if there's a material difference between claims the board did expressly address and find to be unpatentable? [00:35:29] Speaker 02: So Your Honor, I'll get back to the burdens of the parties. [00:35:32] Speaker 02: And the petitioner is a moving party, and the petitioner bears the burden to prove this. [00:35:37] Speaker 02: And so if petitioner is going to rely upon the board to insert arguments, or is going to rely upon the appell panel here to come up with a reason why that claim would be invalid, I think that's improper. [00:35:47] Speaker 02: I think it was the petitioner's job from the beginning and the outset to define exactly what it was. [00:35:51] Speaker 02: They don't mention a control signal. [00:35:52] Speaker 02: They don't even say that a control signal is defined as something. [00:35:55] Speaker 02: They take no position on it. [00:35:56] Speaker 02: They don't even address it. [00:35:58] Speaker 02: So I think from the retrospective. [00:35:59] Speaker 00: This is shown by claim 13, and they've argued [00:36:03] Speaker 00: that the claim 17 from which 20 depends shows that. [00:36:10] Speaker 02: So I'll note that in the petition, they had the incorrect, might have just been a typo, cross-reference to the dependent claim. [00:36:17] Speaker 02: So they don't necessarily even address the proper dependency of the claims. [00:36:21] Speaker 02: So what we're kind of engaging in right now is we're trying to piece back together what could have been or what they could have meant. [00:36:28] Speaker 02: They just didn't say it. [00:36:30] Speaker 02: So I think even from the petition from the start, having an incorrect reference to the wrong dependent claim also indicates that the control signal was not addressed. [00:36:40] Speaker 02: I'm not sure if I answered your question, Your Honor. [00:36:44] Speaker 00: OK. [00:36:45] Speaker 00: Thank you, Mr. Daniels. [00:36:49] Speaker 00: Mr. Hick, you have a minute on the bottle on the cross pill. [00:36:59] Speaker 01: Thank you, Your Honor. [00:36:59] Speaker 01: So this exemplifies exactly what we're talking about, which is the patent owner can't actually tell us what the control signal is and why it would be any different than electronic input, despite this being the subject of the whole cross appeal, red brief and the gray brief, and despite the dissent. [00:37:22] Speaker 01: specifically saying it doesn't have any particular meaning at appendix 149. [00:37:26] Speaker 01: The electronic input is produced by claim 17f. [00:37:30] Speaker 01: Of course, claim 20 depends from claim 17. [00:37:33] Speaker 01: The electronic input produces an electronic input of 2D position, 3D position, [00:37:41] Speaker 01: and some other things. [00:37:42] Speaker 01: Claim 13 adds a requirement of an intensity, and that creates an additional signal or adds to the signal that goes from the input circuitry. [00:37:57] Speaker 01: And this is exactly what the dissent pointed out at appendix 150. [00:38:02] Speaker 01: Judge Melvin was very convinced that everything here is sufficient. [00:38:09] Speaker 01: to show that, and I would just direct, Your Honor, that the cases that we cited, including in our notice of authority, suggest that even when the party bearing the burden of proof, [00:38:29] Speaker 01: If the evidence is there, if the evidence is arguably there, then the board should have addressed it. [00:38:34] Speaker 03: If the evidence wasn't there for claim 20 is your problem. [00:38:38] Speaker 03: You never pointed the board to anything for claim 20 for this limitation we're talking about. [00:38:44] Speaker 01: Respectfully, we didn't use the words. [00:38:46] Speaker 01: Correct, Your Honor. [00:38:47] Speaker 00: You pointed to claim 13. [00:38:48] Speaker 01: We pointed to claim 13, and we believe that that was sufficient. [00:38:52] Speaker 01: But you're right. [00:38:53] Speaker 01: We didn't use the words with that. [00:38:57] Speaker 01: Thank you, Your Honor. [00:38:59] Speaker 00: Thank you. [00:38:59] Speaker 00: Thank both counsel. [00:39:00] Speaker 00: The case is submitted.